WT/GC/W/770  
 
26 April 2019  
(19-2851) Page: 1/4 
General Council  
7-8 May 2019  Original: English  
 
PURSUING THE DEVELOP MENT DIMENSION IN WT O RULE -MAKING EFFORT S 
COMMUNICATION FROM  NORWAY  
The following communication, dated 25 April 2019, is being circulated at the request of the 
delegation of Norway.  
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1  INTRODUCTION  
1.1.  In establishing the WTO, Members  recognized the "need for positive efforts designed to ensure 
that developing countries, and especially the least developed among them, secure a share in the 
growth in international trade commensurate with the needs of their  economic development."1 This 
emphasis was reaffirmed in 2015 by all WTO Ministers in Nairobi, who stated that "[T]he majority 
of WTO Members  are developing country Members . We seek to place their needs and interests at 
the centre of the work in the WTO. W e reaffirm the centrality of development in the WTO 's work…"2  
1.2.  Reflecting the development priority, Special and Differential Treatment (S&D) for developing 
Members  has been part of the system since GATT times, and it is present across the range of WTO 
Agreements. However, polarized views about S&D have become part of a broader challenge to find 
an appropriate negotiated balance of rights and obligations amongst WTO Members . The proper 
functioning of the trading system and an equitable sharing of its benefit s require that this challenge 
is met. Our ability to achieve multilateral outcomes would be significantly enhanced by a more 
solution -oriented approach to the issue of trade and development. Furthermore, by improving the 
chances of success in our rule -making efforts, a more pragmatic approach to S&D is also an 
important element in the broader efforts to safeguard and strengthen the multilateral, rules -based 
trading system.  
1.3.  The purpose of this paper is to contribute to a constructive conversation among Memb ers about 
how the development dimension, including Special and Differential Treatment, can best be pursued 
in WTO rule -making efforts.  
2  ENABLING DEVELOPMENT  THROUGH TRADE  
2.1.  An underlying objective of the multilateral trading system is to enable all Members  to contribute 
to the full extent of their capabilities to a set of disciplines that permits them to benefit fully from 
cooperation among trading partners. It is this cooperation on the basis of multilaterally agreed rules 
that makes trade a positive -sum g ame, creating opportunities for growth and development. At the 
same time, Members  are highly diverse in terms of their levels of development, their sensitivities 
and priorities. These differences must be adequately addressed to ensure that the benefits of the 
multilateral trading system are shared in an equitable manner.  
2.2.  While S&D as a principle is well established, S&D is not a single, clearly defined and operational 
modality. Development concerns have been addressed in multiple ways throughout the GATT/WT O's 
negotiating history. This experience offers a rich menu of lessons on how to address development 
                                                
1 Marrakesh Agreement Establishing the World Trade Organization, Preamble, paragraph 2.  
2 Nairobi Ministerial Declaration: WT/MIN(15)/DEC , 19 December 2015 , paragraphs 6 and 7.  WT/GC/W/770  
 
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  challenges. Other innovative approaches may be found in the future. We need to deploy creative 
techniques in a spirit that recognizes the shared responsibi lity of the WTO members hip to make the 
system work in the interests of all.  
2.3.  To focus on the status of Members  in binary terms – as either developed or developing –
complicates the search for an appropriate balance of rights and obligations. It also hampers  the 
effectiveness of S&D as an enabler of development through trade and as a means of ensuring 
balanced and inclusive participation in multilateral negotiations.  
2.4.  Negotiating criteria for designating Members ' access to S&D is unlikely to be productive. Wha t 
matters is responding adequately to the specific development needs of Members . In other words, 
S&D should be adapted to the particular situations faced by developing Members  in different areas 
of economic activity and appropriately adjusted as those situ ations evolve.  
2.5.  Least -developed country (LDC) status is determined by the UN through a set of internationally 
agreed criteria. The composition of the group changes over time as Members ' economies evolve. 
The special treatment of LDCs was adopted by the GAT T in 1979 in the context of the results of the 
Tokyo Round and should continue to be maintained in the WTO.  
3  S&D TAKES MANY FORMS  AND COVERS THE ENTI RE RANGE OF WTO AGRE EMENTS  
3.1.  A useful summary of S&D measures and a typology, indicating the extent and covera ge of 
these arrangements, has been produced by the WTO Secretariat.3 This document identifies 155 S&D 
provisions in WTO Agreements, not including a plethora of others in more than 30 Ministerial and 
General Council Decisions. Some of these provide flexibil ity of commitments, action and use of policy 
instruments. Others are "best endeavour" undertakings intended to increase trading opportunities 
or safeguard the trade interests of developing Members . Still others relate to transitional time 
periods, technica l assistance, and special provisions for LDCs.  
3.2.  Special and differential treatment accommodates different situations and needs of individual 
developing Members  by enabling fuller participation in the multilateral trading system. This can be 
reflected in sch eduled commitments, time -bound departures from mainstream provisions and 
through the provision of technical assistance and capacity building. Examples of such provisions 
abound in WTO Agreements4, though it should be noted that Members  have differing opini ons about 
the value of some existing S&D provisions.  
3.3.  The notion of non-reciprocity  for developing countries in relation to market access  
commitments was introduced in GATT  Article XXXVI:8, contained in Part IV of the General 
Agreement.5 The text and an accompanying interpretative note state that developing countries are 
not expected to make market access commitments inconsistent with their individual development, 
financial and trade needs. These sentiments are reproduced in the 1979 Deci sion on Differential and 
More Favourable Treatment, Reciprocity and Fuller Participation of Developing Counties, also known 
as the Enabling Clause , which also registers the expectation that developing countries will assume 
greater obligations as their deve lopment, financial and trade situation evolves.  
3.4.  The GATS  approach, stated in Articles IV and XIX, similarly seeks to ensure appropriate 
flexibilities through progressive market -opening  measures agreed in successive negotiations. It also 
encourages all Memb ers to emphasize the facilitation of access in service sectors and modes of 
supply of export interest to developing countries, in a similar way to Part IV of the GATT in the case 
of goods.   
3.5.  Sometimes it will be possible to attain enabling objectives and p rovide the necessary flexibility 
to Members  at different levels of development with no explicit reference to S&D . In effect, the GATS  
does not mention S&D at all, relying instead for adequate flexibility on a gradual process of market 
                                                
