RESTRICTED  
  
S/WPDR/M/71  
 
29 September 2017  
(17-5219) Page: 1/70 
Working Party on Domestic Regulation    
 
 
REPORT OF THE MEETIN G HELD ON 15, 16, 22  JUNE AND 5 JULY 2017  
NOTE BY THE SECRETAR IAT 
The Working  Party on Domest ic Regulation  (WPDR)  held a meeting on 15, 16, and 22 June 
and 5 July 2017,  chaired  by Ms. Katarzyna  Stecz  from Poland.  The agenda  for the meeting  was 
contained  in document  WTO/AIR/WPDR/9  dated  2 June 2017.  No item was raised  under  Other  
Business.   
 
The agenda  was adopted . 
 
1  ITEM A. APPOINTMENT OF THE CHAIRPERSON O F THE WORKING PARTY  
1.1.  The Chairperson  recalled that, accordin g to the R ules of Procedure for meetings of the 
Council for Trade in Services (S/L/15), the appointment of the Chairperson should have taken 
place at the end of the last meeting of the Working Party. Consultations for the appointment of 
Chairs had not, how ever, been finalized on time, and it had therefore been decided that the 
appointment would take place at the beginning of this meeting.  
1.2.  The Working Party re-elected Ms. Katarzyna Stecz from  Poland  as its Chairperson for 2017 . 
2  ITEM B: DEVELOPMENT OF REGULA TORY DISCIPLINES UND ER GATS ARTICLE VI:4  
2.1.  The Chairperson  stated that a total of seven written text proposals were in front of the 
Working Party, and that as indicated in the Airgram, it was her intention to structure the 
discussion thematically, taking up the three new proposals first, and then providing space for the 
continuation of exchanges on proposals that had been introduced at earlier meetings. Before 
proceeding, she invited Members to make general substantive interventions on the entirety of the 
proposals.  
2.2.  The representative of South Africa  delivered a statement on behalf of the African Group . The 
Group was of the view  that the GATS Article VI:4  mandate had been distorted and misinterpreted 
in respect of the proposals on the table. The underlying assumption that there was agreement 
amongst the membership to negotiate disciplines on Domestic Regulation (DR) had always been 
based on the fact that t he mandate had been pursued as part of a broader context on a range of 
issues under the Doha Development Agenda (DDA) package. She observed that most of the 
proposals submitted to date in the WPDR came from Free Trade Agreements (FTAs) that had not 
yet bee n concluded, and that engagement in the WTO was largely limited to those Members 
negotiating the FTAs in question. There should not be a presumption that bilateral agreements and 
FTAs should become a reference point or have relevance for consideration in t he WTO.  
2.3.  The African Group had been asking for  clarity on concerns it had  consistently highlighted, a s 
well as on the systemic issues on the table. Without such clarity, it would be very difficult to 
continue the discussion.  In accordance with the mandate, there ha d never been a consensus that 
all elements to be negotiated under GATS Article VI :4 were "necessary ". The representative of 
South Africa  enquired, firstly, w hich disciplines were necessary, and wh y; secondly, whether all 
Members agree d that there was a need to develop these disciplines  and w hich ones all Members 
had agree d to discuss with a view to developing them ; thirdly, what the circumstances  were that 
had led to the suspension of DR negotiations in the past, and whether those circumstances had 
changed . S/WPDR/M/71  
 
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  2.4.  She questioned  the economic rationale  for the proposals  on the table. Contexts ha d changed, 
and it was critical to determine whether all Members wanted the disciplines , what the trade -offs 
would be,  what the disciplines mean t in a digital age, and  to what extent the GATS had not been 
sufficient . 
2.5.  The African Group requested  the proponents to help them understand, conceptually and 
practically, how the proposals would address the precise problems they ha d encountered. They 
had presented  a number of questions to the proponents. The first question was w hat the economic 
rationale  was for adopting DR disciplines, and what the evidence -based benefits were that the 
proposed disciplines w ould bring to all Members . Secondly, they enquired whethe r the proponents 
had undertaken an economic impact assessment that demonstrate d that their stakeholders were 
losing out on economic opportunities in the absence of multilateral DR disciplines . Thirdly, they 
were curious to learn  in which Members proponents ' stakeholders had mostly experienced the 
types of problems that the proposals were seeking to address, and whether proponents had tried 
to resolve them bilaterally . The fourth question was whether the proponents had exhausted all 
domestic remedies to reso lve the problem s. Fifthly, in  instances where proponents had been  
aggrieved, had they taken th e matter  up with the competent authorities in the Members where 
they had experienced a problem ? The sixth question was how the provisional application in GATS 
Article VI :5 had come up short in the absence of multilateral disciplines . The last question 
concerned h ow the  proposed  disciplines would contribute to supporting structural transformation 
for Africa . 
2.6.  The African Group maintained that the proposals on the table involve d heavy obligations for 
its 43 members, and would subject their domestic rule -making to WTO oversight, covering every 
service sector at every level of government. Such extensive oversight, even if desirable,  might not 
be feasible in practice . 
2.7.  Africa had to industrialize. This was particularly relevant in an environment where , according 
to the Group,  a narrative ha d been constructed on the basis of two misleading assumptions. The 
first assumption was that Africa n Members  could become post -indust rial societies without having 
first been industrial ones; and secondly, that a single, prescriptive, theoretical policy or regulatory 
approach could be imposed on the African Group  striving to continentally integrate and structurally 
transform their econom ies to ensure sustainable economic growth and development across the 
continent . The Group was concerned  that the narrative on domestic regulation ha d been seized by 
some  Members  to advance a set of policy prescriptions alongside a specific agenda for 
international trade negotiations, with a view to defeating Africa 's industrial development priorities 
as encapsulated in "Agenda 2063: The Africa We Want ". The African Group recalled that it had 
raised general and specific concerns at the formal WPDR  meeting  in March, and many Members of 
the Group had expressed additional concerns at the informal meeting of the WPDR in May. The 
African Group 's engagement in current  discussions would  depend on having more clarity on the  
issues  raised.  
2.8.  The representative of  Swaziland  aligned himself with the statement made by South Africa on 
behalf of the African Group and expressed the view  that domestic regulation discussion did not 
have a de facto  mandate. He pointed at the scope of the GATS contained in Article I:1 and said 
that not all measures could be disciplined by the GATS, as the Agreement 's coverage was confined 
to measures "affecting " trade in services. He further pointed to the same language in Article VI:1, 
as well as the requirement contained therein for measures to be administered "in a reasonable, 
objective and impartial manner ". His conclusion was that Article VI was therefore concerned with 
the administration of measures and not with disciplining them. Issues of qualification, licensing 
and technical standards were outside the scope of trade in services, as they were measures 
"relating to " trade in services and not "affecting " it. He further stated that the scope of "relating 
to" was wider and could include any measure so long as it touched upon trade in service s even  if it 
did not "affect " it. In his opinion , the disciplines should only be adopted where necessary and 
should not be horizontally applied. To support his argument, he drew Members ' attention to the 
establishment of the Working Party on Professional S ervices right after the GATS had been drafted. 
He also held that measures "relating to " trade in services were outside the scope of the GATS and 
belonged to the realm of other international organizations. The WTO was only meant to develop 
those measures if  proven necessary. He was of the view that the necessity of the disciplines had to 
be proven beyond reasonable doubt before the mandate of Article VI could be invoked by the 
proponents.  S/WPDR/M/71  
 
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  2.9.  The representative of the Plurinational State of Bolivia  shared the general concerns regarding 
the process. Bolivia was not a demandeur  in domestic regulation negotiations and believed that 
having DR disciplines was too intrusiv e for his country's ability to regulate . DR disciplines could 
cause more problems th an benefits for regulatory authorities. Bolivia was interested in promoting 
public policies aimed at improving universal access to services and promoting facilities for 
vulnerable population groups, such as the indigenous community who had been historicall y 
disadvantaged. The Bolivian Constitution provided that many services were fundamental to human 
rights and that no one could be deprived of access to those services. Bolivia was also concerned 
with the issue of balance, with the WPDR process being much mo re advanced than other areas of 
negotiations, such as agriculture. Despite the efforts of the newly elected Chairperson, it was still 
very unclear what could be agreed on at the MC11, which made it difficult to engage  capital. Also, 
there was a lack of cla rity in many of the proposals. Questions that had been raised by several 
Members had not been answered or the answers had not been sufficient. He enquired to what 
extent the proposals corresponded to what was required in Article VI:4 of the GATS, what 
problems proponents wanted to solve with these proposals, whether proponents had used bilateral 
channels to resolve the issues encountered and whether proponents had considered challenges 
faced by developing countries  and to what extent  the proposed discipline s would  limit the ability of 
developing countries to regulate and ultimately their ability to develop.  
2.10.   The representative of Cuba recalled that it was not a demandeur  in domestic regulation 
discussions. Cuba had always considered the matter in the broader context of negotiations on 
Doha issues with the developmental component at the centre. The proponents had neither 
clarified, nor given convincing replies to questions  raised by developing country Members in 
previous meetings. The revised versions of the pr oposals had not addressed above -mentioned 
concerns and the status quo remained unchanged after the informal meeting o f 9 May. She said 
that new proposals went beyond the meaning of  Article VI.4 and  had distorted the mandate of 
Article VI:4  and some cross -cutting principles, such as Special and Differential Treatment (SDT). 
She enquired whether the proponents could elaborate on the real issues and problems they had 
been trying to solve with the proposed disciplines and explain why they consi dered these 
discip lines to be  necessary. Additionally, s he requested examples of concrete benefits that could 
arise for Members that were not services exporters, in particular Members facing major challenges, 
such as weak infrastructure and weak regulation s, without depriving them of their sovereign right 
to regulate and restricting the policy space necessary for achieving development objectives. She 
also enquired why the proponents wanted to establish disciplines that were not compatible with 
other Members ' national legal systems.  
2.11.   The representative of the Bolivarian Republic of Venezuela  supported the concerns 
expressed by South Africa on behalf of the African Group, Swaziland, Bolivia and Cuba. He stated 
that his delegation was not a proponent in services  discussions, and noted that a balance between 
the negotiating areas of the Doha Round was necessary. He considered that it was necessary to 
evaluate issues at hand with great caution, especially because of the consequences the proposed 
disciplines would h ave on the application of development policies and the exercise of the right to 
regulate.  
2.12.   The representative of Uganda  delivered a statement on behalf of the LDC Group . The Group 
associated itself with the by South Africa on behalf of the African Group. He  posed several 
questions to the proponents. The first question was whether the intended outcomes of any DR 
disciplines would apply automatically to the preferential treatment notified under the LDC Waiver 
mechanism, and if not, why not. The second question  concerned whether proponents believed that 
an exemption for LDCs was sufficient in and of itself, to promote the development of services 
industry in LDCs. He asked the proponents whether their proposals had been subjected to the 
necessity test required in  Article VI:4 and what the overall object and purpose of the disciplines 
was. He also enquired what problems the proponents were trying to resolve with these disciplines 
and what the target markets were. He asked if the proponents argued that the DR discip lines were 
entirely about trade or rather about controlling the political, economic and social manner in which  
LDCs were governed and the way they led their lives. He further posed a question on the intended 
benefits to the LDCs in light of the preferentia l treatment under the LDC Waiver mechanism. He 
enquired whether the proponents had tested the GATS,  and whether the proponents had 
attempted to utilize all the available mechanisms provided in the GATS, the DSB, as well as in 
domestic court systems.  S/WPDR/M/71  
 
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  2.13.   The representative of Ecuador  recalled that his country was not a demandeur  in domestic 
regulation and reiterated his concern that DR negotiations could compromise the policy space 
Members required to advance their development. He endorsed the statement ma de by South 
Africa on behalf of the African Group that there had been no consensus on the elements that 
should constitute the disciplines to be negotiated. He therefore called for a debate that would take 
into account the questions asked by several Members  in order to find out which disciplines were 
necessary to negotiate.  
2.14.   The representative of Australia  stated that work on services domestic regulation under the 
mandate of GATS Article VI:4 was an effort to wrap  up decades of discussions in the WPDR to 
streamline procedures for qualifications, licensing and technical standards and ensure that the 
requirements for services suppliers to operate were objective, transparent and did not in 
themselves prevent them from providing services. Since the last WPDR meeti ng, Australia had 
continued  consultations with interested Members bilaterally and in regional and small groups and 
continued to be encouraged by the high level of interest and engagement. She welcomed the 
amount of work that was underway in many capitals t o assess the various proposals, including 
how they would benefit domestic services suppliers, the costs of implementation, and how such 
costs could be addressed. Regulatory red -tape, licensing costs, and procedural delays impacted 
most on services supplier s from small economies, as large multinational corporations had the 
resources to work around regulatory hurdles. These barriers significantly affected the ability of 
service suppliers from developing and least -developed countries to participate in trade in  services 
and for that reason developing countries had led the push in the Doha Round for disciplines on 
domestic regulation. For that same reason , addressing regulatory barriers was a key focus of the 
LDC's collective request and the ACP Group paper on re maining DDA issues for services. Australia 
welcomed the analysis that had been done by the LDC Group and the ACP Group in that regard. 
The conclusion of that work had been that more needed to be done to address regulatory barriers 
to enhance developing cou ntries and LDC participation in trade in services, as those barriers had 
not been sufficiently addressed through bilateral discussions, regional or plurilateral negotiations. 
Australia was happy to work to advance these objectives through the WPDR, as Aust ralian service 
suppliers had observed that regulatory barriers had the greatest negative impact on trade in 
services. She recalled WPDR discussions in early 2016, when Members had been considering what 
to do post -Nairobi and when they collectively re -exami ned what disciplines they considered 
necessary under GATS Article VI:4 and how to deal with the existing deadlock in the WPDR. Issues 
of administration of measures, development of measures, transparency, technical standards and 
development had been identif ied as key elements of interest to many Members. The proposals 
currently on the table reflected many years of negotiations to balance ambition and doability . 
Members had learned a lot from earlier  WPDR discussions as to what was and was not possible for 
WTO Members to agree on. The proponents had set aside the more ambitious proposals that had 
deadlocked previous negotiations and in good faith come forward with something more 
streamlined that they thought could achieve the right balance for all Members.  
2.15.   She explained that the latest proposal on development, concerning  least-developed 
countries, was intended to be  a first step in the development discussion . It was intended to 
address upfront some of the concerns that ha d been raised about the right to regulat e and 
creating additional obligations on LDCs . The proponents had underst ood that questions about 
these fundamental issues ha d limited some Members ' engagement on the proposals . The 
proponents hoped that  having this additional clarity w ould allow Members  to get into a more 
detailed discussion on the substance of each of the proposals and importantly, with a view to 
completing the  development element, to hear from more Members about any  additional flexibilities 
that might be required for developing countr ies.The representative of Australia address ed some of 
the overarching questions that ha d been raised on services domestic regulation.  Firstly, disciplines 
on domestic regulation w ould not undermine Members ' right to regulate . The right to regulate was 
a cor e principle , as reflected in the GATS preamble and the proponents ha d indicated that they 
were happy to include language on the right to regulate if that would provide additional comfort for 
Members . 
2.16.   Secondly, domestic regulation within the scope of GATS Article VI:4 was not about market 
access or national treatment . The disciplines only appl ied to licensing and qualification 
requirements and procedures and technical standards and only where Members ha d undertaken 
specific commitments, and importantly, not where Members ha d scheduled limitations . 
Additionally, the propos ed exemption for LDCs would mean that no additional obligations for LDCs 
were created.  S/WPDR/M/71  
 
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  2.17.   Domestic regulation disciplines were important, particularly for developing countries and 
LDCs to benefit from Members ' market access commitments . The proponents had heard from the 
LDC Group and the ACP Group about the challenges their service suppliers face d where 
qualification requirements operate d as a barrier to participation in services trade  and how LDC and 
developing country service suppliers would benefit from increased availability of information, 
reducing regulatory red tape, licensing costs, unreasonable fees, and by ensuring that service 
suppliers did not  have to approach multiple authorities for the same application.  
2.18.   Good regulatory practices also contribute d to increasing services capacity . Net services 
importers in particular would benefit from streamlining licensing and qualification proce dures that 
limited their own services suppliers domestically . Domestic regulation disciplines could also 
encourage increased foreign direct investment by  improving the ease of doing business, which 
could further contribute to services capacity and support LDC and developing country trade and 
economic growth , particularly if complemented with targeted technical assistance to support 
implementation of trade tools , such as a single window and contact points , or institutional capacity 
building , for example to s upport electronic applications.  In terms of the language  and how to 
interpret both the obligations and the flexibilities, the proponents had used language that was 
common across WTO agreements . Members had benefited  from extensive discussions in the WPDR 
over many years , where they had shared their understanding and experience on the meaning of 
each of the terms and how they would be implemented in a domestic regulation context . 
Regarding  the relationship between the current proposals and other negotiations , the proposals 
were not the same as the disciplines that had been  negotiated in the Trade in Services Agreement  
(TiSA) or Trans -Pacific Partnership ( TPP), as those agreements ha d a much a higher level of 
ambition . TiSA parties  had negotiated obligations that applied  horizontally , whether or not a 
Member ha d scheduled commitments , but the proponents recogni zed that  such ambition would not 
be possible to replicate in the WTO at this stage.  The current proposals were less ambitious th an 
some of the disciplines in the WPDR Chair  texts from 2009 or 2011 . The proponents had listened 
carefully to Members ' views as to where they require d additional flexibilities . Where Members  
could not find a way forward from the previous Chair  texts, the proponents had drawn on their FTA 
experience to include compromi se language that was more realistic than that of previous proposals 
put forward in the WPDR.  
2.19.   The representative of New Zealand  supported the development of disciplines in relation to 
licensing and qualification requirements and procedures, and technical standards in fulfilment of 
the GATS Article VI:4 mandate. Members had been negotiating on domestic regulation for many 
years, an d proponents considered that DR should form part of an outcome at the next Ministerial 
Conference in Buenos Aires. Proponents had heard new voices engaging in the debate in the 
formal and informal meetings, and had received a number of technical questions from partners in 
bilaterals. This demonstrated that these Members were engaging their regulators and seriously 
considering the proposals. Proponents welcomed in particular Kazakhstan and Argentina to the 
group of co -sponsors of the proposals. In response t o some of the statements, she agreed that 
agriculture was vitally important and that New Zealand was also seeking an outcome in this area 
at MC11.  However, she did not agree that this was a reason to give up on services. In the context 
of servicification a nd global value chains, effective services delivery was important for goods trade 
as well. Furthermore, proponents did not believe in creating political linkages across negotiating 
agendas.  Even so, they noted that while a good outcome on agriculture had b een reached at 
Nairobi, so far the WTO had not been able to harvest anything from Members ' longstanding efforts 
on services. New  Zealand was seeking good outcomes at Buenos Aires on agriculture, services and 
fisheries. Domestic regulation disciplines were essentially about good governance. Although the 
WTO had not yet had multilateral obligations in this area, New  Zealand had already been 
implementing the sort of disciplines that were under discussion, as it was good regulatory practice 
that provided benefi ts to both domestic and foreign  services suppliers , to consumers and to the 
general public.  Domestic regulation disciplines were important to ensure that service suppliers 
could navigate regulatory requirements and procedures to take up market access oppor tunities, 
and help both domestic and foreign service suppliers in sectors where Members had chosen to 
offer market access. Proponents had a commercial interest in seeing these disciplines met in their 
export markets, as those measures affected trade. Despi te the fact that many DR barriers were 
often less visible than entry restrictions like equity caps, joint venture requirements or restrictions 
on cross -border delivery – which often had a more transparent legislative basis – proponents 
heard regular compla ints from exporters and investors about the administrative barriers they had 
to navigate in order to be approved to do business in a range of international markets. Those 
troublesome issues included opaque unpublished rules or processes that made it diffic ult to S/WPDR/M/71  
 
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  understand how to obtain authorization requirements, and what was expected of service suppliers 
in order to be successful in those processes. Other barriers included procedures that took too long 
or seemed open -ended without any clarity or certainty  for business on how long they should 
reasonably expect to wait for approvals. Ninety -seven per cent  of enterprises in New  Zealand were 
small businesses with fewer than 20 employees and 86 % had less than five employees. For these 
types of businesses, opaqu e, open -ended, expensive and burdensome processes simply meant 
that they did not have the time or resources to access those markets, regardless of how good the 
host country 's national treatment or market access commitments were.  For this reason the WTO 
had an agreed GATS mandate to progress this area and improvements to domestic regulation 
could deliver tangible benefits for both domestic and foreign SMEs, as well as consumers. In other 
words, licensing requirements and procedures, qualification requirement s and procedures and 
technical standards could be crucial in making a decision on whether to enter a market or not. 
Robust domestic regulation disciplines could help level the playing field. In response to some of 
the other questions,  she noted that New  Zealand sought these disciplines from all negotiating 
partners regardless of actual trade flows given the potential for trade patterns to change over 
time. Furthermore, the GATS focused on market access but it also recognized that this was not in 
itself suff icient and this was the reason why the Agreement included the mandate of Article VI:4, 
namely to address domestic regulation and ensure that market access opportunities in sectors that 
Members had chosen to liberalize could actually be fulfilled.  
2.20.   The prop osed disciplines were different from those in previous WPDR texts and were 
informed  by experiences since 2011 including proponents ' FTA practice. It was important to 
recognize that this had been done in response to the deadlock in the WPDR regarding the Ch air 
texts and that those changes were aimed at making them more acceptable to Members, as 
demonstrated by the expanding co -sponsorship. Regarding the right to regulate, the GATS was 
one of the most respectful agreements, insofar as it allowed for tailor ma de commitments for each 
Member. This fact was very clearly demonstrated by the large diversity of schedules across the 
membership. WTO Members could choose which sectors, subsectors and modes of supply they 
would like to open to foreign suppliers. Members could even maintain discriminatory measures to 
the extent that those were scheduled or listed as MFN exemptions. Issues in domestic regulation 
negotiations would only apply as regards scheduled commitments, and only with regard to a 
limited scope of measur es, namely those relating to licensing and qualification requirements and 
procedures, and technical standards affecting trade. The disciplines were about how Members 
regulated rather than about the ability to regulate on any particular topic. Finally, she stated that 
there was a level of flexibility built into the disciplines that had not been present in previous 
discussions and that further respected different regulatory regimes.  The disciplines sought to 
ensure the quality of the service where Members had  chosen to put in place licensing and 
qualification requirements and procedures and technical standards. Domestic and foreign service 
suppliers should be able to find information about such requirements,  procedures and technical 
standards and be aware what was expected of them if they were to supply the service. She 
provided an example of a licensed tourism operator that would need to obtain certain 
qualifications, meet various requirements, approach certain agencies providing proof of the above 
and bear th e cost. If the host country did not make the procedures and requirements available and 
understandable, there would be a risk that services suppliers would remain ignorant of them and 
might operate without the necessary authorizations which would ultimately  undermine the 
Member 's policy objective in implementing the measure. Regarding the reasonability of 
requirements, it might not be reasonable for instance to require a tourism operator to have a PhD 
in English; however, to require tour guides to pass an En glish language competency text would be 
completely reasonable. Such procedures must allow service suppliers to show that they met the 
requirements and must not favour  any particular domestic or  foreign supplier. Proponents 
recognized that there would need to be some development elements and welcomed the Australian 
proposal to start the discussion. Proponents would welcome hearing more from the African Group 
and others about the specific difficulties Members had in meeting the proposed disciplines in their 
scheduled sectors given the flexibilities included in the design of some of the proposals.  
2.21.   The representative of Kenya  expressed his delegation 's full support for the statement made 
by South Africa on behalf of the African Group. He noted that global commer ce was operating in a 
very complex, ever changing environment and that new technologies had dramatically changed 
the way most services were being delivered. That had caused a lot of challenges for developing 
countries in terms of their capacity. Developing  countries needed to put in place the right 
regulations in order to meet national policy objectives. The concern of Kenya was that some 
proposals constrained the governments ' ability to strike the right balance among competing S/WPDR/M/71  
 
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  national policy objectives. H e requested the proponents to demonstrate the specific problems that 
the proposals were addressing and share proponents ' own experiences, e.g. how a single window 
in services would work.  
2.22.   The representative of Cameroon  supported the statement made by South  Africa on behalf of 
the African Group and shared his outlook on  the Article VI:4 mandate. In his view, the mandate 
had been twisted and misinterpreted by the proponents. Cameroon was not willing to negotiate 
any domestic regulatory disciplines, even thoug h the level of ambition of the proposals was 
admittedly lower than that of proponents ' FTAs. Cameroon was not a party to any free trade 
agreements. The attempt to import new disciplines from FTAs negotiated by the proponents was 
not justified, as none of t he proponents could point to problems the proposals were trying to solve . 
The only clear problem was regulatory management. The intrusive nature of the proposed 
disciplines aimed at putting governments under guidance made the se proposals highly 
undesirable. In the opinion of the representative of Cameroon, the proposals had not yet passed 
the necessity test of GATS Article  VI:4. Regarding the right to regulate, sovereignty could not be 
encapsulated in one sentence and such a sentence was not suff icient to defend the independence 
of the state. The responses obtained from proponents so far were insufficient. WTO rules had to be 
complied with in all negotiations.  
2.23.   The representative of Canada  encouraged sceptical  Members to look at the proposals in 
good faith. In response to the comment made by Swaziland, he remarked that it might indeed not 
be necessary to develop disciplines on all elements mentioned in Article VI:4. Vague horizontal 
standards as embodied in the necessity test created concerns among  the membership and 
uncertainty about the reach of these disciplines. Canada valued practical disciplines with clear 
scope, and most of the proposed disciplines fell into this category. These kinds of disciplines could 
benefit supply -side capacity developm ent even more than they would facilitate trade, much like 
those contained in the Trade Facilitation Agreement (TFA). Stakeholders had communicated that 
the biggest difficulties fell in the area of transparency and process: issues like knowing how to 
apply for or obtain authorization. A lot of disciplines captured good practices that were essential 
for establishing domestic services industries and indispensable for MSMEs. The right to regulate 
was paramount and it was hard to see how the disciplines on issue s like application time frames 
and frequency of examinations would constrain Members ' policy space.  
2.24.   The representative of Chile endorsed the statements made by Australia and New Zealand. 
He took up some of the issues brought up by Members in their questio ns to the proponents. As 
regards the benefits of the disciplines for Members that imported services, these proposals would 
be of benefit for every Member, including those Members who had raised concerns. DR disciplines 
were important to avoid particularly burdensome regulations that represented unnecessary 
barriers to trade  to the benefit of both national and foreign service providers, and especially 
MSMEs . For services importing countries disciplines on domestic regulation helped create or 
maintain a good regulatory environment that enabled businesses and foreign trade. Disciplines on 
domestic regulation facilitated the t ransition of services importing  to services exporting countries. 
As regards the specific problems that would be addressed with the proposa ls, the representative of 
Chile associated himself with the statement made by New Zealand. Concerning the negotiating 
mandate of Article VI:4, various Members had held the view that some proponents were 
interpreting it too broadly. Chile did not share this  opinion, as the proposals were fully aligned with 
the Article VI:4 mandate by referring to five categories of measures described therein. As regards 
concerns expressed regarding limitations to policy space, proponents had stressed that the 
proposals had a limited scope of application, as they only concerned committed sectors and five 
specific categories of DR measures listed in Article VI:4. Chile asked for clarification of what policy 
space was needed exactly and whether being able to pursue disciplines t hat did not follow 
objective criteria was what Members were asking for.  
2.25.   The representative of the European Union  echoed the interventions by Australia and New 
Zealand and addressed some of the concerns raised by Members earlier. The right to regulate had 
been recognized by the GATS in its preamble and was an overarching principle of the WPDR work 
in the WTO. The proposals on domestic regulation did not affect this right. In fact, several 
proposals had been tabled to reinforce this right and proponents were looking forward to engaging 
on those proposals. It was important to recognize that disciplines on domestic regulation would not 
affect the right to regulate. For example, transparency obligations only contributed to ensuring 
that service suppliers were bet ter informed . Provisions on the administration of measures focused 
on the process and did not prescribe any specific substance or a specific policy. Provisions on S/WPDR/M/71  
 
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  development of measures introduced safeguards to fight against arbitrary or subjective conduc t by 
authorities, but did not limit Members ' room for manoeuvre  to decide what sort of requirements 
they wished to impose on service suppliers. Regarding the potential interest of developing 
countries, there was one aspect that proponents wanted to stress.  Disciplines on domestic 
regulation applied to all suppliers, local and foreign. Hence, disciplines on licensing and 
qualification directly benefited domestic services markets ; this in turn  was a positive contribution 
to reinforcing the regulatory framewor k in developing countries, to the benefit of local suppliers. 
When exporting services, service  suppliers from developing countries would benefit from increased 
transparency and streamlined rules on qualification, a matter which had been raised by developin g 
countries many times. Over the last years, proponents had been comforted and encouraged by the 
interest of developing Members in domestic regulation. The debate before the Nairobi Ministerial 
had been enlightening in this regard. He also recalled previou s written contributions from the ACP 
and LDC Groups which had a strong qualifications angle. It was important to recall that the 
proposed DR disciplines would only apply to Members ' existing specific commitments. There was 
therefore no impact on sectors th at had not been committed. DR disciplines did not affect the 
conditions of market access and national treatment which were c overed by GATS Articles XVI 
and XVII, and not by Article VI:4. The DR disciplines were about licensing requirements and 
procedures, qualification requirements and procedures and technical standards and the proponents 
did not see how the rise of the digital economy would change the rationale to address 
transparency and good regulatory practices. Some of the rules proposed in the current  domestic 
regulation discussions had been implemented by the EU for many years and those rules had been 
critical for the block 's regional economic integration and had contributed to increasing cross -border 
trade among EU member states. Evidence from the EU  system had demonstrated that ensuring 
that licensing and qualification requirements and procedures were objective and transparent, i.e. 
abided by good governance rules, was a significant contribution to the development of both trade 
and a strong domestic services market.  
2.26.   The representative of Kazakhstan  welcomed DR disciplines that would oblige WTO Members 
to introduce and maintain a predictable and transparent environment for services suppliers. She 
noted that as a result of its accession to the WTO, Kazakhstan had undertaken sound 
commitments on the transparency of services licensing. Kazakhstan had undertaken reforms 
towards adopting predictable and non -discriminatory rules and regulations for business and 
launched several initiatives to reduce the admin istrative burden. In 2015 the President of 
Kazakhstan had announced a set of a hundred administrative steps to be undertaken by the 
government to improve efficiency of the state apparatus and support economic development. 
Those steps included improvements to the licensing system and simplification of procedures to 
obtain a license. The overall number of licenses required for certain  activities had been reduced 
by 30%. In 2014 Kazakhstan had passed a law reducing the time for obtaining a license and  the 
numb er of documents required to obtain a license for several types of activities, such as 
construction, business registration and liquidation, bankruptcy and others. Currently licenses in 
Kazakhstan were being issued in electronic format through the public lic ensing database. The time 
period for issuing a license had been reduced from 30 to 15 days. She noted that as a recently 
acceded Member, Kazakhstan would like to see the same level of commitments undertaken by all 
other Members.  
2.27.   The representative of Mexic o endorsed the statements made by Australia, Chile, New 
Zealand, the EU and other proponents. She was surprised by some of the queries that had been 
raised regarding the existence or the scope of the mandate considering how many years these 
disciplines had  been on the negotiating agenda. She noted that the 2011 Chair text had sufficient 
flexibilities to be able to adapt to the realities on the ground. Proposed disciplines had a low level 
of ambition but the adoption of disciplines was nevertheless very rele vant for services providers 
wishing to gain access to various markets, especially those from developing countries and SMEs. 
She also stressed that proposals had never called the right to regulate into question.  
2.28.   The representative of Hong Kong, China , as a long-standing demandeur  in domestic 
regulation discussions, endorsed the statements made by other proponents. Regarding the right to 
regulate, he noted  that the Article VI:4 mandate limited any disciplines to the five categories of 
measures, and accordingl y other measures were not covered by the proposals. Additionally, the 
proposals were only applicable to scheduled commitments. The proposals specified that its 
provisions should not be construed to prescribe a particular regulatory approach or provisions. As 
the right to regulate was of major importance to everyone, it could be debatable whether it 
sufficed to have it encapsulated in one sentence. Therefore the proponents remained open to S/WPDR/M/71  
 
