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S/WPDR/M/70  
 
2 May 2017 
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Working Party on Domestic Regulation    
 
REPORT OF THE MEETIN G HELD ON 14 MARCH 2 017 
NOTE BY THE SECRETAR IAT 
The Working Party on Domestic Regulation (WPDR) held a meeting on 14 March 2017 chaired by 
Ms. Katarzyna Stecz from Poland. The agenda for the meeting was contained in document 
WTO/AIR/WPD R/8 dated 3 March 2017. No item was raised under Other Business.  
 
The Chairperson noted that  agenda item E "Appointment of the Chairperson of the Working Party " 
would normally be taken up at the end of the meeting. However, consultations in the General 
Council on the appointments of Chairpersons to WTO Councils and Committees had not yet been 
concluded . Consequently , the Chair of the CTS had not been able to conduct consultations on the 
appointment of the Chairs for the services subsidiary bodies. The Chai rperson , therefore , 
suggested that the Working Party do not address agenda item E.  
 
It was so agreed . 
 
The agenda was adopted . 
 
1   ITEM A. DEVELOPMENT OF REGULATORY DISCIP LINES UNDER GATS ART ICLE VI:4  
1.1.  The Chairperson  recalled the exchange that had taken plac e at the last formal meeting of the 
Working Party in November 2016 and suggested to approach the discussion on the five 
Communications listed under this agenda item in the following order: (1) Communication on 
"Transparency " from Australia, Colombia, the E uropean Union, Japan, Republic of Korea, Mexico, 
New Zealand and the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu 
(JOB/SERV/251/Rev.1); (2) Communications on "Development of Measures " from Australia, 
Canada, Colombia, the European Union, Israel, Japan and Mexico  (JOB/SERV/250) and Hong Kong, 
China, New Zealand, Switzerland and Chile (JOB/SERV/252/Rev.2); (3) Communication on 
"Administration of Measures " from Australia, Chile, Colombia, the European Union, Japan, Mexico, 
Norway, Peru, Repub lic of Korea, and the Separate Customs Territory of Taiwan, Penghu, Kinmen 
and Matsu (JOB/SERV/239/Rev.1) ; and (4) Communication on a "Trade Facilitation Agreement for 
Services " from India (S/WPDR/W/58).  
1.2.  Before addressing the issues in the order suggested,  the Chairperson  noted that several 
delegations wished to provide general comments.  
1.3.  The representative of the Plurinational State of Bolivia  noted that the proposals on the table 
had been presented in a different format compared to the 2009 Chair  Text, with some elements 
having been substantially modified or left out. He highlighted the absence of proposals on Mode 4, 
development and special and differential treatment. His delegation was not a demandeur in market 
access negotiations and, in the real world, governments needed to achieve wider policy objectives  
going beyond trade , including for example those concerning human rights. Some of the proposed 
rules could limit the capacity of states to legislate and could affect development needs at a time 
when pres erving policy space was important. He underlined that the proliferation of the digital 
economy and e-commerce was transforming societies and the way services were traded. As a 
result, governments needed to build regulatory capacity and preserve policy spac e to respond to 
these changes and benefit society as a whole , and not just transnational corporations . He referred 
to the need to have an internal balance in the negotiations and mentioned that any outcome 
needed to have development at its heart. He also n oted the lack of progress in agriculture 
negotiations, where a negotiating Chairperson had yet to be appointed.  S/WPDR/M/70  
 
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  1.4.  The representative of South Africa  spoke on behalf of the African Group . She indicated that 
African Ministers of Trade  had recently  declared c ontinental integration, structural transformation 
and industrialization as overriding priorities for Africa, following the establishment of the 
Continental Free Trade Agreement in line with the "Agenda 2063: The Africa We Want ". She hence 
underlined that any further rule-making  in the multilateral trade area  needed to be  support ive of 
Africa 's continental integration agenda.  In domestic regulation, t he African Group ha d always given  
paramount importance to the right to regulate and the interlinkages between regulations and 
broader domestic economic imperatives. She noted that the African Group members were not 
demandeurs for domestic regulation disciplines  and were contemplating what th ose disciplines  
mean t for Africa  in a Development Round. In this context t he African Group was willing to engage 
in a discussion on domestic regulation in accordance with the Article VI:4 mandate. The African 
Group reaffirm ed the right of Members to regulate and the particular need of developing countries 
to exercise this right , as provided for  in the GATS. Even though d omestic regulation was being 
advanced by proponents as a potential deliverable for MC1 1, it had  always been pursued as part of 
a broader range of issues under the DDA package. She recalled the emphasis placed by African 
Ministers of Trade  on the centrality of  agriculture to Africa 's agenda at the WTO, and  that the latter  
would determine  the level of ambition in other  negotiations. Ministers had also reiterate d that a 
successful conclusion of the Doha Round needed t o address all outstanding issues, and meet the 
developmental needs of African countries . The African Group therefore call ed upon Members to 
take concrete steps to ensure that there was commensurate movement on the remaining issues in 
the DDA, with developm ent at the heart of all negotiating outcomes. She submitted that 
proponents ha d gone beyond the meaning of Article VI:4  in their proposals on the "Administration 
of Measures ", "Development of Measures " and "Transparency ". She acknowledge d that sound 
regula tory practices would  facilitate market access for foreign services suppliers , but stressed that 
the realization of those benefits depended  on whether a Member was a net services exporter or a 
net services importer.  The most fundamental issue was the early exclusion of a proposal on 
Development . The African Group was  also considering the implications of a possible domestic 
regulation outcome on the LDC Services Waiver. Many African countries face d significant 
challenges, such as weak regulatory infrastructur e and minimal government resources. The 
representative of South Africa reminded Members  that the African Group  members  were not 
demandeurs in domestic regulation  and considered special and differential treatment to be an 
integral part of all WTO Agreements  and future multilateral outcomes  including a possible outcome 
for MC11. The  African Group also had some concerns about  the piecemeal approach and 
fragmentation of the proposals by the proponents.  
1.5.  The representative of Cuba stated that her delegation did n ot see the development dimension 
in the proposed texts. She held that some provisions interfered with the right of Members to 
regulate and did not recognise developing countries ' difficulties in implementing regulations. She 
echoed the representative of Bolivia in saying that her delegation noted the difference between the 
current proposals and the 2009 Chair Text. She also reiterated the point made  by South Africa that 
the work on domestic regulation could not be seen outside of context of other pending Do ha 
issues, especially those of grave importance like the special safeguard mechanism for developing 
countries and public stockholding for food security purposes. She underscored the value of 
preserving balance in any initiative.  
1.6.  The representative of Barba dos stated that her delegation would come back at a later stage  
with a statement on behalf of the ACP Group.  
1.7.  The representative of Ecuador  stated that his delegation was not a demandeur in domestic 
regulation negotiations and was ready to participate in di scussions in accordance with Ecuador's  
developmental needs. He noted that Ecuador 's GATS commitments were much deeper than those 
of many other Members with the same level of development. He underlined his delegation 's wish 
to continue negotiating Doha issu es without compromising the policy space that was necessary to 
achieve developmental objectives. He observed that the crucially important proposal on 
development had still not been tabled by proponents and encouraged  Members to preserve  the 
overall balance  in discussions, inter alia  in conjunction with the progress in Agriculture 
negotiations.  
1.8.  The representative of the Bolivarian Republic of Venezuela  endorsed previous speakers who 
had pointed out the need to have special and differential treatment at the h eart of the negotiations 
and stressed the paramount importance of the ability to apply necessary policies for development.  S/WPDR/M/70  
 
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  1.9.  The representative of Thailand  considered that the proposals  submitted  to date  represented a 
positive trend that would help generate useful momentum  for the future work and underscored the 
importance of having development disciplines. She also agreed that s pecial and differential 
treatment  should be an integral part of the final outcome.  
1.10.   The representative of New Zealand  encouraged Memb ers to table proposals on any 
disciplines they would wish to see included in the discussion and reminded the membership of the 
two outcomes on trade facilitation and agriculture that had been achieved  in recent Ministerial 
Conferences. The time had now come for having a domestic regulation outcome as well. Regarding 
regulatory space, she noted that the very specific  mandate of Article VI :4, as well as the Preamble 
to the GATS which explicitly recognized  the right of Members to regulate, remained unchanged. 
She noted that targeted flexibilities might be needed to accommodate sensitivities of particular 
Members.  
1.11.   The representative of Brazil  stated that in order to have an outcome for MC11, all elements 
of the discussion, particularly special and differential t reatment need ed to be on the table. It was 
important  to have sufficient time to discuss all issues together before an overall assessment could 
be made. He also expressed his appreciation of the Indian proposal, which brought together 
several elements in on e proposal.  
1.12.   The representative of Argentina  stated that the inclusion of disciplines on special and 
differential treatment  had always been a certainty given the central nature of the development 
dimension in the negotiations. His delegation was satisfied t hat some specific aspects dealing with 
flexibilities for developing countries had been reflected in the language of the co-sponsors and the 
Indian proposal. He noted that,  at this stage , the developmental element was naturally missing 
from the proposals wh ich currently focused on some discrete elements of the discussion , and 
observed that the proponents had made it clear they were open to including other elements. He 
echoed Brazil 's view that all elements needed to be seen together in order to make an overa ll 
assessment.  
1.13.   The representative of Nigeria  assured the membership that his delegation was not against 
having disciplines on domestic regulation as mandated in Article VI :4. He reaffirmed the fact that 
the mandate of Article VI :4 was not intended to launc h a deregulatory process, but rather to 
promote better regulation to realize Members ' policy objectives. He confirmed that his delegation 
was not against the piecemeal approach ; however, he supported Brazil 's view that it might not be 
possible to have a co mplete assessment of the situation without also considering  special and 
differential treatment . 
1.14.   The representative of Chile endorsed the statements made by New Zealand and Argentina. 
He pointed out that the proposals were reasonable, well thought through a nd included flexibilities 
which took into account Members ' sensitivities. However, he agreed that the development 
dimension was still missing and encouraged interested Members to submit proposals in this area. 
He underlined that no Member had objected  to a proposal on development.  
1.15.   The representative of Australia  stated that the proponents had not excluded disciplines on 
Development and recognised their key role in domestic regulation discussions. She noted that her 
delegation had been consulting with Member s on the disciplines that could advance developing 
countr ies interests and further flexibilities that might be needed . She also mentioned constructive 
discussions with the LDC Group about how to deliver LDC outcomes, inter alia  exemptions for LDC s 
and the possibility of opt -in disciplines supported by technical assistance . Furthermore, the 
discussions explored advancing  LDC requests and linking domestic regulation disciplines to notified 
preferences under the LDC Services Waiver . 
1.16.   The representative of Hong Kong, China  expressed support for the statements of Chile, New 
Zealand and Australia. He registered his delegation 's appreciation of challenges faced by 
developing countries and LDCs and encouraged Members to table their desired proposals on 
development.  S/WPDR/M/70  
 
