WORLD TRADE
ORGANIZATIONTN/CTD/W/28
14 February 2003
(03-0949)
Committee on Trade and Development
Special SessionOriginal:  English
SPECIAL AND DIFFERENTIAL TREATMENT PROVISIONS
Joint Communication from the African Group in the WTO
The following communication, dated 29 January 2003, has been received from the Permanent
Mission of Kenya on behalf of the African Group.
_______________
Part I
Proposed Improvement on  the Chairman’s Text
A. GENERAL AGREEMENT ON TARIFFS AND TRADE 1994
Article XXXVI
Recommendations:
The General Council agrees that, provided this shall be without prejudice to any preferential
regime governing the exports of developing and least-developed country Members maintained by
developed country Members, the provisions of paragraphs 2 to 7 of Article XXXVI of GATT 1994
are binding commitments on the part of developed country Members in favour of developing and
least-developed country Members to:
(a) ensure a rapid and sustained expansion of the developing and least-developed country
Members;
(b) ensure that developing and least developed country Members secure a share in the
growth in international trade commensurate with the needs of their economicdevelopment;
(c) provide the maximum market access to products of export interest to developing and
least-developed country Members and take measures to stabilise and improve
conditions in world markets for these products particularly measures to attain stable,
equitable and remunerative prices;
(d) assist in the diversification of the economies of developing and least-developed
country Members;  and
(e) ensure coherence in global economic policymaking and implementation in a manner
that ensures that gains and opportunities in the multilateral trading system areTN/CTD/W/28
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supported and not undermined by programmes implemented by international lending
agencies and vice versa;
The General Council further agrees that the Committee on Trade and Development (CTD)
shall biannually review the implementation of the principles and objectives set out in Article XXXVI
of GATT 1994, and report to the General Council with appropriate recommendations.
Article XXXVII
Recommendation:
The General Council agrees that any Member may initiate discussion in the CTD on the basis
of Article XXXVII, with a view to ensuring comp liance with commitments in that Article.  The
General Council further agrees that it shall be incumbent upon the developed country Member in
question to provide a detailed explanation to matters raised; and the CTD may adopt appropriaterecommendations to the developed country Member.
The General Council further agrees that paragraphs 1 and 3 of Article XXXVII provide for
binding obligations and the commitments set out shal l be fully implemented and where it is felt that
this would not be possible, leave shall be sought in the General Council by the concerned developedcountry Members on the basis of consultations on specific grounds advanced.
Article XXXVIII
Recommendation:
The General Council instructs the Director General to pursue and conclude co-operation
arrangements with all relevant agencies of th e UN including the Common Fund for Commodities, and
with all relevant international and regional organisations, with a view to ensuring the fullimplementation in a coherent manner of the commitments in Article XXXVIII of GATT 1994.
The General Council further instructs the CTD to regularly receive studies and reports from
the agencies and the organisations, that may assist its work relating to, specific development goals,
desirable rates of growth in actual market access levels for products of export interest to developing
and least-developed country Members, targets to be achieved over the short and medium terms,
measures to be taken in the WTO framework and by other international organisations as well as theassistance required by developing and least-developed country Members to ensure the achievement of
the goals and targets, and to deal with any relevant matters.
B. U
NDERSTANDING ON ARTICLE XXIV OF GATT 1994
Recommendations:
The General Council agrees that the Understanding on the Interpretation of Article XXIV of
the GATT 1994 shall not in anyway prejudice the ri ght of developing and least-developed country
Members to enter arrangements for mutual reduction or elimination of tariffs and non-tariff barriers to
their trade, in accordance with the Decision of 28 November 1979 on Differential and MoreFavourable Treatment Reciprocity and Fuller Participation of Developing Countries (the Enabling
Clause) (BISD 26S/203).  The General Council further agrees that this Decision is part of
GATT 1994, pursuant to note 1(b)(iv) to the GATT 1994 and as such remains fully applicable
notwithstanding the Understanding on the Interpretation of Article XXIV of the GATT 1994.
The General Council notes that the Negotiating Group on Rules is addressing Article XXIV
of the GATT 1994.  In this regard, the General Council agrees that the Negotiating Group on RulesTN/CTD/W/28
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shall develop appropriate mechanisms providing flexibility to address the concerns of developing and
least-developed country Members.  The General Council agrees that such concerns include inter alia,
the need for policy space to protect important public policy, the pursuance of development
programmes for diversification and the strengthening of domestic industries, and the adoption of
regional integration programmes covering sectoral co-operation and the building of developmentinfrastructure.
C. A
GREEMENT ON PRESHIPMENT INSPECTION
Article 3.3
Recommendations:
The General Council agrees that technical assistance for purposes of the Agreement shall
address the concerns of developing and least-developed country Members relating among others to:
(i) training customs and revenue officials to ensure that the objectives of
preshipment inspection are achieved; particularly those relating to prevention
of false declaration, wrong classification, and any fraud;
(ii) ensuring that it is duly inspected consignments that are shipped to user
Members;  and
(iii) regulation of preshipment entities.
The General Council further agrees, in the context of the Agreement on Customs Valuation
and of the Decision Regarding Cases Where Cust oms Administrations Have Reasons To Doubt The
Truth Or Accuracy Of The Declared Value, that customs authorities of Members shall closely
co-operate with a view to fully assisting user Members achieve the objectives of the Agreement onPreshipment Inspection.
