RESTRICTED  
  
S/WPDR/M/76  
 
13 December 2019  
(19-8631) Page: 1/19 
Working Party on Domestic Regulation    
 
REPORT OF THE MEETIN G HELD ON 3 DECEMBER  2019 
NOTE BY THE SECRETAR IAT1 
The Working Party on Domestic Regulation (WPDR) held a meeting on 3 December  2019 chaired by 
Ms Shani Griffith -Jack from Barbados . The agenda for the meeting was contained in document 
WTO/AIR/WPDR/1 4 dated 22 November  2019. The report of the previous  meeting of the Working 
Party, held on 20 March 2019, is contained in document S/WPDR/M/7 5. 
Before  turning  to the substance  of the meeting,  the Chairperson  recalled  that following  the 
agreement  by Members  on a slate of names  for the Chairpersons  of the Council  for Trade  in Services  
(CTS)  subsidiary  bodies,  the election  of the Chairpersons  for 2019 had been conducted  through  a 
written  procedure  and had been confirmed  through  a fax dated 20 June 2019. Since  her election,  
the Chair had consulted  bilaterally  with several  delegations.  
 
No item was raised  under  Other  Business , and the agenda  was adopted  as circulated . 
 
1  ITEM A: DEVELOPMENT OF DISCIPLINES ON DOMES TIC REGULATION THROU GH A 
REFERENCE PAPER BY T HE JOINT INITIATIVE ON SERVICES DOMESTIC  REGULATION – 
REQUESTED BY INDIA, SOUTH AFRICA, SRI LA NKA, TUNISIA AND ZIM BABWE  
The Chairperson  stated that the substantive item for the agenda was titled "Development of 
Disciplines on Domestic R egulation Through a Reference Paper by the Joint Initiative on Services 
Domestic Regulation ". It had been requested by the delegations of India,  South Africa, Sri Lanka, 
Tunisia,  and Zimbabwe.   
The representative of India recalled that, o n the margins of t he MC11 at Buenos Aires, 59 
Members had issued a Joint Statement on Services Domestic Regulation, reaffirming their 
commitment towards "concluding the negotiation of disciplines on domestic regulation pursuant to 
the mandate contained in Article VI:4 of the GATS ". Subsequently, on 23 May 2019, they had issued 
a second Joint Statement, "bearing in mind the multilateral mandate of Article VI:4 of GAT S".2  
India underst ood that the Joint Initiative negotiations on domestic regulation  were moving 
forward on t he basis of a draft Reference Paper dated 4 September 2019 (INF/SDR/W/1). It was 
mentioned therein that "the disciplines in Section II shall be inscribed in Members ' schedules as 
additional commitments under Article XVIII of the Agreement ". 
The delegation of India stated that their  concerns were two-fold: ( i) any "additional 
commitments " under GATS Article XVIII by the Members of the J oint Initiative  could not  purport to 
be a fulfilment of the GATS mandate under Article VI:4, which clearly had envisaged only a 
multilateral process, and the WTO Members ha d constituted the Working Party on Domestic 
Regulation for this purpose; and ( ii) while each Member had the right to incorporate "additional 
commitments " into its schedule, the underlying principle was that none of these additional 
commitments should directly or indirectly amount to a dilution or amendment of any of the provisions 
                                                
1 This document has been prepared under the Secretariat's own responsibility and is without prejudice 
to the positions of Members or to their rights and obligations under the WTO.  
2 The opening statement by India was circulated as Room Document RD/SERV/154, dated 3  December  
2019.  S/WPDR/M/7 6 
 
- 2 - 
 
  of the GATS; Article XVIII only envisage d "additional commitments " regarding measures affecting 
trade in services.  
With respect to the implications of the disciplines developed by the Joint Initiative for the 
multilateral mandate under GATS Article VI:4, India recalled that GATS Article  VI:4 provide d that 
"with a view to ensuring that measures relating to qualification requirements and procedures, 
technical standards and licensing requirements do not constitute unnecessary barriers to trade in 
services, the Council for Trade in Services shall, through appropriate bodies it may establish, develop 
any necessary disciplines ". Subsequently, there had been  a CTS Decision on D omestic Regulation  
(contained in document S/L/70, 1999) which mandate d the Working Party on Domestic Regulation 
to devel op necessary disciplines pursuant to GATS Article VI:4.  In other words, the same Article VI:4 
of the GATS , while containing a built -in mandate for disciplines on domestic regulation , clearly 
assigned  that role to the CTS through appropriate bodies, and the CTS in this case constituted the 
WPDR.  A lot of valuable work ha d been undertaken in the Working Party in the past twenty years 
which should form the basis of any future multilateral disciplines on domestic regulation . 
The delegation of India stated th at, therefore, the development of disciplines on domestic 
regulation by the J oint Initiative  outside the W orking Party , purportedly pursuant to Article VI:4 of 
the GATS, was clearly without multilateral mandate, since the GATS had not envisage d such an 
outcome. The CTS decision pursuant to the GATS had required that the WPDR  report ed its 
recommendations to the CTS. Hence, India enquired how could  a body other than the WPDR, as 
mandated by the CTS, develop domestic regulation disciplines pursuant to GATS Article VI:4 .  
The representative of India, noted that, e ven in terms of the structure and content, the draft 
Reference Paper reflect ed more the work done outside of the WTO, namely in RTAs and other 
regional groupings like the APEC. For India, it was therefore not surprising that the draft Reference 
Paper did not include any of the commercially significant disciplines in the area of Mode 4 and more 
specifically on qualification requirements and procedures (QRP), all of which had been  an integral 
part of th e earlier work of the WPDR. Recalling the history of domestic regulation  negotiations at the 
WTO, Members had negotiated Disciplines on Domestic Regulation in the Accountancy Sector 
(document S/L/64) in 1998. In fact, the WPDR had earlier  been called the W orking Party on 
Professional Services (WPPS). Several submissions had been  made by Members for disciplines in 
other regulated professional services like legal and engineering services.  
In short, while the Members of the Joint Initiative were  at liberty to  schedule additional 
commitments in their respective schedules under GATS Article XVIII on measures affecting trade in 
services, including matters regarding qualifications, standards or licensing, these could not  be said 
to be "Domestic Regulation discipli nes" under Article VI:4 of the GATS. A sub -group of 59 or 60 
Members could not  usurp the multilateral mandate assigned to the WPDR.  
Therefore, the representative of India stated that they were seeking respect for the multilateral 
mandate and past CTS decisions. India noted that the title of the draft Reference Paper, 
dated  12 July 2019 had been  changed from "GATS Article VI:4 Disciplines " to "Reference Paper on 
Services Domestic Regulation " in the draft Reference Paper , dated 4 September 2019. The title of 
Section II of the draft Reference Paper had also been changed from "GATS Article VI:4 Disciplines " 
to "Disciplines on Services Domestic Regulation. " In the same manner, India sought removal of all 
remaining references  to disciplines "pursuant to Article VI :4 of the Agreement " in the final version 
of the Reference Paper developed by the J oint Initiative .  
With respect to the interface between the disciplines developed by the Joint Initiative and the 
GATS, the delegatio n of India stated that s ome of the provisions in the draft Reference Paper were 
not merely improvements to schedules of the Members participating in the J oint Initiative . Rather, 
they change d some of the existing GATS obligations , hence affecting all Members ' rights and 
obligations, including the rights and obligations of Members not part of the J oint Initiative . These 
draft provisions therefore could not  be scheduled as additional commitments under Article XVIII of 
the Agreement.  India highlighted s ome such provisions in the draft Reference Paper , includ ing the 
following:  
a. Footnote 15 in the draft Reference Paper change d GATS VI:4 (a) : India recalled that GATS 
Article VI:4  (a) mandate d Members to ensure that measures relating to qualification 
requirements and procedures, technical standards and licensing requirements were based S/WPDR/M/7 6 
 
