RESTRICTED  
  
S/WPDR/W/57  
 
14 November  2016 
(16-6255) Page: 1/3 
Working Party on Domestic Regulatio n Original: English  
 
 COMMUNICATION FROM I NDIA  
POSS IBLE ELEMENTS OF A TRADE FACILITATION I N SERVICES  AGREEMENT  
The following communication  from the delegation of India, dated 14 November  2016, is being 
circulated to the Members of the Working Party on Domestic Regulation . 
 
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1  INTRODUCTION  
1.1.  India tabled its proposal on the 'Concept Note for an Initiative on  Trade Facilitation in 
Services'  (S/WPDR/W/55) at the WPDR meeting held on 6 October 2016, with the objective to 
briefly outline the concept of a TFS Agreement. A s mentioned in that paper, while services occupy 
a significant and growing share of domestic and international transactions, trade flows in services 
still remain subject to numerous border and behind -the-border barriers as well as procedural 
bottlenecks. T hese impediments particularly limit the benefits of trade in services for small and 
medium enterprises as well as small exporters worldwide. The TFS Agreement will address the key 
issues that are pertinent to facilitating trade in services, such as transpa rency, streamlining 
procedures, and eliminating bottlenecks. In brief, the TFS Agreement is aimed at ensuring that the 
market access arising out of existing as well as future liberalization commitments are effective  and 
meaningful . 
1.2.  We were very encouraged by the interest generated amongst the membership on the concept 
of a TFS Agreement. India would like to thank the Members for the engagement and interest 
shown in the proposal. Many Members also desired that India present a more detailed pr oposal 
which enc apsulates India' s idea on furthering the initiative on trade facilitation in services.  
1.3.  India hereby presents this Elements Paper which outlines the possible elements of the TFS 
Agreement, as conceived by India, in a more detailed manner. We look forward to  participating in 
constructive discussion and engagement with Members regarding the contours of the proposed 
TFS Agreement.  
1.4.  The issues which India proposes to cover in the TFS Agreement are inspired from the Trade 
Facilitation Agreement, the ongoing DR di scussions ( TN/S/36 dated  21 April 2011 and  
JOB/SERV/239/Rev.1 dated 31 October 2016 ), provisions of the GATS, several bilateral and 
regional FTAs as well as experience and feedback from service suppliers. As mentioned in the 
Concept Note by India (S/WPDR/W /55), some of the elements could be cross -cutting issues which 
are relevant for all modes of supply of services, and others could be specific to a mode of supply.  
2  ELEMENTS OF THE TFS AGREEMENT: THE PROVI SIONS OF THE TFS AGR EEMENT COULD 
ENCOMPASS THE FOLLOW ING ELEMENTS:  
2.1.  SCOPE AND DEFINITIONS: In our initial assessment, the focus of the TFS Agreement will be 
with regard to measures affecting trade in services in sectors where specific commitments are 
undertaken. However, some provisions, such as transparency,  would apply to all measures 
affecting trade in services, following the approach in the GATS. The definitions will be largely 
based on the GATS. In addition, we would need to define certain terms that are not covered by the 
GATS.  S/WPDR/W/57  
 