D. A
GREEMENT ON RULES OF ORIGIN
Recommendations:
The General Council:
(a) Regarding preferential rules of origin under the Common Declaration in Annex II to
the Agreement, agrees that in their arrang ements for mutual reduction or elimination
of tariff or non-tariff barriers, developing and least-developed country Members shallhave the right to adopt preferential rules of origin designed to achieve trade policy
objectives relating to their rapid economic development, particularly through
generating regional trade;  and
(b) Instructs the Director General to ensure and promote the ever-increasing participation
of developing and least-developed country Members in the activities of the WorldCustoms Organisation and the Technical Committee on Rules of Origin.TN/CTD/W/28
Page 4
E. AGREEMENT ON IMPORT LICENSING PROCEDURES
Article 3.5
Recommendations:
The General Council agrees that for purposes of subparagraph (a)(iv) of Article 3.5,
developing country Members shall not be required to provide import statistics with respect to products
subject to import licensing unless they can do so within the current administrative and financial
means, which they shall themselves determine.
The General Council further agrees that:
(a) The word "should" in subparagraph (j) of Article 3.5 shall be replaced with the word
"shall" wherever it appears, on the understanding that this does not change the nature
of the legal obligation in this provision;  and
(b) Priority in licence allocation shall be accorded to importers from developing and
least-developed country Members.
F. UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES
(DSU)
Article 8.10
Recommendation:
The General Council agrees that in disputes between a developing country Member and a
developed country Member, at least one panellist shall be from a developing country Member, unless
the developing country Member agrees to waive this right.
Article 27.2
Recommendation:
The General Council agrees that:(a) The Secretariat shall always provide developing country Members with qualified
legal experts of their choice to assist them in disputes; and for this purpose the
Secretariat shall maintain a geographically balanced roster of legal experts from
which developing country Members may select.
(b) The requirement for "continued impartiality of the Secretariat" in paragraph 2 shall
mean that the qualified legal expert provided to assist a developing country Memberin a dispute shall assist the country for the duration of the dispute and not continue to
be counsel for the country after the dispute; and that the expert shall fully discharge
his or her role as counsel for the developing country Member.TN/CTD/W/28
Page 5
G. DECISION ON MEASURES IN FAVOUR OF LEAST -DEVELOPED COUNTRIES
Paragraph 2
Recommendation:
The General Council agrees that:
(a) Notwithstanding any provision of any WTO Agreement, least-developed country
Members shall always be entitled to extensions for their transition periods as they
may require;  and
(b) Technical assistance to least-developed country Members shall aim among other
things to remove supply side constraints to benefits under all WTO Agreements, suchas benefits of market access opportunities and development of domestic productivity.
Part II
Recommendations from the African Group's Proposals
A. INCORPORATION OF S&D  INTO THE ARCHITECTURE OF WTO RULES :
The General Council agrees that the CTD in Special Session shall urgently consider
and make clear recommendations for a decision by the General Council by 30 March 2002 on
how special and differential (S&D) treatment may be incorporated into the architecture of
WTO rules.  This exercise shall include the consideration of concrete rules governing the
type, wording, effectiveness, and operationalisation of any S&D treatment  provisions to be
considered for inclusion in WTO Agreements.  In this regard, the Committee shall fully take
on board all the Africa Group proposals on cross-cutting issues as set out in Part II of the
Communication from the Africa Group in document TN/CTD/W/3/Rev.1.
B. GENERAL AGREEMENT ON TARIFFS AND TRADE 1994
Article XVIII
Recommendation:
The General Council agrees that the provisions of this Article aim to promote the rapid
development of domestic industries and the needed adjustments where domestic industries experience
difficulties in developing and least developed country Members.  Therefore, this Article shall be
implemented, interpreted and applied by Members and in all the WTO processes in a manner that
fully supports the attainment of these goals.  In particular, developing and least-developed countryMembers shall not be subjected to cumbersome requirements or conditions, or to any requirements
and conditions that would undermine the attainment of these goals.  In determining whether any
requirements or conditions are cumbersome, the views of the developing and least-developed country
Members concerned shall be fully accommodated and shall not be prejudiced or rejected except with
the consensus of all Members.
The General Council agrees further that Members shall at the 5
th Session of the Ministerial
Conference adopt an Agreement on Special and Differential Treatment, elaborating a multilateralTN/CTD/W/28
Page 6
framework on the provisions of Article XVIII and Part IV of GATT 1994, Article IV of GATS and
Articles 7 and 8 of the TRIPs Agreement.
Article XVIII:A
Recommendation
The General Council agrees that where developing or least-developed country Members wish
to modify or withdraw concessions under Article XV III:7, they shall not be required to offer or make
compensatory adjustments that are inconsistent with their development needs or would unreasonably
strain their resources.  In particular, they shall not be required under paragraph 7(a) to make or offer
unreasonable compensatory adjustments, and compensatory adjustment shall be adequate within themeaning of paragraph 7(b) where the developing and least-developed country Members modifying or
withdrawing the concession offer to adopt measures that allow a period of three months for exporters
based in the Members affected to undertake necessary adjustments.
Article XVIII:B
Recommendation:
The General Council agrees that short term financial flows shall not be included in
determining the external reserves or surpluses of Me mbers and financial instability shall be duly taken
into account as a problem to be addressed over a reasonable period of time when measures under
Article XVIII: B shall be maintained.  The reasonable period of time shall not be less than three years,
taking into account differences in industry types.
C. U
NDERSTANDING ON ARTICLE II:1(B)
Recommendation:
The General Council agrees that "other duties or charges" shall not be construed or applied in
a manner that prejudices the right of developing and least-developed country Members to levy duties
or charges to meet their requirements relating to government revenue and administrative expenses.
D. UNDERSTANDING ON ARTICLE XVII
Recommendation:
Members agree that state trading enterprises may have a significant role to play in protecting
public policy in developing and least-developed country Members.