- 3 - 
 
  on "objective and transparent criteria such as competence and the ability to supply the 
service ". Footnote 15 of the draft Reference Paper state d that such criteria may , inter alia , 
include "health and environmental requirements ". Clearly, any "objective and transparent 
criteria " needed to have an objective correlation to the supply of a service. The GATS had 
envisaged "competence and ability to supply the service " which were factors that relate to 
the supply of a service. The draft Reference Paper was essentially equipping a host countr y 
to apply extraneous and additional factors, unrelated to competence and ability to supply 
a service, to exclude foreign service suppliers. This could  also potentially nullify and impair 
the value of commitments undertaken in a schedule. India considered that t he relevance , 
practical effect , and enforcement of footnote 15 was also unclear. Any non -discriminatory 
domestic regulation including those pertaining to "health and environmental requirements " 
that a country may have, need ed not be scheduled. India therefore request ed that 
Footnote  15 be appropriately amended and brought in to conformity with the GATS.  
b. Paragraph 22 of the draft Reference Paper : India stated that, t hrough paragraph 22, the 
draft Reference Paper purport ed to develop "new" disciplines on  measures relating to 
licensing requirements, qualification requirements or technical standards. However,  India 
considered that,  on a closer read, it effectively appear ed to truncate, dilute and change 
the requirements of GATS Article VI:5. GATS Article VI :5 mandate d Members, inter alia , 
to not apply domestic regulation  that nullify or impair specific commitments in a manner 
which did not comply with the criteria outlined in GATS Article VI:4 (a), (b) and (c), 
pending the entry into force of disciplines developed pursuant to Article VI:4. In effect, 
the Joint Initiative envisaged a modified applicability of Article VI:5, which amounted to 
an amendment of Article VI:5. Therefore, In dia sought that all references to disciplines 
"pursuant to Article VI :4 of the Agreement " in the final version of the Reference Paper be 
removed and footnote 15 to Paragraph 22 (a) of the Reference Paper on Development of 
Measures be made consistent with provisions of GATS Article VI:4 (a).  
c. Footnote 16 of the draft Reference Paper : In India 's understanding, any non -
discriminatory domestic regulation, including those relating to gender, need ed not be 
scheduled. In this context, India sought  a clarification on the meaning and ambit of 
footnote 16.  
d. Paragraph 13 of the draft Reference Paper provide d that, further to GATS Article III, 
Members shall promptly publish relevant information required for authori zation. India 
noted that t he use of the phrase, "further  to Article III of the Agreement ", seem ed to be 
interpreting the scope of GATS Article III and its various provisions. To avoid this, India 
considered that it was crucial for the J oint Initiative  to drop reference to GATS Article III 
as well as clarify in the Reference Paper that Paragraph 13 was without prejudice to the 
obligation under GATS Article  III.  
e. Footnote 11 of the draft Reference Paper : India stated that  GATS Article IV:2 mandate d 
all developed country Members to establish contact points within t wo years of entry into 
force of the WTO, to facilitate access to service suppliers of developing country Members 
to information, on inter alia , "commercial and technical aspects of the supply of services; 
and registration, recognition and obtaining of prof essional qualifications "- which were all 
elements of the domestic regulation  disciplines. However, Footnote 11 of the draft 
Reference Paper effectively modifie d GATS Article  IV:2, by stating that all Members, 
including developed country Members, could , on the basis of "resource constraints " 
determine for themselves what would be an  "appropriate " mechanism to respond to 
queries. Service suppliers of developing cou ntry Members , under GATS Article  IV:2, were 
always required to have access to contact points in developed countr y Members  to answer 
any queries relating to, inter alia , commercial and technical aspects of the supply of 
services and registration, recognitio n and obtaining professional qualifications. India 
considered that t his could not  be diluted under the text of any additional commitments  
inscribed under GATS Article XVIII . As such, Footnote 11 of the draft Reference Paper was 
a GATS -minus provision. Ther efore,  India sought  this provision to be amended. At the 
most, only developing country Members might  be able to consider incorporating such a 
provision.  
f. Paragraph 11 of the draft Reference Paper on "Recognition ": India noted that the  interface 
between this  paragraph and  GATS Article VII need ed to be better understood. India S/WPDR/M/7 6 
 
- 4 - 
 
  wondered whether Paragraph 11 impl ied a new derogation to GATS MFN treatment 
because it seem ed to encourage recognition dialogue between the professional bodies of 
'relevant ' WTO Members . Paragraph 11 of the draft Reference Paper appeared to 
undermine the mandatory obligations of Members under GATS  Articles  VII:2 and VII:3, in 
relation to agreements or arrangements on recognition. If the regulatory regime of a 
Member vested an autonomous professional body with the task of recognition of 
professional qualifications, then under GATS Article VII, the obligation to ensure the 
opportunity to adhere to agreements/ arrangements for recognition would apply in any 
case. The draft Reference Paper, i n stating that a Member "should consider supporting the 
dialogue " was effectively diluting the scope of GATS Article VII. It was therefore imperative 
for the J oint Initiative  to clarify these issues.  
The representative of India concluded that t he Joint Initiative  was not mandated to and could 
not assume the role of developing disciplines under GATS Article  VI:4, which was a multilateral 
function. What Members of the Joint Initiative could  do was to incorporate elements that fell within 
the scope of GATS Art icle XVIII as "Additional Commitments " in their respective schedules. But 
clearly, such additional commitments could not  amend, interpret , or clarify any existing provision of 
the GATS. As outlined above, India considered that appropriate textual changes a nd clarifications 
were therefore imperative for the draft Reference Paper  developed by the Joint Initiative  to achieve 
this. 
The representative of  Sri Lanka  wishe d to join other co -sponsors in introducing the two 
agenda items for the meeting and stated that the concern s were both systemic and specific.  
First with respect to  systemic concerns, Sri Lanka firmly believe d that GATS Article VI :4 
contained  a multilateral negotiating mandate. GATS  Article VI:4 read that that "the Coun cil for Trade 
in Services shall, through appropriate bodies it may establish, develop any necessary disciplines ". 
Accordingly, the WPDR had been  established in 1999 to develop any necessary disciplines under this 
mandate . A clear multilateral pathway had b een mandated and pursued, even though those 
negotiations had not been concluded due to disagreements about whether the disciplines were 
"necessary " or what parts of the disciplines were "necessary ".  
The delegation of Sri Lanka enquired whether, g iven the multilateral mandate, some WTO 
Members could establish a competing and parallel mechanism to pursue and achieve those same 
objectives, without the consent of the entire membership of this multilateral body, and attempt to 
bring those negotiated ou tcomes back to the multilateral framework through schedules.  This was 
parallel to some WTO Members negotiating new rules and appending these to their multilateral GATT 
schedules, and offering this on an MFN basis, without the consensus of other Members.  
Sri Lanka noted that, i f this was done, in effect, Members would  contraven e the consensus 
principle of decision -making embedded in Art icle IX of the Marrakesh Agreement , as well as the rule 
of Amendments in Marrakesh Agreement Art icle X (since GATS rules were being added to and 
changed)  and would  ignore the multilateral  mandate . 
Subsequently , the delegation of Sri Lanka focuse d on specific issues of concerns they had 
detected in the Reference Paper developed by the Joint Initiative. Essentially , Sri Lanka considered 
that the expected negotiated outcomes would c ontradict, or change GATS obligations and Members ' 
rights, even for those Members who were not part of the Joint Initiative . In Sri Lanka 's 
understanding , these changes demanded  an amendme nt of the GATS.   
Some examples of the contradictions or differences include : 
a. Footnote 11 to paragraph 14 on  "Enquiry points " provide d "resource constraints " as a 
possible reason not to hear enquires . This undermine d developing countr y Members ' rights 
under GATS Art icles III:4 and IV :2. Sri Lanka considered that d eveloped country Members 
in the Joint Initiative were  claiming for themselves flexibilities not provided under the 
GATS. Art icle III:4 provided  some special and differential treatment t o developing  country  
Members, but not developed country Members , namely "appropriate flexibility with respect 
to the time -limit within which such enquiry points are to be established may be agreed 
upon for individual developing country Members ".  S/WPDR/M/7 6 
 
- 5 - 
 
  b. Footnote 15 to paragraph 22 on "Development of Measures " change d GATS Article VI:4(a) 
which refer red to domestic regulatory measures having to be "based on objective and 
transparent criteria, such as competence and the ability to supply the service ". The text 
devel oped by the Joint Initiative  added "health and environmental requirements ". Sri 
Lanka considered this to be a major change to Members ' current obligations under GATS 
Article VI:5 and a loss of rights for other Members . 
c. The relation between paragraph 11 and  Article VII of the GATS was not clear  according to 
Sri Lanka . Article VII of the GATS  provide d fairly detailed procedures, some of which  were 
binding. For example, GATS VII :2 read that where a Member was party to a recognition 
agreement or arrangement, it shall afford adequate opportunity for other Members to 
negotiate their accession. In contrast, the language in Para graph  11 of the Reference 
Paper  was broad and of a best endeavour nature. Sri Lanka cons idered that t his would 
seem to be  a GATS -minus  obligation . 
d. Paragraph 7 on "Processing of Applications " elaborate d upon and change d GATS 
Article VI:3. 
e. Paragraph 13 on "Publication and Information Available " seem ed to be an elaboration of 
GATS Art icle III because it read  that "further to Art icle III of the Agreement " and list ed a 
range of information to be published.  
1.18.   The delegation of Sri Lanka was  also of the view that the proposed form/process of the Joint 
Initiative to introduce their new legal disciplines into GATS Agreement was legally faulty and 
arbitrary .  
1.19.   The following paths were available for concluding plurilateral initiatives: i f an initi ative was 
outside the WTO framework, then an agreement outside the WTO framework would  be possible, as 
was the case with the Trade in Services Agreement (TISA)  and this would  not require consensus by 
the WTO membership ;  
1.20.   If an initiative was inside the WTO  framework, then it would take a form of:  
a. An Annex 4 type Agreement ( e.g. the Government Procurement Agreement) where the 
results were only offered to those within the plurilateral group. This would  require  the 
consensus of the  full WTO  membership, in acco rdance with Art icle X:9 of the Marrakesh 
Agreement .  
b. An amendment procedure pursuant to Article X:5 of the Marrakesh Agreement would allow 
some Members to introduce  new rules, add to, or change  the GATS and offer them to all 
WTO Members on an MFN basis. This amendment procedure would require consensus of 
the full WTO Membership.  
1.21.   Sri Lanka continued that, u nder this last option, the participants to the Joint Initiative would  
argue that GATS s chedules constituted improvements to existing commitments and that 
commitments would be  offered on an MFN basis. Thus , consensus was not required,  and the outcome 
could  be brought into the multilateral framework through the certification  procedure  - but, according 
to Sri Lanka,  this stance was not accurate .  
1.22.   Firstly, any rules that amended, add ed to, or detract ed from the GATS had to go through an 
amendment procedure according to Article X:5 of the Marrakesh Agreement. Amendments could not 
be "smuggled " in through the "back door " into the mul tilateral framework through GATS schedules. 
There was nothing in the GATS MFN obligation (Article II) or Article X of the Marrakesh Agreement 
that required that once rules w ere applied on an MFN basis there would be no longer any need to 
follow  the establi shed amendment procedure. Sri Lanka maintained that when GATS rules were 
changed, even if they were applied by some and not all WTO Members, an amendment  procedure  
would be required.  
1.23.   Secondly, Sri Lanka noted  that GATS Article XVIII on "Additional Commitments " was the entry 
point through which participants to the Joint Initiative were aiming to bring in the new disciplines. 
Sri Lanka recalled that GATS Article XVIII was meant to bring into schedules "negotiated S/WPDR/M/7 6 
 