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  1.1   Communication from Australia, Colombia, the European Union, Japan, Republic of 
Korea, Mexico, New Zealand and the Separate Customs Territory of Taiwan, Penghu, 
Kinmen and Matsu on "Transparency " (JOB/SERV/251/Rev.1) dated 13 March 2017  
1.17.   The representative o f Australia  noted that i n putting together the "Transparency " proposal, 
her delegation  had followed the same approach as for the "Administration of Measures " proposal , 
namely to take  into account both previous Chair texts, as well as  WPDR negotiating histo ry and 
proponents ' Free Trade Agreements (FTA s). The purpose of this exercise was to bring forward a 
balanced text  that sought to address previously raised  issues, including in the lead up to MC10.  
The scope of the proposal referred  back to paragraph x.x o f the proposal on "Administration of 
Measures ", in that disciplines were proposed to apply only where Members ha d scheduled specific 
commitments and not where Member s had scheduled limitations.  Paragraph  1 of the 
"Transparency " proposal dealt with publicat ion of information. This discipline was already 
contained in GATS Article  III which obliged Members to publish all measures affecting trade in 
services . Paragraph  1 provided a list of the sources  of information that are to be published in 
relation to autho rization requirements . The language of paragraph 1 had been streamlined from 
the language contained in WPDR Chair texts to avoid overlaps and ensure clarity. Additionally, as 
per the chapeau, the obligation to publish only applie d where the relevant inform ation exist ed. The 
representative of Australia illustrated the above point with the example of technical standards: if 
any Member did not  use technical standards to regulate authorization of services suppliers  in its 
territory, there would be no obligation  on that Member  to publish any information on technical 
standards, as these didn't exist. She also provided an explanation of the intention of the 
expression  "a Member shall provide " (paragraph  1) noting  that the proponents had envisaged to 
give this expre ssion the same  meaning  as GATS Article III, namely that a Member shall  make 
information publicly available . Further changes to the text could be envisaged if Members felt that 
the intention needed to be made clearer. The obligation to publish information o nline had not been 
included in the proposal, as Australia and the co-proponents considered that this might be seen as 
too ambitious for some Members . Instead the proponents  had suggested in footnote 4 the 
definition of "publish ", which might include public ation in an official publication, or preferably an 
official website . Regarding the obligation on enquiry points in paragraph 2, this obligation built on 
GATS Article s III and IV  that require d Members to establish contact points for enquiries between 
Member s. However, the "Transparency " proposal had gone one step further to seek establishment 
of mechanisms for responding to enquiries from service suppliers or potential service suppliers . In 
order to give due consideration to some developing countries ' resour ce constraints, the proposal 
had specifically recognized in footnote 2 that resource constraints may be a factor in determining 
appropriate mechanisms for responding to enquiries . Paragraph 3 on "Opportunity to Comment " 
was the most creative  part of the te xt. Recognizing that this ha d always been the most contentious 
part of transparency discussions , the obligations had been drafted to only apply "to the extent 
practicable and consistent with a Members ' legal system for adopting measures ". Secondly, the 
representative of Australia recalled that based on earlier WPDR  discussions  it had been difficult  to 
reconcile questions about the scope of what Members shall publish in advance, and whether that 
included all measures of general application , or laws, regulati ons and administrative guidelines , or 
just laws and regulations . As a result, co-sponsors proposed to split the  above discipline : the 
obligation on laws and regulations would apply to the extent practicable and consistent with a 
Member 's legal system for a dopting measures . The additional level of flexibility  had been added  in 
paragraph 3.a.(ii) to "encourage " Members to also follow this practice for procedures and 
administrative rulings of general application . She explained that t aking into account comments  and 
questions in previous transparency discussions about how to deal with Members ' different systems 
for public comment, the proponents included in paragraph 3 simply an obligation  to provide 
information in advance . Some Members publish ed draft legislatio n for public comment s, other 
Members publish ed an options paper or sought  more general comments from stakeholders, and 
others use d a mix of approaches  - the "Transparency " proposal therefore  recognize d that there 
was no one -size-fits-all approach.  The repr esentative of Australia also pointed out that 
paragraphs  4 and 5 of the proposal contained best endeavour disciplines  to explain the  purpose 
and rationale  of laws  and, the publication  of laws or regulations  before entry into force . 
1.18.   The representative of the European Union  stated that as a co -sponsor of the "Transparency " 
proposal, his delegation would like to echo Australia 's statement and reaffirm that the proposed 
text built on the progress made over the past WPDR negotiations , as well as FTA practice of 
several Members , including the European Union . The proposal had taken into account  the 
particularities of various transparency systems that exist ed amongst Members , but at the same 
time reflect ed a high level of ambition.  The representative of the European  Union specifically  S/WPDR/M/70  
 
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  highlighted paragraph 3 which deal t with mechanisms for consulting stakeholders. The text had 
made it clear that there was no one -size-fits-all system to be followed by all Members and 
recogni zed the fact that Members had different consultative systems.  
1.19.   The representative of Canada  stated that his delegation generally supported the substantive 
provisions of the proposal.  
1.20.   The representative of Nigeria  emphasized that his delegation was supportive of 
transparency to the extent that it cou ld enhance the effectiveness of domestic regulatory 
processes. Concerning the  scope of the proposal, he enquired where the flexibilities noted by the 
co-sponsors were and what the relationship between obligations and flexibilities was. Regarding 
paragraph 3, he asked for a clarification of the meaning of "consistency with a Member 's legal 
system ", namely whether the obligation to publish information would arise only if the legal system 
permitted it. Furthermore, he asked what the relationship between GATS A rticle III and the list of 
matters to be published in paragraph 1 was, namely whether a Member would be exempted from 
an obligation to publish a matter that did not exist in its jurisdiction. He also pointed out that the 
list contained in  paragraph  1 might  require a periodic update.  
1.21.   The representative of Mexico  stated that as a co -sponsor of th e proposal, h er delegation 
endorsed the statements made by Australia and the EU. She noted that the proposal had been 
based on previous WPDR discussions and had taken  into account different approaches contained in 
FTAs. It contained sufficient flexibilities to accommodate different regulatory systems and was a 
very well-balanced  proposal.  
1.22.   The representative of Brazil  agreed that the draft proposal was balanced and requested 
clarifications on several points from the co -sponsors . First, he enquired whether the reference to 
Article III was only linked to paragraph 1 of the proposal or also to paragraph 2 ("Enquiry Points "), 
and whether as a result the provision on "Enquiry  Points " differed from the one contained in the 
GATS. He pointed to shortcomings in the implementation of GATS Article III itself , and suggested 
to clarify, strengthen or supplement Article III of the GATS. He further  enquired as to the meaning 
of the term "shall provide " in paragraph 1 of the proposal, namely whether it meant that a 
Member shall publish information, or make it available, or put it on the internet. Article s III:1 
and III:2 of the GATS stated respectively  that a Member shall "publish " inform ation or make it 
"otherwise publicly available ". However, according to the representative of Brazil, the expression 
to "make otherwise publicly available " did not necessarily mean publishing something on the 
internet , noting that the GATS was concluded  in the 1990s. He suggested therefore clarifying  the 
meaning of the words "shall provide ". He mentioned also the footnote 4 to paragraph 3 of the 
proposal which did contain the standard for publishing information in advance - including 
publishing information o nline. He noted, however, that this standard seemed to be only applicable 
to publishing information before entry into force with a purpose of providing the opportunity to 
comment (paragraph 3) and not to information sources listed in paragraph 1. I t might be useful to 
make the definition of "publishing " overarching for the whole text of the proposal. Regarding 
paragraph 2 of the proposal on "Enquiry Points ", he requested clarification  on how the information 
supplied by enquiry points would relate to the inf ormation suppli ed by the single window and how  
one could avoid creating overlapping obligations.  
1.23.   The representative of Hong Kong, China  stated  that his delegation considered the proposal 
to be an important building block of the discussion  due to the indisp ensable nature of transparency 
disciplines. He indicated his delegation 's overall support for the proposal.  
1.24.   The representative of the Republic of Korea  stated that as a co -sponsor of the proposal, his 
delegation would like to underline the crucial role tra nsparency played in domestic regulation and, 
in particular, in the administration of measures. He indicated that his delegation looked forward to 
completing the whole picture with other domestic regulation disciplines.  
1.25.   The representative of New Zealand  stated that transparency was an important  part of the 
domestic regulation discussion. Transparency was fundamental for good governance, as 
recogni zed by GATS Article III. Transparency was especially necessary for small- and medium -
sized enterprises (SMEs) tha t had fewer resources when navigating legal requirements in foreign 
markets. The current proposal built on  GATS Article III by allowing foreign suppliers to better 
understand how to supply services in foreign markets. The proposal was balanced and did not S/WPDR/M/70  
 
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  impose any specific regulatory or legislative approaches. She put forward an example of New 
Zealand where there were different types of processes depending on different types of measures: 
for example, a draft would be published in the case of a bill going through the legislative process, 
but in case of regulations , only the policy proposal would be published. Due to the flexibility of the 
"Transparency " text, both systems could meet the standard set by the proposal.  
1.26.   The representative of Colombia  stated th at transparency had always been one of the 
fundamental pillars of the multilateral trading system. He supported New Zealand 's view that th e 
proposal was of crucial importance to micro, small and medium enterprises (MSMEs ), since their 
ability to navigate l egislation in other countries was limited. The proposal built on existing GATS 
transparency obligations. He referred to the disciplines of paragraph 2 ( "Enquiry Points ") that his 
delegation considered to be particularly sound, since access to official info rmation was absolutely 
necessary for providing services. The opportunity to constructively participate in the regulatory 
process contained in paragraph 3 ( "Opportunity to Comment and Information before Entry into 
Force ") was a key element in creating the e nvironment of certainty, stability and good governance 
in trade in services.  He recalled important flexibilities allowing Members to implement obligations 
in accordance with their legal system and registered Colombia 's full su pport for  the proposal.  
1.27.   The re presentative of Chile observed that having robust disciplines in the area of domestic 
regulation was very important for service suppliers around the world, from both developed and 
developing countries. In that context he underlined the importance of having  more proposals 
complementing the proposal on "Administration of Measures " and noted that the "Transparency " 
proposal was a step in the right direction.  
1.28.   The representative of Japan  stated that as a co -sponsor of the proposal, his delegation 
considered tran sparency to be an essential element in bilateral and plurilateral agreements that 
Members had already agreed on. Improvement s in transparency and predictability would help 
companies, especially small and medium -sized e nterprises (SMEs ), to enter other coun tries' 
markets which would result in increased foreign direct investment.  
1.29.   The representative of India observed  that the "Transparency " proposal was broadly based 
on the domestic regulation Chair text and included several elements that were also part of the  
Indian proposal on Trade Facilitation for Services.  He pointed out, however, that whereas the draft 
Chair text applied to licensing requirements and procedures, qualification requirements and 
procedures and technical standards, the "Transparency " proposal  expanded the scope to all 
measures relating to authorization. Regarding paragraph 2 ( "Enquiry Points "), the representative  
of India reiterated a point made previously by the delegation of Brazil, namely that the proposal 
did not specify the opportunity fo r GATS enquiry points to be used. He asked  co-sponsors whether 
they had intended to create separate enquiry points. He also enquired what the reference to 
paragraph x.x of the proposal on "Administration of Measures " meant in paragraph 2. Regarding 
footnot e 2 to paragraph 2, the representative of India considered that the footnote allowed both 
developed and developing countries  to plead resource constraints as a justification for using a 
particular mechanism for responding to enquiries. Such wording was dil uting existing GATS 
obligations. He also requested an explanation as to how special and differential treatment  would 
operate in the context of this provision. Regarding paragraph 3 ( "Opportunity to Comment and 
Information before Entry into Force "), the rep resentative of India limited his question to 
administrative rulings. He requested the delegation of Australia and other pr oponents to provide 
examples fro m their legal systems of administrative rulings. He explained that in India 
administrative rulings had  a quasi -judicial function, therefore the draft texts of the rulings were 
not normally being published by the authorities in advance. Advance p ublication of  those rulings 
could dilute the independent nature of the judicial function. The representative of I ndia also 
enquired as to the intention of subparagraph 4 of paragraph 3 that encouraged Members to 
explain the purpose and rationale of a law or regulation, namely how a Member could demonstrate 
compliance with this obligation and whether this would not be  an unduly burdensome requirement 
on Members ' regulatory authorities. He noted that this obligation was similar to the one contained 
in the draft Chair text. Finally, the representative of India supported some previous speakers in 
their wish to see the com plete picture of all domestic regulation proposals together.  
1.30.   The representative of the Kingdom of Saudi Arabia  stated that her delegation was still 
consulting on the proposal and reserved the right to come back with more technical views in future 
meetings . S/WPDR/M/70  
 
