TN/RL/W/276/Rev.2/Add.1  
 
8 November  2021 
(21-8462) Page: 1/20 
Negotiating Group on Rules  Original: English  
 
FISHERIES SUBSIDIES  
REVISED DRAFT TEXT  
CHAIR'S EXPLANATORY NOTE ACCOMPANYING TN/RL/W/276 /REV. 2 
Addendum  
The attached document is the Chair's explanatory note accompanying the revised fisheries subsidies 
draft negotiating text circulated in TN/RL/W/276 /Rev. 2. The content of the explanatory note was 
delivered orally by the Chair when he presented the text at t he 8 November  2021 meeting of the 
Negotiating Group on Rules at the level of Heads of Delegation.  
_______________  
  TN/RL/W/276/Rev.2/Add.1  
 
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  INTRODUCTION  
1. Good morning colleagues, and welcome to this open -ended meeting of the Negotiating Group 
on Rules. Thank you for joining me today. As I indicated at our meeting on Friday , 29 October and 
in my e -mail of 4  November, the purpose of today's meeting is for me to introduce a revision of our 
current draft text, to be circulated in document TN/RL/W/276/Rev.2  (Rev.2) , and to explain wh at 
the changes are compared to TN/RL/W/276/Rev. 1 (Rev.1)  and why they were made. I will also 
suggest how I think we should proceed in the next stage of our work. Let me also thank the 
Director -General, Dr.  Ngozi, for taking the time to join us for this mee ting.  
2. As has been the case when I have introduced previous text s, my intention for today is to 
simply introduce the text. Following that the DG will make some remarks. I will not be opening the 
floor for reactions but will then close the meeting. This is to allow all of you time to digest the text 
before we begin to discuss its substance. To help you follow the discussion we will have the text 
projected on the screen. Immediately after the meeting, the Secretariat will e -mail to all delegations 
the unoffic ial room version of the text. Please note that this is not the final version as it will be 
circulated as the text will need final proofreading and formatting by the WTO Documents Control. 
Also, as has been our practice to date, following the meeting I will  circulate the description of the 
text that I present here today as Addendum 1 to the text.  
3. Before going into the details of the changes, let me briefly summarize the work that has been 
the basis of this revision. As you know, the work in the lead -up to the 12th Ministerial Conference 
(MC12 ) has been organized as a two -stage process:  
• a first stage to address the "macro issues" identified by Ministers at the TNC meeting of 
15 July with the aim of evolving the draft text, to address a perceived imbalance or 
imbalances, before engaging in the final stage of the negotiations; and  
• a second, final stage – the clause -by-clause process – which we originally had planned to 
start in mid -October.  
4. As you know, although our work during the period initially allotted to the first phase was 
productive, at the end of that period many Members informed me that their bilateral engagements 
with other delegations had been intensifying and that they could bene fit from more time to try to 
bridge differences on those "macro issues". As I reported to you in our last meeting on 29  October, 
I therefore had suggested prolonging the first phase of the work for a few more weeks, that is, 
through last week.  
5. For my part , as I have indicated in several e -mails and meetings, I have been meeting with 
delegations that requested to consult with me to discuss any issues that they wanted to raise, and 
I also reached out to consult with some delegations and groups on various mat ters. To date, I have 
held consultations with a wide range of delegations and groups of delegations in various formats – 
dozens in numbers and representing the full spectrum of views. Sometimes these meetings were 
held on short notice or were early in the morning or late in the evening. I would like to thank all 
delegations for your flexibility in this regard. I know this period before MC12 is challenging for all of 
us, given the number of issues and meetings that require Members' attention and participatio n. On 
my side, I have been and still am acutely aware of the limited time that remains before MC12, and 
of the need to maintain transparency about the process. As such, during our 29 October meeting, I 
asked all of you to share with the Negotiating Group o n Rules any updates of the work you have 
been conducting with other delegations. I also urged you to send me any collective results of such 
work by the close of business last Wednesday, 3 November, so that I could consider this information 
as I worked on t he revised text.  
6. As you will recall, at the meeting, a wide range of delegations provided encouraging reports 
on work that they were conducting, and following the meeting I did receive a few communications 
with suggestions for amending various parts of the  text. In a couple of cases these were submitted 
jointly by certain delegations, in others these were individual delegations' submissions that had been 
consulted with other Members. I also have met with a number of delegations and groups of 
delegations sin ce then, to discuss specific drafting ideas and to exchange views on the way forward. 
The most recent of these contacts were in a series of small -group consultations that I held late last 
week with Members representing diverse regions and views. My conclus ion based on all of this work 
is that much progress has been made on some of the key "macro issues".  TN/RL/W/276/Rev.2/Add.1  
 
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  7. My various contacts with delegations also confirmed, as I had alluded in various meetings 
since 15 July, that there are many different perceptions of the overall balance or lack of balance in 
the Rev.1 text. Initial requests for a "rebalanced" text mainly focused on the balance between 
Article  5.1, including Article 5.1.1 and its footnote 10, on the one hand, and the related special and 
differential treatme nt provisions, on the other hand, with wide differences of views over the nature 
of the perceived imbalance in these provisions. Through our discussions following the 15 July 
meeting, it became clear that the other major sticking point issues were also vie wed by many as 
elements of the overall balance or perceived imbalance in the text. In other words, it became clear 
that all of the macro issues not only needed to be resolved on their own, but also that these issues 
were interlinked in various ways such th at resolving one would have implications for others, 
technically, politically, or both. These additional issues include:  
• disciplines relating to fishing in areas beyond national jurisdiction;  
• notification and transparency;  
• non-specific fuel subsidies;  
• the subsidy prohibition in the IUU fishing pillar;  
• proposals concerning the use of forced labour in fishing; and  
• vessels not flying the flag of the subsidizing Member.  
8. As such, in reflecting on how to address the perceived imbalance in a revision, I needed t o 
think about all of these provisions in relation to each other. That is, the question of "balance" became 
about the balance in the whole text and the inherent linkages among its provisions.  
9. This brings me to the main agenda for today's meeting, the revis ed draft text in 
TN/RL/W/276/Rev.2. As I have just explained, the revisions that I am putting forward are based on 
all of our latest collective work – that is, the work done by the Group and textual suggestions made 
in the Negotiating Group as a whole; and  all of the Member -led work that has been undertaken by 
you, of which I have been made aware. This morning, I will go through the text in detail, to explain 
the nature of and reasons for each revision, so that when we reconvene tomorrow to begin discussing  
Rev.2 you will be able to have those considerations in mind.  
10. Before turning to the details of the changes, I would like to outline a few key principles that I 
used to guide my work in preparing this revision.  
11. First, addressing the broader considerations of balance. The most substantive changes to the 
text are precisely made to try to address the various imbalances perceived by Members with diverse 
perspectives. Given the number of issues involved and the wide diversity of views on all of them, 
the only wa y to find landing zones on the individual issues that will attract broad convergence is by 
taking into account, holistically, the technical and political interlinkages among these issues. In my 
consultations over the past few weeks, and in various interven tions during the 29 October meeting, 
Members have recognized this as well.   
12. As you will see shortly when I present the details of Rev.2, the biggest changes are in elements 
in the illegal, unreported and unregulated ( IUU) fishing pillar, the overcapacity and overfishing pillar, 
and in notification and transparency. Therefore, when reading the revised text, it will be important 
that you look at these changes holistically, given that each amendment not only addresses a specific 
issue but also obeys to broade r considerations of balance. I also would remind us to keep in mind 
the broader perspective of the basic reason and mandate of these negotiations. Our objective in 
creating new subsidies disciplines is to contribute to improving the sustainability of fishe ries and 
ocean ecosystems, for the benefit of all people, especially those – including vulnerable individuals 
and groups – who depend on fisheries for their livelihood over the long term. That is, the issue of 
balance should be thought of not only in terms  of internal balance within the text but also in terms 
of the balance of the disciplines taken as a whole and our sustainability -based mandate. We are all 
in agreement that to fulfil the mandate, we need to deliver a meaningful outcome in terms of 
sustaina bility.   TN/RL/W/276/Rev.2/Add.1  
 