- 6 - 
 
  undertakings particular to each GATS ' signatory "3 and it could not be used to bring into the GATS 
multilateral framework rules which were of the nature of general obligations.  
1.24.   Sri Lanka highlighted that  "General Obligations and Disciplines " which GATS Article VI:4 was 
part of could not  be confused with "Specific Commitments " which Art icle XVIII was part of . The 
representative  considered that a Note  by the GATT Secretariat dated 1993 was helpful 
(MTN.GNS/W/164) . The latter provided that "the GATS  contain ed two sorts of provisions. The first 
were general obligations, some of which appl ied to all service sectors (e.g. MFN, transparency) and 
some only to scheduled commitments (e.g. Art icle XI: Payments and Transfers). The second are 
specific commitments which are negotiated undertakings particular to each GATS signatory ". Sri 
Lanka noted tha t it should be pointed out that Art icle VI:4 in Part II of the GATS on "General 
Obligations and Disciplines ", belong ed to the first category. Instead, Article XVIII was in Part III of 
the GATS on "Specific Commitments " and belong ed to the second category.  
1.25.   Thirdly, the certification procedures for GATS, whether S/L/80 or S/L/84 , were for changes to 
Members ' specific commitments in GATS schedules and were not for amendments to GATS 
obligations. Sri Lanka stated that certification procedures could not make Ar ticle X of the Marrakesh 
Agreement redundant.  
1.26.   The representative of Sri Lanka concluded that her delegation expect ed Members either  to go 
into RTAs, or to bring the plurilateral negotiated outcomes to the WPDR for consensus, followed by 
consensus at the l evel of the Ministerial Conference (or General Council) and thereafter for 
acceptance by each Member, even if they were bringing this outcome and offering this to all Members 
on an MFN basis. This was because these negotiations, pursuant to GATS VI :4 were horizontal WTO 
disciplines. Therefore, the procedures outlined in Marrakesh Agreement Art icle X needed to be 
adhered to.  
1.27.   The representative of South Africa , as a cosponsor of th e main  agenda item , support ed the 
intervention made by India on behalf of the  group. As India  had pointed out , many of the new 
disciplines on domestic regulation  contained in INF/SDR/W/1 were in the nature of new rules and 
were not merely improvements to schedules of specific commitments of the Members participating 
in the J oint Initiative . Furthermore, they even affect ed existing GATS rules, hence affecting all 
Members ' rights and obligations, including the rights of Members who were not part of the Joint 
Initiative . The Members  to the Joint Initiative  were operating outside of the  multilateral framework 
set up for this purpose, and therefore were clearly without any legitimate basis. Th e Initiative did 
not respect the spirit, purpose and intent of GATS Article VI:4. As the statement delivered by India 
on behalf of proponents of th e item clearly point ed out, the J oint Initiative on Services Domestic 
Regulation  purport ed to pass off a plurilateral process  and outcome under the guise of Article VI:4  
while it was not competent to do so.  
1.28.   South Africa stated that, i f Members want ed to amend the GATS, the Marrakesh Agreement 
would recognis e that amendments (changes or additions) to WTO rules could  take place o nly through 
a procedure  pursuant to Article X of the Marrakesh Agreement . Whilst South Africa recognise d the 
right of Members of J oint Initiatives to discuss issues, South Africa  did not agree that these Members 
could  concoct outcomes that affect ed establi shed rights of other Members who were not participating 
in such processes. The draft R eference Paper ma de the claim that these disciplines were pursued on 
the basis of Article VI:4 of the GATS. On 26 April 1999 the CTS had adopted a Decision on Domestic 
Regulation (S/L/70) establishing the Working Party on Domestic Regulation and had mandat ed the 
WPDR to develop any necessary disciplines to ensure that measures relating to licensing 
requirements and procedures, technical standards and qualification requirem ents and procedures 
did not constitute unnecessary barriers to trade in services. The WPDR was the only body that was 
competent to deal with the built -in mandate for disciplines on "Domestic Regulation ". The Joint 
Initiative on Services Domestic Regulation sought to  usurp this multilateral mandate to develop 
domestic regulation  disciplines under Article VI:4. This would be tantamount to some WTO Members 
negotiating new rules , e.g. a public stock -holding solution amongst themselves, and appending t hese 
to their multilateral GATT schedules, and offering this on an MFN basis, without the consensus of 
other Members.  
                                                
3 See MTN.GNS/W/164 1993 'Scheduling of Initial Commitments in Trade in Services: Explanatory 
Note', 3 September.  S/WPDR/M/7 6 
 
- 7 - 
 
  1.29.   The representative of South Africa was  concerned that new rules being proposed by the J oint 
Initiative  would  change Members ' GATS obligat ions and rights, including for those Members outside 
the plurilateral initiative. Such an exercise would demand an amendment of the GATS. For example, 
footnote 15 of INF/SDR/W/1 change d GATS VI:4(a) which require d domestic regulatory measures 
to be "based on objective and transparent criteria, such as competence and the ability to supply the 
service ". The proponents ' text add ed "health and environmental requirements ". This was a 
substantial amendment to these Members ' current obligations under GATS Article VI:5 and entail ed 
an encumbrance for other Members who were not party to the J oint Initiative.  This particular addition 
introduce d extraneous and irrelevant factors which were unrelated to competence and ability to 
supply a service, and would  result in the  exclusion of foreign service suppliers for reasons that were 
unrelated to their competence and ability to provide a service. This formulation took its inspiration 
from APEC 's Non -binding Principles for Domestic Regulation of the Services Sector. Furthermo re, a 
closer look at paragraph 14 of the text dealing with "Enquiry Points" reveal ed that developed country 
Members of the Joint Initiative  accord ed themselves flexibilities that undermine d developing countr y 
Members ' rights under GATS Articles  III:4 and IV:2.  In addition, f ootnote 11, which was attached to 
paragraph 14 provide d that "resource constraints " could be presented as a possible reason for not 
hearing enquiries. South Africa considered that this was a substantial change of developed country 
Members ' obligations under the GATS. It seem ed that when developed country M embers want ed 
policy  space they call ed it "flexibilities " while when developing country Members ask ed for the same 
treatment , their request was characterized as special and differen tial treatment, which South Africa 
considered was lacking from th e text of the draft Reference Paper.  
1.30.   South Africa wished, m ore broadly,  to raise systemic concerns related to the Joint Initiative  
and the significant overlap that exist ed on proposed disciplines on domestic regulation under other 
Joint Initiative s, more specifically on the plurilateral initiatives on investment facilitation and e -
commerce. Proponents of the Reference Paper providing  for disciplines on domestic regulation  had 
not explained how they intend ed to deal with these overlaps in other J oint Initiative s. Even though 
the proponents of this Reference Paper purport ed to be conducting their deliberations under the 
Article VI:4 of the GATS, the Joint Initiative  had no competence or standing to do so . The mere fact 
that proponents reference d Article VI:4 did not bring this Initiative within the multilateral framework. 
Like India, South Africa  asked proponents to remove reference s to GATS  Article VI:4 as this was 
misleading and redundant.  
1.31.   South Africa reiterated that the Reference Paper sought  to change GATS provisions and add 
further interpretations to concepts which would  negatively impact rights and obligations of Members. 
It was not clear that the Reference Paper fulfil led the GATS Article VI:4 mandate to only develop 
necessary disciplines on domestic regulation. It constitute d an unnecessary intrusion into the policy 
space of Members and undermine d the sovereign right to regulate, which remain ed a tool to pursue 
legitimate policy objectives. South Africa considered that t he Reference Paper did not achieve any 
discernible special and differential treatment since provisions dealing with this matter were of a 
transitory nature . Technical assistance and capacity building obligations were merely best endeavour 
and non -descript , and even graduatin g LDCs were required to apply the disciplines even before they 
actually graduate d. Furthermore, in many instances , the Reference Paper impose d unnecessary 
requirements which intrude d into domestic  policy making processes and impose d compliance costs 
which many developing country Members would  not be able to bear.  
1.32.   The representative of South Africa stated that p roponents had not explained how they 
intend ed to bring back the results of their plurilateral adventure into the multilateral framework. 
Many of these new disciplines on domestic regulation  were in their very nature new rules and were 
not merely improvements to schedules of specific commitments of th e Members participating in the 
Joint Initiative . It follow ed that any attempt to simply reinsert plurilaterally -negotiated outcomes 
into the WTO framework without seeking consensus or going through proper WTO amendment 
processes under Article X would  not b e acceptable and would  not gather  consensus. South Africa  
reject ed any argument that suggest ed that new rules amongst a critical mass of Members would  not 
require consensus to be brought back into the WTO framework. If this plurilateral outcome was to 
be added to Annex 4  of the Marrakesh Agreement , Article X :9 require d that there had to be 
consensus by the membership. South Africa  invite d the proponents to explain how they would  do 
this and how they would  respect multilateral rules and procedures.  
1.33.   The repre sentative of Zimbabwe  associate d herself  with the statements delivered by South 
Africa, India and other co -sponsors.  Zimbabwe expressed concerns regarding the fact that the S/WPDR/M/7 6 
 