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  1.31.   The representative of Turkey  believed that the "Transparency " proposal together with the 
Indian proposal on "Trade Facilitation for Services ", as a package , were a much needed trigger to 
start text-based work through dedicated sessions to be finalised by  the end of the year.  
1.32.   The representative of Switzerland  stated that her delegation was still consulting internally  
on the proposal and reserved the right to come back with comments  at the next meeting . 
1.33.   The representative of Chinese Taipei  as a co -sponsor of the proposal supported the idea of 
transparency as an important pillar of the multilateral trading system. She underlined that 
transparency of laws and regulations meant a more predictable trading environment and a 
diminished risk of bureaucratic discre tion or discrimination. Furthermore, she pointed out that 
transparency ensured the fulfilment of Members ' commitments. The proponents had recognised 
that some Members might find it challenging to comply with the disciplines of the proposal due to 
resource constraints or efficiency considerations and made an effort to use flexibility language to 
address concerns of particular Members. Her delegation supported the introduction of new 
elements in the discussion.  
1.34.   The representative of Peru stated that the prop osal contained important provisions for 
facilitating international trade in services and signalled his delegation 's overall preliminary support 
for the prop osal. 
1.35.   The representative of the Plurinational State of Bolivia  stated that the proposed measures 
could be very burdensome for many developing countries. In his opinion, agreements should 
facilitate the performance  of Members, and not hamper it with ambiguous expressions. He 
enquired about the Spanish translation of paragraph 1, which seemed to indicate t hat Members 
"will facilitate " access to information rather than "shall provid e", as in the original English  version . 
Regarding paragraph 2 ( "Enquiry Points "), he enquired as to the meaning of the phrase 
"appropriate mechanisms " and who had an authority to establish what was appropriate in a 
particular sector. He pointed out that some countries might not be able to divert resources from 
other areas towards fulfilling this obligation. As regards paragraph 3.a.i that mandated advance 
publication of laws and re gulations of general application, he noted that this would cause many 
difficulties and needed to be revised. Paragraph 3.b on the opportunity to comment on proposed 
measures also went beyond WTO standards. Paragraph 3.c was very burdensome, as authorities 
could not take into account all the observations made.  
1.36.   The representative of Singapore  signalled his delegation 's support for the proposal and 
considered it to be a good basis for discussions. He mentioned transparency 's beneficial impact on 
MSMEs that fa ced significant  regulatory barriers in accessing foreign markets. He observed that 
the proposal had drawn from past WPDR work and recent developments in other agreements and 
tried to accommodate systems from various jurisdictions.  
1.37.   The representative of Egypt called for using the best endeavour language in the chapeau of 
paragraph 1 ( "Publication and Information available "). He also stated that his delegation preferred 
to combine all obligations concerning technical standards under one pillar.  He noted that  not all 
services sectors in Egypt provided opportunity for public involvement as stated in paragraph 1.g, 
such as hearings or comments. Regarding paragraph 2 ( "Enquiry Points "), the proposal broadened 
the scope to licensing requirements and procedures, qu alification requirements and procedures 
and technical standards and placed an obligation on both developed and developing countries. He 
also stressed that the obligation to respond to individual services suppliers through enquiry points 
had not been forese en by the GATS, hence the proposal introduced a new obligation. With regard 
to paragraph 3 ( "Opportunity to Comment and Information before Entry into Force "), he warned 
that the Egyptian legal system did not provide for advance publication and comments bef ore entry 
into force. He held that the proposal sought to introduce a new mechanism not foreseen by the 
GATS. As similar mechanisms had been previously introduced in the SPS and TBT Agreements, the 
representative of Egypt suggested examining proposed disci plines and their impact from the 
implementation point of view. The proposal also introduced the concept of "reasonable time " that 
needed to be clarified. This concept appeared  similar to the concept of "reasonable intervals " 
foreseen in the SPS and TBT Agr eements which  had been interpreted to be equal to a period of no 
less than six months. The representative of Egypt asked  whether the phrase "reasonable time " 
would adhere to the same standard and would follow the same criteria.  S/WPDR/M/70  
 
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  1.38.   The representative of Argent ina stated that the proposal was a good basis for discussions  
and endorsed the statement made by Brazil.  
1.39.   The representative of South Africa  stated that the GATS required any disciplines on licensing 
requirements and procedures, qualification requirements a nd procedures and technical standards 
to be based on objective and transparent criteria. She believed that transparency as described in 
the current proposal did not fall under the mandate of GATS Article VI :4. She asked the 
proponents to clarify how they d efined the "transparent criteria " with respect to above listed 
measures and how the scope of the current proposal correlated with the mandate of GATS 
Article VI:4. 
1.40.   The representative of Nigeria  noticed similar language between the current proposal and the 
Indian proposal on "Trade Facilitation for Services " in terms of the issue raised by South Africa. He 
asked the proponents to elaborate on the resource constraints as a condition for compliance with 
an obligation in paragraph 2 ( "Enquiry Points "). He enqui red as to the meaning of the reference to 
domestic laws, in addition to the reference to the domestic legal system in paragraph 3 
("Opportunity to Comment and Information before Entry into Force "). Regarding paragraph 3.b, he 
requested clarification regard ing the consideration of comments received by Members, namely 
whether a Member was obliged to take them into consideration and what the consequences of 
non-compliance would be.  
1.41.   The representative of Paraguay  endorsed the statements made previously by his fellow 
MERCOSUR countries.  
1.42.   The representative of Australia  stated that the requirement of the GATS to develop 
necessary disciplines to ensure that qualifications , licensing and technical standards were objective 
and transparent , was reflected directly in t his proposal. She explained that in terms of the scope of 
the proposal , the intention had been  to have the same scop e, as in the "Administration of 
Measures " proposal through  the reference to paragraph x.x which covered  qualification  
requirements and proce dures,  licensing  requirements and procedures  and technical standards. 
Regarding paragraph 1 ("Publication  and I nformation  available "), she reminded Members that 
under GATS Article III , Members had already had an obligation to publish all measures relevant to 
trade in services , and  best endeavour language  in this provision  would mean  a GATS minus  
obligation. The value -added of paragraph 1 was in making information available only where it 
existed, as the list ed elements were not equally relevant to all Member s. In other words, those 
Members that  did not charge fees for authorization  or did not  have technical standards that were 
relevant to authorization requirements , would not be expect ed to publish information  that did not 
exist. In terms of the meaning of th e obligation to "provide " information, the  intention  of the co -
sponsors had been to stick with the GATS, meaning "to publish " or "make publicly available ". She 
agreed with the comments made by  Brazil that footnote 4 on the meaning of "publish " actually 
belonged in paragraph 1.  
1.43.   The obligation to establish enquiry points between Members and service suppliers in 
paragraph 2 ( "Enquiry Points ") was  a new obligation, as rightly pointed out by Egypt and was 
different from the one in GATS Articles III and IV. Membe rs could, however, use the same contact 
points they had established under GATS Article III and IV. The lack of reference to GATS contact 
points in footnote 1 to paragraph 2 had been intentional, as many Members nowadays used online 
portal s or website s for responding to enquiries from services suppliers. With a view to keeping 
these disciplines  technologically neutral, co -sponsors did not want to encourage Members to use 
outdated forms of contact points. To sum up, Members could use the same contact points a s under 
GATS Article III or a different type of mechanism for responding to enquiries. Regarding whether 
the reference to resource constraints diluted the GATS, the representative of Australia noted that 
this was a GATS plus obligation, as the enquiry poin ts were meant to be between M embers and 
service suppliers. She underlined that her delegation was open to discussing the language of this 
provision further, inter alia  in the context of development -related disciplines. Regarding India 's 
question in relatio n to paragraph 3 ("Opportunity to Comment and Information before Entry into 
Force "), the obligation concerned administrative rulings of general application only and had been 
drafted using best endeavour language. Regarding the obligation to consider commen ts 
(paragraph 3.b), the co -sponsors had not asked Members to respond or summarise them, but only 
to consider comments received. Compliance with this obligation would not require Members to 
prove that they had taken into account all comments, or reflected t hem in the drafts. In order to S/WPDR/M/70  
 
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  prove the fact that a Member had not considered comments, one would have to prove that a 
Member had neglected to even have a look at the comments.  
1.44.   Regarding Nigeria 's question on the meaning of the domestic legal system, the 
representative of Australia clarified that if a Member 's legal system precluded comments on 
proposed legislation , that Member would not have to provide advance publication and the 
opportunity to comment . In relation to the questions about special and diffe rential treatment and 
flexibilities , the co -sponsors had  included some language from the Trade Facilitation Agreement  
(TFA) , including in relation to headings and obligations . Co-sponsors had tried to c ome up with 
language  that was not too ambitious  and co ntained flexibilities , so that developing M embers could 
generally adopt  the disciplines . Her delegation was open to further discussing specific flexibilities, 
e.g. in relation to the enquiry points, resource  constraints, transition periods, and implementin g 
opportunities to comment. She upheld the point made by Brazil that it w ould soon  be necessary to 
consider all elements together to assess whether there were any gaps in the proposal s. 
1.45.   The representative of the Plurinational State of Bolivia  asked a follow-up question 
concerning paragraph 3.c. He was of the view that the wording of the provision (that a M ember 
shall "consider " comments ) mean t that a Member would have to take comments into account , 
compile them or include them in the draft text of the law,  which constituted an obligation  beyond 
current WTO agreements.  
1.46.   The representative of Nigeria  asked the representative of Australia to provide responses to 
his questions concerning the TFA language, resource  constraints  and reference to legal system s 
and domestic law . He then posed an additional question regarding the qualification of the 
opportunity to comment in paragraph 3.b, namely what  the rationale had been behind qualifying 
the opportunity  as "reasonable " and how "reasonable " that opportunity should be. He asked the 
delegation of Australia for clarification regarding whether there was an obligation to consider 
comments, and if yes - what rationale this discipline had in cases when comments would not be 
taken into account and what the consequences of do ing so would be.  
1.47.   The representative of Argentina  requested a clarification in respect of the relationship 
between the phrase "in a manner consistent with its legal system " in paragraph 3 and the phrase 
"shall publish in advance " in paragraph 3.a.i. He note d that most agencies in Argentina did not 
publish proposed legislation in advance, as the domestic obligation to publish was of an optional 
nature.  
1.48.   The representative of Australia  confirmed that the proposal contained an obligation to take 
into account the  comment s, namely, to consider the m. There was, however, no obligation to 
respond to comments.  The obligation mandated Members to look at the comments and decide on 
their own whether they want ed to reflect those comments in revisions to the draft or not. By the 
same token, there was no obligation to report . The important thing was not to disregard the 
comments  completely . 
1.49.   In relation to the TFA language, the co -sponsors used the language that Members had 
previously considered appropriate for services, but e xpressed readiness to have a more detailed 
bilateral exchange on where the language might need specific adaptations recognizing the diverse 
range of services, and the diverse range of competent authorities that are responsible for 
regulating qualifications , licensing and technical standards.  
1.50.   In relation to qualifying a "reasonable " opportunity, the co -sponsors had intended to make 
sure there was a real and fair opportunity to comment and for that reason the provision included 
the qualifier "reasonable " which at the same time provided flexibility. What was reasonable would 
depend on the nature of the law or regulation, or procedure, or administrative ruling of general 
application. Whereas in order to provide quick comments on a small change Members might not  
need a lot of opportunity to comment and stakeholders would be able to quickly assess whether or 
not they though t that was reasonable, in case of more comprehensive changes, for instance 
changes to the way a Member treated qualifications for all professio nal services, Members might 
need to allow more time to comment, so that all professional services bodies and stakeholders 
would be able to engage and understand the process. According to the co -sponsors, the word 
"reasonable " contained an inherent level of  flexibility that served the purpose of the proposal S/WPDR/M/70  
 
