JOB/GC/160  
JOB/TNC/65  
 
28 November 2017  
(17-6495) Page: 1/8 
General Council  
Trade Negotiations Committee  Original: English  
 
DRAFT G90 MINISTERIA L DECISION  
SPECIAL & DIFFERENTI AL TREATMENT  
The following communication, dated 27 November 2017, is being circulated at the request of the 
delegation of Rwanda on behalf of the G90.  
 
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The Ministerial Conference,  
 
Recognizing  the central importance of the development dimension in every aspect of the Doha 
Work Programme;  
 
Having  regard to paragraph 1 of Article IX of the Marrakesh Agreement Establishing the World 
Trade Organization;  
 
Noting the specific constraints f acing developing countries, particularly least -developed countries ; 
 
Recalling  paragraph 44 of the Doha Ministerial Declaration and Decision adopted by the General 
Council on 1 August 2004, that all Special and Differential Treatment provisions be reviewed  with a 
view to strengthening them and making them more precise, effective and operational;   
 
Emphasizing the need for the WTO to ensure that its rules enable, and do not inhibit, least -
developed countries and developing countries from pursuing policies to  achieve industrialization, 
structural transformation and diversification of their economies, in order to raise the standard of 
living of their population and integrate into the multilateral trading system on a sustainable basis;  
 
Take note  of the original  review of one hundred and forty -eight Agreement -specific proposals;  
 
Recognizing that substantial work still remains to be done;  
 
Decides:  
 
1. To reaffirm  that the provisions for special and differential treatment (S&DT) remain an 
integral part of existing  and future  WTO Agreements.  
 
2. To adopt the decisions detailed in the Annex below on ten Agreement Specific Proposals.   
 
3. To instruct the Committee on Trade and Development in Special Session to expeditiously 
complete the review of all the outstanding Agreement -specific proposals and report to the 
General Council, with clear recommendations for a decision, at the next Ministerial 
Conference.  
 
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 JOB/GC/160 • JOB/TNC/65  
 
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  ANNEX 1  
 
1  AGREEMENT ON TRADE -RELATED INVESTMENT M EASURES  
1.1.  Notwithstanding Articles 4 and 5 of  the TRIMs Agreement and Articles III and XI of GATT, 
Members agree that developing countries shall be free to deviate temporarily from the provisions 
of Article 2 of the TRIMs Agreement, and introduce new investment measures related to trade in 
goods, in accordance with the following provisions:  
a. Measures notified by developing countries under this provision shall be effective for an 
initial period that does not extend beyond 15 years or up to the time these objectives 
have been met (whichever is shorter), provided the selected measures fulfil one of the 
objectives stipulated below:  
i. Accelerate industrialization and achieve socio -economic transformation;  
ii. Upgrade and modernize the domestic manufacturing capabilities of small and 
medium enterprises and their co ntribution to employment generation;  
iii. Promote domestic manufacturing capabilities in high value -added sectors or 
technology intensive sectors;  
iv. Stimulate and facilitate the transfer or indigenous development of technology;  
v. Promote domestic competition and/or  correct restrictive business practices;  
vi. Promote purchases from disadvantaged regions in order to reduce regional 
disparities within their territories and support the development of geographically 
disadvantaged regions;  
vii. Stimulate environment -friendly methods or products and contribute to sustainable 
development;  
viii. Increase export capacity in cases where structural current account deficits would 
cause or threaten to cause a major reduction in imports;   
ix. Close the digital divide in industrial production.  
b. If upon the conclusion of the initial period, the objectives of the measure are not fulfilled, 
a developing country Member that is referred to in paragraph 1, shall be enabled to 
renew the measure subject to a review and decision by the Council for Trade in Goods. 
The Council for Trade in Goods shall, upon duly motivated request by a developing 
country member, accord extensions of this period.  
1.2.  LDCs shall be allowed to introduce and maintain measures that deviate from their obligations 
under the TRIMs Agreemen t. Members agree that least -developed country Members shall not be 
obliged to implement, apply or enforce the provisions of the TRIMS Agreement as long as they 
remain LDCs.  
1.3.  Developing countries that are referred to in paragraph 1 shall notify new investmen t 
measures related to trade in goods to the Council for Trade in Goods no later than six months after 
their adoption.  
2  GENERAL AGREEMENT ON  TARIFFS AND TRADE 19 94 (GATT 1994)  
ARTICLE XVIII.A AND C  
 