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  13. Second, providing as "clean" a revision as possible. In July, Ministers asked for a clean text or 
as clean a text as possible, well ahead of MC12. They also empowered Heads of Delegation to show 
the flexibility and make the compromises necessary to collectively produce this text. We worked 
very hard during the first phase of the work this fall to address the various issues of balance so that 
we could have a revised text on which to base our clause -by-clause negotiations. Through that work 
in the N egotiating Group as a whole and in your own Member -led work we have made a lot of 
progress, both in generating ideas and in increasing the level of convergence around possible 
bridging solutions for certain main sticking points. That said, we are nearly ou t of time to produce 
the "as clean as possible" text for Ministers to consider at MC12, and not all issues have reached the 
same degree of maturity or convergence in the processes we have conducted so far this fall.  
14. Given this, during my consultations las t week I heard calls from a wide diversity of Members 
to produce, in my capacity as Chair, a revised text aiming to come as close as possible to the final 
revision that would be sent to Ministers. That is, to propose changes on the key substantive issues 
that, taken as a whole, could reflect an overall balance that would address the most important 
priorities and concerns that have been raised during our work to date. The Members' call for me to 
produce this kind of a revision was to put us in as good a posi tion as possible for the clause -by-
clause discussion, such that we can have a very focused discussion during the short time left before 
MC12 . Again, for this to work, Members will need to see this text, with all of its internal interlinkages 
– technical an d political – as a whole, as you engage in the very detailed clause -by-clause review.  
15. In this regard, while it is well understood, it is worth repeating that of course nothing is agreed 
until everything is agreed. Thus, while the revision reflects my hone st, best attempt to find a balance 
in a way that I consider would be most likely to build consensus, the whole point of the clause -by-
clause exercise is to collectively keep improving the text to reflect greater and greater convergence. 
In this regard, whi le of course not every textual suggestion that was made since September has 
been copy -pasted into the revised text, all of these suggestions have informed my thinking. In 
particular, I have tried to find drafting that somehow addresses the major concerns u nderlying the 
various suggestions as explained by the Members presenting them. And while I have been referring 
to changes, the provisions that have not been changed in Rev. 2 also occupy a key place in the 
overall balance, and in our discussions. In partic ular, I wish to underscore that not suggesting 
changes to certain provisions in Rev.2 does not imply that these provisions are accepted or agreed. 
So, while today I mainly will be highlighting the changes in the new revision, we will be discussing 
all prov isions of the text in this new phase of our work, including the parts that were not changed 
from the Rev.1 text.  
16. Therefore, even if you may not see your own drafting formulation in a particular part of the 
text, I would invite each of you to consider whet her the drafting that is proposed in the revision – 
taken as a whole – somehow addresses your concern through another route.  
17. Finally and critically, for these negotiations to succeed we will need to use this text as the 
basis for this final phase of the negotiations. This is the text you have asked me to prepare, and 
again I have done my best to take into account all of the many issues and concerns that have been 
raised, in as balanced a way as I could find. Of course it is not possible for me to produce a  perfect 
text. So we now need to trust the process and trust one another so that together we can refine the 
language in a way that will finally close this deal.  
18. Concerning the specifics of the Rev.2 text. The Rev.2 text presents changes in a variety of 
ways, depending on the provision involved and the state of the discussions of the underlying issues. 
In particular, some changes are presented as clean text, and some are presented in brackets, 
including, in some cases, as bracketed alternatives . 
19. More specifically concerning the bracketed language : 
• in some cases, brackets represent alternatives;  
• in some cases, they represent decisions as to whether a given piece of text should be 
retained or deleted, and  
• in some cases, they represent issues requi ring further discussion.  TN/RL/W/276/Rev.2/Add.1  
 
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  20. Concerning this last category, there are areas of the text that require more technical 
discussion before a line -by-line consideration would be productive, and I will shortly outline my 
suggestions for how we can engage on these is sues over the next couple of weeks.  
21. So, with that overall outline, let me start explaining the details of Rev.2.  
ARTICLE  1 
22. Let me begin with Article  1 on the scope of the instrument. The first part, Article  1.1, together 
with its two footnotes, has been generally acceptable to Members thus far, and remains unchanged 
in Rev.2.  
23. Article  1.2, which would bring non -specific fuel subsidies into the scope, remains in brackets 
because, as you know, Members remain divided on whether this provision should be includ ed or 
deleted.  
24. On the question of non -specific fuel subsidies and fuel de -taxation schemes, I have of course 
taken careful note s of other suggestions and ideas, such as those on notification and transparency. 
I suggest that we address these issues through  a focused discussion. I will elaborate on my specific 
suggestions in this regard when I come to the next steps in our process.  
ARTICLE  2 
25. Article  2 sets out the definitions for five terms that apply throughout the disciplines. As 
explained earlier, the def initions of the first four terms, in (a) through (d) for "fish", "fishing", "fishing 
related activities" and "vessel", were taken from the Agreement on Port State Measures  (PSMA), 
and they remain unchanged.  
26. For the definition of "fishing related activitie s" in Article  2(c), some Members have suggested 
moving the qualifier "at sea" to another place, with a view to clarifying that the activities are limited 
to those performed "at sea". However, there were some concerns about adjusting the language from 
the PSMA, and some thought that such a change was unnecessary given that the scope in Article  1.1 
already limits "fishing related activities" to those carried out "at sea". No change was made in the 
current revision, but the clause -by-clause phase would be an o pportunity for the interested Members 
to pursue this further.  
27. Turning to the definition of the term "operator" in Article  2(e), Members will recall that this 
was taken from the facilitator's work and was initially a footnote to one of the IUU fishing provi sions. 
Since then, given that the term "operator" is also used elsewhere, the general elements of that 
definition were moved to Article  2(e), whereas the more specific part addressing IUU fishing aspects 
was retained in its original placement in that pilla r. With these changes, up through Rev.1 the 
definition of the term "operator" was "the owner of the vessel, or any person on board, who is in 
charge of or directs or controls the vessel".  
28. In our recent discussions of this language, some Members have sugges ted broadening the 
term "operator" to ensure that the disciplines would not be circumvented through leasing, other 
arrangements or corporate structures, where someone who was not on board the vessel engaged in 
IUU fishing was directing and controlling it.  
29. In addressing these concerns, one of the suggestions that attracted some support was to 
delete the qualifier "on board", so that the discipline is not limited by it. To the same end, some 
other Members also suggested inserting text specifying that the "pe rson" who is an operator may 
either be a "natural or juridical" person. Others thought this was either not necessary, because 
already by deleting the phrase "on board"  – in this context  – the "person " could be either natural or 
juridical, or that adding th is qualifier might inadvertently limit rather than broaden the definition.  
30. With these points in mind, "on board" was deleted but the "natural or juridical" qualifier was 
not added. Of course, like everything else, this can be reviewed during the new phase .  
31. There is also a minor change in this definition from "the vessel" to "a vessel " in the first line. 
This is a purely grammatical change and not meant to have any substantive implications.  TN/RL/W/276/Rev.2/Add.1  
 
