JOB/GC/218, JOB/CTG/15  
JOB/SERV/292, JOB/IP/33  
JOB/DEV/58, JOB/AG/158  
 
27 June 2019  
(19-4360) Page: 1/5 
General Council  
Council  for Trade in Goods  
Council for Trade in Services  
TRIPS Council  
Committee on Trade and Development  
Committee on Agriculture  Original: English  
 
AN INCLUSIVE APPROAC H TO TRANSPARENCY AN D 
NOTIFICATION REQUIRE MENTS IN THE WTO  
COMMUNICATION FROM CUBA, INDIA, NIGERIA, SOUTH AFRICA,  
TUNISIA, UGANDA, AND ZIMBABWE  
The following communication, dated 27  June 2019, is being circulated at the request of the 
Delegations of Cuba, India, Nigeria, South Africa, Tunisia, Uganda, and Zimbabwe.  
 
 
_______________  
 
 
1  INTRODUCTION  
1.1.  Transparency remains an important issue within the  operation and monitoring function of the 
WTO. The issue of compliance with notification obligations has been contentious. Developing 
countries often struggle to comply with onerous obligations, while in many instances, developed 
countries also do not comp ly with their notification requirements or do so selectively.  
1.2.  In general it can be said that the capacity of developing countries to comply with notification 
obligations is inextricably linked with their level of economic development and access to resource s. 
The capacity and resource constraints that developing countries face cannot be underestimated. 
Notifications require a deep understanding of the entire range of WTO  Agreements, mature 
institutional mechanisms and human resource capacities that are often  lacking in developing 
countries. Any work in this area should be on supporting and incentivizing developing countries to 
address these difficulties, especially as it relates to transparency obligations. Existing notification 
obligations should be rational ized so that they are commensurate with Members’ level of 
development. Developing countries, SVEs and LDCs should not be expected to take on notification 
obligations which are beyond their capacities.  
1.3.  In contrast, in some of the recent proposals on transpa rency, Members are proposing new or 
strengthened notification obligations. If developing countries are not able to meet current notification 
obligations, there would be no possibility of meeting even higher notification requirements in future.  
1.4.  There is als o a prevailing concern about the ongoing activities in the regular bodies that seem 
to increase transparency obligations under the guise of efficient rationalisation of notification 
procedures and formats. Some examples of the abovementioned concern includ e activities in the:  
• Committee on Rules of Origin (CRO) : Where Switzerland continues to negotiate 
outcomes on transparency in non -preferential rules of origin. Document  G/RO/W/182 
remains subject to various concerns raised by developing country Members.  
 
• Committee on Market Access : Transparency in applied rates (Russian Federation 
proposal) JOB/MA/138 is of great concern as it increases the burden of notification.  
 JOB/GC/218 • JOB/CTG/15 • JOB/SERV/292 • JOB/IP/33 • JOB/DEV/58 • JOB/AG/158  
 
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  1.5.  Given the challenging issue of resource constraints, developing countries should not be 
subje cted to any transparency obligations which go beyond existing obligations.  
1.6.  Further, transparency cannot only be seen from the view of notification obligations. It should 
permeate the full spectrum of the operation of the WTO, from its day -to-day meetings, as well as 
Ministerial Conferences.  
2  CAPACITY CONSTRAINTS  OF DEVELOPING MEMBE RS 
2.1.  The capacity and resource constraints that developing countries face are well documented. 
Under these circumstances, it is natural for states to reserve economic resources for t he most urgent 
and pressing matters. In so far as obligations undertaken under the Marrakesh Agreement and it s 
annexes are concerned, there is no doubt that treaty obligations must be performed in good faith. 
Having said this, it is clear that the obligati on to comply is not blind to the situation that a particular 
Member or groups of Members may find themselves in.  
2.2.  There was already discussion on this issue in 1996 in the Working Group on Notification 
Obligations and Procedures . In those discussions, 'some  developing country participants pointed out 
that in view of the ever -increasing workload, combined with limited resources in the small 
delegations, they had great difficulty in advising their governments on all aspects of the notifications 
required. Many developing countries had difficulty understanding the frequently complex and highly 
technical information demanded, and therefore faced a prohibitive task in providing complete 
responses to the notification requirements and formats. While they recognized t hat these 
notifications were part of their Membership obligations and they were prepared to respond to the 
maximum of their abilities, there were serious constraints to what they could achieve due to their 
limited resources. '1 
2.3.  As participants considered th e specific needs of the developing, and particularly of the least -
developed country Members, a number of questions were raised including: whether some additional 
forms of special and differential treatment in respect of the obligations themselves should be  
considered or if greater technical assistance to meet the existing obligations would be the most 
appropriate? With respect to the former, it was suggested that simplified formats might be developed 
for the developing countries with more detailed informati on being provided to the committees only 
when requested to do so. In some situations, prolonged time -frames might be considered.2 
2.4.  The final observations by the Working Group adopted by the Council for Trade in Goods were 
that it " … agreed to forward to th e Committee on Trade and Development the recommendation that 
active consideration be given … to the development of a special programme of assistance to 
developing country Members and particularly to the least -developed country Members providing 
more intens ive technical assistance, possibly with the participation of other organizations, focusing 
on the development of systems and structures required to respond to notification obligations ".3 
These observations also clearly point out that problems that Members face in meeting their 
notification obligations transcend the ambit of the WTO, hence a call for a multi -agency approach.  
2.5.  In contrast, the Transparency proposal (JOB/GC/204/Rev.1) presuppose s the causes and 
remedies for non -compliance and proposes increased notification obligations rather than addressing 
developing countries ' difficulties in complying with these obligations.  
2.6.  Members proposing new or strengthened notification obligations must d o so only on the basis 
of empirical evidence. They must show that their remedies are tailored to address the problems 
developing countries encounter in this area.  
2.7.  Given the challenging issue of resource constraints, developing countries cannot agree to any  
transparency obligations which go beyond existing obligations. Further, punitive approaches to 
enforce notification and transparency obligations are not acceptable. Any work in this area must 
                                                