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  discussing the issue and addressing concerns. He echoed the questions  posed by Chile on what the 
actual genuine concerns regarding the right to regulate were.  
2.29.   The representative of Guatemala  stated that even though his delegation was not a 
demandeur  in domestic regulation discussions, he considered it appropriate to initiat e and deepen 
the discussion of each of the current proposals within the framework of the Working Party, as 
elements of convergence could only be determined through the exchange of comments and ideas. 
Guatemala had made progress in recent years in areas suc h as electronic applications, acceptance 
of copies and processing of applications. These were examples of several issues Guatemala would 
like to discuss in the Working Party . 
2.30.   The representative of Chinese Taipei  recalled that Article VI:4 mandated Members to 
develop any necessary disciplines to ensure that measures relating to licensing and qualification 
requirements and procedures and technical standards did not constitute unnecessary barriers to 
trade in services. He considered domestic regulation to be a  stand -alone agenda, and that it was 
not necessary to link DR with any other negotiating areas. Non -transparent and burdensome 
procedures could discourage domestic and foreign suppliers from seeking access to services 
markets. Non -objective and non -transpa rent criteria might give rise to hidden protectionism. 
Proposals on the table would allow SMEs to save time and money, as they would otherwise have to 
collect market information. The outcome of the negotiations had the potential to address and 
prevent unde sirable regulatory practices. Members who did not have regulatory frameworks in 
place could benefit from the guidelines and the technical assistance encapsulated in future 
disciplines.  
2.31.   The representative of Peru added his delegation 's voice to the statements made by 
Australia, New Zealand, Chile and Chinese Taipei. T o illustrate his delegation 's position on DR, h e 
provided the example of the Peruvian mining sector  which was crucially important  for his country . 
A group of Peruvian mining engineers ha d managed to reach a major milestone in mining services 
provision in Peru, which was an industry that had traditionally relied on foreign capital and foreign 
engineering specialists. Given the globalization of services trade, this group of engineers was ab le 
to make their services available to other countries. For them to be able to obtain licenses and 
compete in foreign markets, it would make a lot of sense if they could work with one single 
authority that accepted electronic applications. This would very much streamline processes for 
services suppliers in this and other sectors. He also noted that Peru would like to see other 
countries ' services suppliers providing their services back home in Peru and provide them with the 
same possibilities. Members ' concerns in relation to undertaking market access commitments were  
understandable, as not all Members had benefitted from the same experience in negotiating these 
commitments and the possibilities they brought with them. The commitments that Peru, as a 
develop ing country, had undertaken in the past had not only benefited Peruvian services 
providers, but also those from other countries, who were protected by Peru's regulatory framework 
and could operate more effectively. The ambition would be for all Members to have the same 
commitments and grant services providers treatment equal to the one they received in Peru. 
Facilities like a single window to streamline the application process had helped services providers 
significantly. She noted, however , that when potent ial suppliers needed to obtain a sanitary or a 
health -related authorization, they understandably needed to contact several authorities.  
2.32.   The representative of Colombia  stated that his delegation was a demandeur  in domestic 
regulation negotiations. Services were crucial for generating employment, especially for SMEs that 
constituted more than 96 % of services companies. The Article VI:4 mandate was fundamental for 
being able to reach markets of other countries without having to face regulatory red tape, hence 
Members needed to come up with disciplines that targeted such obstacles. Colombia was a 
developing country with an emerging regulatory framework and it appreciated having the flexible 
language in the proposals that could cover various regulatory situations . 
2.33.   The representative of the Republic of Korea  supported the statements made by other 
proponents. Developing DR disciplines was critical, as it would strengthen the multilateral trading 
system and make domestic processes more open and transparent which woul d in turn promote 
international trade. Strong multilateral rules benefited all Members, in particular developing 
countries and LDCs. As pointed out earlier, bigger firms could find a way to work around opaque 
and complicated domestic processes, but SMEs mo st of all needed open and transparent rules. 
Regarding development considerations, as the proposals did not reflect a high level of ambition, he S/WPDR/M/71  
 
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  expressed the hope that Members at various levels of development could find the proposals 
acceptable.  
2.34.   The repre sentative of Rwanda  supported the interventions of South Africa and Uganda on 
behalf of the African Group and LDC Group, respectively. He observed that current proposals had 
not enjoyed consensus on their necessity and called for the questions raised by So uth Africa, 
Uganda, Bolivia, Swaziland and others to be answered so that the African Group could engage. In 
the absence of answers, he encouraged proponents to continue negotiations under TiSA and other 
FTAs. He believed that standards and licensing requir ements and procedures developed in other 
markets excluded African SMEs from participating in trade in services, as they were too strict and 
were accompanied by cumbersome visa requirements. In his view, the proposed disciplines were 
intrusive and prone to regulatory capture by major industries. He also held that the proposed 
disciplines in reality went beyond scheduled sectors. Regarding the concept of measures "affecting 
trade in services ", he enquired whether in a situation where a Member had made commitments in 
construction services, the supplier of those services could challenge the host Member, if a 
particular financial regulation by that Member affected the construction business, even though a 
Member in question had made no commitments in financial services. The concept of "affecting 
trade in services " was too broad and could have implications for the entire economy. He stated 
that with the proposed disciplines Members did not need to a dopt any additional rules on e-
commerce, as these were sufficient to cover all e-commerce concerns. He enquired whether a 
Member imposing a data localization requirement or a source code disclosure requirement would 
be told that these regulations were not objective, not least burdensome, not impartial, as they 
favoured domestic industry.  
2.35.   The representative of Singapore  stated that her delegation attached great importance to the 
right to regulate and policy space. Singapore also believed in the positive impa ct these disciplines 
could have on small services suppliers and SMEs by helping them tackle excessive red tape when 
entering new markets. She encouraged Members to engage constructively and in good faith. She 
asked the Members who had concerns about the ri ght to regulate and the erosion of policy space 
to elaborate on their concerns. Regarding Members ' bringing the FTA experience into the WTO, she 
remarked that what Singapore was doing in ASEAN and in the WTO was mutually reinforcing 
rather than mutually ex clusive.  
2.36.   The representative of Egypt  associated himself with the concerns on process and substance 
that had been expressed by other developing Members, in particular the African Group and the 
LDC Group. Like the se Members, Egypt was concerned about the imp act of the disciplines on 
legitimate national regulatory concerns. It was important not only to recognize the right to 
regulate, but to guarantee it in the event of a dispute. The proponents had a responsibility to help 
other Members better assess the prop osals and address the challenges for three main reasons: 
first, there was a lack of common understanding, and hence it was important to provide answers 
to those Members who posed questions; second, there were several competing proposals on the 
table at the  same time; and third, there was no clear roadmap and no consolidated and 
comprehensive text on DR disciplines as to date.  
2.37.   The representative of Norway  expressed her delegation 's general support for the discussions 
and the true effort to achieve an outcome  in the form of agreed disciplines. Norway was co -
sponsoring proposals that it saw as balanced, realistic and meaningful without being overly 
ambitious. Disciplines developed on that basis would make for useful developments to the WTO 
rule book. It was imp ortant for Members to understand what they could achieve after many years 
of hard work, bearing in mind the varying challenges, ambitions and concerns of Members. For 
Norway, predictability and transparency were key factors in facilitating trade in service s, and 
constituted crucial value added provided by disciplines on domestic regulation to all services 
suppliers, in particular to the SMEs from all WTO Members - whether they were active at their own 
local or national markets or were aiming at services mar kets abroad.  
2.38.   The representative of Argentina  stated that his delegation considered the proposals 
generally positively, even though it had only co -sponsored the proposal on gender equality. The 
right to regulate was of utmost importance, as expressed in th e GATS. The proponents had used 
rather flexible and general language in their proposals. They had also  incorporated relevant 
concerns , so that the membership could continue looking into these topics. He highlighted that the 
WTO needed multilateral rules wi th a certain level of harmonization that would favour  SMEs who 
had the least number of resources of all businesses.  S/WPDR/M/71  
 
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  2.39.   The representative of Paraguay  stated that while his delegation was not a demandeur  on 
domestic regulation disciplines, he saw a need for mu ltilateral rules that would help create a more 
predictable and stable business environment, especially for developing countries and their SMEs. 
He considered that the proposals were in line with the mandate established in Article VI:4 of the 
GATS, which di d not mean Paraguay agreed with the content of all of them. Some proposals were 
difficult to implement, especially in the short term, and many developing countries did not have 
the capacity to meet the proposed requirements. Members needed to work on speci al and 
differential treatment that contributed to building capacity in smaller economies. Countries could 
not be asked to agree on commitments if they could not be confident that they could meet those 
commitments.  
2.40.   The representative of Pakistan  generally s upported the statements made by Chile and 
Mexico, noting that a robust domestic regulation regime was beneficial for all Members and did not 
inhibit the right to regulate.  
2.41.   The representative of Switzerland , as a demandeur  in domestic regulation , understood the 
concerns raised by some Members and confirmed that the proposed disciplines were not 
constructed to affect the right to regulate, which was also of great importance to Switzerland. 
Proposed disciplines only applied to specific commitments a nd were limited to licensing and 
qualification requirements and procedures and technical standards. The disciplines only envisaged 
the way measures were regulated , but the determination whether the measure was needed 
remained under the authority of each go vernment.  
2.42.   The representative of Uruguay  joined the delegations that highlighted the importance of the 
right to regulate, particular for smaller economies. It was very important to engage in a 
substantive debate on the proposals to better appreciate Members ' sensitivities and to be able to 
develop disciplines on domestic regulation that were of benefit to all.  
2.43.   The representative of the Dominican Republic  stated that services represented 70 % of the 
country 's GDP and generated about 80 % of employment. The Dom inican Republic had been 
developing legislation promoting the development of the services sector and had made significant 
progress in transparency and electronic governance, thereby already complying with many of the 
proposed disciplines. Nonetheless, he b elieved that concerns raised by various Members should be 
responded to with due clarity, so that Members could reach a satisfactory consensus on the topic.  
2.44.   The representative of the Kingdom of Saudi Arabia  regarded the proposals as a very 
encouraging step, as Members had not had such substantive discussions in a long time. She 
expressed her delegation 's strong interest and remarked that development objectives needed to 
be pursued through good regulation. Sh e expressed hope that hard work in WPDR could lead to a 
services outcome in MC11.  
2.45.   The representative of Turkey  echoed the intervention of Argentina and underlined the need 
for multilateral rules in the area of domestic regulation. She stressed that DR disc iplines would 
also help domestic suppliers and SMEs who did not have the necessary resources.  
2.46.   The representative of Costa Rica  joined previous speakers who had expressed a need for DR 
disciplines, and expressed his delegation 's interest in complying with t he Article VI:4 mandate. 
Costa Rica was not a co -sponsor, but nevertheless supported the discussion and believed that 
multilateral rules in this field would favour  suppliers in developing countries, particularly SMEs. The 
proposals fell under the mandate of Article VI:4 of the GATS, recognized the right to regulate and 
contained language that was flexible enough to adapt to the different legal regimes that existed 
under the roof of the WTO. Moreover, the proposals applied only to committed sectors and only in 
relation to certain aspects of trade in services. In the context of greater interdependence between 
economies, these disciplines had the potential to contribute  to both exporters and importers of 
both goods and services.  
2.47.   The representative of Ukraine  added her delegation 's voice of support to the proposals on 
"Administration of measures " (JOB/SERV/239/REV.2), "Development of measures " 
(JOB/SERV/250/REV.1) and "Transparency " (JOB/SERV/251/Rev.2).  
2.48.   The Chairperson  invited the delegations to take note  of the statements made.  S/WPDR/M/71  
 
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  2.49.   It was so agreed . 
2.1  Technical Standards  
2.50.   The Chairperson  noted that the communication on "Technical Standards " by Australia; 
Colombia; Hong Kong, Ch ina; Japan; Republic of Korea; New Zealand and the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu (JOB/SERV/257) had originally been submitted on 
8 May  2017. The delegations of Chile, Mexico and Norway had joined the list of co -sponsors of the 
proposal that was now re -issued as JOB/SERV/257/Rev.2 on 14 June 2017. The Chairperson gave 
the floor to the representative of Australia to introduce the communication.  
2.51.   The representative of Australia  reminded delegations that this proposal followed th e 
exchange of information and experience s on technical standards held during the last services week 
in March 2017 when Members had heard from a number of representatives from the International 
Organization for Standardization (ISO), national standards bodi es and other WTO Members about 
the increasing demand for services standards and standards ' implications for trade in services. 
Many services standards organizations and Members had explai ned that they used the same 
processes for developing standards for services as they did for goods, and, like in goods, there was 
value in having disciplines that ensured that the process for developing or adopting standards for 
services was open and transparent. She acknowledged that services standards were a relatively 
new area for many Members and there was some hesitancy about negotiating any disciplines 
relating to the content or substance of services standards. Australia had therefore focused the 
proposal on the process for developing technical standards. The proposal  recognized that for many 
Members, technical standards were developed by non -government organizations or other 
competent authorities. The proposal encouraged Members ' relevant bodies involved in the 
development of standards to use open and transparent proc esses, or if they were adopting 
standards developed by other bodies, to choose standards that had been developed using such 
open and transparent processes. As set out in the introductory paragraphs, the proposal should 
not be read in isolation, and was int ended to complement the proposals on administration of 
measures, development of measures and transparency, and had the same scope as in the general 
provisions paragraph x.x of JOB/SERV/239. Accordingly, the proposed discipline would apply to 
Members ' sched uled commitments, and not to scheduled limitations. In terms of coverage of 
technical standards, co -sponsors had considered that the disciplines in the other proposals on 
should also apply to technical standards, as relevant. For example, where a Member ad opted or 
maintained technical standards which included requirements for a service supplier to undertake an 
examination in order to provide a service, then that examination should be held at reasonably 
frequent intervals, as set out in the "Administration o f Measures " proposal. Where authorization for 
the supply of a service was based on compliance with a technical standard, information about that 
standard should be made publicly available in accordance with the proposed transparency 
disciplines. If a Member  did not have technical standards for services, the disciplines would not 
apply. Notably the proponents had not included a provision encouraging Members to adopt 
international standards wherever those were available. The proponents took note of sensitiviti es 
raised by some Members about the use of international standards in previous WPDR discussions. 
She noted that the area of technical standards was evolving rapidly and that many Members were 
reconsidering their positions. Given the current international f ocus on services standardization, 
some Members were encouraging the development of technical standards as an alternative to 
licensing or qualification requirements to facilitate trade in services. She enquired whether  
Members would be interest ed in includi ng a provision on the use of international standards in the 
proposal.  
2.52.   The representative of New Zealand  considered technical standards to be an essential part of 
the GATS Article VI:4 mandate.  After the Australian -sponsored seminar on the sidelines  of the 
March cluster, Members had realized that technical standards could have a real impact on the 
ability to supply a service, and that there was increasing standard making in the services sector. 
For services just as for goods, standards could be useful in ter ms of building consumer confidence, 
regulatory compliance, market opening and reduction of market inefficiencies. She mentioned that 
Members wanted to see some disciplines on how standards were developed so that they could reap 
the benefits mentioned and e nsure that the standard setting activity actually facilitated rather than 
hindered trade. The essence of the proposal was about openness and transparency, which were 
fundamental principles for any regulatory activity. The proposal responded to some of the 
concerns previously raised in two specific regards: the level of ambition of disciplines was framed 
in terms of encouragement, and the focus was on the process, not the substance of technical S/WPDR/M/71  
 
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  standards. She also expressed the view that technical standards should be streamlined into the 
scope of other disciplines on development, administration of measures and transparency, and that 
it could be useful to look into international standards for guidance.  
2.53.   The representative of the Plurinational State of Bolivia  requested a clarification on what 
proponents understood by "open and transparent processes " and what their own experience was  in 
this regard: whether involvement of the public through internet, public hearings, public enquiries 
or online comments could be c onsidered "open and transparent processes ". He asked about who 
exactly could voice opinions, taking into account the proliferation of the digital economy and multi -
stakeholder participation in services trade and regulation. He provided an example where Bol ivian 
authorities had received comments regarding one simple issue concerning a provider of eyewear, 
each between thirty and fifty pages long. Considering all those comments could be domestically 
quite cumbersome. He also enquired as to how proponents hand led the online or public enquiry 
processes in relation to the very important issue of visas and movement of persons.  
2.54.   The representative of the Republic of Korea  stated that the area of technical standards was 
relatively less explored than licensing and qua lification, but noted that standards were becoming 
increasingly prominent in the digital environment. The Australian proposal reflected the complex 
reality in a balanced way.  
2.55.   The representative of Turkey  informed the membership that Turkey already complied  with 
the proposed disciplines on technical standards and would like to see them in a package together 
with rules on administration of measures, development of measures and transparency.  
2.56.   The representative of Kenya , following up on the question raised by B olivia, asked the 
proponents to describe what an "open and transparent " process was, as Members needed a 
common understanding, and asked to share their experiences. Secondly, he enquired how a 
competent authority could determine that a standard it intended  to adopt had been developed 
through an open and transparent process.  
2.57.   The representative of Egypt  recognized that the proposal contained best endeavour  
language on elements related to transparency in adopting and developing technical standards. 
However, wh en it came to standards, domestic laws and regulations themselves kept changing 
depending on technology and market structure, level of income, and even geography and 
population density. It was worth mentioning that whether or not the sector was regulated, there 
were difficulties in regulatory harmonization and therefore flexibility even in transparency 
disciplines was needed. As the proposal targeted anybody designated to develop technical 
standards, he requested further clarification from the proponents as  to the implications of the 
proposal on financial services -related standards.  
2.58.   The representative of Canada  acknowledged concerns many Members had regarding the 
scope of the proposal. Canada concurred with those Members who had stated that any disciplines 
on DR should be clear in scope. It should also be clear to Members what they needed to do to 
comply with these disciplines. For these reasons, Canada continued to have doubts regarding the 
inclusion of technical standards in the scope of DR disciplines. He sought clarification as to what 
types of measures proponents were seeking to address under technical standards, and which 
relevant technical standards were not already covered under licensing or qualification 
requirements. He enquired whether the proponent s could identify circumstances where they had 
experienced a trade barrier that was a technical standard and qualified as a measure, as defined 
by the GATS.  
2.59.   The representative of Norway  stated that proposed disciplines on technical standards were 
about ensuring application of the principle of transparency in the processes leading up to the 
adoption of new technical standards to the benefit of all services suppliers; this  was an element 
that added to the predictability of services trade affected by technical standards. The proposal was 
more of a reference to the principle of transparency than a detailed recipe, and left a certain 
flexibility in the application of the provision.  
2.60.   The repres entative of Colombia  confirmed that being a developing country interested in 
strengthening its economic internationalization process through a better positioning in global value 
chains, it considered that these discussions had a great positive effect on it s commercial interests. S/WPDR/M/71  
 
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  Colombia was convinced of the importance of continuing the discussions that would lead to the 
fulfilment of the mandate of Article VI:4 of the GATS. The discussions that had taken place since 
the creation of the GATS, and in particu lar the exchange of information and experiences that were 
shared in the seminar on 13 March 2017  had highlighted the need to include a specific section on 
technical standards in the disciplines. Colombia had co -sponsored the proposal, as it saw great 
merit  in the treatment of this complex issue. The representative of Colombia believed that the 
proposal succeeded in encouraging the creation of these standards using open and transparent 
processes, but differentiating the approach according to the capacity of various governments to 
interfere in the process of adoption or elaboration of technical standards.  
2.61.   The representative of China  noted the confirmation provided by Australia that the proposal 
only applied to sectors where specific commitments had been schedu led. She enquired why the 
proponents had included the expression "when adopting technical standards " in the proposed text. 
Furthermore, she echoed the question of Canada as to what proponents thought about the 
concrete coverage of technical standards in th e specific context of the GATS. Since services 
standards often covered several sectors and included complicated content, she suggested adding a 
reference to special and differential treatment for more flexibility for developing countries.  
2.62.   The representativ e of the European Union  welcomed the proposal as a positive step in the 
process towards MC11. The proposal touched upon an area of domestic regulation that had 
triggered long and difficult discussions in the past. His delegation appreciated the balanced na ture 
of the proposal. The text mainly focused on the transparency aspect of technical standards which 
was the right level of ambition in the multilateral context.  
2.63.   The representative of Peru noted that in the Peruvian model of trade agreements provisions 
on technical standards were normally included in FTA texts. Even though Peru had not co -
sponsored the proposal, Peru nevertheless supported this type of proposal. This provision was a 
good example of demonstrating that abiding by the disciplines did not infr inge on the ability to 
regulate services. She expressed hope that other Members would commit to regulating technical 
standards in a transparent manner. She specifically mentioned that Peru had a body responsible 
for standards that issued some very specific  standards for, inter alia,  passenger transport. The 
responsible body published the applicable standards online, as well as their drafts. Discussions on 
draft standards took place also with services suppliers. She said that Peru already complied with 
the p roposed provision on technical standards and was happy to support this type of provision as 
part of a final agreement.  
2.64.   The representative of Chinese Taipei  attached great importance to the issue of technical 
standards. Ensuring compliance with the propose d discipline would have enormous benefits for 
services suppliers. In the current global trading environment where policy makers and trade 
negotiators were struggling to find an effective way to deal with quantitative and discriminatory 
barriers that restri cted the supply of services, standards could help facilitate open markets and 
improve transparency. Standards also ensured consumer protection. The proposal contained 
sufficient flexibilities and could accommodate various regulatory systems. He encouraged Members 
to work on this proposal as part of a package with a view to reaching an outcome by MC11.  
2.65.   The representative of Mexico  believed that it was very important to have a provision related 
to technical standards that was applicable to services. The propo sal was sufficiently flexible  to 
accommodate  any regulatory system  of Members . In Mexico 's case this flexibility was not 
necessary, as the domestic system was very transparent. When standards were developed at the 
beginning of the year, the program was bei ng published with all the standards that were going to 
be discussed that year. The regulator received comments and was oblig ed to respond to each of 
them. Comments were received not only from immediate stakeholders but also from foreign 
governments.  
2.66.   The re presentative of Chile thought the proposal on technical standards was very relevant 
as part of international regulation, especially as technical standards were specifically referred to in 
the GATS Article VI:4  mandate. He echoed the statements made by New Zealand, Australia and 
other supporters and highlighted the flexibilities of the proposal. The proposal only applied to 
scheduled subsectors and covered only the development of technical standards. In the Chilean 
system the competent institution for techni cal standards was the National Institute for 
Harmonization  which sought to adopt international standards. National laws required that 
international standards were adapted to national needs, and this was done through a well -S/WPDR/M/71  
 
- 15 - 
 
  established transparent process t hat was open to any interested parties, including the private 
sector, allowing  service providers to participate in those technical discussions. There were also 
public consultations for a period of 60 days, allowing anyone who was interested to participate.  
2.67.   The representative of Cuba requested a detailed description of the problems that 
proponents ' services suppliers were facing and that had prompted them to introduce this proposal. 
She did not believe that activities like workshops had sufficient merit to j ustify the introduction of 
specific disciplines on technical standards without any grounds to demonstrate the need for these 
disciplines. Regarding the text itself, it was not clear what reasons would justify the broad wording 
that had been chosen. She con sidered the proposal to be intrusive into how countries developed 
their domestic regulations. It was not clear how the judgment of non -transparency of any 
processes would be made. She believed that there was no consensual terminology on technical 
standards . It would be useful to have some clarity on the elements that in the opinion of the 
proponents formed part of this definition , so as to shed greater light on the specific scope of this 
type of measure.  
2.68.   The representative of Hong Kong, China  stressed that technical standards were clearly 
mentioned in Article VI:4 of GATS as one of the areas where Members shall formulate disciplines. 
As demonstrated by the seminar on technical standards organized by Australia, technical 
standards were getting increasingly co mmon in the area of services. Technical standards in 
services could be complex, and thus, being a co -sponsor, the representative of Hong Kong, China 
expressed support for the proposal that promoted openness and transparency.  
2.69.   The representative of Zimbabwe  requested clarification on the relationship between the 
technical standards proposal and the transparency proposal, as well as the relationship between 
the technical standards proposal and GATS Article III. She asked the proponents what value 
addition ther e was to harness from this proposal.  
2.70.   The representative of Swaziland  expressed the view that developing countries were always 
on the receiving end of all agendas and their industries relied on developed countries ' standards.  
In his view, it was well known that developing countries had poorer regulatory systems and less 
capacity to participate  in standard setting activity. They would continue to accept standards 
adopted by developed countries. He held that technical standards would push developing countries 
into obscurity and worsen their economic  situation. The agenda was being pursued at the expense 
of developing economies . and d eveloping countries ' concerns were not given the necessary 
attention and even dismissed as irrelevant. He underlined the importanc e of the right to regulate 
to meet societal expectations. He supported the point made by Egypt that the right to regulate 
should be guaranteed.  
2.71.   The representative of Peru stated that the proposal would not stand in the way of growth of 
national industry. In Peru's experience , allowing the national private sector to participate in open 
and transparent processes in the development of standards had resulted in standards that were 
better suited to their needs.  
2.72.   The representative of Australia  reiterated the ris ing importance of technical standards and 
remarked that Members were increasingly developing and adopting technical standards with some 
standards being used instead of qualification and licensing requirements in sectors like tourism and 
hospitality, as wel l as in other business services. In the ICT sector technical standards had already 
been playing a big role for a long time. Not applying DR disciplines to technical standards would 
leave a gap that would only increase over time, as the use of standards as a regulatory tool would 
increase. In her view, developing countries should be particularly concerned, due to their limited 
capacity to develop their own technical standards. In response to the question on the meaning of 
"open and transparent processes " and requests for proponents to share their domestic 
experiences, she referred to the March seminar where Members had heard from several 
international standard -setting o rganizations, like the ISO, as well as from representatives of 
various national standar d-setting bodies. She expressed her delegation 's readiness to organize 
similar activities in the future. In response to questions from Bolivia and Zimbabwe on the value -
added of the proposal and the link with the proposed transparency disciplines, she expl ained that 
GATS transparency obligations focused on the measures themselves, whereas the proposed 
disciplines focused on the process of developing a standard. Making sure that the process was 
open and transparent was the value -added of the proposal. In res ponse to the question by China, 
she responded that by using the expression "where Members adopt standards ", the proponents S/WPDR/M/71  
 
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  had tried to capture two different cases: first, a situation where national bodies developed their 
own technical standards, and secon dly, where Members adopted regional standards or standards 
adopted by the ISO. In the latter situation, the proposal encouraged Members when adopting 
others ' standards and deciding which ones to adopt, to use standards that had been developed 
through open and transparent processes. In relation to Egypt 's question on financial services, she 
recalled presenta tions made in the Committee on T rade in Financial Services by various financial 
services standard -setting bodies and one of the common themes that had ru n through all 
processes was the open and transparent consultation process. She underscored that the proposal 
did not regulate the substance of the standards, but only the process, which was an area where 
proponents had heard a lot of commonality in views. Regarding China 's question on the inclusion 
of a special and differential treatment provision, she noted that the proposal was of interest to all 
Members and not just developed countries. The proposal contained a best endeavour  provision, 
hence the co -sponsors had not added additional flexibility. Proponents were happy to consider any 
alternatives that Members might find useful.  
2.73.   The representative of South Africa  enquired whether in order to have answers to her 
delegations ' questions she had to have a bilat eral with the delegation of Australia or whether those 
concerns could be addressed in the WPDR.  
2.74.   The representative of Australia  stated that bilateral meetings allowed going into more 
details regarding specific concerns of individual Members. She remarked that she did her best to 
address all issues that had been raised and remained willing to address any outstanding issues. 
Her delegation also remained available for meetings with Members individually or in groups.  
2.75.   The representative of Kenya  expressed his c oncern that the proponents had not 
demonstrated how the absence of disciplines on technical standards negatively impacted trade. He 
sought more clarity in proponents ' responses and noted that addressing concerns only through 
special and differential treatm ent would be insufficient. The fact that the proposal would apply 
exclusively to committed sectors was likewise considered insufficient and did not mean that co -
sponsors could avoid responding to concerns raised.  
2.76.   The Chairperson  invited the delegations to take note  of the statements made.  
2.77.   It was so agreed . 
2.2  Development of Measures – Gender Equality  
2.78.   The Chairperson  noted that a communication on gender equality had been received from the 
delegations of Argentina, Canada, Chile, Colombia, Iceland and Uruguay, ( JOB/SERV/258/Rev.1) 
on 14 June 2017, and invited the representative of Canada to present the  submission.  
2.79.   The representative of Canada  stated that the proposal on gender equality was drafted as a 
stand -alone provision, so that it c ould be considered independently from other proposals on the 
table.  The proposed provision require d that licensing and qualification requirements and 
procedures d id not discriminate on the basis of gender. The proponents had included a footnote to 
carve out tw o types of measures: the first were reasonable and bona fide measures. To illustrate 
the meaning of reasonable and bona fide in this context, he explained that the Ontario Human 
Rights Code allow ed certain institutions or organizations to employ people of one sex if the 
organization serve d mostly the interests of persons of that particular sex. This exception was only 
permitted if the requirement of being a man or a woman was reasonable and bona fide because of 
the nature of the job. For example, under the Code, a women 's shelter serving female victims of 
violence was allowed to hire only women.  The second set of measures that were excluded from the 
provision were measures related to positive discrimination, sometimes referred to as special 
temporary measure s or affirmative action.  Providing  background on the motivation and context for 
the proposal , he noted that the economic empowerment of women was a shared objective of WTO 
Members, which was reflected in the fifth Sustainable Development Goal (SDG). The "UN 
Convention on the Elimination of all Forms of Discrimination Against Women " had been adopted 
in 1979, but barriers to female participation in the economy persist ed around the world.  The World 
Bank's 2016 report on "Women, Business and the Law " had found that 155 out of 173 economies 
studied maintained at least one barrier for women which did not exist for men.  Gender equality 
was a trade issue . The proposal fit ted squarely within the mandate of GATS Article VI:4. Licensing S/WPDR/M/71  
 
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  and qualification requirements a nd procedures that discriminate d on the basis of gender were 
clearly trade barriers for the service providers who face d the discrimination.  Gender equality was 
also a  development issue . Research by the World Bank, the IMF and others ha d shown that legal 
gender differences significantly decrease d female labour  force participation and undermine d GDP 
growth.  Canada ha d just launched a feminist international assistance policy, believing that 
advancing gender equality and promoting equal righ ts for women and girls was the most effective 
way to reduce poverty.  This vision was the key to growth that benefit ted everyone, and w ould also 
help achieve the Sustainable Development Goals.  
2.80.   The representative of Chile highlighted the contribution of fema le entrepreneurs  to spur 
trade and economic development. Chile had a presidential mandate to place inclusive participation 
at the very centre of the country 's social policy . The M inistry of Trade was working hard to 
empower  and support  women  by supporting female -led SMEs, training, export assistance an d 
various other activities. Chile had been including gender equality chapters in its FTAs, inter alia  in 
agreements with Canada and Uruguay. Chile was currently negotiating a bilateral agreement with 
Argentina  that would also include a gender equality chapter . Arriving at results on the issue of 
gender equality was a sound opportunity to show that Chile was  highly committed  to the cause of 
gender equality and inclusive international trade.  
2.81.   The representative of the European Union  welcomed the proposal. The EU saw the issue of 
gender equality as an important element and a positive contribution to a modern trade agenda. 
The EU  was in the last stages of internal consultations and was giving pos itive consideration to the 
proposal.  
2.82.   The representative of Peru viewed the proposal positively  and welcomed the reference to 
sustainable development in Canada 's statement.  
2.83.   The representative of Colombia  fully endorsed the statement made by Canada. Colombia  
considered that the text had the right focus, a clear scope of application and sufficient flexibility to 
include measures in favour of vulnerable population groups. The proposal met the dual objective of 
preventing a real problem with trade issues and pro moting fair and equitable trade, thus fulfilling 
the fifth goal of sustainable development of the United Nations.  
2.84.   The representative of South Africa  made a statement on behalf of the African Group. She 
questioned the relevance of gender in DR disciplines a nd trade agreements , as well as the 
economic rationale for this proposal  and the place of gender in trade policy.  
2.85.   The representative of New Zealand  thanked Canada for the proposal which introduce d new 
elements that went beyond the traditional discussion  Members had  been having on Art VI :4 issues  
and show ed the merits of the reinvigorated discussions. She  asked the representative of Canada 
for other examples of "reasonable and bona fide ", as stated in the footnote.  
2.86.   The representative of Uruguay  acknowledged the importance of the gender equality issue in 
trade negotiations and stated that the disciplines were consistent with Uruguay 's national policy.  
2.87.   The representative of Egypt  thank ed Canada and the co -sponsors of the proposal for the 
submission  and noted that the proposal reflect ed one of the new emerging areas in trade generally 
and trade in services  in particular . The Government of Egypt was working on reducing gender gaps 
across a wide range of sectors and activities, including removing const raints to women 's economic 
participation.  There were ongoing cooperation programs with key international  development 
agencies from partner countries and the Egyptian private sector. Empowering women and 
integrating them as active participants in the econom y was essential to promoting economic 
growth in Egypt. However, in his  view it was still too early to engage within the WTO on gender. 
As the issue  had not yet been envisaged before within the WPDR, he asked the proponents to 
provide responses to several q uestions. First, he requested the proponents to provide an overview 
of the evidence on gender and services liberalization, and domestic regulation . Second, he asked 
the proponents to i dentif y key obstacles that reduce d the participation of women entreprene urs, 
women producers and women -led firms in dealing with measures related to licensing and 
qualification requirements and procedures.  Finally, he enquired if the proponents could provide 
examples of t he global, regional and bilateral best practices in prom oting the participation of 
women entrepreneurs in areas related to domestic regulation, taking into consideration the socio -S/WPDR/M/71  
 