- 8 - 
 
  disciplines in Section II of the Reference Paper would  be inscribed into Members` schedules as 
additional commitments under GATS Article XVIII.  
1.34.   The negotiating mandate  to develop domestic regulation disciplines laid under Article VI :4 of 
GATS and not  under Article XVIII.  Additionally, Article VI :4 mandate d the CTS and appropriate 
bodies of the multilateral trading system, specifically the Working Party on Domestic Regulation to 
develop any necessary disciplines on domestic regulation. Some Members had decided to pursue 
work outside the WPDR and additionally, o utside the mandate of GATS Article VI :4. Zimbabwe 
considered that t here had been no multilateral mandate to pursue such work under plu rilateral 
settings or Joint Initiatives. To this end , the outcome of work achieved  outside the WPDR and without 
consensus  of the full WTO membership  could  neither  be brought back into the WTO without 
consensus nor by means of scheduling additional commitments. This would have  serious legal 
implications and would undermine the legal structure of the WTO and Members ' rights and 
obligations. Zimbabwe stated that a ny changes to WTO rules must follow procedures on 
amendments under Article X of the Marrakesh Agreement, and prior consensus was required.  
1.35.   The work carried out under the Joint Initiative  had gone beyond GATS Article VI :4 and had 
chang ed the existing GATS provisions as clearly outlined by India an d Sri Lanka. The necessity of 
these disciplines ha d also not been established and questions remain ed on the impeach ment of these 
disciplines on the right to regulate.  The proponents of the Reference Paper ha d also not responded 
to other questions  and concerns raised by Members , including the African Group.  
1.36.   In conclusion , Zimbabwe  reiterate d that consensus was required for any plu rilateral work 
under the WTO. Members could  choose to do this outside the WTO or without consensus . However, 
they could not  then bring back the outcomes into the WTO without the consensus of the full 
membership. Additionally, any change to WTO rules should follow the requisite procedures under 
Article X of the Marrakesh Agreement. To this end, Zimbabwe called upon the proponents to follow 
agreed mandates and procedures and to uphold the core principles of the WTO in order to avoid 
undermining the legal structure, rights and obligations of other Members , and the credibility of the 
multilateral trading system.  
1.37.   The representative of Tunisia  associated  himself with the statements of the delegations of 
India,  Sri Lanka, South Africa and Zimbabwe.  Tunisia highlighted first, the importance of maintaining 
a strong rule -based WTO system; second, any change to WTO rules would require consensus in 
accordance with Article X of the Marrakesh Agreement; third, the prop onents of the Reference Paper 
had not answer ed several questions from developing country Members, including those of the African 
Group; finally, any text negotiated in a plurilateral manner had to be considered by WTO Members 
in order to adopt it in a mult ilateral manner.  
1.38.   The representative of the Kingdom of Saudi Arabia  stated that regulating services sectors 
through clear and transparent licensing and qualification requirements and procedures, and technical 
standards was of great importance  to his delegation . Effective regulation in this area allowed services 
liberalization to produce  the expected efficiency gains, ensure the confidence of service suppliers, 
enhance the quality of the services provided, reduce the administrative burden , and the cost s of 
doing business for investors.  
1.39.   The delegation of the Kingdom of Saudi Arabia reported that, after having participated actively 
in the meeting s of the Joint Initiative on Services Domestic Regulation, it had recently joined the 
process. Active participa tion in the negotiations of the Reference Paper had allowed them to develop 
a clear understanding of the scope of the disciplines and to share its priorities and concerns on some 
provisions of the  text. Thanks to  the group meetings , bilateral and small gro up consultations, all  
concerns had been  taken into consideration in the text . The Reference Paper was a balanced and 
inclusive text , which was  aligned with GATS Article VI and with Saudi Arabia 's domestic regulations 
and practices in trade and services. To  conclude, he encourage d other WTO Members to join the 
Joint Initiative on Services D omestic Regulation and call ed upon the participating  Members to 
intensify work towards reaching a positive and meaningful outcome by MC12.  
1.40.   The representative of Ecuador  stated that, since joining the WTO, Ecuador had supported the 
development and strengthening of the multilateral trading system, through the u se of mechanisms 
agreed by all Members to deal with different negotiating processes. For Ecuador, it was precisely the 
use of these mechanisms that would allow WTO Members to move forward on the most substantial S/WPDR/M/7 6 
 
- 9 - 
 
  and also the most sensitive issues. However,  if the available tools were not sufficient to address the 
complexity of certain issues, WTO Members could  together define new work ing schemes of a 
multilateral nature  or, failing that, plurilateral mechanisms , recognising the differences that both 
process es involve.  The delegation of Ecuador noted that  it was  important that all Members had clear 
understanding of the differences, in order to act consistently and avoid misunderstandings.  
1.41.   For this reason, Ecuador share d the concern s raised by India, Sri Lank a, South Africa, 
Zimbabwe and Tunisia regarding the scope of the Joint Initiative on Services Domestic Regulation . 
The specific reference to Article VI :4 of the GATS created doubts for Ecuador about the process itself 
as a well as about the potential implications for  the multilateral mandate . The mandate of  GATS 
Article VI:4 was clear  and constituted  the basis of the existing Working Group. He was of the view 
that a constructive dialogue would  clarify any doubts that existed at present . 
1.42.   The representative of the Bolivarian Republic of Venezuela  thanked the delegations of India, 
South Africa, Sri Lanka, Tunisia and Zimbabwe for having raised  the issue of the Joint Initiative on 
Article VI:4 of the GATS on Domestic Regulation  which had majo r systemic implications for the 
Organization.  
1.43.   As other  delegations had pointed out, the Joint Initiative proceed ed on the basis of document 
INF/SDR/W/1  which mentioned that "the disciplines of Section II will be entered in Members ' 
schedules as additional commitments under Article XVIII of the GATS ". The delegation of Venezuela 
had shared the idea that while the Members of the Joint Initiative may meet to discuss  these  issues, 
the rules of the Marrakesh Agreement must be respected when the negotiated result s would  be 
inserted within the WTO  legal framework . In this regard, the Marrakesh Agreement recognize d that 
amendments (changes or additions) to WTO rules could  only be made through an Article X procedure 
of that Agreement. Art icle X state d that consensus was required (Art icle X:1), followed by the 
acceptance by a certain proportion of WTO Members before the amendments would  take effect.  
1.44.   Venezuela  also share d the concern that many of the new disciplines contained in document 
INF/SDR/W/1 were not improvement s to the specific lists of commitments of Members participating 
in Joint Initiative. In addition, some of the existing GATS rules even change d. The rights and 
obligations of all Members  were affected , including of those Members that were not part of that 
Initiative . For example : 
a. Footnote 15  of INF/SDR/W/1  change d Article VI:4(a): the "objective and transparent 
criteria " had been illustrated in Article VI:4(a) of the GATS by "competence and capacity 
to provide the service ". INF/SDR/W/1 add ed further regulato ry requirements, such as 
"health and environmental requirements " and allowed regulators to assign the  
appropriate. For Venezuela, a ny clarification on "objective and transparent criteria " was 
equivalent to new rules.  
b. Paragraph 7 of INF/SDR/W/1 on "Processing of Applications " developed  and amend ed 
Article VI:3 of the GATS.  
c. Paragraph 11 of INF/SDR/W/1 on "Recognition " undermine d certain elements of Article 
VII of the GATS on Recognition.  
d. Paragraph 13 of INF/SDR/W/ 1 on "Publication and Available Information " provide d that, 
"further  to Article III ", Members shall promptly publish relevant information.  
1.45.   Venezuela stated that, i n document S/L/70  (1999), the WPDR had been  mandated to develop 
the necessary disciplines in accordance with Article VI:4 of the GATS. This mean t that there was a 
multilateral body to carry out this task, which was this Working Party. Venezuela,  therefore , urged 
all Members to return to this working  framework, especially  at a time w hen there was a clear 
intention to undermine multilateralism.  
1.46.   The representative of Nigeria  thanked the co-sponsors for having present ed their concerns on 
the implications of the development of disciplines on domestic regulation through a Reference Paper 
by the Joint Initiative on Services Domestic  Regulation. Nigeria  believe d the meeting avail ed 
Members of  an opportunity for a frank and h onest discussion on the issue.  S/WPDR/M/7 6 
 