3 WT/COMTD/W/2 39, 12 October  2018 
4 A recent study funded by the Government of Sweden contains a more detailed analysis of some of these 
issues : Patrick Low, Hamid Mamdo uh and Evan Rogerson, "Balancing Rights and Obligations in the WTO – A 
shared Responsibility " (downloadable at http://bit.ly/wtoReport ). 
5 Part IV, entitled "Trade and Development " was added to the Genera l Agreement in 1965.  WT/GC/W/770  
 
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  opening and regulator y commitments that is determined by individual Members  in the course of 
negotiations.  
3.6.  The Agreements on Technical Barriers to Trade ( TBT) and Sanitary and Phytosanitary Measures 
(SPS) have established procedures for examining Specific Trade Concerns  broug ht to the attention 
of the respective Committees. These are then discussed and acted upon by the Members  concerned. 
These arrangements would appear to have achieved a measure of success in amicably managing 
trade frictions among Members , regardless of thei r respective levels of development. They have 
been resorted to by a wide spectrum of Members . This approach could be explored and perhaps 
extended to other domains.  
3.7.  One expression of S&D -related flexibility can be through the establishment of minimum 
baseline approaches  to setting and managing standards. This is a feature, for example, of the TBT 
Agreement and of GATS . Over time, Members  can assume greater levels of obligation consistent 
with their capacity and development needs.  
3.8.  A novel feature of the GATS  in this regard is that where particular services are subject to 
market access commitments, they are accompanied by higher levels of regulatory discipline . In 
addition, under GATS regulatory commitments themselves may also be the subject of negotiation  
and subsequent scheduling. The additional commitments on telecommunications scheduled under 
GATS Article XVIII are an illustration of such an approach. The same approach could be considered 
in respect of goods -related regulation under GATT Article II.  
3.9.  As Members  shape and manage their policies in compliance with their WTO obligations, there 
is no imperative to adopt identical approaches. Alternative pathways can lead to common objectives . 
Comparable outcomes can be achieved through distinct approaches. An illustration of this kind of 
flexibility is the TRIPS  Agreement, where the emphasis is on the interoperability of domestic systems 
for the protection of intellectual property.  
3.10.   An important innovation in the application of S&D was introduced in the Trade Facilitation 
Agreement ( TFA). Based on each developing Member 's assessment of its own capacity to implement 
the agreement 's obligations, each developing Member  scheduled its commitments using three 
categories. The first was for immediate implementation, th e second for time -bound phase -ins of 
obligations and the third for later implementation with technical assistance. Involving Members  in 
directly defining the implementation of their obligations through these categories facilitated 
acceptance from all conce rned and enhanced accountability.  
3.11.   In various WTO agreements, phase -in periods  are an important element of S&D. In other 
cases thresholds  must be triggered before commitments kick in. Time -bound and threshold 
provisions are useful flexibility mechanisms tha t clearly imply a commitment towards increased 
engagement in the multilateral trading system.  
3.12.   Technical assistance and capacity -building  are vital components of an enabling approach to 
balancing the rights and obligations of Members . To be effective, it ne eds to be well designed and 
implemented in order to meet real needs. This means that it should be demand -driven, and both 
provided and utilized as a positive incentive in recognition of a common interest . 
4  CONCLUSIONS: A PRAGM ATIC APPROACH TO SPE CIAL AND DI FFERENTIAL TREATMENT  
4.1.  The contribution of trade to sustainable development is at the heart of the multilateral trading 
system. S&D is an important tool for enabling development and greater participation in the 
multilateral trading system. It forms part of t he context of negotiations across the range of policy 
areas where the WTO is engaged.  
4.2.  Aiming at consensus on a negotiated set of criteria for when a developing Member  should have 
access to S&D is neither realistic nor necessarily useful. The question shoul d rather be how S&D 
could be designed to address the development challenges Members  are facing. It is the negotiated 
result that matters, not the categorization of Members . However, the special treatment of LDCs 
should be maintained.  WT/GC/W/770  
 
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  4.3.  The tools already exis t for a creative and effective approach to flexibilities that respond to the 
development needs of Members . Such an approach would enable fuller participation and at the same 
time contribute to an appropriate balance of rights and obligations among WTO Memb ers.  
4.4.  Development concerns have been addressed in many ways in the past. This should inspire us 
to explore how the development dimension, including S&D, can best be pursued in a pragmatic and 
creative manner in current and future negotiations. S&D enables develo ping Members , and especially 
the LDCs, to secure a share in the growth in international trade commensurate with the needs of 
their economic development. What is important is the contribution in terms of binding commitments 
that each Member  is able to make within each area of current and future negotiations. Implementing 
our shared commitment to S&D in a more flexible and effective way can help to make the most of 
these contributions, facilitating the greater integration of developing Members  into internatio nal 
trade and the multilateral trading system.  
 
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