2.1.  Having regard to safeguard actions for development purposes  (Decision of 
28 November  1979(L/4897)) Members agree that a developing country Member referred to in JOB/GC/160 • JOB/TNC/65  
 
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  paragraph 4(a) of Article XVIII of GATT 1994, in particular, a least developed country member or a 
developing country member facing constraints may deviat e from the provisions of Section A and 
paragraphs 14, 15, 17 and 18 of Section C, to achieve development objectives deemed necessary 
by the Member concerned.  
2.2.  Accordingly, these countries may temporarily modify or withdraw concessions included in the 
approp riate schedules annexed to the GATT, or where the Member concerned finds that no 
measure consistent with the other provisions of the GATT is practicable to achieve these 
development objectives, they may have recourse to Section C of Article XVIII and devia te from 
other provisions of the GATT/WTO to the extent deemed necessary by the concerned Member.  
2.3.  Such development objectives as referred to in sub -paragraphs 2.1 and 2.2 include promoting 
the establishment of a particular industry, or establishment of a n ew branch in an existing 
industry, or achieving substantial transformation, bridging the digital and technological divide, 
modernization and upgrading and expansion of an existing industry, or reconstruction of an 
industry destroyed or substantially damage d as a result of hostilities or natural disasters including 
the impact of climate change with a view to achieving fuller and more efficient use of resources in 
accordance with the priorities of their economic development.  
2.4.  To invoke the measures referred t o in sub -paragraphs 2.1 and 2.2, the Member concerned 
above shall:  
a. Notify the Committee on Trade and Development of the measures including the 
objectives of the measures immediately after introducing the measures;  
b. When a measure is taken under Section A and measure taken under section C affects a 
product is subject to a concession included in the appropriate schedule Members having 
a substantial interest or principal supplying interest  may request to  enter into 
consultations with them, within thirty days of the notification of the measures in order to 
reach a mutually satisfactory solution. If agreement is reached between such concerned 
Members, the Member introducing the measures shall be free to continue the measur es 
in accordance with mutually agreed conditions;  
c. If the conditions require rebalancing concessions from the Member introducing the 
measures, rebalancing concessions by the Members introducing the measures shall be 
effective only after five years of intro duction of measures;  
d. If no agreement is reached within 60 days from the date of notification, the affected 
Members (principal and substantial suppliers) shall be free, not later than 90 days after 
the measure is applied, to suspend, upon expiry of 60 days from the day on which 
written notice of such suspension is received by the Committee on Trade and 
Development, the application of substantially equivalent concessions or other obligations 
under GATT 1994, to the trade of the Member applying the development  measure;  
e. The right of suspension referred to in paragraph 2.4 (d) above shall not be exercised for 
first five  years .   
3  ARTICLE XVIII  OF GATT – SECTION B  
3.1.  Notwithstanding the current provisions in Article XVIIIB and the Understanding, developing 
countries i n balance of payments difficulties shall be enabled to take measures to address their 
BOP difficulties including quantitative restrictions and tariffs until such time these difficulties have 
been overcome.  JOB/GC/160 • JOB/TNC/65  
 
