RESTRICTEDWORLD TRADE
ORGANIZATIONTN/CTD/M/2
22 July 2002
(02-4034)
Committee on Trade and Development
Second Special Session
NOTE ON THE MEETING OF 9 APRIL 2002
Chairman:  H.E. Mr. Ransford Smith (Jamaica)
Subjects discussed:
A. A DOPTION OF THE AGENDA .......................................................................................................1
B. S PECIAL AND DIFFERENTIAL TREATMENT .................................................................................1
A. ADOPTION OF THE AGENDA
1. The Chairman noted that the draft agenda for the meeting was contained in airgram
WTO/AIR/1762 of 27 March 2002.  Before adopting the proposed draft agenda he recalled that they
had also discussed a proposed Work Plan and Schedule of Meetings at the informal meeting of19 March 2002.  Despite a significant measure of agreement it had not been possible to agree on the
meeting schedule.  He understood that this remained the case and so the Special Session would only
return to this issue when circumstances permitted them to take a decision.  Under "other business" he
proposed to report on the responses received from the Chairs of other WTO bodies to the request that
they be kept informed of any issues relating to sp ecial and differential (S&D) treatment within their
respective bodies, a request addressed to them by Ambassador Irumba, the previous Chairman of the
Committee on Trade and Development (CTD).
2. The agenda was adopted.
B. SPECIAL AND DIFFERENTIAL TREATMENT
3. The Chairman indicated that Item B (I) identified provisions which Members considered
should be made mandatory, while Agenda Item B (I I) contained a consideration of Members' inputs
on the legal and practical implications of making non-mandatory provisions mandatory.  He proposed
that for the most efficient use of time, as well as to facilitate the discussion and presentations, the
meeting should address agenda items B (I) and B (II) together.  A number of background documents
in the "WT/COMTD/W/77" series had been prepared by the Secretariat at the request of delegations.
These had been circulated.  The documents were intended to assist Members in their preparation ofinputs.  These documents were:  WT/COMTD/W/7 7/Rev.1/Add.1/Corr.1, whic h identified whether
individual S&D treatment provisions were ma ndatory or not; WT/COMTD/W/77/Rev.1/Add.2, which
gave an overview of the operation of mandatory S&D treatment provisions;
WT/COMTD/W/77/Rev.1/Add.3, which dealt with the legal implications of making non-mandatory
S&D treatment provisions mandatory; and WT/COMTD/W/77/Rev.1/Add.4, which providedinformation on the utilization of S&D treatment provisions.TN/CTD/M/2
Page 2
4. The representative of Paraguay said that the provisions on S&D treatment were an integral
part of the WTO Agreements.  They should be understood as an acquired "right" by developing
countries, above all with a view to participatin g effectively in the multilateral trade system as
reaffirmed by Ministers in the Doha Declaration.  At the Fourth Ministerial Conference it was agreed
that measures on S&D treatment should be reinforced in such a way as to make them more precise,effective and operational.  Such strengthening of these measures was necessary in order to fulfill the
Ministerial mandate, the intention of which was to improve conditions for the development of
Member Countries.  He appreciated the documents prepared by the Secretariat as these allowed
Members to understand how little some of the provisions had been used and applied.  He stated that
the challenge was to find ways in which they could be used and applied more systematically and
effectively.  Unfortunately, distinguishing between "should" and "shall" would not necessarily make
the effective application of these measures possible.  His delegation perceived that, in the frameworkof the Work Programme contained in paragraph 12 of the Decision on Implementation-Related Issues
and Concerns, it would be necessary and useful to identify principles which would make it possible to
clarify, reinforce and make effective and operational S&D treatment measures.  Additionally, it would
be more practical to identify measures or provisions which should be made obligatory and then to
focus on the expression of mechanisms with le gal implications which would allow for the
establishment of such obligations.  Such principles could then be used to guarantee the participation
and integration in the multilateral trading system of developing country economies, with a particular
view to achieving sustainable development and economic growth.  This was a general principle
expressed in the Doha Declaration which his delegation hoped could be realized.  It was also
necessary to respect the interests of all developing countries without distinction or exclusion:  theirinterests should be addressed in a collective and no t an individual manner.  Such an approach would
guarantee transparency and non-discrimination in the implementation of these measures.  But when
exceptions were established, however, discrimination was created and the cost of such benefits were
paid for through a loss of competitiveness in exports.  This created unfair competition as well as
resulted in increasing poverty in other developing countries not benefitting from such measures.Instead it was necessary to ensure transparent conditions.  Adopted measures should, in their
application, be likewise sustainable and durable.  They should contribute to the expansion of export
trade in developing countries.  He observed that some of the provisions were applied for a year or
renewed for only short periods.  This made it very difficult for a country to plan ahead.  It also set up
a barrier to freer and greater flows of national and foreign direct investment. He cited, as an example,
document WT/COMTD/W/77/Rev.1/Add.1/Corr.1, wh ich showed that a number of obligatory
measures under S&D treatment were not fulfilled by developed countries.  But to ensure that thecommitments were met was not, in the view of his delegation, a simple question of changing "should"
to "shall".  The real challenge was rather to change the "will" among the developed countries to meet
the commitments which they had undertaken so that, rather than the developed countries feeling that
they had delivered generous concessions, it should instead be made quite clear that the developing
countries had a "right" to such support and assistance. And if one understood the measures in terms ofmutual commitments, Members would then, he believed, be able to meet the development goals, for
example to achieve equal opportunity in international markets to which the developing countries
aspired.
5. The representative of India thanked the representative of Paraguay for making clear the broad
parameters of the discussions.  He subscribed entirely to what had been said.  He nevertheless wished
to seek clarification from the Secretariat on a couple of points.  First, with respect to the two ways of
making the non-mandatory provisions mandatory, namely through amendment of the Agreement or
through authoritative interpretation of its provisions, both of which were identified in paragraph 5  of
WT/COMTD/W/77/Rev.1/Add.3, he said that the first sentence of paragraph 7, which read that an
"Authoritative interpretation of the S&D provisions of a WTO Agreement would not convert non-mandatory provisions into mandatory ones", was discomforting.  He sought reassurance that the
sentence meant that though the Agreement would not be changed but that, in terms of its effect, it
would be given the same value as an actual change in the Agreement.  Second, his delegation saw an
alternative to the two ways suggested by the Secretariat for making provisions mandatory.  ThisTN/CTD/M/2
Page 3
alternative would be to have recourse to decision s of the General Council or Ministerial Conference as
had occurred in Doha in the context of implementation issues.  He observed that the legal hierarchy
between the three suggestions seemed unclear: first, through amendments to the provisions of the
Agreement; second, through authoritative interpretation of the provisions; and third, through decisions
of the General Council or Ministerial Conference, as suggested by his delegation.  His delegation'ssuggestion had been made as a bridging proposal with the aim of assisting the incorporation of
suggestions when decisions with respect to the entire negotiations were to be taken. All Members
would then need to go back to their legislature to get approval for whatever was agreed upon and at
that time they could perhaps think of further amendments to the Agreements.  Third, with respect to
Item E on the Decision Relating to Minimum Values and Imports by Sole Agents, Sole Distributors
and Sole Concessionaires, on page 7 of the same document, the relevant provisions were identified
although in the next column the Secretariat had made the statement that "it is arguable that theCustoms Valuation Committee could not direct the Customs Co-operation Council to take specific
action".  His delegation was unclear as to what this meant, especially if one referred to Article 18 of
the Agreement on Implementation of Article VII of the GATT 1994, relating to Customs Valuation.
There it had clearly been stated that "there shall be established a Technical Committee on Customs
Valuation under the auspices of the Customs Co-operation Council which shall carry out theresponsibilities described in Annex II to this Ag reement and shall operate in accordance with the rules
on procedures contained therein".  And paragraph 2 of Annex II states that "the responsibilities of the
Technical Committee shall include the following", and point (g) then specifically states "to exercise
such other responsibilities as the Committee may a ssign to it", with the word "Committee", in this
case, being the Customs Valuations Committee.  He was therefore unsure as to whether he hadproperly understood what the Secretariat had stated in its document. In relation to the provisions
referred to he would therefore be grateful for so me clarification.  Fourth, many of the provisions
identified as non-mandatory could be read as preambular language providing flexibility to developing
countries.  Many of the non-mandatory provisions fell into such categories and he thought that the
Special Session should look at these sections as on e of the mandates of the Special Session was to see
how the provisions could be made effective. The mandate of the Committee was also to address ways
of making the provisions effective.  His delegation was of the view that the provisions should also be
looked at to see if they had achieved the purpose for which they were originally drawn up.  If it were
agreed that the provisions had not achieved their purpose then the Special Session would also need to
think of ways of making the provisions more effective and meaningful.  The representative of
Paraguay had pointed out that the purpose of the exercise was not just to make the provisions
mandatory but was also to make them effective.  This, in substantive terms, was what was relevant tothe exercise.  His delegation was also looking forward to this aspect of the work.  Finally, his
delegation had identified some provisions in the Agreements which contained elements of S&D
treatment built into them but which had not been included in WT/COMTD/W/77/Rev.1.  He
requested the Secretariat to examine this list in case it contained incentive provisions which, since
they dated back even prior to the Tokyo Round, had su bsequently been built into the Agreement.  His
delegation likewise found that some of the provisions included in WT/COMTD/W/77/Rev.1 had not
been reflected in any of the addenda.  He requested the Secretariat to verify that no provision had been
left out inadvertently and, if necessary, that an addendum be issued.
6. The Chairman commented on the point, also raised by the representative of Paraguay, that
being mandatory did not necessarily mean that the provision was effective.  His view was that the
proposed Work Plan envisaged for the Committee recognized this point. So the examination of
whether or not to make provisions mandatory was, in a sense, an initial step.  It was also envisaged
that the Committee would look at making provisions effective as required by the mandate in
paragraph 44 of the Ministerial Declaration.  He thought that there was agreement that the issue of
effectiveness was applicable both to mandatory and non-mandatory provisions and that mandatorinessdid not necessarily equate to effectiveness.  However,  this aspect would still need to be looked at by
the Special Session.  The Work Plan did, at least, recognize those levels of distinction and that the
future work would be structured accordingly.  He said that the representative of India had raised a
number of questions requiring clarification from the Secretariat, including the question of amendmentTN/CTD/M/2
Page 4
and the issue of authoritative interpretation.  He had also suggested a possible third modality in the
form of a decision by the General Council or by  the Ministerial Conference and had asked, in the
context of the Special Session's work, for comments on such an approach.  The Indian delegation had
also indicated that it wished to circulate a list, pertaining to S&D treatment provisions that, in the
Indian delegations' view, had not been included in the Secretariat documentation and which might
signal omissions in terms of the provisions included in WT/COMTD/W/77/Rev.1.  The Chairman
proposed that the Secretariat's comments on this issue be given, if not in the meeting itself, then at a
later stage.
7. The representative of Indonesia stated that her delegation shared the view that making non-
mandatory S&D treatment provisions of the WTO Agreements mandatory was important.  A narrow
legalistic transformation of non-mandatory into mandatory provisions would not, however, be
sufficient to achieve the goal of making the S&D treatment provisions more operational and effective.There were other equally important issues that need ed to be considered in the deliberations to make
the existing provisions more accessible and effective.  Her delegation fully shared, therefore, the
opinion expressed by the representative of Paraguay and subsequently reiterated by the Chairman.
Her delegation believed that the group's main work priority was to examine the existing provisions
with regard to the content and wording of specif ic S&D treatment provisions.  It also needed to
establish a mechanism for monitoring the implementation of these provisions.  The work should cover
the effectiveness of the existing S&D treatment provisions as well as identification of where certain
provisions needed to be strengthened. In this regard she appreciated the observation made by the
representative of India on how to make certain provisions operational and effective.  She felt that this
was exactly the kind of exercise that should be carried out in the Special Session and so she welcomedthe proposal to circulate the list put forward by the representative of India, for consideration by
Members.
