WORLD TRADE
ORGANIZATIONIP/C/W/387
24 October 2002
(02-5864)
Council for Trade-Related Aspects
of Intellectual Property Rights
PARAGRAPH 6 OF THE DOHA DECLARATION ON THE TRIPS AGREEMENT
AND PUBLIC HEALTH:  INFORMATION ON WAIVERS
Note by the Secretariat
1. In the context of its discussion on the implementation of paragraph 6 of the Doha Declaration
on the TRIPS Agreement and Public Health ("the Declaration") at its meeting of
17-19 September 2002, the Council for TRIPS requested the Secretariat to prepare a list of all waivers
that have been granted in the WTO and describe the procedures used in reaching agreement on theiradoption.  This document aims to respond to this request.
1
I. WAIVERS GRANTED IN THE WTO
2. Annex 1 to this note lists all waivers and extensions of waivers that have been granted to date
under Article IX of the Marrakesh Agreement Establishing the World Trade Organization ("the WTO
Agreement").  The Annex does not include waivers granted under Article XXV of the General
Agreement on Tariffs and Trade 1947 ("GATT 1947") that were carried over to the General
Agreement on Tariffs and Trade 1994 ("GATT 1994") pursuant to its paragraph 1(b)(iii) andfootnote 1.  These waivers are listed in document WT/L/3, dated 27 January 1995.
2, 3
                                                     
1 Attention is also drawn to a Secretariat note in document IP/C/W/363/Add.1, dated 23 July 2002,
which looks at the procedural requirements and experi ence with the use of each of the four possible legal
mechanisms that have been identified by Members for the purpose of implementing paragraph 6 of the
Declaration.  These mechanisms are:  (i) an interpre tation of the TRIPS Agreement under Article IX of the
WTO Agreement;  (ii) a waiver under Article IX of the WTO Agreement;  (iii) an amendment of the TRIPSAgreement under Article X of the WTO Agreement;  and (iv) a moratorium on dispute settlement.
2 As of 1 January 1995, there had been 115 original waiver decisions by GATT CONTRACTING
PARTIES under Article XXV:5 of GATT 1947, as well as many other waiver decisions extending or amendinga prior waiver decision.  For more information on the GATT practice concerning waivers under Article XXV:5,
see the Analytical Index, Guide to GATT Law and Practice (WTO, 1995) ("the GATT Analytical Index"),
pp. 882-906.
3 During the discussion on the implementation of paragraph 6 of the Declaration at the meeting of the
Council for TRIPS of 17-19 September 2002, reference was made also to the exemption provided underparagraph 3 of GATT 1994 (see the minutes of the meeting in document IP/C/M/37, paragraph 86).Paragraph 3(a) provides that "[t]he provisions of Part II of GATT 1994 shall not apply to measures taken by a
Member under specific mandatory legislation, enacted by that Member before it became a contracting party to
GATT 1947, that prohibits the use, sale or lease of fo reign-built or foreign-reconstructed vessels in commercial
applications between points in national waters or the waters of an exclusive economic zone.  […]  Thisexemption is limited to measures taken under legislation described above that is notified and specified prior toThis document has been prepared under the Secretariat's own
responsibility and without prejudice to the positions of Members
and to their rights and obligations under the WTOIP/C/W/387
Page 2
3. Annex 1 lists 138 decisions on waivers or extensions of waivers.  Most of them (115, 83%)
extend the time-limits of waivers granted earlier.  All of the decisions concern obligations under
multilateral agreements on trade in goods, except fo r one waiver that has been granted in relation to
obligations under the TRIPS Agreement.4 These decisions on waivers and their extensions can be
divided into three main categories:
- 107 (77%) of the decisions concern the implementation of the Harmonized
Commodity Description and Coding System (the "Harmonized System" or the "HS");
- 16 decisions (12%) concern preferential treatment;  and
- 15 decisions (11%) relate to other areas.
4. The latter 15 decisions concern obligations under the following provisions or agreements:
- 8 decisions on the Customs Valuation Agreement;
- 1 decision on Article XIII of GATT 1994 (quantitative restrictions);- 2 decisions on Article XV:6 of GATT 1994 (exchange arrangements);
- 1 decision on the Agreement on Agriculture;
- 2 decisions on the Agreement on Trade-Related Investment Measures;  and
- 1 decision on the TRIPS Agreement.
5. Most of the waivers and their extensions (122 decisions, 88%) have been granted to individual
Members.  16 (12%) of the decisions concern more than one Member;  of these 16 decisions, 13 cover
several Members (often referred to as "collective waivers").
6. The majority of these waivers have been granted or extended for a period of one year or less
(112 decisions, 81%).  Waivers concerning the Harm onized System are typically granted for about six
months at a time.  26 decisions (19%) have granted or extended waivers for more than one year;  thisis typical for waivers concerning preferential treatment and other matters.  Of these 26 decisions, four
have granted or extended waivers for a period of ten years or more.  None are for an unlimited time.
                                                                                                                                                                    
the date of entry into force of the WTO Agreement. […]"  Subparagraph (b) provides that "[t]he Ministerial
Conference shall review this exemption not later than five years after the date of entry into force of the WTOAgreement and thereafter every two years for as long as the exemption is in force for the purpose of examining
whether the conditions which created the need for the exemption still prevail."  Subparagraph (c) provides that"[a] Member whose measures are covered by this exemption shall annually submit a detailed statisticalnotification consisting of a five-year moving average of actual and expected deliveries of relevant vessels as
well as additional information on the use, sale, lease or repair of relevant vessels covered by this exemption."
The United States invoked the provisions of paragraph 3 of GATT 1994 on 20 December 1994.
Given that the purpose of this note is to list the waivers adopted under Article IX of the WTO
Agreement and provide information on procedures used in  reaching agreement on their adoption, the application
of this exemption which is part of the WTO Agreement is not examined in this note.  However, furtherinformation on the US invocation of this exemption can be found, inter alia , in General Council working papers
WT/GC/W/228 and 397.  The review foreseen in paragraph 3 was most recently on the agenda of the General
Council at its meeting in July 2002;  see document WT/GC/M/75, paras 16-21.
4 Least-Developed Country Members – Obligations under Article 70.9 of the TRIPS Agreement with
respect to Pharmaceutical Products;  adopted on 8 July 2002, document WT/L/478.IP/C/W/387
Page 3
II. PROCEDURES USED IN REACHING AGREEMENT IN THE ADOPTION OF
WAIVERS
7. Article IX:3 of the WTO Agreement provides the Ministerial Conference/General Council5
with authority to waive an obligation imposed on a Member by the WTO Agreement or any of the
Multilateral Trade Agreements, including the TRIPS Agreement.  The MinisterialConference/General Council may exercise this authority "in exceptional circumstances".  Article IX:4
provides that a decision by the Ministerial Conference/General Council granting a waiver shall state
the exceptional circumstances justifying the decision, the terms and conditions governing the
application of the waiver, and the date on which the waiver shall terminate.  These and other relevant
provisions of the WTO Agreement are reproduced in Annex 3 to this document.
- Procedures at the level of the relevant sectoral Council
8. In accordance with Article IX:3(b), a Member wishing to have any of its obligations waived
must first submit a request for a waiver to the Council overseeing the relevant agreement.  In practice,
most waivers have been requested by individual Members, but there have been cases where the
request for a waiver intended to apply to a number of Members has been inferred from the need for
such a waiver that had come up in the work of the relevant Council.6  To date, all requests for waivers
or their extensions have gone through the Council for Trade in Goods ("the CTG"), except for the one
waiver concerning Article 70.9 of the TRIPS Agreement.
9. The Understanding in Respect of Waivers of Obligations under the General Agreement on
Tariffs and Trade 1994, which forms part of GATT 1994,7 specifies that a request for a waiver or for
an extension of an existing waiver must describe the measures which the Member proposes to take,
the specific policy objectives which the Member seeks to pursue and the reasons which prevent theMember from achieving its policy objectives by measures consistent with its obligations under GATT
1994.  Annex 4 to this note contains the full text of this Understanding.
10. Article IX:3(b) provides that, after receiving a request for a waiver, the relevant sectoral
Council must consider it during a time-period which shall not exceed 90 days.  At the end of this
time-period, it has to submit a report to the Ministeria l Conference/General Counc il  (Article IX:3(b)).
In practice, once the relevant Council has approved th e waiver and agreed to forward it to the General
Council, the Chair of the relevant Council gives a brief oral report at the meeting of the General
Council where the adoption of the draft waiver approved by the sectoral Council is on the agenda.8
                                                     