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  3.2.  Members agree that in drawing up its conclusions a nd recommendations to the General 
Council, including on determining the adequacy1 of reserves for a developing country referred to in 
paragraph 4(a) of Article XVIII, in particular, a least developed country or a small and vulnerable 
economy, in accordance  with Article XVIII:9 (a) and (b), the Committee on Balance of Payments 
Restrictions, while taking account of the findings, facts, and other determination provided by the 
IMF in accordance with Article XV GATT, shall ensure that its conclusions and recomme ndations 
are adequate in the context of a members economic development policies as expressed by the 
concerned members and do not undermine the objectives of paragraph 2 and 9 of the 
Article  XVIII.  
3.3.  Actions stipulated in the last sentence of Article XVIII su bparagrap h 12(c)(ii) and last 
sentence of Article XVIII subparagraph 12(d) shall be suspended for a developing country Member 
referred to in paragraph 4(a) of Article XVIII, in particular, a least developed country or a small 
and vulnerable economy.  
4  AGREE MENT ON THE APPLICAT ION OF SANITARY AND PHYTOSANITARY MEASUR ES  
In order to make operational and effective Art. 9.2 and Art.10, the following provisions shall apply:  
 
4.1.  In pursuance with the condition set out in Paragraph 5(d) of Annex B of the Agreement on 
the Application of Sanitary and Phytosanitary measures, reasonable time for making comments on 
any SPS measure notified by the developed country members shall be under stood to mean at least 
180 days for  least developed country Members  and developing country Members facing capacity 
constraints before the adoption of the measure, which sh all commence with the circulation of the 
notification by the WTO Secretariat. Upon re quest, a longer period of time shall be granted for 
least developed country Members.   
4.2.  A developed country Member proposing an SPS measure shall consult directly, at an early 
stage, with any least developed country Member or developing country Member  facing  capacity 
constraints exporting a product that would be covered by the proposed SPS measure in order to 
take into account the special needs of those countries for effectively implementing Article 10.1 of 
the Agreement on Sanitary and Phytosanitary measures . 
4.3.  Where the trade of a least-developed  country Member or developing country Member  facing 
capacity constraints  is or will be adversely affected by a proposed or final sanitary or phytosanitary 
measure  taken by a developed country Member , the following proc edures shall apply:  
a. Where the appropriate level of sanitary and phytosanitary protection allows scope for the 
phased introduction of new sanitary and phytosanitary measures:  
i. Longer time -frames for compliance with the measure shall be accorded to products 
of interest to least developed country Member s and  developing countr y members 
facing capacity constraints so as to maintain opportunities for their exports. The 
phrase "longer time -frame for compliance" referred to in Article 10.2 of the 
Agreement on the Ap plication of Sanitary and Phytosanitary Measures shall be 
understood to mean a period of not less than 12 months.  
ii. Where investments are required in order for an exporting least developed country 
Member or a developing  country Member  facing capacity constr aints to fulfi l the 
sanitary or phytosanitary measures proposed or applied by a developed country 
Member, the developed country Member shall, provide financial and technical 
assistance required for compliance with the sanitary or phytosanitary measure in 
order to enable them to maintain and expand its market access opportunities for the 
product involved as envisaged in Article 9.2.   
                                                
1 In assessing the adequacy of monetary reserves for a developing country referred to in paragraph 4(a)  
of Article XVIII, in particular, a least developed country or a small and vulnerable economy, the Committee  
shall take full account of a country’s intern ational investment position, current account deterioration due to  
commodity price shocks, and volatility of financial capital flows. Short -term financial flows shall not be included  
in determining the adequacy of the external financial position a developin g country Member referred to in  
paragraph 4(a) of Article XVIII, in particular, a least developed country or a small and vulnerable economy.  JOB/GC/160 • JOB/TNC/65  
 