8. The representative of Pakistan stated that before the Special Session entered into substantive
discussions it was important to agree on a clear definition of the concept of S&D treatment.  Members
should first of all understand that S&D treatment should not be taken as a mere "concession" to thedeveloping countries.  Rather, it should be considered as a right for the developing countries so as to
enable them to participate more fully and effectively in the multilateral trading system. S&D
treatment provisions should therefore be viewed as an interface between the benefits of the
multilateral trading system and the actual development of countries concerned.  Adding to the
strength, precision, effectiveness and operationabili ty of the S&D treatment provision was, in his
view, the main objective of the review exercise.  He agreed with those delegations who had said that
merely replacing "should" by "shall" might still leave aside such important issues as the measure'sclarity, efficiency, accessibility and simplicity.  It was more important for Members to examine the
content and language of the provisions.  A proposal for an implementation mechanism to examine
how the conversions were implemented might then more effectively be developed. And finally the
implemented procedures could be monitored by a separate body.  Only then might it be possible to
alleviate the concerns of the developing countries.  With respect to the Agreement on Agriculture, hereferred to the preambular language of page 6 of WT/COMTD/W/77/Rev.1/Add.3.  His delegation
agreed with the Secretariat that the preambular language was not meant to create specific obligations.
However, it was necessary, where such language had been used, to try to see the intent of the parties.
The preambular language manifested the will and the intent of the parties for a specific Agreement
and Provision.  These provisions, though loosely worded, had then to be interpreted in light of thepreambular language.  This language clearly manifested the intent of the signatory parties to the
Agreements.  On the same page and with respect to Sanitary and Phytosanitary (SPS) provisions, the
word "should" did seem to express a "duty" although his delegation was of the view that this still
needed clarification.  Such an example pointed agai n to the need for the Special Session to make the
provisions clearer and more precise.  The precise meaning of the word "should" needed to be clarified.The document also stated that the particular mechanism through which such clarity could be achieved
was itself not clear.  One of the Special Session's tasks was therefore to define these mechanisms.  A
similar situation, in relation to Article 4.10 on the Understanding on Rules and Procedures GoverningTN/CTD/M/2
Page 5
the Settlement of Disputes (DSU), could be found on page 10 of the same document.  The meaning of
the words "give special attention"  was not made clear.  So a replacement of the word "should" by
"shall" would itself be meaningless unless the phrase "give special attention" was also clarified  He
thought that a substantive discussion was necessary in order to clarify and define some of its key
phrases, with the mention of making the provisions effective.
9. The Chairman said that the issue would need to be addressed as to whether or not, in
approaching their work, the Special Session should concentrate on making a distinction between
mandatory and non-mandatory provisions, or whether they should concentrate instead on finding
ways to make the provisions more effective.  In this context he also raised the question as to whether
effectiveness per se,  was connected to whether or not a provision was mandatory.  He wondered, for
example, whether a mandatory non-effective provision was superior to a non-mandatory effective
provision and whether such a distinction was of any value.  Since it was generally recognized thateffectiveness was essential to all provisions, he said that he had posed these questions to help the
Committee attain greater focus in its work.
10. The representative of Pakistan stressed that what he had meant to say was that non-mandatory
provisions should be made mandatory. Members would then need to evaluate whether or not such a
conversion added to the effectiveness of a provision.  He noted that to ensure that a provision be mademore effective it might also be necessary, in addition to making a non-mandatory provision
mandatory, to give a more precise definition of certain key phrases in the provision.
11. The representative of Venezuela agreed with the Chairman's statement that the Special
Session had to embark on its work from a diverse perspective while focussing on making all the S&D
treatment provisions both operational and efficient.  At the last meeting her delegation had expressedfrustration that the discussion was not getting into the real substance of the matter.  The intention was
not just to make a provision mandatory but rather to make it effective and operational.  At the
previous meeting she had also noted that many of the obligations in WT/COMTD/W/77/Rev.1/Add.4
were ineffective.  The Special Session's work should focus on making such provisions more effective.
Difficulties in applying the provision in Article 10.2 of the Agreement on SPS Measures were notreally based, for example, on use of the word "should" rather than "shall". Instead its effectiveness
depended on the determination of whether or not it was possible for longer time frames to be given for
the application of the proposed measures by developing countries, a decision that at the moment
depended on the importing countries, in each case.  It was not the choice of verb itself that was most
important.  A solution should rather be sought in an  analysis of whether the legislation of developed
countries would enable them to adopt and apply such a provision.  Where such legislation did not
exist one would have to conclude that the countries concerned had not sufficiently implemented theAgreement.  With the Agreement on Import Licensing the problem in the provisions was likewise not
the tense but rather the meaning of the phrase in its entirety.  The sentence relating to special
considerations, affecting the whole paragraph, would also need to be changed.  The representative of
Venezuela went on to note that it was difficult to separate mandatory from non-mandatory measures
as they were interrelated.  Her delegation supported the principles outlined by the representative ofParaguay and was of the view that the Special Session, when emphasizing the need to create greater
opportunities for developing countries to improve their market access and to ensure their full
participation in trade, should look, in particular, at the issue of what flexibility was currently available
to them.  The Special Session needed to focus more on the real situation before formulating a proposal
to make the provisions more practical and effective.
12. The representative of the United States referred to her delegation's comments at one of the
informal meetings.  These concerned the Secretariat documents, WT/COMTD/W/77/Rev.1/Add.3 in
particular.  She reiterated that the efforts of the Secretariat in focussing on potentially quite a sensitive
topic, open to various interpretations, was greatly appreciated.  As had been the disclaimer that the
Note, intended only for purposes of discussion had been prepared by the Secretariat "on its ownresponsibility".  This document focussed on the difference between "should" and "shall" and showedTN/CTD/M/2
Page 6
that it was important to review each of the issues in the context of each Agreement and Article.  She
also appreciated the fact that the Secretariat had identified the processes of amendment and
authoritative interpretation as avenues for possible revision of Agreements.  She was likewise grateful
for the points made by the representative of Indi a which included suggestions as to how to make a
provision mandatory and/or effective, once there was a consensus to do so.  With respect to theanalysis concerning the Appellate Body in the Canada - Measures Affecting the Export of Civilian
Aircraft case, the Director of the Legal Division, Mr. Kuijper, had reiterated that interpretation in that
particular case was specific to a certain Agreement and context.  She went on to state that the
Appellate Body ruling in question was of no relevance to the interpretation of S&D treatment
provisions included in other Agreements.  The issue of authoritative interpretation was ultimately up
to Members.  Other delegations had emphasized the need to make the S&D treatment provisions more
effective, precise and operational.  The entire exercise of putting together the work programme and ofcoming to an understanding of the needs at issue had begun last year.  Her delegation had previously
circulated comments on WT/COMTD/W/77/Rev.1/Add.4 at  an informal meeting.  It believed these to
be critical to the discussion.  She also pointed out that it would be difficult to capture some of the
pertinent concerns without at the same time understanding the extent to which each provision was
utilized.  For this reason they welcomed the list which the representative of India had indicated theywould be circulating.  They hoped that it would be circulated to all Members so that the additional
provisions could be identified and examined.  She also enquired as to when the Members would have
an opportunity to look more closely at the updated  utilization paper and whether it would be possible
for some of her delegation's comments to be incorporated into it.  Mention had been made, for
example, of certain SPS provisions.  Her own delegation would have wished to add that some of theprovisions referred to in the Secretariat's analyses were also being handled in the on-going
implementation exercise in the General Council and other WTO bodies.  The Chairman's initiative to
request other WTO bodies to assist the Special Session by keeping it abreast of their own discussions
of S&D treatment proposals was appreciated.  She did not, however, wish to engage in an exercise
that would duplicate work being done elsewhere.  In the area of SPS, the United States had beenparticipating actively with developing countries to try to enable them better to participate in the
standard setting arenas and other areas such, for ex ample, as their on-going activities with regard to
technical barriers to trade (TBT).  She would like the document to also reflect some of these activities
relating to S&D treatment provisions.
13. The Chairman indicated that he would try and return to some of the specific questions that
had been raised, later it the meeting.  At that time it may be possible to have a fuller discussion of the
utilization paper, a discussion which might also address whether or not the Secretariat paper could bechanged to reflect some of the comments made by the representative of the United States in a paper
informally circulated at an earlier meeting.
14. The representative of Malaysia thanked the Secretariat for its compilation of information.  He
thought this a good basis for carrying the work forward and was pleased that Ministers at Doha had
recognized the importance of S&D treatment for developing countries.  The meeting had two tasks,firstly to make S&D provisions more effective and operational, and secondly to make non-mandatory
provisions mandatory.  Addressing the issue of making mandatory S&D provisions more effective
and operational, the delegation of Malaysia agreed with the representative of Pakistan that S&D
treatment was not a concession but a "right" given to WTO developing country Members.  It formed
an integral part of their rights and obligations under the WTO Agreements.  In this respect, one of theways to make mandatory S&D provisions more effective and operational was to make clear that all
developing countries could avail themselves of these mandatory provisions.  There had been instances
of selective application of mandatory provisions, a use of the provisions which was discriminatory
and which represented a deprivation of the rights of developing country Members.  Secondly, they
agreed with the representative of India that there were ways in which the WTO Agreements could bechanged in order to make the S&D provisions more effective and operational including, for example,
recourse to a decision made by the General Council.  They therefore welcomed the circulation of the
list from India.  S&D treatment could, in itself, be made effective and operational.  But if it were notTN/CTD/M/2
Page 7
at the same time made mandatory then its application would continue to be questioned.  Finally, it
would be useful for the Committee to identify non-mandatory provisions where the adoption of
"shall" in the provisions would be sufficient to make them effective and operational.  Agreeing with
what had been said by the representative of Indonesia that change should not be limited to simple and
legalistic alterations in the text, her delegation at the same time accepted that there could be instanceswhere a simple change in the wording was sufficient to make a provision operationally effective.  At
the same time, they also recognized that there were many instances where a further and more
extensive rewording of provisions would be necessary.  They recognized that in relation to such
issues, inputs from some of the other Committees would be a useful addition to the work done in the
Special Session.  They therefore welcomed such reports.
15. The representative of St. Lucia shared the view s expressed by other developing countries with
respect to the structure of the debate.  In response to the Chairman's question as to whether the issue
should be to make provisions either more effective or mandatory, her delegation was of the view that
the crucial test was effectiveness while noting, nonetheless, that a provision could have its
effectiveness enhanced by making it mandatory.  However, she shared a difficulty, pointed out by the
representative of Venezuela and others, in separating the two ideas.  For example, in document
WT/COMTD/W/77/Rev.1/Add.1/ Corr.1, Article 27.1 of the Subsidies Agreement was listed as a non-
mandatory provision.  This Article was a general statement in which Members recognized that
subsidies played an important role in the economic development programmes of developing country
Members.  This, in her view, was a statement of fact.  It was a recognition, already expressed in the
Uruguay Round Agreements, that must inform all deliberation, in the Special Session as in the
Negotiating Group on Rules, on the issue of how to make S&D treatment more effective.  Herdelegation, in the hope of meeting the July deadline, still expressed a preference for a complete
approach that would permit discussions of both the technical and substantive means of making S&D
treatment more effective.
16. The representative of Cuba stated that paragraph 44 of the Doha Ministerial Declaration was
adopted by Ministers because they accepted the need for S&D treatment to be given a more solid
recognition in international trade norms.  It wa s for this reason that they wanted S&D treatment
provisions to be made more precise, effective and operational.  Her delegation agreed with the
representative of St Lucia that the political will of developed countries was fundamental to the success
of these provisions, especially in integrating them into a wider development agenda.  She went on to
argue that there was little point in deciding which provisions should be mandatory if there were no
real understanding of the basic "needs" and "rights" of developing country Members.  As already
pointed out by the representative of Pakistan, developing countries had a right to receive S&Dtreatment as part of a diverse and multilayered development agenda within international relations.
She went on to emphasize, however, that even when the political will had been demonstrated through
the modification of such standards, it was important  that they were reflected in the trade policies of
developed countries.  On many occasions, even when standards were binding, the trade policies
applied were discriminatory and restricted access to markets for economic as well as for politicalreasons.  A real and firm commitment to change or amend the current situation was therefore needed.
They agreed with the representative of India that, in addition to what was presented in
WT/COMTD/W/77/Rev.1/Add.1, there should also be the possibility of adopting decisions in the
General Council or the Ministerial Conference.  In this regard, this would then allow the Special
Session to employ a third route to ensure effective S&D treatment for developing countries.
17. With regard to ensuring the effectiveness of S&D treatment, the representative of Djibouti
asked whether Members would be prepared to introduce new measures.  If their answer were yes, then
it would be important to ensure that these measures were more effective for developing countries.  In
addition, he asked how the Members and the Secretariat could ensure a consensus with regard to any
such treatment that it did, in fact, satisfy the development needs of developing countries.  It wasneither the agreements nor the rules themselves which were important, but rather the political will.TN/CTD/M/2
Page 8
He closed by enquiring how political will could be effectively applied when the Members themselves
did not share the same viewpoints on the issue of S&D treatment.