E. UNDERSTANDING ON BALANCE -OF-PAYMENTS PROVISIONS OF GATT 1994
Recommendation:
The General Council agrees that Articles 8 and 12 of the Understanding on Balance-of-
Payments are special and differential treatment provisions and their effect in part is that, in the case ofdeveloping and least-developed country Members,  full consultation procedures (BISD 18S/48-53)
shall only be used when it is not appropriate to use the simplified consultation procedures (BISD
20S/47-49).  It shall be upon Members preferring full consultation procedures to show why they are
appropriate and the Committee shall only use full consultation procedures with the consent of all
Members.TN/CTD/W/28
Page 7
F. UNDERSTANDING IN RESPECT OF WAIVERS OF OBLIGATIONS UNDER GATT 1994
Recommendation:
The General Council agrees that waiver of obligations in accordance with Article IX of the
WTO Agreement shall be for the benefit of, Members seeking the waiver, or those that the waiver issought for.  Other Members shall not prejudice the benefits under waivers sought in favour of
developing or least-developed country Members.
G. U
NDERSTANDING ON THE INTERPRETATION OF ARTICLE XXVIII OF GATT 1994
Paragraph 1
Recommendation:
The General Council agrees that all small and medium-sized exporting Members shall be
deemed to have a principal supplying interest.  The General Council further agrees that these
Members shall have negotiating rights in any pr oposed modification or withdrawal of a concession
that would have any effect on their trade.
H. AGREEMENT ON AGRICULTURE
Article 6.2
Recommendation:
The General Council agrees that the permitted subsidies under Article 6.2 shall be without
limitation as to amount and shall include any programmes in developing and least-developed country
Members for , inter alia,  promoting food security and rural development, and assisting resource poor
or low-income farmers.
Article 14
Recommendation:
The General Council agrees that that measures covered by the Agreement on the Application
of Sanitary and Phytosanitary Measures shall not be used as disguised restrictions against the trade ofdeveloping and least-developed country Members.  Members shall biannually report to the Committee
on Agriculture on any measures being implemented under the Agreement on the Application of
Sanitary and Phytosanitary Measures that affect any products from developing and least-developed
country Members.
Article 15.1
Recommendation:
The General Council agrees that measures for special and differential treatment nature shall
be embodied in the schedules of commitments or concessions of Members that adopt them as binding
commitments in favour of developing and least-developed country Members.  However, this shall be
without prejudice to any preferential regime governing the exports of developing and least-developed
country Members to developed country Members.TN/CTD/W/28
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Article 15.2
Recommendation:
The General Council agrees that transition periods under the Agreement shall be extended for
developing and country Members that face adjustment difficulties.  The General Council further
agrees that developing and least-developed country Members shall have the right to modify their
commitments as may be necessary to protect the public interest in ensuring food security and
alleviating rural poverty.
I. DECISION ON MEASURES CONCERNING THE POSSIBLE NEGATIVE EFFECTS OF THE REFORM
PROGRAMME ON LEAST -DEVELOPED AND NET FOOD-IMPORTING DEVELOPING COUNTRIES
The General Council agrees that, in the context of the Decision on Measures Concerning the
Possible Negative Effects of the Reform Programme on Least-Developed and Net Food-Importing
Developing Countries and of the Ministerial Decision on Implementation Issues and Related
Concerns, developed country Members shall embody in their schedules of commitments undertakings
on, contributions to a revolving fund for normal levels of food imports, providing food aid in fullygrant form, and maintaining food aid levels consistently with recommendations and rules under the
Food Aid Convention.
J. A
GREEMENT ON SANITARY AND PHYTOSANITARY MEASURES
Article 9.2
Recommendations:
The General Council agrees that:
(a) The term "substantial investments" in Article 9.2 of the Agreement on Sanitary and
Phytosanitary Measures shall be construed relative to resources of concerned
government departments in developing and least-developed country Members and to
their development needs.  Any changes that would require additional resources to
existing levels of current expenditure or their restructuring, or additional training or
staffing, shall be construed to amount to "substantial investments".
(b) Where the importing Member does not actually provide such technical assistance,
that Member shall withdraw the measures immediately and unconditionally;  or the
importing Member shall compensate the exporting developing country Members for
loss resulting directly or indirectly from the measures.
(c) Technical assistance shall be fully funded technical assistance and shall not entail
financial obligations on the part of the exporting developing and least-developedcountry Members.
(d) Impact assessments shall be conducted to determine the likely effect on the trade of
developing and least-developed country Members for any proposed standards before
adoption.  Where it is assessed that the impact would be adverse, except for cases of
urgent problems as provided for by paragraph 6 of Annex B, the standards shall notbecome applicable until the Committee has established that developing and
least-developed country Members that would be affected have acquired the capacity
to beneficially comply with them.TN/CTD/W/28
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Articles 10.1 and 10.4
Recommendations:
The General Council agrees that:(a) The requirement to "take account of the special needs of developing country
Members, and in particular least developed country Members" in Article 10.1 shall
mean that Members shall either withdraw measures that adversely affect any
developing and least-developed country Members or which they find difficult to
comply with, or shall provide the technical and financial resources necessary for the
developing and least-developed country Members to comply with the measures.
(b) The requirement shall further mean that Members shall always initiate consultations
in the Committee whenever they propose or intend to take any measures that are
likely to affect imports from developing and least-developed country Members.  In
the consultations, Members shall establish whether or not the proposed or intended
measures, if justified under the Agreement, would adversely affect any developingand least-developed country Members.
