TN/TF/W/194  
 
11 October 2013  
(13-5556)  Page: 1/5  
Negotiating Group on Trade Facilitation  Original: English  
 
 PROPOSAL ON HOW TO TACKLE IN STITUTIONAL ISSUES REGARDING A 
WTO AGREEMENT ON TRADE FACILITATION (TFA), INCLUDING PREAMBLE, SCOPE, 
INSTITUTIONAL AND FINAL PROVISIONS BASED ON 17TH REVISION OF THE DRAFT 
CONSOLIDATED NEGOTIATING TEXT  OF THE DRAFT AGREEMENT ON 
TRADE FACILITATION.  
 
COMMUNICATION FROM NORWAY TO THE NGTF 
The following communication dated 11 October 2013 is being circulated at the request of the 
Delegation of Norway. 
 
_______________ 
  
The Negotiating Group on Trade Facilitation has come far in negotiating the articles on 
substance as well as the elements regarding special and differential treatment of developing and least developed countries. Still lacking are the introductory and final provisions of the Agreement 
as well as setting up the necessary steps for in clusion into the WTO Agreement. Norway hereby 
proposes certain textual additions, comments and amendments to the consolidated text as well as the elements for a General Council Decision and Protocol (to which the Agreement on Trade Facilitation would be annexed). We have used as a model the Amendment of the TRIPS 
Agreement, document WT/L/641 of 8 December 2005. 
 It might be difficult for Members to sign a ne w agreement at the Ministerial Conference in 
December. We would therefore suggest that a Ministerial Decision on Trade Facilitation be drafted 
and agreed upon in Bali. Importantly, the decision  would give the political acceptance of the draft 
agreement, while formally set a timeline for certain actions. The Decision would delegate the 
formal adoption of the Agreement on Trade Facili tation for example to the first meeting of the 
General Council in 2014 as well as set a deadline for the submission of Developing Countries’ list of Category A Provisions before the actual signing and the entry into force of the Agreement and establish an interim Trade Facilitation Committee. The activities foreseen for the interim 
Committee before entry into force could be both the notifications of Members' Category A lists as 
well as the immediate focus on information on assistance, including the review of progress in the provision of assistance laying the groundwork for Category C notifications. 
 
1  THE NEED FOR A PROTOCOL AMENDING THE MARRAKESH AGREEMENT ESTABLISHING THE WTO 
The WTO Agreement and its institutional framework, as well as the DSU, applies to the 
Agreements that are listed on the Annexes of th e WTO Agreement, cf. Article II:1 and II:2 of the 
WTO Agreement. In respect of the new TFA, the WTO Agreement’s Annex 1A: Multilateral 
Agreements on Trade in Goods  should be updated to provide the institutional framework for the 
TFA.  
 
To ensure the appropriate link and placement of  the TFA, there is a need to amend The WTO 
Agreement so that the TFA is placed in Annex 1A. 
 
This should be done by a Protocol Amendi ng the Marrakesh Agreement establishing the 
WTO, see Article X:1. The Protocol would amend Annex 1A as well as cover the issue of 
acceptance and entry into force (of the Protocol). Reference is also made specifically to Article X:3 TN/TF/W/194 
 
- 2 - 
 
  of the WTO Agreement regarding "Amendments to pr ovisions of this Agreement", that says that 
amendments …”of a nature that would alter the ri ghts and obligations of the Members, shall take 
effect for the Members that have accepted them upon acceptance by two thirds of the Members, 
and thereafter for each other Member upon acce ptance by it. The Ministerial Conference may 
decide by a three-fourths majority of the Members that any amendment ….that any Member which 
has not accepted it within a period specified by the Ministerial Conference …. shall be free to withdraw from the WTO or to remain a Member wi th the consent of the Ministerial Conference".  
 
The Protocol amending the Marrakesh Agreemen t establishing the WTO would be preceded 
by a General Council Decision on Amendment of the Marrakesh Agreement establishing the WTO. 
 
Proposal for a General Council Decision: 
 
The General Council; 
 
 Having regard to paragraph 1 of Article X of the Marrakesh Agreement Establishing the 
World Trade Organization ("the WTO Agreement"); 
 
 Conducting the functions of the Ministerial Conferen ce in the interval between meetings 
pursuant to paragraph 2 of Article IV of the WTO Agreement;  
Recalling  the Decision Adopted by the General Co uncil on 1 August 2004 and by explicit 
consensus to commence negotiations on the basis of the modalities set out in Annex D to that decision; 
  
 Noting  the consensus to submit this proposed amendment to the Members for acceptance; 
 
 Decides  as follows: 
 
1. The Protocol amending the Marrakesh Agreement establishing the WTO attached to this 
Decision is hereby adopted and submitted to the Members for acceptance. 
 
2. The Protocol shall be open for acceptance by Members until [1 January][1 July] 2015 or 
such later date as may be decided by the Ministerial Conference.  
 