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  better than trying to specify the exact timeframes, which was difficult in the context of the wide 
range of different requirements, procedures and competent authorities.  
1.51.   The representative of Uganda  enquired whether the list of information sources in 
paragraph  1 ("Publication and Information available ") was a non -exhaustive list . He considered 
paragraph 3 ( "Opportunity to Comment and Information before Entry into Force ") to be intrusive  
to Members ' sovere ignty, as it provide d space for other Members to assess how their interests 
might be  affected  by the actions of that Member. He associated himself with the  question  raised 
previously by Nigeria, regarding the meaning  of the word "reasonable " in paragraph 3 .b. In 
relation to paragraph 3.c, the representative of Uganda enquired what "considering " comments 
meant in practice. He asked whether it meant taking a look  at comments, or taking a few elements 
and incorporat ing them into the text , or simply claiming th at the comments had been considered. 
Regarding paragraph 4, he enquired what would happen  if the interested parties disagree d with a 
rationale and object of the proposed law, as explained by a Member, and whether in that case a 
Member would still retain th e right to regulate.  
1.52.   The representative of Australia  stated that co-sponsors looked forward to  further discussions 
with the LDC Group concerning both their offensive interests and resource constraints. Regarding 
the question raised by Uganda concerning the  non-exhaustive nature of the list of measures in 
paragraph 1 ( "Publication and Information available "), she explained th at GATS Article  III applied 
to "all measures affecting trade in services " and the list in paragraph 1 only represented a non-
exhaustive  list of the kinds of information Members already had to publish as per their obligations 
under the GATS. The intention of this provision had not been to create an extra burden on 
Members, but rather to be transparent in relation to the types of informatio n that are required for 
transparency in relation to licensing requirements and procedures, qualification requirements and 
procedures and technical standards.  
1.53.   The representative of Nigeria  requested a clarification regarding the definition of "interested 
persons " in paragraph 3.a.i of the proposal and whether this definition included a qualifier.  
1.54.   The representative of Australia  explained that anyone who might have an interest in the 
proposed draft disciplines could qualify as an "interested person " in paragr aph 3.a.i. Unlike in 
paragraph 1 ( "Publication and Information available "), where the obligation concerned specifically 
"service suppliers and persons seeking to supply a service ", paragraph 3 deliberately contained a 
broader term "interested persons ". Co-sponsors had intended to acknowledge that when it came to 
providing comments on draft legislation a wider variety of stakeholders , including not only service 
suppliers  but also consumer groups and other interested parties, would want to make sure that 
proposed laws met a balance of public policy objectives. The purpose of this provision had also 
been to make sure that when drafting regulations, government s would cater for various policy  
objectives and not only the commercial perspective.  
1.55.   The Chairperson  thanked the delegations for their active engagement and encouraged 
further consultations. She invited the Working Party to take note of the statements made.  
1.56.   It was so agreed . 
1.2  Communications on "Development of Measures " from Australia, Canada, Colombia, 
the Eu ropean Union, Israel, Japan and Mexico (JOB/SERV/250) and Chile;  Hong Kong, 
China ; New Zealand, and Switzerland(JOB/SERV/252/Rev.2 ) 
1.57.   The representative of  the European Union  introduced the Communication on "Development 
of Measures " from Australia, Canada, C olombia, the European Union, Israel, Japan and Mexico  
(JOB/SERV/250) . His delegation saw transparency and development of measures as the next two 
building blocks for discussion.  He acknowledged that o ther important blocks of the text were still 
missing , notably the  block on  development , and expressed hope that soon all the elements w ould 
be available so as to enable Members to have a discussion on a complete text.  Whereas the 
proposal  on "Administration of Measures " dealt with how Members implement ed licens ing 
procedures, licensing requirements, qualification procedures , qualification requirements and 
technical standards, the proposal  on "Development of Measures " focuse d on how such measures 
were developed.  Like the "Administration of Measures " proposal , this proposal presented  one set of 
short and clear provisions without making any distinction between rules that appl ied only to S/WPDR/M/70  
 
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  licensing and rules that appl ied only to qualifications. The proposal dr ew from the past WPDR 
Chairs ' texts of 2009 and 2011, exper ience with the harmonization of internal rules on trade in 
services within the EU  and various Members ' FTA practice . The objective of the proposal had been  
to strike the right balance between ambition and feasibility.  The co -sponsors  had deliberately 
chose n not to include a provision inspired by GATS Article VI:4 (b) on necessity , as p ast 
discussions on necessity ha d been very difficult and had shown a clear divide amongst the 
membership. The co -sponsors considered  that a balanced and reasonable approach ha d more 
chance s of success than a return to an antagoni zing discussion on a controversial matter . The 
scope  of the proposal  was the same as for the "Administration of Measures " part, i.e. as stated  in 
paragraph x.x  of the latter proposal . Paragraph 1.a set out the basis for the development of 
measures, i.e. that these are based on objective and transparent criteria , which was the concept 
contained in GATS Article VI:4. Paragraphs 1.b and 1.c of the proposal  focused on the interplay 
between procedures and req uirements and on the importance of ensuring impartiality of 
procedures. Paragraph 1.d foresaw that competent authorities should reach and administer their 
decisions in an independent manner. All these elements ha d already been discussed in the WPDR 
in the past. 
1.58.   The representative of Hong Kong, China  introduced the Communication on "Development of 
Measures " that his delegation had co -sponsored together with Chile, New Zealand, and 
Switzerland (JOB/SERV/252/Rev.2) . The proposal  had not been envisaged as compe ting with the 
other  proposal  on development of measures , but rather as complementing it. He underscored the 
importance of fulfilling the mandate of GATS Article VI:4 with robust disciplines. Paragraph 1.b of 
the proposal contained a necessity test that replicated the language in GATS Article VI:4(b). 
Paragraph 1.c had slightly different language from that of the respective paragraph of the other 
proposal, as it required th at procedures were reasonable and did not unduly impair the fulfilment 
of requirements . The co -sponsors had applied GATS language to explain the requirement to take 
into account international standards in paragraph 1 and footnote 2. In order to address any 
concerns regarding policy space, co -sponsors included in paragraph 2 of the proposal the 
reaffirmation of Members ' right to regulate, as provided for  in the preamble to the GATS. They also 
recorded that if Members deemed appropriate, paragraph 2 could be moved to the part of general 
provisions of the final outcome. The co -sponsors also rem ained flexible as to the bracketed 
language of footnote 1 borrowed from the GATS, regarding the  use of  potential health or 
environmental impacts of an authorisation decision as potential criteria for the competent authority 
to make an assessment of objecti vity and transparency.  
1.59.   The representative of Uganda  made a statement on behalf of the LDC Group . He quoted the 
September 2016 Secretariat Note on Market Access (WT/COMTD/LDC/W/64) which indicated that 
LDCs had been net commercial services importers, accou nting for 0.8% of world exports and 1.6% 
of world imports of commercial services. Over the years, the LDCs ' services trade deficit has 
widened from US$16.3 billion in 2005 to US$39 billion in 2015 . Consequently, the adoption of 
robust domestic  regulation d isciplines by LDCs would lead to them granting market access to the 
proponents, which was contrary to the purpose  and spirit  of the LDC Waiver Decision. He recalled 
the objectives of the LDCs: first, to increase the participation of their suppliers in the benefits of 
international trade in services, in particular in the area of competitiveness, diversification of 
exports, increased employment and poverty reduction; second, to improve universal access to 
basic services and ensure sustainable development, inc luding in the social dimension. He stated 
that trade rules were designed to ensure market access and not directly designed to promote 
efficiency and social welfare. The LDC Group was cautious about potentially highly intrusive 
domestic regulation elements that required trade policy considerations to prevail over other 
legitimate policy objectives, such as access to services, employment considerations, 
macroeconomic reasons, security, cultural and social considerations. Domestic regulation 
disciplines could therefore significantly constrain the capacity of States to regulate when pursuing 
the above listed objectives. He expressed  the LDC Group 's regret about the continued absence of 
the LDC -specific language which had been agreed ad referendum in both Chairs ' texts of 2009 and 
2011 and that did not require, but only encourage LDCs to abide by domestic regulation disciplines 
to the extent compatible with their special economic situation, trade, development and financial 
needs. On substance, t he LDC Group was co ncerned about the proposal for a necessity test  in 
document JOB/SERV/252/Rev.2 , and the role the WTO would play in the LDC governments ' 
regulatory activity  if such a test was to be adopted . He requested a clarification of the meaning of 
the concepts "not m ore burdensome than necessary ", "objective and transparent criteria ", 
"impartial " procedures and procedures that "do not in themselves unduly prevent fulfilment of 
requirements ". The representative of Uganda enquired what the scope of the proposal containe d in S/WPDR/M/70  
 
- 12 - 
 
  paragraph x .x in JOB/SERV/250  was. He requested a clarification of the meaning of the expression 
"measures relating to " licensing requirements, licensing procedures, qualification requirements, 
qualification procedures and technical standards and the expression "affecting trade in services 
where specific commitments are undertaken ". Would the disciplines be applicable if the measures 
fell under the sector where no specific commitments had been undertaken ? He outlined a 
hypothetical scenario where a Mem ber had commitments in construction services and the related 
licensing requirement for that sector concerned financial services, where a Member had not 
undertaken specific commitments. He then posed a further question whether that licensing 
requirement wou ld be covered by the scope of the proposed disciplines. He requested a 
clarification of the term "objective and transparent criteria " and whether the term "objective " could 
be understood as "not biased ", "not subjective ", etc. He enquired whether an affirm ative measure 
put forward by the government to address historical injustices with a view of establishing 
preferences in areas like investment decisions would be considered biased and, therefore, not 
objective, as it favoured the interests of an individual or group of interested parties. He asked the 
co-sponsors to clarify whether business licensing decisions that gave weight to public opinion or 
concerns of neighbouring countries could be considered to be non -objective criteria. Regarding the  
proposed parag raph that stipulated that  procedures shall not "in themselves unduly prevent 
fulfilment of requirements ", he enquired whether an adverse environmental impact assessment 
could stop a mining project or the granting of a building permit if it was to be consid ered to be 
unduly preventing fulfilment of requirements. He requested a clarification of the proponents ' 
understanding of the notions of "independence " and "impartiality " in paragraphs c . and d . of the 
JOB/SERV/250 . He further enquired as to the relationsh ip between the proposed disciplines and 
the LDC Waiver Decision and whether there was a qualifier in defining the concepts of "objective " 
and "reasonable ", namely concerning the  range of competing factors that would be considered and 
in the context of whos e legal and administrative traditions.  
1.60.   The representative of South Africa , speaking on behalf of the African Group  stated that too 
much emphasis was being placed on the domestic processes involved in developing measures. She 
noted that t his had not been the intention of GATS Article VI :4 and urge d Members to desist from 
the temptation to recreate the legislative history of the GATS. The African Group had serious 
concerns about the implications of certain language , such as "not more burdensome than 
necessary ", and "do not in themselves unduly impair the fulfilment of requirements ". The Group 
was particularly concerned about how this language would  constrain  governments ' ability  to 
regulat e. She underlined that  the development of regulatory measures was usuall y based on 
several legitimate policy objectives, with trade being only one of them. The African Group was of 
the firm view that the "right to regulate ", as recognized by the GATS , and preserving the 
necessary policy space were critical to Africa 's long -term developmental objectives.  The African 
Group also remind ed Members that in the Declaration on WTO Issues adopted  in Addis Ababa in 
November  2016 (WT/L/1004), African Ministers of Trade had stated that any outcome on GATS 
Article VI :4 disciplines shall not  involve the implementation of new and/or onerous administrative 
requirements or requirements that intrude d into the domestic policy -making processes.  
1.61.   The representative of Nigeria  requested that the proponents consolidate their submissions 
for the purpos es of efficiency once they considered it appropriate, as the two proposals contained 
commo n elements.  He encouraged the co -sponsors of the JOB/SERV/252/Rev.2  to consider 
dropping the provision on the necessity test. Regarding the right to regulate, as stat ed in the 
preamble to the GATS, he appreciated that JOB/SERV/252/Rev.2  reiterat ed this right in 
paragraph  2 of the proposal. He requested a clarification of the provision in paragraph 2 stating 
that th e proposal shall not prescribe or impose particular reg ulatory approaches or provisions. He 
enquired as to the rationale behind including footnote 2 on international organizations. He 
underscored the importance of considering all elem ents of the discussion together,  eliminating 
overlaps, and including a strong  special and differential treatment component.  
1.62.   The representative of Canada  stated that as a co -sponsor of JOB/SERV/250 , his delegation 
considered the proposal to be a pragmatic way forward. He noted that the alternative proposal, 
contained in JOB/SERV/25 2/Rev.2  introduced some difficult elements, such as the necessity test 
that had been a problematic concept throughout many years of negotiations. The alternative 
proposal diverged from other proposals, including those  on "Transparency " and "Administration of 
Measures " that strove to bridge differences and achieve consensus by building in appropriate 
flexibilities to accommodate differences in Members ' regulatory regimes. He encouraged the co -
sponsors to reflect on their approach and on whether it would lead  to reaching a successful 
outcome in domestic regulation.  S/WPDR/M/70  
 