(c) Technology transfer and any technical and financial assistance under the Agreement
to developing and least-developed country Members shall be cost free.
The General Council further agrees to establish a facility within the Global Trust Fund for
ensuring that:
(a) Developing and least-developed country Me mbers have the financial and technical
capacity to meet the requirements under the Agreement;
(b) Delegations from developing and least-developed country Members attend and
effectively participate in meetings of the Committee and relevant internationalstandard setting organisations;
(c) Developing and least-developed country Members effectively utilise the flexibility
under the Agreement; and
(d) Measures adopted under the Agreement do not contravene the rights of developing
and least developed country Members.
Article 10.3Recommendation:
The General Council agrees that the phrase "the Committee is enabled to grant such
countries" shall mean that the Committee shall grant such countries; and the phrase "specified, time-
limited exceptions" shall refer to periods of not less than three years notwithstanding any provision inany WTO Agreements and in any case such periods such be adequate for developing and
least-developed country Members to undertake any adjustments necessary for them to comply with
the provisions of the Agreement.  The phrase "taking into account their financial, trade and
development needs" shall mean that the periods shall objectively relate to the time and resources
necessary for developing and least-developed country Members to undertake necessary adjustments tocomply with the provisions of the Agreement.TN/CTD/W/28
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K. AGREEMENT ON TEXTILES AND CLOTHING
Articles 2.18 and 6.6
Recommendations:
Without prejudice to any preferential regime governing the exports of developing and least-
developed country Members to developed country Members, the General Council agrees that:
(a) In the context of paragraph 4 of the Ministerial Decision on Implementation Issues
and Related Concerns adopted on 14 November 2001, "advancement by one stage"
shall mean the cumulation of the current and the succeeding stages, and "equivalent
changes" shall refer to changes that are no t less favourable than the cumulation.  In
determining equivalent changes, proposals made by developing and least-developed
country Members shall be accepted unless there are compelling reasons, which shall
be recorded and examined by the Textiles Monitoring Board.
(b) There shall be no cumulation of imports from developing or least-developed country
Members in determining volumes of imports for purposes of measures againstimports under the Agreement.  The phrase "differential and more favourable
treatment" in Article 6.6(b) shall mean that no safeguard measures shall be taken
against exports of Members that constitute a small volume or a small percentage of
total textile and clothing imports.  In this regard "small" shall be understood to refer
to imports from any developing and least-developed country Member that are lessthan 10 per cent of the total textile and clothing imports of a Member.
(c) The phrase "special consideration" in Article 6.6(c) shall mean that no restrictions
shall be imposed on such exports of such developing and least-developed country
Members.
(d) In accordance with paragraph 42 of the Declaration of the Fourth Session of the
Ministerial Conference, textile and clothing exports of least-developed country
Members shall be accorded duty free, quota free treatment by developed country
Members.
L. A
GREEMENT ON TECHNICAL BARRIERS TO TRADE
Articles 11 and 12
Recommendations:
The General Council agrees:(a) That Article 11 constitutes binding obligations;
(b) Recognising the importance of standardisation in promoting exports of developing
and least-developed country Members, that a facility be provided under the Global
Trust Fund into which contributions shall be made by Members to assist developing
and least-developed country Members in implementing the Agreement.  Members
that propose to introduce new standards that are required to be notified under the
Agreement, shall prior to adoption of the standard, deposit amounts into the fund inaccordance with assessments by the Committee based on resource implications forTN/CTD/W/28
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developing and least-developed country Members in complying with such standards;
and
(c) That a further facility within the Global Trust Fund be established for ensuring that:
(i) developing and least-developed country Members have the financial and
technical capacity to meet the requirements under the Agreement;
(ii) delegations from developing and least-developed country Members attend
and effectively participate in meetings of the Committee and relevant
international standard setting organisations;
(iii) developing and least-developed country Members effectively utilise the
flexibility under the Agreement;  and
(iv) measures adopted under the Agreement do not contravene the rights of
developing and least-developed country Members.
The General Council further agrees that:
(a) Reference to the special needs and difficulties of developing and least-developed
country Members in Article 12 shall means that developed country Members shall
provide full technical and financial assistance to developing and least-developedcountry Members that are to comply w ith standards in accordance with the
Agreement;  and
(b) Technical assistance shall be fully funded technical assistance and shall not entail
financial obligations on the part of the exporting developing and least-developed
country Members.
(c) Impact assessments shall be conducted to determine the likely effect on the trade of
developing and least-developed country Members for any proposed standards before
adoption, and if the impact would be adverse, the standards shall not become
applicable until the Committee has established that developing and least-developed
country Members that would be affected have acquired the capacity to beneficiallycomply with them.
(d) In paragraph 8 of Article 12 the phrase "the Committee … is enabled to grant" shall
mean that the Committee shall grant, and the phrase "specified, time-limited
exceptions" shall refer to periods of not less than three years and in any case such
periods such be adequate for developing and least-developed country Members to
undertake any adjustments necessary for them to comply with the provisions of the
Agreement.
(e) Technology transfer and any technical and financial assistance under the Agreement
to developing and least-developed country Members shall be cost free.TN/CTD/W/28
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M. AGREEMENT ON TRADE -RELATED INVESTMENT MEASURES
Article 3
Recommendation:
The General Council agrees that provision in Article 3 of the TRIMs Agreement that all the
exceptions in GATT 1994 shall apply, as appropriate, to the TRIMs Agreement, shall mean that,
co-operation arrangements, laws, measures and policies adopted on the basis of the provisions of
GATT 1994 that operate as exceptions, apply to the provisions of the TRIMs Agreement. Such
exceptions include:
(a) co-operation arrangements among developing country Members under which certain
preferential treatment is accorded to parties to the arrangements;
(b) quantitative restrictions taken in accordance with among others Articles XII, XVIII
and XIX of GATT 1994;  and
(c) measures taken to improve living standards in developing country Members under
Article XVIII including programmes on incentives relating to domestic content
requirements.