1 Report of the Working Group on Notification Obligations and Procedures, G/L/112, 7  October  1996, 
paragraph  53. 
2 Report of the Working Group on Notification Obligations and Procedures, ibid, paragraph  54. 
3 This recommendation, together with several others are contained in the Council o f Trade in Good 's 
Report to the General Council (G/L/134, 5  November  1996) which in turn formed part of the General Council 's 
Report that was transmitted to the Singapore Ministerial Conference, see WT/GC/W/46, 7  November  1996.  JOB/GC/218 • JOB/CTG/15 • JOB/SERV/292 • JOB/IP/33 • JOB/DEV/58 • JOB/AG/158  
 
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  support developing countries ' ability to address their difficul ties through inclusive and mutually 
agree d approaches, such as through simplified notification formats. In some situations, prolonged 
time-frames can also be considered. Technical assistance and capacity building must be central 
components; however, they w ill not completely resolve the human resource and institutional 
limitations. Flexibilities must be provided to developing countries, SVEs and LDCs in relation to 
existing notification obligations so that they are commensurate with their levels of developme nt. 
2.8.  Notifications can only be made by the concerned Member and no counter -notifications will be 
valid. Neither the Secretariat or any other Member of the WTO shall have the right to notify 
information on behalf of another Member unless this possibility has  been provided for in existing 
agreements. It is also important to preserve the international character of the WTO  Secretariat by 
ensuring that it takes no positions relative to approaches advanced by Members.  
3  INSUFFICIENT INFORMA TION IS NOT ONLY THE  CONCE RN OF DEVELOPED MEMB ERS 
3.1  Developing countries also have concerns about some Members ' notification s 
3.1.1   Improving Agriculture Notifications  
3.1.  Members with Final Bound AMS  commitments should provide their final notification no later 
than 120  days following the end of the year.  
3.2.  Several of these Members however take up to two  years or more to submit these notifications.  
3.1.2   Improving GATS  Article  III.3  
3.3.  Advances in technology have expanded and deepened the linkages between manufacturing and 
services, which further underlines the importance of Services notifications. Hence, we note with 
interest that some developed countries are chronically low in their level of compliance with existing 
notification requirements, notably under GATS  Article  III.3. 
3.4.  The overview reflect ing notifications over some twenty -three  years in the CTS reveal s that 
developing countries, and especially least developed countries, have submitted more notifications 
under the GATS than some developed countries.  
3.5.  We would encourage developed countries to  comply with their notification obligations under 
GATS  Article  III.3. Many have not done so.  
3.2  Some Members undermine their WTO  commitments or have not implemented them in 
the spirit in which such commitments were made  
3.6.  If the discussion on Transparency goes beyond addressing capacity issues, the first step must 
be to tackle the following concerns:  
3.2.2   GATS  Mode  4 
3.7.  Entry -related issues have undermined existing Mode  4 market access commitments. Over the 
years, various proposals have been submitted by developing coun tries to enhance Mode  4 
GATS  transparency to allow for effective realization of the market access which has already been 
provided for.  
3.8.  We therefore encourage developed Members to regularly notify existing and new measures 
which significantly affect their m ode 4 commitments.  
3.2.3   Article  66.2 of the TRIPS  Agreement  
3.9.  Article  66.2 of the TRIPS  Agreement require s developed country Members to provide incentives 
to enterprises and institutions in their territories for the purpose of promoting and encouraging 
technology  transfer to least -developed -country Members in order to enable the creation of a sound 
and viable technology base.  JOB/GC/218 • JOB/CTG/15 • JOB/SERV/292 • JOB/IP/33 • JOB/DEV/58 • JOB/AG/158  
 