3. The Protocol shall take effect in accordance with the provisions of paragraph 3 of Article X 
of the WTO Agreement. 
 
Proposal for a Protocol:  
 Members of the World Trade Organization; 
 
Referring to the proposed Agreement on Trade Facilitation ; 
  
Having regard to the Decision of the General Council in document XXXX, adopted pursuant to 
paragraph 1 of Article X of the Marrakesh Agreem ent Establishing the World Trade Organization 
("the WTO Agreement");   
 
Hereby agree as follows : 
 
1. Annex 1A to the WTO Agreement shall, upon en try into force of the Protocol pursuant to 
paragraph 4, be amended by the introduction of the Agreement on Trade Facilitation, as 
set out in the Annex to this Protocol, to be inserted after the Agreement on Technical Barriers to Trade and before the Agreement on Trade-Related Investment Measures. 
 
2. Reservations may not be entered in respect of  any of the provisions of this Protocol 
without the consent of the other Members.  
 
3. This Protocol shall be open for acceptance by Members until [1 January][1 July] 2015 or 
such later date as may be decided by the Ministerial Conference. 
 TN/TF/W/194 
 
- 3 - 
 
  4. This Protocol shall enter into force in accordance with paragraph 3 of Article X of the WTO 
Agreement. 
 
5. This Protocol shall be deposited with the Director-General of the World Trade Organization 
who shall promptly furnish to each Member a certified copy thereof and a notification of 
each acceptance thereof pursuant to paragraph 3. 
 
6. This Protocol shall be registered in accordance with the provisions of Article 102 of the 
Charter of the United Nations. 
 Done at Geneva this xx day of xxxx, in a single copy in the English, French and Spanish 
languages, each text being authentic. 
 2  INTRODUCTORY PROVISIONS 
Preamble 
 
There is no absolute need for a preamble, and not all WTO Agreements have a one (e.g. the 
Anti-dumping Agreement).  However, since the TF Agreement builds upon a mandate given in 
Doha related to Articles V, VIII and X, it can be considered useful to include certain elements in the preamble noting the background for the agre ement and the purposes such an agreement is 
meant to serve. 
 
Preambles generally contain hortatory or political language.  The obligations are set out in 
the main provisions of the agreement.  However, where a provision is unclear, panels and the 
Appellate Body have resorted to the preamble as context for purposes of interpreting the 
agreement.  It is, therefore, advisable to have a short preamble without too much political language, and rather continue to focus on getting the provisions of the agreement as clear as 
possible.  
 Proposal for preamble: 
 
Members, 
  Having regard to the Doha Round of Multilateral Trade Negotiations;
1 
 
 Desiring to clarify and improve relevant aspe cts of Articles V, VIII and X of the GATT 1994 
with a view to further expediting the movement, release and clearance of goods, including goods 
in transit;2 
 Desiring to enhance technical assistance and support for capacity building in this area;
3 
 
Recognizing the need for effective cooperatio n between customs or any other appropriate 
authorities on trade facilitation and customs compliance issues;4 
 
Scope 
 
There should be no need for a particular provision for scope (e.g.  the Agreement on 
Subsidies and CVD has none). This includes whether we need to clarify the relationship to GATT 
and other agreements. Assuming that we agree that the Agreement on Trade Facilitation be incorporated into the WTO Agreement as an Annex 1A agreement, then the General interpretative 
note to Annex 1A– which only specifies the rela tionship to the GATT, will apply. For other 
Agreements, there is no hierarchy and it will depend on the interpretation in each case. However, 
we do not see that there should be conflict wi th the other WTO Agreements, for example the SPS 
                                               
1  This parallels the first re cital in the Preamble to the TBT Agreement , and makes it unnecessary to 
refer back to all the details of the mandate from Doha. 
2  This builds upon para. 27 of the Doha mandate, as further set out in the July 2004 decision, Annex D, 
paragraph 1.   
This builds upon para. 27 of the Doha mandate, as further set out in the July 2004 decision, Annex D, 
paragraph 1.   
This builds upon para. 27 of the Doha mandate, as further set out in the July 2004 decision, Annex D, 
paragraph 1.   TN/TF/W/194 
 
- 4 - 
 
  Agreement. If Members can specifically point to ar eas of conflict, these should be resolved in the 
article concerned.  Exceptions 
 
Regarding user-friendliness, it would be useful  to make exceptions clear from the start of 
the agreement. We already have a proposal for an exceptions article in Revision 17 of the 
consolidated text that specifically takes up GATT Art XX and XXI.  
 
Article - Exceptions 
 
Articles XX and XXI of GATT 1994 apply to the provisions of this Agreement. 
 
One could also use a more general text such as TRIMS Article 3: " All exceptions under GATT 
1994 shall apply, as appropriate, to the provisions of this Agreement." which is the only other of 
the goods agreements that refers to the GATT exce ptions. If used, the advantage of this approach 
is that the exception from MFN in e.g. GATT Article XXIV would also apply to the TFA. RTAs with TF 
provisions are quite frequent today. However, gi ven the MFN nature of TF measures, this may not 
be necessary. What we also might need is an exception for bilateral/regional customs cooperation agreements, but this could be written directly into the article on customs cooperation.  
3  INSTITUTIONAL PROVISIONS 
Here the three articles for the Committee on Trade Facilitation (TFC), National Committee on 
Trade Facilitation and Dispute Settlement should be covered.  
 