18. The representative of the European Communities said that his delegation remained interested
in the success of the exercise because of its wide-ranging implications.  He looked forward to a
constructive debate on how to make S&D treatment more effective, operational and possiblymandatory.  He agreed with the view that the overriding objective was effectiveness.  But the Special
Session needed first to address the question of how to make the S&D provisions mandatory as this
was the main priority identified by developing countries.  His delegation was prepared to look at
changes to what had previously been agreed, although they would prefer to deal with the situation as
it currently existed.  He was puzzled by the point made by the representative of India concerning the
potential role of decisions.  He clarified, in this regard, that WT/COMTD/W/77/Rev.1/Add.3 already
contained two possible ways to make non-mandatory provisions mandatory.  This paper was limitedto the treatment of mandatory and non-mandatory provisions, however, and did not address the issue
of effectiveness.  It was clear that a decision on this issue was still needed to be taken.  Making non-
mandatory provisions mandatory, however, was at best a limited response.  He recalled that the issue
was more of effectiveness although this in itself could not be addressed in the context of whether or
not to make non-mandatory provisions mandatory.  But the real task of the Special Session was tomake progress through the examination of individual provisions.  He welcomed the statement made
by the representative of India that he would provide further specificity when individual provisions
were being considered.  It was only when it was known what was or what was not possible that the
question of the "form" of the endorsement would surface.  Discussing the "form" without the
"substance" was unsatisfactory.  His delegation looked forward to receiving as many precise proposalsas possible but at the same time urged delegations to keep in mind the fast approaching deadline.
19. The Chairman recognized that at the first meet ing an interesting and useful general exchange
of views had been held.  He agreed that there was a need to move to specific provisions which would
enable them concretely to discuss the issues of effectiveness and mandatory and non-mandatory
provisions.
20. The representative of Zambia agreed with most of the things that his colleagues from other
developing countries had said.  In light of these comments, as well as of those from the United States
and the European Communities, he wondered whether the meeting should aim to take decisions in
three areas.  Firstly, what to do with the S&D treatment provisions which were under categories
(iii) (flexibility of commitments), and (iv) (transitional time periods) as identified in
WT/COMTD/W/77/Rev.1/Add.1.  Secondly, to take a decision on the uniform list of mandatory and
non-mandatory S&D treatment provisions under review.  Thirdly, whether a review should beundertaken, primarily in relation to the Special Session, as to the distribution of tasks to other bodies,
including negotiating bodies, and giving particular consideration to appropriate areas of competence.
He agreed with the representative of the Eur opean Communities that, in order for them to move
quickly to meet the deadline, it might be useful to revise and simplify the following classifications:
first, to look at the substantive S&D treatment provisions; second, to look at the procedural andinformation-related provisions; third, to look at the technical cooperation provisions; and, fourth, to
look at the provisions relating directly to the least-developed countries.  The focus here could be on
the substantive provisions as well as those relating to the least-developed countries.
21. The representative of Chile noted that one of his colleagues had stated that S&D treatment
was a "right" of developing countries.  His understanding, however, was different.  S&D treatment
was rather a "need".  It was the expression of standards establishing more flexible treatment in favour
of developing countries.  Without such flexibility developing countries would be unable to participate
fully in the multilateral trading system.  Principles were consecrated in rights and obligations and he
felt that it was the "need" for such provisions that should be accorded greatest importance.  This
"need" came before the "right" to such measures.  There were a number of issues related to S&Dpreferential treatment and many of these were concerned with better market access for products fromTN/CTD/M/2
Page 9
developing countries.  Other measures perhaps increased flexibility through a temporary exemption
from certain responsibilities or through obviating implementation of certain trade restrictions for a
given period of time.  He said that the possible distinction between effectiveness and mandatoriness
has been touched upon.  In other words all that was mandatory was not necessarily effective.
However, in order for a provision to be effective it had initially, in the view of his delegation, to bemandatory.  But making a provision mandatory, while arguably necessary, was not a sufficient
condition for its effectiveness.  Simply making it mandatory was often not enough for a provision to
be fully and truly effective.  He enquired what more was needed to ensure a provision's effectiveness,
while at the same time warning that the Special Se ssion needed to be careful as to how it sought to
make certain provisions more effective.  He cited the example of improving market access.  The
Special Session could, he suggested, encourage substantial improvements in the Generalized System
of Preferences (GSP) treatment for products from developing countries.  While this seemed to be asimple, concrete and effective measure, it nevertheless carried dangers which needed more careful
consideration.  A couple of years ago he had seen some figures which implied that GSP treatment
generally benefitted only a few developing countries.  It was not coincidental that those developing
countries tended to be the largest or most industrialized.  Improved market access through the GSP
therefore involved the risk of proportionally improving access for a few to the prejudice of manyother developing countries without comparable production capacity through which to enjoy the
benefits of full market access.  He agreed with the representative of Paraguay that the S&D measures
should be implemented in a non-discriminatory fash ion between developing countries.  Care must be
taken to avoid benefitting some to the detriment of  others as what sometimes appeared very simple
could in fact be extremely complex.  Improving the effectiveness of these measures therefore requiredvery careful consideration.  He also referred to provisions which provided a basic level of flexibility
in the field of subsidies and to subsidies which could be established for a strictly temporary period.
These issues had been debated at length earlier.  Some developing countries had at that stage wanted
more flexibility.  The point that his own delegation had made at the time, along with others, was that
Members needed to be prudent.  If some or even all developing countries were granted a right tosubsidize their exports, then such a right could, in fact, be prejudicial to other developing countries
who might then find themselves displaced from cer tain markets thus making their own industries
suffer.  So, while greater flexibility to allow export subsidies might indeed improve effectiveness, it
should at the same time be reiterated that what appeared straightforward was not necessarily without
implications.  Such a decision, for example, might generate circumstances under which certain
developing countries would benefit while the resulting distortions and prejudice could be detrimental
to the interest of other developing countries.  His intention was to illustrate the possible complexitiesof the issue before introducing a third element.  These S&D treatment measures should not merely be
effective and mandatory.  They should also be formulated in such a way so as not to create
circumstances detrimental to other developing countries.  He then sought clarification with respect to
the statement made by the representative of India, who had referred firstly to amendments, secondly
to authoritative interpretation, and finally he had put forward the possibility of decisions being takenby the General Council or a Ministerial Conference.  A decision by the General Council or the
Ministerial Council, as he understood it, was the expression of the collective will of the Members.
Such an expression of collective will would require an authoritative interpretation or amendment.  He
wondered if they had not perhaps mixed two issues of substance with a third of form.  His penultimate
point addressed the need to clarify the provisions.  His concern was that negotiations were alreadyunder way in certain areas and Members needed to ensure that effective S&D treatment provisions
were being introduced within the framework of all these negotiations.  He was not sure whether S&D
provisions in the field of agriculture, for example, could be discussed in the Special Session or
negotiated in other fora.  The Special Session needed to be as effective as possible and to avoid
overlap and duplication of effort.  He sought the Chairman's guidance as to how they should proceedin future.  Finally, he observed that the documentation prepared reflected a number of existing S&D
issues.  What needed to be considered next was first, whether there could have been other
circumstances where countries might have needed greater flexibility of one type or another, and
secondly, whether a different type of S&D treatment was needed which either did not exist under the
current provisions or which had proven to be insufficient in the past.  Addressing these issues wouldTN/CTD/M/2
Page 10
allow the Special Session to establish the ways in which existing provisions could be improved and
likewise whether new provisions were needed.
22. The Chairman indicated that the comments of the representative of Chile referred back to the
previous debate on the essential question of whether S&D provisions were a "right" or a "need".  With
respect to the interesting question of whether or not mandatoriness was essential he wondered whetherit represented a necessary but not a sufficient condition of effectiveness.  Such a view pre-supposed
that all provisions should be made mandatory.  This then had implications on how best to approach
the work itself since part of their task in the first tranche of work, was to identify non-mandatory
provisions that should be made mandatory (WT/COMTD/36).  But the notion that to be effective a
provision had to be mandatory begged the question as to whether there should be any non-mandatory
provisions at all.  This was an issue on which Members would need to reflect.  With regard to the
question of S&D treatment being a political right, moral right, and/or a legal right, the question ofmandatoriness might have pertinent implications.  If it were a legal right there might be some
linguistic consequences and this was something that Members needed to reflect on.  There was also
the need to address the question of non-discrimination raised by a number of speakers including the
representative of Paraguay.  The Special Session, in its proposed Work Plan, had scheduled their work
specifically up until July 2002 in terms of the implementation decision.  This decision gave it aspecific mandate to look at S&D treatment provisions in terms of whether or not they should be made
mandatory so as to, as the same time, make them more effective.  It was also recognized in the draft
Work Plan, yet to be adopted, that there were other elements to be considered.  These included the
review of S&D provisions in terms of the architecture of WTO rules and together, these elements
represented a forward looking mandate to which the Special Session would need to return to after
July 2002.  Before that they had a specific time-bound mandate requiring them to report to the
General Council by July 2002 on the work done in pursuance of the mandate in the Implementation
Decision adopted in Doha.  Their draft work prog ramme had been structured to enable them to
achieve submission of this report within this given time frame.  After July 2002 there would be other
aspects of the mandate which, in terms of the specific elements of the work programme, would needto be looked at.  Some questions had been posed by the representatives of India and the European
Communities in terms of whether or not there was a distinction to be drawn between decisions taken
by the Ministerial Conference or the General Council and authoritative interpretations and
amendments.  From his recollection of the Secretariat text in WT/COMTD/W/77/Rev.1/Add.3, an
authoritative interpretation was an understanding or reinforcement of what already existed and did not
in fact change the language of a provision.  To change the language of a provision, would require an
amendment.  The issue was therefore, as suggested by the Indian delegation, and also by the EuropeanCommunities and Chile, that a Ministerial decision or a decision by the General Council could
represent another possible means of introducing effective change on the basis of the Special Session's
work.
23. The representative of China divided the provisions into two categories.  The first category
contained the preambles of different Agreements.  If these were non-mandatory they could be made
mandatory as necessary.  However, it was not enough to make non-mandatory provisions mandatory,
since mandatory provisions were not necessarily precise, effective or operational.  The second
category of provisions were operative provisions in different Agreements of the WTO.  The focus of
the work should, in the view of the Chinese delegation, be on the second category.  The Chinese
representative noted that in the present Agreements there were a lot of provisions on S&D.  Afterreading them, however, his delegation got the impression that they were mainly in the nature of best
endeavour clauses and that they continued to be so even if made mandatory by the employment of the
word "shall".  Some were very badly implemente d and some needed to be translated into more
specific and stringent mandatory measures and provisions.  The second category of provisions
particularly needed such amendments.  An "operation" was needed to be performed on theseparagraphs if the provisions were to be made more precise, effective and operational.  Some needed
only minor operations while others required major "surgery".  It was particularly important that all the
articles and provisions relating to S&D be carefully examined on the basis of the documents providedTN/CTD/M/2
Page 11
by the Secretariat.  If necessary, non-mandatory provisions could be made mandatory, non-specific
language could be made specific, and measures could in general be strengthened so that Members
could implement them more effectively.  The S&D provisions would then become more useful and
meaningful to developing countries.
24. The Chairman thanked the representative of China, particularly for his suggestion that their
work be approached through the screening and identification of those provisions that needed to be
changed before the necessary "operations" were performed on them.
25. The representative of Egypt said that it was their understanding that the Special Session was
supposed to look at ways to make the S&D provisions operational and effective.  This is what they
were aiming at.  If to achieve this meant translat ing all the provisions into "obligation of result",
"obligation of conduct" or an "authoritative interpretation of the provisions", then this should be done.
But in any case the exercise should be started.  He agreed with the representative from the EuropeanCommunities that the Special Session should start as soon as possible, examining the issues one by
one.  Discussion of the more esoteric aspects of the work programme should, on the other hand, be
concluded as quickly as possible.  He proposed that one way forward might be to divide the work
according to the WTO Agreements.  The next few sessions could then be dedicated to specific
Agreements.  Finally, he agreed with the concerns expressed by the representative of Chile in respectto the danger of work being duplicated with that being undertaken in other WTO bodies, even though
the Special Session was looking primarily at existing S&D treatment provisions.  While most of the
other work being done in other bodies was on the future S&D treatment provisions, the one possible
exception to this was the section on Rules.  The Special Session should therefore try to coordinate
with the Negotiating Group on Rules, in order to avoid duplication.  The remaining S&D treatmentissues should be addressed in the Special Session of the CTD.