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  b. Where the sa nitary or phytosanitary measure is adopted in urgent circumstances, a 
developed country Member shall provide a developing or least developed country 
Member that is or will be adversely affected by the proposed or final sanitary or 
phytosanitary measure com pensatory adjustment such as to ensure maintaining the 
market share of the developing or least developed country Members in their export 
markets and supporting the technological and infrastructural capabilities of the 
concerned developing or least develope d country Member.  
4.4.  Importing developed country Members shall not ban the importation and marketing of 
products originating from a least developed country Member a nd developing  county member facing 
capacity constraints  based on the rejection of shipments fro m one or a limited number of suppliers 
from that Member . 
5  AGREEMENT ON TECHNIC AL BARRIERS TO TRADE  
5.1.  Developed country Members shall provide developing  and least developed country Member s 
facing capacity constraints at least a 180 day comment period before th e adoption of the measure. 
The period shall commence with the circulation of the notification by the WTO Secretariat. Upon 
request, a longer period of time shall be granted for LDCs.  
5.2.  A developed country Member proposing a technical regulation or standard s hall consult 
directly, at an early stage, with any developing  and least developed country Member facing 
capacity constraints  exporting a product that would be covered by the proposed technical 
regulations or standards.  
5.3.  Where a developing country Member or least developed country Member is or will be 
adversely affected by a proposed or final technical regulation or standard  taken by a developed 
country Member , the following procedures shall apply:  
a. Where the technical regulation or standard allows scope for phased introduction:  
i. Longer time -frames for compliance with the measure shall be accorded to products 
of interest to  developing  and least developed country Members facing capacity 
constraints  so as to maintain opportunities for their exports. The phrase re asonable 
interval referred to in paragraph 12 of Article 2  of the Agreement on Technical 
Barriers to Trade shall be understood to mean a period of not less than 18 months .  
ii. Where investments are required in order for  exporting developing  and least 
develope d country Member  facing capacity constraints  to fulfil  a technical regulation 
or standard proposed or applied by a developed country Member, the developed 
country member shall provide financial and technical assistance required for 
compliance with the tech nical regulation or standard.  
b. Where the technical regulation or  standard is adopted in urgent  circumstances where 
urgent problems  of safety, health or environment arise  or threaten to arise for a 
Member, a  developed country Member shal l provide a developin g or least  developed 
country Member that is or  will be adversely affected by the  proposed or final technical 
regulation  or standard compensatory adjustment  so as to ensure maintaining the  market 
share of the developing or  least developed country Members in  their export markets and 
supporting  the technological and infrastructural  capabilities of the concerned  developing 
or least developed  country . 
6  AGREEMENT ON SUBSIDI ES AND COUNTERVAILIN G MEASURES  
6.1.  Recognizing that subsidies play an important role in industrialization and economic 
development programmes of developing country Members, Members agree that subsidies granted 
by least developed countries and  developing countries facing certain constraints described in 6.2, 
with a view to achieving developmen t goals, including regional growth, technology research and 
development funding, production diversification and development and implementation of 
environmentally sound methods of production, provided these subsidies fall under Article 8 of the 
Agreement, s hall be treated as non -actionable subsidies for a per iod of 10 years for LDCs, and JOB/GC/160 • JOB/TNC/65  
 