5 Article IV:1 of the WTO Agreement provides that the Ministerial Conference has the authority to take
decisions on all matters under any of the Multilateral Trade Agreements, if so requested by a Member, inaccordance with the specific requirements for decision-making in the WTO Agreement and in the relevant
Multilateral Trade Agreement.  In the intervals between meetings of the Ministerial Conference, its functions are
conducted by the General Council (Article IV:2).  Given this, we refer to the Ministerial Conference/GeneralCouncil in this note where appropriate.
6 See the collective waivers on Preferential Tariff Treatment for Least-Developed Countries (adopted
on 15 June 1999, document WT/L/304), the Introduction of Harmonized System 2002 Changes into WTOSchedules of Tariff Concessions (adopted on 13 May 2002, document WT/L/469) and Least-Developed Country
Members – Obligations under Article 70.9 of the TRIPS Agreement with respect to Pharmaceutical Products
(adopted on 8 July 2002, document WT/L/478).  For more information on these waivers, see Annex 6 to this
note.
7 See paragraph 1(c)(v) of GATT 1994.
8 The Guiding Principles to be followed in considering applications for waivers, adopted on
1 November 1956 (BISD 5S/25), are also referred to in the preambles of a number of WTO waiver decisions.
(See also Article XVI:1 of the WTO Agreement for the relevance of GATT practice.)  These Guiding Principles
provide, inter alia , that the applicant give full consideration to representations made to it by other Members and
engage in consultations with them.  The decision-making body, when examining an application, should givecareful consideration to any representa tions that such consultations had proved unsatisfactory, and in generalIP/C/W/387
Page 4
11. As already mentioned above, all except one of the waivers have gone through the CTG.  The
CTG has spent relatively little time considering mo st waiver requests before approving them and
forwarding them to the General Council, given that  they have already been subject to consultations
among interested delegations or, in case of requests relating to the Harmonized System, have already
been dealt with by the Committee on Market Access.
12. The practice in regard to waiver requests re lating to the Harmonized System is that such
requests are initially dealt with by the Committee on Market Access, which then forwards them to the
CTG.9  Individual waiver requests relating to the Harmonized System or requests to be covered by the
collective waivers concerning the HS96 and HS2002 changes have been initially handled as routine
matters following standard formats.  Such waivers are typically granted for about six months.  The
same is true of the frequent extensions of these waivers.  However, there have been instances where it
has been more difficult to reach agreement on a request for a further extension of a waiver that hadalready been extended many times.
10
13. In regard to other waiver requests, the time taken to consider a request and how to report to
the General Council depends on the substantive difficulty of the request rather than on the procedures
applied to its consideration.  Some of them have been adopted rapidly and with relatively little
discussion in the CTG, but others have proved to be more difficult.  For example, a request for awaiver for the ACP-EC Partnership Agreement was first discussed in the CTG on 5 April 2000.  After
lengthy consultations,
11 the CTG held a special meeting in Doha on 14 November 2001 and agreed to
forward the request to the Ministerial Conference,12 which adopted the relevant waivers at its meeting
held on the same day.13  At present, consultations are being conducted under the auspices of the CTG
on a request for a waiver on the New EC Special Tariff Arrangements to Combat Drug Productionand Trafficking.
14  This request was on the agenda of the General Council at its meeting of 8 and
31 July 2002, but the General Council agreed to revert to the matter once the CTG had submitted its
report pursuant to Article IX:3(b).15
                                                                                                                                                                    
should not grant an application in cases where it is not satisfied that the legitimate interests of other Members
are adequately safeguarded.
9 For more information, see Annex 6 to this note.
10 Under GATT and the WTO, some individual waivers have been extended up to 25 times.  For more
information, see the latest periodic report of the Committee on Market Access to the CTG in document
G/MA/116, dated 26 September 2002.  As noted above, waivers concerning the Harmonized System are
typically granted for some six months.  A decision to extend such a waiver is taken in accordance with thedecision-making procedures, that normally require consensus ( see the Decision-Making Procedures under
Articles IX and XII of the WTO Agreement, document WT/L/93, reproduced in Annex 5 to this note).  This
situation should be distinguished from the review of multi-year waivers by the General Council, where the
continuation of a multiyear waiver for the original duration does not require any positive decision by the
Council;  rather, the Council would need to take a positive decision if it wished to terminate a multi-year waiverin advance of the original expiration date.  See paragraphs 22-25 below.
11 The CTG established, at its meeting of 5 October 2001, a working party to examine, under the
relevant provisions of the WTO, the requests for a waiver concerning the new ACP/EC Partnership Agreementand to report to the CTG.  At the meeting of the CTG, held in Doha on 14 November 2001, the Chair of the
working party reported, inter alia , that the Working Party had helped identify possible elements that could form
the basis of a solution which would be acceptable to all co ncerned parties.  She said that she had been informed
by the concerned delegations that it had been possible, in further consultations, to build on the work of theWorking Party by developing those elements that could form the basis of agreement on the waiver requests inquestion.  Consequently, she signalled consensus among the members of the Working Party on the text of thedraft waiver decisions.
12 Document G/C/M/57, para.11.
13 WT/MIN(01)/SR/9, p. 2.  The waivers can be found in documents WT/L/436 and WT/L/437.
14 Document G/C/W/328 and Add.1.
15 WT/GC/M/75, paragraph 119.IP/C/W/387
Page 5
- Procedures at the level of the Mi nisterial Conference/General Council
14. After the relevant Council has considered a draf t waiver, it forwards it to the Ministerial
Conference/General Council for consideration pu rsuant to the practice of decision-making by
consensus (Article IX.1).  If the Ministerial C onference/General Council does not reach consensus,
Article IX provides that any decision to grant a waiver shall be taken by three-fourths of theMembers.  However, to date, all decisions in the WTO concerning waivers or any other matters have
been agreed by consensus.  The practice has been that where a WTO body has failed to reach
consensus on a matter, it has held further consultations with a view to seeking consensus.
15. The only time that the voting procedure has been used was when the General Council, at its
meeting of 31 July 1995, agreed to submit the draft decisions on the accession of Ecuador and on
certain draft waivers to a vote by postal ballot.
16  However, this was done after consensus had been
reached on the contents of these decisions.  This way of proceeding reflected the old practice followedin GATT.  However, the submission to postal ballot of a decision on the contents of which consensus
had already been reached was considered unnecessarily complicated and time-consuming.  Thus, the
General Council decided to streamline its working practice.  At its meeting of 15 November 1995, it
agreed on a statement on the procedures regarding decision-making by the General Council under
Articles IX and XII of the WTO Agreement.
17  These procedures make it clear that the General
Council will seek a decision on a matter related to a request for a waiver or an accession by consensus
and that, except as otherwise provided, a vote will be taken only where the matter cannot be decided
by consensus.  The text of this document is reproduced in Annex 5 to this note.  The practice is that
once the relevant sectoral Council has approved a draft waiver by consensus, the General Counciladopts it by consensus without further substantive discussion.
- Procedures relating to the application of certain collective waivers
16. The above discussion on the procedures that have been used to reach agreement on waivers
focuses on the typical situation were a request for a waiver is made by an individual Member, and the
duration and the terms of the waiver are tailored to ta ke into account the specific circumstances of the
applicant.  However, sometimes individual waivers are granted following more standard terms thathave been negotiated to apply to more than one Member.
18  Furthermore, a number of collective
waivers have been granted, two concerning the Harm onized System, one concerning preferential tariff
treatment of least-developed country Members, and one concerning the TRIPS Agreement.  Below we
will examine briefly the procedures for individual Members to avail themselves of these collective
waivers.  Further information on the background of these waivers and their operation is contained in
Annex 6 to this note.
17. Given that the changes introduced to the Harmonized System on 1 January 1996 ("HS96")
would entail numerous modifications to WTO schedules, the General Council for the first time in the
WTO granted a collective waiver for several Members for the purpose of enabling them to implement
the HS96 changes to their nomenclature.  Members which had requested to be covered by the waiver
were listed in an annex to the waiver decision.  The terms of the waiver required those Members to
submit certain information by given deadlines.  This collective waiver, originally granted for about sixmonths, was extended a number of times for Members that had requested more time.  In 2001, the
General Council extended it once more but decided that no further extension of it would be granted on
a collective basis;  however, this was not to preclude Members from requesting waivers on an
individual basis.
                                                     