Article 4
Recommendations:
The General Council agrees that in accordance with paragraph 1.1 of the Ministerial Decision
on Implementation-Related Issues and Concerns adopted at the Fourth Session of the Ministerial
Conference on 14 November 2001, which "reaffirms th at Article XVIII of the GATT 1994 is a special
and differential treatment provision for developing countries and that recourse to it should be lessonerous than to Article XII of the GATT 1994", Members shall interpret and apply Article 4 of the
TRIMS Agreement in a manner that fully supports measures taken by developing and least-developed
country Members to safeguard the external financial position, the balance of payments, and
sufficiency of reserves.
The General Council further agrees that the phrase "free to deviate temporarily from the
provisions of Article 2" that appears in Article 4 of the TRIMs Agreement shall, in view of thestructural bottlenecks of developing and least-developed country Members, refer to a period of not
less than six years.
Article 5.3
Recommendation:
On the basis of the development, financial and trade needs of least-developed and other low
income developing country Members, the General Council agrees that the Council for Trade in Goods
shall grant requests for extension of or for fresh transition periods from least-developed countryMembers, and from developing country Members that are eligible under the Agreement on Subsidies
and Countervailing Measures, to maintain subsidy pr ogrammes that may wholly or in part be covered
by or have a relation to the TRIMs Agreement.TN/CTD/W/28
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N. AGREEMENT ON IMPLEMENTATION OF ARTICLE VI  OF THE GENERAL AGREEMENT ON TARIFFS
AND TRADE 1994 ( DUMPING )
Article 15
Recommendation:
The General Council agrees that for purposes of Article 15 of the Agreement:(a) "Special regard", "special situation", and "essential interests of developing country
Members", read together, require that developed country Members shall specifically
take into account the development needs of developing and least-developed country
Members particularly for sustainably maintaining or increasing market access forproducts of export interest to them. In this regard:
(i) the causal link between the fact of dumping and of injury on the one hand, to
imports from developing and least-developed country Members on the other,
shall be determined on a case by case basis taking into account the WTO
goals of improving living standards in developing and least-developedcountry Members through growth in the trade of these countries, in a manner
that demonstrates that the achievement of these goals in developing and
least-developed country Members has duly been taken into account;  and
(ii) coherence shall be ensured between the Anti-dumping, and the Subsidies and
Countervailing Measures agreements on the basis of the importance ofsustainably maintaining or increasing market access for products of export
interest to developing and least-developed country Members;  and of
maintaining their export competitiveness.
(b) "Constructive remedies provided for by this Agreement" shall include:
(i) consultations for mutually agreed solutions within the meaning of
paragraph (a) above other than anti-dumping duties, price undertakings, or
any action prohibited by the Agreement on Safeguards;
(ii) internal reforms in developed country Members regarding market conditions,
and employment and investment conditions to improve competitiveness on
the basis of fair competition rather than taking anti-dumping measures
against imports; and
(iii) exploring solutions against anti-competitive practices if determined to have
taken place, on the basis of taking into account and protecting the interests of
domestic consumers, rather than taking any anti-dumping measures.
O. A
GREEMENT ON IMPLEMENTATION OF ARTICLE V II OF THE GENERAL AGREEMENT ON TARIFFS
AND TRADE 1994 (C USTOMS VALUATION )
Article 20.1-2
Recommendation:
The General Council agrees that delays of application of the Agreement provided for under
Article 20 read together with Annex III and the Decision on Texts Relating to Minimum Values andTN/CTD/W/28
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Imports by Sole Agents Sole Distributors and Sole Concessionaires, shall be extended whenever that
is necessary to protect the development, financial and trade needs of developing and least-developed
country Members as requested by the Members seeking such extensions.
Article 20.3
Recommendation:
The General Council agrees that the provisions of paragraph 3 of Article 20 constitute binding
obligations.  The General Council further agrees that programmes undertaken by developed country
Members, shall be implemented on a long-term basis. Regarding least-developed country Members,
the programmes once commenced shall be implemented for as long as the country remains classifiedas such.
P. A
GREEMENT ON IMPORT LICENSING PROCEDURES
Article 1.2
Recommendation:
The General Council agrees that the requirement to take into account the "development
purposes and trade needs of developing country Members" in Article 1.2 of the Agreement shall mean
that import licensing regimes shall be designed in a manner that prevents adverse effects to the trade
of developing country Members.  In this regard, the regimes shall specifically be expeditious in
relation to the trade of developing country Members.
Q. AGREEMENT ON SUBSIDIES AND COUNTERVAILING MEASURES
Article 27.1
Recommendation:
The General Council agrees that developing country Members shall have a right to use
subsidies as may be necessary for their economic development.  Extensions shall be granted in
accordance with Article 27.4 of the Agreement bearing in mind the important role subsidies play in
the economic development of developing country Members.