On the TFC, we will restrict our comments and proposals here to Revision 17’s Article 13.1.7 
on review clause should be moved to the final prov isions of the TFA as a separate article, and that 
what pertains to dispute settlement should be deleted. 
 
On Dispute Settlement, we would note that the general consideration regarding LDCs for 
Dispute Settlement under the Grace Period paragraph 7.7 would be more suitably moved and 
contained here, see paragraph 3. On the other hand, DSU Art 24.1 contains the same type of 
language, and if the TFA becomes incorporated into Annex 1A, makes the text redundant. We 
would also query whether, although not in brackets in the consolidated draft text, there is need for 
paragraph 2. If you don’t have this text in the TF A, the right would still remain to use the DSU. We 
therefore propose to delete both paragraph 2 and 3.  
Article – Dispute Settlement 
 
1. The provisions of Articles XXII and XXIII of GATT 1994 as elaborated and applied by the 
Dispute Settlement Understanding shall apply to consultations and the settlement of 
disputes under this Agreement, except as ot herwise specifically provided for in this 
Agreement.  
 
2.
 Nothing in this Agreement shall affect the righ t of Members to take action under Articles 
XXIII of GATT 1994 and the Understanding on  Rules and Procedures Governing the 
Settlement of Disputes against another Member for provisions contained in other WTO-
Agreements, including for GATT Articles V, VIII and X.5 
 
3. Before making a request for consultations pursuant to Articles XXII or XXIII, and at all 
stages of dispute settlement procedures with regard to a measure of a least developed 
country Member, a Member shall give particular consideration to the special situation of 
least developed country Members.  In this regard,  Members shall exercise due restraint in 
raising matters under the Understanding on Rules and Procedures Governing the 
Settlement of Disputes involving least developed country Members. 
 
                                               
5 This paragraph has been moved from Section II – Article 7.7. It is unbracketed language.  TN/TF/W/194 
 
- 5 - 
 
  4  FINAL PROVISIONS 
The final provisions would include implementati on, entry into force, review and the annexes 
(the Developing and Least developed Countries’ lists of commitments for Categories A, B and C).   
We would propose to add a shortened Art 15 1.1 of Revision 17 to the implementation 
article:  
Article – Implementation of the Agreement  
 
1. Developed Country Members shall implement this Agreement upon its entry into force.  
2. Developing Country Members and Least Developed Country Members shall implement this 
Agreement in accordance with Section II.  
3. Subject to Paragraphs 1 and 2, Members of a customs union or a regional economic 
arrangement may adopt regional approaches to assist in the implementation of their obligations under the Trade Facilitation Agreement including through the establishment and 
use of regional bodies.   
4. Reservations may not be entered in respect of an y of the provisions of this Protocol without 
the consent of the other Members.  
 
Regarding the TFA’s article on entry into force, we would propose to use the WTO 
Agreement’s Article X:3 and Article XIV as a basis. We would expect that all Members would have accepted the TFA by the cut-off date in para 2 below. However, as the rules in the WTO Agreement 
for entry into force might in principle imply being faced with different entry into force dates for a 
variety of Members, we would propose that the dead-line for acceptance be used as the TFA’s 
entry into force date as it is used in the various SDT provisions as well as for the implementation 
date by Developed Country Members: 
 
Article - Acceptance, Entry into Force and Deposit 
 
1. This Agreement shall be open for acceptance, by signature or otherwise, by Members of the 
WTO6. 
2. The Agreement shall remain open for acceptance until [1 January][1 July] 2015.  
3. This Agreement shall enter into force on [1  January][1 July] 2015 provided it has been 
accepted by two thirds of the Members. It sha ll take effect for each other Member accepting 
it thereafter upon acceptance by it.  
4. Should the Agreement not be accepted by two thirds of the Members before [1 July 2015] 
then the General Council shall consider the matte r and decide on the appropriate course of 
action. 
5. The reference to [date of] entry into force in al l the above provisions of this Agreement shall 
be understood as a reference to [1 January][1 July] 2015. 
6. Any Member which has not accepted this Agreement within [2 years] shall be free to 
w i t h d r a w  f r o m  t h e  W T O .  I t  m a y  o n l y  r e m a i n  a  M e m b e r  o f  t h e  W T O  p r o v i d e d  t h a t  t h e  
Ministerial Conference gives its consent to such continued membership within [2 years] of 
the entry into force of this Agreement. 
7. This Agreement shall, upon the entry into forc e of this Agreement, be deposited with the 
Director-General of the WTO. 
 
Article – Review 
 
The Committee shall review the operation and impl ementation of this Agreement [X] years from 
the entry into force of this agreement and periodically thereafter.  
Article – Annexes 
 
1. The Category A commitments of Developing Country Members and Least Developed Country 
Members annexed to this Agreement are hereby made an integral part of this Agreement. 
2. The Category B and C commitments of Developing Country Members and Least Developed 
Country Members shall be annexed to this Agreement and made an integral part of it in 
accordance with Section II. 
__________  
                                               
6 See WTO Art. XIV:1.