16 Document WT/GC/M/6, pp. 2-5.
17 WT/GC/M/8, pp. 5 and 6, subsequently circulated in document WT/L/93.
18 For example, it was understood that Members that did not submit the required documentation in time
to be included in the annex to the HS2002 collective waiver were to be given treatment less favourable thanMembers that submitted documentation in time.  For more information, see Annex 6 to this note.IP/C/W/387
Page 6
18. Given that the introduction of further Harmonized System changes on 1 January 2002
("HS2002") would again entail numerous modifications to WTO schedules, the General Council
adopted, on 13 May 2002, another collective waiver enabling Members to implement the HS2002
changes.  An Annex to the decision lists those Members which had requested to be covered by the
waiver.  It also specifies that Members not having submitted information required under the terms ofthe waiver are not to be considered part of the A nnex at the time of adoption of the waiver decision by
the General Council.  However, it was agreed that individual waiver requests from Members that did
not submit the required documentation in time to be included in the Annex were to be given treatment
no less favourable than that accorded to Members that submitted documentation in time.
19
19. A waiver on Preferential Tariff Treatment  for Least-Developed Countries, adopted on
15 June 1999, waives the provisions of Article I:1 of GATT 1994 until 30 June 2009 to the extent
necessary to allow developing country Members to provide preferential tariff treatment to products of
least-developed countries, without be ing required to extend the same tariff rates to like products of any
other Member.  Developing country Me mbers wishing to take actions pursuant to the waiver must notify
to the CTG the list of all products of least-develope d countries for which preferential tariff treatment is
to be provided on a generalized, non-r eciprocal and non-discriminatory basis  and the preference margins
to be accorded.  Subsequent modifications to the preferences must be notified similarly.  The 1999
waiver can be characterized as a "blanket" waiver available for any developing country Member who
wishes to provide preferential market access to LDCs;  the terms of the waiver simply require that it
first notify the intended measures to the CTG.
20. A waiver on Least-Developed Country Member s' Obligations under Article 70.9 of the
TRIPS Agreement with respect to Pharmaceutical Products, adopted on 8 July 2002, waivesleast-developed country Members' obligations under Article 70.9 of the TRIPS Agreement in respect
of pharmaceutical products until 1 January 2016.  A least-developed country Member wishing to avail
itself of this waiver is not required to notify its invocation of the waiver to the WTO or submit any
information in this regard.
- Other procedural terms and conditions governing the application of waivers
21. In general, the terms and conditions governing the application of waivers vary depending on
the substance of the waiver.  However, there are some procedural terms and conditions that can be
found in several waivers, such as those relating to reviews of multi-year waivers or consultation
among affected Members.
20  Many procedural terms are aimed at providing transparency in regard to
the application of the waiver, and they often include requirements concerning notifications to the
WTO.  For example, a decision on El Salvador – Waiver on Minimum Values in regard to the
Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 requiresEl Salvador to publish and make publicly available certain information within a given deadline;  it
also requires El Salvador to publish and make  publicly available any changes relating to that
information 60 days before implementing such changes.
21  Under the terms of the waiver on United
States – Former Trust Territory of the Pacific Islands, the United States is required to submit to the
General Council an annual report on the operation of the preferences provided under the waiver with aview to facilitating the annual review provided for in Article IX:4 of the WTO Agreement.
22
                                                     
19 See the minutes of the meeting of 15 March 2002 of the Committee on Market Access in document
G/MA/M/31, para. 4.4.
20 See paragraphs 23 and 26 below, respectively.
21 Paras 3 and 4 of document WT/L/476, adopted 8 July 2002.
22 Para 3 of document WT/L/183, adopted 14 October 1996.  The most recent report can be found in
document WT/L/484, dated 4 October 2002.IP/C/W/387
Page 7
III. REVIEW OF MULTI-YEAR WAIVERS
22. As noted above, most waivers have been granted for a period of one year or less.  As regards a
waiver granted for a period of more than one year, Article IX:4 of the WTO Agreement requires the
Ministerial Conference/General Counc il to review it not later than one year after it was granted, and
thereafter annually until the waiver terminates.  In each review, the Ministerial Conference/GeneralCouncil shall examine whether the exceptional circumstances justifying the waiver still exist and
whether the terms and conditions attached to the waiver have been met.
23. In the past, the General Council has reviewed such multi-year waivers at its meetings in
October, November and December.  Annex 2 lists the multi-year waivers reviewed or expected to be
reviewed by the General Council at its meetings in October and December 2002.  The recitals of suchwaivers usually refer to, inter alia , Article IX:4 of the WTO, and many of them include further text on
the review.
23
24. The reviews under Article IX:4 that have taken place so far have been relatively brief and no
delegations have questioned the waivers under review.  Article IX:4 provides that the Ministerial
Conference/General Council, on the basis of the annual review, may extend, modify or terminate the
waiver.  The practice has been that it has not been considered necessary that the General Council take
any positive decision to allow the waivers to continue  to operate for the term set out in the waiver.
However, if the General Council were, as a result of the annual review, to decide to modify or
terminate the multi-year waiver under review, or extend it beyond the term set out in the waiver itself,
it would need to take a decision to that effect in  accordance with Article IX of the WTO Agreement.
Such a decision would normally require consensus.  However, to date, no proposals have been made
regarding the extension, modification or termination of multi-year waivers during their review.
25. Paragraph 2 of the waiver on Least-Developed Country Members' Obligations under
Article 70.9 of the TRIPS Agreement with respect to Pharmaceutical Products provides that "[t]his
waiver shall be reviewed by the Ministerial Conference not later than one year after it is granted, and
thereafter annually until the waiver terminates, in accordance with the provisions of paragraph 4 of
Article IX of the WTO Agreement".  In connection with the approval of the draft waiver at themeeting of the TRIPS Council in June 2002, the Chair of the Council noted that it was understood, in
regard to the review foreseen in paragraph 2 of the draft waiver, that the exceptional circumstances
                                                     
23 Following are a few examples of typical paragraphs for an annual review:
- "The Government of Canada will submit to the General Council an annual report on the
implementation of the trade-related provisions of CARIBCAN with a view to facilitating theannual review provided for in paragraph 4 of Article IX of the WTO Agreement.  TheGovernment of Canada shall promptly notify Members of any changes in the legislation
covered by this waiver and any trade-related measure taken under CARIBCAN, in particular
any modifications in the status of eligible im ports and the duty-free treatment thereof, and
shall furnish them with all the information they may deem appropriate relating to such action."(Canada – CARIBCAN (WT/L/185)).
- "The European Community shall report annually to the General Council on the preferences
and duty-free treatment afforded to products from the countries listed in paragraph 1,
including the extent to which such preferences and duty-free treatment is different from the
Community's MFN and GSP concessions, with a view to facilitating the annual reviewprovided for in paragraph 4 of Article IX of the WTO Agreement."  (EC – Western Balkans(WT/L/380)).
- "The Government of Cuba will submit to the General Council an annual report on the
implementation of this waiver with a view to facilitating the annual review provided for inparagraph 4 of Article IX of the WTO Agreement."  (Cuba – Article XV:6 of GATT 1994(WT/L/440)).IP/C/W/387
Page 8
justifying this waiver would continue to exist for least-developed country Members until its expiry
date of 2016.24, 25
IV. DISPUTE SETTLEMENT PRACTICE IN RELATION TO WAIVERS
26. Some waiver decisions include special provisions for consultation among affected Members.
For example, paragraph 5 of the waiver on Preferential Tariff Treatment for Least-DevelopedCountries
26 provides that any Member providing prefer ential tariff treatment pursuant to the waiver
shall, upon request, promptly enter into consultations with any interested Memb er with respect to any
difficulty or any matter that may arise as a result of the implementation of programmes authorized by
the waiver.  Where a Member considers that any benefit accruing to it under GATT 1994 may be or is
being impaired unduly as a result of such impl ementation, such consultation shall examine the
possibility of action for a satisfactory adjustment of the matter.
27. Disputes concerning waivers that have been granted may also be resolved under the WTO
dispute settlement system.27  In this regard it should be noted that a waiver waives a specific
obligation imposed on a Member by WTO agreements (Article IX.3).  Therefore, a complaint that
would allege a violation of an obligation that has been waived would not be successful.  However,
disputes can arise as to whether a particular measure falls within the scope of a waiver, or whether a
Member has complied with the terms and conditions on which a waiver was granted.
28. A 1990 GATT panel report on US – Sugar Waiver  examined quantitative restrictions on
sugar-containing products, which it found were inconsistent with the obligations of the United States
under Article XI:1 of GATT 1947 but in conformity with the terms of a decision of the
CONTRACTING PARTIES waiving that obligation in accordance with GATT Article XXV:5.  The
panel noted the following:
"Since both Article XI:1 and Article XXV:5 form part of the General Agreement, the
imposition of the restrictions in conformity with the Waiver cannot constitute a
'failure of [the United States] to carry out its obligations under this Agreement' within
the meaning of Article XXIII:1(a)."28
29. Non-violation and situation complaints do not require a violation of an obligation of an
agreement.  Accordingly, a waiver of an obligation does not affect the availability of these types of
complaints.  The panel report on US – Sugar Waiver  continued:
"[…] the fact that the restrictions found to be inconsistent with Article IX:1 conform
to the terms of the Waiver does not prevent the EEC from bringing a complaint under
Article XXIII:1(b) of the General Agreement but it is up to the EEC to demonstrate
                                                     