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  2.2.  PUBLICATION AND AVAILABILI TY OF INFORMATION: This provision can be based on GATS 
Article III on Transparency. It may encompass obligations such as publishing all measures of 
general application relating to supply of a service in a n easily accessible manner and provide 
opportunity t o comment before entry into force so as to enable governments, service suppliers and 
other interested parties to become acquainted with them. Another principle that may be 
considered is establishing and maintaining an appropriate mechanism for responding t o enquiries 
regarding measures affecting trade in services.  
2.3.  ADMINISTRATION OF MEASURES: The provision could deal with obligations that lead to 
simple and transparent administration of measures affecting trade in services. This provision could 
comprise of aspects such as single window facility for applications, specific timeframes for 
applications, acceptance of electronic applications and authenticated  copies of documents, 
procedure for appeal and review, including procedures for information and verificati on request s as 
well as an expedited fast -track procedure for acceptance of applications. We note that this 
provision could draw on the elements specified in the communicatio n from Australia and others on 
'Domestic Regulation – Administration of Measures ', dated  31 October 2016  
(JOB/SERV/239 /Rev.1 ). The elements of this provision would be particularly relevant for supply of 
services through all modes of supply, in particular Modes 3 and 4.  
2.4.  FEES AND CHARGES: Fees and charges relating to the supply of service s sometimes 
themselves become barriers for the supply of a service. The TFS text could address this through 
provisions similar to the DR text, which seek to ensure that fees and charges applied are 
reasonable, transparent, commensurate with the costs incur red by the competent authorities, and 
do not in themselves restrict or impair the supply of the relevant service. The elements of this 
provision would be particularly relevant for supply of services through all modes of supply.  
2.5.  ADMINISTRATION OF ECONOMIC NEEDS TESTS: Members have a legitimate right to 
schedule economic needs tests (ENTs) in their commitments. However, lack of information on 
criteria for applicability of such ENTs, often becomes a barrier for supply of services. It is 
extremely important to  provide information with regard to the criteria on which ENTs are based, 
and details of requirements, procedures and guidelines for administration of such ENTs as per 
Members’ Schedule of specific commitments in order to enable effective market access. Th is 
provision could accordingly include obligations that require Members to ensure that ENTs, where 
applied, do not impose undue costs on the service supplier, and do not result in undue delays and 
uncertainty for service suppliers. In this regard, Members may like to consider aspects that were 
highlighted in a recent communication by  Turkey on ' Economic Needs Test ', 
dated  29 February  2016 (JOB/SERV/224). The elements of this provision would be particularly 
relevant for supply of services through Modes 3 and  4.  
2.6.  FACILITATING CROSS -BORDER FLOW OF INFORMATION: Cross -border flow of services under 
Mode 1 is in essence rooted in the cross -border flow of information that can be processed by 
service suppliers. This is  particularly relevant in today' s internet driv en and highly digitized world. 
The concept of free cross -border flow of information is , therefore,  very important  for ensuring 
meaningful supply of services through Mode 1. While a Member may adopt or maintain measures 
in accordance with its respective laws and regulations to protect such data / information, it should 
not impose barriers for flow of such information merely because the measures adopted by another 
Member for the  protection of such information /data, are different from its own. The focus of this 
provision would be to address issues relating to this aspect.  
2.7.  FACILITATING CONSUMPTION ABROAD: An important service relevant to consumption 
abroad is health services (also commonly referred to these days as 'medical tourism '). Lack of 
insurance coverage fo r availing of medical services in a foreign country, however, acts as an 
impediment for the growth of services under this mode. Members could also consider a provision 
relating to the expedited processing of immigration formalities by the host territory in  respect of 
foreign consumers who are seeking medical services or such other urgent services. Such a 
provision could be helpful for facilitating consumption abroad of health services.  
2.8.  PROVISIONS FACILITATIN G MOVEMENT OF NATURAL PERSONS: As has been explain ed in 
the Background Note by the Secretariat on Movement of Nat ural Persons dated 
15 September  2009 (S/C/W/301) , Mode 4 has not been able to contribute significantly to services 
trade owing to lack of a number of facilitative elements . In this regard, the TFS Agreement could 
address some of the critical bottlenecks impacting Mode 4 delivery of services. This provision could S/WPDR/W/57  
 
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  comprise of facilitative provisions pertaining to the meaningful supply of Mode 4 services as well as 
include an additional clarificati on and publication requirement that allows for providing and making 
publicly available, explanatory material on all relevant immigration formalities, in particular for the 
categories of natural persons specifically committed by Members. Other facilitative elements for 
temporary entry could include multiple entry permits for natural persons committed in a Member’s 
schedule, and exemption of committed categories of natural persons from payment of additional 
costs and charges, including social security payment s, etc. Members could also consider that  
where payments such as social security cannot be exempted, then can consideration be given for 
portability of such benefits ? The provision may also address adequate opportunities and 
mechanisms especially for develo ping country Members to accede to recognition agreements  
pertaining to authorization, licensing and certification of service suppliers  under Article VII.1.  
2.9.  COOPERATION AMONG COMPETENT AUTHORITIES: Cooperation among competent 
authorities of Members is very important for facilitating trade in services. The areas for 
cooperation under this provision could include exchange of information on procedural requirements 
and associated formalities and documentation. Other areas of cooperation could address the 
sharing  of experiences regarding implementation, best practices for collection and compilation of 
data relating to trade in services, exchange of statistics on trade as well as technical guidance or 
assistance and support for capacity building to small and medium  enterprises.  
2.10.   SPECIAL AND DIFFERENTIAL TREATMENT: This provision may comprise of special provisions 
for developing countries and LDCs pertaining to the entry into force of this Agreement due to their 
special economic and developmental situation as well as trade and financial needs. While LDCs 
shall not be required to implement any obligations, they would be encouraged to do so.  
2.11.   TECHNICAL ASSISTANCE: This provision could address technical assistance that may be 
provided to developing countries and LDCs in or der to advance and strengthen their institutional 
and regulatory capacities. The provision could entail obligations that help build the supply capacity  
of developing countries and LDCs.  
2.12.   INSTITUTIONAL ARRANGEMENTS: The TFS Agreement could include institutio nal 
arrangements such as the establishment of a Committee on Trade Facilitation in Services at the 
WTO. Additionally, obligations under the provision could encompass the establishment of a 
National Committee on Trade Facilitation in Services in each Member  State in order to facilitate 
implementation of the provisions of this Agreement.  
3  CONCLUSION  
3.1.  India appreciates Members earlier engagement and discussion on the Concept Note and looks 
forward to views and suggestions on the Elements Paper.  
 
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