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  1.63.   The representative of Thailand  requested a clarification on the intention of the expanded 
language of footnote 1 to paragraph 1.a of JOB/SERV/250  on the various criteria for developing 
measures, as GATS Article VI:4 only indicated the competence and the ability to supply a service. 
Regarding paragraph 1.b, she enquired whether the procedures in question included licensing and 
qualification procedures, or  also any  other procedures.  
1.64.   The representative of Australia  expressed the view  that the proposal on "Development of 
Measures ", of which Australia was a co -sponsor, was a pragmatic text that could realistically 
secure agreement from all Members.  The delegation of Australia ha d been one of the strongest 
demandeurs for more ambitious disciplines, including a necessity test , but after many years of 
unsuccessful discussions it was not reasonable to continue to hold out for an unrealistic ambition . 
1.65.   The representative of New Zealand  stated  that even though in the majority of instances the 
language of the two proposals was the same, JOB/SERV/250  did not contain some important 
elements. Including certain additional disciplines, such as  a necessity test, was an essential step 
towards fulfilling the full mandate of  GATS Article VI:4. The necessity test was a familiar and 
important safeguard against unduly burdensome and disproportionate regulation. Unlike the LDC 
Group that considered the proposals to be too focused on market access, the co -sponsors of 
JOB/SERV/252/ Rev.2  held that the necessity test was about good governance and was useful 
regardless of whether a Member was a net exporter or a net importer of services. The co -sponsors ' 
approach was based on a genuine commercial imperative, as their services exporters  encountered 
a lot of cumbersome measures relating to licensing requirements and procedures, qualification 
requirements and procedures, and technical standards  in certain markets . Such trade -restrictive 
measures impacted more heavily on small - and medium -sized enterpri ses that took up a large 
proportion of services exporters. The necessity test should have been a familiar concept to the 
membership, as it already applied under the GATS and was present in some FTAs. Unlike the other 
proposal , JOB/SERV/252/Rev .2 also applied to technical standards, which the proponents saw as 
an appropriate step towards fulfilling the Article VI:4 mandate. Regarding the question raised by 
the LDC Group on the relationship between market access and domestic regulation discipline s, the 
representative of New Zealand clarified that the proposed disciplines would  not take away, but 
rather enhance existing market access, inter alia  provided under the LDC Waiver Decision.  
1.66.   The representative of Colombia  endorsed the statement made by t he European Union and 
noted that Colombia had always been a proponent of strong domestic regulation disciplines, as 
mandated by GATS Article VI:4. The proposal  in JOB/SERV/250  contained elements necessary to 
achieve a reasonably ambitious outcome, while taking into account the current state of discussions 
and the level of participation of the membership.  The representative of Colombia noted, however, 
that this proposal d id not fulfil the full mandate of the GATS . 
1.67.   The representative of Brazil  supported the s tatement made by Nigeria that having to discuss 
the necessity test would undermine the possibility of achieving results in MC11, as  agreement had 
neither been reached in previous WPDR negotiations on that subject, nor in a lot of regional trade 
agreements.  Regarding the language of footnote 1 to paragraph 1.a of JOB/SERV/250 , he 
cautioned against using flexibility language, such as "for greater certainty ", that would create a 
very difficult threshold for dispute settlement in the future.  
1.68.   The representative  of Switzerland  endorsed the statement s made by Hong Kong , China  and 
New Zealand. Switzerland attache d high importan ce to developing solid and meaningful disciplines 
on domestic regulation based on the negotiating mandate of Article VI:4.  The elements contained 
in the proposal JOB/SERV/252/Rev.2  would make domestic regulation disciplines more robust and 
enable the WPDR to make progress towards fulfilling the mandate of GATS Article VI:4. In 
particular, the necessity test was an important safeguard against u nduly burdensome regulation  
that would help to ensure good governance and balanced regulation. The delegation of Switzerland 
was, however, aware of the sensitivity of this element for certain Members . Switzerland was 
sceptical about the bracketed part of f ootnote 1, as th e language of the footnote  would give 
authorities discretion that could impair the effectiveness of the domestic regulation disciplines . 
Regarding the right to regulate contained in para graph 2, it was not necessary to  replicate  this 
discip line, since the GATS Preamble already contain ed it, but it might  be useful if such inclusion 
could provide Members  with more comfort in discussing the necessity test.  
1.69.   The representative of the Plurinational State of Bolivia  supported the request for clarif ication 
made by the LDC Group and some other developing Members in terms of the meaning of the S/WPDR/M/70  
 
- 14 - 
 
  concepts "objective " and "transparent ", as those could prevent developing countries from 
favouring certain vulnerable categories of population, inter alia  indige nous population , to address 
historical problems. Regarding the requirement for the procedures to be "impartial " in 
paragraph  1.c of the JOB/SERV/250 , he enquired whether those could be National Treatment or 
MFN violations, or whether the y referred to the a uthority 's ability to make impartial decisions and 
could  effectively  limit the actions  of a competent authority . Concerning paragraph 1.d of 
JOB/SERV/250 , he also enquired who the regulatory authority had to be independent from. In 
Latin America there had been many instances of corruption and governments facing pressure from 
transnational corporations, so having a strong State was paramount. Hence the proposed 
disciplines required more thorough analysis.  
1.70.   The representative of Egypt  enquired whether the onl y distinction in terms of scope between 
the domestic regulation  proposals and the Indian communication on the trade facilitation for 
services was that the DR proposals applie d only to service s sectors wh ere specific commitments 
had been  undertaken and did not apply to measures to the extent that they constitute d limitations 
subject to scheduling under GATS Articles XVI and XVII. He also posed a follow -up question on 
whether the disciplines would apply to an entire  commitment with limitations or only to the 
limitation.  Regarding paragraph 1. d of JOB/SERV/250,  which  referred to both the decision making 
and the administration of measures , he enquired as to the difference between the terms 
"independence " and "impartiality ". The proposal addresse d the independenc e of the decision 
makers in reaching and adminis tering  decision s and require d that the y did not ha ve links (formal 
or informal) with individuals or corporations who ha d a stake in the case at hand, whereas 
impartiality require d that a decision maker had  not been biased against certain aspects relevant to 
the decision .  
1.71.   The representative of Mexico  stated that as a co -sponsor of JOB/SERV/250 , her delegation 
considered the proposal to be a pragmatic text and a good point of departure to build on in future 
discussions. She admitted that the proposal did not completely comply with  the mandate of 
Article  VI:4 and noted previous difficulties in discussing matters such as the necessity test in the 
current context.  
1.72.   The representative of India noted the formulation u sed in paragraph 11 of the 2011 Chair  
text stating that the objective and transparent criteria, on which the measures shall be based, 
could include the ability to supply a service. GATS Article VI:4 indicate d competence and the ability 
to supply a service  as the objective and transparent criteria to follow when developing measures. 
He upheld the concern expressed by Thailand and Brazil regarding the expanded language of 
footnote 1 to paragraph 1.a of JOB/SERV/250 . The footnote included criteria such as the potential 
health or environmental impacts of an authorisa tion decision , which could give authorities a lot of 
discretion to reject  an application , based on criteria  that could be irrelevant for the supply of a 
service. He also echoed other Members ' concern s regarding the necessity test.  
1.73.   The representative of Chile endorsed the statements made by Hong Kong, China and New 
Zealand. He stated that the proposal  in JOB/SERV/252/Rev. 2 was complementary to the proposal 
in JOB/SERV/250 but included additional elemen ts that would facilitate trade in services, respond 
to the mandate of Article VI:4 and at the same time guarantee Members ' policy space. He noted 
that his delegation would be ready to work on a consolidated text if the proponents decided to 
merge the two p roposals. Regarding the point made by Uganda that domestic regulation 
disciplines might compromise the benefits of the LDC Services Waiver, he was of the view  that the 
effect would be exactly the opposite, namely that such disciplines would enable and enha nce 
effective market access. Chile was one of the preference granting Members under the LDC Waiver 
Decision and remained open to discussing development disciplines in the context of domestic 
regulation discussions.  
1.74.   The representative of Turkey  supported th e idea that disciplines on domestic regulation 
should establish some minimum  criteria to be followed during the dev elopment  of regulatory 
measures  and would like to see them as  part of the final outcome.  She noted that Turkey 's 
domestic regulation legislat ion and practice had already  been in line with the criteria in both 
proposals . She expressed her delegation 's readiness to discuss the disciplines in dedicated 
sessions in order to finalize an agreement by MC11.  
1.75.   The representative of  the Bolivarian Republi c of Venezuela  supported several previous 
speakers in requesting clarification of the concepts "objective " and "transparent " and their link S/WPDR/M/70  
 