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  ARTICLE TITLES  
32. Before I turn to Article  3, let me take a moment to explain the changes made to the Article 
titles in Articles  3, 4 and 5. During my consultations, some Members considered that the titles to 
these substantive provisions could be simplified and clarified.  
33. To address this, some minor changes were made to the Article titles, mainly to make them 
consistent with the language used for the disciplines and the mandate. To this end:  
• the title of Article  3 now reads "subsidies contributing to illegal, unreported and regulated 
fishing";  
• the title of Ar ticle 4 now reads "subsidies regarding overfished stocks"; and  
• the title of Article  5 is now "subsidies contributing to overcapacity and overfishing".  
34. These titles now track the language of our mandate and the respective disciplines. None of 
these changes are meant to be substantive; they are all purely editorial in nature.  
ARTICLE  3.1 
35. The next change is in Article  3.1, the subsidy prohibition in the IUU fishing pillar. In the 
previous versions of the text, the prohibition in the IUU fishing pillar was draf ted as applying to 
subsidies to a vessel or operator engaged in IUU fishing, full stop. In Rev.2 , this has been changed 
to apply also to "fishing related activities in support of such fishing".  
36. As you recall, this proposal was made in May this year in TN/R L/GEN/205 and has been 
discussed on several occasions. In those discussions, some Members, including some of those that 
did not support other elements of the proposal in GEN/205 noted that adding "fishing related 
activities in support of such fishing" here  would bring Article  3.1 into line with the scope of the 
disciplines in Article  1.1, as well as with other disciplines that apply to both fishing and fishing related 
activities.  
37. That said, some Members opposed this change because they said it would be inc ompatible 
with the mandate or with the current structure of Article  3 which is based on IUU fishing 
determinations. Given these concerns, the change is reflected in square brackets for further 
consideration.  
Footnote  4 
38. Footnote  4 defines the term "operator " for the purpose of the IUU fishing pillar. As I noted 
earlier, the source of this text is the facilitator's work, from which the definition of "operator" specific 
to the IUU fishing pillar has been extracted, with the more general part now reflected in A rticle 2(e). 
39. I am fully aware of the different views on the effect of the references to "operator" in the IUU 
fishing disciplines. Some Members want to make it very clear through drafting changes that where 
a given operator operates multiple vessels, any a ffirmative IUU fishing determination in the sense 
of Article 3.2, even involving a single vessel, would trigger a prohibition of all subsidies to the 
operator as a whole, and not only subsidies to the vessel or vessels involved. Others take the 
opposite vi ew, seeking to draft the rule so that in every case an affirmative IUU fishing determination 
would result in a prohibition of subsidies only to the specific vessel or vessels that actually engaged 
in the IUU fishing, regardless of the nature or scope of th e IUU fishing determination.  
40. The text in Rev.1, which was retained without changes in Rev.2, reflects an effort to find a 
balance between these two sets of views, and equally or more importantly, to ensure that the WTO 
does not itself become involved in o r prejudge the substantive nature and scope of any IUU  fishing 
determinations, which is a critical priority for many Members. In particular, no changes have been 
made to specify this one way or the other. Instead, the intention of the current drafting is t hat the 
scope of the subsidy prohibition will be determined by the scope of the IUU fishing determination. 
That is, if an IUU fishing determination implicates a single vessel, the subsidies to that vessel are TN/RL/W/276/Rev.2/Add.1  
 
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  what would be prohibited. If, however, an IUU f ishing determination implicates the operator, instead 
of or in addition to the vessel, the subsidies to that operator also or instead would be prohibited.  
41. While of course interested Members are free to come back to this issue in the clause -by-clause 
discussions, in my view the approach in the current drafting is the only way to address these issues 
neutrally, and without the WTO prejudging outcomes or effects of IUU fishing determinations as 
such.  
ARTICLE  3.2 
42. Article  3.2 provides that, for the purpose of triggering the subsidy prohibition in Article  3.1, a 
vessel or operator would be considered to have engaged in IUU fishing when it was found to have 
done so by one of the entities listed in Article  3.2, namely a coastal Member, a flag State Member, 
or a re levant RFMO/A.  
43. During our work so far, this language and other related provisions under Article  3 have been 
revised to make it clear that for the purposes of this instrument, there is no hierarchy among the 
IUU fishing determinations by these entities, no r is there  any question as to their competence to 
make IUU fishing determinations in the circumstances that are relevant to them. The text, which 
has not been changed in Rev.2, has evolved based on our discussions, and prior changes include:  
• clarifying th e term "determination" in Articles  3.2 and 3.3 as an "affirmative  determination"; 
and 
• adding footnote  6, which states that this Article "shall have no legal implications regarding 
the competence" of any listed entity under other international instruments to make an IUU 
fishing determination.  
44. In addition, port State Member and subsidizing Me mber were removed from the list, with 
provisions related to port State Members contained in Article 3.5.  
45. Overall, these changes and the text of Article  3.2 were intended to ensure that a subsidy 
prohibition would be triggered when any one of these three t ypes of listed entities made an IUU 
fishing determination. The determination would not be nullified or cancelled by a contrary finding by 
another listed entity. One additional concern, that a shorter -duration penalty by one listed entity in 
respect of a gi ven situation of IUU fishing might prevail over a longer -duration penalty by another 
entity, is addressed in Article 3.4 through language indicating that the longer duration will prevail. 
All of this said, I am aware that some concerns may remain and these  can be raised in this new 
phase of our negotiations.  
ARTICLE  3.3 
46. Moving into Article  3.3, you will see as a major change the presentation of two alternatives 
following subparagraph  (a). Before turning to those alternatives, recall that subparagraph  (a) 
defines an affirmative determination as the final IUU fishing finding or listing. This language has 
been broadly supported by Members and it remains unchanged.  
47. Turning now to the two alternatives for Articles  3.3(b) and (c). The first alternative is the text  
from Rev.1, that is, the requirement in subparagraph  (b) that, to trigger the subsidy prohibition, an 
IUU fishing determination by a coastal Member under Article  3.2(a) must be based on positive 
evidence and follow due process, with elaboration of this in  subparagraph  (c).  
48. As you know, a considerable number of Members have indicated that they need some sort of 
due process provisions in respect of coastal Members' determinations before they would be willing 
to implement a subsidy prohibition. Some others, however, have opposed any such requirements 
on the basis that determinations by coastal Members must in any case obey the domestic laws and 
procedures of those Members, such that their IUU fishing determinations should be accepted as such 
as the trigger fo r the subsidy prohibition. Many Members affirmatively support the drafting in ALT 1, 
or can live with it as an acceptable compromise between the opposing views of others.  TN/RL/W/276/Rev.2/Add.1  
 
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  49. Concerning the standard itself, assuming that one were included in the disciplines, there are 
different views on what it should be. As noted, some support the current "positive evidence" and 
"due process" language, while others have expressed a strong preference for a more prescriptive 
standard if the approach in ALT 1 ultimately is retai ned.  
50. As this is one of two alternatives, the previous square brackets around both subparagraphs  (b) 
and (c) separately have been removed while brackets have been placed around those subparagraphs 
together to form ALT 1.  
51. New to this revision is the second  alternative. This text was suggested jointly by some 
Members who wanted to avoid using terms such as "due process", "positive evidence" or other 
suggested formulation of such a standard. In their view, such a standard could allow IUU fishing 
determination s, and underlying domestic systems, to be unduly scrutinized by the WTO. Instead, 
this alternative text takes more of a procedural approach, requiring timely notification from the 
coastal Member, and an opportunity for the flag state Member or subsidizing Member to provide 
relevant information and “to dialogue” with the authorities making the determination.  
52. Here I would like to emphasize that Article  3.3 is one of the provisions that have many complex 
and sensitive links with various other provisions. In pa rticular, an important link has been drawn by 
some Members between this provision and the way that territorial claims or delimitation of maritime 
boundaries are addressed in Article  11.4. Given this link, we will have to have a very focused 
discussion on t hese issues . I will later share my thoughts on how we can move forward.  
ARTICLE  3.4 
53. Article  3.4 sets the minimum duration of the subsidy prohibition as the duration of the sanction 
resulting from the relevant IUU fishing determination, or the duration that  a vessel or operator 
remains listed as engaged in IUU fishing, whichever is the longer. Beyond this minimum duration, 
the subsidizing Member may take into account the nature, gravity and repetition of IUU fishing in 
determining the duration of the prohibi tion. 
54. As you recall, when the draft was first consolidated, the text in this provision was in two 
separate provisions: in one, the subsidizing Member would have been able to take into account the 
nature, gravity and repetition of the offence in applying  the subsidy prohibition. This was generally 
referred to as "proportionality". The other provision addressed the duration of the prohibition.  
55. Since then, we have held a series of dedicated discussions on this, where two competing views 
emerged. Some Members consider ed that the subsidizing Member should have the final say on 
whether to apply the subsidy prohibition – considering that for "minor violations" this should not be 
required as it would not be "proportional" to the IUU fishing at issue. On the other h and, some other 
Members viewed this as creating a significant loophole by creating a self -judging standard. In their 
view, the authority determining IUU fishing should, and does already, take "proportionality" into 
account, in determining whether the activ ity rises to the level of IUU fishing in the first place, and 
in determining the nature and duration of the penalty. In this view, the subsidizing Member has no 
role in considering "proportionality", and the subsidy prohibition should always be triggered, in 
adherence to the minimum duration provision.  
56. Based on all of these views, a possible compromise formulation emerged, which was reflected 
in the original version of the /276 text and remains unchanged in this revised draft. This formulation 
reflects the view that the concept of "proportionality" is taken into account by the relevant fisheries 
authority in making IUU fishing determinations, as well as in setting sanctions or listing the vessels 
and operators engaged in IUU fishing. As such, the minimum dur ation of the subsidy prohibition is 
the duration of the sanction or listing, with the longer applying to the prohibition where there is 
more than one sanction with different durations.  
57. More recently during our work on this formulation, some additional tex tual suggestions and 
views have been presented on this text. Some of the discussion was a repetition of earlier ideas that 
have not gathered broad -based support – such as an absolute minimum duration, adding an absolute 
maximum duration, or deleting the mi nimum duration provisions altogether. Given that none of 
these views has gained broader support from the proponents of other views, the text of this provision 
remains unchanged.  TN/RL/W/276/Rev.2/Add.1  
 
