WORLD TRADE
ORGANIZATIONTN/CTD/W/2
14 May 2002
(02-2642)
Committee on Trade and Development
Special SessionOriginal:  English
SPECIAL AND DIFFERENTIAL TREATMENT PROVISIONS
Joint Communication from Cuba, Domini can Republic, Egypt, Honduras, India,
Indonesia, Kenya, Mauritius, Pakistan, Sri Lanka, Tanzania and Zimbabwe
The following communication has been received from the above delegations on 7 May 2002.
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BACKGROUND
At the Fourth Ministerial Conference in Doha on 9-14 November 2001, Ministers noted the
concerns expressed regarding the operation of special and differential treatment (S&D) provisions in
addressing specific constraints faced by developing countries, particularly the least-developedcountries (LDCs) and reaffirmed that provisions for S&D treatment are an integral part of the WTO
agreements.  Ministers agreed that all S&D provisions shall be reviewed with a view to strengthening
them and making them more precise, effective and operational.  They endorsed the work programme
on S&D treatment set out in the Decision on Implementation-Related Issues and Concerns
(WT/MIN(01)/17).
In the Decision on Implementation-Related Issues and Concerns, the Committee on Trade and
Development was instructed:
(i) "to identify those special and differential tr eatment provisions that are already mandatory in
nature and those that are non-binding in character, to consider the legal and practical
implications for developed and developing Members of converting special and differentialtreatment measures into mandatory provisions, to identify those that Members consider
should be made mandatory, and to report to the General Council with clear recommendations
for a decision by July 2002;
(ii) to examine additional ways in which special and differential treatment provisions can be
made more effective, to consider ways, including improved information flows, in which
developing countries, in particular the least-developed countries, may be assisted to make best
use of special and differential treatment provisions, and to report to the General Council with
clear recommendations for a decision by July 2002."
Pursuant to the above decisions at Doha, the CTD-Special Session has been examining the
S&D provisions with a view to making them mandatory, in cases where they are not mandatory, and
to make them more precise, effective and operational.  Through this submission, the delegations of
Cuba, Dominican Republic, Egypt, Honduras, India, Indonesia, Kenya, Mauritius, Pakistan,
Sri Lanka, Tanzania and Zimbabwe submit the following proposals for making S&D provisions in
some of the agreements, more precise, effective and operational and thus strengthening them.  ThisTN/CTD/W/2
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contribution may be seen as aimed at facilitating the deliberations in the CTD-Special Session.
Co-sponsors of this submission reserve the right to modify or amend any of the proposals in future.
I. UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE
SETTLEMENT OF DISPUTES
Proposal on operationalisation of Article 12.10 of the Understanding on Rules and Procedures
Governing the Settlement of Disputes (DSU).
Article 12.10
Full text of the provision
"In the context of consultations involving a measure taken by a developing country Member,
the parties may agree to extend the periods established in paragraphs 7 and 8 of Article 4.  If, after the
relevant period has elapsed, the consulting parties cannot agree that the consultations have concluded,
the Chairman of the DSB shall decide, after consultation with the parties, whether to extend therelevant period and, if so, for how long.  In addition, in examining a complaint against a developing
country Member, the panel shall accord sufficient time for the developing Member to prepare and
present its argumentation.  The provisions of paragraph 1 of Article 20 and paragraph 4 of Article 21
are not affected by any action pursuant to this paragraph."
Comment
This provision conceives situation of a developing country Member being the defending party
in a dispute settlement proceeding, while the other party may or may not be a developed country
Member.  The provision can be considered to be in two parts, the first part is on the consultationsphase and the second part is on panel proceedings.
The first part of this Article speaks about extension of consultations period by the parties
themselves or by the DSB Chair.  The next part directs panel to give "sufficient time" to the
developing Member to prepare its defence, the last part subjects this grant of time to the overall time
frames set for the dispute settlement proceedings.
Since the word "shall" is used in second and third sentences, it could be considered as a
mandatory provision.  However, it is up to the discretion of the DSB Chairman whether to extend the
consultations period and, if so, for how long.  In case of a panel, it does not seem to have such
discretion, because it "shall allow sufficient time".  But the paragraph does not give any guidance
either to the DSB Chair or to the panel on to how much additional time should be given.  The panel isconstrained by the last sentence, i.e., the application of the overall time frames.  Thus, this provision
seems to be of limited use or inoperable in practice to the developing country Members.
This, perhaps, is the reason why no developing Member has so far invoked the first part of the
paragraph.  And India invoked the second part of the paragraph in the first stage of the panelproceedings in the dispute, India – QRs  (DS90), and got ten extra days for preparation of its first
written submission.
Proposal
1. It is suggested that the words "whether" and "if so, for how long" be deleted from the second
sentence and the words "for not less than  15 days, in cases of urgency as envisaged in Paragraph 8 ofTN/CTD/W/2
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Article 4, and not less than 30 days in normal circumstances" be added towards the end of the
sentence.  Thus the second sentence should read:
"If, after the period has elapsed, the consulting parties cannot agree that the consultations
have concluded, the Chairman of the DSB shall, after consultation with the parties, decide to extend
the relevant period for not less than 15 days, in cases of urgency as envisaged in Paragraph 8 ofArticle 4, and not less than 30 days in other cases in normal circumstances."