26. The Chairman thanked the representative of Egypt and recalled that in the background
documentation there were several listings of mandatory and non-mandatory provisions.  These could
be used by Members wishing to prepare their own inputs on issues that they wanted to see addressed.
The Members' inputs could then act as a basis for the proceedings of the Special Session.  Membershad first, as an important and necessary step prior to the more specific work, to decide which
provisions they wished to work on as a matter of priority.
27. The representative of Argentina responding to the comments made by the representative of
Venezuela on Article 10.2 of the SPS Agreement said that his delegation was interested in the fact
that the sentence began:  " … where the appropriate level of sanitary or phytosanitary protection
allows scope for … ".  One possibility, therefore, would be to define the circumstances under which
this condition would grant scope for allowing a l onger time-frame for implementation.  He went on to
observe that measures should not be introduced which could be detrimental to developing countries.
His delegation fully endorsed the representative of Chile's point regarding measures with the potential
to harm other developing countries should not be introduced.  He added that there was also a
responsibility to ensure that the work in the Special Session should not undermine the results of other
current negotiations.  Finally he expressed appreciation for the intervention by Paraguay on theimportance of not discriminating between developing countries.  He noted that the Enabling Clause
was listed on page 5 of WT/COMTD/W/77/Rev.1/Add.3 as a non-mandatory measure.  However,
with particular reference to footnote 7, he believed that the way in which the Enabling Clause was
applied in reality suggested that it was, in fact, mandatory.  If the Enabling Clause were applied in
such a manner, it would have to be generalized, non-reciprocal and non-discriminatory.  The Enabling
Clause would then protect developing countries  from preferences which would otherwise require
developing countries to meet specific conditions, relating to the environment or intellectual property.
28. The representative of Senegal, with regard to the discussion on making the S&D provisions
mandatory, thought that it was not only a question of  having provisions that were mandatory, but also
which were effective and operational.  To the extent that the WTO was based on the rule of law andTN/CTD/M/2
Page 12
procedure, it was necessary to have provisions that were mandatory, including through the use of
words such as "shall".  Giving the example of Ar ticle 66 of the TRIPS Agreement, he said that this
paragraph had been subject to lengthy discussions but to date it had still not been fully and effectively
implemented.  In the English text this paragraph contained the word "shall".   He therefore thought
that this was the effective and operational criteria that had to be given precedence.  The way in whichmost of the S&D treatment provisions, especially in relation to technical assistance, were
implemented with regard to the LDCs and developi ng countries in general meant that greater effort
was needed to be made in order to bring the legislation of these countries into line with the WTO
Agreements.  In the interests of development, th e provisions also needed to provide multilateral
cooperation for these countries.  For his delegation the central problem of S&D treatment resided in
the possibility of providing technical assistance to help individual countries to respond to export
supply.  When looking at the Marrakesh Declaration, which often served as a framework for S&Dtreatment, Ministers had called for the results to be more favourable to developing countries and
especially with regard to the special situation of LDCs.  The Ministers recognized the importance of
applying these measures for LDCs in order to facilitate and sustain the possibilities offered to them in
trade and investment.  One reason for acceding to the WTO should be to allow for investment and
capacity building.  When the main principles of mu ltilateral assistance in the WTO were considered,
one saw cardinal principles enshrined in the text such as national treatment and transparency:
provisions that were subject to precise rules in the different WTO Agreements.  S&D treatment was
also a core principle in multilateral trade.  They were designed to allow developing countries to have
the same benefits as developed countries.  His delegation accordingly hoped that the implementation
of the negotiations and especially the concrete implementation of S&D treatment would helpdeveloping countries, especially the LDCs, to benefit from globalization and world trade.  This was an
opportunity for them to correct the lack of balance in world trade.  Finally his delegation invited
Members to examine the means of further involv ing UNCTAD in their work as S&D treatment had
originated in UNCTAD and UNCTAD could help in guiding its future direction.  This would make
more operational and effective the provisions relating to S&D treatment in favour of developingcountries.
29. The representative of Mexico wanted to share a number of concerns, especially in relation to
the ways in which the discussions could develop on this sensitive and important topic.  He felt that
before any discussions took place on the legal implications of amending any provision, it was
important that the objectives that the Special Session wished to meet were defined more clearly.
There was of course a need to distinguish between the legal principles and those elements that were
economically useful.  He believed that priority should be given to the economic aspects of S&Dtreatment.  As all documents were not equally va luable, the Committee had to set priorities for its
work.  With respect to the elements not worth debating, he suggested that there were certain
fundamental principles which would allow the Specia l Session, in reading the documents, to make a
hierarchy of different topics relating to S&D treatment.  These objectives should firstly include, as
stated by the representative of Paraguay, a greater developing country involvement in the multilateraltrading system.  He did not see how investment c ould be promoted in countries that did not have
disciplines.  A plan existed in which there were different disciplines with "development objectives",
but nonetheless he could not see how there could be investment without rules and disciplines.
Secondly, one of the advantages of the multilateral trading system was to permit Members to
discipline the interest groups in their own countries in order to provide greater benefits for consumers.
Thirdly, as a general rule, Members needed to understand that they were required to allow access.  If
all that was expected from them was to seek exemptions from their obligations through S&D
treatment, it was not clear how this would encourage the larger countries to further open their markets
to the developing countries.  Finally, it was fundamental for the Special Session to carry out the
exercise of prioritizing its list of provisions fo r review.  This would facilitate the setting up of a
schedule in the coming months containing an important and concrete basis for review.  Members
could then hold discussion on the basis of such a schedule in preparation for the next Ministerial
meeting.TN/CTD/M/2
Page 13
30. The representative of the United States shared with Chile the view that one of the S&D
objectives was to establish more flexible provisions for developing countries to enable them to fully
participate in the multilateral trading system.  In th e course of putting together the current provisions,
much energy had been devoted, since it was largely agreed that one size did not fit all and that
appropriate flexibility within the provisions would be able to better address the individual needs ofindividual Members.  Her delegation was concerned, however, about the effectiveness of the
provisions.  It believed that if the meeting looked more closely at how the provisions had actually
been utilized it would develop a better sense of what was wrong with them.  She went on to observe
that "political will" tended to gather momentum when Members acquired a precise understanding of
particular needs.  There had also been situations, she said, where some of the S&D treatment
provisions had been further elaborated upon and dealt with in the implementation context.  Work done
on Article 27.4 in the area of subsidies, for example.  She stressed that Members had agreed in theDecision on Implementation that the S&D work would be without prejudice to the work on
implementation of WTO Agreements in the General Council and other councils and committees.  The
Special Session must therefore be careful not to duplicate its efforts with the negotiations taking place
in other bodies.  Again, on the issue of "political will", several Ministers had met recently in
Monterrey where they stressed the importance of trade liberalization as a fundamental element in acountry's development strategy.  Active promotion of exports in attracting foreign direct investment
could provide critical support to development policies.  Her delegation also hoped that the exercise in
the Special Session would be focussed.  There should not be a protracted debate on whether one
employed the words "should" or "shall".  If the wo rd "shall" was changed, for instance in the technical
assistance provisions, then her delegation might run into trouble with some of her government'sbudgetary instrumentalities when providing such assist ance.  So in some instances it was not really an
issue of "political will".  Rather the issues were of competence and of balancing various
constituencies while trying at the same time to achieve a common overall goal, namely the further
integration of developing countries into the multilateral trading system.  Her delegation welcomed
some of the ideas proposed concerning possible approaches to the issues.  She suggested that, if theyadopted the agreement-by-agreement approach, then this should be done in context of utilization and
effectiveness of these provisions.  It was also important to look at what was needed to implement the
results of that discussion.  She agreed with other delegations that "the form" could be followed by "the
substance" of these issues.  Her delegation believed that the comments from the representative of
India concerning the form were probably an enhancement of what was already provided in the
Secretariat document.  Members had received from the representative of India a further elaboration on
the different methods that could be used to effectuate whatever was decided and agreed upon in thecontext of their discussions.
31. The representative of Colombia made four points.  First, she shared the pragmatism of the
representatives of Egypt and the European Communities about the work to be carried out by the
Committee.  Second, there were multiple approaches to S&D treatment in terms of its scope and
objectives and it was therefore important for this topic to be properly reflected in the minutes of themeeting.  Neither the provisions nor the preamble nor the Enabling Clause should be part of any
category classified as non-mandatory.  Third, a number of representatives had spoken about the
functionality of S&D and multilateralism within the internal policies of individual country Members
in terms, for instance, of its success in attracting investment or in meeting other types of objectives.
Naturally there were different perspectives on and approaches to this important topic but the debateshould not be allowed to continue indefinitely.  Finally, her delegation believed that in order to make
progress the Special Session should continue with their current work programme and respect the
agreed deadlines with regard to any provisions which they were able to improve.
32. The representative of Barbados thought that the discussion had been fruitful at least in part
because it had been interactive.  Her delegation shared the view that what was of primary importance
to the Special Session was to determine and then raise the current level of effectiveness of S&D
provisions.  This should be its principal goal and objective.  She indicated that Barbados shared, on
this issue, the view expressed by the representative of the United States that one size did not fit all.TN/CTD/M/2
Page 14
Her delegation felt that this should be adopted as one of the guiding principles of the Special Session
as it continued with its work to make the S&D provisions more effective and operational.
33. The representative of India sought clarification from the Chairman with regard to his
introductory statement and also responded to some of the comments that had been made since his
earlier intervention.  The Chairman had described the Work Programme as a draft Work Programmeand at the same time he had enquired as to whether the Special Session would be in a position to
adopt it.  His own delegation was concerned that the meeting had not yet adopted a Work Programme,
especially as they had already begun the formal meetings of the Special Sessions and had a deadline
of 31 July 2002.  He also noted that comments been made on effectiveness and mandatoriness with
respect to the statement made by the representative of Paraguay.  Making a provision mandatory was
perhaps the first step to making it effective.  But in  his delegation's statement they had referred to the
Secretariat's identification of S&D treatment provisions in various preambles and that, by the verynature of such preambular language, such provisions could not be made mandatory.  The meeting
should focus instead upon making these provisions effective.  With respect to the third option
proposed by his delegation, the representative of Chile had wondered whether the other two options
required decisions either by the General Council or by the Ministerial Conference.  This was not what
had been suggested, however, since both amendments to agreements and authoritative interpretationwould require the approval of all Members  In terms of making non-mandatory provisions mandatory,
he thought it would be useful for the Secretariat's Legal Affairs Division to examine the three options
discussed and then to inform the Special Session as to whether or not they implied any legal
hierarchy.  The whole exercise would otherwise be frui tless.  In particular there was a risk that, at the
end of the exercise, agreement would be reached on a provision later realized to be equally ineffectiveand non-mandatory.  Finally, with respect to the point made by the representative of Chile not to
introduce measures that would be harmful to other countries, the representative of India pointed out
that what was trying to be achieved was simply a greater clarity.  A certain measure needed fine-
tuning so that it fulfilled its intended purpose.  His delegation had a whole set of new measures that
they would be proposing, not as part of this ex ercise, but to the respective Negotiating Groups.  He
indicated to the Chair that he would present the specific proposals when the Chairman invited him to
do so.
34. The Chairman suggested that the Representative of India should indicate what the specific
proposals were.  With respect to the reference to the adoption of the draft Work Programme and
Schedule of Meetings, he indicated that Members would recall that at the informal meeting they had
not been able to do so.  This was because, despite considerable agreement, the Work Plan and
Schedule of Meetings could not be proposed for adoption since a Member was not, at that time, in aposition to agree with them.  The situation since then had apparently not changed. Therefore the
meeting was not in a position formally to adopt the Work Plan and Schedule of Meetings.  He would
continue consultations and return to this issue at a later stage.
35. The representative of India said that the Chair's response had partially answered his question
but he wished to know what the difficulty was in agreeing to the Work Plan, as this issue had been
discussed at length in various informal meetings and he was not aware, during any of these, of any
serious objections to the Work Programme suggested by the Chairman.  But if there was indeed a
problem preventing the Special Session from adopting the Work Plan he needed to know what it was.
36. The Chairman stated that, at the informal m eeting, the European Communities had indicated
that it was not in a position, at that time, to agree to the Work Plan and Schedule of Meetings which
he regarded as an integral whole.
