TN/S/41  
 
27 November 2017  
(17-6464) Page: 1/6 
Council for Trade in Services  
Special Session    
 
 NEGOTIATIONS ON TRAD E IN SERVICES  
 
REPORT BY THE CHAIRM AN, H.E. AMBASSADOR HECTOR MARCELO CIMA,  
TO THE TRADE NEGOTIA TIONS COMMITTEE  
 
 
 
1.1.  The purpose of this report is to provide the Trade Negotiations Committee (TNC) with the 
current state of play in the ser vices negotiations . It covers four a reas: services trade facilitation, 
services related to e -commerce, market access, and domestic regulation . While these four topics 
have been discuss ed over the past year, only domestic regulation has been raised since my  last 
oral report to the informal TNC/HoDs meeting of 24 October 2017 .  
1.2.  This report is made entirely under my own responsibility . It is based on views of Members 
expressed in formal and informal meetings of the Special Session , as well as in consultations  held 
throughout the y ear. It is also informed by the report from the Chair of the Working Party on 
Domestic Regulation, as discussed below .  
1.3.  First, on services trade facilitation, the delegation of India circulated , on 23 February 2017,  a 
proposal in the f orm of a draft text for a trade facilitation agreement on services . It focused on 
issues such as publication and availability of information, administration of measures, fees and 
charges, administration of economic needs tests, recognition, cross -border fl ows of information, 
and the facilitation of the movement of pe rsons  and of consumption abroad . The proposal was 
discussed at a dedicated meeting of the Special Session last May.1  As I had noted after the initial 
presentation of the proposal, views express ed by Members differed in various areas . Subsequently, 
on 27 July 2017, India circulated  a revised proposal , which has not yet be en discussed by 
Members.2   
1.4.  Second, regarding services elements of e -commerce, earlier discussions  had highlighted that 
some  delegations had general interest in this aspect . Subsequently, the European Union circulated , 
on 23 May 2017,  a proposal suggesting text for rules aiming to facilitate online service 
transactions . It focused on the issues of electronic contract s, electronic authentication and trust 
services, consumer protection and unsolicited commercial electronic messages .3  That proposal 
was discussed at a dedicated meeting last June, where different views were exchanged on 
technical as well as substantive aspects .  
1.5.  In vie w of the limited time available before the Ministerial, proponents in these two areas did 
not s eek further meetings of the Special Sessi on to discuss  their submissions after the summer 
break . No outcome in the form of an agreed text can be expected in Buenos Aires  in these areas , 
and the proponents agree with this assessment , as I reported to the TNC last October .  
                                                
1 TN/S/W/63 , dated 23 February, Communication from India – Trade Facilitation Agreement for 
Services . Discussion of the proposal in the Special Session is reflected in TN/S/M/ 46. The proposal had also 
been discussed in meetings of the Regular Session of the Council for Trade in Services and of the Working 
Party on Domestic Regulation.  
2 TN/S/W/63/Rev.1 , dated 27 July 2017, Communication from India - Trade Facilitation Agreement for 
Services;  JOB/SERV/267 , dated 27 July 2017, Communication from India – Trade Facilitation Agreement for 
Services; Revised Draft with Tracked Changes and Comments.  
3 TN/S/W/64 , dated 23 May 2017, Communication from the European Union - An Enabling Environme nt 
to Facilitate Online T ransactions . Discussion of the proposal in the Special Session is reflected in TN/S/M/47.  TN/S/ 41 
 