24 Paragraph 215 of document IP/C/M/36.
25 A waiver on Thailand – Extension of the Transition Period for the Elimination of Trade-Related
Investment Measures Notified under Article 5.1 of th e Agreement on Trade-Related Investment Measures,
paragraph 5, provides that "[t]he periodic reports under paragraph 3(c) and the consultations under paragraph 4
[of the waiver] shall be deemed to fulfill the review requirements of Article IX:4 of the WTO Agreement".Document WT/L/410.
26 Document WT/L/304.
27 A GATT panel report on the Uruguayan Recourse to Article XXIII  noted that "the status of a
measure (that is, whether or not it is consistent with GA TT) is not to be affected by a waiver decision taken
subsequently.  In fact, Decisions taken under Article XXV:5 granting waivers from GATT obligations have
normally expressly provided for the continued validity of the procedures of Article XXIII in respect of the
otherwise 'waived' obligations […]."  Adopted 16 November 1962, BISD 11S/95, 100, footnote 1.
28 Adopted 7 November 1990, BISD 37S/228, para 5.18.IP/C/W/387
Page 9
that a nullification or impairment of benefits accruing to it under the General
Agreement has resulted from these restrictions."29
30. These principles have been codified, as regards waivers granted under GATT 1994, in the
Understanding in respect of Waivers of Obligations under the General Agreement on Tariffs and
Trade 1994.  Its paragraph 3 reads as follows:
"Any Member considering that a benefit accruing to it under GATT 1994 is being
nullified or impaired as a result of:
(a) the failure of the Member to whom a waiver was granted to observe the terms
or conditions of the waiver, or
(b) the application of a measure consistent with the terms and conditions of the
waiver
may invoke the provisions of Article XXIII of GATT 1994 as elaborated and applied
by the Dispute Settlement Understanding."
31. The concept reflected in paragraph 3(b) of this Understanding has to be considered as a
reference to non-violation and situation complaints under Article XXIII:1(b) and (c).  To date, there
have been no cases in the WTO falling under paragraph 3(b).
32. The principles contained in the Understanding are also reflected in the terms of some waivers.
For example, the waiver for South Africa of Articl e I:4 of GATT 1994 provides that "[t]his Decision
does not affect Members' rights as set forth in the Understanding in respect of Waivers of Obligations
under GATT 1994".30  Some waivers contain other language to the same effect.  The waiver for the
European Communities in respect of the ACP-EC Partnership Agreement31 provides that "[t]his
waiver shall not preclude the right of affected members to have recourse to Articles XXII and XXIIIof the General Agreement".
33. A waiver waives a specific obligation imposed on a Member by the WTO agreements.  It
follows that a dispute can arise concerning a measure that does not fall within the scope of the waiver.
This is illustrated by the only dispute settlement case  in the WTO that has concerned waivers.  It dealt
with a situation falling under paragraph 3(a) of  the Understanding in respect of Waivers of
Obligations under GATT 1994.  The issue was whether a waiver relating to Article I of GATT 1994
also justified deviation from Article XIII.  In EC – Bananas III , the European Communities argued
that a certain waiver relating to its import regime for bananas
32 should be interpreted so as to justify a
deviation from Article XIII although it waived only compliance with Article I in its terms.  The
Appellate Body rejected the argument that the waiver justified a deviation from Article XIII even to
the extent that the scope of Article XIII is identical  with that of Article I.  In support of its conclusion,
the Appellate Body observed that
"[a]lthough the WTO Agreement  does not provide any specific rules on the
interpretation of waivers, Article IX of the WTO Agreement  and the Understanding in
                                                     
29 Para 5.20.  The panel further examined the implication of the note in the report of the Uruguayan
Recourse to Article XXIII  cited in footnote 27 above and noted that "the footnote can be understood to suggest
that a decision by the CONTRACTING PARTIES to wa ive an obligation for a particular measure does not
constitute a ruling by the CONTRACTING PARTIES that the measure is inconsistent with the GeneralAgreement" (para 5.19).  For more information, see the GATT Analytical Index, pages 709-712 and 886-887.
30 Adopted on 14 October 1996.  WT/L/188, para 4.
31 Adopted on 14 November 2001.  WT/L/436, para 6.
32 The Fourth ACP-EC Convention of Lomé – Extension of Waiver;  adopted on 14 October 1996,
document WT/L/186.IP/C/W/387
Page 10
Respect of Waivers of Obligations under the General Agreement on Tariffs and
Trade 1994 , which provide requirements for granting and renewing waivers, stress
the exceptional nature of waivers and subject waivers to strict disciplines.  Thus,
waivers should be interpreted with great care."33
34. In view of the above considerations, it can be concluded that complaints of the type set out in
Article XXIII:1(a) of GATT 1994 – so-called "violation complaints" – cannot succeed under the DSU
in respect of obligations that have been waived and in respect of measures that comply with the terms
and conditions of a waiver.  However, violation complaints can succeed under the DSU despite a
waiver in respect of measures that are inconsistent with obligations that have not been waived, and in
respect of measures that do not comply with the terms and conditions of the waiver.  Moreover,
complaints of the type set out in Article XXIII:1(b) and (c) – so-called "non-violation and situation
complaints" – can succeed in respect of measur es irrespective of the obligations waived and
conditions attached.  The extent to which non-violation and situation complaints will be available in
the area of TRIPS is currently being examined by the TRIPS Council.34
                                                     
33 Appellate Body Report on EC – Bananas III , document WT/DS27/AB/R, para 185.
34 Paragraph 11.1 of the Doha Decision on Implementation-Related Issues and Concerns
(WT/MIN(01)/17) directed the TRIPS Council "to continue its examination of the scope and modalities for
complaints of the types provided for under subparagraphs 1(b) and 1(c) of Article XXIII of GATT 1994 andmake recommendations to the Fifth Session of the Mini sterial Conference".  Furthermore, the Ministers agreed
that, in the meantime, Members will not initiate such complaints under the TRIPS Agreement.IP/C/W/387
Page 11
ANNEX 1
WAIVERS UNDER ARTICLE IX OF THE WTO AGREEMENT
2002 (as at 15 October)
Country Type Decision of Expiry Document
Nicaragua Implementation of the Harmonized
Commodity Description and Coding
System - Extensions of Time-Limit13 May 2002 31 October 2002 WT/L/467
Sri Lanka Implementation of the Harmonized
Commodity Description and Coding
System - Extensions of Time-Limit13 May 2002
15 October 200231 October 2002
30 April 2003WT/L/468
WT/L/492
Zambia Renegotiation of Schedule - Extensions of
Time-Limit13 May 2002
15 October 200231 October 2002
30 April 2003WT/L/470
WT/L/493
Argentina Introduction of Harmonized System 1996
changes into WTO Schedules of Tariff
Concessions - Extension of Time-Limit13 May 2002
15 October 200231 October 2002
30 April 2003WT/L/464
WT/L/485
Brazil Introduction of Harmonized System 1996
changes into WTO Schedules of TariffConcessions - Extension of Time-Limit13 May 2002 31 July 2002 WT/L/454
El Salvador Introduction of Harmonized System 1996
changes into WTO Schedules of TariffConcessions - Extension of Time-Limit13 May 2002
15 October 200231 October 2002
30 April 2003WT/L/456
WT/L/486
Israel Introduction of Harmonized System 1996
changes into WTO Schedules of Tariff
Concessions - Extension of Time-Limit13 May 2002
15 October 200231 October 2002
30 April 2003WT/L/455
WT/L/487
Malaysia Introduction of Harmonized System 1996
changes into WTO Schedules of Tariff
Concessions - Extension of Time-Limit13 May 2002 30 April 2003 WT/L/465
Morocco Introduction of Harmonized System 1996
changes into WTO Schedules of TariffConcessions - Extension of Time-Limit13 May 2002
15 October 200231 October 2002
30 April 2003WT/L/462
WT/L/488
Norway Introduction of Harmonized System 1996
changes into WTO Schedules of TariffConcessions - Extension of Time-Limit13 May 2002
15 October 200231 October 2002
30 April 2003WT/L/459
WT/L/489
Pakistan Introduction of Harmonized System 1996
changes into WTO Schedules of Tariff
Concessions - Extension of Time-Limit13 May 2002 30 April 2003 WT/L/466
Panama Introduction of Harmonized System 1996
changes into WTO Schedules of TariffConcessions - Extension of Time-Limit13 May 2002 30 April 2003 WT/L/458
Paraguay Introduction of Harmonized System 1996
changes into WTO Schedules of TariffConcessions - Extension of Time-Limit13 May 2002 30 April 2003 WT/L/461
Switzerland Introduction of Harmonized System 1996
changes into WTO Schedules of TariffConcessions - Extension of Time-Limit13 May 2002 31 October 2002 WT/L/460
Thailand Introduction of Harmonized System 1996
changes into WTO Schedules of Tariff
Concessions - Extension of Time-Limit13 May 2002
15 October 200231 October 2002
30 April 2003WT/L/463
WT/L/490
Venezuela Introduction of Harmonized System 1996
changes into WTO Schedules of TariffConcessions - Extension of Time-Limit13 May 2002
15 October 200231 October 2002
30 April 2003WT/L/457
WT/L/491IP/C/W/387
Page 12
Country Type Decision of Expiry Document
Argentina,
Australia,
Bulgaria, Canada,
China, Colombia,Croatia, CzechRepublic, Estonia,EuropeanCommunities;
Hong Kong,
China;  Hungary,Iceland, India,Korea, Latvia,Lithuania,Malaysia ,
Mexico, New
Zealand, Norway,Romania,Singapore, SlovakRepublic,
Slovenia,
Switzerland,Thailand, Turkey,United States,UruguayIntroduction of Harmonized System 2002
changes into WTO Schedules of Tariff
Concessions13 May 2002 1 January 2003
29 April 2003 for
Argentina
1 April 2003 for
Mexico
1 April 2003 for
New Zealand for
Chapter 48WT/L/469
Romania Introduction of Harmonized System 2002
changes into WTO Schedules of Tariff
Concessions8 July 2002 1 January 2003 WT/L/477
Côte d'Ivoire Agreement on Implementation of Article
VII of GATT 19948 July 2002 1 January 2003 WT/L/475
El Salvador Agreement on Implementation of Article
VII of GATT 199413 May 2002
8 July 20027 March 2002
• 7 March 2003
for goods listed inAnnex 1
• 7 March 2005
for goods listed inAnnex 2WT/L/453
WT/L/476
Least-Developed
Country MembersArticle 70.9 of the TRIPS Agreement with
respect to pharmaceutical products8 July 2002 1 January 2016 WT/L/478IP/C/W/387
Page 13
2001
Country Type Decision of Expiry Document
Nicaragua Implementation of the Harmonized
Commodity Description and Coding
System - Extensions of Time-Limit8 May 2001
31 October 200131 October 2001
30 April 2002WT/L/397
WT/L/426
Sri Lanka Implementation of the Harmonized
Commodity Description and Coding
System - Extensions of Time-Limit8 May 2001
31 October 200131 October 2001
30 April 2002WT/L/398
WT/L/427
Zambia Renegotiation of Schedule –
Extensions of Time-Limit8 May 2001
31 October 200131 October 2001
30 April 2002WT/L/399
WT/L/428
Cameroon Agreement on Implementation of
Article VII of GATT 19948 May 2001 1 July 2001 WT/L/396
Argentina, Brazil,
Egypt, El Salvador,
Guatemala, Iceland,
Israel, Malaysia,Morocco, NewZealand, Norway,Pakistan, Panama,Paraguay, South
Africa, Switzerland,
Thailand, Uruguay,VenezuelaIntroduction of Harmonized System
changes into WTO Schedules of Tariff
Concessions on 1 January 1996 -
Extension of Time-Limit8 May 2001 30 April 2002 WT/L/400
Madagascar Agreement on Implementation of
Article VII of GATT 199418 July 2001 17 November 2003 WT/L/408
Switzerland Preferences for Albania and Bosnia-
Herzegovina18 July 2001 31 March 2004 WT/L/406
Thailand Agreement on Trade-Related
Investment Measures31 July 2001 31 December 2001 WT/L/410
EC Transitional Regime for the EC
Autonomous Tariff Rate Quotas on
Imports of Bananas14 November 2001 31 December 2005 WT/L/437
EC The ACP-EC Partnership Agreement 14 November 2001 31 December 2007 WT/L/436
Colombia Article 5.2 of the Agreement on Trade-
Related  Investment Measures20 December 2001 31 December 2003 WT/L/441
Cuba Article XV:6 of GATT 1994-
Extension of Time-Limit20 December 2001 31 December 2006 WT/L/440
Dominican Republic Minimum values under the Agreement
on Implementation of Article VII ofGATT 199420 December 2001 1 July 2003 WT/L/442
Haiti Agreement on Implementation of
Article VII of GATT 199420 December 2001 30 January 2003 WT/L/439IP/C/W/387
Page 14
2000
Country Type Decision of Expiry Document
Nicaragua Implementation of the Harmonized
Commodity Description and CodingSystem - Extensions of Time-Limit3 May 2000
8 December 200031 October 2000
30 April 2001WT/L/353
WT/L/376
Sri Lanka Implementation of the Harmonized
Commodity Description and CodingSystem - Extensions of Time-Limit3 May 2000
8 December 200031 October 2000
30 April 2001WT/L/352
WT/L/377
Zambia Renegotiation of Schedule - Extensions
of Time-Limit3 May 2000
8 December 200031 October 2000
30 April 2001WT/L/350
WT/L/378
Argentina, Bolivia,Brazil, BruneiDarussalam, Bulgaria,Costa Rica, Egypt, ElSalvador, Honduras,Guatemala, Iceland,
Israel, Maldives, Mexico,
Morocco, New Zealand,Norway, Pakistan,Paraguay, Switzerland,Uruguay, VenezuelaIntroduction of Harmonized System
changes into WTO Schedules of TariffConcessions on 1 January 1996 -Extension of Time-Limit3 May 2000 31 October 2000 WT/L/351
Argentina, Brazil, Brunei
Darussalam, Bulgaria,
Egypt, El Salvador,
Guatemala, Honduras,Iceland, Israel, Malaysia,Mexico, Morocco, NewZealand, Norway,Pakistan, Panama,
Paraguay, Switzerland,
Thailand, Uruguay,VenezuelaIntroduction of Harmonized System
changes into WTO Schedules of Tariff
Concessions on 1 January 1996 -
Extension of Time-Limit8 December 2000 30 April 2001 WT/L/379
Uruguay Derogation on minimum values 3 May 2000 1 January 2001 WT/L/354
EC/France Trading arrangements with Morocco
Extension of waiver17 July 2000 Extended 35WT/L/361
EC Autonomous preferential treatment to the
countries of the Western Balkans8 December 2000 31 December 2006 WT/L/380
and Corr.1
Turkey Preferential treatment for Bosnia-
Herzegovina8 December 2000 31 December 2006 WT/L/381
                                                     