37. The representative of the United States indicated that a few of the comments made by the
representative of India were useful and thought-provoking  Her delegation wished to make a
reservation, however, about asking the Secretariat to prepare a legal hierarchy.  The documentation
already issued had allowed Members to engage in  discussion and provide inputs in accordance withTN/CTD/M/2
Page 15
the original plan.  The Members of the Special Session should now look to engage in more substantial
discussion.
38. The representative of the European Communities said that it would be unfortunate if
delegations left the meeting with an unclear view of his delegation's position.  He thought that
delegations were aware of a question raised at a number of meetings, a question not exactly relevantto the work of the Special Session but rather to the activities of the WTO as a whole.  His delegation
was concerned that too many meetings were being scheduled and that this was also the case in other
Committees, where a discussion as to the number of meetings to be convened was also taking place.
In order to avoid a situation where one work prog ramme raced too far ahead only to find that the work
was stymied in relation to other Committees, his delegation had therefore decided to wait until it was
able to view the overall results of the situation be fore offering its agreement.  However his delegation
did not have a problem with carrying out the substantive work of the Special Session.  It wished onlyto remind delegations that interests and meetings had to be balanced.  They were still trying to resolve
the problem and he felt optimistic that it would, in fact, be solved by the next meeting of the Special
Session.  There were no consequences for the substantive work of the Special Session and his
delegation did not oppose any scheduling of meetings or the effective implementation of the proposed
Work Plan.
39. The representative of Sri Lanka shared most of the comments made by the developing
countries on the issue of how the meeting should proceed with making the S&D treatment provisions
stronger and fully operational.  Her comments concerned the request made by the representative of
India as well as the subsequent reservation expresse d by the representative of the United States.  One
aspect of the debate had focussed on the apprehension that, despite being made mandatory, certainprovisions might still be ineffective.  One way to make them more operational and effective was to
make them mandatory.  It had been her delegation's experience, however, that mandatory provisions
were not necessarily effective because sometimes th ere were legal precedents in force in respect to
these provisions, legal precedents that were in principle well accepted.  Likewise there was sometimes
flexibility in one Agreement that was rendered obsolete by a provision in another Agreementpossessing a higher legal authority.  Such legal precedence was needed to be identified.  She cited the
example of the provision in Articles XVIII:C and D of GATT 1995.  Flexibility incorporated into this
Agreement could not be utilized because of certain provisions in the WTO Agreements such as the
Agreement on Agriculture, for example, or the Agre ement on Subsidies.  These provisions could not
then be made effective.  Their flexibility was nullified by other provisions:  a danger which needed to
be identified in every case.  She agreed with the point made by the representative of India that they
needed guidance from the Secretariat, particularly the Legal Division, with respect to the potentialeffectiveness of these provisions.  Unsure as to a feasible time scale, the need for such guidance was
nonetheless clear.  Her delegation believed that if the Secretariat were given sufficient time they could
compile a document on this aspect of S&D treatment which could then be made available to all
delegations.
40. The Chairman stated that he was not under the impression that the representative of India was
in fact asking for the Secretariat to look into the ef fectiveness of the provisions as this task was being
undertaken in the Committee.  He thought that the representative of India was in fact seeking
clarification from the Secretariat as to the legal, hierarchical ranking of the various options available –
i.e. amendment, authoritative interpretation or, as the distinguished representative had himself
suggested, a Ministerial decision or a decision by the General Council.
41. The representative of India indicated that what the Chairman had said was correct but
clarified that the representative of Sri Lanka's comments had also touched indirectly on the same issue
in question.
42. The representative of Zambia wondered why, since the clear intention was to improve the
work of the Special Session, the ranking suggested by the representative of India, supported by hisTN/CTD/M/2
Page 16
delegation, created a problem for the representative of the United States.  The issues being discussed
were old, although new elements were nonetheless needed to be added to the discussion as they
progressed with their work.  India's suggestion was a positive one.  He wished to know why it implied
something negative for the United States.
43. The representative of the United States reserved the right to consult further with her capital.
Her delegation, she said, had been responding to Secretariat documents.  They had made a couple of
comments on the documents and, although they did not necessarily agree with everything, they
recognized that the Secretariat had made a substantial effort in light of the requests made by
Members.  They wished to maintain a Member-driven approach while at the same time respecting the
material put together by the Secretariat.  But they did not wish to continually ask the Secretariat to
make difficult interpretative judgements especially when, to make a provision mandatory, it involved
linguistic interpretation of words like "should" and "shall".  The representative of Zambia had made auseful point in relation to the request from India to establish the basic facts relating to the instruments
already available and their ability to support the work programme agreed to by Members, an issue
about which there could be further discussion at a later stage.  The concern, as articulated by the
representative of Sri Lanka, was that if they entered another round the Secretariat would be obliged to
prioritize provisions and to judge them according to rank.  Perhaps in the course of discussionMembers could engage in an analysis of this issue bearing in mind, of course, the July 2002 deadline.
44. The Chairman said that the pertinent question was how best to proceed.  His preference was
that they should move to look next at specific provisions and the question here was on what basis they
should do so.  At least one delegation had indicated that it had specific proposals that it wished to put
forward.  He proposed one option which could be utilized if agreed upon by Members,WT/COMTD/W/77/Rev.1/Add.1/Corr.1 listed th e mandatory and non-mandatory provisions, as
researched by the Secretariat, under various appropriate categories.  As pointed out by the
representative of India, there were at least two categories which had been omitted from that document.
These two categories, namely flexibility of commitments and transitional time periods, had been
excluded because the Secretariat was apparently of the view that these provisions were inherentlynon-mandatory and arguably incapable of having their status altered so as to make them mandatory.
He was not sure whether or not he had, on this basis, interpreted accurately the views of the
Secretariat.  He drew attention to page 7 of WT/COMTD/W/77/Rev.1 where, in paragraph 11, there
was a list of provisions indicating flexibility of commitments.  He also drew attention to paragraph 13,
page 8, on transitional time periods.  These two categories were not included in
WT/COMTD/W/77/Rev.1/Add.1/ Corr.1.  If Members agreed they could proceed by looking first at
the provisions listed as non-mandatory on page 2 of WT/COMTD/W/77/Rev .1/Add.1/Corr.l on which
they could engage in specific discussion.  A number of basic principles, underlying their work, had
been suggested in the course of their discussion.  These included reference to such elements as
utilization, effectiveness and the principle of non-discrimination.  It seemed to him that they were now
in a position, to discuss and assess specific provisions against the background of these underlying
elements.  They could then progress to the non-mandatory provisions.  Here Members could reachagreement as to which provisions should be made mandatory and how this might be done.  A second
step would be to go through the provisions that were already mandatory in order to see how these
could be made more effective and operational.  Working on such a basis would mean that Members at
least had recourse to a framework against which to address the specific provisions of the existing
Agreements.  That would not, of course, preclude  Members from introducing provisions into the
discussion.  He saw no other reasonable basis on which to proceed.
45. The representative of the United States enquired as to whether the Chairman had included in
his list the need to discus the utilization levels of existing provisions.  She reiterated that her
delegation would find it difficult to consider the proposals in question unless until it was first made
clear how the effectiveness of the provisions under review had been impaired.TN/CTD/M/2
Page 17
46. The Chairman in turn asked the representative of the United States whether or not she saw the
discussion on utilization as being a "stand-alone" discussion, quite separate and apart, for example,
from any discussion addressing the level of utilization of a specific provision.
47. The representative of the United States stated that her delegation wished to know whether
there were any particular problems with its comments on the utilization paper
(WT/COMTD/W/77/Rev.1/Add.4).  There were a number of suggestions which, as a matter of fact,
her delegation wished to add to the paper.  Other aspects of the paper were inaccurate such as
comments concerning the United States programmes, for example.  She stressed, however, that the
Secretariat was generally meticulous.  Perhaps, there had been something that her delegation had
neglected to provide to the Secretariat, despite the need to do so in order that Members could function
on the basis of accurate information.  Secondly, her delegation's comments, notwithstanding their
volume in relation to the utilization paper, were simple.  She had also said, on a previous occasion,that they too could consider the approach sugge sted by the representative of Egypt whereby the
Special Session structured its discussion on an Agreement-by-Agreement basis.  The approach
suggested by the Chairman also seemed useful.  A discussion on utilization, proposals for achieving
greater effectiveness, mandatory versus non-mandatory provisions, and any other questions of form
could then follow.  Her delegation could therefore envisage discussing utilization on a provision-by-
provision basis, incorporating suggestions into the disscussion as they were made.  The first challenge
was how best to improve the utilization paper.  She noted, for example, that other delegations might
have comments to make, other than those of her own delegation and that these might be made from
the basis of a different point of view.  Her delegation had made statements concerning subsidies
provisions, for example, or dispute settlement where, on the basis of their current knowledge, they hadasserted that there had not been any cases brought against developing countries.  They wished to make
sure that the information they provided in such cases was accurate.
48. The Chairman welcomed the fact that the meeting could perhaps adopt a provision-by-
provision approach to its work and then assess utilization in the context of such a discussion.  He
asked whether the delegation of the United States would be satisfied if their comments were formallycirculated to Committee Members.
49. The representative of the United States responded that these had already been circulated
widely to the Membership in an informal meeting of the Special Session.  She did, however, wish to
receive comments in response to that paper.  It was, however, a non-paper:  a contribution to the need
to gather extra information.  It was her understanding  that delegations would need to look at the paper
and provide comments before the Secretariat could proceed to enhance the utilization document
(WT/COMTD/W/77/Rev.1/Add.4) with the extra information provided.  She was unsure as to thedistinction between formal and informal, as far as distributing documentation to the entire
Membership was concerned.  Her delegation wished to suggest some editorial changes but if this were
to be done as part of a formal process she would need further guidance from her government.  The
document was in any case in the hands of everyone.  It was meant to improve upon a document which
they already considered very useful.
50. The Chairman welcomed any comments on the informal paper that had been circulated by the
United States.
51. The representative of Canada said that her delegation was extremely interested in the
forthcoming discussion.  In this regard she supported the suggestion from the United States to work
with WT/COMTD/W/77/Rev.1/Add.4 on utilizati on.  The Canadian delegation would then be
prepared to work through the provisions item-by-item, commenting upon the suggestions from the
United States as they did so.  To ensure that the documents were complete the Canadian
representative suggested that the Special Session might also like to look at why certain Members had
taken advantage of certain provisions, whether the provisions were efficient and effective, and so on.
If by any chance a negative impact on a country was the result of utilization of a provision, as theTN/CTD/M/2
Page 18
representative of Chile thought possible, they could then look at the precise reasons why countries or
Members had not taken advantage of such provisions .  At the same time it could be examined whether
the problem with the provisions in these cases was because there were genuine impediments or
whether it was simply because the provisions served no real function and were therefore unnecessary.
In this case it would then be useful to look at what was needed to be strengthened and changed in theprovisions.
52. The Chairman indicated that he had proposed to use WT/COMTD/W/77/Rev.1/Add.1/Corr.1
as the document through which they proceed item-by-item.  WT/COMTD/W/77/Rev.1/Add.4 was a
document containing a number of elements regarding utilization.  Members would no doubt wish to
draw on it in their assessment of the provisions that they were addressing item-by-item.  The
representative of United States had made certain comments on WT/COMTD/W/77/Rev.1/Add.4 and
the Chairman observed that other Members might also wish to do the same.
53. The representative of Canada agreed with the Chairman's proposal, as long as they looked
also at WT/COMTD/W/77/Rev.1/Add.4 in relation to each particular item.
54. The representative of the European Commission said that with respect to comments about
transition periods from other delegations made in relation to categories (iii) and (iv) of
WT/COMTD/W/77/Rev.1/Add.1, his delegation considered these provisions to be mandatory.  TheChairman had also stated that, although these provisions were not strictly mandatory, it was not the
case, especially in relation to the question of their effectiveness, that they were completely voluntary
either.  It was mandatory to grant transitional periods but strengthening them was a different issue.
The main point he wished to make was in reaction to the Chairman's proposal to proceed using
WT/COMTD/W/77/Rev.1/Add.2 as a basis on which to  evaluate how far the Special Session had
progressed in its work.  Other delegations had also proposed that the Special Session continue its
work on an agreement-by-agreement basis.  He agreed with this approach but at the same time pointed
out that, within such a framework, a mechanical e limination of the issues, ticking them off one-by-one
as they appeared in the papers, should as far as possible be avoided.  They understood that, especially
on the mandatory and non-mandatory issue, Members ha d to identify specific things that they wished
to see taken up.  But the right way to proceed would be to ask Members to identify these provisions
within the general framework, while sharing their justification and reasoning as to why a particular
provision should be made mandatory.  He realized that not all delegations would be in a position to
specify at that meeting exactly which provisions they wished to make mandatory.  A time allowance
should be made in this case.  His delegation wished to avoid issues being addressed without the
necessary preparation having been carried out, as not to do so would limit the progress made in the
Special Session.