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  1.6.  In terms of post -MC11 work on these two topics , India and the European Union have 
communicated their intention to re -engage on services trade fa cilitation and online transactions, 
respectively, after the Ministerial . Some  Members have conveyed their openn ess to pursue 
discussions on these two topics  at that time . Proponents would then have to consider the 
configurations through which they feel th at discussions might best be advance d and work to build 
support in light of the views expressed by other Members . 
1.7.  Third, on market access, some  Members have expressed interest in reinvigorating market 
access negotiations pursuant to the built -in mandate und er Article XIX of the GATS . While I sensed 
an openness to consider intensifying market access discussions  on the basis of proposals from 
Member s and in keeping with the  principles of pragmatism and flexibility , specific proposals to  help 
advance  these mand ated negotiations post-MC11 have yet to be put forward by delegations .  
1.8.  Fourth, on domestic regulation,  negotiations pursuant to the mandate of GATS Article VI:4 
have continued in the Working Party on Domestic Regulation (WPDR) since my last report to the 
TNC in October . The state of play in these negotiations is described  in the report by the 
Chairperson of the W PDR, contained in S/WPDR/21 . In summarizing the current situation, I  
naturally draw heavily on, and append, this report .  
1.9.  Discussions in the Worki ng Party in recent months have centred on a text propos ing 
disciplines on domestic regulation, put forward by a group of proponents and contained  in 
JOB/SERV/272/Rev.1.4  This proposal contains seven sections: general p rovisions; administration 
of measures ; independence ; transparency ; technical standards; development of m easures; and 
development.5    
1.10.   In addition to specific comments and views conveyed orally by different Members at 
meetings of the WPDR, India submitted a number of written comments and draft ing suggestions,  
and the Russian Federation proposed a number of amendments and modifications to the 
proponent's text.6   
1.11.   Discussions last took place at the meeting of the WPDR on 7 and 8 November 2017 , and 
divergences remain across the Membership .  
1.12.   For on e, co -sponsors of the text consider that rules on licensing and qualification 
requirements and procedures, and technical standards would yield greater transparency and 
predictability, and provide important value added to existing market access commitments . They 
consider that their proposal is flexible, a s it would allow implementation by Members at  different 
levels of development and regulatory capacity , as well as by means of diverse regulatory 
approaches . They also point out that LDCs would not be require d to apply the disciplines .  
1.13.   Second, some Members  expressed reservations of varying degrees of concern about 
different aspects of the proposals . Some conveyed  general support , while pointing to a limited 
number of drafting and technical issues that they w ished to see addressed . Others had more 
significant reservations about certain aspects of the text proposal, for example in relation to the 
language on the right to regulate, the development provisions , the absence of specific provisions 
on qualification re quirements and procedures, the proposed disciplines on gender equality and 
necessity, or the  application of the proposed disciplines to var ied levels of sector -specific 
commitments across the Membership.  
1.14.   Third, some Members expressed concerns of a more fu ndamental nature, pointing to 
conceptual differences . They question ed the need for the proposed disciplines and the benefits that 
                                                
4 Dated 7 November; Communication from Argentina; Australia; Canada; Chile; Colombia; Costa Rica; 
the European Union; Hong Kong, China; Icela nd; Israel; Japan; Kazakhstan; the Republic of Korea; 
Liechtenstein; Mexico; the Republic of Moldova; New Zealand; Norway; Switzerland; Chinese Taipei, Turkey; 
Ukraine and Uruguay – Disciplines on Domestic Regulation . Earlier versions of this proposal are contained in:  
JOB/SERV/272;  JOB/SERV/268/Rev.3;  JOB/SERV/268/Rev.2;  JOB/SERV/268/Rev.1; and JOB/SERV/268.  
5 The section on development of m easures contains two paragraphs that are supported by a sub -set of 
co-sponsors, namely a proposal on gender equality and a proposal for a necessity test. 
6 India's comments and suggestions, contained in RD/SERV/145, dated 29 September 2017, relate to 
the text proposal from the group of co -sponsors found in JOB/SERV/268 . The suggestions from the Russian 
Federation, contained in JOB/SERV/273 , dated 3 November 2017, relate to the text proposal from the group of 
co-sponsors found in JOB/SERV/2 72. TN/S/ 41 
 
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  these might bring to developing countries and LDCs . This group of Members maintained that the 
proposed text would be incompati ble with their development aspirations and limit policy space .  
1.15.   In terms of the way forward in these negotiations, some Members were of the view that 
work on the basis of the proponents' proposal could not lead to an outcome . Others considered th e 
time remaining to be too s hort to achieve an outcome at MC11 and suggested continuing 
discussions after the Ministerial . Proponents  said that they want ed to continue work with a view to 
achieving an outcome at MC11, and considered it important to raise discussions  at a higher 
political level .  
1.16.   Shortly prior to the circulation of this report, proponents have circulated revised text s 
(JOB/SERV/272/Rev.2  and Rev.3 ), which  contain certain modifications and add five Members to 
the group  of co-sponsors.7   
1.17.   Naturally, I r emain available for consultations with any interested delegations over the 
coming days .   
 