- 18 - 
 
  economic differences, diversity in welfare regimes and level of development across countries. In 
addition to the above, he raised co ncerns based on the review of statistics and gender -related 
indicators. There was not  enough data to examine gender effects in every single services sector. 
Statistically, gender analysis mean t looking not just at numbers for women but also for men, and 
comparing them alongside each other. A comprehensive analysis of the gender effects of trade 
should not be limited to employment effects, but should also investigate consumption effects and 
public provision effects to the extent possible. These aspects had not been explored at all in the 
current regional or bilateral agreement s. Before entering into multilateral negotiations, there was a 
strong need to undertake more in -depth and comprehensive research on the gender effects likely 
to result from changes in services provision, quality and equity in access.  
2.88.   The representative of Chinese Taipei  stated that his government had recognized the 
importance of gender equality and in 2002 enacted a total of 40 measures  to promote gender 
equality and the right to wor k, fulfilling a constitutional mandate to eliminate gender 
discrimination. Gender equality was not only a fundamental human right, but also a foundation for 
a peaceful, prosperous and sustainable world. Accordin g to the UN Gender Equality Report, female 
empowerment was essential for economic growth and social development. Providing women and 
girls with equal access to education, healthcare, work and representation in political and economic 
decision -making processes would benefit the society at large. WTO Me mbers should adopt policies 
that promote inclusive trade and address domestic barriers to female participation in services. The 
issue must be addressed in trade agreements . 
2.89.   The representative of Rwanda  stated that gender equality was a cross -cutting issue in 
national policies. Sixty -four per cent  of Rwanda 's parliament legislators were female. A high level 
representation of women existed in both the public and private sector. His delegation would have 
supported the proposal on gender equality, but did not w ish to legitimize other proposals on the 
table that Rwanda did not consider appropriate.  
2.90.   The representative of the Philippines  supported the proposal generally and confirmed its 
alignment with her delegation 's national policy . She request ed further examples of bona fide 
circumstances and affirmative action policies.  
2.91.   The representative of Singapore  considered the proposal interesting and valuable for 
advancing gender equality. He noted that the proposal was still being considered in the capita l and 
indicated that  preliminary reactions had been  very positive.  
2.92.   The representative of Kazakhstan  supported Canada 's initiative on gender equality and 
policies stimulating female employment and empowerment. She informed the membership that 
last year Kazakhstan  had adopted a concept for gender policy until 2030, as well as an action plan 
to move towards enhancing women 's economic and employment potential . Non -discriminatory 
gender equality disciplines should be applied throughout  the economy  and should not  be limited to 
licensing and qualification requirements and procedures.  She suggested considering this proposal 
in WTO bodies facilitating SMEs trade where reaching an  outcome would be the most feasible.  
2.93.   The representative of China  requested clarification on the scope of application of the 
proposal, namely whether the proposal was intended to apply only to sectors where Members had 
schedule d specific commitments.  
2.94.   The representative of Paraguay  stated the need to align any potential disciplines with 
government policy on gender equality and said that as a stand -alone proposal, this proposal would 
be successful.  
2.95.   The representative of Brazil  confirmed that Brazil would support an outcome on gender 
equality  if the WPDR could make a contribution to this positive cause .  
2.96.   The representative of Turkey  agreed with the objective of the proposal , noting that the 
proposal was in line with Turkey 's constitutional provisio ns. She thanked Canada for the clear 
wording of the footnote.  
2.97.   The representative of Hong Kong, China  emphasized his delegation 's support  for gender 
equality, which was manifested in different aspects of Hong Kong, China 's laws, regulations and S/WPDR/M/71  
 
- 19 - 
 
  administrative practices.  His delegation was consid ering whether a trade agreement was the right 
tool to promote gender equality.  
2.98.   The representative of Argentina  expressed his delegation 's positive appraisal of the different 
proposals on domestic regulation, which reflected issues of interest to Argentina, such as the 
inclusion of specific references to the domestic legal system and flexibilities in implementation. 
However, Argentina had not co -sponsored any of the proposals, with the exception of the one on 
gender equality. This co -sponsorship wa s the natural result of the Argentinian policy on gender in 
all international domains. Argentina 's proactive policy on gender was universal. He noted that the 
Argentinian Ministry of Foreign Relations had a special "Women 's Department ". 
2.99.   The representative of Cameroon  questioned the need for standards on gender equality. 
Cameroon was one of the few countries that guaranteed equ al treatment and opportunities.  
Gender was not limited to sex.  He stressed that equality should be spoken about mo re broadly, in 
terms of the whole population. In Cameroon equality of treatment and opportunities was 
guaranteed to all  and no law could be passed if it was limited only to representatives of one 
biological sex.  
2.100.   The representative of Cuba stated that gende r equality had been  a fundamental part of the 
Cuban revolution  and a key element of the country 's socio-economic development.  She stressed 
that even though  nobody  could question  the validity of the term per se , it was not clear how this 
term was compatible  with the Marrakesh Agreement mandate which ma de specific reference to 
trade  relations between Members. GATS Article VI:4 d id not refer to gender , and the topic was 
debated in other UN fora , such as the Human Rights Council (UNHRC). Due to the complexity of 
the subject , she noted the  need for a multidisciplinary debate , as other vulnerable groups  would 
be discriminated if the discussion was focused only on gender.  
2.101.   The representative of Australia  acknowledged that gender equality was a novel concept  in 
WPDR  and enquired  why the proposed discipline d id not apply to technical standards . 
2.102.   The representative of  Uganda  informed the Working Party that Uganda was providing 
affirmative action to protect gender equality at all levels of government. Women in Uganda 
received support in obtaining university scholarships. He saw the proposal of Canada as part of a 
WTO-wide narrative to introduce elements that were better suited to be addressed in other bodies 
and organizations. The United Nations which had passed relevant resolutions was better placed to 
address gender issues . Looking at the holistic picture of the proposal, he enquired whether the 
footnote defeated the purpose of the "Development of Measures " proposal. Regarding reasonable 
and bona fide circumstances of di scrimination, he asked whether the intention of Canada had been 
to allow institutions, like female sports teams, female shelters, or female prisons to hire only 
women and whether affirmative action policies aimed at disadvantaged persons would demand 
corpo rations to hire a certain percentage of women as a condition for getting a licence. He also 
noted that Canada had not explained their definition of gender. In his understanding, male and 
female were not the only two possibilities for qualifying gender and he foresaw challenges for a 
WTO tribunal to interpret the bona fide discrimination and affirmative action policies contained in 
the footnote.  
2.103.   The representative of Norway  welcome d the proposal  which was relevant and had a clearly 
defined scope.  The proposal constitute d a new element in trade negotiations. He confirmed that 
his delegation had always been a strong advocate of gender equality , and approach ed the ongoing 
internal consultations process on the proposal in a positive manner.  Norway was  considering the 
various aspects and implications of the proposal, including how it m ight affect the interplay at 
international law level between trade agreements and other international conventions.  
2.104.   The representative of Benin  acknowledged the positive objecti ve of  the proposal , but  
expressed doubts as to whether Article VI:4 ha d the legal scope to accommodate the issue . He 
acknowledged that the aim of the proposal was to ensure inclusive trade by fighting discrimination, 
but enquired if Canada consider ed gende r to be of biological or social nature . In his view  gender 
was not just about  biological sex, but also had a social  dimension . He urged Members to consider 
as well other disadvantaged groups of the population, such as the elderly or the disabled, including  
the mentally disabled . Gender was a cross -cutting issue  and he suggested discussing this proposal 
in the UNHRC. S/WPDR/M/71  
 
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  2.105.   The representative of Malaysia  acknowledged the importance of gender equality. She 
sought clarity  on the examples  of bona fide discrimination, as set out  in the footnote. She 
mentioned that in recent years Malaysia had made significant progress on gender equality:  
in 2015, the women 's participation in the work force had grown  to 54%  from only 46% in 2010.  
2.106.   The representative of Thailand  requested a clarification on the rationale  of the proposal , as 
well as  on the footnote concerning  bona fide discrimination. In her delegation 's opinion,  it was not 
useful to impose gender requirements  on certain services sectors, e.g. the owner of a resta urant 
might wish to have only female waiters but some others would prefer to only hire men : hence it 
would be difficult to limit the flexibility of services providers in their hiring decisions. Another 
example she made was airlines, some of which only hire d women as flight attendants while others  
hired both men and women.  She asked whether the above cases would qualify as cases of bona 
fide discrimination, and if not, whether the proposal would affect the current situation in various 
services sectors.  
2.107.   The r epresentative of Canada  responded to some of the questions raised during the 
discussion . Regarding the question from South Africa on what the relevance  of the  proposed  
discipline was, he replied that  GATS A rticle VI:4  mandate d Members  to negotiate discipli nes, and if 
measures  in question  discriminate d against half of the population, they would not  satisfy the 
conditions  of Article VI:4 . Regarding the economic rational e of the disciplines, he pointed out that 
lowering gender gaps in labour force participation  and eliminating barriers  could increase 
productivity by as much as 25 %. He acknowledged that gender equality was a new concept for all, 
but that it belong ed in trade agreement s just  like any other discipline addressing a barrier to 
trade. He stressed the importance of pursuing inclusive trade policy . On the question posed by 
New Zealand on how big the carve -out provided by the footnote was, he explained that the  
intention was to mirror the language of the Ontario Human Rights  Code. Burden of p roof in this 
case was on the employer. Concerning the question by Thailand , he clarified that the proposed 
discipline  did not bind the private sector, and did therefore not affect staffing choices. Rather, the 
objective was for government measures not to d iscriminate on the basis of gender.  Regarding 
China 's question on the scope , Canada had not specified th e exact scope and was open to 
discussing and using flexible language.  On the question by  Kazakhstan on the feasibility of  
implementation , he noted that the obligation did not seek  positive action , but simply a reg ulatory  
regime that d id not discriminate  which he understood to be already the case in Kazakhstan. 
Regarding Australia 's question on technical standards, he stated that there was no evidence that 
technical standards were not covered by licensing and qualification requirements. Regarding 
Cameroon 's point on the definition of gender, he explained that the proposal did not se ek to define 
gender and that the UN Women website defined  gender equality  as equal rights and opportunities 
of women, men, girls and boys . He agreed that gender was not strictly limited to biological sex . He 
finally remarked that  if a Member 's licensing re gime did not discriminate  between men and 
women , a Member would be in compliance with the disciplines of the proposal.  
2.108.   The representative of Cameroon  expressed his doubts as to whether the proposal should 
be limited only to gender to the exclusion of other  potentially disadvantaged groups. He 
questioned  the rationale for the cross-cutting application  of the proposal and the link  it had  to 
GATS  VI:4. It was important not to go in too many directions in order to have something concrete 
on the table in Buenos Aires. He invited the proponents to clarify to what extent trade 
considerations should determine societal rules and measures that were common in a particular 
society. He considered that these disciplines were not necessary and more clarity needed to be 
obtained before Members could go into more detail . 
2.109.   The representative of Canada  explained why only gender and no other disadvantaged 
groups were considered in this proposal. Canada was open to considering the latter but the reason 
why the focus at th e present  stage was on gender equality was that the issue of gender was a 
priority for Canada 's policy on the empowerment of women . Additionally, there was a lot of 
available research and a massive economic rational e for bringing gender to the agenda. He 
expressed his delegation 's openness to broadening this discussion if that was in the interest of 
other Members.  
2.110.   The Chairperson  invited the delegations to take note  of the statements made.  
2.111.   It was so agreed . S/WPDR/M/71  
 
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  2.3  Development – Least Developed Countries  
2.112.   The Chairperson  asked the representative of Australia to introduce the communication.  The 
communication on "Development (Least -Developed Countries) " had been circulated by the 
delegation of Australia as JOB/SERV/261, on 2 June 2017.  
2.113.   The representati ve of Australia  explained that th e proposal was intended as a starting 
point for discussion of what a development outcome on DR could look like.  It was drafted to 
respond to some of the specific requests of Members to provide certainty about the right to 
regulate and, as previously requested by Uganda on behalf of LDCs, to include paragraph 46 from 
the WPDR Chair text which had been  agreed ad referendum  in both the 2009 and 2011 text s. 
Paragraph 46 had carved -out LDCs but nevertheless encouraged them to apply the disciplines 
where consistent with their development objectives . As suggested by LDCs, Australia had  updated 
the language in the final clause to include a reference to administrative and institutional capacities . 
The proposal was consistent wi th the text of the Marrakesh Agreement and in line with 
similar  language in the Trade Facilitation Agreement.  In addition to the carve -out, she added that 
LDCs ha d offensive interests in domestic regulation both in terms of increasing local services 
capaci ty and reduc ing barriers to entry for LDC services suppliers in other Members ' markets . She 
stated that her delegation was  open to exploring how opt -in disciplines could be supported by 
technical assistance  if there was sufficient interest from LDC Members . She also expressed 
readiness to discuss how to advance LDC requests, such as the suggestion of linking domestic 
regulation disciplines to notified preferences under the LDC Services Waiver, so as to extend 
negotiated outcomes on services domestic regulat ion preferentially to LDCs for those additional 
sectors and modes of supply where Members ha d notified preferences.  She emphasi zed that  this 
proposal was not  a complete development outcome . She welcomed discussions on what, if any, 
flexibilities might be n eeded for developing countries and LDC s and expressed  interest  in the views 
of Members on technical assistance or capacity building to support implementation of domestic 
regulation disciplines.  She expressed  hope that the two paragraphs on the right to reg ulate and 
the LDC carve  out addressed some of the overarching concerns that would  enable further 
discussions on each of the elements of the domestic regulation proposals.  
2.114.   The representative of Uganda  speaking on behalf of the LDC Group, acknowledged that t he 
proposal provide d for a carve -out for LDCs , encourage d LDCs to implement the provisions,  and 
recognize d the right to regulate. Th e proposal went a long way in addressing some of the LDCs' 
concerns . He recalled the statement delivered during the last session of the WPDR, and reiterated 
that the  LDC Group continue d to engage constructively in the discussions with a view to clarifying 
and ensuring a credible outcome that would lead to addressing development concern s of the 
Group 's members  not only presently , but also in the post -graduation phase from LDC status. The 
objective ha d always remained the same, i.e. to increase the participation of LDC suppliers in the 
benefits that services trade br ought  to their economi es, in particular competitiveness, 
diversification of exports, increased employment and reduction of poverty, improving universal 
availability and access to basic services and ensuring sustainable development , including its social 
dimension. It was importa nt to recall that LDCs were  net services importers and ha d an increasing 
trade deficit in commercial services trade. The Istanbul Program of Action informed LDCs ' 
engagement in this Working Party . It was important for Members to bear in mind that the path to 
graduation was clear and was no longer in question. According to the 2016 UNCTAD Report on 
LDCs entitled  "The Path to Graduation and Beyond ", 16 LDCs were projected to graduate 
by 20241. It further project ed that another 32 LDCs w ould graduate by 20252. It therefore mean t 
that in just under eight years, no current Member of the LDC Group within the WTO w ould qualify 
for any special and differential treatment limited to LDC s only. Graduation would lead to loss of 
entitlement and w ould as a result limit po licy space and the flexibility in designing and 
implementing economic policies and strategies for economic diversification and development of 
productive capacities in the post -graduation period . For that reason  it was important and 
necessary to avoid the p itfalls of the later stages of development by establishing the foundations 
needed to maintain solid sustainable development in the post -graduation phase.  It was therefore 
                                                
1 Afghanistan, Angola, Bangladesh, Bhutan, Djibouti, Equatorial Guinea, Kiribati, the Lao People's 
Democratic Republic, Myanmar, Nepal, Sao Tome and Principe, Solomon Islands, Timor -Leste, Tuvalu, Vanuatu 
and Yemen.  
2 Benin, Burkina Faso, Burundi, Cambodia,  the Central African Republic, Chad, the Comoros, the 
Democratic Republic of the Congo, Eritrea, Ethiopia, the Gambia, Guinea, Guinea -Bissau, Haiti, Lesotho, 
Liberia, Madagascar, Malawi, Mali, Mauritania, Mozambique, the Niger, Rwanda, Senegal, Sierra Leon e, 
Somalia, South Sudan, the Sudan, Togo, Uganda, the United Republic of Tanzania, and Zambia.  S/WPDR/M/71  
 
- 22 - 
 
  crucial that WTO M embers respond ed to the concerns raised  by LDCs  during the last ses sion of the 
WPDR. Doing so would help create a negotiating history that Members could rely upon to clarify 
their understanding of the concepts that they had used in these proposals, in the event that 
Members adopted them as outcomes. It would be an abdicat ion of responsibility for LDCs not to 
seek to understand the scope and breadth of obligations that might accrue should they be 
encouraged or obliged to implement the obligations upon graduation. Turning to the issue of the 
right to regulate, he welcomed th e proposed language and asked whether Australia was confident 
that the language would allow LDCs the space to regulate in line with their domestic needs and 
concerns. He enquired what the relationship was between the right to regulate and the disciplines. 
He enquired  whether the right to regulate , as suggested in the text , was absolute in which case 
LDCs would not need an exemption, or whether the right to regulate was  limited  in any way . 
Governments had a duty to regulate and the goals of such regulation m ight not necessarily be 
about furthering trade. Other priorities were also important, such as peoples ' access to services, or 
employment, macroeconomic and security considerations. If for those reasons a regulation w as 
put in place that was not  least burde nsome, or was considered not objective, he asked whether 
Members could be challenged under these disciplines in the DSB and what role the right to 
regulate played in that case. He enquired whether the recognition of the right meant the same as 
holding and exercising that right. He asked whether the intention of Members was that the 
proposed  language would  override all relevant rules and that it was self -judging. If that was the 
case, the language ought to fall under a substantive provision and the word "recognition " should 
be replaced with the words  "shall have ". Finally, he indicated that in their collective request,  LDCs 
had identified problems that continued to make it difficult for their suppliers  to take advantage of 
the preferential treatment notified under the LDC Services Waiver. These issues were set out in 
sections B and C of the collective request.  He urged the proponents to consider including th ose 
elements as part of the development packag e. The barriers in question  were reduction of fees, 
paper work,  onerous procedures and requirements for  visas, work permits and residence permits , 
facilitation or creating a better enabling environment for recognition of LDC institutions and 
degrees  and qua lification s.  
2.115.   The representative of the Plurinational State of Bolivia  stated that his delegation remained 
uncertain about the implications of the proposal. An article that reiterated the right to regulate did 
not clarify Members ' concerns. Bolivia had a d ifficult experience in this area when it had tried to 
implement human rights commitments and unsuccessfully tried to withdraw hospital services from 
its services schedule. WTO jurisprudence did not allow Members to move away from the WTO 
Agreements, hence every proposal needed to be properly evaluated and carefully analysed  to 
avoid disputes in the future.  
2.116.   The representative of Canada  considered the proposal a helpful contribution to the 
discussions.  Canada strongly support ed the inclusion of the language a sserting Members ' right to 
regulate , as laid out in  the GATS preamble.  However, Canada would like to strengthen the 
language to ensure that the right to regulate was enshrined at all levels of government.  To achieve 
this, Canada propose d to modify the provision by replac ing the word "national " with the word 
"their", so as to read "in order to meet their policy objectives. " Canada recognize d that developing 
countries m ight not have fully developed regulations in some areas, and that they t herefore ha d a 
greater need to introduce new regulations.  However, the right to regulate was absolute. Canada  
was concerned if the provision intended to imply that developed countries had a lesser right to 
regulate  and asked the proponents to explain their  interpretation of this language . 
2.117.   The representative of India commented on several proposals discussed before. He recalled 
that GATS Article VI:4 dealt with licensing and qualification requirements and procedures and 
technical standards. The Chair texts of  2009 and 2011 had separate sections and language on 
each of the five aspects . It was not clear to his delegation why the proponents had departed from 
this approach and were proposing texts on specific subjects, like administration of measures, 
development  of measures,  transparency, etc.  Out of the five types of measures for which GATS 
Article VI:4 provided a negotiating mandate to develop disciplines, only technical standards had a 
dedicated heading  under the current DR proposals. He saw a possible tendency for cherry picking 
and losing the momen tum achieved by the Chair  DR texts. He noted that n one of the substantive 
proposals dealt with qualification requirements -related aspects. The underlying rational e for the 
piece meal approach was not clear. E ven if the DR proposals were brought together under one 
umbrella, a critical chunk of disciplines on qualification requirements would still be missing. 
Disciplines on qualification requirements had been addressed under par as. 27 to 30 of the 2009 
Chair text. The central qualification requirements issue was the recognition of qualifications of S/WPDR/M/71  
 
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  foreign service suppliers, especially in professional services sectors. He sought clarification 
whether the concept of authorization from the proposal on "Administrati on of M easures " that had 
not been defined, included qualification and licensing requirements and procedures, or whether it 
excluded qualification requirements. Concerns on qualification requirements that were essential to 
mode 4 market access should be add ressed, as any DR outcome that did not address qualification 
requirements would not be of any value, especially for developing countries. He enquired why 
technical standards were being treated as a separate aspect by the proponents and whether 
authorizatio n would also cover technical standards. The 2009 Chair  text contained  a reference to 
maximum transparency with regard to the development and application of domestic and 
international standards by non -governmental bodies. More clarity on the different appro ach and 
rational e would be required. Regarding the proposal on gender equality, he noted that this was a 
first proposal of its kind and the issue had not been mentioned either in the GATS, or the 2009 and 
2011 Chair texts. He sought  clarification on why a non-trade issue was being included in the trade 
agenda. Gender issues were effectively dealt with by UN and ILO conventions. He noted that the 
current set of DR proposals did not address special and differential treatment granted to 
developing countries, a s the development proposal only sought to confine such treatment  to LDCs. 
Special and differential treatment  was a universal principle across WTO Agreements that applied to 
all developing countries , and should not be separat ed out so as to apply only to LDCs, as was done  
in the proposal  by Australia . The draft DR disciplines of 2009 and 2011 created a two -stage 
approach  of a transitional period for developing country Members and optional application of the 
disciplines by LDCs. It was important to maintain t he same balance in any DR discussions to 
ensure that special and differential treatment  was not side -lined to the disadvantage of developing 
countries. Regarding the "Transparency " proposal, he noted that acceptance of electronic copies of 
applications was proposed to be based on competing priorities and resource constraints of any 
Members, including developed country Members. In practice, this implied expanding the scope of 
SDT to developed countries. H e commented on the explanatory N ote on the proposal  on 
"Development of Measures " submitted by Hong Kong, China (JOB/SERV/259)  that acknowledged 
that the proposed obligations might create challenges for LDCs and developing countries. The 
representative of Hong Kong, China had also expressed his delegation 's willingness to engage 
bilaterally with developing countries and LDCs with a view to identifying constraints and concerns. 
However, the above mentioned proposal did not contain any in -built provision for special and 
differential treatment . Regarding the ri ght to regulate, he dr ew Members ' attention to the WTO 
jurisprudence on the issue. He noted that the Panel in US-Gambling  had noted that "Members 
maintained the sovereign right to regulate within the parameters of Article VI of the GATS ". 
Moreover, the Pan el had  underlined that "Members ' regulatory sovereignty was an essential pillar 
of the progressive liberalization of trade in services, but this sovereignty ended w hen other 
Members ' rights had been impaired. " In the more recent dispute between Argentina a nd Panama, 
the Panel had stated that "Members retained the right to regulate in order to meet national policy 
objectives subject to relevant GATS disciplines, Article VI in particular, including in those sectors 
where they had made specific commitments und er Article XVI of the GATS. " In the understanding 
of the representative of India, the right to regulate in accordance with each Member 's policy 
objectives as enshrined in the p reamble to the GATS confirmed the relevance of the regulatory 
framework establis hed to meet these objectives in the area of trade in services. In the China -Raw 
Materials  dispute , the Panel had held that there was no contradiction between China 's right to 
regulate, the rights acquired under the protocol and commitments by China that we re contained in 
the accession protocol. On the contrary, China 's accession protocol and its various rights and 
obligations were the ultimate expression of China 's sovereignty. Whether the right to regulate was 
an exception to the broader disciplines or was  subsumed  in more substantive obligations, or was 
expressed through the option of specific disciplines was a larger jurisprudential question that was 
also relevant in the context of DR. He expressed  the need for a comprehensive approach in 
addressing chall enges, especially in mode 4. While it was important to address behind -the-border 
barriers, it was perhaps even more critical to address border - or entry -related measures. 
Addressing DR issues in isolation would have little or no impact on trade in services , unless there 
was an effort to address facilitation rights at the point of entry of the service supplier. Accordingly, 
obligations on behind -the-border measures for qualification requirements and procedures would 
not suffice to provide meaningful mode 4 access. Such disciplines would have to be compl emented 
with disciplines on entry of natural persons, fees and processing of applications. This was crucial 
for developing countries and LDCs that had a specific interest in mode 4. Therefore, he urged 
Members  to consider and address the above -mentioned challenges in a more comprehensive 
manner with pragmatism and open mindedness.  S/WPDR/M/71  
 
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  2.118.   The Chairperson  reminded delegations that the purpose of the sub -items on the agenda 
was to allow  for substantive interventions und er the corresponding agenda items . She suggested 
that in the interest of time, delegations should focus on substantive interventions . 
2.119.   The representative of Cameroon  wondered what the interest of taking the floor was if the 
debate had to be marshalled or br ought under control by the Chair. He held that digressions 
formed part of the debate, and expressed the view that the proponents had not respected the 
rules and caused the loss of time. He wanted to make sure that when a Member took the floor, 
their sovere ign right to express themselves would be upheld. He stated that he had no intention to 
negotiate the right to take the floor with the Chairperson, as the Chairperson would call for order 
even though Members spoke within the rules. Any Member had a right to  take the floor at any 
time without being called to order by the Chairperson. Regarding the right to regulate, he enquired 
whether the legal weight of the negotiating text would be greater than the GATS. He was of the 
view that the higher text was guiding the lower text. He enquired what the right to regulate meant 
exactly and whether it was negotiable. He asked whether Members were going to amend the GATS 
and whether it would have to be ratified once again. He wanted to understand the reasoning 
behind intr oducing the right to regulate. He opined that the measures put forward could damage 
or prejudice Members ' right to regulate while pretending to consolidate this right. The right to 
regulate should stand in and of itself and not just be a simple reminder in  a text of lower legal 
value. He went on to enquire whether the proposal only concerned LDCs or all developing 
countries. He urged the proponents to include reference to all developing countries in their 
proposal.  
2.120.   The representative of the Kingdom of Saud i Arabia  noted that her delegation would 
appreciate if the proponents included developing countries ' needs and priorities in the proposal on 
development.  She believe d that developing countries were strongly interested in flexibilities that 
allowed them to pursue development policy objectives through carful and effective regulation.  For 
Saudi Arabia, developing countries ' right to regulate must not be hampered in any way by the 
disciplines on domestic regulation.  Developing countries must be given space, tim e and resources 
to develop their domestic regulation.  
2.121.   The representative of Cuba shared the concerns that had been voiced previously regarding 
the development dimension. Many developing count ries had repeatedly stated that special and 
differential treatment w as all too absent in the proposals. She was discouraged by the proposal in 
its current wording. The proponents had reduced the development dimension and special and 
differential treatment, and looked at the right to regulate in a way that had in troduced more 
confusion into the debate. The document could not be a basis for the needed broad discussion on 
special and differential treatment.  
2.122.   The representative of Switzerland  supported the inclusion of provisions on special and 
differential treatment  with a view to achieving a comprehensive outcome on DR disciplines.  
2.123.   The representative of Benin  endorsed the statement made by Uganda on behalf of the LDC 
Group and South Africa on behalf of the African Group. Australia 's proposal was a major step 
forwar d brought about by the concerns that LDCs had always raised. He enquired whether 
proponents could provide a clarification concerning  the link between this proposal and the LDC 
collective request of 2014 and whether progress had been made since then. The se cond concern 
he had touched upon  was the carve -out for LDCs , and he enquired whether LDCs would indeed not 
be required to take on new obligations. He also voiced a concern regarding the ultimate purpose of 
the fragmented discussion that had been adopted by  the proponents.  
2.124.   The representative of Hong Kong, China  thanked Australia for taking the initiative and 
stated that a development chapter was important to cater for the specific challenges faced by LDCs 
and developing countries. He was particularly please d that within the proposal there was a 
provision on the right to regulate.  Knowing  that there was a concern  amongst the Members  on 
policy space,  Hong Kong, China included a provision on the right to regulate  in the proposal on the 
development of measures  (JOB/SERV/252) . Hong Kong, China  was open to discuss the placement 
and language of a right to regulate paragraph, which he considered indispensable for the domestic 
regulation disciplines to be successful. T he proposal was a step in the right direction, e specially in 
creating a fully -fledged proposal on domestic regulation disciplines for MC11.  He expressed hope 
that there would be more proposals in the future to supplement th e current proposal.  S/WPDR/M/71  
 