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  ARTICLES  3.5-3.8 
58. There are no changes in Articles  3.5 and 3.6. In Article  3.7, a minor adjustment has been 
made such that the required notification is now required upon entry into force. This takes into 
account the common -sense point that the WTO body referred to in this provision would only be 
established when the instrument comes  into force, so that it would not be possible to notify it of 
anything before that date.  
59. In Article  3.8, while the text remains unchanged, square brackets have been added around 
number 12 in "12 nautical miles". This reflects  the evolution of Members' und erstanding of how best 
to account for the interests of low income, resource -poor and livelihood fishers, and the concern that 
12 nautical miles may not be adequate. The square brackets reflect this point of discussion for our 
next phase; and square bracket s have been added to similar special and differential treatment 
provisions referring to "12 nautical miles" under Articles  4 and 5.  
60. Other than these minor changes, the text in Article  3.5 through Article  3.8 remains essentially 
unchanged. On these four pro visions, especially Article  3.8, let me underscore again that although 
no changes were made in this revision, this does not imply that we have an agreement here or 
anywhere else where no changes were made. For example, on Article 3.8, I am well aware that 
some Members question whether any special and differential treatment is warranted in the IUU 
fishing pillar, while some others think that the current Special an Differential Treatment  (SDT)  
provision in Article  3.8 may not be sufficient, or should be refoc used on other issues.  
61. All of these issues can be raised by interested Members in this new phase of the negotiations. 
But in doing so, be reminded that they have not gathered broad convergence in the past.  
ARTICLE  4 
62. Article  4 remains virtually unchanged, e xcept for the Article title and the square brackets 
around 12 in "12 nautical miles" in Article 4.4, for the reasons that I already mentioned.  
63. You may note that footnote 9 defining the term "biologically sustainable level", which also is 
used in the overc apacity and overfishing pillar, has been slightly revised. I will explain the changes 
to this footnote in the context of the overcapacity and overfishing pillar.  
64. Let me underscore once again that not revising this Article does not mean that we have an 
agreement here, or anywhere else where no changes were made.  
65. For example, the phrase "and/or measures" in Article 4.3 , which provides for an exception 
from the prohibition set forth in Article 4.1, remains in square brackets. Members believing that the 
only subsidies that should be permitted where the stock in question is overfished are subsidies that 
themselves are imple mented to promote rebuilding the stock, consider that the phrase "and/or 
measures" should be deleted. Other Members, who consider that other kinds of subsidies also should 
be allowed so long as measures are implemented to promote rebuilding of the stock, s eek to retain 
this phrase and remove the brackets around it.  
66. So, further discussion is still needed on this point.  
ARTICLE  5 
67. Now we turn to revised Article 5, containing disciplines on subsidies contributing to 
overcapacity and overfishing. Here again, t he title has been modified to match the wording of the 
mandate, as suggested by some Members.  
68. On the substance, as you know, Members generally consider Article 5 to be the core of the 
new disciplines. Many of the issues we have been discussing are precisel y in this pillar, which many 
Members consider to be the main locus of their concerns over the balance in the text. Reflecting 
this, Article 5 of Rev.2 contains a number of substantive changes compared to Rev. 1 . These changes  
aim to attract a greater degre e of convergence among Members with very different fundamental 
perspectives on the issues addressed in this article  – in the disciplines themselves and their TN/RL/W/276/Rev.2/Add.1  
 
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  associated special and differential treatment provisions  – whilst maintaining ambition and looking  
after the balance with our sustainability mandate.  
Article s 5.1 and 5.1.1  
69. The chapeau of Article 5.1 contains the main prohibition in this pillar, and is followed by an 
illustrative list of subsidies that presumptively contribute to overcapacity or overfi shing. Article  5.1 
is qualified by Article 5.1.1, which provides that a subsidy is not inconsistent with Article 5.1 if the 
subsidizing Member demonstrates that measures are implemented to maintain the fish stocks at a 
biologically sustainable level.  
70. The e lements in subparagraphs (a) through (h) were already contained in the illustrative list 
in Rev.1. The only change to the list is the addition of subparagraph (i), which has been moved from 
former Article  5.2(a). I will explain this change in a moment.  
71. Still concerning the list in Article 5.1, I do note that some Members have suggested certain 
drafting changes to some of the listed subsidies, and others have suggested a broader restructuring 
of Articles 5.1 and 5.1.1 more generally.  
72. For suggestions to chan ge individual items in the list, if any, I believe these are best suited 
for consideration in the clause -by-clause process. Without prejudice to any such suggestions, I would 
also remind Members that given the short time ahead delegations should try to sta y focused on the 
things that are of critical importance for them.  
73. Still concerning Article 5.1, some Members have expressed concerns over the  presumption 
that the listed subsidies contribute to overcapacity and overfishing, and have suggested redrafting 
Articles 5.1 and 5.1.1 to address these concerns. Having carefully considered the various suggestions 
for restructuring these provisions, my conclusion is that their aim and effect is essentially the same 
as that of the provisions as currently drafted, albei t using different approaches.  In particular, the 
Rev. 2 text, like Rev.1, contains no requirement  to make the required demonstration before a  listed 
type of subsidy could be granted, nor any implicit requirement to stop all current subsidization until 
such a demonstration is made. Instead, the aim and operation of the text is to ensure that 
sustainability measures factor in as one important consideration in the granting and maintaining of 
subsidies, and that decisions on subsidization likewise should factor  in sustainability considerations. 
It is this linked set of subsidies and sustainability measures – drafted and implemented as the 
Member sees fit - that would be the subject of the demonstration. As for the demonstration itself, it 
would naturally begin w ith the notifications as required in Article 8.  
74. Discussions in the relevant committee would allow for other Members' questions and doubts, 
which might lead to bilateral discussions. Ultimately, as a last phase, a dispute settlement proceeding 
could be ini tiated to address the issue. Thus, while the list in Article 5.1 refers to certain forms of 
subsidies that have been identified in many proposals and elsewhere as potentially the most likely 
to contribute to overcapacity and overfishing, the provisions of Article 5.1.1 make clear that because 
the issue is over -capacity and over -fishing, any given subsidy needs to be looked at in the specific 
context in which it is provided. It is exactly that context that is the subject of the demonstration.  
75. To elaborate a  bit further, from my reading of the current draft text, I wo uld expect that in 
the vast majority of cases  simply complying with the notification  requirements  would be sufficient 
to "demonstrate" to the satisfaction of other Members that the sustainabilit y elements under 
Article  5.1.1 have been met . Most of the r emainder would be clarified through the Committee work 
and dialogue among Members. Look at the SPS and TBT Agreements; in over 25 years there have 
been tens of thousands of notifications, hundreds of specific trade concerns raised, with only a 
handful of disputes begun, most of which were resolved before even getting to a ruling.  
76. Returning to the drafting in the text, there were suggestions to include a footnote to clarify 
the term "demonstrate". Ho wever, in other Members ' views, the demonstration of sustainability 
should  not be a  rigid strai tjacket that could apply in a single way to all Members and in all 
circumstances. "Demonstration" will have to depend on the specific situation of the fishery  in 
question , the region of the world where the fishing takes place , the details of the subsidy 
programme , and so on and so forth. We cannot draft a multilateral rule broad enough to take all 
these specificities into account. Therefore, such suggestions have not been incorporated in the draft 
text. TN/RL/W/276/Rev.2/Add.1  
 