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  8 years for the developing country members facing certain constraints , from the date of adoption 
of this decision.  
6.2.  A Developing country member referred to above must demonst rate the following for the 
flexibility in this paragraph to apply:  
a. Failed to deepen and diversify their existing industrial capacity in a more open global 
economy  and experienced a stagnation or decline in the share of manufacturing in their 
gross domesti c product;  or  
b. Sustained vulnerability to external trade and financial shocks; or  
c. Suffered from sustained decline in commodity prices for primary products; or  
d. As GDP share in manufacturing declined, while share in services did not substantially 
increase ;2 
e. Failed to be able to close the digital divide vis à vis other economies and domestic 
industries remain backwards in keeping with essential technological advances.  
6.3.  Least developed country Member  and Developing countr y members  applying subsidies should 
notify these new non -actionable subsidies within two years from the date of adoption of this 
decision. The transitional period could be extended subject to review of the measures in the SCM 
Committee . 
6.4.  Developing Country members listed in the Annex 7 of the A greement on subsidies and 
counterv ailing Measures shall be exempted  from the obligations in paragraph 1 (b) of Article 3 of 
the Agreement on Subsidies and Countervailing Measures to allow them to use subsidies 
contingent on the use of domestic over importe d goods, with a view to adding value to their 
natural resources and diversifying their production and export base only when the products 
concerned are destined for export. With respect to developing country members demonstrating 
certain constr aints referre d to in Paragraph 6 .2, the prohibition of paragraph 1(b) of Article 3  in 
such case  shall not apply for a period of 8 years, from the date of adoption of this decision for the 
same objective stated in the paragraph above.  
7  AGREEMENT ON CUSTOMS  VALUATION AND DECISION ON MINIMUM VALUES   
7.1.  Considering least developed country Members continue to lack the necessary capacity to 
implement the relevant provisions of the Agreement on Implementation of Article VII of the 
General Agreement on Tariffs and Trade 1994 ('Customs Valuation Agreement'), the least 
developed country Members shall be allowed to use minimum or reference values up to 10% of 
their tariff lines when they are in difficulty utilizing the rest of valuation techniques to addressing 
the issue of impor t under -invoicing.  
7.2.  Considering least developed country members continue to lack the necessary capacity to 
implement the relevant provisions of the agreement on implementation of Article V II Of The 
General Agreement on Tariffs And Trade 1994 ( 'Customs Valua tion Agreement '), where a 
least-developed country member continues to lack the necessary capacity to establish the truth or 
accuracy of declared values, implementation of the transaction value for customs valuation 
purposes will not be required until imple mentation capacity has been acquired, through technical 
and/or financial assistance or increased customs cooperation . 
7.3.  Members agree to conclude, on request by the relevant LDC Member or developing country 
Member, Customs Mutual Assistance Agreements, or customs cooperation agreements that include 
inter alia provisions and mechanisms to exchange information about values, with in particular 
LDCs and developing countries that consider themselves to have lack of access to price data to 
enable a reliable deter mination of the truth or accuracy of declared values.  
                                                