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  2.125.   The representative of New Zealand  agree d that the right to regulate was an important 
principle that had to be respected.  New Zealand  was flexible in terms  of placement of this 
language.  In response to Uganda 's question  on the reason why the proposal was phrased as 
recogni zing the right to regula te, she stated the right to regulate already exist ed and was not 
established by the proposal. The proposal also include d a carve -out for LDCs , as well as the 
possibility for them to opt back in.  Even if carved -out, all Members should be encouraged to 
imple ment the disciplines given the benefits not only for foreign service suppliers, but also for their 
own domestic service suppliers and consumers, and as part of good governance and good 
regulatory practice more broadly.  This element should of course not be read in isolation.  Members 
also had to consider the scope under discussion , i.e. the fact that it was limited to only licensing 
and qualification requirements and procedures and technical standards  and only in sectors with 
scheduled commitments . The covera ge of the application was already  tailor-made to each 
delegation . She noted that new flexibilities , many of which were phrased in terms of "to the extent 
practicable ", or encouragement , had been included. The delegation of New Zealand welcomed 
explanations of the specific challenges and problems with implementing the proposed disciplines in 
order to identify what further flexibility m ight be required . 
2.126.   The representative of Egypt  acknowledged  that this submission was only a part of a 
comprehensive development chapter. There was still one important missing element that needed 
to be included , namely the t reatment of developing countries, as that element w ould help 
Members fully evaluate any proposal.  Egypt also s ought clarification on the t ext related to the right 
to regulate, and what the objective of its inclusion specifically in the communication related to LDC 
treatment  was. He enquired whether  Australia meant to allow  only the recognition of the right to 
regulate  for LDC s. Egypt advocat ed for better and more effective coordination among the 
proponents of various proposals in order to avoid confusion and to allow Members to fully assess 
any proposed outcome. In this regard he recalled that d uring the previous  meeting of the WPDR 
the European Union had  clarified that the proponents of  JOB/SERV/250  had not specifically 
included the right to regulate in their proposal, as they thought it was better suited to be in the 
opening part of the final outcome.  It wa s important to mention that the language of this text d id 
not add any new provision s, as it was the same as the language used in the GATS preamble. A 
frequently cited concern  by Members  was the need for government intervention to ensure that  
markets contribute d to poverty reduction , the impact of externalities  was minimized , and inclusive 
and sustainable development  was brought  about . These policy objective s might be pursued 
through regulation which aim ed to ensure that services were available for all citizens at equitable 
conditions , no matter their location or income. For instance, universal service obligations m ight 
sometimes require expansion of a network to remote areas or affordable pricing for poorer 
segments of the population. Several proposed disciplines  require d Members to take p ositive steps, 
including those that would incur financial and logistical burdens. For this reason, it was important 
to allow for special consideration for developing countries.  The implementation of the provisions 
had to be related to the implementation ca pacities of developing country Members.  
2.127.   The representative of Brazil  noted that even though there was no need to repeat the 
importance of development, the right to regulate and rules for LDCs, putting the three elements 
together in one proposal was not sufficient to give Members guidance on how to proceed. In the 
proposal, the right to regulate appeared somehow as a sub -item of development provisions for 
LDCs. It was difficult to understand how the three issues would work together and this was 
testament to the  shortcomings of the piecemeal approach  pursued by the proponents . He 
underlined that the approach had both merits and shortcomings, however, considering that The 
present meeting  was the last meeting before the summer break and the WPDR was only mean t to 
reconvene at the end of September, this approach caused problems.  
2.128.   The representative of Swaziland  echoed the statements made by  Uganda, South Africa , 
Bolivia, Benin, Cameroon  and India. He believed that Members ' right to regulate was already to 
some e xtent curtailed by  the GATS . In his opinion, in the US-Gambling  case the Appellate Body 
had cur tailed the US 's right to regulate on issues for non -trade objectives , namely objectives 
related to security and moral reasons . WTO jurisprudence offered enough  evidence that by 
agreeing to these disciplines Members would give up their right to regulate. The right to regulate 
would always be subject to jurisprudence that was to some extent discretionary . The implication of 
Article VI:5  was in his view that developed Members who had already regulat ed widely and had 
good regulatory frameworks could still discretionarily maintain their regulations even after the 
proposed disciplines had been adopted.  S/WPDR/M/71  
 
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  2.129.   The representative of Colombia  conside red it necessary to ensure that the different 
proposed domestic regulation disciplines did not contradict Members ' right to regulate. In his view, 
the limited scope of GATS Article VI:4, subjected to sectors in which commitments had been 
undertaken and nua nced with the flexibility language that ha d been included in the different 
obligations , would ensure that all Members ' sensitivities were covered. The inclusion of a broad 
exception for the LDCs allowed for flexibilities depending on the capacity of each e conomy.  
2.130.   The representative of Peru considered the proposal to be a step in the right direction and 
was open to hearing p ositions of other developing countries to see how the chapter on 
development could be improved further.  
2.131.   The representative of Australia  confirmed that the proposal did not represent an entire 
development section, but was intended to facilitate discussions on development. The earlier 
absence of any development disciplines had  limited Members ' desire to engage. In response to 
questions, she clarified that the right to regulate was not intended to be applicable only to LDCs . 
The right to regulate would be captured in a horizontal paragraph , and that intention would 
become clearer, as the co -sponsors tried  to consolidate the proposals. She underlined that DR 
disciplines d id not infringe upon the right to regulate  and the proponents had never intended to 
limit th e right to regulate with anything they had put forward . Regarding C anada 's point  on 
"national " vs "their", she explained that  "national " as a qualifier , as defined in the Marrakesh 
Agreement , was an implicit  reference to being "of a Member " and there was no need to tinker with 
that language. On the LDC carve -out, she noted that this para graph had been  included at  the 
request of Uganda after the March meeting to include para graph  46 of the  Chair text.  She stated 
that the para graph  did not deliver LDC interests , as LDC interests w ould not be advanced just by 
the carve -out. The proponents planned to continue working on a development component, if there 
was interest by Members . 
2.132.   The Chairperson  invited delegations to take note  of the statements made.  
2.133.   It was so agreed . 
2.4  Transparency   
2.134.   The Chairperson  noted that the communication o n "Transparency " had been reissued as 
JOB/SERV/251/Rev.2 to reflect the addition of the delegations of Hong Kong, China and 
Kazakhstan to the list of co -sponsors. The communication had previously been introduced at the 
formal meeting of the WPDR in March a nd had been discussed at an informal meeting on 9 May. 
2.135.   The representative of Brazil  enquired whether for the sake of time it would not be better to 
focus on the more important discussion on the work ahead rather than coming back on the three 
remaining prop osals.  
2.136.   The representative of Benin  supported Brazil 's suggestion on the process. The fact that the 
proposals had new co -sponsors d id not really bring any changes to the proposals. The essential 
aspect was to save and better utilize time and proceed toward the most important item, which in 
his view was . "Future Work ", with other points being dealt with later.  
2.137.   The Chairperson  noted tha t numerous questions had been posed with regard to the 
communication at the last meeting, and several delegations had raised their flag at the present 
meeting to provide further comments. She therefore preferred to allow for the discussion on the 
communica tion to proceed.  
2.138.   The representative of South Africa  speaking on behalf of the African Group , stated that the 
proposal on transparency intend ed to restrict the policy -making processes of governments . It 
restricted not only the rules and policies that Member s could develop, but  also the terms of how 
they could  develop them, who c ould participate in this process, and set the terms on which 
Members must go about these decision -making processes. The African Group was of the firm view 
that the 'right to regulate ' and preserving the necessary policy space were critical to Africa 's long -
term developmental objectives.  She asked the proponents under which mandate they were 
seeking to address transparency in DR disciplines  and w hat this proposal ha d to do with trade . She 
enquired as to the relationship between GATS Article III and the Transparency proposal  and u nder S/WPDR/M/71  
 
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  which mandate the proponents were seeking to expand GATS Article III . She asked  whether the 
proponents currently ha d prior comments systems in place in a ll services sectors to allow all 
interested persons and other Members to comment , as well as who  would benefit from this 
proposal, given that developing countries themselves barely ha d the administrative resources or 
political authority to make use of such  mechanisms to their own benefit . Finally, she asked w hat 
the relationship  was between this proposal and the General Provisions paragraph in the 
"Administration of Measures " proposal . 
2.139.   The representative of Canada  expressed strong support  for the inclusion of transparency 
obligations in future DR disciplines.  Transparency was a core element of an enabling regulatory 
environment for the development of domestic services industries, as well as for the promotion of 
trade in services . He noted that the  provisions  applied only to licensing and qualification 
requirements and procedures and technical standards.  He underlined that Canada would support 
applying transparency disciplines more broadly, but expressed his understanding of the fact  that 
the proponents ha d lowered their ambition in the spirit of pragmatism.  
2.140.   The representative of Guatemala  believed that the proposal contained interesting elements 
and was open to further deepening th e discussion. With regard to sub -paragraph 1 f., he 
suggested  draftin g this sent ence in a broader manner , in order to recognize exceptional cases in  
which  the disclosure of information was not advisable.  
2.141.   The representative of the Plurinational State of Bolivia  expressed the view  that Article VI:4  
did not contain a mandate to develop disciplines on transparency that went beyond Article III of 
the GATS. GATS Article VI:4 stipulated  that licensing  and qualification  requirements, and technical 
standards had to  be based on transparent criteria, but it did not mandate  that new disciplines on 
transparency were to be developed. Paragraphs 3 b . and c . of the proposal went beyond the 
provisions of Article III of the GATS, as they used language of obligation , i.e. "shall", which  Bolivia 
found very difficult t o accept. Paragraph 3  a. i. of the proposal also went beyond the GATS and 
included a reference to  "documents that provide sufficient detail ", which innhis view was language 
that opened up a range of possibilities the implications of which were unclear . 
2.142.   The representative of Uganda  asked the proponents to clarify under which aspects of 
Article VI :4 they derive d the mandate to negotiate transparency disciplines . Although  Article VI.4 
referred to "objective and transparent criteria, such as competence and the ability to supply the 
service ", Article VI :4 did not suggest that disciplines on transparency  would be negotiated. Rather 
than developing separate transparency disciplines, the Article mandated developing licensing and 
qualification requirements and proced ures and technical standards that  were based on transparent 
criteria. S uggest ing that transparent criteria was  the same as transparency  was to stretch the 
scope of Article VI :4 beyond what the drafters  of the GATS had intended.  GATS Article  III already 
require d publication of all relevant measures relating to trade in services, and require d notification 
to the WTO of all changes to laws and regulations or administrative guidelines affecting trade in 
services that ha d been liberalized. It also mandate d prompt response s to all requests by other 
Members. He enquired why the new disciplines on transparency were necessary and whether this 
proposal intended to amend or replace Article III . In his opinion, the ultimate objective of the 
proposal wa s to remote con trol countries under the guise of trade in services. It promote d 
regulatory capture by interests of major corporations , rendering governments redundant. This 
could have strong implications for the nature of domestic regulation and the extent to which 
regulation would effectively respond to legitimate national concerns. The proponents had 
suggest ed that before LDC Members  adopt ed any laws and regulations, they would be obliged to  
first publish them in advance, with sufficient detail, to allow not only Member s, but also non -state 
actors to determine whether and how their interests w ould be affected. He held that i n so doing 
the LDCs  would have to explain themselves regarding  the purpose and rationale for such law s and 
regulation s. LDCs would have to  allow stakeholders  not only to comment but would also have to  
consider their comments. In his view, it appeared  like LDCs we re protectorates and before they 
could take any action , permission  would have to be sought and granted by the high powers. 
Turning to the specifics of the proposal, on paragraph  3 c. he enquired as to the mean ing of 
having to  "consider " the comments received  and whether  this mean t taking a look at the 
comments in the email , or putting in place a focus group . Would "considering " necessarily have to 
result in a positive outcome . He requested an explanation of the situation where  the comments 
received ran counter to the object and purpose of the regulation  and asked  to what extent a 
Member  that reject ed the comments in the end  would have complied with the requirement to 
consider them. On p aragraph  4, he wondered whether WTO Members  were d elegating governance S/WPDR/M/71  
 
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  to supranational entities that m ight not have the best interests of the Members at heart . He asked 
whether a Member could be taken to the DSB if a major enterpri se as a stakeholder reject ed the 
rationale and purpose for a regulation . When  read together with the "Development of Measures " 
proposal,  this proposal made it clear  that the intention of  these measures  was to frustrate the 
ability of small countries to regulate in the national interest . In his view, t his proposal effectively 
opened LDCs' domestic legislative and administrative procedures to foreign intervention including 
from non-state actors . 
2.143.   In response to the question by South Africa as to whether other Members had domestic 
systems for prior comment, the representative of Peru noted that as a developing country, Peru 
had a very transparent domestic system. Draft regulations were published and opened for 
comments from the general public and the private sector. This allowed those who best knew the 
sector to make contributions that would make a regulation more effective. Regarding the doubts 
that had been mentioned with regard t o the provision in paragraph 1 that required publishing 
information on the requirements and procedures for obtaining authorization, he clarified that even 
though Peru had not co -sponsored this proposal, this was an issue of internal domestic protocol 
that demanded a thorough process. He considered the proposal to be very positive in this respect 
and stated that Peru complied with this provision. All requirements and procedures for any 
authorization, permit, or licence to provide  service s in Peru were publis hed online. For example, if 
a service provider wished to open a restaurant, he or she had to go to the municipality website 
and obtain information on all necessary requirements. With regard to point (c) in paragraph 3 that 
mentioned the consideration of co mments received on regulatory and standard setting draft 
documents, authorities in Peru took into account any comment put forward by the private sector. 
The State, however, always had the last word with regard to what was to be regulated. Peru 
already comp lied with this provision by allowing the private sector and service providers in general 
to give their opinions, express their concerns and make contributions to improve regulation . 
2.144.   The representative of New Zealand  stated that as had alr eady been recogniz ed by 
Article  III of the GATS, transparency was fundamental to good governance. It was also necessary 
for businesses, especially SMEs who had fewer resources than large corporations to be able to 
navigate the legal requirements in domestic and foreign mark ets in order to take up market access 
opportunities in a meaningful manner. All Members regulated for a reason and if they wanted 
services suppliers to be able to satisfy the requirements domestic authorities had put in place, the 
authorities had to let su ppliers know what was expected of them and give them the information to 
be able to meet the necessary requirements. Transparency therefore helped Members meet their 
regulatory objectives. The current proposal developed the concepts of Article III of the GA TS in a 
number of helpful ways that would facilitate trade in services by better allowing service suppliers 
to understand the measures regulating the supply of services in their domestic and export 
markets. The proposal would as well allow potential suppli ers to have appropriate opportunities to 
input into the development of such measures within the framework of the host countries ' existing 
legal systems. It was very clear that it was not just foreign service suppliers but also domestic 
service suppliers an d the public more generally that would benefit from increased transparency, as 
set out in the proposal. The new obligation for advance publication and comment allowed domestic 
and foreign service suppliers to become informed about new developments that mig ht affect them 
and provide comments and responses. She supported the point made previously by Peru that such 
contributions were a very valuable component of the regulatory process and allowed regulators to 
become aware of other perspectives they might not have considered beforehand, and perhaps 
even of un intended consequences of their regulatory projects. These provisions could provide 
opportunities to improve regulation but they did not tie regulators ' hands or require them in any 
way to actually implement  any of the suggestions received. She endorsed the point made by Peru 
that the State always had the last word. Another useful element of the proposal was the fact that 
it did not seek to impose specific regulatory burdens and could accommodate a broad rang e of 
systems. New Zealand had a number of different systems for how legislation and regulation 
functioned within the domestic framework. For example, New Zealand 's authorities published in 
advance the draft texts of laws, but limited advance publication fo r draft regulations to high level 
policy proposals. These were two very different systems that were both capable of fulfilling the 
same objective of informing both domestic and foreign stakeholders on new measures that were 
under development and allowed th em to assess how they may be affected. The proposal was very 
useful and provided a range of built -in flexibilities that had not been present in previous situations. 
She expressed hope that these flexibilities, when understood, would help a broader range of  
Members to accept them.  S/WPDR/M/71  
 
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  2.145.   The representative of Norway  supported the proposal and recognized the importance of the 
elements that clearly expressed the crucial role of transparency in operating domestic regulations.  
2.146.   The representative of Cuba considered the proposal to be a very intrusive initiative that 
concerned the process of implementing measures in Member economies. It contained elements 
that were unnecessary and resulted in costly charges and burdens for the administrations. The 
proposal  used ambiguous terms the implications of which were uncertain. With regard to the 
relationship between Article III and Article VI:4 of the GATS and the question o f whether or not 
the proposal had gone beyond the DR mandate, the representative of Cuba alig ned herself with 
the statements made by South Africa, Uganda and Bolivia.  
2.147.   The representative of Turkey  saw the proposal as a progressive step toward initiat ing the 
work on establishment of a text aiming at promotion of trade and good governance. However, 
Members should work on the wording of the text to reflect the interests of all . Reference to 
domestic legislative systems might help reach common ground acceptable for all Members.  
2.148.   The representative of  the Bolivarian Republic of Venezuela  considered that G ATS Article 
VI:4 did not give Members a mandate to negotiate transparency. The objective of regulations was 
to facilitate the work of service providers and not to generate additional burdens for developing 
countries. He endorsed the statements made by Sout h Africa, Cuba and Uganda.  
2.149.   The representative of t he European Union  welcomed the additional co -sponsors of the 
proposal. Transparency was an important component of good regulatory practice concerning 
licensing and qualifications. Transparency was a corner stone of the multilateral trading system 
and it was important that the disciplines relating to transparency benefited primarily the weakest 
services suppliers which in most cases were SMEs. That was one of the reasons why the 
proponents attached great impo rtance to disciplines on transparency. He stressed that 
transparency was part of the discussion on domestic regulation put forward by GATS Article VI:4 
where it notably referred to "any necessary disciplines ". By the same token, transparency had fully 
been part of the previous texts that Members had been discussing  in the WPDR  for many years 
and it had not caused any problems in relation to the mandate. He thanked Members for raising 
specific questions, especially Uganda and South Africa. He invited Members  to communicate all 
their relevant questions in writing to ensure proper follow -up on the part of the EU. He believed 
that the transparency  proposal was a starting point for the discussion that took into account 
sensitivities by using certain language that  tried to bridge  regulatory differences. Paragraph 3 was 
a good example of how the text tried to balance between different regulatory practices in the spirit 
of transparency. He expressed his delegation 's willingness to take up the issues bilaterally or in  
any form Members wanted to.  
2.150.   The representative of Rwanda  supported the statements made by South Africa on behalf of 
the African Group and Uganda on behalf of the LDC Group. He noted that there was no mandate to 
negotiate the issue of transparency and reje cted the intrusive nature of the proposal, the intent of 
which was to limit the regulatory rights of Members. He asked the representative of Argentina to 
give Members an example of Argentina 's measures following the 2001 financial crisis. The 
Argentinian g overnment had adopted certain measures that were deemed excessive, including a 
250 pesos a week limit on  bank withdrawals , as well as the requirement for banks to convert their 
dollar deposits into pesos. He remarked that if at the time the se rules had been discussed in the 
WTO, they would have been deemed non -transparent and not objective. He noted that sometimes 
countries went through crises and had to take regulatory measures that would be subject to 
criticism. He appreciated Peru 's example of their tran sparent domestic system. He expressed 
doubts, however, that in adopting the proposed measures things would be that simple, as 
measures would be binding. He concluded that developing countries had to be very careful in 
adopting measures that might mean they  no longer had the right to regulate.  
2.151.   The representative of Argentina  provided a clarification on the issue raised by Rwanda 
regarding the Argentinian financial crisis. Measures undertaken in Argentina at the time of the 
crisis had concerned investment -related issues outside the WTO, namely the conversion to pesos 
and other measures that had been taken at the end of 2001 and 2002. The issue raised by 
Rwanda was nonetheless relevant, especially in the context of investment facilitation discussions. 
The curre nt proposal contained the words "to the extent practicable " that provided flexibility to 
Members. The specific reference to Members ' respective legal systems had been requested by 
several Members when the consultations had been initiated on this proposal. He drew a line S/WPDR/M/71  
 
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  between issues that had been dealt with in the past and got resolved outside of the WTO and the 
regulatory measures being discussed in the WPDR or even those adjudicated in the latest services 
dispute between Argentina and Panama in the WTO , and stated that those were two very different 
matters. He underlined that the recent WTO jurisprudence in services, in particular, in financial 
services confirmed the possibility for a State to take  the measures it considered necessary.  
2.152.   The representative of Chinese Taipei  emphasized the value of the transparency proposal. 
Numerous barriers faced by services suppliers in international services trade were caused by 
regulatory fragmentation. She believed that the WTO should continue its mul tilateral work to 
ensure greater transparency and more coherence between relevant domestic regulations in the 
area of trade in services.  
2.153.   The representative of Hong Kong, China  stated that his delegation had joined the 
"Transparency " proposal as a co -sponsor. The proposal made DR disciplines more robust and 
useful. He noted the concerns that some delegations had expressed, such as the risk of the 
corporate sector taking over the government. He stated that the proposal did not differentiate 
between local and foreign service suppliers, or even between NGOs and the general public in terms 
of transparency. In his delegation 's experience, the opinions from the domestic and foreign private 
sector were equally useful. As the proposal focused on process , rather than substance, he could 
not understand concerns that the business sector would be taking over the administration as a 
result of the proposal. He noted that there was no obligation on the part of the government to 
follow recommendations or opinion s expressed by certain groups of Members, service suppliers, or 
the general public. Only if an administration didn 't even open an email containing comments from 
a service supplier, could it be  argue d that the administration had not taken into account that 
opinion.  
2.154.   The representative of Egypt  recall ed his statement delivered in the last WPDR meeting, 
and requested answers to the questions and concerns raised during the previous meeting. 
Concerning paragraph 1  g., many Egyptian service sectors did not provid e opportunities for public 
involvement, such as hearing or comments. The Egyptian legal system did not provide for the 
opportunity to publish or comment on regulations before entry into force, and therefore his 
delegation could only accept best endeavour  language. Egypt recognized that the proposal sought 
to introduce a mechanism that had been foreseen in the GATS, and that similar mechanisms were 
already part of other WTO agreements, like the SPS and TBT Agreements. Therefore, it was 
important to examine t he proposed procedures and their impact from the viewpoint of 
implementation. The proposal introduced the concept of "reasonable time ", which needed more 
clarification and understanding. A similar text on "reasonable intervals " had also been foreseen in 
SPS and TBT agreements and had been understood by a 2001 Ministerial Decision to mean 
normally "a period of not more than 6 months ". Egypt asked the proponents if the proposed 
"reasonable time " would have the same definition and would follow the same criteri a. Egypt 
proposed using best endeavo ur language in the chapeau of paragraphs 1 and 2 of the proposal.  
2.155.   The representative of Cameroon  was of the view that  the discussion on transparency was 
legally unjustified. Transparency had been addressed in GATS Artic le III. Transparency in the WTO  
was not about how Members regulated, but meant making documents available to users . The 
above was stated in Article III and in the first sub-paragraph of Article VI:4 . He insisted that the 
proponents should clarify the legal basis and the criteria for transparency, so that Members were 
clear on their rights and obligations. Regarding the possibility to provide comments on laws before 
their entry into force, he specifie d that a law could only be considered a law once it had passed 
through parliament and had been adopted. In his view, the formulation adopted by the proposal 
would lead to countries having to change their constitutions, unless the understanding of the 
propo nents was that laws of some countries were sub -laws of a lesser value that could be 
reviewed at any time and in any way. This constituted a serious legal and technical problem. In 
Cameroon , laws were enacted by the government or the parliament and before t hey became laws, 
they were considered proposals. He thought that it was not appropriate to open a draft law for  
consideration by the whole WTO membership to submit their comments before the law had been 
enacted. In other words, it was inappropriate if an e xternal body outside of the country had the 
power to validate laws that a country was preparing. He urged the proponents to submit 
meaningful texts for discussion that did not circumvent things, had credibility and were acceptable. 
In his view, in any nego tiations the proponents should try to anticipate what the impact of a legal 
text would be to avoid this type of debate.  S/WPDR/M/71  
 
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  2.156.   The representative of Zimbabwe  associated herself with the statement s delivered by South 
Africa on behalf of the African Group and Ugand a on behalf of the LDCs. For her, i t was very clear 
that there was no mandate under Article VI:4 to develop transparency disciplines. She held that 
Article III already contained  disciplines on transparency and questioned the need to introduce new 
provision s. She asked why the proponents were proposing to broaden the scope of the current 
provision  on enquiry points, and what  challenges they were trying to address in this regard. 
Proposals on p rior comment and publication before entry into force intru ded into Members 
domestic processes and she they did not see any value -added or positive link with MSMEs. She 
enquired whether Members were talking about MSMEs  in developing or developed countries, and 
what the definition of MSMEs was in WTO.  
2.157.   The representative of  Peru was pleased to see Members focusing on specific terms in 
specific paragraphs. He thanked Rwanda for comments with regard to the terminology for the 
consideration of comments and suggested inserting a footnote in the text clarifying the meaning 
thereo f for all Members. This could be a task for the proponents but he expressed readiness to 
work with them, so that all delegations could be sure as to the meaning of the discipline. He also 
highlighted the comments made by Egypt, in particular, on paragraphs  1 and 2 , and suggested 
that Members might want to look at the possibility of understanding all the different regimes in 
play. With regard to paragraph 3 , i.e. the discussion of the difference between bills, draft laws and 
laws, he stated that logically "bills" also referred to "draft laws ", as publishing in advance meant 
the publication of the draft of the future law.  
2.158.   The representative of Colombia  believed that transparency was one of the fundamental 
pillars of the multilateral trading system. As such its  inclusion in  domestic  regulation was not only 
desirable but a fundamental part of any  outcome. Colombia, as a developing country and a 
demandeur  in domestic regulation, considered that obligations contained in the proposal had an 
especially positive effect for MSMEs because those companies used the available channels of 
information the most. The proponents were looking into ways to include excepti ons in terms of 
Members ' various levels of development that should allow countries to implement the obligations 
in accordance with their national procedures. He referred to the term "appropriate mechanisms " 
and explained that in Colombia the transparency o bligation was so strong that any government 
entity had to respond to requests for information that were brought by any party, regardless of 
their nationality, and that therefore, the term "appropriate mechanisms " perfectly covered the 
Colombian regulatory situation. Colombia did not have enquiry points as such, but all government 
entities had to respond to the concerns of interested parties.  
2.159.   The representative of Mexico  supported the statements made by the co -sponsors of th e 
proposal. She felt that there w as enough flexibility in each of the paragraphs to accommodate the  
various systems of each Member. She explained that the system in Mexico allowed for receiving 
comments on proposed regulations not only from the private sector, but also from foreign 
govern ments. However, when co -sponsoring this proposal, Mexico  had focused heavily on 
providing  flexibility for every WTO Member. The flexibility in question existed in each of the 
provisions. She invited Members to read the provisions carefully, as they did not  oblige Members 
to consider every one of the comments received by regulators. However, she stated that it was 
important to have transparency provisions that allowed the comments received to be at least met 
with a response, so that the stakeholders could fe el that their comments had been read by 
regulators.  
2.160.   The representative of Swaziland  remarked that issues raised by developing countries had 
yet to be addressed. In his view, the proponents would need to do more than just going around in  
circles and making  references to the GATS. He requested the proponents to pinpoint the exact 
elements that were m issing in GATS Article III and that their proposal had meant to address, 
assuming that those gaps existed. Secondly, he noted that Article VI:4 did not say anyth ing about 
the process and stated that the mandate was being recreated by the proponents.  
2.161.   The representative of Benin  supported the statements made by Rwanda, Uganda on behalf 
of LDCs and South Africa on behalf of the African Group. He concluded that the su bstance of the 
proposal was intrusive in nature, particularly paragraphs 3 and 4, as well as various footnotes, 
particularly footnotes 4 and 5. Regarding the requirement to publish draft laws in advance, Benin 
distinguished between two types of documents: bills and legislative proposals. Bills came from the 
government and the legislative proposals came from the National Assembly. Having to discuss or 
to publish the proposals of legislative or regulatory nature before the competent authorities in S/WPDR/M/71  
 
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  Benin had e ven adopted those texts , was problematic  and even inco mprehensible for Benin. 
Article  I:1 of GATS, dealing with the scope of application of the Agreement, referred to adopted 
measures, not measures that were "to be adopted ". Regarding proposed paragraph 4 , which 
required Members to explain the purpose and rationale of the law or regulation to be adopted, he 
enquired as to what exactly that meant and what the provision sought to achieve. What was the 
objective of the request for an explanation from a soverei gn State. The term "reasonable time " 
used in paragraph 5 was very vague. He enquired as to who judged the reasonability of the time -
frame and for what purpose. Regarding the form of the proposal, his assessment of Article III and 
Article VI:4  of the GATS led to the conclusion that there was no mandate to negotiate 
transparency, and in the WTO Members did not negotiate texts that did not have a legal mandate. 
He called on the Chairperson to assume the responsibility and to allow Members to work  on other 
texts that might represent greater interest for all Members and might be founded and grounded in 
law. 
2.162.   The representative of Uganda  appreciated the comments by Peru and Mexico with regard s 
to the extent to which Members should consider comments. H e was of the view that the regulators 
indeed did not have an obligation to consider all comments, but enquired whether there was a 
certain number, or a percentage of comments that they were supposed to consider. He provided 
an example of the Philip Morris case on tobacco. As reported in the news  media , Philip Morris had 
been planning to send 18,000 comments to the UK government concerning its plain packaging law, 
including 6000 from a recruited group of smokers, 950 from industry, 10,050 from the retail 
group, 40 from think tanks and 1000 from trade unions. In such a situation there would have to be 
many footnotes that would qualify the exact extent of the term "consideration " of comments. He 
suggested that all proposals should have footnotes to qualify the meaning of different concepts, so 
that Members were comfortable, if and when they took on the proposed disciplines. He considered 
the point made by Benin to be very critical: the question of mandate was very serious and it was 
important for Members to have  a credible process. Members had to address important definitional 
issues. He said that the proponents had to sell their proposals to the rest of the membership . 
2.163.   The representative of Cameroon  referred to the earlier remark by Canada that had 
suggested tha t Members should look at the text in good faith. He noted that good faith could not 
be asked only of those who questioned the text, but also of those who were proposing it. He asked 
where good faith was if Members were being asked to take up obligations on  the basis of a loose 
text or a text that had no mandate. He agreed with Benin that when the disciplines asked for an 
explanation of a rationale for a law from a government, the government 's right to legislate and 
regulate had to be recognized, especially when the proposed regulation had not even been 
discussed internally in a proper manner . He noted that in Cameroon there was a public -private 
partnership which meant that the private sector and the public sector worked together in order to 
troubleshoot, and  find the best ways to respond to problems. In Cameroon, no one was 
questioning legislators  while they were examining a law. Once a law had been voted on, it was the 
parliament itself or the head of state only who could question the measure, not a tribunal  of 
anonymous parties. He enquired whether the proposed disciplines meant that Cameroon had to 
suspend proceedings for the development of laws. He asked why Members were having these 
discussions when there were existing working mechanisms and urged co -sponsors to propose a far 
simpler and clearer text that identified a precise objective.  
2.164.   The representative of Australia  thanked all Members who had been participating in the 
very active debates that had shown the value of continuing the discussions of the prop osals. She 
indicated the need for further discussions and considered  the possibility of having a further 
meeting of the WPDR before the summer break. She acknowledged that there might be some 
confusion, in particular within the African Group and perhaps th e LDC Group about the mandate 
question, given India 's trade facilitation in services proposal which included transparency 
disciplines going beyond the scope of GATS Article VI:4 and proposing horizontal disciplines on all 
services regulation. The current p roposal on transparency, however, covered only licensing 
requirements, licensing procedures, qualification requirements, qualification procedures and 
technical standards within the scope of Article VI:4 and, as clearly stated in the introductory 
paragraph,  had the same intended scope, as the general provisions Article of the "Administration 
of Measures " proposal, namely the disciplines proposed would only apply where Members had 
specific commitments and not where they had scheduled limitations. Given the nu mber of 
questions Members had raised on the mandate issue, she requested the Secretariat to provide 
some clarity on that. She explained that paragraph 1 of the "Transparency " proposal elaborated on 
the obligation contained in GATS Article III, namely on th e types of information that should be S/WPDR/M/71  
 