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  77. To conclude, demonstration of sustainability under Article 5.1.1 is neither an impossible 
standard nor a meaningless procedural step.  It is rather a step that  would have to take account of 
the data available, the fi shery  or fisheries in question , and specific management measures . And it 
would include the various types of multilateral review and other scrutiny provided for in the 
disciplines.  
Footnote 9  
78. The first change in Article  5 that I wish to highlight is in foo tnote 9, which defines the 
"biologically sustainable level" of a stock in Articles 5 and 4 respectively. Let me start with an editorial 
change. In the previous version, there were two separate identical footnotes, 9 and 10. This has 
been simplified into a single footnote such that both Article 4 and Article 5 now refer to the same, 
single, footnote, numbered  9. This is a purely editorial change following the example in footnote  58 
of the SCM  Agreement, which is referred to in multiple provisions of that Agr eement.  
79. You would recall that this footnote stated that "MSY" was only one of several possible reference 
points that might be used to determine the biologically sustainable level of a fish stock. There are 
other reference points that could be equally valid  in various circumstances and which might be 
completely independent of the concept of MSY. The previous revision included language submitted 
by a group of delegations on different indicators for determining these other reference points and 
an illustrative list of such indicators – level of depletion, or level of or trend in time series data on 
catch per unit effort. However, the more we debated it the longer the list grew when the whole point 
of the footnote was to give examples of what might be appropriate  indicators.  
80. With that in mind and based on discussions and suggestions brought forward by Members, 
the footnote has been simplified and the language on indicators for determining other reference 
points has been deleted. I would stress that shortening the  list of examples does not mean that the 
range of potential candidates for reference points is narrower ; it just means that the list of examples 
is shorter.  
Article 5.2  
81. Turning to the prohibition of subsidies contingent upon fishing outside the subsidizing 
Member's jurisdiction and subsidies to fishing in the high seas.  
82. As you know, Articles 5.2 and 5.3 in Rev.1 were intended to complement the main prohibition 
in Article 5.1 on subsidies that contribute to overcapacity and overfishing. Specifically:  
• Article 5.2(a) was an additional prohibition on subsidies contingent upo n, or tied to, fishing 
outside the subsidizing Member's jurisdiction;  
• Article 5.2(b) provided for an exception from this prohibition for the non -collection of 
government -to-government payments under fisheries access agreements, provided that the 
requireme nts in Article 5.1.1 are met; and  
• Article 5.3 was a prohibition on all subsidies to fishing in the unregulated high seas – that 
is, outside of any Member's jurisdiction and outside the competence of any RFMO/A.  
83. These provisions were discussed extensively  in the last several weeks and Members' views 
continue to differ.  
84. On Article 5.2(a), a number of Members wanted to delete it entirely from the text, while some 
Members supported it, and several suggested, as a possible compromise, that Article 5.2(a) shou ld 
be subject to the sustainability elements embedded in Article 5.1.1.  
85. Given this wide divergence of views, I found the latter suggestion to be the one that might 
attract more convergence. Therefore, subsidies contingent upon, or tied to, fishing outside the 
subsidizing Member's jurisdiction have been added to the list of subsidies that contribute to 
overcapacity or overfishing in Article 5.1, as new item (i). This language has been included in 
brackets.  TN/RL/W/276/Rev.2/Add.1  
 
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  86. As an editorial change, the footnote to this provisi on, new footnote 10, has been revised to 
make it consistent with the provision to which it now refers.  
87. This brings us to Article 5.2(b) of Rev.1, the exemption from the prohibition in Article 5.2(a) 
of Rev. 1 for the non -collection of government -to-governm ent payments under access agreements, 
subject to, inter alia , compliance with the requirements of Article 5.1.1. Since this is an exemption 
from the prohibition in previous Article 5.2(a), which now has been moved to Article 5.1 and thus 
has become subject  to the provisions of Article 5.1.1, as in any event was the case under  the 
previous Article 5.2(b), this provision would appear to be redundant and thus has been deleted.  
88. It is important to note that from my perspective the cleanest  way to reflect this su ggested 
change in Rev.2 is as it  is being presented today. However, this means that the brackets around the 
language  – now in Article 5.1(i)  – represent the overall change just described, and not only the 
language contained within the brackets. Meaning tha t if Members accept eliminating the brackets, 
the change is perfected; but if you do  not, the entire amendment would need to be reverted to the 
previous version as reflected in Rev.1.  
89. Then we have Article 5.3 of Rev.1 concerning prohibition of all subsidi es to fishing in the high 
seas – that is, outside of any Member's jurisdiction and outside the competence of any RFMO/A. This 
provision has attracted either support or acceptance from a broad range of Members. Hence, this 
provision remains in the draft tex t as the new Article 5.2.  
90. The term "coastal non -Member" has been added to this provision, in square brackets, to reflect 
discussions to the effect that this provision is intended to prohibit subsidies only to those areas 
where there is no fisheries managem ent in place, regardless of whether the coastal entity having 
jurisdiction over that area is a WTO Member or not. As I said, this phrase is in brackets , meaning it 
is subject to further discussions.  
Article 5.3  
91. Concerning Article 5. 3 of Rev. 2,  on subsidie s for a vessel not flying the flag of the subsidizing 
Member, this Article now contains two alternatives.  
92. Alternative 1 contains the unchanged language from Article 5.4 of Rev.1 and reflects the views 
of those Members who consider this provision to be nec essary.  
93. However, some Members reject the presumption underlying this proposed prohibition and 
have been pressing for its deletion. An alternative was suggested to address this concern, which is 
now included as the second alternative of Article 5.3.  
94. Both a lternatives are in square brackets and more discussion and engagement among 
concerned delegations is needed on this issue.  
Article 5.4  
95. Turning to special and differential treatment which now appears in Article 5.4 due to the 
restructuring and thus renumber ing of the preceding provisions.  
96. SDT has been an issue of particular concern for many Members and many of our discussions 
in the past weeks have been revolving around this provision.  
97. Article 5.5. ALT 1 of the previous draft text has not attracted converge nce. 
98. ALT 2 of Article 5.5  in Rev.1 , while having a certain support, was considered imbalanced by a 
range of Members, although for opposite reasons – some considering it too narrow and rigid and, at 
the opposite end of the spectrum, others considering it to o broad and permissive.  
99. As our discussions have continued, they have evolved away from both of the alternatives in 
Rev.1, and I have been receiving new suggestions from different Members and groups of Members 
on this topic.  TN/RL/W/276/Rev.2/Add.1  
 