Article 27.4
Recommendations:
The General Council agrees that:
(a) Members that consider certain subsidies that developing country Members maintain
to be "inconsistent with its development needs" shall show that they are prohibited or
actionable subsidies and that those subsidies would clearly not benefit any domesticindustry of the developing country Member;  and
(b) Developing country Members that seek extensions under Article 27.4 and the
Decision on Procedures for Extensions Under Article 27.4 for Certain Developing
Country Members (G/SCM/39) shall be spee dily granted such extensions.  Members
shall refrain from invoking technicalities, such as slight or reasonable delays to seekthe extension within the prescribed time frames.TN/CTD/W/28
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Article 27.8
Recommendation:
The General Council agrees that in consultations and in any proceedings, there shall be no
presumption of serious prejudice whatsoever incl uding on the basis of any percentage or amount of
subsidisation where developing country Members grant subsidies;  and that any serious prejudice shall
be demonstrated exclusively by positive evidence.
Article 27.9
Recommendation:
The General Council agrees that nullification and impairment in cases of actionable subsidies
that developing country Members grant or maintain, shall be construed to mean only the displacement
or impediment of imports of a like product into the market of the developing country Member or
injury to a domestic industry in the market of the importing Member.
Article 27.13
Recommendation:
The General Council agrees that Article 27.13 covers any privatisation programmes
undertaken within the period from 1 January 1995 and that developing country Members may grant or
maintain the subsidy programmes under Article 27.13 to ensure good adjustment of their economies;
and that "limited period" refers to a period of not less than eight years.
Article 27.15
Recommendation:
The General Council agrees that "interested developing country Member" shall refer to any
developing country Member regardless of any subsidy programmes maintained, on the basis that
developing country Members have an abiding interest in the use and operation of subsidies due totheir importance in the rapid economic development of developing country Members.
R. A
GREEMENT ON SAFEGUARDS
Article 9.1-2
Recommendation:
The General Council agrees that:
(a) Paragraph 1 of Article 9 constitutes a binding prohibition against taking safeguard
measures against products from developing country Members that do not exceed
3 per cent of imports of a Member;  and
(b) Paragraph 2 of Article 9 is a binding right for developing country Members to extend
safeguard measures for an additional two years and to take fresh safeguard measures
against products previously the subject of safeguard measures.TN/CTD/W/28
Page 16
S. DECISION ON MEASURES IN FAVOUR OF LEAST -DEVELOPED COUNTRIES
Paragraph 1
Recommendation:
The General Council agrees that the effect of the Decision on Measures in Favour of
Least-Developed Countries is that least-develope d country Members, notwithstanding any provision
of any WTO Agreement, shall not be required to implement or comply with obligations or
commitments that are prejudicial to their individual development, financial or trade needs, or their
administrative and institutional capacity.
T. DECISION ON DIFFERENTIAL AND MORE FAVOURABLE TREATMENT , RECIPROCITY AND
FULLER PARTICIPATION OF DEVELOPING COUNTRIES , OF 28 N OVEMBER 1979
Recommendation:
Without prejudice to any preferential regime governing the exports of developing and
least-developed country Members to developed country Members, the General Council agrees that:
(a) In formulating schemes under paragraphs (a) and (b) of clause 1 of the Enabling
Clause, developed country Members shall consult under the auspices of the
Committee on Trade and Development with developing and least-developed country
Members with a view to ensuring that products of export interest to developing andleast-developed country Members are accorded meaningful market access that will
achieve the objectives set out in Article XXXVI of GATT 1994.  In this regard,
developed country Members shall show to the Committee on Trade and Development
how they have included in the programmes specific products of particular export
interest to developing and least-developed country Members and taken measures toensure meaningful market access.
(b) Meaningful market access shall be construed in accordance with targets set or
adopted from time to time in the Committee on Trade and Development.
(c) The Enabling Clause provides developing and least-developed country Members with
the right to enter regional or global arrangements for the mutual reduction or
elimination of tariffs or non-tariff barriers.  The arrangements can be for reduction or
elimination of tariffs or non-tariff barriers, and with regard to reduction or eliminationof tariffs no WTO body or Members should prescribe any criteria relating to the
arrangements.  Members shall respect any such arrangements as an exercise of rights
that developing and least-developed country Members have under the WTO
Agreement.
U. G
ENERAL AGREEMENT ON TRADE IN SERVICES
Article IV
Recommendation:
The General Council agrees that:
(a) The Committee on Trade and Development shall set periodic benchmarks on
financial and technical cooperation and other mutual arrangements under whichTN/CTD/W/28
Page 17
developed country Members shall accord to developing country Members special and
differential treatment and undertake commitments in negotiations as and when held
designed to ensure:
(i) The strengthening of the capacity, efficiency and competitiveness of
domestic service industries of developing country Members and designed toeffect technology transfer to developing country Members;
(ii) Access by domestic service industries of developing country Members to
distribution channels and information networks of developed country
markets;  and
(iii) Liberalisation of market access in sectors and modes of supply of export
interest to developing country Members.
(b) Developed country Members shall reserve quotas for supply of services by
developing country suppliers as may be appropriate in sectors that developing country
suppliers have interests, and that developed country Members shall not adopt
horizontal limitations with respect to movement of natural persons and shall over a
period of two years phase out the limitations they maintain at the adoption of this
decision.
(c) Developed country Members shall twice every 12 months:
(i) report to the Council for Trade in Services on how they are implementing and
complying with targets set by the Committee on Trade and Development for
the operationalisation of Article IV;
(ii) the Council for Trade in Services and the Committee on Trade and
Development shall make recommendations to developed country Members to
ensure the implementation of Article IV.
(d) Commitments or concessions under the General Agreement on Trade in Services,
shall reflect a proportion of, at least 40 to 60 in short term actual gains, for
developing and developed country Members respectively, provided that specialattention shall be demonstrably accorded to the interests of developing and least-
developed country Members.