35 Until the entry into force of the Euro-Mediterranean Agreement.IP/C/W/387
Page 15
1999
Country Type Decision of Expiry Document
Bangladesh Implementation of the Harmonized
Commodity Description and CodingSystem - Extensions of Time-Limit15 June 1999
4 November 199931 October 1999
30 April 2000WT/L/299
WT/L/336
Nicaragua Implementation of the Harmonized
Commodity Description and Coding
System - Extensions of Time-Limit15 June 1999
4 November 199931 October 1999
30 April 2000WT/L/300
WT/L/334
Sri Lanka Implementation of the Harmonized
Commodity Description and CodingSystem - Extensions of Time-Limit15 June 1999
4 November 199931 October 1999
30 April 2000WT/L/301
WT/L/335
Zambia Renegotiation of Schedule - Extensions
of Time-Limit15 June 1999
4 November 199931 October 1999
30 April 2000WT/L/302
WT/L/337
Maldives Introduction of Harmonized System
changes into WTO Schedules of TariffConcessions on 1 January 199615 June 1999 31 October 1999 WT/L/303
Argentina, Australia,
Bolivia, Brazil,Brunei Darussalam,Bulgaria, Costa Rica,Egypt, El Salvador,
Honduras, Iceland,
India, Israel, Malaysia,Malta, Mexico, Morocco,New Zealand, Norway,Pakistan, Panama,Paraguay, Slovenia,
South Africa,
Switzerland, Thailand,Tunisia, United States,Uruguay, VenezuelaIntroduction of Harmonized System
changes into WTO Schedules of TariffConcessions on 1 January 1996 -Extension of Time-Limit15 June 1999 31 October 1999 WT/L/303
Argentina, Australia,
Bolivia, Brazil,Brunei Darussalam,
Bulgaria, Costa Rica,
Egypt, El Salvador,Honduras, Iceland,India, Israel, Malaysia,Maldives, Mexico,
Morocco, New Zealand,
Norway, Pakistan,Panama, Paraguay,Slovenia, Switzerland,Thailand, Tunisia,Uruguay, VenezuelaIntroduction of Harmonized System
changes into WTO Schedules of TariffConcessions on 1 January 1996 -
Extension of Time-Limit4 November 1999 30 April 2000 WT/L/338IP/C/W/387
Page 16
Country Type Decision of Expiry Document
Developing country
MembersPreferential Tariff Treatment For
Least-Developed Countries15 June 1999 30 June 2009 WT/L/304
Peru Agreement on Implementation of
Article VII of GATT 199415 June 1999 1 April 2000 WT/L/307IP/C/W/387
Page 17
1998
Country Type Decision of Expiry Document
Bangladesh Implementation of the Harmonized
Commodity Description and CodingSystem - Extensions of Time-Limit24 April 1998
14 October 199831 October 1998
30 April 1999WT/L/264
WT/L/277
Nicaragua Implementation of the Harmonized
Commodity Description and Coding
System - Extensions of Time-Limit24 April 1998
14 October 199831 October 1998
30 April 1999WT/L/265
WT/L/278
Sri Lanka Implementation of the Harmonized
Commodity Description and CodingSystem - Extensions of Time-Limit24 April 1998
14 October 199831 October 1998
30 April 1999WT/L/266
WT/L/279
Zambia Renegotiation of Schedule - Extensions
of Time-Limit24 April 1998
14 October 199831 October 1998
30 April 1999WT/L/267
WT/L/280
Bolivia, Guatemala,
Morocco, PanamaIntroduction of Harmonized System
changes into WTO Schedules of TariffConcessions on 1 January 199624 April 1998 31 October 1998 WT/L/268
Argentina, Australia,
Brazil, BruneiDarussalam, Bulgaria,Canada, Costa Rica,Czech Republic, Egypt,
El Salvador, European
Communities,Honduras, Hungary,Iceland, India,Indonesia, Israel,Korea, Malaysia,
Malta, Mexico,
Norway, Pakistan,Paraguay, Philippines,Slovak Republic,Slovenia, South Africa,Switzerland, Thailand,
Tunisia, Turkey,
United States,Uruguay, Venezuela,ZimbabweIntroduction of Harmonized System
changes into WTO Schedules of TariffConcessions on 1 January 1996 -Extension of Time-Limit24 April 1998 31 October 1998 WT/L/268IP/C/W/387
Page 18
Country Type Decision of Expiry Document
Argentina, Australia,
Bolivia, Brazil, BruneiDarussalam, Bulgaria,
Canada, Costa Rica,
Czech Republic, Egypt,El Salvador,Guatemala, Honduras,Iceland, India,Indonesia, Israel,
Korea, Malaysia,
Malta, Mexico,Morocco, NewZealand, Norway,Pakistan, Panama,Paraguay, Philippines,
Slovak Republic,
Slovenia, South Africa,Switzerland, Thailand,Tunisia, United States,Uruguay, VenezuelaIntroduction of Harmonized System
changes into WTO Schedules of TariffConcessions on 1 January 1996 -
Extension of Time-Limit14 October 1998 30 April 1999 WT/L/281
France Trading Arrangements with Morocco -
Extension of waiver9 – 11 and 18
December 199831 December
199936WT/L/294
                                                     