55. The representative of Djibouti agreed with the extremely important comments made by the
representative of the European Communities.  He asked as to the priorities which could now be
identified and likewise as to aspects of the debate as yet unconsidered.  Members needed to identify
those aspects which they believed to be most important and then, rather than getting lost in a
discussion of broad-ranging issues, identify the reasons behind their choices.  In order to makeprogress in their work Members now needed very clearly to establish their priorities.
56. The Chairman thanked the representative of Djibouti and agreed that the Members clearly did
need to establish a realistic set of priorities.  The provisions that they wished to address was needed to
be put forward by Members.  He agreed that mechanically to debate the nature of provisions was not
helpful.  Members needed to identify from the fu ll range of provisions those which they wished to
consider as a priority.  He was gratified to find that India was circulating a paper containing specific
proposals regarding provisions that it wished to see considered.
57. The representative of India thanked the representatives of the European Communities and the
United States for moving the exercise forward through their expression of "political will".  TheTN/CTD/M/2
Page 19
representative of the European Communities was also thanked for sharing with the other Members the
problems it was experiencing in accepting the draft Work Programme suggested by the Chairman.  He
hoped that these problems would be resolved and that Members would soon be able to agree on a
Work Plan.  Most of the Members were aware that many of the S&D provisions had been taken up as
implementation proposals in the course of the previous year.  Some of these had already been fullyaddressed, others unsatisfactorily, still others, according to the reasoning accepted at the time, were to
be addressed in a larger context.  His delegation looked forward to addressing those S&D provisions
that had not been satisfactorily addressed in the exercise on implementation issues during the previous
year as well as those which could not be addressed at all at that time.  This had been due to the fact
that the context in which Members were then discussing these issues had been different it was part of
a wider series of negotiations.  This was clear from the fact that the Special Session had then been
established in order to specifically deal with these issues.  With regard to his own delegation'sproposals, the paper  was hurriedly drafted, he said, because Members were unclear as to how the
Special Session would conduct its business.  His delegation had nonetheless attempted to formulate
some draft proposals as they now appeared in the paper.  This paper was currently a working paper
although it might be presented as a formal paper in due course.  The first proposal was with regard to
Article 3.5(j) of the Agreement on Import Licensing  and Procedures.  This Article dealt with non-
automatic import licensing and stated that:
"in allocating licences, the Member should consider the import performance of the
applicant.  In this regard, consideration should be given as to whether licenses issued
to applicants in the past have been fully utilized during the recent representative
period.  In cases where licenses have not been fully utilized, the Members shallexamine the reasons for this and take these reasons into consideration when allocating
new licenses.  Consideration shall also be given to ensuring a reasonable distribution
of licences to new importers, taking into account the desirability of issuing licences
for products in economic quantities.  In this regard, special consideration should be
given to those importers importing products originating in developing countryMembers and, in particular, the least developing country Members."
58. That was clearly an S&D treatment provision, identified as such by the Secretariat.  In this
context it was incumbent on Members to examine the reasons for non-utilization of licences and to
take these reasons into account when allocating new licences.  Further, it was also incumbent on
Members to give consideration to ensuring a reasonable distribution of licences to new importers
taking into account, in doing so, the desirability  of issuing such licences for products in economic
quantities.  It would also be useful to work for uniformity in the administration of tariff rate quotas
(TRQ's), a point already mentioned in various other fora.  In view of the word "should" appearing in
the last sentence of the provision referring to special consideration to those importers who were
importing products originating in developing coun tries and in particular the LDCs, however, there
was some doubt about its mandatory nature.  But at the same time there was a need to make the
provision mandatory in order to enable products originating from developing countries to fully benefitfrom it.  This could be achieved either through an authoritative interpretation or through an
amendment, in the last sentence, of the word "sho uld" to "shall".  In the context of the relevant
Article, making the last section mandatory would help developing countries, especially least-
developed countries, to increase their share in exports of those products of particular export interest to
them, as envisaged in the preamble to the Marrakesh Agreement.
59. The second proposal was on SPS, which had also been part of the implementation exercise in
the previous year, relating to Article 10.2 of the SPS Agreement, and which read:
"Where the appropriate level of sanitary and phytosanitary protection allows scope
for the phased introduction of new sanitary and phytosanitary measures, 'longer time-
frame for compliance' should be accorded on products of interest to developingcountry Members so as to maintain opportunities for their exports."TN/CTD/M/2
Page 20
This issue was also addressed in Doha on 14 November 2001 in the Decision on
Implementation-Related Issues and Concerns which stated that:
"Where the appropriate level of sanitary and phytosanitary protection allows scope
for the phased introduction of new sanitary and phytosanitary measures, the phrase'longer-time frame for compliance' referred to Article 10.2 of the Agreement on the
Application of the Sanitary and Phytosanitary Measures, and shall be understood to
mean normally a period of not less than 6 months.  Where the appropriate level of
sanitary and phytosanitary protection does not allow scope for the phased
introduction of a new measure, but specific problems are identified by a Member, the
Member applying the measure shall upon request enter into consultations with the
country with a view to find ing a mutually satisfactory solution to the problem while
continuing to achieve the importing Member's appropriate level of protection".
60. The latter Decision from Doha did give an interpretation of the phrase "longer time-frame for
compliance", referred to in Article 10.2 of the Agreement.  However, because of the use of the word
"normally", ambiguity still remained as to the approp riate time period for compliance.  In light both of
this and the need for longer time-frames for the developing countries, his delegation had proposed thatin Article 10.2 of the SPS Agreement should be read to express a "duty" rather than merely as
exhortation.  This clarification could be introduced through an authoritative interpretation pursuant to
Article IX:2 of the Marrakesh Agreement Establishing the WTO.  It was further proposed that the
word "normally" be removed from the first sentence of paragraph 3 of the Decision on
Implementation-Related Issues and Concerns.  These changes would make the S&D provision fullyoperational and effective and would also provide developing countries with the necessary level of
flexibility that they needed.
61. The third proposal related to Article 10.4 of the SPS Agreement, which read:  "Members
should encourage and facilitate the active participation of developing country Members in the relevant
international organizations".  His delegation was aware of the decisions taken in the course of theyears 2000 and 2001 on this particular provision as well as the subsequent steps taken by the Director-
General in contacting the international organizations.  The Decision was subsequently adopted at
Doha as part of the Implementation Related Issues and Concerns Decision which read:
"(i) takes note of the action taken to date by the Director-General to facilitate the
increased participation of Members at different levels of development in the work of
the relevant international standard setting organizations as well as his efforts to
coordinate with these organizations and financial institutions in identifying SPS-related technical assistance needs and how best to address them;  and (ii) urges the
Director-General to continue his cooperative efforts with these organizations and
institutions in this regard, including with a view to according priority to the effective
participation of least-developed countries and facilitating the provision of technical
and financial assistance for this purpose".
62. He said that the language used in Article 10.4 was of a best-endeavour nature.  It urged
Members to encourage and facilitate the active participation of developing country Members in the
relevant international organizations.  In the light of the Implementation Decision taken at Doha and in
view of the importance of ensuring greater participation of Members at different levels of
development throughout all phases of standard sett ings, his delegation had proposed that in Article
10.4 of the SPS Agreement the term should be read to express a "duty" rather than merely exhortation.
It could be clarified through an authoritative interpretation pursuant to Article IX:2 of the Marrakesh
Agreement Establishing the WTO and would help to achieve this important S&D provision's intended
objective.TN/CTD/M/2
Page 21
63. He went on to say that the fourth and fifth proposals related to the Understanding on Rules
and Procedures Governing the Settlement of Disputes  (DSU).  Article 4.10 of the Understanding read:
"During consultations Members should give special attention to developing country Members'
particular problems and interests".  The provision had been invoked in many disputes and particularly
by complaining developing country Members.  The request for consultations was the first step forinitiation of a dispute in the WTO.  The holding of consultations was mandatory before any request
could be made for the establishment of a panel.  Consultations were intended to provide an
opportunity for the disputing parties to reach a better understanding of their respective views and also
gave an opportunity to the defending party to explain its reasons for introducing the disputed measure.
His delegation suggested that the word "should" be replaced here by "shall" so as to make the S&D
provision mandatory.  This in turn led to the question as to what was meant by the latter part of the
sentence, something which was addressed in the second part of their proposal.  He said that theprecise operational content of the phrase "give special attention" should be meaningfully interpreted,
in the assistance of which he offered three suggestions.  First, if the complaining party was a
developed Member and if it decided to seek the establishment of a panel, it should be made
mandatory for it to explain, in the panel request as well as in its submissions to the panel, as to how it
had taken or paid special attention to the particular problems and interests of the respondingdeveloping country Member.  Second, if the developed Member was a defending party it should be
made mandatory for it to explain, in its submissions to the panel, in what ways it had addressed or
paid special attention to the particular problems and interests of the complaining developing country
Member.  Third, the panel, while adjudicating the matter referred to it, should also give a ruling on
that matter.  His delegation was of the view that these proposals, if implemented, would make theprovisions of Article 4.10 mandatory, effective, operational and of value to developing country
Members.
64. The fifth proposal concerned Article 21.2 which read:  "Particular attention should be paid to
matters affecting the interests of developing country Members with respect to measures which have
been subject of dispute settlement."
65. He said that this provision was part of an Article that required the DSB to keep the
implementation of its rulings under surveillance fo llowing adoption of the panel or Appellate Body
reports.  The Article provided for the determination of a reasonable period of time (RPT) for
compliance with the DSB rulings; in case of disagreem ent, it provided for the initiation of further
dispute settlement proceedings in order to determine whether or not  the defending Member had
complied with DSB rulings; and finally it provided for status reports on the implementation of DSB
rulings to be received at every regular DSB meeting six months after adoption of the panel andAppellate Body reports.   His delegation suggested that the word "should" be replaced here by the
word "shall" so as to make the provision mandatory.  The utility of the provision could also be
increased by clarifying the phrase "matters affecting the interests of developing country Members".
In this connection it was proposed that:  first, this provision, having been placed at the beginning of
Article 21, should be made mandatory so that the panels and Appellate Body could interpret it as anoverarching provision in all disputes involving a developing country Member as a disputing party.
Second, if the defending party was a developing country Member and the complainant a developed
Member then the reasonable period of time currently adopted was 15 months.  This should be
considered as a normal RPT.  If the measure at is sue was a change of statutory provisions or a change
of long-held practice or policy-like quantitative restrictions or balance-of-payments, however, theRPT should be extended to two to three years and the panels or Appellate Body should indicate that
an extended RPT was required.  With regard to Article 21.5 relating to panel proceedings he said that
the time for completion should be increased from 90 to 120 days.  The panel should, as any normal
panel would, give all due consideration to the partic ular situation of developing country Members.  He
also suggested that the filing of status reports should be at alternate meetings rather than at everyregular meeting as this commitment imposed a considerable burden on small delegations.  Third, if
the complaint was by a developing country Member against a developed country Member, the
defending developed country Member should be given no more than 15 months RPT in anyTN/CTD/M/2
Page 22
circumstance.  The existing 90 days time limit for Article 21.5 procedures should likewise be strictly
observed.  In case of any delay there should be an obligation to compensate for continuing trade
losses to the developing country complainant.  These suggestions, if implemented, would make the
provisions of Article 21.2 mandatory, effective, operational and of value to the developing countries.
66. The representative of the United States appreciated that the submission from the delegation of
India was in direct response to pleas from various delegations to have specific proposals to which to
respond so as to expedite the review process.  Sh e hoped that, after sending back the proposals to her
capital, she would not receive instructions for the next meeting to seek to amend paragraph 12 of the
Implementation Decision at Doha, because from the second proposal in Article 10.2 there was already
a request to revise this Decision.  With that in mind, the proposals would be taken and considered in
her capital after which she would be able to give her delegation's detailed comments on them.  She
asked whether any of the proposals, aside from that one specifically and arguably also a second one,had already been dealt with in the Implementation Decision taken at Doha, had been tabled elsewhere.