Article V:3
Recommendation:
The General Council agrees that the references to "flexibility" and "more favourable
treatment" with respect to agreements for liberalisation of trade in services among developing country
Members, shall mean that the agreements shall not be required to comply with the rules set out in
Article V provided that the agreements are entered into within the framework of or form part of wider
economic liberalisation or regional integration programmes.TN/CTD/W/28
Page 18
V. AGREEMENT ON TRADE -RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS
Articles 65, 66.1, 70.8, 79.9
Recommendation:
The General Council agrees that:
(a) Developing country Members shall be entitled to extensions beyond the additional
five year period under Article 65.4 relating to other areas of technology required to be
protected under the TRIPS Agreement.
(b) For purposes of the requirement to grant exclusive marketing rights during transition
periods, there is a clear distinction between "patent rights" on the one hand and"exclusive marketing rights" on the other.  The two shall not confer the same rights.
Patent rights as set out in Article 28 of the TRIPS Agreement are the following:  "to
prevent third parties not having the owner’s consent from the acts of making, using,
offering for sale, selling, or importing for these purposes the (patented) product" as
well as the products obtained directly by the patented process.  These rights conferredby a patent, are not the same rights as may be conferred by the grant of exclusive
marketing rights.  Members have the right and the freedom to define what constitutes
exclusive marketing rights, and may do so in  light of any interpretations that the
General Council or the TRIPS Council may adopt.  There shall be no requirement to
grant exclusive marketing rights until and only if marketing approval is granted.
Articles 7, 8, 66.2
Recommendation:
The General Council agrees that the following conditions shall govern the implementation of
Article 66.2 of the TRIPS Agreement:
(a) developed country Members shall give incentives to enterprises and institutions in
their territories through their laws or other administrative instruments, and the
incentives shall be of a magnitude and nature that will effectively operate as
motivation to transfer technology to least-developed country Members taking into
account the actual conditions in the least-developed country Members and thedifficulties expressed by the enterprises and institutions;  and
(b) The incentives shall take any appropriate forms provided that the forms shall
effectively operate as incentives to motivate the enterprises and institutions to transfer
technology to least-developed country Members.
The General Council further agrees that
(a) Developed country Members shall report on their implementation of Articles 7, 8,
and 66.2 of the Agreement, according to a reporting schedule to be regularly drawn
up by the TRIPS Council.  The reports shall be evaluated in the TRIPS Council to
establish whether or not the implementation is achieving the objectives of buildingsound technological bases in developing and least-developed country Members.
(b) "Technology" for purposes of the Agreement shall include equipment, knowledge and
skills including their tacit forms and trade secrets, practical and theoretical training,TN/CTD/W/28
Page 19
and insights into the history and global context of innovations and processes relating
to particular technologies.
(c) Co-operation arrangements between enterprises and institutions of developed country
Members on the one hand and research and other learning institutions in developing
and least developed country Members on the other, shall be essential components ofimplementing the Agreement.  The reportin g shall indicate implementation in terms
also of arrangements with the research and learning institutions.
W. D
ISPUTE SETTLEMENT UNDERSTANDING
Article 4.10
Recommendation:
The General Council agrees that:
(i) in consultations, requests by developing and least-developed country
Members to be involved shall always be accepted;  and
(ii) in the proceedings developed country Members shall present evidence of, and
in the written decisions the panels and the Appellate Body shall indicate, how
special attention has been given to particular problems and interests of
developing country Members during the stage of consultations.
Article 12.10Recommendation:
The General Council agrees that:
(i) consultations within the period set for consultations and consultations that
may be extended under the Dispute Settlement Understanding, may only be
declared as concluded with the consent of all parties involved in the
consultations;  and
(ii) "sufficient time for the developing country Member to prepare and present its
argumentation" shall be understood to be a period of six months or the longer
period requested by the developing country Member.
Article 12.11
Recommendation:
The General Council agrees that Article 12.11 of the Dispute Settlement Understanding
requires the panel, in reaching a decision, to fully take into account the special and differentialtreatment provisions that appear in any covered Agreem ents that are raised or that are relevant in the
dispute.TN/CTD/W/28
Page 20
Article 21.2, 21.7, and 21.8
Recommendation:
The General Council agrees that paying "particular attention" to the "interests of developing
country Members" in paragraph 2, and consideration of "what further action the DSB might take" in
paragraph 7, shall be understood to require that recommendations made by the Dispute Settlement
Body and their implementation and surveillance shall address:
(a) any economic or trade loss suffered by the developing country Member computed
from the adoption to the withdrawal of the measures, by requiring that the developed
country Member pay monetary compensation or make some other form ofcompensation to the developing country Member;  and
(b) any difficulties that a developing country Member may face in seeking to enforce
compliance with the recommendations of the Dispute Settlement Body, through
authorising collective suspension by the rest of the WTO Membership of obligations
to the Member against which recommendations were made, notwithstanding therequirement that the level of suspension should be commensurate to the resulting
nullification and impairment.  Under such authorisation any Member may suspend
any obligations to the Member against which suspension is authorised.
Article 24.1Recommendation:
The General Council agrees that the requirement to "exercise due restraint in raising matters
under these procedures involving a least-developed country Member" shall mean that panels shall
before proceeding with the case first determine whether the Member bringing the case has givenparticular consideration to the special situation of the least-developed country Member.  In this
regard, the panel shall take into account all relevant factors including, the value of any alleged
nullification or impairment, the possible harm to the economy and resources of the least-developed
country Member that could result from the case, and the capacity in the circumstances of the
least-developed country Member to effectively deal with the case.
X. C
RITERIA FOR TECHNICAL AND FINANCIAL ASSISTANCE
The General Council agrees upon the following criteria for technical and financial assistance.