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  provided. It was a non -exhaustive list, and did not constitute an additional obligation. This 
obligation had already been binding as a horizontal obligation on all Members under GATS Article 
III. The value -added of par agraph 1 of the proposal was that it provided Members with an 
indicative list of the kinds of information they should be publishing where it was available. 
Paragraphs 2 and 3 of the proposal also added value. They went beyond the disciplines of GATS 
Article III, but were within t he mandate of GATS Article VI:4 . The enquiry points established under 
the GATS were only Member to Member enquiry points, and having Member to services suppliers 
enquiry points would therefore add value. The delegation of Australia had taken note of previous 
comments particularly in relation to capacity and sensitivities around the opportunity to comment 
and had therefore built in flexibility language. She looked forward to discussing further whether 
these flexibilities were sufficie nt or whether further flexibilities were required for developing 
countries in relation to particular disciplines. In relation to the questions about the obligation to 
consider comments, the requirement was not about taking into account comments or respondi ng 
to them, or adopting them, but simply  about considering them. Proponents ' FTAs had much more 
ambitious disciplines, but she felt that it was not viable to reach agreement amongst all WTO 
Members on a more ambitious text in the current context, until Mem bers had first gone for the 
softer obligation of "considering " comments. She also referred Members to the chapeau of 
paragraph 3, noting that all of the sub -paragraphs in paragraph 3 were qualified by the language 
in the chapeau, i.e. "to the extent practi cable" and "in a manner consistent with its legal system 
for adopting measures ". In relation to the example raised by Uganda, she expressed the view it 
would not be within "the extent practicable " to consider hundreds of thousands, or even millions of 
comm ents. The above language provided sufficient flexibility already built into the proposal to deal 
with that sort of situations. Finally , she thanked Guatemala for the very careful assessment of the 
proposal and in particular for the question on item 1 f. in relation to the procedures for monitoring 
and enforcing compliance. She mentioned that it would be useful to have more information fro m 
Guatemala about their specific concerns. She noted that the concerns might  be covered depending 
on the nature of the measures that Guatemala had in mind, by GATS Article III bis on confidential 
information or alternatively by the GATS exceptions. She was  happy to discuss specific examples 
with Guatemala in more detail and was willing to consider whether any further clarity of language 
was required in the proposal.  
2.165.   The representative of South Africa  assured the representative of Australia that once 
Members  were done with development of measures and administration of measures, the confusion 
would clear . 
2.166.   The representative of the Cameroon  enquired as to the role of the Secretariat, namely 
whether the Secretariat was going to interpret the text or negotiate th e text with the membership.  
2.167.   A representative of the Secretariat  noted that the Secretariat did not interpret the GATS. 
The term "interpretation " was a term with specific legal meaning found in Article IX of the WTO 
Agreement and only the Members had the a uthority to issue interpretation in the legal sense. The 
Secretariat 's job, on the other hand, was to explain the Agreement and facilitate the reading of its 
provisions in order to enhance the understanding of the different provisions and how they 
interact ed together . The Secretariat was doing this  both in Geneva and in capitals during technical 
assistance activities. Even if the representative of the Secretariat was asked to give an opinion, 
this opinion could never be considered to be an "interpretation " in the legal sense. He encouraged 
Members to ask questions and assured them that there would be no legal consequences of any 
kind. In his explanation he addressed three elements. The first concerned  the object and purpose 
of the mandate and why it existed.  The second point related to the  provisions that Members would 
need to look at in order to appreciate the parameters of the mandate , and the third point was 
about sharing a few examples illustrating what Members had produced in exercising the mandate 
over the past 20 years. Firstly, the creation of th e mandate had had a very specific purpose at the 
time: when Members had negotiated Articles XVI and XVII, in defining what would be considered 
market access and national treatment limitations, they had realized  that there would be other 
regulatory measures which would have an impact on trade in services but would not fall under the 
definitions in Articles XVI and XVII. Those measures were regulatory measures that were 
important and necessary but which required at the same time certain disciplines in order to ensure 
that regulators would not use the regulatory function to instate disguised restrictions and impose 
regulations that would be more trade restrictive than necessary. The solution to that problem at 
the time of negotiating the GATS had been to create Article VI:4 and Article XVIII on additional 
commitments. Article VI:4 was a work program that had its specific scope, Article XVIII in turn 
covered the Article VI:4 scope, but also went beyond it. Commenting on the parameters of the S/WPDR/M/71  
 
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  mandate, he pointed to two specific GATS provisions. Article I of the GATS basically set the scope 
of application of the treaty itself, i.e. "measures by Members affecting trade in services ", and had 
been crafted very widely, so th at anything by definition negotiated under the GATS would not go 
beyond that scope. Moving to the subset of the scope of Article VI:4, even though the wording did 
not specifically refer to licensing requirements and procedures, qualification requirements a nd 
procedures and technical standards, the existing reference had been broken down by Members to 
constitute those five categories of measures. That was the scope within which this mandate had to 
be exercised. Any kind of measure that fell within that scope , i.e. the scope of the GATS and the 
scope of Article VI:4 in particular, could potentially be governed by disciplines Members saw fit and 
were able to agree on. Members had exercised that mandate throughout the years, and the most 
prominent example were t he disciplines for the accountancy sector, which the Services Council had 
adopted in document S/L/63, with the disciplines themselves set out in document S/L/64. The text 
of the disciplines contained various chapters that could give a good sample of what M ember s had 
considered to fall within the mandate of Article VI:4. It was comprised of the general provisions 
which included a necessity test, section 3 on transparency, section 4 on licensing requirements, 
section 5 on licensing procedures, section 6 on qu alification requirements, section 7 on 
qualification procedures and section 8 on technical standards. This text had been adopted by the 
Council on 14 December 1998 and legally, within the meaning of the Vienna Convention on the 
Law of Treaties, this text m ight be considered as an adopted text of a treaty. The entry into force 
of those disciplines had been deferred and was to be considered at the end of the round of 
negotiations which started in 2000 and was on -going to date. Other examples included the Chai r 
texts of 2009 and 2011. Although there might be some differences of views on whether those 
texts would represent an acceptable common working basis, the scope of what was covered there 
resembled issues that had been considered for years in the WPDR and h ad been accepted by 
Members as appropriately falling within the scope of this mandate.  
2.168.   The representative of Bolivia  stated that even though the Secretariat 's opinions were 
useful, he advised caution and prudence when dealing with a subject Members could have 
diverging views on.  
2.169.   The representative of South Africa  underlined that the accountancy disciplines had been 
part of the sectoral approach to domestic regulation disciplines at a time when the context had 
been completely different and they reflected re luctance by the membership to negotiate general 
disciplines. In her opinion, using the accountancy disciplines as a desirable reference point was not 
acceptable. She asked the Secretariat to exercise caution in its interventions.  
2.170.   The representative of Uganda agreed that the Secretariat should not provide interpretation 
of the agreements, as it was misleading. He considered that the representative of the Secretariat 
had not responded to the question on the necessity requirement embedded in Article VI:4. Ther e 
was no mandate on transparency and the proponents had to demonstrate the necessity of the 
proposals.  
2.171.   The representative of the Bolivarian Republic of Venezuela  supported the statements made 
by the delegations of South Africa, Bolivia and Uganda. He agree d with the previous speakers that 
the mandate had to be interpreted by the Members themselves and not by the Secretariat.  
2.172.   The representative of Cuba shared the concerns expressed by preceding delegations. She 
highlighted that what was needed was the involv ement of the proponents who were most 
interested, not the Secretariat. She agreed with the idea that Members should avoid trying to get 
the Secretariat substantively involved in the process, as the organization of the work should be up 
to the Members.  
2.173.   The representative of Nigeria  stated that the proponents and not the Secretariat had a 
responsibility to respond to specific questions in terms of interpretation and leave it for the 
Members to see whether they agreed with that interpretation or whether furthe r clarification would 
be required. He opined that there was no mandate on transparency in Article VI:4 and Members 
should not be discussing an issue with no mandate.  
2.174.   The representative of Australia  thanked the Secretariat for the clear explanation that 
responded directly and very usefully to the proponents ' request for the Secretariat to clarify the 
mandate for the negotiation of disciplines under Article VI:4. The proponents wanted to be very S/WPDR/M/71  
 
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  clear, as some of the comments showed a misinterpretation or an effort to reinterpret what the 
delegation of Australia asked for. What the delegation of Australia had asked for had nothing to do 
with the question of interpretation, but rather just asking the Secr etariat to explain GATS 
Article  VI:4. 
2.175.   The representative of the European Union  thanked the Secretariat for the explanation and 
the reminder of the existing texts that had been debated by Members on the subject of domestic 
regulation and that would be helpful in shaping the list of issues for discussions in the c oming 
months in the WPDR. Transparency had always been part of the DR conversation so there was no 
point in further discussing the artificially created issue of mandate. The important thing was to 
move to the substance of the proposals on the agenda.  
2.176.   The r epresentative of the Plurinational State of Bolivia  expressed the view that the 
discussion was not going in the right direction. As Article VI:4 did not talk about negotiating 
elements of transparency, there was no mandate to negotiate in the area of trans parency. He 
reiterated his previous point that the Secretariat had to be very careful in giving opinions, 
explanations, or interpretations. The fact that Article VI:4 stated that disciplines "shall be based on 
objective and transparent criteria " did not im ply negotiations on transparency itself.  
2.177.   The representative of Uganda  reiterated that there was no mandate for negotiations on  
transparency. With regard to the broader issue of Article VI:4, he agreed that the Article did 
indeed have an in -built mandate an d that nobody was questioning that. The question remained 
whether the disciplines Members intended to adopt were necessary. He assured the membership 
that the LDC Group was taking this process very seriously and expressed hope that the Group 's 
concerns wer e also treated with the same seriousness with which the Group treated the proposals 
that had been put forward.  
2.178.   The representative of South Africa , speaking on behalf of the African Group , expressed 
concern with the position on the mandate by the EU. She as ked the representative of the EU 
where they had derived the mandate from, considering that the "Transparency " proposal included 
disciplines on prior publication, prior comment and consideration of comments and enhanced the 
disciplines on enquiry points as compared to GATS Article III. She remarked that it was not 
sufficient to trivialize the issue.  
2.179.   The representative of Brazil  noted that two distinct viewpoints had developed amongst the 
Membership on whether transparency had a proper mandate in Article VI:4  or not and both sides 
should be respected. As an outsider to the discussion and not a demandeur , he suggested being 
more productive and building bridges instead of digging trenches. There was a recognition of the 
fact that there was indeed a mandate in GA TS Article VI:4 and the 2009 Chair 's text was a 
reflection of an attempt to materialize that mandate. He expressed a concern regarding the 
direction and time line of the discussions. He noted that the Buenos Aires Ministe rial was 
approaching and there might be a possibility of having an outcome on domestic regulation. He was 
very concerned that the Members would not  reach that target. The question of the specific 
interpretation of the mandate on transparency should not be taken lightly, but at the same time  
the Members were still missing some important pieces of any possible alternative to the 2009 -
2011 Chair texts. Members were ending the month of June without a complete text, still having to 
address the concerns on transparency and then having to move to t he draft text by the Chair. Not 
having a draft text before the summer break was reducing the chances of having a domestic 
regulation outcome for Buenos Aires to zero. He urged Members to concentrate on how to build 
bridges, take care of the concerns and work out how  to complete the missing elements to move 
forward. He thought that just discussing the proposals as if everything was fine would not help the 
Members, unless they had no intention of meeting the Buenos Aires deadline and having a 
domestic regulat ion deliverable.  
2.180.   The representative of Australia  referred to delegations that had concerns to the statement 
made by Australia in the WPDR on 17 March, where she had explained the need for transparency 
disciplines on licensing and qualification requirements  and technical standards, their place under 
Article VI:4, their value and benefit for services suppliers, particularly from MSMEs, developing 
countries and LDCs. She urged Members to submit questions in writing and expressed readiness to 
respond in writing  as well.  S/WPDR/M/71  
 
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  2.181.   The representative of Nigeria , following up on the points raised by Brazil, acknowledged 
that the call for building bridges concerned both the proponents and Members who had expressed 
concerns. He asked whether there could be a feasible mechanism  for clarifications to be provided 
by Australia and the EU to the Afr ican Group, so that the Group  could come back and engage more 
constructively.  
2.182.   The representative of the European Union  thanked South Africa and Nigeria and underlined 
the importance of en gaging with the African Group. He noted that the EU would be available to 
have a more detailed discussion.  
2.183.   The representative of Rwanda  saluted the optimism of Brazil and suggested discussing 
next steps if Members were willing to have an outcome in Buen os Aires. He stated that Rwanda, 
however, did not see room for any possible outcome on domestic regulation in Buenos Aires. At 
this stage many substantive questions had been asked , but had not been answered. He did not 
agree that the proposed disciplines were  necessary and noted that there was no consensus that 
Members must develop the disciplines. His delegation saw this agenda as an attempt to prevent 
Members ' ability to administer their own domestic measures, particularly as most opponent 
countries were at a very low level of development in terms of both economic development and 
institutional and regulatory capacity.  
2.184.   The representative of Cuba did not find it helpful that the representative of Australia 
referred Members to her previous intervention instead of providing answers on the floor. 
Australia 's comments from the March meeting had brought Members to the current situation where 
a lot of Members still had questions. The comments referred to Article III , which was not the same 
as Article VI:4 and also to ok as a reference agreements that were outside of the WTO. The 
situation was still polarized and Members had not received the answers requested. Like the 
representativ es of Brazil and Rwanda, she state d that the situation made it very difficult to have 
an outcome at the MC11.  
2.185.   The representative of Colombia  noted that as a developing country that was still putting in 
place its regulatory process, Colombia was concerned about the results at the multilateral level. He 
held that Members should continue the disc ussions for as long as necessary.  
2.186.   The representative of Mexico  expressed her delegation 's interest in having disciplines and 
elements related to transparency in particular for MSMEs. Certain Members had expressed 
optimism and interest in securing results i n this area for the next Ministerial Conference. She 
endorsed the proposal made by Brazil to have a consolidated text independent of the discussion s 
Members were currently having.  
2.187.   The representative of Argentina  stated that his delegation was not a propone nt of most of 
the proposals that had been made , but believed that it was important for the proponents to show 
some flexibility and take on board some of the concerns that had been expressed. He noted that 
the proponents had indeed expressed their willingne ss to do so  and that it would be important to 
have a consolidated text along the lines of what Brazil had described. The text might be a way 
forward that could help Members achieve some results in this area.  
2.188.   The representative of the Republic of Moldova  characterized the situation as very polarized 
and acknowledged that different Members had different views. In order to narrow the gap between 
developed , and developing countries and LDCs, he suggested that WTO Members should engage in 
bilateral consultations . Such consultations would allow everyone to move forward, as this  was the 
best solution to try  to interpret Article VI:4 of the GATS.  
2.189.   The representative of the Plurinational State of Bolivia  invited proponents to revise their 
proposal to take into accoun t the concerns expressed by other Members. It was up to the Members 
to either make an alternative proposal or put on the table a revised version of the current 
proposal. He noted that questions that had been asked by a large number of Members with the 
African Group alone comprising more than 40 Members. He underlined that  all Members wanted to 
move ahead and that the process needed to involve all Members. The text required further work 
and could not be adopted at the Ministerial as it currently stood.  S/WPDR/M/71  
 
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  2.190.   The r epresentative of Montenegro  thanked the Secretariat and the proponents. He echoed 
the last intervention of the EU, welcomed the proposal, and stated that his delegation would like to 
see results in the area of transparency by MC11.  
2.191.   The representative of the Kingdom of Saudi Arabia  agreed with others on the importance 
to move on to next steps and have a consolidated text before the summer break. Thi s would be  
the only way to have an outcome in services at MC11. She stated that Members  had to continue 
discussions on transparency in an open and positive manner.  
2.192.   The representative of Uganda  stated that the burden of proof was on the proponents and 
could not shift to non -demandeurs. He provided examples of other WTO negotiations, like thos e on 
agriculture, where Members promised but failed to submit their concerns in writing in relation to 
long-standing proposals on public stock -holding and the special safeguard mechanism, whereas 
the G33 of which Uganda was a Member, had revised their prop osals many times. Opponents of 
the current proposals were engaging in good faith, but it was up to the demandeurs to sell their 
product and find convergence on their proposals in the spirit of a negotiation. He encouraged 
Members to be pragmatic rather tha n reluctant, reach out and take into account concerns. He 
stated that Brazil had made a very good point and if the proponents did not want to listen to the 
LDC Group, they should listen to Brazil.  
2.193.   The representative of Chile stated that t here was no doubt that the issue of transparency 
fell within the regulatory framework of the WTO and the clarification provided by the Secretariat 
was not a legal interpretation, but rather an explanation of the situation. He noted that Members 
should be trying to build bri dges, but in order to do that , they  would have to work together and 
meet each other half -way. He welcomed the statement made by the African Group at the last 
meeting where some Members, particular Uganda and Bolivia, had pointed out what their specific 
problems were in terms of transparency. He acknowledged that there were issues that were 
causing problems and urged Members to talk about those problems and see how positions could be 
brought closer together. In order to do that , it was necessary for the disc ussions to focus on  the 
substance of the proposals, as he  did not see any procedural or mandate problems. He asked 
everyone to get involved in the substantive discussion of the issues. In his view, the proponents 
had done a sincere job in trying to react t o all the questions and their doors had always been open 
between formal meetings. He encouraged Members to take advantage of this situation and work 
on the basis of the proposals in order to have a result on a matter that had been pending for many 
years.  
2.194.   The representative of Nigeria  stated that he understood the sensitivities and inner 
dynamics of the African Group and that 's why he had asked the proponents to reach out. He 
supported the point made by the representative of Uganda who mentioned that it was the 
responsibility of the proponents to reach out and to provide Members with the justification and the 
reason behind the proposals. He was not aware whether there had been any outreach or proper 
bilateral consultations with the African Group. He supported  the idea that at the end of the day 
Members would need a consolidated text, whether revised or not, as it would be necessary to 
make an overall assessment of the proposal.  
2.195.   The Chairperson  invited delegations to take note  of the statements made.  
2.196.   It was so agreed . 
2.5  Development of Measures  
2.197.   The Chairperson  noted that two communications on "Development of Measures ", had been 
presented at the last meeting, contained in JOB/SERV/250 and JOB/SERV/252/Rev.2, respectively. 
A revision to JOB/SERV/250 had been issued o n 13 June, adding the delegations of Kazakhstan, 
Norway, and Chinese Taipei to the list of co -sponsors. The delegation of Hong Kong, China had 
circulated its statement made at the informal meeting on 9 May 2017 on Development of Measures 
as JOB/SERV/259.  
2.198.   The representative of the European Union  referring to  addressed some of the questions the 
EU had received officially the previous week in relation to some of the concepts contained in the 
proposal in JOB/SERV/250/Rev.1  and particularly concerning the words "objective and S/WPDR/M/71  
 
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  transparent " and their concrete effect on Members ' regulatory systems. Some Members had 
previously questioned whether agreeing to a provision that would request that measures were 
based on "objective and  transparent " criteria would affect their rights to regulate and invade their 
policy space. In his view, t he proposal would not impede Members ' right to regulate, as it would 
not impact Members ' discretion in the choice of requirements in line with their p ublic policy 
objectives, as long as those requirements were based on objective and transparent criteria in 
services sectors where Members had commitments. He drew Members ' attention to the footnote of 
the proposal that clearly stated that those criteria mi ght include , inter alia , the ability to supply a 
service or any potential health or environmental impact of an authorization decision  and noted that 
the list was not exhaustive. Competent authorit ies may assess the w eight to be given to each of 
the criteri a in any given situation . The proposal put governments at the centre  of the process, as 
they would be defining authorization criteria in line with the ir public policy objectives. In that 
context, requesting that those criteria were objective and transparen t would help protect services 
suppliers, local and foreign. It was important to recognize that the disciplines had also impact ed on 
local service suppliers and protected them from arbitrary decisions. While guaranteeing the 
discretion of the regulator y authority, the proposed text on development of measures ensured at 
the same time that the discretion would not be abused. In a nutshell, the proposed approach was 
about discretion and not arbitrariness. The EU had been working internally for a very long time 
with the requirement that authorization processes should be based on objective and transparent 
criteria. such requirements were particularly useful in the context of the EU 's regional integration, 
and had been a facilitator of the economic integration. EU legislation contained m any more criteria 
than those two, but the purpose of the current discussion was the meaning of "objective and 
transparent ". In the EU system this was contained in the flagship legislation, the so-called Services 
Directive 2006/123 of  December 2006 on services in the EU internal market. Article 10 of the 
Directive mandated that authorization schemes had to be  based on criteria that precluded the 
competent authority from exercising their assessment in an arbitrary manner. In this contex t, 
objective criteria are understood not to leave a margin of appreciation to the competent authority 
in a way that would allow for arbitrary decisions. This was necessary to ensure that all operators, 
both domestic and foreign, were treated fairly and imp artially , and that e ach application was 
assessed on its own merit. It was therefore a very important contribution of domestic regulation 
disciplines. Regarding the  proposed requirement to base measures on transparen t criteria , this 
was required to guarantee that the authorization scheme was comprehensible for all potential 
applicants and that all the different requirements were known in advance. Framing authorization 
schemes along those lines had been critical for the development of  the EU 's own services market 
and had contributed to ensuring that authorization processes were not subject to arbitrary 
decisions by regulatory authorities. He believed that all WTO Members were aspiring to eliminate 
arbitrariness to the benefit of both l ocal and foreign service s suppliers.  
2.199.   The representative of Hong Kong, China  expressed hope that his statement made at the 
informal meeting on 9 May  (JOB/SERV/259 ) would help Members better understand the proposal 
his delegation was co -sponsori ng (JOB/SERV /252/Rev.2 ). He recalled a question asked at the 
informal meeting on 9 May whether the reference to reaching and administering decisions in an 
"independent manner ", as set out in paragraph 1(e) of the proposal, implied independence of 
competent authorities  in making and administering decisions or whether competent authorities 
should be independent in assessing whether services suppliers were in conformity with the 
requirements. The proposal served both purposes and was aimed at not having measures that 
benefited particular services suppliers. The focus of the proposal was on how competent 
authorities developed and implemented decisions, including guidelines and requirements. Another 
question that had been raised concerned the co -sponsors ' intention of incorp orating international 
standards in the proposal. The concept referred to international standards adopted by relevant 
international organizations applied by a Member adopting or maintaining a measure, and was 
already contained in GATS Article VI:5(b). The f ootnote  that proponents had included was likewise 
found in the GATS. Furthermore, the standards in question included only those adopted by 
international organizations, whose membership was open to at least all WTO Members. It was 
useful to provide guidance  as to how to satisfy the proposed disciplines, especially as international 
standards could be a helpful tool in determining whether the proper balance had been struck. Co -
sponsors were interested in suggestions and further discussion s. He supported a poin t made by 
Brazil that the proponents should reach out to those Members that had hesitations regarding the 
proposals.  
2.200.   The representative of Turkey  believed in the establishment of the necessary criteria to be 
followed during the development of measures and  wanted to discuss them for the purpose of S/WPDR/M/71  
 
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  reflecting the criteria in the final text. She stated that Turkey 's domestic legislation and practice 
were already in line with the proposals.  
2.201.   The representative of South Africa , speaking on behalf of the African  Group , expressed the 
view that too much emphasis was being placed on the institutional and procedural approach to DR. 
There was a de jure  and de facto  implication of prescribing a particular approach to discipline how 
governments developed domestic measur es and to create new rules on the procedures according 
to which countries introduced, developed and  implemented regulations. In doing so, there was an 
underlying assumption that there was a one -size-fits-all approach or model to regulation. The 
African Gro up was considering to what extent this overly prescriptive approach was suited to 
African Members who had different levels of development, availability of resources and varying 
institutional structures in its services sectors. The GATS did not provide a ma ndate to negotiate 
development of measures . She enquired whether the proposals had been subjected to their own 
necessity test and whether the right to regulate overrode the substantive disciplines being 
proposed. She also asked what the role of the state w as in developing measures to achieve 
particular domestic non -trade related objectives that were considered discriminatory by the 
proposed DR disciplines. She enquired as to the relationship between the proposal and the general 
provisions para graph in the "Administration of Measures " proposal. The proposals appeared to be 
working from a base line presumption against any new or increased regulation. She enquired as to 
why proponents ' domestic models of so -called good regulatory practice should be prescribed t o all 
WTO Members who had different levels of development and wide ranging domestic objectives and 
priorities.  
2.202.   The representative of India remarked that the proposal provided that disciplines on the five 
categories of measures mentioned in GATS Article VI :4 had to be based on objective and 
transparent criteria, such as competence and ability to supply a service. The proposals further 
defined criteria as including, other than the two above -mentioned criteria, the potential health and 
environmental impact of  the authorization decision and further gave the authorities the discretion 
to assess how much weight was to be given to the various criteria. He enquired whether an 
environmental reason could be a basis for excluding a foreign services supplier. Secondly,  GATS 
Article VI:4 illustrated only two objective and transparent criteria, i.e. competence and ability to 
supply a service, but merely opened room for other criteria. In a services context Members needed 
further deliberation on what such other criteria co uld be.  
2.203.   The representative of Nigeria  urged the EU to reach out to the African Group to respond to 
the Group 's questions. Regarding domestic reform processes, he asked how the proposal would 
limit Members ' ability to regulate in terms of policy objectives and discretion exercised. He held 
that the issue of arbitrariness should not be taken for granted, in terms of both local and foreign 
suppliers. He supported the point made by South Africa that multilatera l one-size-fits-all disciplines 
would not work and the varying levels of development needed to be taken into consideration. 
Members also had different legal regimes and some did not even have harmonized legislation in 
terms of their regional integration. W hile the EU was more advanced than many other Members in 
that regard, replicating the EU model might not be desirable due to Members ' different domestic 
regimes. Nigeria was not against strong domestic regulation but the challenges needed to be 
seriously a ddressed to take account of African Members ' level of development. He noted that 
challenges were real, as demonstrated by the recent Trade Policy Review  of Nigeria , and it was not 
helpful to just sweep them under the carpet.  
2.204.   The representative of Uganda , speaking on behalf of the LDC Group , stated that trade 
rules were aimed at ensuring market access and were not directly designed to promote efficiency 
or social welfare. There was a growing preoccupation regarding the potential adoption of 
disciplines that were highly intrusive in the domestic domain and that required trade 
considerations to prevail o ver other legitimate policy  objectives of domestic regulation, such as 
people 's access to services, employment considerations, microeconomic reasons, security, social 
and cultural considerations, etc. He enquired whether Members would be challenged if for those 
above listed reasons they had put in place measures that were not least burdensome or not 
objective. The proposed disciplines would seriously constrain th e capacity of states to effectively 
regulate services activities in pursuing such goals. The proposals covered both measures currently 
maintained by Members and those they might adopt in the future. The GATS had defined the term 
"measure " in Article XXVIII  as "any measure by a Member, whether in a form of a law, regulation, 
rule, procedure, decision, administrative action or any other form ". He asked whether the 
proponents intended to cause a complete overhaul of the entire regulatory mechanisms of LDCs in S/WPDR/M/71  
 
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  order to bring them in compliance with the "Development of Measures " proposal and whether the 
proponents did not find this intrusive, onerous, expensive and unnecessary. Many elements 
contained in current proposals would constrain Members ' right to regulat e if adopted. He 
expressed concerns over the application of the necessity test. He asked to what extent LDC 
governments were permitted to regulate and whether Members were allowing the proponents and 
the WTO to have access, participation and a say in how, why and when LDC governments chose to 
regulate. He sought a clarification on the meaning of "not more burdensome than necessary ", as 
well as "objective and transparent ", and the requirement that procedures must not "unduly 
prevent the fulfilments of requir ements " and had to be  "impartial ". He asked whether objectivity 
could be understood to mean not arbitrary, not biased and not subjective and whether an 
affirmative action measure put forward by a government to redress historical injustices could be 
conside red biased and therefore not objective, as it favoured an individual or group of interested 
parties. He asked whether the proposed disciplines would mean that business licensing decisions 
involving public opinion could be considered to be based on non -objective regulatory criteria. He 
enquired whether concerns from neighbours of a bar or a night club would be defined as non -
objective criteria for rejecting a license. He asked whether the proposed DR disciplines allowed a 
utility regulator to reject the rate  increases for water or electricity on account of them not being 
reasonable, or would such a rejection be found to be subjective, and therefore, not objective. He 
enquired whether Members would be taken to a dispute for ensuring the protection of the socia l 
interest of their people and whether a financial regulator who had taken a decision to close a 
number of foreign exchange bureaus on account of that fact that owners and board of directors 
lacked fitness and probity, would be found in breach of the objec tivity test. Fitness and probity 
allowed the regulator the latitude to deal with a wider problem of suspected money laundering by 
these entities. He asked whether an obligation to do an environmental impact assessment before 
allowing a mining project or gr anting a building permit could qualify as unduly preventing the 
fulfilments of requirements. In other words, did the proposed disciplines allow for an 
environmental impact assessment to prevent mining or building businesses from going ahead. He 
enquired wh at the understanding of the proponents was of the notions of independence and 
impartiality and whether any form of stakeholder consultations could be considered to have lacked 
independence. Decisions reached in an independent manner potentially raised prob lems for 
consultation processes, commissioning of evidence and reports, and inquisitive practices common 
to bodies concerning applications for authorizations and licenses or when establishing 
environmental, health and safety or construction standards. He s tated that the plain reading of the 
word "impartial " would imply neutrality that would count against proactive ways to seek out 
opinions or support for those with fewer resources to participate in decision -making processes. 
This provision would make it a v iolation for governments to show partiality to particular categories 
of applicants, such as non -profit organizations, small businesses or disadvantaged groups. Some 
LDCs maintained  a waiver of licensing fees for military veterans and in other instances pro vided 
discounted fees for disabled veterans. He asked  whether the above would be considered to be in 
violation of the provisions of the proposal. He enquired what problems proponents were seeking to 
cure by the proposed disciplines and asked them to share concrete examples illustrating why 
Article VI of the GATS, as it currently stood, was not sufficient to address the proponents ' 
perceived concerns, especially in  light of Ar ticles VI:1, VI:2 and VI:5. He questioned  whether these 
provisions had failed and i f that was the case, whether it was because of the way they had been 
crafted or because of their implementation. He asked whether the proponents had established the 
necessity of these proposals and what the inherent problem was with the GATS, as it stood. Who 
was meant to determine what was objective and reasonable and what the standard measurement 
or criteria for these concepts were. He enquired what competing factors had been considered and 
in the context of whose legal and administrative traditions. He enquired  how the proponents would 
compare the "Development of Measures " proposal with the "Transparency " proposal. The 
"Development of Measures " proposal stressed the objectivity test, yet the "Transparency " proposal 
appeared to allow for the subjective opi nions of the public to be considered. He enquired how this 
proposal promoted the right to regulate. In his view, the proposal was an exception to the right to 
regulate, as it rendered any attempt to regulate redundant.  
2.205.   The representative of New Zealand  thanked the representative of Turkey for her 
statement. The co -sponsors of the proposal on "Development of Measures " (JOB/SERV/252/Rev.2) 
along with  New Zealand, included Chile, Switzerland and Hong Kong, China, and were a diverse 
group of Members who did no t have the same regulatory heritage and were also very diverse 
geographically. Proponents were not promoting a specific regulatory approach but were suggesting 
an approach that could work with a variety of different regulatory regimes. The proposal was mor e 
about the principles, rather than about the specifics of Members ' regulatory regimes. She indicated S/WPDR/M/71  
 
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  that her delegation would appreciate hearing more from the African Group and other Members 
regarding their existing regimes and precise problems with the proposed disciplines. Turning to 
discrimination , she stated that this issue was dealt with elsewhere in the GATS, namely the non -
discrimination disciplines of MFN and National Treatment , which were already enforced by all 
Members, and that the DR proposals did not deal with this type of discrimination. The proposed 
disciplines would benefit domestic suppliers and for that reason New Zealand had already 
implemented these disciplines not only in committed sectors, but across the economy. She 
disagreed with com ments suggesting that the proposals were preventing regulation, and stated 
that the right to regulate was an inherent part of all proposals. She drew Members ' attention to 
the fact that if they did not regulate, the disciplines would not apply, so the very  fact that these 
disciplines had been proposed signified that there was going to be continued regulation. The 
necessity test, on the other hand, was an important, yet familiar safeguard against unduly 
burdensome and disproportionate regulation. In other wo rds, the necessity test was a matter of 
good governance and something that effective regulators would follow as a matter of course. The 
proposal was useful for good governance, for services suppliers, local and foreign, the large 
majority of which were MSM Es, and consumers.  
2.206.   The representative of the Plurinational State of Bolivia  repeated concerns about the 
implication of certain terms and expressions that had been used by the proponents. The proposed 
disciplines implied that changes to legislation were go ing to be needed, as disciplines referred to 
measures that had been adopted or maintained. He asked what the parameters for making 
changes would be and whether the proposed disciplines would affect all laws, regulations and 
measures adopted by different le vels of government. He said that considering the number of 
sectors involved, the implications would go further than the commitments already undertaken. The 
proposed disciplines had to clarify what types of measures were being aimed at. With regard to 
objec tive and transparent criteria, he held the view that even the word "criteria " had a subjective 
component to it, as every regulator exercised a subjective judgment in choosing the applicable 
criteria. If the intention was to treat all services suppliers in a fair and impartial manner, the 
proponents needed to find better wording to express this. Bolivia had domestic policies that 
promoted certain sectors that had historical problems . In this context, the ambiguous language of 
"objective and transparent " was not very helpful and created certain concerns, as it limited the 
government 's capacity to implement policies aimed at vulnerable sectors. He stated that the 
necessity test limited the prerogative of the country to legislate according to established 
procedu res. He noted that having to carry out a necessity test might not be very useful in the 
domestic context. He enquired at which step the process would start impeding the implementation 
of the disciplines and what the standard would be for defining whether t he proposed requirements 
impeded a particular regulatory approach. The level of development and policy needs of 
developing countries would have to be taken into account. Regarding the concept of impartiality, 
he enquired whether it implied national treatme nt or most -favoured nation treatment. Bolivia 
wanted to support certain sectors that had been historically marginalized. He requested clarity on 
whether measures adopted for that purpose would be considered to be not independent. He fully 
shared the opinio n of South Africa that Members had to take into account the levels of 
development and varying stages of the regulatory development.  
2.207.   The representative of Swaziland  noted in response to the EU that the list of non -exhaustive 
criteria went beyond trade in services and could be used by Members to determine their own 
respective criteria to develop measures. The open -ended list of criteria would be open to abuse 
and disc retion. GATS Article VI:4 was being abused . The fact that the criteria encompassed 
measures beyond trade in services meant that the issue was not a GATS issue and could be dealt 
with outside of the GATS.  
2.208.   The representative of Egypt  recalled his statement from the last WPDR meeting and 
commented on both communications on development of measures. Regarding the EU proposal, he 
suggested  the addition of the following passage at the beginning of the proposal: "(…) while 
guaranteeing the Members ' right to regulate in order to achieve public policy objectives ". He 
considered this addition necessary to preserve each Member 's policy space and the right to 
regulate. In addition to that, he stated that the concept of independence was not synonymous to 
the concept of impartiality. An independent decision required that the decision maker did not have 
formal or informal links with individuals or corporations who had a stake in the case before it. 
Impartiality required that the decision maker was not biased  against certain aspects relevant to 
the decision. The EU proposal referred to both decision making on the measures and the 
administration of the measures which expanded the scope of the GATS. Egypt asked for mo re S/WPDR/M/71  
 