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  100.  In meetings held in the past se veral weeks, in both small groups and bilateral consultations 
with interested delegations, Members have been saying that I as Chair should try my hand at putting 
together different elements in the form of a new clean text on SDT for Article 5, reflecting w here I 
consider a landing zone could lie among different views.  
101.  On the basis of all of this, I have made certain changes to the previous formulations on SDT 
in the overcapacity and overfishing pillar, with the aim of making these provisions more broadly 
acceptable to Members. For the reasons that I have just explained, the new draft text replaces both 
of the alternatives that appeared in Rev.1, although the elements incorporated are common to 
elements from such alternatives and will not be unfamiliar to any one.  
• A first change is that for the sake of coherence I have moved the SDT provisions for LDC  
Members in respect of the overcapacity and overfishing disciplines to Article 6, thus 
consolidating all of the LDC -specific provisions in the disciplines. I will explain this in more 
detail when I come to Article 6.  
• Second, the previous Article 5.5(c) con cerning the transitional period has changed its 
function in Rev.2 and is now in Article 5.4(a), in square brackets, with some specific 
changes.   
First, whereas the transition period in the inner square brackets in the earlier draft was 
5 years, this has b een replaced with a placeholder, "X" in square brackets. This reflects the 
evolution of Members' discussions on this text, ranging from some who think that 5 years 
is already too long to those who have suggested a transitional period for as long as 25  years. 
This is clearly an area that needs further discussions.  
Second, inner square brackets have been placed  around the phrase "within its EEZ and the 
area of competence of a relevant RFMO/A" to indicate that the geographical scope of this 
paragraph could be  a focus of further debate in line -by-line negotiations, particularly in light 
of the movement of former Article 5.2(a) into the list in Article 5.1.  
• Third, Article 5.4(b) provides for certain flexibilities that would apply beyond the transitional 
period under Article  5.4 (a). This responds to what I have been hearing from many 
developing Members over the past weeks highlighting as their top priority for SDT: (i) being 
able to support their subsistence, artisanal and small -scale fisheries; and (ii) not dis ciplining 
those developing Members with insignificant shares of marine global capture production. 
These elements are reflected in Article 5.4(b) of Rev.2.  
102.  Article 5.4(b) (i) provides for SDT in the form of an exemption from Article 5.1 based on a 
developi ng Member's annual share of global marine capture production, known in these negotiations 
as the 'de minimis ' approach. This provision is in square brackets. Concerning the de minimis  level 
itself, I note that the figure of a 0.7% share has been suggested by several delegations, and this 
has been used as a starting point for discussions. This is the same figure that was used in a similar  
provision in Rev.1; and I should remind Members that as explained for an earlier draft, this figure 
was also part of and widely discussed by Members during the SDT -specific Friend of the Chair 
process. The figure, however, remains in brackets, as it needs further discussion.  
103.  The data used for calculating this figure are the official FAO statistics on wild marine capture 
production which ha ve the same scope as the definition in Article 2(a), in particular excluding 
aquaculture and inland fishing. At the request of a number of Members last week, the Secretariat 
has been in touch with the relevant FAO department which has confi rmed the data source and the 
table with the data that we have been using, which will be circulated to all Members later today. In 
this way, all Members can discuss these data on the basis of one source, which is the one identified 
by the FAO as relevant to  our work here.  
104.  Concerning Article 5.4(b)(ii) on SDT for artisanal and small -scale fisheries, I have noted that 
several Members have indicated that in some cases artisanal fishing may go beyond 12 nautical 
miles, and some have suggested to extend this lim it up to the Member 's EEZ. Other Members, 
however, believe that no vessel navigating beyond 12 nautical miles should be considered as 
artisanal fishing, and thus are against extending this limit in the provision. To reflect the need to 
further discuss this  issue, the number 12 in "12 nautical miles" is now in square brackets.  TN/RL/W/276/Rev.2/Add.1  
 
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  105.  From our extensive discussions on this issue, Members have also suggested that Members 
availing themselves of the use of the SDT provisions shall endeavour to ensure that the subsidie s 
provided do not contribute to overcapacity and overfishing. This has been a shared view of both 
developed and developing country Members. To reflect this discussion, Article  5.4(c) has been 
included in this article.  
ARTICLE  6 
106.  Article  6 contains specific provisions for LDC Members. Since the draft text was first 
consolidated over a year ago, this Article was composed of two provisions: one granting a transitional 
period for graduating LDC Members; and the second calling for due restraint for all other Members 
in raising matters involving LDC Members.  
107.  In Rev.2, three new changes have been made, all of which relate to the special and differential 
treatment specific to LDC Members under Article  5 which has now been moved to Article  6. The 
move was not substantive, but for consistency and coherence by consolidating all LDC -specific 
provisions in one place.  
108.  In substance, the new Articles  6.1 and 6.2 ALT  1 provide for special and differential treatment 
under Article  5. Article  6.1 is a straightforward exemption for LDC Members from the prohibition 
under Article  5.1, which in Rev. 1 was found in Article 5.5(a) of ALT 2.  
109.  In this new revision, Article  6.2 ALT  1 provides a preferential timeline for the graduating LDC 
Members for using the ti me-bound special and differential treatment under Article  5.4(a). In 
particular, whereas the transition period in Article  5.4 starts at the date of entry into force of these 
disciplines, for graduating LDC Members, this transition period would start upon g raduation.  
110.  However, with this new language, the existing provision on the transitional period for 
graduating LDC Members became redundant for the purpose of Article  5, in the sense that both 
provisions were meant to provide an additional transitional perio d for graduating LDC Members. To 
reflect this, the existing and new transitional mechanisms for graduating LDC Members have been 
formulated as alternatives, with the existing text being ALT  2.  
111.  The existing text of Article  6.3 remains the same, but it now adds a new second sentence that 
an LDC Member shall "endeavour to ensure that its subsidies do not contribute to overcapacity or 
overfishing". This was intended to mirror in the LDC Member -specific provisions the same 
"best-endeavour" language that has bee n added to SDT in Article  5.4 pertaining to developing 
country Members.  
ARTICLE  7 
112.  Article  7 is a provision on technical  assistance and capacity building. I would recall that there 
are ongoing discussions dealing with this provision and that any change wou ld be premature at this 
stage. As a result, this text remains unchanged.  
ARTICLE  8 
Footnote  13 
113.  Article  8, on notification and transparency, has changed in a number of ways, reflecting the 
constructive discussions we held few weeks ago as well as subsequen t work building on that 
discussion.  
114.  The first change in Article  8 is in footnote  13 to the chapeau of Articles  8.1(a) and (b). Let me 
start with an editorial change. In the previous version, there were two separate footnotes, one to 
subparagraph  (a) and another to subparagraph  (b), but both containing the same language. This 
has been simplified into a single footnote such that both subparagraphs  (a) and (b) now refer to the 
same, single, footnote  13. This is a purely editorial change following the example in footnote  58 of 
the SCM  Agreement, which is referred to in multiple provisions.  TN/RL/W/276/Rev.2/Add.1  
 
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  115.  Substantively, in the previous draft, this footnote granted an extension of the notification 
period to all developing country Members. As a result, all developing country Members were allowed 
to make the required notification every four years, instead of two years that would apply to other 
Members.  
116.  During our discussions on this text, some Members, including several developing country 
Members, considered  that general development status is a poor indicator of a Member's capacity to 
notify or the level of sophistication of its fisheries subsidies notification system. In this view, for 
some developing Members, an extended period may not be needed or warrante d. In addition, some 
developing Members were of the view that a notification interval that is too long may not be helpful 
for them in any event. These Members preferred to reserve the extended notification period for 
those that need it the most, such as LD C Members and developing Members with a small fisheries 
footprint.  
117.  To reflect this discussion, and to facilitate further talks in the next phase, the footnote has 
been modified so that the extended notification period applies only to LDC Members and develo ping 
Members whose share of the global catch falls below a threshold, using the criteria used in 
Article  5.4(b)(i).  
Footnote  14 
118.  Next, Article  8.1(a) contains two items that are required to be notified as part of each 
Member's subsidies notification, one o f which is catch data by species for fisheries for which the 
subsidy is provided.  
119.  On Tuesday, 2  November, I had a meeting with a small -group to discuss the question of 
notification of catch data by species as in Article  8.1(a)(ii). The aim was to focus on this requirement 
in the context of multispecies fisheries, which has been a source of concern for some Members.  
120.  During our work so far, including during this small -group meeting, some Members have 
expressed their concern that species -specific catch data ar e difficult to collect, in particular where 
multiple species share the same waters and fishers catch a wide variety of fish and are unable to 
report their catch by species. Given these difficulties, some Members suggested that for such 
fisheries they shoul d be able to provide catch data using a more general aggregation. To address 
this particular concern in the multispecies context, footnote  14 has now been added to  
Article  8.1(a)(ii), stating that: "For multispecies fisheries, a Member instead may provide other 
relevant and available catch data".  
121.  Before moving on, let me recall that some Members suggested also addressing this concern 
by moving the species -specific catch data requirement to Article  8.1(b), which requires notification 
"to the extent possible" . During our work, it has been clarified that the concern regarding 
multispecies fisheries is disaggregating catch data by species, not collecting and reporting catch data 
as such. For instance, I have been reminded that aggregate, mixed catch data are oft en provided to 
the FAO for reporting purposes. The revision thus reflects the straightforward requirement to notify 
catch data, with a flexibility in the new footnote that would allow more aggregated data to be 
reported for multispecies fisheries.  
Article  8.1(b)  
122.  This leads me to the next change, which is the removal of the square brackets around the 
phrase "to the extent possible" in the chapeau of Article  8.1(b).  
123.  As you know, this phrase qualifies the notification requirements in Article  8.1(b) – for the  
status of the fish stocks, relevant conservation and management measures, information about 
fishing vessels, and fleet capacity information – so that such information is required to be notified 
"to the extent possible". You would recall that we had a good  exchange on this question on 
4 October, where a broad range of Members said the brackets should be removed – and now they 
have been.  TN/RL/W/276/Rev.2/Add.1  
 
