./.WORLD TRADE
ORGANIZATIONG/SPS/GEN/74
5 June 1998
(98-2297)
Committee on Sanitary and Phytosanitary Measures Original:  English
FACILITATION OF INFORMAL CONSULTATIONS
ON SPECIFIC SPS ISSUES
Submission by the United States
The following communication was received from the United States on 29 May 1998.
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1. Article 12.2 of the Agreement on the Application of Sanitary and Phytosanitary Measures (the
SPS Agreement) provides that "[t]he Committee shall encourage and facilitate ad hoc consultations ornegotiations among Members on specific sanitary and phytosanitary measures".  The United States
recalls that during the negotiations of the SPS Agreement, the negotiating parties realized that there
might initially be numerous disagreements between Members on SPS issues when the new rules and
disciplines came into force.  At the same time,  the parties also realized that many of these
disagreements would not warrant the time and resources necessary for formal dispute settlement andmight be more amicably resolved through informal consultations or negotiations with the aid of
effective mediation.  There was a consensus among the negotiating parties that the SPS Committee
could serve a constructive role in facilitating resolution of many of these disagreements, and
Article 12.2 was agreed for that purpose.
2. Article 12.2 empowers the SPS Committee to serve in the role of informal facilitator, but does
not establish any requirements for this process.  It provides a flexible and informal mechanism for
resolving disagreements which does not in any way seek to duplicate the formal dispute systemestablished for the WTO Agreements as a whole.  Clearly, Article 12.2 is not a prerequisite to a party
seeking formal dispute settlement nor does it prejudice any right or obligation of a party under the
SPS Agreement or any other WTO Agreement.
3. The Committee has not seen a need, to this point, to discuss the procedural possibilities under
Article 12.2.  Clearly, any Member is entitled to request that the Committee assist in the resolution ofa disagreement.  Article 12.2 further anticipates that the Committee would only facilitate consultations
or negotiations upon the mutual agreement and consent of both parties.  The United States is of the
view that such consultations would occur in confidence entirely between the two parties, without
disclosure to any other party.  The Committee Chairperson, or the Chairperson’s designee mutually
consented to, would provide whatever technical advi ce or mediation that might be helpful in aiding
the parties to achieve a mutually acceptable resolution.  All consultations or negotiations would be, in
the words of the Article "ad hoc" - i.e., the number, times and places of meetings, the methods of
proceeding, etc. would be decided and mutually agreed by the parties to the consultation and the
Committee mediator on a case-by-case basis.G/SPS/GEN/74
Page 2
4. It is the understanding of the United States that there have been very few instances since the
WTO Agreements came into force in which a Member has attempted to utilize the Article 12.2
consultative mechanism.  Where Article 12.2 has been invoked, however, it has been successful in
helping the parties to resolve their differences and avoid the more lengthy, contentious and divisive
formal dispute settlement.
5. It is the perception of the United States, after discussions with various delegations, that
Article 12.2 is not well understood or widely appreciated among WTO Members.  It is our view that
there would be greater recourse to Article 12.2 if Members had a better realization of the informal
nature of the process and the availability of the Committee to serve as dispute facilitator.  The
United States considers that this could be one of the more important functions that the SPS Committee
serves.
6. Recalling that Article 12.2 expressly calls for the Committee to "encourage" ad hoc
consultations and disputes, the United States requests that the Committee Chairperson take a proactiverole in publicizing to the Members the availabil ity of the Committee to participate in consultations
under Article 12.2;  the availability of the Chairperson or appropriate designee to serve as facilitator
or mediator;  and the informal and non-prejudicial nature of such consultations.
7. The United States fully supports greater use of this informal consultative mechanism as a way
of resolving differences on SPS issues and, in some cases, of avoiding protracted formal disputeresolution proceedings.
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