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  clarifications f rom the proponents on how to address those concerns. Regarding the proposal by 
Hong Kong, China, he stated that the necessity test had been a highly contentious issue in the 
negotiations, as its inclusion would affect countries ' autonomy to pursue certain policy objectives. 
Egypt c alled for the proponents to revisit the proposal and consider excluding the necessity test.  
2.209.   The representative of Cuba enquired why the proponents had put forward these disciplines 
and what problems they wanted to solve. She considered the proposals to be  intrusive, as they 
promoted the adaptation of other Members ' regulatory culture into domestic policies. She was not 
convinced that the Article VI:4 mandate dealt with the issue of the preparation of measures, as 
pointed out by South Africa earlier. The do cuments were full of terms that had to be defined, so 
that Members could understand their scope and meaning before they agreed to take on new 
obligations. The interpretation might differ from Member to Member. She enquired why Members 
should accept interfe rence in their domestic decision making process on issues of domestic policy. 
As pointed out by India, she doubted that the environmental criterion was justified in the present  
context , taking into account varying levels of development and characteristics of each country 's 
regulatory model. Regarding the references to international standards, he requested some specific 
examples, namely what sectors were involved, what problems needed to be solved with this type 
of disciplines and what negative experiences t he proponents had had that led them to propose 
these new disciplines.  
2.210.   The representative of Canada , as a co -sponsor of one of the development proposals 
(JOB/SERV/250) , responded to some of the points raised. Regarding the word "objective ", he 
noted that t he definition from the Oxford dictionary stated that "objective " meant "not influenced 
by personal feelings or opinions in considering and representing facts ; not dependent on the mind 
for existence ; actual ". The definition could be contrasted with the def inition of "subjective ", namely 
something objective had to be clear and not a matter of personal opinion, such as the decision on 
whether someone met the criteria or not. Affirmative action type policies needed to be respected 
and encouraged, such as a min imum quota for women in a certain sector, where a Member could 
have objective criteria of gender which could not be influenced by personal feelings or opinions. 
The use of the word "objective " did not preclude any measure that would be targeted at a certai n 
group of people. He pointed out that objectivity had nothing to do with discrimination, as even a 
very discriminatory policy could be clear and objective. He mentioned that including objective 
criteria promoted predictable and consistent outcomes in lice nsing and qualification decisions and 
reduced space for corruption and discrimination. Regarding a question by Swaziland on the 
footnote, he explained that the footnote was not infringing on the right to regulate, and was on the 
contrary the embodiment  of the right to regulate, as  in developing their licensing and qualification 
regimes Members could use criteria that went beyond competence and ability to provide a service. 
This would allow Members to pursue a whole range of public policy objectives. The foo tnote in no 
way suggested the exact criteria that a Member could use. Neither did it suggest that the WTO or 
foreign governments had to approve the criteria Members chose domestically.  
2.211.   The representative of Cameroon  wondered if the proponents thought that the concerns 
raised were of value and should be answered . He was interested to see  whether the proponents 
were going to cherry -pick and only respond to  the questions they liked to answer. He stated that 
disciplines had to be developed through negotiation a nd not imposition, notwithstanding the size of 
Members involved in the negotiation. The specificity of the WTO was that each Member had one 
vote. He stated that his delegation expected answers to each question and if the proponents were 
suggesting having o bjective and transparent regulations, then also during the negotiations the 
criteria of objectivity and t ransparency should be upheld. Each country had a sovereign right to 
present what it wanted to, and a refusal to reply was a negotiating position that m eant that 
proponents considered the questions unworthy of the reply. Objectivity had to start in the room 
and not in the regulations. He asked the EU and co -sponsors explain what the situation would be 
in the case of disputes in the WTO with respect to obj ectivity and impartiality and what insights 
the audit of WTO case law could provide.  
2.212.   The representative of Chile reiterated that the proponents were not seeking to impose any 
model on other Members, as the WTO had a lot of Members with different legal fra meworks and 
needed flexible principles that recognized this variety. Regarding the point made by Uganda on the 
public policy objectives that went beyond trade concerns, such as security, universal access to 
services, etc., he stated that proponents did not  deny that each Member had a legitimate right to 
regulate and pursue a plethora of public policy objectives at the national level. Proponents were 
looking to establish basic principles of good regulatory practice. The proposal co -sponsored by his S/WPDR/M/71  
 
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  delegatio n had explicitly recognized the right to regulate and to pursue regulatory issues that each 
Member considered to be of importance in their particular situation. Regarding the scope of 
application of the proposal, it should be limited to the general framewo rk and scope of the GATS, 
meaning all GATS rights and obligations, including General and Security Exceptions, would apply to 
the proposed disciplines. With respect to the concepts of "objective ", "impartial " and "transparent ", 
those terms were not mathemat ically precise, as they were meant to be adapted to different 
countries ' regulatory situations, as pointed out by Canada in quoting the definition from the Oxford 
dictionary. The words needed to be interpreted according to their general meaning. The concep ts 
would be interpreted on a case by case basis, taking into account all the relevant elements of the 
situation. The level of development of a Member was a relevant item to be taken into account. 
Article VI:4 did not deal with all the relevant issues of na tional regulation. Regarding Bolivia 's point 
that the scope of application was not clear, he referred Members back to his comments on the 
scope of application of the proposals and of the GATS. As regards concerns relating to provision of 
support to vulnera ble groups of population, those matters were national treatment considerations, 
and not covered by domestic regulation. Regarding the specific problems proponents were trying 
to solve, he noted that in some economies there were regulatory practices that af fected trade in 
services and could be improved in future.  
2.213.   The representative of Guatemala  asked the co -sponsors of JOB/SERV/252/Rev.2 to provide 
a more detailed view of the paragraph dealing with international standards of relevant 
international organizat ions as a parameter to determine compliance with the paragraph.  
2.214.   The representative of the Bolivarian Republic of Venezuela  shared the concerns expressed 
by previous delegations on the implications of the proposals in terms of the right to regulate. The 
footnote talked about the environmental impact, but the government of Venezuela was also 
dealing with other types of social, economic and security impacts when establishing laws and 
implementing development policies. Venezuela needed particular regulations in  the petroleum 
sector where the country had made bad  experience s. Any proposal should include a reference to 
the development needs of Members. When the government was trying to deal with objectives in 
key sectors of the economy, the criterion of objectivity was problematic. With respect to 
impartiality, he feared that a government could be in violati on of the proposed provision if it 
provided certain disadvantaged groups with particular support.  
2.215.   The representative of Zimbabwe  echoed the statement made by South Africa on behalf of 
the African Group and Uganda on behalf of the LDC Group, as well as othe r like-minded 
delegations. The proposals were not compatible with Zimbabwe 's national policy objectives, as 
they obliged the regulators to be objective, independent and impartial in developing regulation. 
The attempt by Canada and others to clarify the mea ning of the above concepts was not sufficient 
and the concerns had not been adequately responded to. She enquired how Members had to 
assess or measure whether the development of disciplines had been carried out in an objective, 
independent and impartial ma nner. Members had to regulate to meet national policy objectives 
that might also include social objectives, yet in doing so, Members ran the risk of being considered 
partial and not independent. The proposed terms were vague and intrusive and infringed upo n 
Members ' right to regulate. Regarding the implementation, she asked who would define the terms 
used in the future disciplines. She also reiterated the question of where the proponents took the 
mandate from and whether the necessity of these disciplines h ad been established.  
2.216.   The representative of Chinese Taipei  thanked Egypt for concrete suggestions. Services 
could produce economic contributions for the whole society and improve the quality of life. He 
noted that no country could prosper without an effici ent services sector. Goods producers and 
exporters would not be competitive without efficient services sectors, such as banking, telecom or 
transport services. The benefits of services transparency extended far beyond the services industry 
itself and had a  major spill over effect on other economic activities. The proposal would benefit 
both domestic and foreign suppliers in both developing and LDC Members.  
2.217.   The representative of Kazakhstan  shared their experiences and examples on the right to 
regulate, tran sparency, prior publication and other issues. As a Recently Acceded Member (RAM), 
Kazakhstan had undertaken commitments on the transparency of licensing requirements and 
procedures. The commitments showed that the government was open to businesses ' opinion s and 
demonstrated good governance. Licensing and qualification requirements could create a burden for 
business, whereas the mechanism for publication and prior comments could assure the private 
sector that their opinions had been taken into account when t he government elaborated on laws S/WPDR/M/71  
 
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  and regulations. The Ministry of Justice of Kazakhstan had created an official online portal where 
all laws and regulations were available to both foreigners and locals. With regard to prior 
comment , business associations i n Kazakhstan provided their comments to the government with 
regard to licensing and qualification requirements and procedures and technical standards. With 
regard to the criteria of transparency, objectivity and independence, Kazakhstan had this language 
in its WTO accession commitments, but that did not mean that the government had lost the ability 
to regulate: e.g. the government could still adopt measures on alcohol and environment licensing 
if considered necessary to protect health, environment and secu rity of the citizens.  
2.218.   The representative of Swaziland  commented  on the responses provided by Canada on the 
issue of objectivity. The definition of objectivity, as explained by Canada, could not be accepted by 
the delegation of Swaziland, as it carried ele ments of subjectivity. He challenged the proponents to 
prove his delegation otherwise. Additionally, he stressed that the right to regulate should be part 
of the proposal.  
2.219.   The representative of Colombia  supported the proposals and felt that the concerns 
expressed had been taken into account. The footnote clarified the need to have some flexibility 
with regard to the scope of application of the proposal. Colombia had growing concerns on 
environmental issues, and local authorities were actively involved in t he licensing process. Their 
autonomy was justified by the fact that they protected the local system. Colombia had a vast 
biodiversity; therefore environmental considerations affected licensing decisions. The criteria that 
applied to approving licenses vari ed form one region to the other, taking into account the 
environmental aspect. The footnote definitely took into account c oncerns of a developing country  
such as Colombia.  
2.220.   The representative of Switzerland  echoed the statements made by Hong Kong, China, N ew 
Zealand and Chile. She emphasized the merits of the proposal in addressing the mandate of VI:4 
in full. In order for the mandate to be fulfilled entirely, the discussion had to include all disciplines 
listed in GATS Article VI:4. She recalled that the o verall purpose of the disciplines was to ensure 
that measures relating to the five categories of measures did not constitute unnecessary barriers 
to trade in services.  
2.221.   The representative of South Africa  responded to the responses that the proponents had 
offered. The right to regulate language provided by Australia in the development text did not 
overwrite all substantive disciplines contained in all the proposals on the table. India previously 
provided an insight of the WTO jurisprudence on the right to re gulate and how Panels had 
addressed this right through the years. Hong Kong, China 's statement (JOB/SERV/259), in 
paragraph 1.8, had quoted a Secretariat note (S/WPDR/W/27) in saying that "necessity tests 
established the WTO consistency of a measure based on whether a measure was necessary to 
achieve certain policy objectives. This concept reflected a balance in the WTO Agreements between 
two important goals: preserving the freedom of Members to set and achieve regulatory objectives 
through measures of thei r own choosing and discouraging or preventing Members from adopting 
measures that unduly restricted trade. The necessity test typically achieved that balance by 
requiring that measures that restricted trade in some way, including by violating the obligatio ns of 
the Agreement, were permissible only if they were necessary to achieve Members ' policy objective. 
In so doing the necessity test confirmed the right of Members to regulate and pursue their policy 
objectives ". Proponents had stated several times that the disciplines would not impede the right to 
regulate and that the state had the last word. She enquired how the proponents could justify that 
the state indeed had the last word and that the Members ' right to regulate was absolute. 
Regulation was a functi on of a democratic government and a tool by which a state created the 
policy space necessary to achieve certain objectives. South Africa had only recently overcome 
apartheid and racial oppression and regulation had been used to redress the historical injus tices. 
These regulatory goals and legitimate policy objectives were not limited to trade; they were used 
to address or prevent market failures, address important domestic objectives in key sectors or to 
prioritize social, community health and safety, or ev en political objectives over trade ones. The 
necessity test infringed upon the government 's sovereign right to regulate, as not only did it shift 
the burden of proof on governments to demonstrate that the measure was necessary to achieve a 
public policy ob jective, but the government also had to show that it was the least burdensome 
measure that could have been taken. She enquired in what way the governments actually had the 
last word. The proposals had made it clear that they would require evidence -based de cisions and 
impose onerous decision -making practices. The reading of the development of measures and 
transparency proposals together invited all interested persons, commercial actors and other S/WPDR/M/71  
 
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  Members, to have the last say, in determining why and how measu res were developed and 
implemented. This approach oversimplified regulation because it assumed that trade is an end in 
and of itself and that the assessment of risk and precautionary measures had no place in 
regulation. In its statement, Hong Kong, China h ad stated in para. 1.5 that in order to fulfil the full 
mandate of Article VI:4, Members had to include a necessity test in the disciplines. At the March 
meeting New Zealand had repeated the same point. She furthe r quoted the mandate of 
Article  VI:4 and no ted that the reference to "shall aim " was a verb which meant that the disciplines 
shall have the intention of achieving a target. In other words, paragraphs a, b and c merely 
established the aim of the disciplines. Furthermore, paragraph b attributed such requirements that 
were not more burdensome than necessary to ensure the quality of the service. She enquired how 
the proponents intended to ensure the quality of the service. Regarding the footnote, she enquired 
whether the footnote qualified the substanti ve coverage of objective and transparent criteria and 
expressed the view that the rhetorical assurance of the right to regulate was simply inadequate. 
She asked whether Members presumed that general exceptions on health and environment did not 
provide adeq uate protection and why the footnote only made reference to health and environment 
and not development or cultural objectives. She asked the representative of Australia whether in 
their proposal the footnote referred to the measure that was developed or th e decision that was 
administered by the regulator. If the latter was the case, she enquired how this reconciled with 
para. 1(d) of the proposal. She pointed out that the proposal in JOB/SERV/250 applied to existing 
and future measures using words "maintain " and "adopt ". She asked whether the broad coverage 
of measures, if adopted, would mean that developing countries would have to review all their 
regulations to ensure that they conform to the requirements for measures to be based on 
objective and transpare nt criteria and amend them if they did not,  and she enquired why the 
terms "reasonable " and "impartial " which were contained in GATS Article VI:1, had been 
transposed into negotiations under the GATS Article VI:4 mandate. Regarding exceptions, she 
noted th at both GATT and GATS exceptions had only been successfully employed to actually 
defend a challenged measure in one of forty attempts. She therefore asked whether these 
disciplines could really provide effective safeguards for domestic policies. The criter ia described in 
the proposal and the policy development techniques ultimately pushed governments towards a 
least-burdensome approach that marginalized non -commercial interests even without a necessity 
test. She found it ironic that requiring procedures to not unduly prevent fulfilment of requirements 
was actually subjective. Additionally, it was unclear how far this would take account of context, 
e.g. regional or local governments that had obligations to consult communities of interest. They 
were impossible  for regulators to predict in advance and could therefore have a chilling effect. The 
uncertainties and potential for challenge heightened when dealing with cross -border services. 
Notwithstanding all the definitional questions on terms, such as "adopt ", "maintain ", "measures ", 
"based on ", "objective ", "transparent ", "objective and transparent ", "criteria ", "adequate ", the 
fundamental question was how, with or without the necessity test, the prescribed regulatory model 
closed the space for governments to re-regulate, if or when this model failed. She stated that the 
statistics had shown that even in proponent countries the best practice regulations were followed 
by a series of policy and regulatory failures.  
2.222.   The representative of Rwanda  endorsed the statem ent made by South Africa on behalf of 
the African Group and Uganda on behalf of the LDC Group. He considered the subject matter to be 
extremely broad with enormous implications for development that would be hard to capture in the 
context of the proliferati on of the digital economy and the servicification of goods. He asked what 
the proponents meant by development of measures. "Measures ", as defined in the GATS referred 
to "any measures adopted by a state in the form of a law, regulation, rule, procedure, de cision, 
administrative action or any other form ". If all of these would have to comply with the criteria of 
objectivity, transparency, impartiality and would be subjected to comments, this was a way of 
impeding the right to regulate. He referred to a 2012 Report on Regulatory Impact Analysis that 
had proved that the proposed best practice measures had not even been respected in proponent 
countries themselves. The Report also criticized the implementation of those measures by a 
particular proponent country. He held that poor countries would be scrutinized to ensure that they 
had been applying prescribed disciplines, whereas those countries had no capacity to verify 
whether the countries such as the US, the EU or New Zealand strictly complied with the proposed  
disciplines. He opined that, as a result, poorer countries would find themselves in a situation of 
regulatory capture where they could no longer regulate. Going through structural transformation 
had also had a weakening impact on developing countries ' economies. Developing countries could 
not simply accept disciplines being imposed on them. He noted that TiSA parties had not been able 
to come to an agreement in five years and urged proponents not to expect the WTO Membership 
to reach an agreement by Buenos  Aires.  S/WPDR/M/71  
 
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  2.223.   The representative of Ecuador  enquired w hich bodies would carry out an assessment of 
whether measures were developed in line with the proposed obligations, and what would be the 
consequence if certain regulations would not meet the requirements set  out in those obligations or 
were not appropriate. His delegation also believed that there needed to be certain flexibilities 
considering the level of development of the countries and their right to regulate according to their 
needs.  
2.224.   The representative of Uganda  reverted to a point made by the EU with respect to the word 
"arbitrary ". He wished to clarify that one of the ways objectivity had been defined in WTO 
jurisprudence was that one of the elements that constituted a decision was to avoid being 
arbitrar y. The Appellate Body had interpreted the term "arbitrary " in the context of GATT 
Article  XX. They ruled that to impose a single rigid and unbending requirement and to enforce it 
with rigidity and inflexibility constituted arbitrary discrimination. Against  this backdrop, he 
enquired whether fixed rates of return for water concessions that were set by a Member would be 
considered to be a rigid and unbending requirement. Likewise, he enquired whether a mandatory 
allocation of a fixed percentage of fee increas es to staff salaries in private education institutions 
would be considered to be arbitrary. He argued that in an instance where a domestic regulation 
allowed a utility regulator to reject rate increases of water or electricity on account of them not 
being just and reasonable, such a regulation would be considered arbitrary. This logic suggested 
that a Member could be taken to dispute settlement for introducing such a regulation.  
2.225.   Returning to a comment by Canada  with respect to the definition of "objective ", he 
believed Canada had relied on a definition situated in the Oxford dictionary. He invited Canada to 
consider the question by Cameroon to look at the WTO jurisprudence on how these concepts had 
been defined, as the jurisprudence would determine the cont ext within which Members would be 
required to implement the provisions, should they agree to adopt them.  
2.226.   The representative of the European Union  replied to questions that had been raised earlier 
in the discussion on the proposal by co -sponsors on "Develop ment of Measures ", JOB/SERV/250.  
With regard to questions raised by the African Group, he noted that the African Group had 
expressed concerns that the proposal prescribed a particular approach to discipline how 
governments developed domestic measures, and that the proposal was based on a one -size fits all 
approach or model to regulation.  The delegation of the EU disagreed with the view that the 
proposed text on development of measures was a one size fits all model. Such an approach would 
be impracticable fo r an organization as diverse as the WTO. The EU itself was a demonstration of 
rich diversity when it came to regulatory approaches. There was no one model regulatory 
approach across the EU 's 28 Member States and its market of 500 million services consumers . The 
EU would never subscribe to  one prescriptive  model of services regulation. The proposal that the 
EU had co -sponsored defined goals of regulatory practices. By ensuring objectivity, transparency, 
and impartiality, obligations were created to achieve a  given outcome. However, the  way the 
outcome or objective was achieved was left to the discretion of each Member. Whether any 
Member decided to legislate or use administrative rulings, to enact measures at different levels of 
government or not, to enact se ctoral or horizontal measures was up to each Member, in respect of 
its constitutional system and regulatory culture.  However, he acknowledged the concern and 
expressed willingness to work towards bringing additional comfort to the proposal. The EU was 
ready to discuss what additional language would make it clearer that those disciplines should not 
be construed to prescribe or impose particular regulatory approaches.  
2.227.   He noted that the African Group had questioned whether the GATS provided a mandate for 
the development of measures. The EU was confident that its proposal on development of measures 
fell squarely within the remits of GATS VI:4, even if the title of the proposal was different from the 
exact wording of GATS Article VI. The proposal was not a gener al obligation on services 
regulations, but dealt specifically with the development of measures relating to qualification 
requirements and procedures, licensing requirements and procedures and technical standards that 
were necessary steps to be fulfilled in  an authorization process and was hence perfectly within the 
boundaries of GATS VI:4. Turning to the questions as to whether the proposal had been subjected 
to its own necessity test, the representative of the European Union stated that his delegation had 
indeed carefully reviewed its proposal and had deliberately decided to only propose provisions that 
were reasonable and of an achievable level of ambition.  
2.228.   With regard to the question by several Members as to whether the "right to regulate " 
overrode any su bstantive disciplines being proposed, he expressed the view that the right to S/WPDR/M/71  
 
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  regulate was a horizontal concept, both in relation to market access and domestic regulation. It 
was the recognition that specific commitments or disciplines did not take away th e policy space to 
define, for example, whether a country decided to have qualification requirements or not, or how 
many licensing requirements it wanted to establish.  That said, the recognition of the right to 
regulate was not an exception to the proposed disciplines. Several carve -outs and exceptions 
existed:  e.g., general exceptions that could be found in the GATS, such as Article XIV and XIV bis. 
He further drew attention to the qualifiers throughout the text, such as for example: "where 
applicable /possi ble". Finally, he recalled that the disciplines proposed only applied where a Member 
had specific commitments, and were hence not conceived as horizontal disciplines that applied to 
the entire services economy.  
2.229.   He then turned to an enquiry by the African G roup about the role of the state in developing 
measures to achieve a particular set of non -trade domestic objectives, and whether those 
measures would be considered discriminatory by the proposed DR disciplines. The disciplines that 
the EU and co -sponsors of JOB/SERV/250 had proposed would not prevent a state from achieving 
a particular set of domestic objectives, such as environmental or labour  policy, as long as the 
development of such measures complied with the broad objectives of objectivity and transparency. 
Where a government wished to introduce a discriminatory requirement, the domestic regulation 
disciplines would not come into play. The question of discrimination would be addressed through 
any national treatment or market access commitments. Discriminatory measures were possible 
where sectors had not been inscribed in schedules, or where relevant limitations had been entered 
in the schedu les. On the relationship between the proposal on "Development of Measures " and the 
General Provisions paragraph in the "Administration of Measures " proposal, he noted that the 
latter intended to define the scope of the entire set of disciplines. From the E U perspective, the 
development of measures disciplines applied to all measures relating to procedures and 
requirements to supply a service. He recalled that at an earlier meeting, the African Group had 
commented that the proposal appeared to be working fro m a baseline presumption against any 
new or increased regulation, and asked whether proponents wished to prescribe their own 
regulatory approach to all WTO Members. Replying to that question, he stated that the proposal 
was not based on a presumption again st new or increased regulation. Nothing in the proposed 
disciplines would prevent more regulation. The European Union and its internal market had been 
built through regulation and in no circumstances would the EU want to prevent Members to 
regulate. He cou ld not follow the reasoning behind this concern or assumption and did not see 
anything in the text that went in that direction. The EU was not aiming at imposing its model or 
practices on all WTO Members. While the internal EU model was compatible with the  proposal, it 
went much deeper and wider than that. The aim of the proposal was to define common criteria for 
the development of measures relating to qualifications and licensing in sectors where Members had 
commitments. The EU believed that objectivity, t ransparency, and impartiality were shared goals 
of all WTO Members. At the last meeting, one Member declared that arbitrariness was sometimes 
necessary for development. The representative of the EU failed to see how arbitrary decisions 
could ever be helpfu l. On the contrary, evidence showed that a rules -based system that ensured 
fairness in process contributed to economic growth.  
2.230.   Moving to comments expressed by South Africa, he first addressed the "necessity test " on 
which substantial concerns had been exp ressed also by the LDC Group. As Members knew, the EU 
and other co -sponsors had deliberately chosen not to include such a test in their proposal 
(JOB/SERV/250). His delegation related to the concerns expressed by South Africa and believed 
that engaging tow ards defining a necessity test for services regulation would not be productive. 
The EU considered that the proposal it was co -sponsoring contained the right balance in a much 
more realistic way without the necessity test.  With regard to the footnote in the  proposal, South 
Africa had enquired about the meaning of the footnote, what part of the proposal it was qualifying, 
and whether the footnote would confirm the right to regulate. Co -sponsors had included the 
footnote to provide examples of criteria that co uld be used when developing regulation. The list 
was non -exhaustive, and confirmed that Members were free to choose a wide range of criteria as 
long as they were objective and transparent.  Another question related to the footnote was why the 
footnote only made reference to health or environment, whether the general exceptions on health 
or environment provided adequate protection, and whether it could also include development or 
cultural objectives. The representative of the EU stated that the list in the fo otnote reflected the 
discussions to date among co -sponsors, but he was open to a discussion of what the broader 
membership would need to see appearing in that list.  S/WPDR/M/71  
 
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  2.231.   He noted that South Africa had also sought clarity as to whether the footnote related to 
the measure that was developed, or the decision that was administered by a regulator. In case of 
the latter, South Africa asked how that reconciled with para 1(d) of the proposal. The 
representative of the EU explained that the footnote referred to those mea sures relating to LP, LR, 
QR, QP, and technical standards that were required for the authorization to supply a service. Such 
measures shall be based on objective and transparent criteria. Once developed, those measures 
would be administered by an authority  defined by each regulatory system. As paragraph 1 d. was 
indeed intended to apply both to development and administration of measures, co -sponsors were 
reflecting about the best placement of the discipline He recalled that South Africa and LDCs had 
noted t hat the proposal applied to both existing and future measures, and enquired whether 
developing countries would have to review all their regulations to ensure they conform ed to the 
requirements contained in the proposed disciplines. The representative of th e European Union 
confirmed that the disciplines would apply to relevant existing and future regulations and that all 
Members would hence have to review relevant regulation so as to ensure their compliance. The EU 
was interested to hear which kind of develo pment provisions would be needed, in order to leave 
sufficient time to address this issue. As the disciplines were intended to apply only to existing 
commitments, and the existing sectoral coverage was rather low, the scope of regulations to 
review remaine d limited at this stage.  As for the question by South Africa on why the terms 
"reasonable " and "impartial " contained in GATS Art. VI:1 had been transposed to proposals under 
the GATS Art. VI:4 mandate, he stated that the EU proposal only referred to the te rm "impartial ", 
in relation to procedures. The EU believed that this concept contributed to achieving the objectives 
of GATS Article VI:4, and allowed for more precision and specificity. He took up the issue noted by 
South Africa that the criteria in the p roposals ultimately pushed governments towards the "least 
burdensome " approach that could marginalize non -commercial interests even without an explicit 
necessity test. The requirement to ensure that measures were based on objective and transparent 
criteria , as well as the impartiality of procedures, did not lead to the "least burdensome " approach. 
As already indicated, the EU was clearly opposing the necessity test and would not want this test 
to be present in a disguised fashion. The EU and its Member Stat es regulated taking into account 
commercial and non -commercial interests alike, and this did not prevent the EU from subscribing 
to the proposal.  The representative of the European Union addressed another question by South 
Africa, namely whether requiring that procedures did not "unduly " prevent fulfilment of 
requirements (para 1 b), introduced an element of subjectivity, and whether it left unclear how far 
this would take account of, for example regional or local governments that had obligations to 
consult  communities of interest. He stated that the view clearly showed the differences between 
the two proposals on development of measures that were on the table. The version proposed by 
the EU and co -sponsors, which suggested that "procedures do not in themselves unduly prevent 
fulfilment of requirements " provided clear cut language. It reflected a binary situation that could 
be clearly identified, and might differ from the concept of "impairment ", which the EU had not 
supported. He believed that the con cern raised in this question could be addressed by the use of 
"prevent " instead of "impair ". He could not see how and why the proposed language would be an 
obstacle to consulting communities of interest.  The representative of the European Union 
responded t o the question by South Africa on whether the prescribed regulatory model would close 
the space for governments to re -regulate if or when this model failed. He stated that the proposal 
by co -sponsors did not prescribe a particular model but defined objecti ves that could be achieved 
differently, in line with each Member 's regulatory practice. Neither did the proposal prevent 
Members from re -regulating. The disciplines contributed to the fight against arbitrariness, as had 
been explained at the last meeting. The fundamental questions were why Members would leave 
room for arbitrariness in sectors where they had made commitments, and how arbitrariness 
contributed to the achievement of development goals.  
2.232.   Moving to the comments expressed by the LDC  Group, he recal led that t he LDC Group had 
expressed concerns on the potential adoption of disciplines that would require trade considerations 
to prevail over other legitimate policy objectives of domestic regulation, such as access to 
services, or employment consideratio ns. He re -emphasized that the proposal had neither the 
intent nor the effect of preventing Members from achieving policy objectives such as security or 
people 's access to services. Even more, while the proposed disciplines did not curtail this right, the 
text reconfirmed that sovereign right in multiple locations.  
2.233.   He took up the issue regarding the assertion that the proposed criteria would constrain the 
capacity of states to effectively regulate services activities when pursuing such goals. On the 
contrary , by requiring that measures had to be objective, impartial and transparent, effective 
regulation of services was ensured. Those principles were at the heart of effective regulation.  S/WPDR/M/71  
 