- 10 - 
 
  1.47.   Nigeria noted that trade in services was shaping the dynamics of economies. It create d new 
economic opportunities and drove  growth and development by contributing directly  to productivity 
gains; competitiveness in other sect ors especially MSMEs ; wealth and job creation as well as revenue 
generation. It was therefore in the heart of Nigeria 's strategy for rapid, equitable , and sustainable 
economic growth and development. In order to optimize the benefits of trade in services, Nigeria  
supported  the develop ment of  a framework that addresse d the challenges faced by service suppliers 
in terms of complying with other WTO Members  stringent measures relating to licensing 
requirements and procedures, qualification requirements and procedures, and technical standards. 
It was for this reason that Nigeria  had joined  the Joint Statement on Domestic Regulation . 
1.48.   Nigeria 's goals relating to disciplines on d omestic regulation , whether under the  WPDR  or the 
Joint Initiative on Services Domestic Regulation , was to work towards outcomes that took into 
account the development needs of developing countr y Members  and enhance d the benefit s of all 
WTO Members from trade in services. In Nigeria 's view, issues of interest to developing countr y 
Members  and LDCs should be prioritized and no discussion should negatively affect the ir rights . He 
took note of the concerns of India, South Africa, Sr i Lanka, Tunisia and Zimbabwe  and stated that it 
would  continue constructive engagement on domestic regulation under the Joint Initiative  and the 
WPDR to achieve outcomes that would  not infringe on the rights or diminish the benefits accruable 
to any Member.  
1.49.   The representative of the European Union  thanked the co -sponsors for having taken  the time 
to have a close look at the text of the draft Reference Paper developed by Joint Initia tive on Services 
Domestic Regulation and for having shared  their views.  For the European Union, domestic regulation 
was one of the key areas of trade in services where further convergence amongst the membership 
was needed. The E uropean Union continue d to be a fierce supporter of multilateral work on domestic 
regulation, as they had  demonstrated constantly over the last 20 years.  He recalled that, i n the run -
up to the 11th Ministerial Conference in 2017, Members  had worked hard in the Working Party  on 
Domestic Regulation  to achieve a multilateral outcome in Buenos Aires. Unfortunately, it had not 
been possible to achieve such result at the Ministerial Conference due to the opposition of some 
Members. Since then, a large group of Members had continue d their efforts to negotiate domestic 
regulation disciplines in an open -ended format based on the Joint Statement on Services Domestic 
Regulation (WT/MIN(17)/61), which had been issued at Buenos Aires. These negotiations had taken 
place in an open and tran sparent manner. All the documents that had been discussed  and the reports 
of the meetings had been  shared with the full WTO membership.  Earlier in 2019 , the supporters of 
this Joint Initiative had issued a new Joint Statement in Paris on 23 May (WT/L/1059) . The Members 
concerned had recognised the importance of good regulatory practices in facilitating trade in services 
and had welcomed the progress made since the adoption of the Buenos Aires Joint Statement. In 
addition, they had committed to working on th e outstanding issues with a view to incorporating the 
outcome of their work in their respective schedules of specific commitments by the 12th Ministerial 
Conference.  The European Union was a strong supporter of this Joint I nitiative and was pleased to 
see that many Members share d that view.  
1.50.   The representative of the European Union did not agree  with India and others who saw the 
development of a Reference Paper on domestic regulation through the Joint Initiative as a violation 
of the mandate contained in GA TS Article  VI:4. In fact, the development of a Reference Paper did 
not affect the mandate of GATS Article VI:4 at all. The entire Article VI, including the mandate 
of VI:4, remain ed untouched. GATS Article XVIII allow ed Members to negotiate additional 
commitments with respect to measures affecting trade in services not subject to scheduling under 
GATS Articles XVI or XVII, including those regarding qualifications, standards or licensing matters 
and to inscribe them in the ir Schedules  of Specific Commitments . If a Member took such additional 
commitments by inscribing a Reference Paper on domestic regulation disciplines in its schedule of 
specific commitments, it would take  these commitments in addition to its already existi ng 
commitments and obligations, including those under GATS Article VI.  
1.51.   If a Member decide d to schedule additional commitments on domestic regulation, under no 
circumstance this could  be seen as a dilution of its existing GATS commitments. To the contrary, 
these additional commitments were per definition additions to that Member 's existing GATS 
commitments. All the disciplines  from the Joint Initiative 's Reference Paper that the co -sponsors 
highlighted, were  all, one by one, additions to the rules that Membe rs were already subject to.  
1.52.   The European Union concluded that t he negotiations were still on -going and the text of the 
Reference Paper was therefore not final. Together with the many other Members involved, the S/WPDR/M/7 6 
 
- 11 - 
 
  European Union  would  continue efforts towards  a successful outcome by the next Ministerial 
Conference.  
1.53.   The representative of Australia  stated that his delegation remained a strong supporter of the 
multilateral trading system, including multilateral work on domestic regulation as they had 
demonstrated over more than 20 years. Like the E uropean Union, Australia did not agree with the 
co-sponsors  that the development of a Reference Paper through the Joint Initiative was a violation 
of the mandate in GATS Article VI:4. There were a variety of  ways that new services domestic 
regulation disciplines, which buil t on GATS Article VI:4, could  be implemented. One way was utilizing 
GATS Article XVIII which allow ed Members to inscribe additional commitments, including those 
regarding qualification , standards or licensing matters in their schedules. Whether it was one 
Member, a group of Members , or all WTO Members, Article XVIII additional commitments were 
implemented on an MFN basis. Within this framework , the GATS had foreseen  a process of 
incremental efforts to expand and increase ambition of commitments over time. A group of Members 
undertaking additional commitments in no way violate d or prevent ed further outcomes to the WPDR 
or foreclose d an outcome with the involvement of all WTO Members. For Austr alia, it was crucial that 
through Joint Initiative  on Services Domestic Regulation , Australia and a growing group of Members 
wanted to deliver results on services domestic regulation, and do this within the framework of the 
GATS.  
1.54.   Furthermore, the represen tative of Australia stated that the Joint Initiative 's negotiations 
remain ed open and transparent. Any Member could  participate at any time. The Chair  of the Joint 
Initiative  report ed to Heads of Delegation s' Meetings and all documents that had been discus sed as 
well as reports of those meetings were available on the WTO website in the INF /SDR/  documents 
series.  
1.55.   Australia also categorically disagree d with the assessment by India and other co-sponsors 
that the disciplines developed by the Joint Initiative  dilute d existing GATS commitments. While the 
text represent ed compromise d positions among  the Members involved so as to enabl e the greatest 
number of Members to participate, the text buil t on the GATS  in consistency  with its original intent 
of incremental ambition over time.  WTO Members  could not  legally undermine their existing 
obligations under the GATS. The latter  would  remain in effect and all WTO Members  must continue 
to abide by them. The Joint In itiative 's open-ended negotiations remain ed ongoing and Australia  
encourage d other  Members to participate and to share their views on the Reference Paper in that 
context. Australia  looked forward to continuing work ing with the many other Members involved i n 
the Joint Initiative  towards a successful outcome at the next Ministerial Conference.  
1.56.   The representative of Japan  highly appreciate d the work of the Joint Initiative o n Services 
Domestic Regulation and remain ed committed to  the work with the aim of achieving a concrete 
outcome at MC12.  With regard to the mandate, Japan believe d that the current work of the Joint 
Initiative did not violate GATS Article VI :4. The Joint Initiative did not prevent WTO Members from 
discussing services domestic regulation disciplines in a multilateral setting. Rather, it would 
contribute to reducing unnecessary trade barriers. On the other points, Japan  maintained  that the 
current Reference Paper provide d for GATS -plus disciplines . He further  highlighted that negotiations 
continue d within the Joint Initiative  in a transparent manner and that participation in the work was  
open to  all WTO Members. He wished to invite Members who had not participated in the Joint 
Initiative, particularly developing  country Members  and LDC s, to join the process .  
1.57.   The representative of Costa Rica  thanked the co -proponents for having presented their views 
and for the opportunity to present his delegation 's perspective on the issue. Costa Rica had a 
particular interest in developing disciplines on services domestic regulation in order to respond to 
the needs of the 21st century economy, in line with the growing role of trade in services in its 
domestic economy and its inter -relationship with other sectors, including the production of 
agricultural an d industrial goods.   
1.58.   For Costa Rica, transparency and predictability were two objectives that companies in the 
field of services, whether multinational or local, large or small, wish ed to achieve. In difficult times 
like the ones Members were  experiencing  at present , the multilateral trading system and the WTO 
needed to respond to market developments and the growing importance of global trade in services, 
by reaffirming the Organization 's role in pro moting transparency, predictability, competition , and to 
ensure market access opportunities.  S/WPDR/M/7 6 
 