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  Article  8.1(b)(i)  
124.  In Rev.1, the first item under Article  8.1(b) required notification of the status of the fish stocks 
in the fishery for which the subsidy is provided, along with whether such stocks are shared or 
managed by an RFMO/A.  
125.  In our discussion of this text, some Members also wanted to add "the reference points used" 
in relation to the status of fish stocks. In the ir view, notification of the stock status is linked to the 
sustainability -based conditions in Articles  4.3 and 5.1.1, which use reference points as a basis for 
stock assessments in footnote  9. This is now reflected in the revised draft for our further disc ussion.  
Article  8.2(b)  
126.  Article  8.2 includes information that should be notified relating to IUU fishing determinations.  
127.  In this revision, Article  8.2(b) is new and it would require notification of any vessels or 
operators for which a Member has informati on that reasonably indicates the use of forced labour.  
128.  As you recall, this proposal was first raised in May this year in TN/RL/GEN/205, which we have 
discussed on several occasions, along with the language in Article  3.1 that I have already noted. In 
those  discussions, various Members shared the particular concern over the use of forced labour in 
illegal fishing activities and supported enhanced transparency on it. Some others said they were not 
proponents of this initiative but found it acceptable.  
129.  Howeve r, some other Members have expressed opposition on the basis that this issue is 
outside of the WTO's competence. Given these different views, the change is reflected in square 
brackets for further consideration.  
Article  8.2(c)  
130.  Article 8.2(c) on transparenc y in respect of government -to-government access agreements 
has been expanded. In Rev. 1, only the titles of and parties to the agreements or arrangements 
needed to be notified. In our discussion, there was a broad call for greater transparency, and specifi c 
drafting suggestions for this were made.  
131.  The list of information now found in (i) through (vi) includes the titles, parties, full text and 
other details of access agreements or arrangements, and how such access is subsequently used. 
These changes reflect  the suggestions made by Members during our discussions. At the same time, 
some Members have said that providing this much detail in a notification is unnecessary when the 
required information is already publicly available and easily accessible. To address  this concern, the 
new draft allows this requirement to be met by providing an electronic link.  
132.  Let me also note a small, additional change from the reference to fisheries access 
"agreements" to "agreements or arrangements", which is meant to cover the var ious forms that 
such instruments may take. This change is for completeness and is not meant to have any 
substantive implication.  
133.  As I already have explained under Article  5, the text in that Article in Rev. 1 that specifically 
referred to access agreements or arrangements has been deleted in this revision. However, 
Article  5.1, along with Article  5.1.1 and footnote  9, means that sub sidies for fishing or fishing related  
activities under such an access agreement or arrangement remain relevant to the disciplines in 
Article 5.  
134.  Before moving to the next provision, let me recall that there have been other suggestions for 
additional notifi cation and transparency requirements. Among others, as I said earlier in relation to 
Article  1.2, some Members want to introduce additional notification requirements for non -specific 
fuel subsidies, either as an alternative or a complement to Article  1.2. But as I also mentioned, given 
the close linkages among all these issues, such an amendment in the transparency provisions would 
be premature at this stage. I will share my thoughts on how we can best move forward on this issue 
in a moment.  TN/RL/W/276/Rev.2/Add.1  
 
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  Article  8.5 
135.  As you know, Article  8.5 was new in Rev.1, and it requires notification of certain information 
about RFMO/As based on the textual suggestions made by some Members. During the discussion of 
this language, a number of concerns were raised. In particular:  
• that the initial draft said annual notifications, but some Members found this unnecessary 
since the required information – such as the text of the legal instrument, parties to and 
competence of RFMO/As, relevant conservation and management measures, and the reg ime 
governing IUU fishing determinations – generally do not change from one year to another;  
• in addition, given that more than one WTO Member may be a party to a given RFMO/A, 
requiring each Member to make the same notification would be redundant; and  
• as with in Article  8.2(c), some Members were concerned that notifying all of these details 
may not be necessary when the required information is already available online.  
136.  Based on these views, the revised draft Article  8.5 now:  
• requires one -time notification  upon entry into force of the disciplines and prompt notification 
of any subsequent changes thereafter;  
• allows groups of Members to make the required notification together; and  
• allows this requirement to be met by providing an electronic link as set out in  a new 
footnote  16. 
Article  8.6 
137.  The last paragraph under Article  8 is Article  8.6. This is a new provision explicitly clarifying 
that nothing in Article  8 requires the provision of confidential information.  
138.  While some Members considered that this was alrea dy implied, for example in the qualifier "to 
the extent possible" in Article  8.1(b), several Members raised a need for express language. This 
concern was raised with respect to different provisions under Article  8, including the vessel 
information under Ar ticle 8.1(b) and some information pertaining to government -to-government 
access agreements under Article  8.2(c). Thus, the new text in Article  8.6 is drafted to apply to 
Article  8 as a whole.  
ARTICLES  9 AND 10  
139.  There are no changes in Articles  9 and 10, ex cept for a small change, removing the brackets 
around the title of Article  9, "Institutional Arrangements". This change is not meant to indicate any 
substantive change, including on whether the fisheries subsidies disciplines should be an annex or a 
stand -alone agreement. It is only to indicate that there has not been any objection to this text as 
such, setting aside the issue of whether we keep this Article or not depending on the eventual legal 
form of the disciplines.  
140.  Of course, let me also recall that t he absence of changes does not imply that Members have 
agreed to what is contained in these provisions. It is clear that some issues remain to be further 
discussed and resolved in both of these Articles. In particular, I have heard various ideas and 
sugges tions on the review mechanism, which is contained in Article  9.6, specifically on when the 
first review should take place, ranging from few years to 10 or more years after the entry into force.  
141.  On the dispute settlement provision in Article  10, suggestion s have been made on a range of 
issues, from applicability of Article  4 of the SCM  Agreement to remedies and countermeasures. 
Dispute settlement, as you know, is a complex and sensitive issue, and also one that would benefit 
from more focused discussions be fore we take it up clause -by-clause, and I will address this point 
shortly.  TN/RL/W/276/Rev.2/Add.1  
 