 
 
 
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7 The document s, dated 24 November 2017, were circulated to the Council for Trade in Services (Special 
Session) and the WPDR . The additional co -sponsors include the Russian Federation, which had previously made 
a separate wr itten submission, as noted earlier in this report . The others are Albania, the Former  Yugoslav 
Republic of Macedonia, Montenegro, and Peru.  TN/S/ 41 
 
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  ANNEX I  
  
 S/WPDR/ 21 
21 November  2017  
(17-6361)   
  Working Party on Domestic Regulation   
 
 
 
REPORT BY THE CHAIRP ERSON OF THE WORKING  PARTY ON DOMESTIC REGU LATION  
TO THE COUNCIL FOR T RADE IN SERVICES (SP ECIAL SESSION)  
 
This report describes the state of play of the Working Party's discussions in fulfilment of the 
mandate to develop any necessary disciplines to ensure that measures relatin g to licensing 
requirements and procedures, technical standards and qualification requirements and procedures 
do not constitute unnecessary barriers to trade in services, in accordance with GATS Article VI:4. 
The report is made under my responsibility as t he Chairperson of the Working Party on Domestic 
Regulation.  
1  STATE OF PLAY WITH R EGARD TO THE SUBSTAN TIVE DISCUSSIONS  
1.1.  Since the last Ministerial Conference, discussions in the Working Party have resumed on the 
basis of proposals submitted by several Members . An overview of communications submitted to 
the Working Party can be found in the Annual Reports for 2016 (S/WPDR/19) and 2017 
(S/WPDR/20).  
1.2.  At the most recent formal meeting of the Working Party, on 7 and 8 November 2017, a 
revised text proposal by co -sponsors for disciplines on domestic regulation was discussed1, along 
with text submissions by the Russian Federation2 and India3.  
1.3.  The proposal by co -sponsors contains seven sections: Section 1 - General Provisions; 
Section  2 - Administration of Measures; Se ction 3 - Independence; Section 4 - Transparency; 
Section  5 - Technical Standards; Section 6 - Development of Measures; and Section 7 - 
Development. Section 6 on Development of Measures contains two paragraphs that are supported 
by a sub -set of co -sponsors , namely a proposal on Gender Equality and a proposal for a Necessity 
Test.  
1.4.  The Communication by India was submitted with reference to an earlier proposal by co -
sponsors (JOB/SERV/268), and contains comments and textual suggestions on all sections of the 
co-sponsors' proposal. The Communication by the Russian Federation proposes several 
amendments and modifications to the most recent proposal by co -sponsors (JOB/SERV/272). The 
specific amendments and modifications relate to the sections on administration o f measures, 
transparency, development of measures, and development.  
1.5.  Co-sponsors consider their proposal to be realistic and balanced. For these delegations, 
transparent and predictable rules on licensing and qualification requirements and procedures, and 
technical standards are important to help service suppliers realize existing market access 
commitments. They believe that the proposed disciplines, together with flexibilities embedded in 
many of the provisions, would allow implementation by Members at diff erent levels of development 
                                                
1 JOB/SERV/272/Rev .1, dated 7 November 2017; Communication from Argentina; Australia; Canada; 
Chile; Colombia; Costa Rica; the European Union; Hong Kong, China; Iceland; Israel; Japan; Kazakhstan; the 
Republic of Korea; Liechtenstein; Mexico; the Republic of Moldova; New Ze aland; Norway; Switzerland; 
Chinese Taipei,  Turkey; Ukraine and Uruguay – Disciplines on Domestic Regulation . 
2 JOB/SERV/273, dated 3 November 2017; Communication from the Russian Federation - Proposed 
amendments and modifications  to communication JOB/SERV /272. 
3 RD/SERV/145, dated 29 September 2017; Communication from India – India's comments on 
Communication JOB/SERV/268 – Disciplines on Domestic Regulation.  TN/S/ 41 
 