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  3.10.   Developed countries have a positive legal obligation to provide incentives to enterprises and 
institutions in their territories to promote a nd encourage technology transfer to least -developed 
countries (LDCs). For the longest time, LDCs have demanded that this requirement be made more 
effective. Pursuant to the Doha Ministerial Conference, the TRIPS  Council has put in place a 
monitoring mechan ism, however this mechanism does not evaluate whether developed countries 
are compliant with their obligations under Article  66.2. 
3.11.   The obligation articulated in Article  66.2 is not only mandatory but also continuous since no 
time limit has been set for the  termination of this obligation. The record of compliance by developed 
countries is abysmal since information submitted under Article  66.2 is so wide -ranging that in  most 
cases it is not possible to distinguish where the information applies to developing c ountries in general 
or only to LDCs.  
3.12.   Information provided in this context in no way targets LDCs. In order to enhance Members 
understanding of Article  66,2 it may be necessary to agree on a definition of what constitutes 
'technology transfer ', whereas the lack of a common understanding of the type of incentive required 
for promoting and encouraging technology transfer in LDC  Members may further clarify developed 
Members ' understanding of the Article  66.2 obligation.  
3.13.   More transparency in this area would be s upportive of LDCs ' efforts to build a viable 
technological base.  
3.2.4   Disclosure of origin of biological resources and/or associated traditional knowledge 
in patent applications  
3.14.   Paragraph  39 of the Ministerial Declaration of 18  December  2005 requires that WTO  Members 
agree to amend the TRIPS  Agreement to establish an obligation for Members to require patent 
applications to disclose the origin of biological resources and/or associated traditional knowledge, 
including Prior Informed Consent (PIC) and Access to Ben efit Sharing (ABS).  
3.15.   Despite a long discussion in the TRIPS  Council in Special Session, no outcome has been 
produced on an implementation issue. Non -disclosure of such resources severely effects developing 
countries ' efforts at improving substantive examinations and in assuring the integrity of 
determinations under traditional intellectual property legal requirements, in providing greater 
certainty as to the validity of granted rights or privileges.  
3.16.   Traditional communities are severely aff ected by unlawful appropriation of biological 
resources and/or associated traditional knowledge. It would be useful to require WTO  Members to 
make annual notifications on the number of patent applications based on traditional knowledge.  
3.2.5   Transparency in Tar iffs 
3.17.   Most non -ad valorem  tariffs are being implemented by developed Members at the WTO. Non -
ad valorem  tariffs are non -transparent, create uncertainty and can block access to the market.  
3.18.   At the least, their ad valorem  equivalents should be notified every year. Or for even more 
transparency, non -ad valorem  tariffs should be converted to ad valorem  duties.  
4  TRANSPARENCY MUST PER MEATE THE OPERATION OF THE WTO  
4.1.  Even more important than notification obligations, the functioning of the WTO must be 
transparent and inclusive. This includes : 
4.1.1 The scheduling of various committee meetings which often conflict. Thus  transparency 
issues arise as this practice limits the ability of developing country Members to 
effectively participate in important deliberations ; 
 
4.1.2 the proliferation of informal open -ended negotiating meetings for example in fish and 
agriculture has  made it impossible for small delegations to follow all the negotiations, 
disadvantaging these delegations. Further, this is not helped by the fact that these 
meetings are not minuted ; JOB/GC/218 • JOB/CTG/15 • JOB/SERV/292 • JOB/IP/33 • JOB/DEV/58 • JOB/AG/158  
 
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4.1.3 how Ministerial Conferences are conducted, and the processes tha t precede them in 
Geneva. Each WTO  Member must be provided an equal opportunity in the decision -
making process. Thus, meetings must be open to all, not only to some in Green Room 
processes4; 
 
4.1.4 language remains a fundamental constraint and a capacity i ssue for many delegations 
where their effective participation is dependent on translation.  
 
 
__________  
                                                
4 Decision -making in Ministe rial Conferences often takes place in the Green Room meetings. Most 
developing countries who are not invited are relegated to the position of effectively being 'decision -takers ' 
since texts would only emerge at the end of the MC or even after the pre -set MC deadline has already passed, 
leaving them in reality with no real option to object. See also, JOB/GC/158 – JOB/TNC/64, a submission by the 
African Group, the Plurinational Sta te of Bolivia, the Republic of Cuba and the Bolivarian Republic of Venezuela, 
dated 28  November  2017.