36 Or upon entry into force of the Euro-Mediterra nean Agreement establishing an association between
the European Communities and their member States, of the one part, and the Kingdom of Morocco, of the otherpart, whichever the earlier.IP/C/W/387
Page 19
1997
Country Type Decision of Expiry Document
Bangladesh Implementation of the Harmonized
Commodity Description and CodingSystem - Extensions of Time-Limit24 April 1997
22 October 199731 October 1997
30 April 1998WT/L/209
WT/L/239
Bolivia Implementation of the Harmonized
Commodity Description of Coding
System - Extension of Time-Limit24 April 1997 31 October 1997 WT/L/212
Nicaragua Implementation of the Harmonized
Commodity Description and CodingSystem - Extensions of Time-Limit24 April 1997
22 October 199731 October 1997
30 April 1998WT/L/211
WT/L/240
Sri Lanka Implementation of the Harmonized
Commodity Description and CodingSystem - Extensions of Time-Limit16 July 1997
22 October 199731 October 1997
30 April 1998WT/L/224
WT/L/241
Zambia Renegotiation of Schedule - Extensions
of Time-Limit24 April 1997
22 October 199731 October 1997
30 April 1998WT/L/213
WT/L/242
Argentina, Australia,
Brazil, BruneiDarussalam, Canada,
Colombia, Costa Rica,
Cuba, Czech Republic,Egypt, El Salvador,EuropeanCommunities,
Honduras, Hungary,
Iceland, India,Indonesia, Israel,Korea, Malaysia,Mexico, Norway,Paraguay, Philippines,
Poland, Singapore,
Slovak Republic,Slovenia,South Africa,Switzerland, Thailand,Tunisia, Turkey,
United States,
Uruguay, Venezuela,ZimbabweIntroduction of Harmonized System
changes into WTO Schedules of TariffConcessions on 1 January 1996 -
Extension of Time-Limit24 April 1997 31 October 1997 WT/L/216
Pakistan, Romania Introduction of Harmonized System
changes into WTO Schedules of TariffConcessions on 1 January 199624 April 1997 31 October 1997 WT/L/216IP/C/W/387
Page 20
Country Type Decision of Expiry Document
Argentina, Australia,
Brazil,Brunei Darussalam,
Canada, Colombia,
Costa Rica,Czech Republic, Egypt,El Salvador,EuropeanCommunities,
Honduras, Hungary,
Iceland, India,Indonesia, Israel,Korea, Malaysia,Mexico, Norway,Pakistan, Paraguay,
Philippines, Poland,
Romania,Slovak Republic, Slovenia,South Africa,
Switzerland, Thailand,
Tunisia, Turkey,United States,Uruguay, Venezuela,ZimbabweIntroduction of Harmonized System
changes into WTO Schedules of TariffConcessions on 1 January 1996 -
Extension of Time-Limit22 October 1997 30 April 1998 WT/L/243
Bulgaria, Malta Introduction of Harmonized System
changes into WTO Schedules of Tariff
Concessions on 1 January 199622 October 1997 30 April 1998 WT/L/243
France Trading Arrangements with Morocco -
Extension of waiver10 December 1997 31 December 1998 WT/L/250
Hungary Agreement on Agriculture 22 October 1997 31 December 2001 WT/L/238IP/C/W/387
Page 21
1996
Country Type Decision of Expiry Document
Bangladesh Implementation of the Harmonized
Commodity Description and CodingSystem - Extension of Time-Limit18 July 1996 30 April 1997 WT/L/164
Bolivia Implementation of the Harmonized
Commodity Description of Coding
System- Extension of Time-Limit18 July 1996 30 April 1997 WT/L/165
Guatemala Implementation of the Harmonized
Commodity Description and CodingSystem - Extension of Time-Limit18 July 1996 30 April 1997 WT/L/172
Jamaica Implementation of the Harmonized
Commodity Description and Coding
System - Extension of Time-Limit18 July 1996 30 April 1997 WT/L/166
Morocco Implementation of the Harmonized
Commodity Description and CodingSystem - Extension of Time-Limit18 July 1996 30 April 1997 WT/L/167
Nicaragua Implementation of the Harmonized
Commodity Description and CodingSystem - Extension of Time-Limit18 July 1996 30 April 1997 WT/L/168
Sri Lanka Implementation of the Harmonized
Commodity Description and Coding
System - Extension of Time-Limit18 July 1996 30 April 1997 WT/L/170
Malawi Renegotiation of Schedule - Extension
of Time-Limit6 February 1996 30 June 1996 WT/L/131
Senegal Renegotiation of Schedule - Extension
of Time-Limit18 July 1996 30 April 1997 WT/L/169
Zambia Renegotiation of Schedule - Extension
of Time-Limit18 July 1996 30 April 1997 WT/L/171IP/C/W/387
Page 22
Country Type Decision of Expiry Document
Argentina, Australia,
Brazil,
Brunei Darussalam,
Canada, Colombia,Costa Rica, Cuba,Czech Republic, Egypt,El Salvador,
European
Communities,Honduras, Hungary,Iceland, India,Indonesia, Israel,Korea, Malaysia,
Mexico, Norway,
Paraguay, Philippines,Poland, Singapore,Slovak Republic,Slovenia, South Africa,Switzerland, Thailand,
Tunisia, Turkey,
United States,Uruguay, Venezuela,ZimbabweIntroduction of Harmonized System
changes into WTO Schedules of Tariff
Concessions on 1 January 1996 -
Extension of Time-Limit18 July 1996 30 April 1997 WT/L/173
Canada CARIBCAN - Extension of waiver
pursuant to paragraph 2 of the
Understanding in respect of waivers of
obligations under GATT 199414 October 1996 31 D ecember 2006 WT/L/185
Cuba Article XV:6 - Extension of waiver
pursuant to paragraph 2 of theUnderstanding in respect of waivers ofobligations under GATT 199414 October 1996 31 D ecember 2001 WT/L/182
European Communities Fourth ACP-EC Convention of Lomé -
Extension of waiver pursuant toparagraph 2 of the Understanding inrespect of waivers of obligations under
GATT 199414 October 1996 29 February 2000 WT/L/186
France Trading Arrangements with Morocco -
Extension of waiver pursuant to
paragraph 2 of the Understanding inrespect of waivers of obligations underGATT 199414 October 1996 31 D ecember 1997 WT/L/187
South Africa Base dates under Article I:4 -
Extension of waiver pursuant toparagraph 2 of the Understanding in
respect of waivers of obligations under
GATT 199414 October 1996 31 D ecember 1997 WT/L/188
United States ANDEAN Trade Preference Act -
Extension of waiver pursuant toparagraph 2 of the Understanding inrespect of waivers of obligations underGATT 199414 October 1996 4 D ecember 2001 WT/L/184IP/C/W/387
Page 23
Country Type Decision of Expiry Document
United States Former Trust Territory of the Pacific
Islands - Extension of waiver pursuant
to paragraph 2 of the Understanding in
respect of waivers of obligations underGATT 199414 October 1996 31 D ecember 2006 WT/L/183
United States Imports of automotive products -
Extension of Time-Limit7, 8 and 13
November 19961 January 1998 WT/L/198
Zimbabwe Base dates under Article I:4 -
Extension of waiver pursuant toparagraph 2 of the Understanding inrespect of waivers of obligations under
GATT 199414 October 1996 31 D ecember 1997 WT/L/189IP/C/W/387
Page 24
1995
Country Type Decision of Expiry Document
Bangladesh Implementation of the Harmonized
Commodity Description and CodingSystem - Extensions of Time-Limit31 August 1995
13 December 199531 December 1995
30 June 1996WT/L/80
WT/L/114
Bolivia Implementation of the Harmonized
Commodity Description of CodingSystem - Extension of Time-Limit13 December 1995 30 June 1996 WT/L/115
Guatemala Implementation of the Harmonized
Commodity Description and Coding
System - Extensions of Time-Limit31 August 1995
13 December 199531 December 1995
30 June 1996WT/L/81
WT/L/116
Israel Implementation of the Harmonized
Commodity Description and CodingSystem - Extension of Time-Limit31 August 1995 31 December 1995 WT/L/82
Jamaica Implementation of the Harmonized
Commodity Description and Coding
System - Extensions of Time-Limit31 August 1995
13 December 199531 December 1995
30 June 1996WT/L/83
WT/L/117
Morocco Implementation of the Harmonized
Commodity Description and CodingSystem - Extensions of Time-Limit31 August 1995
13 December 199531 December 1995
30 June 1996WT/L/84
WT/L/118
Nicaragua Implementation of the Harmonized
Commodity Description and CodingSystem - Extension of Time-Limit13 December 1995 30 June 1996 WT/L/119
Pakistan Implementation of the Harmonized
Commodity Description and Coding
System - Extension of Time-Limit15 November 1995 31 December 1995 WT/L/102
Sri Lanka Implementation of the Harmonized
Commodity Description and CodingSystem - Extensions of Time-Limit31 August 1995
13 December 199531 December 1995
30 June 1996WT/L/86
WT/L/120
Trinidad and Tobago Implementation of the Harmonized
Commodity Description and CodingSystem - Extensions of Time-Limit31 August 1995
13 December 199531 December 1995
30 June 1996WT/L/87
WT/L/121
Malawi Renegotiation of Schedule - Extension
of Time-Limit15 November 1995 31 December 1995 WT/L/131
Senegal Renegotiation of Schedule - Extensions
of Time-Limit31 August 1995
13 December 199531 December 1995
30 June 1996WT/L/85
WT/L/122
Zambia Renegotiation of Schedule - Extension
of Time-Limit13 December 1995 30 June 1996 WT/L/123IP/C/W/387
Page 25
Country Type Decision of Expiry Document
Argentina, Brazil,
Brunei Darussalam,Canada, Colombia,Cuba, Cyprus,
Czech Republic,
European Communities,Hungary, Iceland, India,Indonesia, Israel,Malaysia, Mexico,
Norway, Paraguay,
Philippines, Poland,Singapore,Slovak Republic,Slovenia, South Africa,Sri Lanka, Switzerland,
Thailand, Tunisia,
Turkey, United States,Uruguay, Venezuela,ZimbabweIntroduction of Harmonized System
changes into WTO Schedules of TariffConcessions on 1 January 199613 December 1995 30 June 1996 WT/L/124
+ Corr.1
United States Caribbean Basin Economic Recovery
ActRenewal of waiver15 November 1995 31 December 2005 WT/L/104IP/C/W/387
Page 26
ANNEX 2
MULTI-YEAR WAIVERS REVIEWED OR EXPECTED TO BE REVIEWED BY THE
GENERAL COUNCIL AT ITS MEETINGS IN OCTOBER AND DECEMBER 2002
1. Canada – CARIBCAN (WT/L/185) Granted on: 14 October 1996, Expires on: 31 December
2006
2. Cuba – Article XV:6 of GATT 1994 (WT/L/440) Granted on: 20 December 2001, Expires on:
31 December 2006
3. Colombia – Extension of the application of Article 5.2 of the Agreement on Trade-Related
Investment Measures (WT/L/441) Granted on: 20 December 2001, Expires on: 31 December
2003
4. Dominican Republic – Minimum Values under the Customs Valuation Agreement
(WT/L/442) Granted on: 20 December 2001, Expires on: 1 July 2003
5. EC – Autonomous Preferential Treatment to the Countries of the Western Balkans
(WT/L/380) Granted on: 8 December 2000, Expires on: 31 December 2006
6. EC – Transitional Regime for the EC Autonomous  Tariff Rate Quotas on Imports of Bananas
(WT/L/437) Granted on: 14 November 2001, Expires on: 31 December 2005
7. EC – The ACP-EC Partnership Agreemen t (WT/L/436) Granted on: 14 November 2001,
Expires on: 31 December 2007
8. Haiti – Customs Valuation Agreement (WT/L/439) Granted on: 20 December 2001, Expires
on: 30 January 2003
9. Preferential Tariff Treatment for Least-Developed Countries (WT/L/304) Granted on: 15 June
1999, Expires on: 30 June 2009
10. Madagascar – Customs Valuation Agreement (WT/L/408) Granted on: 18 July 2001, Expires
on: 17 November 2003
11. Switzerland – Preferences for Albania and Bosnia-Herzegovina (WT/L/406) Granted on:
18 July 2001, Expires on: 31 March 2004
12. Turkey – Preferential Treatment for Bosnia-Herzegovina (WT/L/381) Granted on:
8 December 2000, Expires on: 31 December 2006
13. United States – Caribbean Basin Econom ic Recovery Act (WT/L/104) Granted on:
15 November 1995, Expires on: 31 December 2005
14. United States – Former Trust Territory of the Pacific Islands (WT/L/183) Granted on:
14 October 1996, Expires on: 31 December 2006IP/C/W/387
Page 27
ANNEX 3
MARRAKESH AGREEMENT ESTABLISHING
THE WORLD TRADE ORGANIZATION
[…]
Article IV
Structure of the WTO
1. There shall be a Ministerial Conference composed of representatives of all the Members,
which shall meet at least once every two years.  The Ministerial Conference shall carry out the
functions of the WTO and take actions necessary to this effect.  The Ministerial Conference shall have
the authority to take decisions on all matters under any of the Multilateral Trade Agreements, if so
requested by a Member, in accordance with the specific requirements for decision-making in thisAgreement and in the relevant Multilateral Trade Agreement.
2. There shall be a General Council composed of representatives of all the Members, which shall
meet as appropriate.  In the intervals between meetings of the Ministerial Conference, its functions
shall be conducted by the General Council.  The General Council shall also carry out the functionsassigned to it by this Agreement.  The General Council shall establish its rules of procedure and
approve the rules of procedure for the Committees provided for in paragraph 7.
[…]
Article IX
Decision-Making
1. The WTO shall continue the practice of decision-making by consensus followed under
GATT 1947.
1  Except as otherwise provided, where a decision cannot be arrived at by consensus, the
matter at issue shall be decided by voting.  At meetings of the Ministerial Conference and the General
Council, each Member of the WTO shall have one vote.  Where the European Communities exercise
their right to vote, they shall have a number of votes equal to the number of their member States2
which are Members of the WTO.  Decisions of the Ministerial Conference and the General Councilshall be taken by a majority of the votes cast, unless otherwise provided in this Agreement or in therelevant Multilateral Trade Agreement.
3
[…]
3. In exceptional circumstances, the Ministerial Conference may decide to waive an obligation
imposed on a Member by this Agreement or any of the Multilateral Trade Agreements, provided that
                                                     