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  and regulatory capacity, and following diverse regulatory approaches. Further flexibility would be 
provided in their view through a proposed development chapter which allows for transition periods 
for specified provisions for de veloping country Members. Least -developed country Members would 
not be required to apply the disciplines, and would be able to avail themselves of transition periods 
upon their graduation from LDC status.  
1.6.  Many delegations engaged on the proposal by co -sponsors. Some delegations expressed 
varying degrees of general support, pointing to a limited number of drafting and technical issues 
that they wished to see addressed.  
1.7.  Some delegations raised issues on a wider range of the proposed disciplines. Certain 
provisions were regarded as being too ambitious, while other provisions were considered as not 
being sufficiently ambitious. Views on the need of including certain provisions in the disciplines 
differed among delegations. A range of specific issues were ident ified by individual delegations. 
These issues include: the structure and building blocks of the text; the relationship between 
individual provisions and existing obligations in Article VI; language concerning the right to 
regulate; the scope of application ; the link of the disciplines to varying levels of market access 
commitments across the membership; the absence of definitions; the meaning and scope of the 
term authorization; the drafting of flexibility language in specific provisions; the absence of spe cific 
provisions relating to qualification requirements and procedures; the scope of, and need for a 
section on independence; the mechanisms for replying to enquiries by services suppliers; the 
obligation to provide information on draft laws and regulation  of general application and the 
opportunity to comment; the role of international standards as benchmarks; the relationship of the 
section on development of measures with Article VI:4; the meaning and scope of the proposed 
discipline to base measures on ob jective and transparent criteria; the need for inclusion of 
disciplines on gender equality and necessity; and concerns on various provisions of the 
development section. Some delegations pointed out that a better understanding of some of the 
proposed sectio ns of the text, and the terminology used therein, was required.4 
1.8.  Some Members pointed to fundamental conceptual differences with co -sponsors, and 
questioned the need for the proposed disciplines and the benefits they would bring to developing 
countries and  LDCs. In their view, the proposed disciplines would benefit services exporting 
countries, but not importing countries; most developing countries and LDCs, however, were net 
services importers. These delegations also believe that some of the proposed provi sions fall 
outside of the mandate of GATS Article VI:4. They are of the view that the proposed disciplines 
would impose a model of regulation that would be incompatible with their development aspirations 
and would unduly limit their policy space.  
2  STATE OF PLAY WITH REGARD TO THE WAY FORWARD  
2.1.  Following the substantive discussion during the meeting of 7 -8 November 2017, I had 
requested delegations to indicate what work they wished to carry out in the WPDR before the last 
General Council on 30 November.  
2.2.  Co-sponsors and some other Members expressed their wish to continue work on domestic 
regulation disciplines with a view of achieving an outcome at MC11. Many of these Members called 
for a negotiating text to be produced by the Chair to provide an input to the d iscussion. Some 
Members calling for a negotiating text expressed the view that the discussion should take place at 
a higher level to address higher level political questions.  
2.3.  Other Members did not see a prospect for an outcome in the short term. Some of t hese 
Members referred to the limited time that was available to bridge differences, while others were of 
the view that work on basis of the proposal by co -sponsors could not lead to an outcome. 
Consequently these Members did not believe that the production  of a negotiating text by the Chair 
would be useful. Some of these delegations suggested continuing discussions on domestic 
regulation after MC11.  
                                                
4 In addition to questions and answers provided by many delegations in the context of the formal 
meetings, the African Group provided "Questions on Domestic Regulation", set out in document JOB/SERV/269, 
dated 27 September 2017. Co -sponsors of disciplines on Domestic Regulation circulated a communication 
entitled "Responses to Questions on Domestic Reg ulation" in document JOB/SERV/270, dated 
12 October  2017.  TN/S/ 41 
 
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  2.4.  In light of the disagreement on how to proceed in the coming weeks I did not see scope to 
prepare a negotiat ing text under my own responsibility. I emphasized that I would remain 
available for consultations with any delegation wishing to pursue the discussions in the coming 
weeks. It is my understanding that co -sponsors are continuing to reach out to other deleg ations 
with a view to increasing support for their proposal.  
 
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