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  2.234.   He recalled that the LDC Group had expressed concerns on the use of the terms "objective 
and transparent ", and had enquired whether an affirmative action measure put in place by a 
Government would be incompatible with the proposal. By the same token, it ha d also been asked 
whether business -licensing decisions that gave weight to public opinion, such as for opening bars, 
could be considered to be based on non -objective regulatory criteria.  He noted that the added 
value of proposing that measures had to be ba sed on "objective and transparent " criteria was to 
provide protection of services suppliers – both local and foreign – from arbitrary decisions. While 
guaranteeing the discretion of the regulatory authority, the proposed text on development of 
measures ens ured at the same time that such discretion would not be abused. In a nutshell, the 
proposed approach could be summarized as follows: discretion but no arbitrariness. Objective 
criteria should not leave a margin of appreciation to the competent authority in  a way that would 
allow for arbitrary decisions. This was necessary to ensure that all operators were treated fairly 
and impartially, and applications were assessed on their own merits. He recalled that the domestic 
regulation disciplines would de facto  equally apply to foreign and local service suppliers. Therefore, 
such rules were to the benefit of the domestic services market as well. Next to that, transparency 
guaranteed that authorization schemes were comprehensible for all potential applicants and tha t 
the different requirements were known in advance. With respect to affirmative action measures, it 
was important to recall that if preferences were accorded to certain groups or if discrimination was 
established by a Member, such measures in sectors with commitments might be inconsistent with 
national treatment or market access unless scheduled.  The DR disciplines would not apply to such 
measures.  Public order considerations were not incompatible with the proposed disciplines. Noting 
that the LDC Group had  shared a series of concrete examples which his delegation would attempt 
to address, he cautioned that it was difficult to address specific examples or solve a practical case 
in the absence of a real and concrete situation.  In such situations, many element s were missing to 
arrive at a definitive answer.  
2.235.   Turning to the question of whether the proposed disciplines would allow utility regulators 
to reject rate increases of water or electricity on account of them not being just and reasonable, 
he replied that p rice-regulations were usually non -discriminatory policies, present in many sectors 
such as utilities and distribution services. Hence, he failed to see, at this stage, and only on the 
basis of the example provided, how such controls were contravening rules  on trade in services. 
Price regulation was not incompatible with the proposed disciplines, which addressed requirements 
and procedures for the authorization of services. Price regulation would not appear to relate to 
such requirements, it might be related  to public procurement, and would be outside of the scope of 
the discussion.  He then addressed the question of whether a financial regulator could be  found in 
breach of this objectivity test if it decided to close a commercial presence because  the owners a nd 
board of directors lacked fitness and probity. He stated that ability and competence were among 
the usual criteria used in the financial services sector as a condition to provide services. It was 
understood that failing to meet such requirements might l ead to financial services suppliers not 
being authorized to provide their services anymore. If one assumed that the regulator acted on the 
basis of a motivated decision, and had showed that the requested criteria were not met anymore, 
an objectivity requir ement would not prevent the regulator from acting. One should not confuse 
the fact that measures had to be based on objective criteria and the fact that each situation and 
application would be specific.  The representative of the European Union explained th at 
requirements for environmental impact assessments would in no way be incompatible with the 
disciplines, and would not be "unduly preventing fulfilment of requirements ". The proposed 
obligation was not concerned with the substance of the assessment, but sought to ensure that the 
conduct of an impact assessment, which might take several months, should not make it impossible 
for services suppliers to meet a deadline for application. He further clarified that the notions of 
"independence " and "impartiality " in paragraphs 1 (c) and (d) did not preclude any form of 
stakeholder consultations. The purpose of the provision was to ensure a level of independence 
from, for example, other services suppliers. Decisions should be taken on the merits of the 
individual ap plication, and not based on the interests of other services suppliers.  The notion of 
"impartiality " meant to ensure that all applications were treated equally and fairly, on their own 
merits. Preferences to certain groups were issues of market access and n ational treatment, and 
were therefore outside the scope of DR. Turning to the question on the types of  problems the 
proponents were seeking to alleviate  with the proposed disciplines, he stated that proponents were 
looking for additional guarantees for ser vices suppliers, both domestic and foreign, who would 
benefit from due process. The in -built agenda of GATS Article VI:4 had value in helping shaping 
those additional guarantees, as it made basic principles more precise and specific.  S/WPDR/M/71  
 
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  2.236.   In response to the que stion of who determined what was objective under the disciplines, 
he replied that the creation of a benchmark was a standard practice in WTO rule making and, the 
proposed provisions referring to "objectivity " and "transparency " were no different from existing 
obligations that were primarily determined by each Member implementing the provision, and were 
ultimately subject to review by the dispute settlement mechanism.  He noted that the LDC Group 
had requested clarification on how  the requirement of objectivity in the "Development of 
Measures " proposal could be reconciled with the consideration of subjective opinions of the public 
in the "Transparency proposal ". He explained that stakeholder consultation was an important 
feature of  transparency. Such consultations did not lead to subjective criteria but provided an 
opportunity to gather views. Consultations of stakeholders did not lead to subjective procedures or 
requirements.  
2.237.   The representative of Hong Kong, China  expressed his hop e that the statement delivered 
at the informal meeting in May, and circulated in JOB/SERV/259, had helped facilitate Members ' 
understanding of the proposal contained in JOB/SERV/252.  At the informal meeting on 9 May, a 
question had been raised whether "independent manner " in paragraph 1(e) meant that there was 
independence for competent authorities in making and administering decisions, or whether the 
competent authorities should be independent in assessing whether the service suppliers were in 
conformity w ith the requirements.  He explained that the proposal served both purposes, and that 
competent authorities should act independently when making their decisions and they should also 
act independently in assessing whether service suppliers were in conformity with the 
requirements.  The focus would be on how the competent authorities developed and implemented 
their decisions including their guidelines and requirements.  There was no problem repeating the 
same proposal under administration of measures if there was  consensus among Members.  
2.238.   Another question related to the co -sponsors ' intention of incorporating international 
standards at the end of paragraph 1 and footnote 2.  He pointed out that the concept of referring to 
international standards of relevant interna tional organizations applied by the Member adopting or 
maintaining the measure, was already contained in GATS Article VI:5(b). The footnote was also 
found in the GATS, and stated that "relevant international organizations " referred to international 
bodies whose membership was open to relevant bodies of at least all Members of the WTO.  He 
considered it useful to give guidance as to how to satisfy the disciplines proposed, especially as 
international standards could be a helpful tool in determining whether a proper balance had been 
struck.  He reiterated that the co -sponsors were open to discussing their proposal further, and to 
responding to any questions.   
2.239.   The representative of South Africa  thanked the representative of the EU for their responses 
and constructive approach in involving a collective understanding on all the issues. She posed a 
question on the scope of application of the proposed disciplines. It was often not clear whether a 
measure was "subject to scheduling ". Only after dispute settlement panels had made rulings could 
Members find out whether a measure was subject to scheduling. In some cases measures had 
discriminatory effects even when there was no attempt to discriminate. He r delegation was 
interested in understanding the issue of scheduling in relation to implementing regulations. The 
1993 and 2001 Scheduling Guidelines did not require that Members scheduled their implementing 
regulations. She sought clarity as to whether th is meant that measures that Members thought they 
had protected through scheduling of limitations could still be challenged under the GATS. She 
wondered about the purpose of GATS Articles XVI and XVII if legally permissible limitations could 
be challenged u nder DR disciplines. This appeared to have the de facto  implication of ensuring 
unstated market access even when there were GATS Article XVI limitations. She stated that the 
necessity test was a non -starter for her delegation.  She disagreed with the EU cha racterization 
that the draft disciplines would not  prescribe one regulatory model . The need to have well spel led 
out criteria that did not give regulators the policy space to regulate was prescribing a regulatory 
mode. It was also locking in this model in respect of any future market access commitments. In 
assessing the economic rationale of the proposed rules, net services importers were not suddenly 
going to become net services exporters. Basic trade data revealed that even the largest economy 
in Africa p aled in comparison with even one of the smaller proponent economies in terms of their 
services exports. Simple data analysis of a small sample of African countries that were diverse in 
their levels of development and five proponents, excluding the EU 28, s howed that there was a 
very minimal export growth of services for those African countries. This showed that African 
economies were not major services exporting countries. She did not want to argue that there was 
a direct link between imports, exports, trad e balance on the one hand and the proposed DR rules 
on the other hand; but it perpetuated the misunderstanding that the rules were in fact about S/WPDR/M/71  
 
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  trade. In 2012, services exports for the five proponents of the sample were 48 times more than 
the sample size of the five African countries in the same year. In 2015, the ratio was 90 times 
greater than the sample size of African countries. Projections indicated that in 2050 the bulk of 
world population growth would take place in Africa. Developed countries popula tion growth was, 
on the other hand, declining. According to the "Agenda 2063 - The Africa We Want ", the future 
potential lay in Africa. Africa would be a continent where the free movement of people, capital, 
goods and services would result in significant i ncreases in trade and investment amongst African 
countries rising to unprecedented levels and in strengthening Africa 's place in global trade. In her 
view, the proposals limited African countries ' policy space to determine independently why, which, 
and how  the measures Africa wanted to introduce in its relevant jurisdictions should be taken. The 
proposed measures constituted a regulatory model which would be detrimental to development 
interests of Africa and would adversely impact Africa 's rights to develop ment in the UN and the 
SDGs. The horizontal disciplines were of an extremely broad scope, they would cap future African 
growth, and ensure that African countries did not grow.  
2.240.   The representative of Swaziland  thanked the delegation of the EU for its  respons e, but 
remained nonetheless far from being convinced of the necessity of the disciplines. He needed to be 
convinced that the GATS had failed to achieve exactly what the proponents wanted to achieve 
through the disciplines. He invited proponents to point to  the specific provisions in the Agreement 
that had failed to solve the problems.  Unlike his delegation 's concerns, the responses from the 
proponents were not backed up by any of the WTO legal language, and amounted only to their 
discretional opinion. He al so requested clarity on an earlier raised concern, regarding the EU 
statement that the development of measures had flexible criteria that went even beyond trade in 
services.  
2.241.   The representative of Uganda  thanked the representative of the EU for his replies  which 
had confirmed his delegation 's concerns. With regard to the right to regulate, in his view the EU 
had confirmed that besides preambular language, the right to regulate would be eroded by the 
provisions that were being suggested. WTO jurisprudence cl early specified that the right to 
regulate was not unlimited. So except if Members came up with language that would guarantee 
the right to regulate, the fears expressed would not go away. As for the scope of application, he 
understood that the scope provis ion of the "Administration of Measures " proposal would apply to 
the entire architecture of the disciplines.  That scope was extremely wide and had no limitations 
whatsoever. The proposed scope was consistent with the understanding of the Panel in the EC-
Bananas  case in terms of its definition of the scope of application of the GATS. On the specific 
concerns LDCs had raised on the meaning of the terms "objective ", "transparent ", "independent ", 
"impartial ", the submission by the EU confirmed the concerns , as there was no clearly defined 
scope  of application of these concepts. He suggested to either adopt an approach, as had been 
suggested by one Member, to footnote everything to clarify the extent of application, or to call a 
dedicated session to debate t he extent of application of these concepts. He agreed with most of 
the points raised by South Africa, as LDCs were net services importers and the disciplines were in 
LDC's view basically about unfettered market access.  He thanked the EU for agreeing with L DCs 
that the disciplines would also apply to existing measures, which LDCs considered being very 
intrusive, expensive, unnecessary and onerous.  
2.242.   The representative of Cameroon  stated that the EU 's regime of a single market 
demonstrated significant experien ce which others did not have.  He expressed the opinion that 
international law governed relations between states and stopped at their borders.  In the EU 's 
proposal, the relations appeared to start within the countries themselves.  Nationals from 
Cameroon cou ld not freely move within the EU, but the EU wanted its text to apply to the market 
of Cameroon.  He stated that the right to regulate was so fundamental and clear that it could not 
be circumvented.  Even a country that wanted to change its regulations in fa vour of foreign 
businesses would always keep its sovereign right not to be controlled from the outside.  He stated 
that the EU had confirmed that Members would be brought before the DSB for trying to help parts 
of the population through positive discriminat ion. In his view, divergences of views were 
irreconcilable and further details needed to be awaited. He did not think discussions could 
continue. There was no mandate for development of measures. He supported  the comments made 
by Uganda on the scope of app lication of these issues.   
2.243.   The representative of Chile responded to comments made by South Africa that general 
exceptions hadn 't led to different flexibility. His intention was to emphasize that the domestic 
regulation proposals already had a limited scope  of application and had also to be seen within the S/WPDR/M/71  
 
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  framework of the GATS which had its own limitations, such as governmental services and the 
general exceptions which would apply to any disciplines. The intention had not been to override 
the general except ions. To date, there had been only two cases in which findings on Article XIV of 
the GATS had been made.  In case a necessity test was adopted, it was not the party that adopted 
a measure that had to prove that it was not "more burdensome than necessary ", but it was upon 
the party challenging a measure to demonstrate that it was more burdensome than necessary.  
Turning to the question of Ecuador, as to which body would evaluate the appropriateness of a 
measure, he stated that the general rules that applied to  all disciplines and to all rules of the WTO  
would apply. As to Ecuador 's point that flexibility needed to be provided according to the level of 
development, he stated that his delegation 's proposal was very flexible, with a limited scope of 
application, a nd he was open to discussing this in more depth. Chile had always tried to include 
strong disciplines on domestic regulation in regional trade agreements, both with developed and 
developing countries. These types of agreements had never prevented Chile fro m developing, but 
rather had promoted the country 's development.  They had never been an impediment to adopting 
new regulation, including for structural reform.  
2.244.   The representative of Rwanda  associated himself with the statements made by South 
Africa and Uganda on behalf of the African Group and the LDC Group, respectively, and also 
Cameroon. He enquired as to how Chile had navigated its bilateral treaties without being 
prevented from regulat ing. He enquired how the level of the regulatory system respected whatever 
was contained in the treaties. The proposed disciplines would in his view allow external actors to 
control the national regulatory system. It was clear that there was a lack of comm on 
understanding as to whether the measures were necessary and followed a mandate. He stated 
that he had heard the African Group was blocking negotiations on these issues. On the contrary, 
the African Group was engaged on the substance. Many questions that  had been raised, to which 
only partial answers were given at the current meeting, indicated that there could be no notion of 
blocking negotiations.  
2.245.   The representative of Republic of Korea  commented on South Africa 's concern that the 
proposed disciplines c ould limit the attainability of the Agenda 2063 objectives, stating that the 
GATS recognized in Article V the positive outcomes of regional economic integration and the fact 
that regional integration and multilateral trading system were not mutually exclus ive. Korea took 
other Members ' DR disciplines into consideration when negotiating regional integration agreements 
and these regulations were always designed taking full consideration of each Member 's legal 
system.  He did not see how the discussions on DR c ould possibly limit African countries ' regional 
integration objectives.  He requested clarification as to why Uganda thought that the scope 
proposal was extremely wide, when it came directly from GATS VI:1 and VI:4.  
2.246.   The representative of Uganda  stated that  Chile had so effortlessly and easily explained how 
domestic regulation disciplines in regional agreements had not posed obstacles to regulatory 
powers of the government.  He asked what the problem was if it had worked so well. He enquired 
as to what the pu rpose of the disciplines was, if Chilean regulators had not found any obstacles to 
their regulatory powers. He also asked why there was a need for even more disciplines with all the 
other paragraphs of Article VI that were already applicable. Turning to Ko rea's point on scope, he 
said that it was not clear what the exact extent of application of the words "relating to " and 
"affecting trade in services " was. These words were not contained in Article VI:1.  
2.247.   The representative of the European Union  stated that there were three aspects regarding 
the scope of application. First, the proposed disciplines covered the five familiar aspects of 
licensing and qualification procedures and standards. Secondly, they applied where commitments 
had been made, and  thirdly, measures that constituted limitations under Article XVI and XVII of 
GATS were not affected by the disciplines on DR. In response to what South Africa was saying, his 
delegation was not suggesting that the limitations in the EU schedule of commitm ents should 
suddenly be subject to the domestic regulation disciplines. In response to what was said by 
Swaziland, it was key to clarify the criteria Members were looking at in relation to services. The 
proposal covered licensing procedures and requirement s and the requirements that were imposed 
on a service provider for that provider to be able to deliver services. Obviously there were other 
measures and regulations that existed in terms of environment and consumer protection which 
also applied to service providers, but which were not addressed generally by these disciplines. 
Service providers would have to comply with consumer protection requirements but these 
requirements were often independent from obtaining a licence. This difference, i.e. that the 
disciplines addressed only licens ing-related measures, was key. He did not think that the specific S/WPDR/M/71  
 
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  set of domestic regulation disciplines constituted a regulatory model within themselves, but it was 
important to acknowledge that the proposal operated at a very  high level of generality. He drew a 
comparison to the regulatory disciplines on basic telecommunications which had been implemented 
in different ways by many Members and which had proven to be beneficial. On the questions 
raised by Cameroon, he stated tha t the EU was not attempting to impose the rules of the common 
market on all WTO Members. He opposed Cameroon 's interpretation of the EU statement that the 
disciplines would prevent African countries from taking measures to benefit underprivileged 
populatio ns. Examples to the contrary could be found in many different partnerships between the 
EU and Africa and there were many very fruitful initiatives taking place in the field. What he had 
said earlier was that the proposed disciplines would apply only where there were commitments, 
and that any discriminatory measure set out in a schedule would not be covered.  
2.248.   The representative of New Zealand  reiterated earlier explanations by the European Union 
and Hong Kong, China, concerning the scope of application of the  disciplines, and emphasized the 
importance of the right to regulate, which was a GATS principle, that co -sponsors of 
JOB/SERV/252 had decided to include in their proposal.  The proposal contained language which 
went beyond what was in the GATS to state tha t these disciplines should not be construed to 
prescribe or impose a particular regulatory approach or any particular regulatory provisions in 
domestic regulation.  The right to regulate principle operated in conjunction with the disciplines, 
and allowed a variety of outcomes to be met through a variety of different regulatory means.  Co-
sponsors came from a variety of regulatory and constitutional backgrounds, and these different 
systems were compatible with the proposed provisions. It was clear that co -sponsors were not 
trying to impose a specific model of implementing the disciplines.  In fact , there was no 
requirement on any Members to impose licensing or qualification requirements or procedures. It 
was only where a Member chose to have such requirements, a nd in sectors with specific 
commitments, that the DR disciplines would apply. From her delegation 's perspective, it would be 
desirable if Members chose to apply them more broadly because of the good governance 
underpinning and the benefits that the discipl ines offered to both domestic and foreign service 
suppliers. The disciplines were about the "how" of regulation rather than prescribing specific topics 
for regulation. It was up to each Member to determine its own regulatory objectives. The 
disciplines, in cluding the necessity test, were really about ensuring that regulation was effective 
for meeting any Member 's chosen objectives.  The right to regulate was not a get -out-of-jail card 
that could be invoked to trump any international obligation.   
2.249.   The represen tative of the Republic of Korea  stated that the scope provision in the 
"Administration of Measures " proposal had the same language and followed the mandate of GATS 
Article VI:4.  
2.250.   The representative of Cameroon  felt that the discussion was developing into a  "dialogue of 
the deaf ". There were different views and explanations of different concepts. The right to regulate 
was linked to sovereignty, and implied that no country could regulate on behalf of another. 
Regulatory commitments could limit the right to regulate, provided they respected the negotiating 
mandate, the scope of the GATS, and set out an appropriate framework of modalities. Some 
Members had already forsaken their rights because they were parties to free trade agreements, 
but those who still enj oyed the right to regulate could choose to protect it. The GATS did not force 
countries to give up their sovereignty, and they could freely decide to share the right if they 
deemed it to be to their benefit. That was what the European Union Member States h ad done. The 
GATS contained a mandate on the necessity test for launching negotiations under Article VI:4 
which required a prior consensus and if there was no such consensus, Members could not move 
forward. He stated that proponents needed to understand th at there could be disagreements that 
went beyond understanding and explanations.  Concerning the scope of application, he was 
concerned about the intent of what he considered to be a retroactive application of the disciplines 
to existing regulations. This w ould mean that in case of a problem, existing regulations and laws 
and even his country 's constitution would have to be revised. It was impossible to cancel out 
everything that had been done legally since 1900. At some point, a new starting point had to be  
set. The WTO did not retroactively apply new texts. For his delegation, no measures could have 
retroactive application. He expressed concern that in the view of proponents, positive 
discrimination might not be permissible. This was an issue that needed to  be looked at. As to the 
characterization of the African Group as blocking negotiations, he recalled the blockage of the 
DDA.  S/WPDR/M/71  
 
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  2.251.   The representative of Chile responded to Uganda by stating that nobody had claimed that 
adopting DR disciplines was something eas y. Each Member had to analyse  the proposals against 
the backdrop of their own domestic regulatory approaches. He had merely provided Chile 's own 
developing country experience and perspective. Chile had generally complied with the norms and 
standards and ma de improvements and increased efforts in many areas.  Overall, Chile was 
satisfied with the decisions it had made and believed that it had been worthwhile to bring about 
the improvements.  In his delegation 's assessment, the benefits outweighed the costs, bu t this did 
not imply that it would be easy for everyone. Each individual country would have to carry out its 
own analysis.  
2.252.   The representative of Bolivia  stated that the discussion had still not clarified the way in 
which the disciplines would generate limi tations for the development of domestic regulations. He 
appreciated that the proponents put on record that they were not trying to limit the right to 
regulate; however, the proposal did not provide certainty that his country 's laws and regulations 
would no t be questioned on the basis of the disciplines. In some cases the language did not clearly 
take into account the levels of development for Bolivia. It was important to ensure that developing 
country Members could continue to impose requirements to reach l egitimate development 
objectives. Overall there were still considerable differences of views and several of his questions 
needed to be clarified.  
2.253.   The representative of Swaziland  was of the view that it was very unfortunate that the 
proposals targeted certa in objectives, yet when the proponents tried to clarify they agreed that 
Members right to regulate would be impeded by the proposed disciplines. He had requested 
proponents to confine their responses within WTO rules, the same way as African Group Members 
had quoted WTO jurisprudence to flag up their concerns. That approach would help to remove 
fears and foster understanding. The necessity of the disciplines still had not been justified beyond 
reasonable doubt, and in the absence of this, his delegation cou ld not agree to the proposals. The 
onus to convince the African Group lied with the proponents, not the other way around. As the 
WTO was a rules -based organization, citing WTO rules would be of assistance. Turing to the 
intervention made by Chile, he was n ot convinced by the characterization that the proposals had 
limited scope. Chile also had said that the necessity test had to be interpreted by WTO 
jurisprudence.  He considered this to be a misinterpretation of Article VI:4 in regard to necessity. 
Article VI:4 talked about the development of necessary disciplines. This was not a post ante  
fulfilment, but rather a prerequisite that had to be agreed upon by Members by consensus even 
before they developed the disciplines. As to Chile 's positive cost -benefit as sessment of the 
adoption of regulatory disciplines, his delegation had yet to hear what the benefits were. He 
invited Chile to prove beyond any reasonable doubt that the benefits existed, and provide 
examples from their experience.  
2.254.   The representative of Uganda commented on New Zealand 's intervention concerning the 
right to regulate.  He did not understand how the right could be made precise, effective and 
operational. He recalled the three cases in which Panels had pronounced themselves on the right 
to regul ate. He found the notion that was expressed in China -Raw Materials  completely shocking, 
where it was said that Members had expressed their right to regulate through agreeing to 
negotiating disciplines, and that hence the disciplines must be adhered to as M embers expression 
of the right to regulate. In another case, possibly US-Gambling , the basic point was made that the 
right to regulate was not unlimited. He failed to understand how it could be argued that the right 
to regulate was preserved because there was recognition of the right to regulate. He took up the 
point made previously that Members had the right to regulate as long as it fit within the 
prescriptive list of elements. This meant that actually Members did not have the right to regulate. 
If there was such a right in principle, the disciplines were an exception to that principle. He 
thanked Chile for their useful intervention, and enquired whether Chile had undertaken any kind of 
analysis that provided evidence of the benefits and that it could shar e with those who were 
reluctant observers.  It was not enough at this stage to simply claim that the disciplines would be 
beneficial. It was important to be more specific in order to be able to collect on the dividend.  
2.255.   The representative of Colombia  stated  that he could not claim without reasonable doubt 
that domestic regulation disciplines were beneficial for all other Members, but they had certainly 
proved beneficial for his delegation. The disciplines had effectively benefitted the development and 
integr ation at regional level. One could not overemphasize the benefit of increased security and 
predictability for domestic and foreign companies in Colombia. The various processes of regional 
integration in which Colombia had participated had varied in terms o f the disciplines. He provided S/WPDR/M/71  
 
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  the example of the Latin American Integrated Market (MILA) which concerned four countries that 
had launched a process of integration of their stock markets. To participate in the process, their 
respective governments had to m ake sure that they had in place integration processes with strong 
rules in this area of domestic regulation. The existence of the disciplines was a win -win situation, 
because it created favourable conditions both for national domestic businesses within the  country 
and as concerned participation in other markets. Turning to the issue of positive discrimination, he 
noted that regulatory disciplines had at no time prevented Colombia from regulating in areas that 
its regulators considered necessary. He understo od the interest of several Members to guarantee 
their right to regulate for the benefit of vulnerable parts of the population and minorities. Colombia 
had similar constitutional requirements and had taken these into account in all its integration 
processes . The type of disciplines under discussion would not affect Members ' capacity to 
discriminate positively in favour of these groups of people. He enquired about specific problems 
that required more specific treatment, and was of the view that the footnote t o the "Gender 
Equality " proposal and additional language about flexibility covered any type of solution in relation 
to this area.  
2.256.   The representative of Cameroon  noted that Colombia 's comments related to a common 
market, and he recalled his earlier intervention in this regard.  He expressed shock concerning 
Colombia 's reference to a footnote, which in his view authorized a Member to use his rights to 
prevent a Member from using a certain right. This was what was at stake. The question was not 
about ad vantages and disadvantages, but about whether a Member was allowed to use the right or 
not. He stated that in the context of  the TFA Members had been  told that the costs could not be 
compared to the benefits, and all documentation disseminated by the OECD and the WTO always 
reflected the benefits and never the costs. He enquired about the costs of domestic regulation 
disciplines. Members had rights under the GATS and the proposed disciplines would infringe on 
those rights. He agreed that in the case of Colo mbia, the creation of a common market required 
harmonization of rules and was in the interest of all countries concerned.  However, at the WTO, 
Members maintained their own markets.  
2.6  Administration of Measures  
2.257.   Moving to the communication on "Administration of Measures ", the Chairperson  noted that 
a revision to this document ha d been circulated, as JOB/SERV/239/Rev.2, adding the delegation of 
Kazakhstan to the list of co -sponsors.  This document had been discussed at previous meetings . 
She opened t he floor for Members ' comments and questions.  
2.258.   The representative of South Africa  deliver ed the statement on behalf of the  African Group . 
The language under the general provisions paragraph  x.x was  extremely broad ; hence the 
application of the disciplines spilled over to sectors where Members ha d not made any 
commitments. She asked the proponents to clarify the scope of their proposal  and how  the scope 
relate d to the "Development of Measures " and "Transparency " proposals. As some proponents ha d 
recently introduced  changes to their visa policies , she asked  to what extent the proponents 
themselves would be infringing on these DR disciplines considering that, according to the general 
provisions in paragraph x.x, the disciplines would apply to measures by Members relat ing to 
licensing and qualification requirements and proc edures and technical standards, affecting trade in 
services. The scope of coverage of the proposals was not entirely clear. The African Group was 
interested in understanding the horizontal linkages of  the proposed DR disciplines to e -commerce 
and investment. One of the most significant shifts in recent years had been  the growth of cross -
border supply of services. Therefore, she asked  the proponents to explain their perspective on 
what domestic regulati on mean t in a digital world , namely how each of the DR elements relate d to 
e-commerce, what the implications were, and how technical standards and licensing requirements 
operate d in mode 1 in the context of their proposals.  
2.259.   The representative of Kenya  stated that the Working Party was lacking the practical 
experience from the regulators on how some of the proposals could be implemented and their 
impact on the ir regulatory freedom. In the debate s on the T rade Facilitation  Agreement (TFA) , 
Members  had received a lot of presentation s on the experiences by the practitioners, so that they 
could  appreciate th e proposals. Kenya  was trying to strike a very careful balance between 
efficiency on the one hand and social welfare and equity on the other. He did no t see this balance 
in most proposals  on the table . He made an example of the provision concerning fees, explaining  
that in  Kenya certain  services  suppliers, such as casinos,  were charged unreasonably high licensing 
fees by the authorities  so as to prevent the expansion of casinos  and to limit their negative S/WPDR/M/71  
 
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  societal impact . The provision on fees mandated that fees should be reasonable and should not 
restrict the supply of services ; therefore, Kenya 's practice in respect of the  licensing fees for 
casinos wou ld not pass the test . Kenya c ould not accept this  provision . He held that Members were 
indulg ing regulatory approaches that might not work in certain jurisdictions and were inconsistent 
with the right to regulate. Regarding  the provision o n the single wind ow, he provided another 
example where if a supplier  wanted to operate a restaurant service  in Kenya,  he would need to get 
approval s from the Department of Health , Fire Department, Environmental Protection Agency, as 
well as obtain a tax identification numb er. He therefore enquired how the proponents saw the 
application of a single window provision in such a situation. He also asked whether a single window 
would apply in each services sector. Regarding the provision on processing of applications, he said 
that the proponents were trying to impose regulatory approaches some Members  would not be 
able to accept . Regarding incomplete applications, Kenyan authorities normally indicated from the 
outset that those kinds of applications would be rejected, whereas t he proposal mandated that the 
applicant w ould be given an opportunity to submit additional information or to redo a n application 
altogether. Secondly, in case s where  a Kenyan competent authority  discovered that there had 
been a  misrepresentation of facts i n the application , it would be outright rejected and there would 
be no opportunity for resubmission; this was contrary to what was being proposed . For those 
reasons Kenya had a lot of difficulties accepting the proposal. Regarding  the issue of fees, they 
would definitely restrict the supply of a service more than having no fees  in place . He saw the 
provision  on fees as  creating pressure on regulatory  authorities that used fees as a budget 
contribution, e.g. for building regulatory capacit y and providing oth er services. As a result when 
the authorities were deciding  on the amount of fees , there were a lot of  considerations to take into 
account, not only looking at whether the fees were reasonable or not.  
2.260.   The representative of Uganda  deliver ed his statement o n behalf of the LDC Group . 
According to the WTO analytical index definition of "measures affecting trade in services ", the 
Panel in EC-Bananas III  had define d the scope of application of the GATS as no measure being  
excluded a priori  from the scope of the GATS . The scope of the GATS encompasse d any measures 
of a Member to the extent that they affect ed the  supply of a service regardless of whether such  
measures  directly govern ed a supply of a service or whether they regulate d other mat ters but 
nevertheless affect ed trade in services. Based on its interpretation of the scope of the GATS set 
out above, the Panel in EC-Bananas III  had concluded that there was no legal basis for a n a priori  
exclusion of measures within in the EC 's import li censing regime from the scope of the GATS. The 
Appellate Body  had upheld this finding and held that no provision of the agreement suggest ed a 
limited scope of application of the GATS. He enquired as to the exact scope of paragraph x .x. in 
the "Administrati on of Measures " proposal by Australia and other  co-sponsors; w hat was the 
meaning of measures relating to licensing and qualification requirements and procedures and 
technical standards  where specific commitments had been  undertaken ; and w hat would happen  if 
those measures f ell under sectors where no commitments ha d been undertaken , in other words, in 
a situation where a measure at issue was about construction services which ha d been committed 
and a related licensing  measure was about financial services  that had not been committed, e.g. a 
regulation on cross -border payments that a Member m ight not have liberali zed. He asked whether  
this related licensing measure would be covered by the scope of the  proposed  disciplines . Another 
similar example  he made co ncerned the relevance of an environmental regulation potentially 
influencing the distribution sector or a shopping mall construction. He further enquired whether, 
e.g. the requirement to use renewable energy resources or to limit energy use  could be consid ered 
to be  not objective and not transparent. He enquired whether it was possible for a Member to be 
challenged on domestic regulation rules relating to E -commerce such as localization requirements, 
source code  disclosure , transparenc y of technology, free flow of data,  etc. and whether those could 
be considered  not objective or unduly impairing  the fulfilment of requirements. He held that the 
proposal contained many provisions that prioritized the  speed of regulatory approvals over the 
public interest . It was not clear what constitute d undue delay and what a reasonable time -frame  
was. Public hearing s and environmental assessments unduly impede d the regulatory process and 
cause d delays  which meant that the decisions were not made in a reasonable timeframe. 
Regarding paragraph 4  on processing of applications, he was of the view  that it was obvious that 
national corporations looking  to sell oil would want to have speed to take precedence over any  
other factors, w hereas the citizens  would want their government to do due diligence and 
undertake thorough regulatory assessments. However, in so doing governments  would be 
challenged for causing undue delays and not operating within  reasonable timeframes. He enquired 
whether the provision in paragraph 5  allowed Members to have a change of heart in case of 
change of government or a referendum, environmental problems,  or budget constraints.  Regarding  
paragraph 6, he enquired what  "not to restrict the supply of a service " meant . He provided an  S/WPDR/M/71  
 