- 15 - 
 
  with the capacity of Members to regulate. He shared other Members ' concerns regarding the 
consequences for governmen ts having to comply with objective and transparent criteria to 
establish new regulations when those criteria might interfere with national policy objectives. The 
proposed discipline on  a necessity test added another layer of complication to the already dif ficult 
negotiating environment. It was important to maintain governments ' right to regulate to guarantee 
universal service supply.  
1.76.   The representative of Chinese Taipei  considered the proposal  in JOB/SERV/250  to be very 
concise and pragmatic, while the proposal in JOB/SERV/252/Rev.2 addressed the critical issue of 
finding the right balance between promoting trade and maintaining the right to regulate.  
1.77.   The representative of China  invited  proponents to consider the special and differential 
treatment dimensio n that , in the spirit of cooperation and compromise , would help Members reach 
consensus and deliver balanced outcomes.  
1.78.   The representative of the European Union  clarified that the proponents  of JOB/SERV/250  
had not specifically included the right to regulat e in their proposal, as they thought it was better 
suited to be in the opening part of the final outcome. Regarding special and differential treatment, 
he noted that the proposal already included a set of flexibilities and avoided the controversial 
concept  of the necessity test. With respect to the LDC Waiver, he mentioned that the domestic 
regulation disciplines would not affect preferences under the Waiver, but rather facilitate market 
access for all Members, including LDCs. L ike the proposal in JOB/SERV/ 252/Rev.2 that mentioned 
technical standards explicitly , JOB/SERV/250  also covered technical standards, but by the virtue of 
the generic reference to paragraph x.x of the "Administration of Measures " proposal , 
JOB/SERV/239/Rev.1 . Technical standards would be covered by the proposal to the extent that 
they were mandatory for supplying a service. Regarding the  concept of  "objective and transparent 
criteria " in paragraph 1.a, these terms came from the GATS and other WTO agreements. 
Regarding the concept of "relevant for supply of a service " from the 2011 Chair 's text, as enquired 
by India, the proponents had purposefully omitted this expression in order not to go back into the 
necessity test -type discussions that had surrounded  the notion of "relevant ". Regardi ng footnote 1 
to paragraph 1.a, he expressed his delegation 's readiness to engage further with Brazil and other 
concerned Members on how to improve the language, but stressed that  the footnote was a 
necessary context for paragraph 1.a. Regarding the defini tions of procedures in paragraph 1.b, the 
word "procedures " included indeed only licensing and qualification procedures, and the same logic 
applied to the word "requirements ". Regarding the meaning of the word "impartial " in 
paragraph  1.c, this concept was  already present in GATS Article VI:1. As rightly pointed out by 
Egypt, the concept was different from "independent ". The concept of "independent " was present in 
paragraph 1.d of the proposal and meant to describe the way the competent authority reached 
and administered its decisions. Regarding the concerns of Members in relation to the piecemeal 
approach, he agreed that a prompt consolidation of different components of the discussion would 
be beneficial for the process.  
1.79.   The representative of Hong Kong, Chi na reiterated that the proposal his delegation had co -
sponsored was not competing with the proposal  in JOB/SERV/250 . Regarding the necessity test, he 
stressed that GATS Article VI:4 contained a requirement for measures to be "not more 
burdensome than neces sary" and it was important to fulfil the full mandate of Article VI:4. 
Regarding the right to regulate, the proposal mentioned the concept of policy space in the footnote 
and the co -sponsors were open to improving the language if it offered comfort to the membership. 
The objective of designing more robust domestic regulation disciplines was to create a level 
playing field that would be especially beneficial for MSMEs, but generally for all sorts of services 
traders.  
1.80.   The Chairperson  thanked  the delegations f or their active engagement and encouraged 
further consultations. She invited the Working Party to take note of the statements made.  
1.81.   It was so agreed . S/WPDR/M/70  
 
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  1.3  Communication from Australia, Chile, Colombia, the European Union, Japan, Mexico, 
Norway, Peru, Republic o f Korea, and the Separate Customs Territory of Taiwan, 
Penghu, Kinmen and Matsu on "Administration of Measures " (JOB/SERV/239/Rev.1)  
1.82.   The Chairperson  recalled the discussion that had taken place at the formal meeting of the 
Working Party on 6 October and 25  November 2016, as well a s at the informal meeting 
of 31 October and invited delegations to take the floor.  
1.83.   The representative of Australia  provided an update on her delegation 's consultations since 
the last WPDR meeting and thanked Members for undertaking  extensive consultations in capitals 
and for their engagement in Geneva. Many Members had indicated that they were comfortable 
with the  balance between ambition and flexibility  in the proposal , and that current discussions 
were aimed at better understandin g the nature of the obligations and the flexibilities . The only 
suggestion the delegation of Australia had received was in relation to moving the footnote on the 
single window  (footnote 2 to paragraph x.1)  to the body of the text . A number of Members ha d 
indicated that  the footnote would provide  the necessary comfort in relation to authori zations that 
fell within the competency of multiple authorities if it could be located in the text.  She noted the 
importance of having a subsequent informal meeting of the  Working Party in the near future.  
1.84.   The representative of the Kingdom of Saudi Arabia  stated that during bilateral consultations 
with Australia, her delegation had requested to include footnote 2 to paragraph x.1. ("Single 
Window ") in the text of the parag raph.  
1.85.   The representative of the Plurinational State of Bolivia  expressed concerns regarding the 
General Provisions of the proposal (paragraph x.x), namely that the expression "measures 
affecting trade in services " was quite wide in scope. He noted that Bo livia's GATS commitments in 
modes 1 and 2 were perhaps a bit more liberal than what was considered to be the case in 1995. 
It was important to understand the difference between technical standards and licensing 
requirements, as well as between obligatory a nd non -obligatory technical standards. Regarding the 
single window, it was complicated to have one single window for concerns of service providers 
from various sectors, so he enquired whether a single window would be of horizontal or sectoral 
nature. The r egional aspect and the centralization of the single window also made the provision 
complex from a practical point of view.  
1.86.   The representative of Canada  stated that in the opinion of his delegation the scope of the 
proposal (paragraph x.x) should not includ e technical standards. He recalled the useful session on 
technical standards organized by Australia the day before, but did not feel that it had provided a 
compelling need for binding disciplines related to technical standards.  
1.87.   The representative of Austra lia stated the importance of bringing all Members up to the 
same page in terms of their clarity on the proposal. She expressed her delegation 's readiness to 
engage in more detailed discussions with Bolivia, South Africa and the LDC Group to address all 
outstanding concerns. The scope provision (paragraph x.x) was intended to apply to the whole 
agreement. As a follow -up to Canada 's concern on including technical standards in the discussions, 
if there were fees and charges relevant to technical standards, the y would not be excluded from 
the application of the disciplines of "Administration of Measures ". Similarly, if there were technical 
standards that were a requirement for authorization of services suppliers and that included the 
submission of an application , the latter submission would be covered by the disciplines on 
electronic applications. She recognized that Members used technical standards to varying degrees: 
some Members had mandatory technical standards that were used as a substitute for qualification  
requirements, whereas others had voluntary technical standards that might not be relevant to the 
authorization of service suppliers.  
1.88.   The representative of Turkey  stated  that the issue of electronic applications  which Turkey 
had flagged as difficult in ea rlier discussions, had now been resolved domestically . Together with 
the recently submitted "Transparency " proposal, the proposal on "Administration of Measures " was 
a progressive step to initiate the work  on a comprehensive text . She stressed that working  on all 
current proposals together as a package w ould facilitate finalizing the outcome for MC11.  S/WPDR/M/70  
 
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  1.4  Communication from India on "Trade Facilitation Agreement for Services" 
(S/WPDR/W/58)  
1.89.   The Chairperson  recalled that India's communication followed two  earlier  communications, 
namely  a "Concept Note for an Initiative on Trade Facilitation in Services " (S/WPDR/W/55) and 
"Possible Elements of a Trade F acilitation in Services Agreement"  (S/WPDR/W/57) which had been 
introduced in the WPDR in October and November 201 6, respectively.   
1.90.   The representative of India presented the details of the proposed agreement on trade 
facilitation for services. He shared with Members some statistical data showing the growing share 
of services in the world economy, GDP and employment. D espite the significant importance of 
trade in services, it still remained subject to a lot of border and behind -the-border barriers. India 
felt the need to address these barriers, particularly in the light of the existing corresponding 
agreement for goods,  i.e. Trade Facilitation Agreement (TFA). India's intention was to give the 
proposal a comprehensive scope without a priori  excluding any mode of supply, relating to both 
entry barriers (border measures) and those applied post -entry (behind -the-border meas ures). The 
agreement did not follow a piecemeal approach and concerned only disciplines that would facilitate 
market access and make it effective and commercially meaningful without addressing market 
access per se. The inspiration for the language of the p roposal was drawn from the provisions of 
the GATS, WPDR negotiating history (namely  the 2009 and 2011 Chair 's texts), Australia 's 
proposal on the "Administration of Measures " (JOB/SERV/239/Rev.1), Turkey 's proposal on 
Economic Needs Tests (JOB/SERV/224), t he TFA, plurilateral and bilateral FTAs, as well as India 's 
earlier submissions and stakeholder consultations. The draft proposal comprised three section s 
containing  a mix of mandatory obligations and flexibilities, or "best endeavour " obligations. The 
proposal included provisions on  special and differential treatment (Article 11) and technical 
assistance (Article 12), based on the 2009 Chair 's text. Also, the  proposal did not contain a 
necessity test and did not cover technical standards. The representativ e of India explained that the 
scope of the proposal covered only sectors where specific commitments had been undertaken, 
apart from two provisions on publication (Article 2) and emergency authorisations (Article 8.2) 
that were proposed to apply to all meas ures affecting trade in services. The scope provision also 
reaffirmed Members ' right to regulate, as per the preamble to the GATS. Soft law obligations in the 
text were included, inter alia , in provisions on application timeframes, electronic applications and 
acceptance of copies, processing of applications (all Article 3). As regards the contact points 
(Article 2.3), Members were free to use contact points established under the GATS. The provision 
on fast -track authorisation and immigration formalities (Ar ticle 3.7) was borrowed from the TFA. 
Article 4 ( "Fees and Charges ") was broadly based on  the 2009 Chair 's text, as well as the proposal 
on "Administration of measures " (JOB/SERV/239/Rev.1) and the TFA. Article 5 on the 
"Administration of Economic Needs Te sts" was inspired by both Turkey 's proposal (JOB/SERV/224) 
and stakeholder feedback. The provisions of Article 6 on "Recognition " were drafted using the 2009 
Chair's text and GATS Article VII. India introduced a discipline on cro ss-border data flows in 
Article 7 in order to maintain a balance between the free flow of information and different regimes 
Members had to protect the privacy of their citizens. As inspiration India had  consulted  the 
chapters on electronic commerce from its recent RTAs and relied on  stakeholder feedback. India 
also proposed disciplines on cross -border insurance coverage and emergency authorizations. The 
provision on facilitating the movement of natural persons (Article 9) was drafted largely with the 
use of best endeavour language an d address ed categories of natural persons specified in Members ' 
GATS schedule . It sought to ensure the granting of multiple entry visas and exempt foreign natural 
persons  from social security contributions. Finally, t he proposal suggested the establishment  of the 
Committee on Trade Facilitation in Services, as well as national committees, as inspired by the 
language of the TFA. Several provisions of the proposal were meant to address barriers identified 
in the LDC Collective Request (S/C/W/356).  
1.91.   The represe ntative of Ecuador  noted that Section I containing new definitions, as well as the 
proposal 's regulatory framework, needed to be clarified with regard to Members ' commitments. He 
stressed his previous point that Ecuador was not a demandeur in services nego tiations and its 
participation in the discussion was constrained  by its development needs.  It was important to 
remove obstacles that prevented small - and medium -sized enterpri ses from enjoying trade 
benefits, especially in developing countries. Article 9 ( "Provisions facilitating movement of natural 
persons ") was an important provision in finding a solution to mode 4 issues. The development 
element (Article 11) and technical assistance provision (Article 12), as seen in Section II of the 
proposal, were crit ical in guiding any future discussions. He underscored the importance of building 
capacity of developing countries and LDCs.  S/WPDR/M/70  
 