- 12 - 
 
  1.59.   Discussions on services domestic regulation under GATS Article VI ha d a long history in the 
WTO. Costa Rica continue d to hope that an outcome agreed and shared by all WTO Members in this 
field could  be achieved in the future.  However, given the limitations and difficulties faced in the WTO 
negotiating pillar, Costa Rica  had committed to move forward on this and other issues through other 
mechanisms . It is for these reasons that Costa Rica was pleased to be part of this Initiative , and 
support the multilateral trading system and the WTO.  
1.60.   The representative of Costa Rica took  note of the comments of the co -sponsors , but did not 
agree with the characterization the  co-sponsors  had made. The path that had been chosen by the 
Joint Initiative neither excluded any Member no r prevent ed further progress in reaching an 
agreement that was acceptable to all WTO Members. On the contrary, Costa Rica  believe d that this 
path support ed the GATS ' objective of achieving "progressively higher levels of liberalization of trade 
in services " "with a view to the expansion of such trade under conditions of transparency and 
progressive liberalization ", and taking into ac count "the right of Members to regulate  … the supply 
of services in their territory ", as per the  GATS preamble. Nor  did the Initiative  intend ed to exhaust 
the mandate of GATS Article VI :4 or contradict it . Rather the Initiative intended to move in the 
direction that Article VI and the GATS as a whole indicate d, on the basis of GATS  Article XVIII that 
provided Members ' with the right  to inscribe additional commitments  in their respective schedules .  
1.61.   For Costa Rica, the d isciplines contained in the  Reference Paper , which was still under 
negotiation, represent ed added value over the disciplines existing in the GATS and in no case 
contradict ed or limit ed its provisions. On the contrary, the disciplines  added content and substance 
to WTO Members ' commitments.  The result, being incorporated as additional commitments under 
GATS Article XVIII, would  be based on  the MFN principle  and benefit all Members.  
1.62.   Finally, he recall ed that Members participating in the Initiative had committed themselves  to 
the principles of transparency and inclusiveness. In this regard, all WTO Members ha d access to 
documents, proposals, summaries , and texts that had been submitted under this process. These 
documents were  circulated to all WTO Members and could  be consulted on the WTO website. In 
Costa Rica 's view, the Initiative was inclusive : its meetings were open to all WTO Members and were 
communicated in advance, to all WTO Members. Costa Rica invite d everyone, particularly those who 
had not yet done so, to join the group and to participate actively in these discussions. Members ' 
participation would  enrich the final result .  
1.63.   The representative of Brazil  thank ed the co -sponsors  for their interest in the  Joint Initiative 
on Services Domestic Regulation . As a participant of the Initiative , Brazil had been working with 
other Members with the objective of reaching an outcome that would  be meaningful for both 
participants and non -participants and, at the same time, consistent with the relevant provisions of 
the GATS, in particular with Articles VI (Domes tic Regulation) and XVIII (Additional Commitments). 
Brazil had  been working on the basis that all proposed disciplines were clearly improvements to 
commitments previously taken by the participants under the GATS and would fit under the 
procedures for the c ertification of improvements to schedules of specific commitments , established 
in document S/L/84.  
1.64.   In this regard, he took note and thank ed those Members for their comments conveyed at th e 
meeting of the WPDR. His delegation  would  give careful attention to  all critic ism raised . Brazil wished  
to recall  that the Reference Paper was still under negotiation in an Initiative that remain ed open, 
transparent , and inclusive to all interested Members.   
1.65.   The representative of New Zealand  thanked India and other co -sponsors for their interest in 
the activities of the Joint Initiative on Services Domestic Regulation. The Joint Initiative had been 
conducted and would continue in an a wholly open manner, including for participating Members and  
those who were not yet actively participating in the Initiative. He encouraged everyone to join the 
process.  His delegation remained committed to working on an outcome for domestic regulation both 
within the context of the WPDR, as New Zealand had done fo r a long time, and through the work 
that Members were conducting within the Joint Initiative. New Zealand could not agree in substance 
on the two core propositions  for the agenda , namely that the work of the Joint Initiative had an  
impact on the GATS  Article VI:4 mandate and that the disciplines undermine d core GATS disciplines. 
From New Zealand 's perspective on the second point, disciplines under discussion in the Joint 
Initiative had built  on the GATS, aimed to further liberaliz e trade, to deliver for New  Zealand 's and 
other Members ' service suppliers commercially meaningful outcomes, as well as  to strengthen  the S/WPDR/M/7 6 
 
- 13 - 
 
  WTO as an Organization. These were  the bas es for New Zealand 's participation in the Joint Initiative 
on Services Domestic Regulation . 
1.66.   The represe ntative of Mexico  thanked all Members who ha d expressed their concerns with the 
work in the Joint Initiative on Services Domestic Regulation.  The Initiative ha d always been open to 
all WTO Members , and several Members , such as the Kingdom of Saudi Arabia , had participated in 
the technical discussions, proposed modifications and express ed their position s, which ha d ultimatel y 
led them to adhere to the Initiative.  She regretted that Members who had taken the floor to expr ess 
their concerns  at the WPDR meeting  had not shared these in the grou p. In addition, for Mexico, the 
Joint Initiative did not undermine the multilateral trading system ; on the contrary, it strengthen ed 
the negotiating pillar of the WTO. Discussions in the WPDR  had been  long ceased, and this was one 
of the reasons why a group of Members had decide d to continue the discussions in an open, 
transparent and inclusive format  outside the Working Party . All Members ha d always been welcomed 
and taken into account at Joint Initiative 's open-ended meetings.  
1.67.   The representative of Mexico highlighted that  the draft Reference Paper  did not reduce the 
provisions or obligations of the GATS. It did not undermine the mandate of GATS Article VI:4 and 
did not contain GATS -minus  obligations.  The interest shown by the co -sponsors was nonetheless 
encouraging for M embers  of the Joint Initiative because it mean t that the work of the group over 
the previous two years had been followed and analyzed in detail. Mexico  invite d Members that were 
not part of Joint Initiative to participate in the discussions and join it once their interests and 
concerns had been  heard and properly discussed.  The work of the Initiative was still ongoing and 
many elements were still being analyzed, always carefully considering GATS obligations , and with 
the objective of strengthening the multilateral trading system . 
1.68.   The representat ive of Turke y thank ed India, South Africa, Sri Lanka, Tunisia and Zimbabwe  
for their interest in the J oint Initiative  on Services Domestic Regulation . Turkey underline d that the 
draft Reference Paper developed by some 60 WTO Members encompasse d some important 
disciplines that would be binding only for those Members , but would create rights for the whole 
membership on an MFN basis. The reason why Turkey, a developing country  Member , value d the 
outcome in this area greatly, and was ready to unilat erally extend these commitments on an MFN 
basis, was because the domestic regulation  disciplines played not only  a crucial role for the global 
development of  services  trade but also help ed create an environment conducive for the prospering 
of the domestic services sector. As such, Turkey  encourage d all Members to consider the disciplines 
that were on the table and evaluate for themselves if they were a step in the right direction.  
1.69.   With respect to issues raised under this agenda item by India and other  co-sponsors , on the 
issue of the GATS mandate on domestic regulation , GATS  Article XVIII on "Additional Commitments " 
allowed for individual or groups of Members to bind themselves on any regulatory issues not subject 
to scheduling under Market Access or National Treatment. While the scope of Art icle XVIII was wider 
than the scope of the  multilateral  mandate under GATS  Article VI:4, it clearly cover ed all types of 
measures that fell under GATS Article VI:4. In Turkey 's view, Members were free to take inspir ation 
from the multilateral mandate in Art icle VI:4 – or any other provision of the GATS - when making 
additional commitments under GATS Article XVIII.  What was important was that none of these 
choices exhaust ed the GATS Article VI: 4 mandate; on the contra ry, initiatives like the  present one 
create d stepping stones for the work to be carried out under the WPDR mandate. This understanding 
was stated clearly in the current draft Reference Paper. On the road to achieving this essential set 
of domestic regulation  disciplines, one needed to recognise that progress does not always come 
consensus -based. While Turkey  believe d that multilateral mandates were important, mandates that 
could not  be realized by Members despite decades of good faith engagement were of little practical 
value. As such, the driving factor behind the open -ended discussions had been  the belief that an 
outcome on domestic regulation disciplines was possible, and very necessary.  Turkey considered  
that the resulting work was satisfactory  and would  help facilitate trade under Members ' services 
commitments.  
1.70.   Regarding the concern that some elements  of the draft Reference Paper reduced some  GATS  
obligations , she noted  that, none of the provisions of the draft Reference Paper contradict ed any 
obligations under the GATS. All disciplines of the Reference Paper add ed further disciplines to the 
existing GATS obligations.  Turkey underst ood that some of the issues  that had been  raised 
attempt ed to make a comparison between substantially differen t obligations of the GATS and the 
draft Reference Paper, and some had seem ed to be misinterpretations of technical expressions used 
in the draft text. As for the question of "diminishing, or interpreting, or diluting " the GATS, she S/WPDR/M/7 6 
 