She gave the example of the Dispute Settlement proposal and asked whether it would also be
considered in the Special Session on the DSU already in process and for which another meeting was
soon to be scheduled.
67. The representative of Argentina gave a preliminary reaction to the interesting proposals tabled
by India.  They were particularly interested in the proposal relating to Article 10.2 of the SPS
Agreement which they would look at in greater detail.  His delegation might need to evaluate how the
changes could be introduced:  whether through an interpretation of Article 10.2 or whether through a
decision of the General Council.  His delegation did not yet have a clear position on this point
although, with regards to its content, they stressed again that they found the proposals interesting.With regard to the specific proposal on the Dispute Settlement procedure he said that, although he
could not yet give a firm opinion he was able to say, like the representative of Egypt, that it might be
useful to work on an issue-by-issue basis rather than following a pre-established order.  In this way
Missions that had specialized experts would be able to give more specific attention to each topic.
68. The representative of India, in response to the statement made by the representative of the
United States, said that some of the proposals, particularly those referred to in Article 10.2 of the SPS
Agreement, did build on the Decision taken at Doha.  To that extent his delegation was seeking to
move further beyond what had already been decided in Doha.  There was also another aspect that
needed to be addressed, namely the legal hierarchy of decisions.  His delegation had identified three
possible ways of addressing this issue.  First, through an amendment of the Agreement; second,
through an authoritative interpretation;  and third, through a Ministerial or General Council decision.
In the context of the Ministerial decisions taken in Doha he had asked for a comparative analysis fromthe Legal Division of the WTO Secretariat of the legal hierarchy between the three available options.
If there was a clear decision by either the panel or the Appellate Body that option x or option y had
more legal standing than option z, then Members should attempt to amend or change the provisions by
adopting the said option x or option y approach.  His delegation was not at present clear, however,
about the legal hierarchy between the three options av ailable.  They could return to the issue once the
legal hierarchy was clarified.  They also requested that the provisions be made mandatory by altering
the term "should" to "shall".  He continued by pointing out that the value of the Decision in Doha had
been greatly undermined by the use of the word "normally".  His delegation was seeking to remove
this word from the proposal.  The proposal therefore went beyond what was agreed in Doha.  With
regards to the DSB proposals he said that he was unsure as to whether or not these were beingdiscussed as part of the implementation proposals.  To his recollection it was not, but he expressed his
intention to confirm this and then to inform the delegates of the actual situation.  As far as the work of
the DSB Special Session was concerned he did not think that there had so far been any proposals
submitted to that body.  That proposal had therefore not as yet been tabled even if some delegations
had the intention of doing so later.  He thanked the representative of Argentina for his remarks and
appreciated that not all of the Members were experts on all of the subjects being dealt with as part of
the review of S&D provisions.  The suggestion made by the representative of Argentina aboutTN/CTD/M/2
Page 23
allocating time in the following meetings concerning various subjects would also be useful, because
experts could then be brought in to address the more specific questions.  He noted the comment made
by the representative of Argentina concerning the SPS Agreement and said that he looked forward to
any further comments that they may wish to add at a later stage in the discussion.
69. The Chairman said the suggestion made by the representative of Argentina could be reflected
on by Members.  The difficulty with allocati ng time for working on an Agreement-by-Agreement
basis was, however, that they still needed propos als, based on the various Agreements, which could
then be discussed.  It would be greatly appreciated if any proposals were submitted at the earliest
opportunity.  Proposals could then be classified based on the Agreements to which they related.  He
cited the delegation of India's proposals on the SPS and DSU as an example and said that Members
could put together all their proposals on that Agreement so that these could then be discussed in the
same session.  He was still not clear how helpful it would be to approach the work on an Agreement-by-Agreement basis unless it was clear that delegations were putting forward proposals under each of
the relevant Agreements.  If that were the case then it would be very helpful to have these proposals
beforehand so that they could then be made available and sorted out, so as to be discussed along with
any other proposals addressing or giving rise to similar issues.  Clearly there would be no point in
having a discussion in relation to an Agreement if there were no proposals forthcoming on thatparticular Agreement.  He emphasized that they firstly needed to receive an indication as to the
proposals that were most important to delegations.  These could then be coherently structured into the
scheme for discussion.  But meaningful provision by provision discussion would be difficult to
achieve without this first step having first been  made.  The Chairman pointed out that the only
proposal on the table at present was the proposal from the delegation of India.
70. The representative of Guatemala believed that the best way of carrying out the Committees
work was on the basis of an Agreement-by-Agreement discussion.  Perhaps the most coherent way of
organizing that would be to establish a deadline prior to each meeting.  For example, a meeting
programmed at the end of the month under point B of the agenda, might address the issue of rules on
the basis of the provisions in one or two named Agreements.  Countries could then prepare their
proposals accordingly.  Another series of Agreements could then be taken up 15 to 20 days later.  He
noted, nevertheless, that it might be difficult to organize these discussions if delegations submitted
proposals related to three, four or five Agreements simultaneously.  And, depending on attendance at
the meetings, it would not necessarily be possible for any decisions to be taken on such a broad range
of proposals.
71. The representative of China said he believed that the proposal by the representative of India
was in general a good one.  He thought that they were moving in the right direction by giving concrete
examples of either making non-mandatory provisions mandatory, by making amendments, or by
giving an authoritative interpretation to the present provisions.  Before studying the proposals further,
however, he wanted to emphasize that even if all of the non-mandatory provisions were made
mandatory, this would still not necessarily address or solve the problems and concerns of the
developing countries.  He commended the proposal from India but suggested, for example, thatreplacing "should" with "shall" would still be insufficient to address the concerns of developing
countries.  With regard to Article 3.5 (j) of the Agreement on Import Licensing and Procedures, he
said that the Indian delegation had proposed that in the last sentence the word "should" be amended to
"shall".  He doubted if this would help developing countries to increase their share in the exports of
those products of interest to them.  He believed that the second example, which gave an interpretationof what "longer time-frame" meant was, however, good.  Whether or not it would be agreed to by
delegations, it was still a good proposal for them to consider.  With regard to the proposal on the DSU
he thought this to be a special proposal, the difficul ties in which should be realistically solved in such
a way so as to address the concerns of the developing countries.  He fully supported the Chairman that
proposals from delegations should be welcomed based upon agreements which could then bediscussed on an agreement-by-agreement basis.  He also agreed with the representative of Guatemala
that specific deadlines were needed to be set by which to put forward specific proposals as to how toTN/CTD/M/2
Page 24
improve the present provisions and, in particular, how to make them more precise, effective and
operational.
72. The representative of India, in response to the representative of Argentina, indicated that the
proposals had been tabled in an effort to "get things moving" in the Special Session.  He fully
understood the difficulty that delegates might face with regard to taking up proposals over a widerange of Agreements at the same time.  The representative of China had given some useful
suggestions that Members could certainly reflect upon and suggested that a decision could be taken on
these later in the meeting.  He had partially answered the query from the United States on DSB
proposals and said that it was his understanding that the proposals were discussed before Seattle, not
Doha, but that these had not been subsequently pursued.
73. The representative of Venezuela congratulated India for their proposal and for all of the hard
work which had clearly gone into it.  She had two preliminary comments.  First, in reference to
Article 10.2 of the SPS Agreement, her delegation insisted that they did not think it necessary to have
an interpretation or an amendment since for them this provision was already mandatory.  With regard
to Article 10.4 of the SPS Agreement, her delegation believed that this was in the first place a
financial problem and, as such, that it could be dealt with in the regional groups.  Likewise she
thought that it would not be unduly expensive to attend the various meetings before reporting back atthe global level so as to ensure that the standards adopted were actually taken up.  She believed that
the basic problem here was one of capacity.  She had difficulty commenting on the DSU proposal
although it seemed to her to have been well presented.
74. The representative of the European Commission thanked the representative of India for his
response to what had earlier been discussed.  Members had to get some level of concreteness into the
debate and, although he was not yet in a position to comment on the proposals he would certainly look
at them closely and do everything possible to ensu re that an educated debate could soon take place.
He noted the comments from the Representative of China and others, especially the comment from
the representative of Venezuela on capacity.  The examples given by the representative of India made
it clear that dividing the issue into mandatory and non-mandatory provisions would in the end giveonly fragmented results.  But it was clear that when one looked at the problem in a more holistic way
it would be possible to start discussing the difficulties raised by Article 10.2 of the SPS Agreement,
for example, and the question of whether six month deadlines, 12 month deadlines, or even no
deadlines at all, should be finally adopted.  The real underlying problem, however, was that if a
Member wanted to export products abroad they had sooner or later, to come up against the SPS
standard.  But this standard was not addressed in the provisions at issue but rather in Article 9 which
actually formed part of the debate on technical assistance.  The related problem of Article 10.4 of theSPS Agreement, and in particular how such standards came into being, also needed to be addressed.
So the real challenge for the Special Session of the CTD was probably to find ways in which, while
searching for the means to resolve them, to view thes e problems as a whole.  He thought that stressing
a division between mandatory and non-mandatory provisions would probably not help Members to
find lasting solutions to some of these issues.  Nevertheless he respected the work programme and hisdelegation was willing to work on the basis of the proposals which were before them.  He wanted the
Members, with a particular view to the larger question of effectiveness, to reflect on his comments in
terms of how they should proceed with the debate.  His delegation would hold a discussion on the
various specific issues and then return to the Spec ial Session with its answers at the earliest possible
opportunity.  He wondered, as had the representative of the United States, about how useful andappropriate it was for DSU issues, for example, to be discussed in the Special Session when really
they could be more appropriately addressed in the context of the DSU review .  He thought that this
was another generic problem which the Special Session would need to address.  He did not have an
answer to this problem although suggested that one  solution might be for Members to bring their DSU
experts to the meetings of the Special Session.  These experts would at least have an overview of whatwas happening in the DSU review.  Another possible solution would be to have a generic debate to
see what were the problems faced by developing countries in the context of the DSU.  All the relevantTN/CTD/M/2
Page 25
S&D treatment provisions could then be identified while at the same time indicating whether these
provisions had been effective and useful in addressing the problems faced by developing and least
developed countries.
75. The representative of Malaysia said the proposals by the delegation of India represented a
good basis for their future discussions and she hoped that it would not be the last of the proposals
from developing countries.  She also referred to the proposal made by the delegation of Guatemala
saying that clustering the discussion Agreemen t-wise was a useful suggestion.  For example,
Agreements on rules such as subsidies, safeguards or anti-dumping, could all be handled together.  A
group of experts could then be convened for these particular discussions on rules.  The next question
was the subject of the subsequent discussions.  In the absence of other proposals, she suggested,
Members should at least proceed along the arguably more simplistic lines of discussing those
provisions using "should" with a view to changing them  to "shall".  This linguistic issue could at least
be used as a basis for their discussion at future meetings.  She thought that by the time of the next
meeting, however, there would be more proposals on the table.  This would then enable them to have
a more substantive discussion.
76. The representative of the United States observed that, as the Ministerial Declaration had itself
indicated, the proposals would take into account the stage which had been reached when the
discussions were left off.  She was interested to know whether the DSU proposals would be handled
in the same, on-going way.  She noted that there had been a number of different types of proposals
both before Seattle and since then.  The current exercise was that proposals were being reintegrated
into the DSU exercise.  Her delegation would therefore be interested in knowing how things were
progressing with these proposals.  Her delegation would have more detailed comments to make on theproposals at a later stage.  She also hoped to be able to make further comments on the question of
whether or not to change or make amendments  to the Implementation Decision taken at Doha.
77. The representative of Uganda welcomed the proposals submitted by India.  Rather than
talking in circles, they helped to address concrete problems.  He said that Members were supposed to
identify the provisions that they considered should be made mandatory while discussing the legal andpractical implications of making such non-mandatory provisions mandatory.  The representative of
India had put Members on the right track.  He was particularly pleased with the proposals on the SPS
Agreement as these allowed deliberation as to how they could be made more effective.  With regard
to the point made by the representative of the European Communities about looking at things in a
holistic way, he was of the view that these larger issues could be addressed when they discussed the
question of effectiveness.  The LDCs had been gr appling with how best to make their presentation.
They were hoping to be able to put forward specific proposals on provisions that they consideredshould be made mandatory by the next meeting.