2 See UNCTAD 2016 p. 57.  JOB/GC/160 • JOB/TNC/65  
 
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  8  1979 DECISION ON DIF FERENTIAL AND MORE F AVOURABLE TREATMENT,  
RECIPROCITY AND FULL ER PARTICIPATION OF DEVELOPING COUNTRIES  ("ENABLING 
CLAUSE")  
8.1.  In formulating schemes under paragraphs 2(a) and (d) of the Enabling Clause as well as 
other non -reciprocal preference schemes, developed -country Members shall take into account the 
needs of developing and least -developed country Members by consulting with them, with a view to 
ensuring that their products of export  interest are accorded meaningful market access. The 
Committee on Trade and Development will annually review the progress made in this regard and 
report to the General Council.  
9  TRANSFER OF TECHNOLO GY  
9.1.  Developing and Least Developed countries continue to st ruggle with industrialisation because 
many are still far behind technologically. There are many pronouncements about supporting these 
countries to bridge the technological divide which must be made operational and effective. 
Sustainable Development Goal 17 .6-8 encourages international cooperation on and access to 
technology and innovation, including the promotion, development, transfer, dissemination and 
diffusion of technologies to developing countries. A number of provisions in the WTO agreements 
mention the need for the transfer of technology to take place between developed and developing 
countries. As becomes apparent, technology transfer goes beyond the mere import or purchase of 
machines and other hardware at commercial rates and includes the building of local capacity so 
that people and institutions in Developing and Least Developing countries can design and make 
technologies which can be diffused into the domestic economy. Against this background, specific 
measures need to be taken within the WTO to e ncourage such flows of technology.  
9.2.  Article 66.2 of the Agreement on Trade -related Aspects of Intellectual Property Rights 
(TRIPS) provides that developed country Members shall provide incentives to enterprises and 
institutions in their territories for the purpose of promoting and encouraging technology transfer to 
Least Developed Members in order to enable them to create a sound and viable technological base. 
The incentives mandated by Article 66.2 shall allow effective access, on fair, reasonable, and 
non-discriminatory terms, to technologies owned or controlled by enterprises and institutions in 
the territories of developed country members, in a manner that enables Least Developed Countries 
to absorb, adapt and improve on the received technologies . 
9.3.  Develop ed country Members shall adopt measures to enable enterprises and institutions in 
the territories of developing country Members and Least Developed Countries to have access, upon 
demand and on fair, reasonable, and non -discriminatory  terms, to technologies  owned or under 
the control of developed country members and to technologies developed with public funding.  
9.4.  Targeted technical assistance shall be provided to the least developed countries to support 
their domestic efforts to enhance their technological ba se and improve their innovation capacities 
and capabilities throughout the technology cycle of research, development, demonstration, 
commercialisation and diffusion to enable these countries to advance up the technological ladder.  
9.5.  Developed country governm ents shall establish a Publicly Owned Technology Inventory . 
Developed country Members shall promptly make available information concerning technologies 
patented or funded for at least 50 per cent, either directly or indirectly, by the government or any 
public body within their territory.  
9.6.  Working Group on Trade and Transfer of Technology (ToT) should examine restrictive 
practices  adopted by multinational enterprises in the area of ToT and how to prevent such 
practices; analyse the impact of tariff peaks and tariff escalations on ToT; examine difficulties of 
developing countries and LDCs in meeting relevant WTO standards when the relevant technologies 
are unavailable; examine all the WTO Agreements to identify the constraints that certain 
provisions in these A greements may be creating against transfer of tech nology to developing 
countries; assess the implementation by developed countries of all WTO provisions related to the 
transfer of technology to developing countries with a view to identifying the needs for appropriate 
changes/strengthening of these provisions; the design of instruments and incentives, including tax 
incentives, that developed countries could grant to enterprises and institutions in their own 
territories in order to disseminate and transfer te chnology to developing countries.  JOB/GC/160 • JOB/TNC/65  
 
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  9.7.  Developed countries shall take into account the objectives and principles of the TRIPS 
Agreement, in particular, as contained in Articles 7 and 8 respectively as well as the objective of 
sustainable development contained t he preamble of the Agreement establishing the WTO 
(Marrakesh Agreement).  
10  ACCESSION OF LDCS  
10.1.   The WTO Agreement recognizes the need for a positive effort to ensure developing 
countries, especially the least -developed countries, secure a share in the growth o f international 
trade that commensurate with their level of economic development. Though the special provisions 
are applicable to LDCs accession, experience showed that the limited human, institutional, financial 
and administrative capacity of LDCs makes L DCs accession more challenging. To facilitate a 
speedy and smooth integration of LDCs into the multilateral trading system based on the principles 
of universalizing the multilateral trading system: no -one left out of the system, and help LDCs 
secure a shar e in the growth of international trade and benefit from the system in a balanced term 
consistent with their level of development and achieve the SDGs, LDCs need a special & differential 
treatment in their accession process.  
10.2.   To this end, based on the 2002 LDCs Accession Guideline and the 2012 General Council 
Decision, while the LDC’s are expected to offer reasonable concessions that commensurate with 
their individual development, financial and trade levels, Members shall exercise a full restraint in 
seeking  concessions and commitments from acceding LDCs. On this ground, Members shall:  
a. Restrain from seeking concessions and commitments beyond their level of development 
and regulatory capacity and fully implement the benchmarks set for an average tariff 
binding  on goods and market access opening for services stipulated in the 2012 General 
Council Decision on LDCs Accession to further strengthen, streamline and operationalize 
the 2002 LDC Accession Guidelines; and,  
b. Discipline the "fast -track" accession procedure recently practiced by LDC's accessions.  
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