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  1.92.   The representative of Paraguay  expressed the view that the proposal was a constructive  
effort  towards an agreement on trade facilit ation in services.  The document covered several areas 
of negotiations, and propos ed some initial solutions that could be discussed towards the Buenos 
Aires Ministerial Conference in December 2017. It seemed appropriate to approach these 
negotiations with a  methodology similar to that used in the TFA negotiations, which had proved 
successful since it had taken into account the constraints of all Members and used a timeline to 
accommodate everyone 's implementation -related concerns.  
1.93.   The representative of Thailand noted that the Indian communication contained some 
elements overlapping with disciplines in other proposals, such as publication and availability of 
information (Article 2), administration of m easures (Article 3) and  fees and charges (Article 4). He 
noted that it might be useful to streamline the process so as to have one discussion of those 
elements to avoid duplications. Even though the proposal was not about market access, it 
contained some market access -related elements that might not be appropriate  to consider in the 
trade facilitation negotiations.  Those elements included Economic Needs Tests (ENTs) (Article 5) 
which  belonged in the realm of GATS Article XVI; cross -border data flows (Article 7) which were  
relevant to mode 1, and movement of natural  persons  (Article 9) which were  relevant to mode 4.  
1.94.   The representative of Brazil  noted  the comprehensive nature of the Indian proposal . He 
characterized the proposal as consistent, balanced and reasonable, despite containing some 
sensitive issues.  
1.95.   The repr esentative of Peru acknowledged that the proposal brought together various speci fic 
disciplines, such as ENTs (Article 5), mode 4 (Article 9), e -commerce and domestic regulation, 
which would make achieving short -term results on the proposal difficult. Memb ers were focusing 
on achieving  tangible results, particularly on domestic regulation, by MC11.  
1.96.   The representative of the Bolivarian Republic of Venezuela  stated that his delegation was 
not a demandeur in domestic regulation discussions. Many elements of th e proposal constituted  an 
additional burden for developing countries that did not have the necessary infrastructure to comply 
with the obligations. Additionally, a lot of elements went beyond the domestic regulation mandate  
of GATS Article VI:4, such as those strengthening GATS Article III on "Transparency ", the 
administration of measures (Article 3) and fees and charges (Article 4) mandate.  
1.97.   The representative of  the Plurinational State of Bolivia  stated that t he proposal was very 
broad and had many implicat ions that went beyond the provisions of Article VI:4 of the GATS. It 
contained elements for which no mandate existed and implied re -opening some GATS provisions . 
The problem of the lack of mandate entailed implications that could undermine efforts of many 
developing countries trying to give priority to other issues in the WTO, such as agriculture. He was 
also concerned about the scope of the proposal given the implications it had for mode 3. It also 
included the issue of cross -border data flows (Article 7) that was being debated in the context of 
electronic commerce. The delegation of Bolivia did not support the discussion on disciplines related 
to economic needs tests.  
1.98.   The representative of Turkey  stated that the proposal touche d upon several areas of inter est 
for developing countries , such as movement of natural persons (Article 9) and cross border 
insurance coverage (Article 8.1), which ha d been neglected for a long time in terms of their 
contribution to services trade. Turkey was a proponent of strong dis ciplines in the above 
mentioned areas. She also appreciate d the inclusion of a discipline on E NTs (Article 5). She 
suggested starting a comprehensive discussion process as soon as possible through dedicated 
sessions . She believe d that  if Members worked fast, they could achiev e a much more 
comprehensive text  that would reflect  the needs of all , including  developing countries and LDCs.  
She believe d that despite the fact that Members had varying interests in different aspects  of the 
proposal, the conversation  should proceed with the proposal being seen as  a whole package  due to 
its balanced nature.  
1.99.   The representative of the Kingdom of Saudi Arabia  thanked India for the informal 
consultations and reserved the right to come back with substantive views at future m eetings.  S/WPDR/M/70  
 
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  1.100.   The representative of Canada  noted the need to better understand the precise effects of 
the proposal 's approach of using disciplines that resembled other DR disciplines, but that expanded 
definitions of competent authorities and requirements and p rocedures.  
1.101.   The representative of Switzerland  stated that her delegation had always placed high 
importance on fulfilling the full mandate of GATS Article VI:4. India's proposal did not contemplate 
core elements of domestic regulation disciplines that the W orking Party was mandated to develop, 
but included various elements falling outside of the mandate. She enquired whether India intended 
to complement the draft with further elements  of the domestic regulation context,  or whether 
those had been excluded int entionally. She mentioned the absence of the necessity test, which 
Switzerland considered to be of paramount importance. Regarding the right to regulate, she 
questioned whether it needed to be included in the proposal, given the fact that the GATS 
preamble  had already affirmed it. With regard to Article 2 ( "Publication and Availability of 
Information ") that required Members to publish all measures of general application relating to the 
supply of a service in at least one of the official WTO languages, she s uggested turning the 
language into a soft, non -binding provision or at least limiting it to the central level of government. 
Regarding the notification obligation (Article 2.4), she stated that the delegation of Switzerland 
preferred such notifications to be made to the CTS. It was essential to foresee disciplines on 
timeframes, as contained in Article 3.2 of the proposal. Article 7 facilitating cross -border flow of 
information needed to be further elaborated in order to avoid  that existing  legislation  of Members  
was affected, particularly with regard to personal data. Regarding Article 9 ( "Provisions facilitating 
movement of natural persons "), she expressed her delegation 's readiness to engage in discussions 
on visa application procedures, such as multiple entry visas, but was not inclined to commit on 
issues contained in paragraphs 1.2 and 1.3 of Article 9.  
1.102.   The representative of Norway  noted many similarities between the Indian proposal and 
other proposals on the table, such as "Transparency " and "Administr ation of measures ", and 
enquired how India saw provisions on development of measures currently absent from the 
proposal. She stressed the point previously made by her delegation, that social security 
(Article  9.3) and medical insurance (Article 8) issues w ere not open for negotiations. She 
welcomed India 's decision to derive certain elements from the 2009 Chair text, including 
definitions and disciplines on qualification and licensing requirements. As regards special and 
differential treatment (Article  11) and technical assistance (Article 12), she noted that those 
disciplines did not come from the 2009 Chair 's text. Regarding implementation, she suggested 
splitting Members in categories A (those that could implement the agreement at entry into 
force),  B (those with phased -in implementation) and C (those who needed technical assistance in 
order to implement the agreement), as in the TFA on goods. She noted the similarities between 
the wording of the institutional arrangements provision (Article 13) and the co rresponding 
provision of the TFA.  
1.103.   The representative of Argentina  stated that the text of the proposal could serve as a basis 
for future discussions and reserved the right to come back later with more comments.  
1.104.   The representative of China  acknowledged the  importance the delegation of India attached 
to the rule -making function of the multilateral trading system and reserved the right to revert back 
with specific comments in the future.  
1.105.   The representative of Mexico  noted  the relevance of the proposal 's elem ents and reserved 
the right to comment later, as the proposal was still being examined in the capital.  
1.106.   The representative of Hong Kong, China  limited his questions to the domestic regulation 
part of the proposal. Regarding paragraph 6 of Article 3 , he enqu ired what was meant by 
information and verification requests . Regarding  paragraph 7 of Article 3, he asked whether it was 
appropriate to have a discipline on fast -track procedures for all relevant authorisation and 
immigration formalities , and why the crit eria quoted (e.g. past track records, whether the 
application pertained to a  renewal ) could be considered a valid reason for according fast track 
treatment on all occasions.  
1.107.   The representative of the European Union  agreed with the delegation of India that the 
overarching notion of trade facilitation for service s was valuable and promising, but, as stated in 
previous meetings, there was no need to work towards a formal agreement. The proposal could S/WPDR/M/70  
 
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  provide a valuable umbrella covering a universe of issues re lating to trade in services to work on 
by MC11 and beyond without recreating constraints of  a single undertaking. The DR pillar was an 
important part of such a flexible umbrella that could be complemented by other elements subject 
to discussion. By combini ng different strands of negotiations that took place in their respective and 
appropriate environments, Members could potentially reach an outcome more rapidly while 
achieving the same on the substance. His delegation preferred discussing the substance of t he 
proposal without prejudice to the format of the final outcome. The proposal was a useful 
contribution to DR discussions that would soon need to move toward horizontal elements as per 
the mandate of GATS Article VI:4. As the Indian proposal contained also issues that fell outside 
the mandate of Article VI:4, he limited his comments to th ose elements that related to domestic 
regulation. The Indian proposal had a large DR pillar and was wider in scope than normally 
foreseen by Article VI:4. The language of Articles 1 ( "Scope and definitions "), 4 ( "Fees and 
Charges ") and 6 ( "Provisions pertaining to recognition ") was inspired by previous WPDR 
discussions, but it was recalled that the language of the Chair 's texts had always been discussed 
within the confined scope of GATS Article VI:4. The fact that the proposal had used a similar 
language for a much broader scope of measures required further reflection. The provision on 
administration of measures (Article 3) was to a large extent inspired by the provisions of  
JOB/SERV/239/Rev.1, co -sponsored by the EU. Apart from the aforementioned difference in the 
scope of application, he noted some textual differences with th e proposal on  administration of 
measures, such as flexibility language in Article 3.3.a. He enquired  as to the intention behind the 
recognition -related provision in Article 6 of the proposal, especially in the light of the proposed 
broad scope of the agreement. He asked India to elaborate on the status of technical standards in 
terms of the broad scope o f the proposal. The representative of the EU positively assessed the 
special and differential treatment provision (Article 11) and confirmed that his delegation remained 
open to discussing flexibilities in the interest of developing countries. He underline d that certain 
elements, like mode 3 -related provisions, were notably  missing from the proposal.  
1.108.   The representative of South Africa , speaking  on behalf of the African Group  stated that, 
like Indian services suppliers, suppliers originating from the countri es of the African Group also 
faced impediments when trying to enter foreign markets . She held the view that Africa's greatest 
export potential l ay in the movement of its persons , including low -skilled workers , and that hence 
the mode 4 elements of the prop osal seemed useful to the African Group. She expressed concern, 
however, whether such a proposal was realistic in the current political climate. Over the last 
decade  the African Group  had approached domestic regulation from a perspective that g ave 
paramoun t importance and affirmation to  the right to regulate and the interlinkages between 
regulations and broader domestic economic imperatives. She indicated that t he views that the 
African Group had expressed earlier  on the other proposals) also appl ied to the  TFS. The African 
Group was further concerned with the extremely broad  scope of the proposal. I t seem ed 
inappropriate to fit the TFA -template which was only limited to customs procedures  for goods  into 
a services agreement. She  question ed whether there wou ld be any long -term gains for African 
countries as net services importers. The African Group also ha d some specific concerns relating to 
the mandate . Only a sub -set of provisions reflected in the proposal  fell under the GATS Article VI :4 
mandate. She sough t clarification  as to the role of  Council for Trade in Services and its subsidiary 
bodies and how the future agreement would be dealt with . She expressed  concern  with the 
enhanced transparency obligations that went beyond GATS Article III. Even though the TFS had 
been intended to be a development -centered proposal, many African countries, in particular LDCs, 
did not have enough capacity and resources to comply with the transparency obligations proposed  
in Article 2 . The African Group ha d serious concerns ab out how the proposed TFS would impact 
Members' right to regulate. The administration of measures provision (Article 3)  was extremely 
broad and appear ed to expand market access commitments Members ha d taken.  Provisions on the 
single window  (Article 3.1) , appeals and fast -track (Article  3.5 and 3.7 respectively ), the 
opportunity to comment  (Article  2.2.) were difficult to comply with for many African countries.  
Issues like the preambular language, the scope and implications of the publication and availability  
of information  (Article 2), fees and charges  (Article  4), administration of ENTs  (Article  5) and 
facilitating the cross -border flow of information  (Article  7) required further analysis.  
1.109.   The representative of El Salvador  stated that it was unclear how to p roceed in the situation 
of several proposals seeking to achieve the same outcome  and enquired whether the discussions 
should focus on a single text or proceed in parallel. On the substance of India's proposal, El 
Salvador  consider ed it to be a positive ini tiative which c ould serve as a basis for  discussions. She 
pointed out that trade in services  accounted for  a significant 65%  of El Salvador's GDP . In relation 
to the coverage  of the proposal , it was important to reiterate the GATS principles , such as the r ight S/WPDR/M/70  
 