1 The body concerned shall be deemed to have decided by consensus on a matter submitted for its
consideration, if no Member, present at the meeting when the decision is taken, formally objects to the proposeddecision.
2 The number of votes of the European Communities and their member States shall in no case exceed
the number of the member States of the European Communities.
3 Decisions by the General Council when convened as the Dispute Settlement Body shall be taken only
in accordance with the provisions of paragraph 4 of Article 2 of the Dispute Settlement Understanding.IP/C/W/387
Page 28
any such decision shall be taken by three fourths4  of the Members unless otherwise provided for in
this paragraph.
(a) A request for a waiver concerning this Agreement shall be submitted to the
Ministerial Conference for consideration pursuant to the practice of decision-makingby consensus.  The Ministerial Conference shall establish a time-period, which shall
not exceed 90 days, to consider the request.  If consensus is not reached during the
time-period, any decision to grant a waiver shall be taken by three fourths
4 of the
Members.
(b) A request for a waiver concerning the Multilateral Trade Agreements in Annexes 1A
or 1B or 1C and their annexes shall be s ubmitted initially to the Council for Trade in
Goods, the Council for Trade in Services or  the Council for TRIPS, respectively, for
consideration during a time-period which shall not exceed 90 days.  At the end of the
time-period, the relevant Council shall submit a report to the Ministerial Conference.
4. A decision by the Ministerial Conference granting a waiver shall state the exceptional
circumstances justifying the decision, the terms and conditions governing the application of the
waiver, and the date on which the waiver shall terminate.  Any waiver granted for a period of more
than one year shall be reviewed by the Ministeria l Conference not later than one year after it is
granted, and thereafter annually until the waiver terminates.  In each review, the Ministerial
Conference shall examine whether the exceptional circumstances justifying the waiver still exist andwhether the terms and conditions attached to the waiver have been met.  The Ministerial Conference,
on the basis of the annual review, may extend, modify or terminate the waiver.
5. Decisions under a Plurilateral Trade Agreement, including any decisions on interpretations
and waivers, shall be governed by the provisions of that Agreement.
                                                     