- 14 - 
 
  pointed out that none of  this was legally possible, even if the technical points that had been  raised  
today were correct.  The WTO treaty structure rendered it impossible that specific c ommitments that 
Members undert ook, could undermine any of the obligations of the GATS.  Indeed, the WTO 
Agreement stipulate d that "reservations for any of the provisions of Multilateral Trade Agreements 
may only be made to the extent provided for in those Agreements ", and the GATS did not allow 
Members to make reservations on any of its obligations.  Members could  limit their "commitments ", 
with regard to GATS Articles XVI and XVII, in their GATS s chedules , but commitments could  never 
be interpreted to undermine any "obligations " contai ned in the GATS. This ha d been clarified in 
Appellate Body Reports  as well. Even if the concerns pertaining to individual paragraphs of the 
Reference Paper were correct, there would be no risk of a GATS -minus result. The GATS obligations 
would  continue to apply in full, and in the same manner to all WTO Members – those who had taken 
Reference Paper commitments, and those who had opted not to do so. The difference  was that 
through the Reference Paper disciplines, some 60 Members, would , for the benefit of ev eryone, 
make new specific commitments to adhere to a set of disciplines on good regulatory practice s.  
1.71.   The representative of Turkey reiterated that her delegation stood ready to discuss any 
concerns either bilaterally or during the open -ended discussions on the draft Reference Paper and 
consider textual amendments aimed at providing comfort for Members ' concerns.  Given the interest 
shown on the Reference Paper, Turkey  encourage d non-participant Members to consider engag ing 
in the Joint I nitiative.  
1.72.   The representative of the Republic of Korea  stated that his delegation remain ed staunch 
supporter of the multilateral system. As for the GATS Article VI: 4 mandate and the purported 
interface between the Reference Paper  developed by the  Joint Initiativ e and the WTO Agreement,  
he echoed  statements delivered by other Members . All WTO negotiations were Member -driven 
activi ties that allow ed the most appropriate and effective avenue s to be taken, unless that was in 
breach of WTO Agreements. GATS Article XVIII affirmed that the approach in the Joint Initiative 's 
discussion was in full compliance  with WTO rules . The Joint Initiative had built upon the progress 
made in the WPDR until late 2017 when many Members had been  convinced that  further progress 
was becoming more and more difficult to attain in that forum.  
1.73.   Korea was open and ready to seriously engage with other Members on their concerns and 
suggestions. Disciplines on domestic regulation in the Reference Paper could be assessed from 
various viewpoints . As one of the participants in the Joint Initiative , Korea would review the  concerns  
in earnest to either resolve misunderstanding s or address any issues based on their substantive 
validity.  
1.74.   He remind ed other Members that any interested delegation remained free to take part  in the 
discussions of the Joint Initiative . Members  could  also c hoose to iron  out differences at technical 
meetings if the engagement at Joint Initiative open -ended meetings was  regarded too burdensome 
for certain Members.  
1.75.   He encourage d all other Members to join the Initiative which was moving forward in 
formulating the very first horizontal regulatory disciplines for service trade. Korea believed  that the 
regulatory framework building  on transparency and coherence would  lead to sustainable growth and 
development for all Members regardless of where they st ood. 
1.76.   The representative of China  stated that his delegation attached great importance to the 
negotiation on domestic regulation disciplines and support ed a meaningful outcome by MC12. Based 
on the latest draft Reference Paper  developed by  the Joint Initiative o n Services Domestic 
Regulation, China  had submitted its indicative draft schedule of specific commitments on 27 
November 2019. China  had indicated a willingness to undertake as additional commitments the 
disciplines contained in Section II of document INF/ SDR/W/1 for all sectors included in their services 
schedule. As these commitments were "additional ", as had been mentioned  by Turkey, in China 's 
view,  they would be GATS -plus or at least GATS consistent. And therefore, these commitments could 
not be interp reted in a way that would  underm ine or detract from the existing Members ' obligations  
under the GATS.  He expressed his hope  to see more Members join th e Initiative which aim ed at 
complementing the multilateral process , instead of replacing it. China  also support ed more 
interaction between the Joint Initiative and the work under the WPDR. The delegation of China would  
study the issues raised carefully with a view to addressing t hem properly , and hoped that Members  
could continue the dialogue between the Joint Initiative participants and other Members interested 
in improving disciplines o n domestic regulation in a constructive manner.  S/WPDR/M/7 6 
 
- 15 - 
 
  1.77.   The representative of the Russian Federation  thanked India and other cosponsors for having 
shared  their concerns  and promised to  consider them carefully. She did not question  those Members 
who had spoken  out on the mandate of certain provisions of Article VI of the GATS. Their logic ha d 
a right to exist,  but the she urged not to look for answers where there were none.   
1.78.   For the Russian Federation, the GATS was a unique agreement and the greatest achievemen t 
of trade diplomacy of the 20th century. But at the same time , it was only a legal text. Despite its 
advantages, GATS contain ed a number of vaguely settled issues, as well as a number of provisions 
that allow ed to make important add -ons, i.e. provisions w ith a built -in agenda , and t he Article on 
"Domestic Regulation " was one of them. According to document MTN.GNS/35 , the first draft of the 
GATS during the Uruguay Round contained a closed provision requiring WTO Members to base their 
regulations on objective criteria and to make them "not more burdensome than necessary to achieve 
the national policy objective ". The fin al version however of th at Article only included a mandate to 
develop disciplines.  Because of the importance of the domestic regulatory environment for 
facilitation of trade in services , WTO Members had been  given a negotiating mandate through 
Article  VI:4 of the GATS to develop disciplines that would ensure that unnecessary barriers to trade 
were not  created.  
1.79.   For the Russian Federation,  the develop ment of  disciplines on domestic regulation should be 
considered in a broader context. The negotiations ha d to be seen in the context of the GATS 
negotiations on specific commitments mandated by Article  XIX:2, even if they had been  formally 
separate and had been taken  place in different WTO bodies.  The disciplines on domestic regulation 
together with Market Access and National Treatment were pillars of the services trade revaluation.  
She recalled t he unique and lengthy history of Russia 's accession to the WTO , lasting  about 18 years 
and requir ing significant changes in the national regulatory system. As the WTO was primarily a tool 
for regulating trade and creating adequate trade rules , Russia was not ready to accept the approach 
that an area as important as trade in services would  remain in the shadow of other negotiating 
areas.  Current provision s in the draft R eference Paper provide d the possibilities for developing 
country M embers to take different transitional period on a Member -by-Member basis. For the Russian 
Federation,  this flexible approach would help Members to choose their own natural pace.  Her 
delegation would  never give up on the idea of making the domestic regulatory framework a 
multilateral outcome. However, achieving this would require  broad participation of all Members. Her 
delegation was  willing  to work with the  African Group, the BRICS  partners, more Members from Latin 
America, from Asia , and especially those who had accepted the APEC Non -binding Principles for 
Domestic Regulation of the Services Sector. The Russian Federation  looked forward to seeing  more 
active participation of Member s from CIS region.  Without all these Members, a result would  not be 
meaningful and complete.  
1.80.   The representative of Canada  thank ed Members for having shared  their views and for having 
shown interest in the work of the Joint Initiative  on Services D omestic Regulation . Canada was a 
strong supporter of the multilateral trading system and had been participating constructively on a 
broad range of trade -related issues, including domestic regulation, under the various configurations 
offered by the WTO fram ework.  New disciplines on Services  Domestic Regulation would reinforce 
good regulatory practices surrounding the authorization of regulated services in a manner that would  
greatly facilitate international trade.  For that reason, Canada had joined the first  Joint Ministerial 
Statement in 2017 and had reaffirmed its commitments in May 2019 through the second Joint 
Ministerial Statement, which had recognise d the progress made and had targeted  an outcome for 
the 12th WTO Ministerial Conference in June 2020.  
1.81.   The representative of Canada strongly believe d that the work of the Joint Initiative was not 
in violation of the GATS Article VI:4 mandate and buil t on the existing Agreement, as previously  
indicated by other WTO Members. She echoed other Members in expressing that discussions in the 
context of the Joint Initiative had been conducted in an open, transparent , and inclusive process, 
wherein any interested Members could  participate and share their views.  For Canada, the Joint 
Initiative 's process offer ed the best vehicle to discuss specific views by Members.  WTO Members had  
an opportunity to achieve a meaningful outcome in time for the next WTO Ministerial Conference, 
which would  deliver a boost to the Organization and demonstrate that success was possible. 
Therefore, Canada  encourage d constructive participation by any interested Members in the  process .  
1.82.   The representative of Colombia  thanked India, Sri Lanka, South Africa, Tunisia, and 
Zimbabwe , and also Ecuador, and the Bolivarian  Republic of Venezuela, for having presented their 
concerns about the negotiations under the Joint Initiative on Service Domestic Regulation. He had S/WPDR/M/7 6 
 
- 16 - 
 
  taken note of all the issues that had been addressed . Although his delegation did not share th e 
perspective  of these delegations , he believed that these discussions enriched the process that was 
being advanced.  
1.83.   As a developing country Member committed to the multilateral system , Colombia  had 
supported work on domestic regulation from the beginning  and had actively participated in the 
discussions to ensure that obligations were built upon the GATS and did not erode it in any way. 
Colombia was  confident that the Initiative had made  concrete progress, and benefi tted the 
multilateral system without amending or  affecting existing rights and obligations  of WTO Members . 
The discussions within the  Joint Initiative were in line with Colombia 's trade vision, as the 
transparency and certainty provided by the new disciplines  on domestic regulation strengthen ed the 
participation of developing count ry Members  in trade without affecting the ir ability to regulate.  
1.84.   The Joint Initiative on Services Domestic Declaration ha d been, and would  remain, 
transparent and inclusive, and he invited  all Members to participate and to  present their interests 
and concerns.  
1.85.   The representative of Hong Kong, China  stated that his delegation was  a staunch supporter 
of progressive liberalization in trade in services and the work of the multilateral trading system, and 
had supported the discussions on services domestic regulation in various WTO bodies, including the 
WPDR , for almost two decades.  Hong Kong, China was  committed to developing disciplines on 
domestic regulation  that would ensure that WTO Members ' domestic regulation regime s would not 
constitute any unnecessary barrier to trade. Given the realit ies of previous discussions in the WPDR, 
Hong Kong, China had worked creatively with other like -minded Members under the Joint Initiative 
on Services Domestic Regulation  since MC11, to deliver a meaningful multilateral outcome at MC12. 
Hong Kong, China  recall ed the objectives of the MC11 Joint State ment, which had been  to advance 
negotiations on the basis of discussions in the WPDR  and to deliver a multilateral outcome to the 
benefit of all WTO Members. The work of the Joint Initiative  had always been to build upon GATS, 
rather than to detract from i t. That was reflected by the intention of Members to schedule additional 
commitments under Art icle XVIII of GATS, to be extended to all Members on an MFN basis.  
1.86.   Regarding the issue of mandate, the latest draft Reference Paper developed by  the Joint 
Initiative  specifically recognize d Members ' right to develop further disciplines under Art icle VI:4 of 
GATS, and there was no question that the draft Reference Paper would in any way affect the mandate 
of GATS Ar ticle VI:4.  
1.87.   Hong Kong, China did not agree with the co-sponsors  that the participants of the Joint 
Initiative aimed to amend or dilute the obligations under GATS. On the contrary, participants aim ed 
to make additional commitments on top of the obligations under GATS , and do so  on an MFN basis.  
1.88.   His delegation had taken  note of comments by India and the other co -sponsors and would  
consider them carefully.  The objective r emained to ensure that future disciplines would indeed be 
GATS -plus, and consistent with the WTO framework.  Hong Kong, China  also in vited India and other 
interested Members to attend and discuss their comments at the Joint Initiative  open-ended 
meetings , which had always been conducted in an open and transparency manner.  
1.89.   The representative of Chile stated that, with regard to the impl ications for the multilateral 
mandate under GATS Article VI:4, they considered that inscribing domestic regulation disciplines in 
each Member 's list of specific commitments, in no case constituted a violation of Article VI:4 of the 
GATS. On the contrary, t his was in full conformity with the GATS , through Article XVIII. Therefore, 
the mandate of Article VI:4 would remain in place and Chile hoped that someday the conditions 
would exist in the Organization to achieve an outcome based on that mandate. In that respect , Chile 
considered the Joint Initiative to constitute an important step in that direction.  
1.90.   With regard to the interface of the Reference Paper and GATS obligation s, Chile noted that, 
as the same title of Article XVIII of the GATS stated, the provisions incorporated in this way were 
additional commitments. Therefore, the y could not be interpret ed to diminish or modif y provisions 
of the GATS. On the contrary, the content and  obligations of the GATS were perfectly safeguarded 
and would remain fully in force.  S/WPDR/M/7 6 
 