2. Similarly, in the third sentence, after the expression "sufficient time" the words "not less than
two weeks extra in normal circumstance," be inserted and in the place of "argumentation" the words
"first written submission and not less than one week extra thereafter at each stage of written
submission or presentation."  Thus the sentence should read:
"In addition, in examining a complaint against a developing country Member, the panel shall
allow sufficient time, not less than two additiona l weeks in normal circumstance, for the developing
Member to prepare and present its first written submission and one additional week thereafter at each
stage of written submission or presentation."
3. The last sentence should be rephrased as:  "The additional time taken above shall be added to
the time frames envisaged in Article 20 and paragraph 4 of Article 21."
The first part of the proposal gives guidance to the DSB Chair, upon being approached by
either party, for extending the period at least 15 or 30 days as the case may be in normal
circumstances.  In case of any exceptional circumstances, (expression used in Article 21.4) he can
exercise discretion to give more time to the parties.
The second part of the proposal directs the Panel to give additional time of  at least two weeks
for the first submission, one week each for second submission, first and second oral presentations and
for interim submissions, if any.
The third part of the proposal seeks to extend the overall time frames to the dispute
proceedings involving a developing country Member as a defending party.
These suggestions, when implemented will make the provisions of Article 12.10 of the DSU
effective, operational and of value to developing country Members.
II. AGREEMENT ON SANITARY AND PHYTOSANITARY MEASURES
Article 9.2
Text of the provision
Where substantial investments are required in order for an exporting developing country
Member to fulfil the sanitary or phytosanitary requ irements of an importing Member, the latter shall
consider providing such technical assistance as will permit the developing country Member to
maintain and expand its market access opportunities for the product involved.
Issue
Lack of technical, infrastructural and financial capacity makes it difficult to developing
country Member to fulfil the sanitary and phyto-s anitary requirements of an importing developed
country Member and thus restricts market access opportunities for the product involved.TN/CTD/W/2
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Proposal
To make this mandatory provision effective and operational it is proposed that the clause
"shall consider providing" be changed to "shall provide".  It is further proposed to add the followingsentence to the provision:
"If an exporting developing country member identifies specific problems of inadequate
technology and infrastructure in fulfilling the sanita ry or phytosanitary requirements of an importing
developed country Member, the latter shall provide the former with relevant technology and technical
facilities  on preferential and non-commercial term, preferably free of cost, keeping in view the
development, financial and trade needs of the exporting developing country".
The above suggestion would make this S&D provision effective and operational.
Article 10.1
Text of the provision
In the preparation and application of sanitary or phytosanitary measures, Members shall take
account of the special needs of developing country Members, and in particular of the least-developedcountry Members.
Issue
Developing country exports to developed ma rkets may be affected because of lack of
technical, infrastructural and financial capacity to comply with SPS measures.
Proposal
For effective operationalisation of Article 10.1, it is suggested that the following addition be
made to the existing provision:
"If an exporting developing country Member iden tifies specific problems in complying with a
sanitary or phytosanitary measures of an importing developed country Member, the latter shall upon
request enter into consultations with a view to finding a mutually satisfactory solution.
In this regard, such special needs shall include: securing and enhancing current levels of
exports from developing and least developed country members, maintain their market shares in their
export markets, as well as developing their technological and infrastructural capabilities.  While
notifying a measure, Members shall, inter-alia , indicate the following:  (i)  systems and/or equivalent
systems that could be used to comply with such a measure;  (ii)  the names of the developing and
least-developed country Members that could be affected by the applied measure."
The above suggestion would make this S&D provision effective and operational.TN/CTD/W/2
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Article 10.3
Full text of the provision
With a view to ensuring that developing country Members are able to comply with the
provisions of this Agreement, the Committee is enabled to grant to such countries, upon request,
specified, time-limited exceptions in whole or in part from obligations under this Agreement, taking
into account their financial, trade and development needs.
Issue
This provision was included at the specific request of developing country Members to take
into account the possibility of their not being able  to fully comply with the provisions of the
agreement even after the expiry of any transition period which may be provided.  However, it only
enables the SPS committee to grant such an exception.  Though Members may be facing problems in
complying with the obligations of the agreement,  very few would want to make such a request
because of the recommendatory nature of the language of this provision.
Proposal
For effective operationalisation of Article 10.3, it is suggested that the words "is enable to" be
amended to "shall".  This will make the provision more effective.  If this suggestion is accepted, theamended provision would read as follows:
With a view to ensuring that developing country Members are able to comply with the
provisions of this Agreement, the Committee shall  grant to such countries, upon request, specified,
time-limited exceptions in whole or in part from ob ligations under this Agreement, taking into account
their financial, trade and 
development needs.
III. AGREEMENT ON TECHNICAL BARRIERS TO TRADE
Article 12.3
Text of the provision
Members shall, in the preparation and application of technical regulations, standards and
conformity assessment procedures, take account of the special development, financial and trade needs
of developing country Members, with a view to ensuring that such technical regulations, standards
and conformity assessment procedures do not create unnecessary obstacles to exports fromdeveloping country Members.
Issue
There has been a proliferation of technical regulations and standards in developed country
markets.  Developing country exports to developed markets may be substantially affected because of
lack of technical, infrastructural and financial capacity to comply with such standards or technical
regulations.TN/CTD/W/2
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Proposal
For effective operationalisation of Article 12.3, it is suggested that the following addition be
made to the existing provision:
"If an exporting developing country member identifies specific problems of inadequate
technology and infrastructure in complying with the technical regulations and standards of an
importing developed country Member, the latter shall provide the former with relevant technology
and technical facilities  on preferential and non-commercial term, preferably free of cost".
The above proposal, if accepted, would make this S&D provision meaningful and effective.
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