78. The Chairman was pleased to hear that specific proposals would be forthcoming for the next
meeting. For the moment he could do no more than to offer suggestions as to how the Special Session
could approach the work programme in the time remaining until the July 2002 deadline.  He did not
think that they would have any difficulty in st ructuring a discussion on an Agreement-by-Agreement
basis.  That would essentially require that Members be informed as to which Agreement would be
under discussion at the next meeting.  It would perhaps be useful to set up a schedule for the
discussion of Agreements until July 2002.  He agreed with the representative of Guatemala that there
should also be an indicative deadline by which proposals should be submitted for discussion at the
subsequent meeting.  In this regard, the Secretariat could perhaps prepare a schedule of Agreementsfor discussion.  The only danger in such a proposal, perhaps unavoidable, was that when examining
some agreements they might find that there was not much to be said, while when addressing others
they might suddenly find themselves overwhelmed by proposals.  Given the narrow time-frame they
might subsequently experience difficulty in adjusting their work.  It was for this reason that he felt it
important that Members submit proposals, not only for the next scheduled set of Agreements but, forthose Members able to do so, for Agreements scheduled to be discussed at later meetings as well.  TheTN/CTD/M/2
Page 26
Special Session would then be in a better pos ition from which to judge how many provisions
Members wished to look at in particular.  Many Members were capacity-constrained and their
proposals were perhaps needed to be looked at in the context of the immediate forthcoming meeting.
He indicated that he would undertake to do this if Members were agreeable to such an approach;
especially if it would help in ordering the work.
79. The representative of Canada asked, as they proceeded with the question of utilization and
effectiveness (which was what the next meeting was supposed to have been about), whether the
Special Session would now be approaching the next meeting on an Agreement-by-Agreement basis
concurrently looking at the questions rais ed by any one given proposal or provision.
80. The Chairman suggested that the Agreement-by-Agreement basis was perhaps a convenience
through which to allow the submission of specif ic proposals. Although Members had suggested that
specific provisions related to particular Agreements and it would therefore be helpful if theseAgreements could be indicated so as to help order the discussion at the next meeting.  He noted that
the representative of the European Communities had also raised the point as to whether or not they
should discuss mandatory or non-mandatory provisions and how these related to the larger issues.  He
noted that the proposal by the delegation of India had looked at making non-mandatory provisions
mandatory.  At the same time it had addressed the question of effectiveness and in particular howgreater effectiveness might be realized.  The Chairman felt that this was a useful approach which at
the same time seemed to fit in with the work programme as a whole.  So proposals from Members on
how to make non-mandatory provisions both mandatory and effective would also be welcome.
81. The representative of Barbados had no difficulty accepting the course of action proposed by
the Chairman, in particular given the need to ensure that the Special Session got through its work
within the time-frame before it.  However, speaking as the representative of a delegation with severe
capacity constraints, she nonetheless hoped that there would be some scope for her delegation and
others to go back to Agreements on which they might not have been able to submit a proposal in time
for a specifically scheduled discussion.  She was aware that this was normal practice in the WTO but
wished to ensure that there were no plans to deviate from this practice in the present case.
82. The Chairman reassured the representative of Barbados that flexibility remained and that
other Members would surely be tolerant of exercising such flexibility.
83. The representative of Venezuela said that the Chairman's proposal was a good one. With
regards to the Chairman's comments on Agreements for which proposals might not be forthcoming
and for which the Secretariat documents would subsequently be drawn upon, he wondered whether
the Secretariat documents or just the proposals themselves would be used as a basis for their work.
84. The Chairman reiterated that his suggestion was to function on the basis of the proposals put
forward by Members.
85. The representative of the United States said that her delegation had taken to heart the
difficulties faced by capacity-constrained delegations and would try to remain flexible as to when
proposals were submitted; bearing in mind that the Special Session was unlikely to be able to take into
account many more proposals before July 2002.  Her delegation welcomed an acceptance to considerproposals from capacity-constrained delegations throughout the process.  She also noted that while the
main examination was conducted in the Special Session it might also be important for some expert
examination to take place in the relevant bodies.  As had previously been said in many discussions, in
particular in the preparation of the work programme before Doha, Members needed to recognize the
cross-cutting nature of the exercise upon which they were engaged.  They especially needed to bear inmind the implications of making proposals that would later require further examination.  For the
moment it would be acceptable to her delegation to proceed on the basis of initial reactions.  Later,TN/CTD/M/2
Page 27
however, it might be necessary to utilize the competence of the relevant bodies to deal with certain
agreements in more detail.
86. The representative of India agreed with the point made by the delegation of the European
Communities that the proposals largely addressed the issue of whether non-mandatory provisions
could be made mandatory.  He likewise agreed that perhaps they must also look at the related issues,
an aspect of the work which could be tackled in the next phase of the programme.  He also agreed
with most of the Chairman's suggestions as to how the work in the Special Sessions should proceed.
Earlier in the process they had envisaged that the next stage of work would be to see how mandatory
provisions could be made more effective and operational.  He presumed that addressing these issues
would remain their target for the next meeting.  Any remaining issues from the current meeting,
especially in terms of making non-mandatory provisions mandatory, would then be combined with
that aspect of the work programme.  Members would therefore be addressing both aspects of the workin their next two meetings.  He also agreed with  the suggestion from the representative of the United
States that inputs from experts in Agreements would be welcome.  He asked whether the suggestion
was that certain issues be referred to a particular body directly or whether they would be dealt with in
the Special Session itself.  His delegation's preference would be for the issues to be dealt with in the
Special Session.  For this reason he appreciated the comments made by some delegations that theirrespective experts in the field should be invited to attend the following meeting.  They preferred the
discussion to take place in the Special Session as other fora had, among other things, different
deadlines and schedules.
87. The representative of the United States expressed concern at the nature of many of the
proposals.  A number of these related to systemic issues with respect to the Doha Implementation
Decision, while others appeared to duplicate effo rts going on in other fora.  Another issue was
whether Members were at liberty to give a full treatment in the Special Session to those very detailed
proposals that were also being handled within the competence of other bodies.
88. The representative of Sri Lanka thanked the delegation of India for its initiative in preparing
proposals.  They effectively indicated the difficulty  faced by most developing countries in submitting
such proposals.  Nevertheless she thought that mo re proposals would come from developing countries
and, as a small delegation, supported the proposal that Members be allowed to make their proposals
on the basis of Agreements.  She felt quite distur bed, however, to learn that the discussions would
only be based on the proposals put forward by Members.  These proposals would undoubtedly
represent a major contribution to the process.  The document prepared by the Secretariat also
contained a number of good inputs.  Her delegation proposed to do away with any such restriction.
Even when proposals were not forthcoming from Members, delegations should still be able to makeinterventions and contributions on the basis of the Secretariat documents.  This opportunity should be
left open.  With regards to the question of handling the issues in the CTD or in the various bodies, she
recalled that small delegations had previously prop osed that it would be appropriate for them to deal
with these issues in the CTD because they could not attend all the other Committee meetings as well.
Her delegation would feel more comfortable, therefore, if these issues were dealt with wholly withinthe Special Session.  This would assist small de legations to take stock of what was happening.
89. The representative of the United States clarified that the Special Session was conducting a
review.  She proposed that at some point they w ould have to look into how they could benefit from
the expert bodies.  This did not mean that they  would suddenly divide the discussion between the
other bodies  and call a halt to the examination in the Special Session.  Her delegation also understoodthat the exercise was based on inputs from Members and that the Secretariat had prepared documents
to aid Members in their own examination and analysis of what might be of interest.  So it would
therefore be odd if the Secretariat's proposals were examined on the same level as Members'
proposals.  She sought clarification on the central issue here.  Her own delegation wished to stress, in
this context, that the Secretariat had prepared documents which each Member was within its rights toTN/CTD/M/2
Page 28
use in its own reflections and preparation, to the extent they desired, without prejudice to any other
Member's position.
90. The representative of Zambia sought clarification in terms of the information provided by the
Secretariat.  His delegation's view was that they should treat this information as an integral part of the
Special Session.  Therefore any Member who felt that they could use this information was free to doso.  He observed that they had viewed the informa tion provided by the Secretariat in the form of a
series of proposals: they would not otherwise have  been accepted.  His delegation knew that the
mandate of the Secretariat did not give it the right to present proposals to Members.  The option
should nonetheless  not be closed off, however, if delegations felt that they could use things from the
Secretariat's paper in order to develop their own proposals further.
91. The representative of Uganda, with regard to the point made by the representative of Sri
Lanka, said that he thought that Members should be able to use any documents which would help
them to formulate their proposals.  In particular he thought that the document from the Secretariat
included a number of good ideas and although Members might not fully share these ideas, many of
them would nonetheless find it difficult to disagree with the areas of concern and interest which had
been identified.  On the point made by the delegation of the United States about technical needs and
about being cognizant with the work being done in other Committees, he noted that Members had hadthe chance to discuss this whole topic, especially the issues of avoiding duplication and building on
work going on elsewhere, at the beginning of their debate.  It was in this context that the Chairmen of
other Committees were asked to appraise Members of their work so that Members could then take this
into account when formulating their own proposals.   When considering the Chairman's response on
the SPS he found that there were some useful ideas which the delegation of India had then built on.The critical point was that Members had been given their mandate and they also had a duty to report
to the General Council by July 2002.  Hopefully they would succeed in fulfilling this mandate.  To
help them do so they should also, in the view of the representative of Uganda, build on proposals
found elsewhere and also on progress made in the other Committees and Negotiating Groups.  This
should not, however, deter them from forwarding proposals which, from the perspective of adeveloping country Member, they considered helpful.
92. The Chairman then addressed the question from the representative of India regarding the
programme of work and, more specifically, what Members would be doing at the next meeting.  In a
sense they had no work left over from the current meeting in which they had examined non-
mandatory provisions.  At the next meeting they  would have been looking at how, among other
things, to make provisions more effective and operational.  But the task for the next meeting would
now also include the need to make proposals in respect of Agreements to be indicated.  Theseproposals would include how to make both non-mandatory and mandatory provisions more effective.
For the next meeting both tasks had, in a sense, been telescoped together.  This was perhaps
fortuitous.  On the question raised by the representative of Sri Lanka, in respect to the Secretariat's
documentation, he believed that the Special Session should be looking above all at proposals from
Members.  In this way they could establish the priorities of the Members themselves.  He went on tosay that the Indian proposal drew upon the Secretariat documentation, citing as an example a proposal
on Import Licensing that appeared in WT/COM TD/W/77/Rev.1/Add.3.  He did not think that
Members should be somehow barred from drawing upon, utilizing and expanding upon this
documentation as they so wished.  The Special Session was expecting that Members would put
forward the proposals that they wished to see discussed.  This was the best way for them to proceedbecause otherwise they would simply go through the 155 S&D provisions listed in the documentation
of the Secretariat as being mandatory or non-mandatory and then try to wade through these without
any sense of order or priority and without the guiding help of any specific proposals from Members.
He therefore urged Members to put forward their specific proposals.  He added that the Secretariat
documentation was very useful and Members could of course draw upon it as they wished and foundnecessary in identifying their own priorities and areas of interest.  Work could then be carried out on
the basis of the proposals put forward by Members.  Finally the Chairman noted that the responses soTN/CTD/M/2
Page 29
far received from other bodies were available and that Members could look at them.  Some of the
responses were quite detailed and informative.  The Special Session would be kept abreast of any
further responses as they were received.
93. The representative of India asked when Members could expect to receive the list of
Agreements that was intended for the next two meetings.  He asked if the Chairman would be
proposing an indicative time-frame for the submission of proposals.  He thought that it would be
useful if such a time-frame was circulated to dele gations in advance so that all delegations could then
be fully prepared for the next meeting's discussion.
94. The Chairman said that he needed the guidance of the Secretariat in terms of preparing a
schedule of Agreements for discussion but that indicative time-frames for the submission of the
proposals would be identified and suggested.  Members were aware that the next meeting that had
been scheduled within the context of the draft Work Plan was for 16 May 2002.  They could workbackwards from that to structure a time-frame for th e receipt of proposals as well as the schedule of
Agreements that could then be discussed.  The Secretariat would provide an indicative time frame and
a schedule of Agreements that would be circulated before the next meeting.  One aspect of their work
included the possibility of informal meetings as necessary.  This issue would also be examined at the
appropriate time.
95. The representative of the United States said that her delegation wished to return to their
earlier question concerning how to incorporate the comments they had circulated on the utilization
paper (WT/COMTD/ W/77/Rev.1/Add.4).
96. The Chairman thanked the representative of the United States for the reminder and said that
he was sure Members would read that document so as to be able to respond to the request for
comments.  He hoped that Members would be able to gather up some momentum for the next meeting
on the basis of the approach to it that they had agreed.
__________