- 17 - 
 
  1.91.   The representative of Peru thanked the co -sponsors for having shared their views, which Peru 
would take into consideration. As other Members had mentioned, the Joint Initi ative did not exclude 
the possibility of achieving a multilateral outcome, which Members could work on with a view to the 
next Ministerial Conference. However, the right of each Member to propose the inclusion of additional 
commitments in its schedule of specific commitments  seem ed clearly established in the GATS, and 
underpinn ed the approach followed by the J oint Initiative.  
1.92.   Peru took  note of the concerns and was ready to discuss them with a view to obtaining an 
outcome that could  be considered useful by all Members, and that could be taken on by all or a large 
part of the membership . Peru would benefit  from the adoption of clear and transparent rules such 
as those that were part of the Reference Paper , and Peru encourage d the adoption of such rules by 
all Members of this Organization.  
1.93.   The representative of South Africa  noted the intervention s by Members of the J oint Initiative  
on Services Domestic Regulation and the assurances that they would  take into account the issues 
raised by the co-sponsors . He recalled that his delegation had  raised various issues embedded in 
the text of the Reference  Paper  including:  
a. Footnote 11 undermine d developing countr y Members ' rights under GATS Art icle IV:2. In 
the draft Reference Paper , "resource constraints " could  be claimed as a flexibility also by 
developed country Members. This flexibility for developed countr y Members  was not part 
of GATS Article III:4 or Art icle IV:2. For South Africa, this was a GATS -minus discipline .  
b. Footnote 15 add ed additional regulatory requirements such as health and environmental 
requirements with appropriate weight to be assigned by regulators.  
c. Paragraph 7 elaborate d upon and change d GATS Article VI:3.  
d. With respect to the i nterface between p aragraph 9 and GATS Article VI:1 , in South Africa 's 
view, i ssues may arise if "fees" were part of "all measures of general application affecting 
trade in services ". Members of the Joint Initiative needed  to clarify their intention with th is 
provision.  
e. Paragraph 11 undermine d certain elements of GATS Article VII.  
f. Paragraph 13 provide d that further to Article III, Members sh ould promptly publish 
relevant information, including the list  contained in subitems  a-h. For South Africa, t his 
was an elaboration of GATS Article III.  
g. Through paragraph 22 , the draft Reference Paper propose d new disciplines on measures 
relating to licensing  requirements, qualification requirements or technical standards. These 
new disciplines change d GATS Articles VI:4 and VI:5.  
1.94.   Since Members of th e Joint Initiative had indicated that the Reference Raper was still under 
negotiation, the representative of South Africa urged them to take into account the issues that had 
been raised by the co -sponsors  and to remove all inconsistencies and legally questionable provisions.  
1.95.   South Africa also note d a universal refer ence by many participants to the Joint Initiative  to 
GATS Article XVIII . However, South Africa asserted that  there were some problems with such an 
argument allowing GATS Art icle XVIII to be a "catch -all" provision:  
a. GATS Art icle XVIII was under Part III of the GATS on "Specific Commitments ": specific 
commitment negotiations, under GATS Art icle XIX were to take place in "successive rounds 
of negotiations ". Article XIX:3 read that "for each round, negotiating guidelines and 
procedures shall be established. For  the purposes of establishing such guidelines, the CTS 
shall carry out an assessment of trade in services in overall terms and on a sectoral basis 
with reference to the objectives of this Agreement ". Given the involvement of the  CTS, 
this was therefore a multilateral exercise. For South Africa, i t could not  be undertaken 
simply by agreement between a subset of WTO Members , pursuing e -commerce or 
domestic regulation negotiations.  
b. New rules could  not be crafted and somehow added to the GATS wit hout an amendment 
procedure. Art icle XVIII deal t with additional commitments to those  that Members ha d 
already undertaken . South Africa  indicated that many provisions in the Reference Paper S/WPDR/M/7 6 
 
- 18 - 
 
  were GATS -minus  or GATS inconsistent , and not GATS -plus as had bee n stated by 
proponent s of the Reference Paper.  
c. Regarding domestic regulation, in South Africa 's view , GATS Article VI:4 negotiations could 
not somehow be pursued under Art icle XVIII. Given this, Art icles VI:4 and Art icle XVIII 
could not  be assumed to be having the same legal effect. For South Africa, t here was a 
distinction between "disciplines " and "specific commitments ". Article VI:4 provide d the 
mandate to develop  disciplines  on domestic regulation. Art icle XVIII, conversely,  allowed 
for "additional commitments " in specific sectors. South Africa asserted that t he two issues 
were separate and distinct and could not  be assumed to be the same.  
1.96.   The representative of India thanked the co -sponsors of the agenda item and the other 
Member s who had taken the floor to express their concerns on this important issue. India also 
thanked participants of the Joint Initiative for having responded to the issues raised by the co -
sponsors.  India understood Members needed to continue discussions  in the run -up to MC12. The 
issue raised was a systemic issue relating to the respect of WTO Agreements, including the 
Marrakesh Agreement, GATS provisions, multilateral mandate s, and WTO decisions take n by 
consensus.  
1.97.   With respect to services domestic regu lation, India recognised the existence of a multilateral 
mandate to develop disciplines in GATS Article VI:4. The same Article had clearly assigned the 
function to CTS  through appropriate  bodies, and , in this case, the CTS had constituted  the WPDR. A 
lot of valuable work had been undertaken in the WPDR over the past 20 years. For India, the Joint 
Initiative on Services Domestic Regulation had not been mandated and could not resume the 
mandate to develop disciplines under GATS Article VI:4, which was a multi lateral function.  
1.98.   In addition, India asserted that Members were at liberty to inscribe additional commitments 
in their respective schedules under GATS Article XVIII  on measures affecting trade in services. 
However, one could not amend, interpret, or clari fy any existing provisions of the GATS.  As explained 
in previous statements, India was convinced that some of the proposed commitments in the draft 
Reference Paper either directly or indirectly amounted to a dilution of GATS provisions. These 
changes therefore affected all Members ' rights and obligations, including the rights of Members who 
were not part of the Joint Initiative.  
1.99.   India urged  participants to the Joint Initiative to closely examine the issues raised and in such 
an examination fol low appropriate rules and procedures as laid down in the Marrakesh Agreement. 
While India was not contesting Members ' right to schedule additional commitments, GATS Article 
XVIII, in its letter and spirit this meant bringing into schedules  "negotiated unde rtakings particular 
to each GATS ' signatory ". For India, this Article should not be used to bring rules under general 
obligations and disciplines as envisaged by GATS Article VI:4 into the multilateral framework.  
1.100.   In addition, for India, when GATS rules ne eded to be amended, Article X of the Marrakesh 
Agreement had to be followed and not the certification procedure , whether  S/L/80 or S/L/84 , which 
were meant for changes to Members ' specific commitments contained in their schedules. The 
certification procedu re could not and should not rend er the amendment procedure under Article X 
of the Marrakesh Agreement redundant.  
1.101.   In addition, India believed that appropriate textual changes and clarifications were 
imperative in the Reference Paper developed by the Joint Initiative to achieve consistency with the 
rules of WTO Agreements.  
1.102.   The Chairperson  noted that  delegations held different views on the points raised at the 
meeting. She encouraged delegations t o continue their discussions bilaterally, and in any other 
appropriate settings.  She would consult with delegations on any contribution that the WPDR might 
possibly make  to the discussions  and invited any delegation willing  to consult to get in touch at an y 
time, either directly, or through the Secretariat.  She suggested that the Working Party take note of 
the statements made.  
1.103.   It was so agreed . S/WPDR/M/7 6 
 
- 19 - 
 
  2  ITEM B: OTHER BUSINESS  
2.1. No delegation interven ed under this item. The Chairperson  adjourned the meeting . 
 
 
__________