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  142.  I am also aware that there are other issues that have been raised  concerning these provisions , 
which is precisely the task ahead of us in the clause -by-clause process.  
ARTICLE  11 
143.  There are no changes to the Rev.1 versions of Articles 11.1 to 11.4 in this new revision. That 
said, and as I mentioned before, it is clear that we will need to have further focused discussions on 
Article 11.4.  
144.  In addition, I would point to Article 11.5 which is n ew text in this revised draft , in square 
brackets . It is based on textual suggestions made by some delegations and groups of delegations, 
and it clarifies that, except as provided in the disciplines, a Member neither becomes bound by 
decisions of, nor reco gnizes, any RFMO/A of which it is not a party.  
145.  This is intended to reflect a general understanding I heard from Members that our mandate is 
about fisheries subsidies. While RFMO/A decisions and measures are referred to in the text, these 
references are mad e for the purpose of fisheries subsidies disciplines, and are not meant to have 
implications apart from those disciplines.  
146.  To this end, there were a number of different ideas to address this issue. Some were more 
broadly formulated in terms of internation al law and as a scope provision; while some were narrower 
and formulated only with respect to RFMO/As, and placed in Article  11. The revised draft text in 
Article  11.5 seeks to reflect the common denominator of these various proposals as a starting point 
of our discussion on this issue for the next phase.  
CONCLUSION  
147.  This brings me to the end of my explanation of the revised text. Thank you for bearing with 
me, I know that was a lot of information. To help you in assessing the revised draft text, as I have 
done for previous iterations of the text I will circulate this detailed explanation to you shortly after 
this meeting.  
148.  Regarding next steps, where we need to go from here is simple: we have to genuinely 
negotiate. We have only three weeks left until MC12 a nd only two weeks before we need to send 
something to Ministers through the General Council. Our objective before then is to collectively 
evolve this draft text ideally into a completely clean text, or at least as clean as possible with only 
one or two iss ues left for our Ministers to decide. As I communicated to you in my e -mail of 
4 November, and as has been the plan since we resumed our work following the summer break, we 
now will need to meet very frequently – essentially every day – starting tomorrow, to review 
everything together clause -by-clause.  
149.  For tomorrow, although I had previously suggested that we start at 10  AM, I now am 
suggesting instead that we start at 3  PM. The reason for this is to give your capital -based officials 
in their respective time zones sufficient time to review the revision and the addendum containing 
the explanation that I have just presented, before we start our detailed discussions.  
150.  To kick  off our work this week, I suggest that we start by focusing on the following issues . 
• Tomorrow afternoon starting at 3  PM, I suggest that we discuss the choice between ALT  1 
or ALT  2 in Article 3.3 of the IUU fishing pillar. The Secretariat has made arrang ements in 
the event that we need to continue that discussion past 6 PM;  
• Starting Wednesday from 10:30  AM, I suggest that we take up the overcapacity and 
overfishing pillar, beginning with special and differential treatment under Article 5.4 and 
continuing through to Article 5.1.  
151.  For now, this is as much forward planning as I can provide. We will need to see how these 
initial discussions go, and based on that make any necessary tweaks to the process. I will of course 
keep this in mind as we proceed, and I wo uld welcome any feedback from delegations in this regard 
as well. The main thing is that, to be able to thoroughly consider each provision of the text, we will 
need to conduct our work, and be prepared to adjust our methods, so as to make progress as quick ly TN/RL/W/276/Rev.2/Add.1  
 
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  and efficiently as possible. I also would recall the many interlinkages among provisions, and would 
anticipate that delegations will be flagging these as we discuss any given provision. In addition to 
helping us to maintain a holistic view of the text a s we focus on the specific drafting of individual 
provisions, this also may lead to a natural logic in how and when we take up different parts of the 
text.  
152.  As I mentioned a few moments ago, it is clear that not all draft provisions in the text are at 
the same level of maturity, with some still needing additional focused technical discussion. Because 
we have spent essentially all of our time since September focusing on the key "macro issues ", we 
have not yet had time to turn to other important areas of the text, although we know that various 
Members have issues they wish to see addressed in those areas. For now, the areas of the text that 
I believe would benefit from additional technical discussion before we take them up clause -by-clause 
are:  
• Article 10;  
• Article 11.4; and  
• Article 1.2 . 
153.  Given the short time that we have and the need to progress our clause -by-clause work on the 
main sticking point issues, I believe the best way to advance the technical discussions in these other 
areas is to ask a couple of Fr iends of the Chair to take on those issues for a short period. In particular, 
the idea is for them to take a few days to work with interested Members on a particular issue in 
various configurations, and to bring the results back to the Negotiating Group fo r consideration in 
the clause -by-clause discussion. I am reaching out to some possible Friends and will communicate 
who they are in the very near future.  
154.  Taking this into account, for this week I suggest that tomorrow afternoon, all day Wednesday, 
and Thu rsday morning we meet amongst interested delegations to discuss the provisions I identified 
a few minutes ago, and then reserve Thursday afternoon for meetings in various formats, including 
time for Members to consult with each other, and for other meeting s in different configurations 
including possibly with Friends of the Chair.  
155.  Finally, last but far from least, let me provide my specific suggestions, and indeed entreaties, 
to all of you on how I think we should engage in the clause -by-clause discussions.   
• First and foremost, and as I reminded Members in our last TNC meeting, we are no longer 
debating, we are negotiating. Given the interlinkages and the careful balance we must 
preserve, if a delegation wants to make substantive changes in one area, that de legation 
should be ready to make offsetting concessions, or consider alternative ways of achieving 
the same objective that may be more acceptable to others and, most importantly, consider 
the possible implication their suggestion would have for other parts  of the text. That is, a 
suggestion that addresses your concern but takes us away from convergence does not help 
us with our objective. Likewise, a suggestion intended to attract greater convergence should 
seek to address concerns of Members holding differ ent views.  
• Second, it is our collective responsibility to not build a new Christmas tree – that is not what 
Ministers asked us to deliver (despite that fact that we are nearing the festive season). In 
this regard, it is critical that collectively we hold o urselves and one another to a high 
standard for requesting substantive changes. Only those suggestions that seem to attract 
a higher level of convergence, from a diverse group of Members, should be seriously 
entertained. Furthermore, while delegations are of course free to suggest technical changes 
aimed at clarifying the drafting, at the end of the day if such suggestions do not attract 
convergence, the Negotiating Group will need to move on quickly. Regardless of the nature 
of a suggested change, whether substantive or technical, the delegation making the 
suggestion should always ask itself "what can my delegation live with"? Again, we will need 
to be very disciplined as we collectively consider drafting suggestions, to focus on those 
that address concerns  and attract more convergence among all Members. The key word 
here is the word "and".  TN/RL/W/276/Rev.2/Add.1  
 
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  • Third, we all must remain open, flexible and pragmatic. As I mentioned earlier, different 
issues are reflected differently in the text, so the nature of the discussions should reflect 
these differences. That is, we may need to use different approaches or working 
methodologies for different issues, as no single method will necessarily work for all issues. 
In addition, in terms of scheduling, while I will try my best to giv e you as much advance 
notice as possible for what we will take up when, this is a rapidly evolving situation and we 
will need to be guided by how the discussion of one issue may naturally lead us into another. 
So please be prepared for anything – this is t he nature of the end game.  
• Last but certainly not least; please do  not bring statements.  
156.  Before I conclude, I note that many Members have been requesting arrangements to allow 
remote participation of capital -based colleagues in the clause -by-clause discus sions. To respond to 
this request, the Secretariat has arranged for Interprefy for all of the open -ended meetings.  
157.  Colleagues, we are closer than we have ever been in the 20 years of these negotiations. This 
is not an overstatement or an inspirational statement. We are literally two weeks away from a 
potential agreement, and we have made enormous progress in reconciling the very diverse 
perspectives and interests of the large number of WTO Members who have critical interests in 
fisheries a nd in these negotiations. And we have gotten here only because of your commitment and 
dedication, and how you have engaged with one another.  
158.  But we are not done. We absolutely cannot just pat ourselves on the back, let alone rest on 
our laurels. To the con trary, we need to capitalize on all of this progress and maintain an even higher 
level of intensity if all of this work is to finally pay off. It is no exaggeration that the work of the NGR 
over the past 20 years – and to an extent how the world views the WTO as a whole – will be judged 
by whether in the next two weeks we can finally deliver on our mandate. A lot is on your shoulders. 
But I have seen your collective commitment and dedication over the past two years first -hand, and 
I genuinely have no doubt that, we can make it happen.  
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