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  to regulate,  affirmation of policy space  and application only to commitments . The proposal  should 
be accompanied by flexibility stating that obligations shall apply  "in accordance with Members'  
legal systems ". She had doubts regarding  several elements  included in  Articles 4  ("Fees and 
Charges "), 5 ("Administration of Economic Needs Tests "), 6 ("Provisions pertaining to 
Recognition "), 8 ("Facilitating consumption abroad ") and  9.3 ("Social Security Contributions "). She 
believe d that th e agreement should follow the same approach as the TFA in relation  to special and 
differential treatment  (Article 11) . The possibility should be maintained for  every developing 
Member to designate those measures that a Member  was able to  apply immediately, those that 
could b e applied during a transition period , and those for compliance with which  technical 
assistance was required in different categories.  A transition period  proposed by India  might prove 
insufficient for such an agreement.  
1.110.   The representative of New Zealand  noted that a lot of elements of the proposal resembled 
traditional domestic regulation provisions, while other disciplines, e.g. on development of 
measures, were notably missing.  She underlined that the provision on administration of measures 
(Article 3) had a much broader scope than that of Article VI:4.  
1.111.   The representative of Australia  enquired what exactly India was trying to achieve with the 
proposal and how it planned to arrive at a final agreement. Limiting her comments to the domestic 
regulation part of  the proposal , she enquired about the scope of the proposal . India had previously 
stated  that the scope was intended to be similar to the scope of WPDR disciplines but the scope of 
the current text seem ed to be quite different . WPDR proposals that had been discuss ed we re 
specifically limited to areas where Members ha d undertaken specific commitments and excluded 
areas where Members ha d scheduled limitations . India's proposal , however,  seem ed much broader 
in that it refer red to any sector  where specific comm itments had been  undertaken and there d id 
not appear to be any flexibility for scheduled limitations . She asked India to clarify whether, for 
instance, if a Member ha d scheduled commitments just for international legal services, the 
proposal  would a pply to  domestic legal services . Consequently, if a Member ha d scheduled 
commitments with " Unbound" for mode 1, she asked whether India's proposal would apply to 
cross-border trade of those services . Finally, if a Member ha d scheduled horizontal limitations  (for 
example  conditions on foreign investment ), she wondered whether  India's proposal  would  apply to 
investments that f ell outside those conditions . Similar ly to the EU, she requested a  clarification as 
to why India d id not  consider technical  standards  as falli ng within the scope of the proposal, given 
the broad definition of "requirements and procedures" . Regarding  the provisions on  publication and 
availability of information  (Article 2) which India intended to apply to all services irrespective of  
scheduled co mmitments , she requested a clarification on what the requirements were for 
authori zation in paragraph 1.1.b of Article 2  that would not also be covered by requirements and 
procedures for the supply of a services in paragraph 1.1.c. She also enquired what the meaning of 
"normal" timeframe in paragraph 1.1.d of Article 2 was. In relation to the opportunity to comment  
(Article 2.2) , she asked India to clarify what it meant by the opportunity to comment on the 
proposed introduction or amendment of any measure , namely whether  that include d a 
requirement to publish a proposed measure before it was adopted , and if not, how services 
suppliers would know what to comment on . Regarding a dministration of measures  (Article  3), she 
requested  India to explain what was cove red by an application relating to requirements and 
procedures that was not covered by an application for authorization and whether this would  
include  the types of licenses that India ha d carved  out of the definition of authori zation, such as 
environmental approvals or applications relating to tenders for government procurement . 
Regarding the single window provision (Article 3.1.), she enquired whether for a lawyer to 
establish a practice, there would be one single window for all necessary approvals  (getting  the bar 
license , purchasing an office,  registering a company, getting health and safety approvals ). The 
representative of Australia indicated that most Members would not be able to  meet such a 
requirement , as qualification and licensing procedures were normally  administered by a different 
competent authority than  business registrations.  Unlike in Australia's proposal, India's discipline  on 
electronic applications  (Article 3.3)  did not include language "taking into account competing 
priorities and resource constraints" , but instead applie d "wherever practicable" . She enquired 
whether other Members could accept the higher level of ambition of "as far as practicable" , as 
contained in the Indian text. Regarding a ppeal and review  (Article 3.5) , she asked  India to explain 
how these obligations relate d to GATS  Article VI :2, namely whether the requirement to establish 
judicial, arbitral or administrative review procedures that were objective and impartial , was not 
already covered by the GATS . Further, she requested an explanation as to  what paragraph 5.2 of 
Article 3  on reasons for the decision add ed to the disciplines in paragraph 4  of Article 3 , since that 
Article already require d a competent authority to provide an applicant with reasons for rejection of S/WPDR/M/70  
 
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  an applic ation.  The representative of Australia asked about the intended coverage of paragraph 6  
of Article 3  on information and verification requests , and whether that included qualification 
requirements and/or professional standards . She added that even though India did not intend to 
include a necessity test  in the proposal , this provision seem ed to have a necessity test without the 
"necessary" qualifier and might  be a more difficult test to meet . Regarding paragraph 6.a of 
Article  3, she enquired how one could apply a qualification requirement in a manner that d id not  
restrict trade in services , as by their very nature qualification requirements restrict ed unqualified 
persons from providing services.  Regarding fees and charges (Article 4), she was interested in 
hearing Members' views about whether they c ould comply with the additional requirement in 
India's proposal that fees must be commensurate with the costs incurred by the competent 
authority , as many developing Members had previously stated that they could not  accept this 
obligation. Regarding ENTs (Article 5), she was  interested in understand ing why India ha d limited 
this obligation to scheduled ENTs , because the transparency obligation in Article 2 already require d 
publication of information on all ENTs, whet her or not a Member ha d scheduled commitments . She 
sought clarification on  the meaning of "undue costs" and "undue delay" in Article 5.2  
(Administration of Economic Needs Tests). Finally, as concerned  recognition arrangements  
(Article  6), the obligation in  paragraph 2.1 seem ed to repeat GATS Article VII :1. She therefore 
asked India to explain what the intended value added was and whether the CTS had not already 
been mandated to monitor recognition arrangements through the no tification requirements in 
GATS  VII:4. 
1.112.   The representative of Colombia  believed that the Indian initiative was very positive in 
achieving strong commitments in services that would be useful for all Members. He believed that 
the proposal was better placed for discussion in the Council for T rade in Services (CTS). Regarding 
the domestic regulation parts of the proposal, he doubted the need to include definitions, as well 
as the value added of creating an additional discipline on contact points (Article 2.3) that went  
beyond  existing obligatio ns. He was also sceptical about the consistency of the flexibility language 
used in the different paragraphs of Articles 2 ( "Publication and Availability of Information "), 3 
("Administration of Measures ") and 4 ( "Fees and Charges "). 
1.113.   The representative of Uganda  delivered a statement on behalf of the LDC Group . He 
welcomed the use of the agreed ad referendum language from the 2009 and 2011 Chair 's texts 
and urged other Members to follow India 's example. Some provisions, such as reduced fees and 
charges for developing countries (Article 11.3) , were inspired by the elements in the LDC collective 
request. He pointed out, however, that such reductions should be preferential in favour of LDCs, as 
they would help LDC service suppliers compete with suppliers from co untries that had capacity and 
resources. The LDC c ollective request also included a provision allowing for zero social security 
deductions for mode 4 suppliers  on temporary contracts . The proposal also addressed market 
access barriers for mode 4 suppliers,  such as multiple entry visas and a possible  GATS visa , which 
was of interest to LDCs. He enquired as to the rationale for making the provisions of Articles 2 
("Publication and Availability of Information ") and 8.2 ( "Emergency Authorization ") apply to a 
wider scope of measures (i.e. irrespective of the existence of specific commitments) than other 
articles. He posed a question whether the entire sector would be captured by the disciplines of the 
proposal if only a subsector had been scheduled by a Member. R egarding the single window 
(Article 3.1), he enquired  whether a single window was operable in services where a lot of 
competent authorities were involved in making decisions and asked if India had conducted any 
cost analysis of how such a single window cou ld work. He enquired whether a proposal including 
market access issues , such as ENTs, as well as modes 1, 2 and 4 , modified the architecture of the 
GATS and flexibilities for developing countries, as stated in GATS Articles IV and XIX.  
1.114.   The representative o f India thanked Members for their active engagement and support and 
underlined the importance of having a holistic discussion towards achieving a meaningful trade 
facilitation in services agreement.   
1.115.   The Chairperson  invited the delegations to take note of the statements made.  
1.116.   It was so agreed . 
 S/WPDR/M/70  
 
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  2   ITEM B: TECHNICAL ST ANDARDS  
2.1.  The Chairperson  recalled that this item had been requested by the delegation of Australia  in 
order to inform the Working Party on the E xchange of Information and Experiences on technical 
Standards that had taken place the day before . 
2.2.  The representative of Australia  thanked Members that participated in the very useful 
exchange of experience s on technical standards for trade in services. The membership heard 
presentations from Kevin McKinley , the ISO Acting Secretary -General, and from Markus Jelitto 
from the WTO Trade in Services and Investment Division, as well as presentations by national 
standards representatives from Standards Australia, (CEO, Bronwyn Evans ) and the Spanish 
Association fo r Standardization, UNE, (Standards Director, Javier Garcia Diaz ). She promised to 
circulate the presentations  in due course. In her view, the most important  message from the 
discussion was the amount of activity that was going on globally on services stand ards, be it at the 
national, regional and international levels.  Standards traditionally relate d to products and 
processes , but trends reshaping global trade, including digitali zation, 'servification' of 
manufacturing, globali zation of services, and the 'co operative' economy were increasing demand 
for services standards . The ISO ha d hundreds of services standards, with many more being 
developed . An increasing number of national standards bodies ha d introduced "services 
standardi zation" strategies to promote good practice in the development of technical standards for 
services.  The ISO, Standards Australia and UNE d id not distinguish between products and services . 
The ISO applie d the same six core principles of the WTO Agreement on Technical Barriers to Trade 
(TBT): openness, transparency, impartiality, effectiveness and relevance, coherence, and 
development . These same principles appl ied to good domestic regulation.  Presenters provided 
examples of how standards that were based on open and transparent criteria c ould facilitate trade 
in services, support innovation, and facilitate SME participation in services trade  by promoting 
transparency, easing mutual recognition and building consumer confidence . Standards were even 
being used to bring new technologies to mar ket and to foster new models of service delivery  with 
significant implications for future services trade growth.  Speakers also provided  examples of the 
lead role many developing countries were playing in the development of international services 
standards,  including:  Tunisia on thalassotherapy; Malaysia on sustainable tourism and diving; 
Argentina on environmental services; Brazil and Turkey in the area of financial services; and China 
across many areas including education services. The ISO, Standards Austr alia and CEN were 
providing capacity building and support through twinning programs to assist developing countries 
to implement standards that c ould promote services trade growth and sustainable development. 
Presenters suggested that where Members adopt ed technical standards for trade in services, they 
should be encouraged to adopt international standards, wherever possible, to promote 
consistency, reduce regulatory burdens and facilitate trade in services.  Finally, presenters 
welcomed the opportunity for i ncreased engagement between the WTO, ISO and national 
standards bodies on services, just like in goods , and encouraged WTO Members to work with their 
national standards representatives in taking forward work on technical standards in the WPDR.  
Services sta ndards were playing an increasing role in the regulation on services trade , and 
disciplines on domestic regulation would be incomplete if they did not cover technical standards . 
2.3.  The representative of Colombia  thanked the Australian delegation for the organ ization of the 
exchange of information from the day before and expressed his delegation 's interest in continuing 
substantive discussions on technical standards within the WPDR.  
2.4.  The representative of China  noted that technical standards were an important el ement of 
domestic regulation negotiations and thanked Australia for circulating  the presentations from the 
previous day 's discussion.  
2.5.  The Chairperson  invited the delegations to take note of the statements made.  
2.6.  It was so agreed . 
3  ITEM C: FUTURE WORK AND TIM ING OF THE NEXT MEET ING 
3.1.  The Chairperson  noted that  several Members had expressed an interest in taking up technical 
issues in an informal meeting; she would consult with delegations to determine the timing for such 
an informal meeting .  S/WPDR/M/70  
 
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  3.2.  It was so agreed .  
4  ITEM D: OTHER BUSINE SS 
4.1.  No item was raised under this agenda item.  
4.2.  It was so agreed . 
 
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