4 A decision to grant a waiver in respect of any obligation subject to a transition period or a period for
staged implementation that the requesting Member has not performed by the end of the relevant period shall betaken only by consensus.IP/C/W/387
Page 29
ANNEX 4
UNDERSTANDING IN RESPECT OF WAIVERS OF OBLIGATIONS UNDER
THE GENERAL AGREEMENT ON TARIFFS AND TRADE 1994
Members hereby agree as follows:
1. A request for a waiver or for an extension of an existing waiver shall describe the measures
which the Member proposes to take, the specific policy objectives which the Member seeks to
pursue and the reasons which prevent the Member from achieving its policy objectives bymeasures consistent with its obligations under GATT 1994.
2. Any waiver in effect on the date of entry into force of the WTO Agreement shall terminate,
unless extended in accordance with the procedures above and those of Article IX of the WTO
Agreement, on the date of its expiry or two years from the date of entry into force of theWTO Agreement, whichever is earlier.
3. Any Member considering that a benefit accruing to it under GATT 1994 is being nullified or
impaired as a result of:
(a) the failure of the Member to whom a waiver was granted to observe the terms or
conditions of the waiver, or
(b) the application of a measure consistent with the terms and conditions of the waiver
may invoke the provisions of Article XXIII of GATT 1994 as elaborated and applied by the
Dispute Settlement Understanding.IP/C/W/387
Page 30
ANNEX 5
Text of document WT/L/93, dated 24 November 1995
DECISION-MAKING PROCEDURES UNDER ARTICLES IX AND XII
OF THE WTO AGREEMENT
Statement by the Chairman
As agreed by the General Council on 15 November 1995
On occasions when the General Council deals with matters related to requests for waivers or
accessions to the WTO under Articles IX or XII of the WTO Agreement respectively, the General
Council will seek a decision in accordance with Article IX:1.  Except as otherwise provided, where adecision cannot be arrived at by consensus, the matter at issue shall be decided by voting under the
relevant provisions of Articles IX or XII.
The above procedure does not preclude a Member from requesting a vote at the time the
decision is taken.
Consequently, if any Member has a particular problem with a proposed decision regarding a
request for a waiver or an accession to the WTO, it should ensure its presence at the meeting in which
this matter will be considered.  The absence of a Member will be assumed to imply that it has no
comments on or objections to the proposed decision on the matter.IP/C/W/387
Page 31
ANNEX 6
CERTAIN COLLECTIVE WAIVERS
1. Paragraphs 16-20 of this note discuss the procedures relating to the application of certain
collective waivers.  The purpose of this Annex is to provide further information on the background of
these waivers and their operation.
Harmonized System
2. Many of the waivers granted in the WTO concern the Harmonized Commodity Description
and Coding System (the "Harmonized System" or the "HS").  The Harmonized System is an
international nomenclature developed by the World Customs Organization, which is arranged in six-
digit codes allowing all participating countries to classify traded goods on a common basis.  It is
governed by the International Convention on the Harmonised Commodity Description and Coding
System and periodically updated in the light of developments in technology and changes in trade
patterns.  There is no obligation under the WTO for Members to adopt the Harmonized System or to
implement subsequent changes, but practically all WTO Members use it in their national tariffs andhave established their schedules of concessions on goods based on it.
3. The introduction of the Harmonized System on 1 January 1988 implied considerable changes
in the schedules of tariff concessions.  It was agreed that the main principle to be observed in this
context was that existing bindings should remain unchanged.  Individual waivers were granted to
several Members in respect of Article II of GATT 1947 to the extent necessary to enable them toimplement the Harmonized System.  These waivers were granted typically for about six months, and
some of them were extended several times and eventually carried over to the WTO;  two of these
extended waivers are still in force.
1
4. Given that the changes introduced to the Harmonized System on 1 January 1996 ("HS96")
would entail numerous modifications to WTO schedules, the General Council for the first time in theWTO granted a collective waiver for several Members for the purpose of enabling them to implement
the HS96 changes to their nomenclature.  Members which had requested to be covered by the waiver
were listed in an annex to the waiver decision.
2  This collective waiver, initially granted for about six
months, was extended a number of times for further six-month periods for Members that had
requested more time.  In 2001, the General Council extended it once more,3 but decided that no
further extension of it would be granted on a collective basis;  however, this was not to preclude
Members from requesting waivers on an individual basis.4
5. Given that the introduction of further Harmonized System changes on 1 January 2002
("HS2002") would again entail numerous modifications to WTO schedules, the General Council
adopted, on 13 May 2002, another collective waiver enabling Members to implement the HS2002
changes.5  An annex to the decision again lists those Members which had requested to be covered by
the waiver.  It also specifies that Members not having submitted information required under the termsof the waiver are not to be considered part of the annex at the time of adoption of the waiver decision
by the General Council.  However, it was agreed that individual waiver requests from Members that
                                                     
1 See the Periodic Report of the Committee to the Council for Trade in Goods in document G/MA/116,
dated 26 September 2002.  The two waivers in question can be found in documents WT/L/468 and WT/L/470.They have been extended 25 and 13 times, respectively.
2 Document WT/L/124.
3 Document WT/L/400.
4 Sub-paragraph (v) of document WT/L/400.
5 Document WT/L/469.IP/C/W/387
Page 32
did not submit the required documentation in time to be included in the annex were to be given
treatment no less favourable than Members that submitted documentation in time.6
6. As regards requests for waivers and their extension in respect of customs nomenclature, the
practice has been that factual information and other aspects relating to such requests have been
initially worked on by the Committee on Market Access, which has then forwarded the requests to theCouncil for Trade in Goods.  Once every six months, the Committee reports to the Council on the
situation in regard to this type of waiver.
7  This practice was originally adopted by the GATT
Committee on Tariff Concessions in 1993.8
Preferential Tariff Treatment for Least-Developed Countries
7. A waiver on Preferential Tariff Treatment for Least-Developed Countries was adopted on
15 June 1999.9  It waives the provisions of Article I:1 of GATT 1994 until 30 June 2009 to the extent
necessary to allow developing country Members to provide preferential tariff treatment to products of
least-developed countries, without be ing required to extend the same tariff rates to like products of any
other Member (paragraph 1).  Developing country Members wishing to take actions pursuant to the
waiver must notify to the CTG the list of all products  of least-developed countries for which preferential
tariff treatment is to be provided on a genera lized, non-reciprocal and non-discriminatory basis  and the
preference margins to be accorded.  Subsequent m odifications to the preferences must be notified
similarly (paragraph 2).  The 1999 waiver can be characterized as a "blanket" waiver available for any
developing country Member who wishes to provide preferential market access to LDCs;  the terms of
the waiver simply require that it first notify the intended measures to the CTG.10
8. In case of disagreements between Members, paragraph 5 of the waiver provides that any
Member providing preferential tariff treatment pursuant to the waiver shall, upon request, promptly
enter into consultations with any interested Member with respect to any difficulty or any matter that may
arise as a result of the implementation of progra mmes authorized by the waiver.  Where a Member
considers that any benefit accruing to it under GATT 1994 may be or is being impaired unduly as a
result of such implementation, such consultations  shall examine the possibility of action for a
satisfactory adjustment of the matter.
9. It should be noted that notifications of market access for least-developed countries are
currently made following two different procedures.  Measures taken under the Generalized System of
Preferences (GSP) are sent to the Committee on Trade and Development ("the CTD") under the
provisions of the Enabling Clause, while measures taken by other developing countries under the
1999 waiver are notified to the CTG.  The Chairs of the CTD and the CTG held consultations on how
to unify the consideration of market access announcements in favour of LDCs in one forum.
Following those consultations the CTD agreed to refer notifications of market access measures for
                                                     
6 See the minutes of the meeting of 15 March 2002 of the Committee on Market Access in document
G/MA/M/31, para. 4.4.
7 The most recent report can be found in document G/MA/116.
8 See minutes of the meeting of 6 December 1993 of the Committee on Tariff Concession in document
TAR/M/36, and a proposal by Sweden of 23 September 1994 in document TAR/W/88.
9 Document WT/L/304
10 Paragraph 2 of WT/L/304 reads as follows:
"Developing country Members wishing to take actions pursuant to the provisions of this Waiver
shall notify to the Council on Trade in Goods the list of all products of least-developed countries
for which preferential tariff treatment is to be provided on a generalized, non-reciprocal and non-discriminatory basis  and the preference margins to be accorded.  Subsequent modifications to the
preferences shall similarly be notified."IP/C/W/387
Page 33
LDCs to the Sub-Committee on LDCs for substantial examination and reporting back.11  The  CTG
agreed to a corresponding procedure.12
10. To date, Korea and Morocco have made notifications pursuant to the 1999 waiver.  More
information on market access conditions for least-developed countries can be found in document
WT/LDC/SWG/IF/14/Rev.1, dated 20 April 2001.13
Least-Developed Country Members – Obligations under Article 70.9 of the TRIPS
Agreement with respect to Pharmaceutical Products
11. At its meeting on 25-27 June 2002, the Council for TRIPS adopted a Decision on the
Extension of the Transition Period under Article 66.1 of the TRIPS Agreement for Least-Developed
Country Members for Certain Obligations with respect to Pharmaceutical Products.14  In connection
with this, the TRIPS Council also approved a draft waiver in respect of the obligations of least-
developed country Members under Article 70.9 of the TRIPS Agreement for the same period, i.e. until
1 January 2016, and agreed to forward it to the General Council for adoption.  As reflected in the
recitals of the draft waiver, the TRIPS Council considered that obligations under Article 70.9 of the
Agreement, where applicable, should not prevent attainment of the objectives of paragraph 7 of the
Declaration, and noted that, in light of the foregoin g, exceptional circumstances existed justifying the
waiver.  The decision on this waiver was adopted by the General Council on 8 July 2002.15
12. Any least-developed country Member may decide to avail itself of this waiver.  Such Member
is not required to notify its invocation of the waiver to the WTO or submit any information in that
regard.
__________
                                                     
11 WT/COMTD/M/32.
12 G/C/M/47.
13 See paragraph 27 and table 2 of that document.
14 Document IP/C/25.
15 Document WT/L/304.