Technical assistance plans of the WTO and other assistance provided by Members shall be fully
consistent with these criteria.
1. (a) Technical and financial assistance shall be country driven.  In this regard, training
courses shall be sustainable.  Sustainability shall require, inter alia,
(i) follow up training,
(ii) readily useable local infrastructure for keeping current on relevant
developments in the field,  and
(iii) the targeting of different knowledge levels of trainees in a manner that
increasingly equips developing and least developed country Members with
progressively higher levels of skills in all relevant fields.TN/CTD/W/28
Page 21
(b) The long-term and integral components of capacity building shall include the
establishment of reference and research libraries, the introduction of relevant courses
in institutions of learning at university level, and the planned and predictable
availability of opportunities for training in other jurisdictions so as to have domestic
skills conversant with regimes of other Members;
2. (a) Training shall be relevant to identified pr iorities and effective in directly helping the
redress of bottlenecks faced by Members.  In  this regard it shall be directed towards
addressing,
(i) implementing obligations,
(ii) effectively participating in negotiations on a consistent basis,
(iii) achieving the clear and unequivocal inclusion of their concerns in
instruments adopted by WTO bodies,
(iv) equitably taking up and utilising opportunities availed under the multilateral
trading system and other market access arrangements;  and
(v) achieving acceptable or high levels of domestic economic growth.
(b) Capacity building shall aim for the attainment in developing country Members of
projected levels of skills required in government departments, in diplomatic missions
and their line ministries, and in negotiating teams.  The developing country Member
concerned shall establish the appropriate levels.  The levels shall relate inter alia to
experience and training of individuals in relevant disciplines and the number of
personnel.
3. Transparent, inclusive, fair, and fully accepted institutional arrangements for ensuring the
proper functioning of capacity building programmes and activities shall always be in place as a
condition precedent for the commencement of transition periods.
4. (a) There shall be:
(i) prior assessment and costing of implementation, and of compliance and
adjustment requirements of developing and least developed country Members
under each or every agreement;
(ii) the determination of ability to meet these requirements;  and
(iii) the prior establishment of binding rules on the subsequent execution of
modalities for meeting these requirements bearing in mind that theserequirements will have financial, human resource, and socio-economic
implications.
(b) Capacity building shall assist:
(i) a proper integration in developing country Members among all relevant
government departments to address the cross-cutting and multi-disciplinarynature of WTO obligations and rights,TN/CTD/W/28
Page 22
(ii) the establishment of a functioning link between developing country capitals
and their Geneva missions;  and
(iii) mechanisms for co-ordinating capacity building activities in Geneva and in
the capitals that come under the auspices of participating donor facilities
including the WTO secretariat.
5. The success of capacity building shall not be reckoned or assessed on the basis of the quantity
of money pledged or spent; nor on the basis of the number of technical missions, or of seminars and
workshops.  In this regard, the success of capacity building shall be assessed taking into account all
the criteria in this Decision and the objectives of the WTO.
6. With respect to negotiations, capacity building shall aim to provide practical material and
skills on how to negotiate and on issues for consideration, rather than only further introductorycourses and seminars designed for new or mid-career government officials.  While the trade policy
courses should continue, there shall be courses designed for government officials with a good working
knowledge of the WTO system, aimed at assisting the internalisation of negotiating procedures and
mechanisms in relation to their issues and priorities as individual Members or regions or groups of
Members.
7. Capacity building shall not take the form of persuading developing country officials on
positions they should take on issues.  Rather, it shal l aim for the in-depth internalisation of issues and
the development of the capacity to resourcefully ap ply the Agreements to practical issues relating to
the development needs of the country.
8. With respect to new obligations proposed in negotiations, the general guidelines shall be that
existing domestic laws shall not need to undergo major changes.  Where any major changes would be
required, new obligations will be considered only if the Members already have in place the relevantly
skilled people, the institutional framework and financial resources to undertake the required changes.
Y. C
RITERIA IN THE FORMULATION AND CONDUCT OF SEMINARS AND WORKSHOPS
The General Council agrees upon the following crit eria to govern the formulation of seminar
and workshop programmes.
1. Seminars shall target the different knowledge levels on WTO agreements of government
officials in and issues of concern for developing and least country Members, and specific elements of
WTO work programmes.  New officials or official s unfamiliar with the WTO Agreement may benefit
from introductory courses and seminars.  Officials that have been working on WTO matters for a
while and who may be the government negotiators, will need seminars that explore issues and options
for country positions at some length and with some detail, rather than generalisations or introductions.
2. Seminars shall have a degree of continuity, through follow up seminars and continuous access
to current literature.  This continuity shall not be in the form of mere repetition of the seminars
previously given, but of building upon previous seminars into deeper discourses and research
coursework.  So, the preparation of seminars for a capacity building programme should have along-term framework, with projected results or products in terms of trained officials and levels of
training to be attained over a given framework of time.  It would be upon governments and their
officials to try to ensure that the officials benefit from this continuity.
3. Seminars shall normally be situated or localised in the territories of Members and regions, in
addition to those that are given at the WTO secretaria t.  When situated in territories of Members andTN/CTD/W/28
Page 23
regions, they shall be directly linked into the curricula of institutions of high learning particularly at
university level. Some seminars should be given as part of the courses at these institutions of learning.
University teaching staff should be involved as trainers on seminars given to government officials and
civil society.  The seminars should be scheduled within or make part of the long-term capacity
building programmes within the country or region.
4. Seminars and workshops shall include the specific subject of special and differential
treatment, to assist in ensuring that the provisions are utilised to the maximum.
__________