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  example of an alleged requirement for mining companies to deposit a certain amount of  money in 
case of spills. He also asked if it had been  the intention of the proponents to suggest that any 
amount charged for a licence would be considered a restriction . He held that t he provision  on fees  
would have a chilling effect on Members , since any fee restrict ed the supply of a service more than 
having no fees. The discipline would create pressure on governments to lower fees to the 
maximum extent possible , which would pose challenges for poorer Members . He enquired as to  
how this proposal relate d to GATS Article VI:1 which stipulated that in sectors where specific 
commitments had been  undertaken, each Member shall ensure that all measures of general 
application af fecting trade in services were administered in a reasonable, objective and impartial 
manner. He asked why the proponents fel t the need for new and extensive disciplines on 
administration of measures , what problem they intend ed to cure with this proposal  and whether 
this proposal intended to amend or replace Article VI:1 . 
2.261.   The representative of  the Plurinational State of  Bolivia  endorsed the statements made by 
South Africa on behalf of the African Group, Kenya and Uganda  on behalf of the LDC Group . He 
expressed some concerns regarding the scope of the disciplines. It was not clear whether these 
might affect sectors that had not been  committed.  A number of aspects require d clarification. 
Regarding licensing fees, the proposal made no differentiation betw een different fees that might 
apply to different sectors , as mentioned previously by Kenya . In Bolivia those differences were 
major, as fees  were used for a number of different reasons , one of which  was the public interest. 
Therefore, Members should not deem those  fees to be unreasonable or non -transparent and no  
agreement should call fee policies into question.  He enquired as to the practical dimension of a 
single window at different levels of governments and across sectors. Bolivia had a number of 
differe nt independent departments and municipalities  that had their various competencies . The 
single window need ed to be clarified in terms of  implementation and costs thereof and asked the 
proponents whether they could share their  past experience s in this regard . He also asked whether 
the proponents fe lt that this type of discipline would also apply to visa procedures.  
2.262.   The representative of Swaziland  supported the intervention on fees by Kenya. It was an 
undeniable fact that fees charged in developed Member s woul d be prohibitive to suppliers from 
developing Member s in terms of foreign exchange rate s. The proposed disciplines w ould benefit 
developed consumers . Developing countries did not need an expert to tell them that these 
disciplines  were not in their best interest . He enquired why work on these disciplines was 
advanc ing when there was credible evidence that they would disadvantage developing Member s. 
In effect, the disciplines were aimed at nullifying the Doha Development Agenda.  
2.263.   The representative of Cuba supported the interventions of South Africa on behalf of the 
African Group, Rwanda and other like -minded Members. She noted that the proposal contain ed a 
number of very costly and unnecessary obligations for a number of countries an d Cuba could not 
support those. Furthermore , the proposal contain ed some terms , the scope of which needed to be 
underst ood before Members  could commit to any new disciplines. In the specific case of the single 
window, she enquired  how Members fores aw its implement ation for a broad range of services . She 
enquired how much  the disciplines on electronic applications and processing of applications and 
other  disciplines  would affect developing countries  in financial terms  and how sustainable  the 
disciplines were  in the long term. She asked the proponents what problems they had faced and in 
which markets. She stated that Cuba had  not yet been able to move forward with the 
implementation of a single window for goods . 
2.264.   The representative of Guatemala  stated  that the text of the proposal  contain ed important 
elements that his delegation was interested to discuss. He enquired as to the practical aspects of 
implementing a single window  and thought  that it  might be very complex in the short term.  It was 
important for the p roponents to share the ir experiences with  implementation  difficulties in the 
short or medium term.  
2.265.   The representative of Australia  provided responses to some of the questions and 
comments raised. Regarding the issue of scope , she drew Members ' attention to  the explanation 
provided earlier by the EU. She noted that many of the examples that had been  raised in Uganda 's 
statement  were not  relevant to licensing and qualifications , for example whether a Member want ed 
to put in place emergency or environmental re gulations to stop a certain type of practice. The 
issue had nothing  to do with licensing or qualification requirements. A Member would naturally 
maintain the right to introduce any of those kind s of measures. Similarly, the point that had been  
raised about  a mining spill  or budgetary risks was not relevant to licensing or qualification S/WPDR/M/71  
 
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  requirements , or technical standards. Regarding  the question asked  by South Africa  on recent 
changes to Australia 's visa regime and whether the development of disciplines wou ld stop those 
changes , she explained that A ustralia was a country that ha d recently put in place  changes to its 
visa regime. Those changes had been  implemented in full consistency with Australia 's WTO and 
FTA commitments, including FTAs which contained muc h more ambitious domestic regulations 
disciplines tha n those proposed  in the WTO. DR disciplines did not dictate how a Member regulate d 
its visa regimes. Members were free to choose what kind of visas they want ed to implement and 
how to regulate their visa  regime in any way they saw fit . The proposed  disciplines in no way 
affect ed the choice of regulation. The disciplines would encourage Members  to be more 
transparent in how those regulations  were implemented . It was very useful to consider what the 
implica tions of licensing and qualification requirements might be in relation to mode 1 and digital 
trade. First of all, if a Member ha d a commitment to allow market access and national treatment in 
mode 1 for, e.g.  legal services , it would still be fully up to the Member  to choose how it wanted to 
regulate cross -border trade in legal services. The proposed  domestic regulation disciplines would 
not stop Members  from deciding what qualifications a foreign lawyer should have or what kind of 
home country licence a fo reign lawyer should have , or what the person ha d to do in order to get 
that licence. The disciplines would merely require that Members  were transparent about the 
process for getting the licence and in relation particularly to the admin istration  of measures . Then 
Members  would process their applications for a licence from a foreign lawyer in a reasonable time -
frame  and, where possible, would accept copies of documents , authenticated in accordance with a 
Member 's domestic law. Regarding the issue of fees, she recogni zed that there was a lot of 
sensitivity from developing countries regarding  the nature and rationale for imposing fees . She 
recognized that  fees were imposed not just to cover the cost of issuing a licence or a qualification , 
but in many instances also served as a source of revenue. For that particular reason , the proposal 
did not stipulate that fees need ed to be proportionate to the cost of providing the service or that 
they ha d to be limited to the cost of providing the ser vice. Regarding the example that Kenya 
provided  regarding  the casinos , she noted that Kenya did not have a commitment on gambling 
services.  Perhaps one reason for why Kenya had not  taken such commitments was because the 
government want ed to restrict the im pact of those kinds of activities on the general public. She 
underlined that this example illustrated why it was important to think about the scope of the 
disciplines step by step. I n relation to the single  window , the co-sponsors were not proposing a 
single window for  all licences and qualification s, including those that were not relevant under 
Article VI:4 . There was nothing in the proposal that suggest ed that Members had  to have a single 
window for, e.g. an environmental licence , a health licence and a visa. The proposal contained a 
very specific footnote that provided that where licences were within the competencies of different 
authorities , there might naturally  be different application procedures. The proposal was not  about 
a single window for all of a  Member 's applications , but rather about making sure that a service 
supplier did not have to approach more than one competent authority for one licence. Taking a  
lawyer 's example, if a Member  require d a bar licence for a lawyer, proponents were  suggesting 
that that lawyer should only have to go to one bar association to apply for that licence. If a lawyer  
also need ed a licence to set up a business , he or she  might have to go to a separate authority to 
apply for a business registration licence.  If a lawyer had to employ workers , he or she might have 
to go to yet a different authorit y for that purpose . Regarding the issue of costs, associated with  
implementing a single window , she explained that having a single window was  actually cost 
saving . Regarding the issue of  incomplete applications being rejected, she enquired whether 
Members could provide the specific details, as normally if  a competent authority  had taken an 
affirmative decision to reject an incomplete application , there was usually a rati onale for that. 
Some Members had said that the rational e was that it was not practicable to accept incomplete 
applications. In this regard the flexibility had already been built into the language , as this 
obligation was framed using the wording  "to the ext ent practicable " in the chapeau. If a Member 
was rejecting an application because someone was providing  fraudulent information , that was a 
good reason for rejection . She picked up on the point raised by Swaziland regarding efforts by 
proponents to nullify the Doha Development Agenda with these proposals. She expressed her 
delegation 's disappointment, as that was not  consistent with the messages proponents had heard 
in the WPDR for the last twenty  years . She mentioned  in particular the ACP Group paper of March 
2015 that underline d domestic regulation as one of the most important outstanding issues of the 
Doha Round services negotiations and pointed to some of the ACP Group's interests in relation to 
those negotiations . She noted that her delegation  would  be very interested to understand what 
had changed for the countries that ha d gone from a position of saying that DR was an important 
part of completing the Doha Development Agenda , to saying that the work in this area nullifie d the 
DDA negotiations.  S/WPDR/M/71  
 
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  2.266.   The re presentative of South Africa  shared with Members some comments on the 
clarifications provided by Australia. She pointed out that when the representative of Australia was 
talking about a legal services example in mode 1, that example concerned  a situation w here a 
Member maintain ed an existing measure , not when a Member adopt ed a new  one. The proponents 
stated that the scope of the proposals covered measures relating to licensing and qualification 
requirements and procedures and technical standards,  insofar a s they affect ed trade in services 
where specific commitments had been  undertaken and not where Members  had scheduled 
limitations. She enquired why it was necessary to have an additional provision on administration of 
licensing , qualifications and technical  standards. She asked whether a commitment in a small sub -
sector of a sector, subject to extensive limitations, e.g. "unbound, except for ", would bring that 
entire sector under the scope of the proposal . The proposal refer red to measures by Members , but 
it did not specify that measures had to  be trade -related. She also asked what the expressions 
"relating to " and "affecting " mean t. If a M ember ha d opened up a subsection of distribution 
services , e.g. wholesale trade services in mode 3, would measures pertaining to e.g. recycling  that 
would affect trade in services in wholesale trade  services that had not entirely been committed  l 
fall under the scope of the proposed DR disciplines. She enquired whether  licensing and 
qualification requirements and proce dures and technical standards  were exempt from sectors 
where there were scheduled limitations . She recalled the EC-Bananas  case that had given a wide 
interpretation to the scope of the GATS , namely that  almost any type of state intervention to the 
extent t hat it affect ed trade in services, f ell under the scope of the Agreement. In the WTO context 
there were fourteen  services sectors, over fifty sub-sectors and hundreds , if not thousands, of 
services falling under the GATS. Members ' capacity to promote polic ies that facilitate d growth, 
employment creation, investment and industrialization would be severely undermined if these 
horizontal DR rules in their current framing were adopted. Regarding the point made by Australia 
concerning  the change o f rhetoric  and attitude , in particular by the ACP Group, she consider ed it 
quite remarkable that Members had been  told that th ese disciplines were  good for developing 
countries, yet it  was developed countries who were leading the discussion . The ACP position in 
2015 had been part of a different context  where there w ere no TiSA negotiations . TiSA Members 
had left the WTO, as they decided to have their FTA negotiations outside the WTO framework . 
Nobody  knew what had happened in those secre t negotiations, but now the pro posals had been  
brought back, notwithstanding the fact of who engag ed in discussing  these proposals . Those exact 
proponents who were negotiating TiSA agreement outside the WTO  were the proponents in WPDR 
as well . She stated that  the context of the Doha Dev elopment Agenda  was different, as there were 
several other issues of interest to developing countries on the table.  
2.267.   The representative of Swaziland  considered it unfortunate that Australia called some of the 
concerns raised by Members  irrelevant. He asked the representative of Australia whether that 
mean t that protecting developing countries ' sovereign right to regulate was irrelevant . The mere 
pronunciation of irrelevance of concerns  translate d into the concerned party being considered 
irrelevant as well. He was of the view that t he real question was how Members could sit at the 
negotiating table with a delegation telling them  that their  concerns were irrelevant. Secondly, he 
asked the representative of Australia to help Members  define what domestic regulat ion was within 
the scope of th is proposal. That would help Members  make the first steps in th is discussion . The 
delegation of Australia had mentioned the single window and noted that it was a cost -saving 
initiative. He enquired whether that meant that Members had  to give up their sovereign right to 
regulate in the name of cost saving . He reiterate d his earlier statement and request ed the 
delegation of Australia to cite WTO rules and jurisprudence in responding to Members ' concerns, 
instead of making dis cretionary observations and responses. He was of the view that no 
substantive questions  had been responded to  so far . 
2.268.   The representative of Uganda  stated  that the World Trade Organization was about buying 
and selling. He stated that w hen one was  selling to  a reluctant buyer, one  needed to  make ones  
best pitch  and not insult. He expressed apprec iation of the approach adopted in this respect by the 
representative of the European Union. He urged his colleagues to exercise restraint and caution 
and respond to t he issues raised with respect. The concepts and terms that were being used were 
of a relative nature. There was no absolute definition of th ese concept s. He stated that LDCs might  
be poor but they did  not lack knowledge  and they demand ed respect. He reiter ated all the points 
raised and remarked that Australia ha d not responded to the concerns. He urged Australia to 
refrain from drawing attention to the ACP  Group  in these discussion s, as Uganda  was a Member  of 
the ACP  Group and Australia was not . Developing countries  had been  trying to conclude the Doha 
Round , especially to reach an agreement on issues like agriculture, duty free quota free treatment 
for all products from all LDCs , making special and differential treatment precise , objective and S/WPDR/M/71  
 
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  operational – and they had not had much success. He urged Australia to respond to substantive 
questions raised by LDCs. in his view, proponents had constructed a narrative , where developing 
count ries and LDCs had  been characterized as if they were  on a rampage to creat e disaster and 
derail the entire process. P roponents had negotiat ed the issues on the table for several years 
outside the organi zation  and were bringing them back, without even according enough space for 
other Members to seek clarification. He agreed with Chile who was a co -sponsor that it was only 
fair that every Member should undertake their own domestic processes  in their own way. He urged 
Members to respect each other, as e veryone was trying to advance their national interest s. He 
opined that it was unacceptable  to denigrate a Member simply because other Members did not like 
that Member . 
2.269.   The representative of New Zealand  considered the explanation given by the representative 
of Australia useful and certainly a very valiant attempt to try to respond to so me of the questions 
raised. She acknowledged that some Members  had been talking about these issues for longer than 
others , so there was more comfort on some sides of the table than on others. She however urged 
Members to be constructive and engage with each other as much as possible. It was difficult to 
respond in the same meeting to the questions raised, especially in a formal setting where answers 
were taken note of and formally recorded , but the proponents were doing their best. S he 
expressed  hope tha t that was perceived in the manner in which it had been  intended. N ew Zealand  
had not so far co -sponsored the "Administration of Measures " proposal , the concern from capital 
being that it  was not ambitious enough. New Zealand 's FTAs include d more stringent  disciplines 
than those proposed in the WPDR. The capital was concern ed that th ere was too much flexibility in 
the text, such as "to the extent practicable ". However, after having carefully listened to all the 
current discussions New Zealand  had taken the decision to co -sponsor this element , as these 
provisions w ould be useful  for all suppliers, particularly MSMEs , both domestic and foreign , 
especially in the context of investment facilitation discussions. T hese sorts of provisions had a 
contribution to mak e towards growth and employment.  
2.270.   The representative of Mexico  explained that Mexico 's domestic system already complied 
with some of the proposed provisions. The Law on A dministrative Procedures governed licensing 
for all sectors.  The law stipulate d that the costs charged for granting a license should be based on 
the administrative costs involved. The aim of  this requirement  was to prevent those costs being an 
impediment for foreign service s suppliers. Mexico 's domestic regulat ory system  also impose d the 
obligation  on the authorities to inform the applicant about their licensing applications  being  
incomplete . If the information on the application was incorrect , it did not mean that the application 
would automatically  be rejected.  Concerning the single  window , she explained that what that 
meant was that  in order to obtain  a licence, a service supplier should have recourse to one 
particular authority  to request that license, so for each administrative procedure there should be a 
single body where th e applicants could go. She believed  that the proposed provis ions were in line 
with international good governance practi ces. These provisions  were relevant in helping  services 
suppliers  gain access to particular mar kets. Her delegation was open to discussing Mem bers' 
problems and additional flexibilities that might be necessary.  
2.271.   The representative of Guatemala  considered that the text of the proposal had important 
elements that Guatemala was open to discussing further. He stated that the establishment and 
impleme ntation of a single window would be a rather complex process in the short and medium 
term. He considered it important to share difficulties that the implementation would entail for 
developing countries. He asked for examples of how other WTO Members had successfully 
implemented single windows.  
2.272.   The representative of Barbados  made a statement on behalf of the ACP Group. She 
indicated that the Group had not been vocal so far, as it was still in the process of examining the 
proposals . 
2.273.   The representative of Cameroon  enquired about the procedure for the payment of costs for 
the implementation of a single window , namely who would bear the costs of the practical 
implementation of the single window if, as he understood it, all services  authorities  would have to 
be moved to a single building. He further remarked on the attitude of some Members in previous 
WTO negotiations he had experienced who allegedly dubbed the q uestions of other Members silly  
and irrelevant. He opined that it was the Chairperson 's duty to sancti on Members who went off the 
course  and lacked respect for others . He did not consider insults to be constructive. He provided 
an example from the TFA negotiating history where he had observed that often when Members S/WPDR/M/71  
 
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  had been tackling substantive issues and  divergences had appear ed, negotiators had lost control. 
He was of the view that Members should be held accountable for bad behaviour in the room , which 
was a joint responsibility of the membership and the Chairperson. On the side of the substance, he 
picked up on the point made by New Zealand that the disciplines were stricter in FTAs than in the 
WPDR and remarked that the precise problem was that some Members were trying to impose FTA 
disciplines on other Members.  
2.274.   The representative of Kenya  share d the co ncerns raised by Uganda , in particular, with 
respect to the attitude of some Members . He stated that w hen Members were  raising concerns, 
they were not  being disruptive , or a nuisance , but they were trying to understand the proposals. 
The impression some Members were  getting  was that the proposals were being pushed down their 
throats, without them having any opportunity to understand anything  or to seek clarity. Members  
needed clarity , as some of them had had a very nasty experience regarding the implementation of 
the Uruguay Round commitments and some other  agreements.  Therefore , Members  really need ed 
to be clear about how these proposals were going to be implemented. He noted that the 
proponents did not have to  reply on the spot. He commented on some of the clarifications 
provided by  Australia  on the issue of the single window. He admitted that if made workable, the 
single window could be a cost saving instrument  and asked the proponents to share their 
experienc es regarding how single window worked in their countries. Regarding the issue of fees, 
Australia had noted  that Kenya did not  have commitments in gambling  services , but this did not 
mean that this sector could not be used as an example . Kenya used fees in many committed 
sectors to restrict services supply for a particular reason. In the process of progressive 
liberalization of services Members would eventually commit more sectors in the future, and the 
proposed disciplines would automatically apply to these  additional sectors.  It was important  for 
Members  to understand any  new obligations before they took them on. He stated that, as it 
currently stood, the proposal would not  fly. On the issue of processing of application s, he pointed 
out that the wording of the discipline favoured the applicants over regulators and concluded that 
the proponents had  not struck the right balance between the competent authority and the 
supplier, so Kenya could not accept this provision.  
2.275.   The representative of Swaziland  aligned himself  with the statements made by like -minded 
earlier speakers. He respon ded to the comments made by N ew Zealand . It had been on record 
that the representative of New Zealand confessed that his delegation was finding it difficult to 
respond to some of the concerns in th e Working Party. He enquired where the proponents were 
going  to respond to Members ' concerns . The concerns from the floor had been  raised on this 
platform , so he expected the proponents to respond to them in the Working Party , as they had 
more experience in dealing with proposed disciplines. He urged the co -sponsors  to appreciate the 
fact that many Members were  still new to these issues and need ed time  to comprehend the m. He 
also encouraged the proponents to respond to the point on the WTO jur isprudence other Members 
had cited . 
2.276.   The representative of Colombia  maintained that t he text  of the proposal  already include d 
sufficient flexibilities to accommodate the different regulatory systems  of Members . The proposals 
were not prescriptive, but rathe r referred to good practices for countries to develop  their DR 
processes in a more efficient way . With regard to the single window, in Colombia the government 
required all organizations through the Decree No.19 of 2012 and the Law on Procedures to present 
their requirements and procedures to users . The Decree also required al l organizations not to 
duplicate requests for information already made by other agencies . The proposal  at hand dealt 
with the objective of avoiding duplicat ion of  procedures that were unnecessary , as the government 
would have already obtained this information from business es and individuals through its agencies. 
With regard to electronic applications and acceptance of copies, all organizations in Colombia  were 
receiv ing applications  through internet  and all government processes  function ed electronically. 
This system enable d the processing  of applications  through electronic copies and enable d users to 
communicate with the government through the platforms  that facilitate d the objective s. In 
addition to the trade benefits  of the electronic systems, there were other additional advantages , 
for instance, a reduction of procedural costs and positive contribution in the fight against 
corruption . With regard to  costs and fees , he emphasi zed that the drafting  of domestic laws  was 
very positive a nd focuse d on the costs not being a burden for services suppliers  in Colombia . He 
suggested not making discussions personal and instead focusing on  going into more depth in the 
area of development that wa s developing Members ' primary concern by initiat ing constructive 
bilateral dialogues . S/WPDR/M/71  
 
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  2.277.   The representative of Australia  strongly agreed with all Members who had underlined how 
important it was to have the u tmost respect for each other and a very important pa rt of that was 
listen ing carefully to what each and every Member sa id and try ing to understand each Member 's 
position. She was  concerned that some  Member s suggested that Australia was on record saying 
that the concerns of some other Members were irrelevant. She stated that this was something she 
did not say and would never say. On the contrary, the delegation of Australia  had been 
encouraging all Members to let it know what their  concerns and their questions  were, so that 
proponents could work together with those delegations to see how those concerns c ould be 
addressed. She recognized that being passionate about the issue made her speak more quickly 
and promised Members she would make a very conscious effort to try to slow down to make sure 
that she had not been  misunderstood . She encourage d Members to check the formal record , 
namely to note that  some of the examples that had been  raised did not relate to licensing and 
qualification requirements and technical standards. Members needed clarity abo ut which issues 
were relevant to the DR discussion s; so that they could decide to what extent their national 
interests were advanced and protected. She thank ed those Members that had raised specific 
concerns and look ed forward to continuing  these discussio ns to make sure that all concerns were 
addressed. She noted the question asked by Cameroon on the single window and remarked that 
perhaps the word "single window " was not the best heading for this paragraph.  The single window 
the proponents  had put forward  was not like a single window for goods. The proponents were  not 
suggesting that all services should be moved to one Ministry or that all competent authorities 
should relocate to one area, or even that there should be a single website for processing all 
applications in relation to all services. The main purpose the proponents were  trying to achieve 
was to avoid duplication and to avoid a service supplier having to go to more than one competent 
authority for one licence. The proposed concept of a single wind ow was a very different concept 
than the single window M embers had in the TFA in relation to customs procedures.  
2.278.   The representative of Cameroon  enquired which single window the representative of 
Australia was talki ng about , as in Cameroon there were severa l single windows.  If a supplier 
needed a licence to practice as a lawyer  in Cameroon,  the request was dealt with by the Ministry of 
Education  and not the Ministry of Justice, as the Ministry of Education  was in charge of the 
diplomas for secondary  and high er education . He enquired as to who would bear the cost of having 
all services issues being dea lt with in one place. He asked which single window the proponents had 
been talking about, what its characteristics were and what the implementation would look li ke. He 
held that it was not satisfactory to say that those questions were  not relevant. He noted that the 
proponents mentioned that they did not want overlapping single windows, but at the same time 
they were not discussing the TFA single window. He asked the proponents to provide all the details 
regarding the single window , so that developing countries could judge whether it was relevant  or 
not and only then provide their opinions . He emphasize d that Members needed clear answers  and 
suggested that the prop onents should provide answers in writing if they did not wish to provide 
them orally . He urged the proponents to respond to questions raised by Kenya.  
2.279.   The representative of South Africa  posed a specific question relating to Australia 's 
response on the visa  policy issue . The question that the African Group had asked was to what 
extent the changes to the skilled visa polic y were  infringing  on the DR disciplines in terms of the 
general provisions  in paragraph  x.x., but also in terms of the "Development of Measures " and 
"Transparency " proposa ls. In other words, she enquired  whether the measures had been  subjected 
to transparent and objective criteria, whether they had gone through prior comment and prior 
publication requirements, namely if Members had been  invited to comment on the changes  and 
whether the comments  had been considered.  She also asked whether measures relating to the 
higher English  knowledge  standards , compulsory labor market testing for all occupations and the 
stricter requirements for criminal  records checks  were part of the measures falling under the scope 
of the DR proposals, and whether they ha d complied with  all of the criteria.  
2.280.   The representative of Australia  came back on a specific question  directed at recent 
changes in Australia 's visa s ystem and how they were infringing on DR policies . She stated that 
the recent changes made to Australia 's visa system d id not infringe in any way on any of 
Australia 's trade commitments. They were entirely consistent with all of Australia 's WTO 
commitments  and FTA commitments that contain ed comprehensive disciplines on DR and 
transparency. It wa s very important to keep in mind that Members were  considering very specific 
measures related to licensing and qualifications and technical standards . She shared with Members 
Australia 's FTA experience , namely that Australian  FTAs contained broad transparency 
requirements that appl ied not only to licensing  and qualifications , but to all services S/WPDR/M/71  
 
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  regulation s. All policies in Australia, all legislation, all regulation s and other measures that were 
not necessarily as formal as regulation s, compl ied with very strict transparency requirements, 
including stakeholder consultations , prior opportunity to comment , etc.  Australia w ent through  a 
very comprehensive consultation process. Visa-related measures were entirely consistent with the 
transparency obligation s which in Australia  went far  beyond domestic regulation. Having a 
transparency obligation  in place  in no way restricted Australia 's ability to introduce c hanges,  as 
these measures d id not dictate how Australia  regulated  its visa system, as long as it was done in a 
way that was transparent . To the extent that those measures relate d to licensing , qualification and 
technical standards , they follow ed a type of good administrative practice that was outlined in the 
"Development of Measures " proposals.  
2.7  Trade Facilitation  Agreement for Services  
2.281.   The Chairperson  reminded Members that the last communication under agenda item B was 
India's proposal for a Trade Facilitation Agreement for Services (TFS), contained in document 
S/WPDR/W/58. As with other communications, Members had had earlier opportunities to discuss 
this document. She also drew Members ' attention to a recent communication from the Dominican 
Republ ic, contained in document JOB/SERV/263, dated 9 June, which set out a number of 
questions on the proposed draft TFS.  
2.282.   The representative of India reminded Members that India's proposal on  the Trade 
Facilitation Agreement for Services had been  discussed ext ensively in the CTS SS meeting in May 
2017. He thanked Members for their comments and questions on the proposal during th at 
meeting , as well as  in the previous CTS meeting. He  did not intend to engage in a detailed 
discussion o f the proposal at the current  meeting, as India was considering introduc ing a revised 
text shortly taking into account Members ' comments and clarification s, and was looking forward to 
continued engagement from Members on the basis of that new document. Regarding the questions 
raised b y the Dominican Republic, the representative of India pointed out that the capital was  still 
finalizing the responses . 
2.283.   The representative of Ecuador  noted that  the Indian proposal could generate new 
commitments  that could be an additional burden for those countries that already ha d made 
extensive commitments multilateral ly, such as Ecuador.  Ecuador did not have  an offensive position 
in the services negotiations due to its limited export development in this area . Generati ng new 
commitments, related to notifications, the establishment of a single window, setting deadlines, 
establishing visa mechanisms for service s suppliers could create an additional burden on national 
regulators  and institutions.  He noted that although a special and differential treatment provision 
had been included in the proposal, it was a more complex task to determine the timeframes within 
which institutions would have to adapt their current processes to comply with the obligations. The 
obligations contain ed in the TF A Agreement mainly concerned th e customs authorities of Member  
countries. In the case of Ecuador, the dispersion of regulations and institutions dealing with trade 
in services could lead to implementation difficulties going beyond special and d ifferential 
treatment. The proposal 's disciplines would prevail over the right of Members to maintain their 
public policy space to regulate certain sectors. This was evident from the subjectivity of the 
proposal, for example in provisions referring to the application of fees and charges, economic 
needs tests, qualifications, time frames, etc. It was necessary to analyse  if the proposal did not 
overlap with the provisions of the GATS.  
2.284.   The representative of Colombia  repeated his delegation 's position that the  provisions of the 
proposed TFS text exceeded the mandate of the WPDR and the discussion better belonged in the 
CTS SS.  
2.285.   The representative of Uganda  mentioned that his delegation was looking forward to 
receiving the revised text and request ed that the comm ents made at the previous meeting  should 
be put on the record on this meeting. In the CTS t he representative of Uganda,  speaking on behalf 
of the LDC Group, said that the Group had presented its views on the proposed TFS at the Special 
Session on 3 May. At  that meeting, after expressing support for the intervention of the African 
Group, the LDC Group had observed that exports of commercial services from LDCs had reached 
US$36 billion in 2015, while imports where valued at US$75 billion. LDCs accounted for 0 .8% of 
world exports and 1.6% of world imports of commercial services. The LDCs ' overall services trade 
deficit had widened from US$16.3 billion in 2005 to US$39 billion in 2015. At the same time, 70% 
of the population in LDCs depended on agriculture for t heir livelihood. The objective of the LDCs S/WPDR/M/71  
 
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  was to increase the participation of their suppliers in the benefits that services brought to LDC 
economies, in particular with regard to competitiveness, diversification of exports, increased 
employment and reduc tion of poverty, improving availability and access to basic services, and 
ensuring sustainable development. This informed efforts in relation to the LDC services waiver.  
The representative believed that trade rules were primarily designed to ensure market access, and 
not to promote efficiency or social welfare. There was a growing preoccupation about the 
intrusiveness of disciplines that required trade considerations to prevail over other policy 
objectives. This could constrain the capacity to effectively r egulate in the pursuit of public interest. 
For this reason, the LDC group appreciated the inclusion of LDC -related provisions on special and 
differential treatment in India 's proposal, specifically Article 11.2 , which provided that LDCs would 
not be requir ed to implement the provisions of the TFS. LDCs were nevertheless encouraged to 
apply these disciplines to the extent compatible with their special economic situation and their 
development trade and financial needs. He welcomed the inclusion in the proposa l of some 
elements of the LDC collective request, for example in relation to the reduction of fees and 
charges. Such reductions should take the form of preferences in favour of LDCs. It was important 
to help suppliers from LDCs compete with suppliers from countries with greater capacity and 
resources. The representative noted that LDCs had proposed that their natural persons supplying 
services through temporary contracts should not be charged social security contributions. India 's 
ideas were therefore of in terest. Attempts to reduce obstacles to mode 4 through multiple entry 
visas and a GATS visa were useful. He asked how India envisaged these provisions being 
implemented. He also wondered whether it was realistic to expect progress on such issues in the 
current environment. The representative also asked the delegation of India to clarify why Articles 2 
and 8.2 would apply to all sectors and not only to sectors where commitments had been 
undertaken. With respect to the single window, he observed that India ha d drawn a distinction 
between competent authorities for authorizations and those for immigration and other matters. He 
wondered whether the delegation had conducted cost analysis on the application of a single 
window in services, given the number of compet ent authorities involved. Moreover, did the 
provisions on ENTs, as well as those on modes 1, 2, and 4, modify the flexibilities available to 
developing countries under GATS Articles IV and XIX? He wondered why India felt that a distinct 
committee to monito r the TFS would be necessary. Finally, he asked India how it envisioned 
reaching consensus on this proposal by MC11. Despite the importance of mode 4 to LDC suppliers, 
the representative believed that the proposal was not covered by existing mandates. Whil e there 
was no negotiating mandate in the WTO on e -commerce, the proposal sought to initiate 
negotiations on this topic without a specific mandate from Ministers. The Indian proposal would 
also lead to the introduction of issues that had been explicitly pr ohibited through paragraph 1(g) of 
the 2004 July Framework, such as investment. In contrast, issues of negotiating interest to the 
LDCs were rooted in some mandate, whether cotton, the services waiver, or the reduction of 
domestic support in agriculture. T he most vulnerable Members of the WTO relied on the 
organization 's rules for protection and these should not be set aside.  
2.286.   The representative of Turkey  reiterate d that her delegation  would like to have the 
opportunity to discuss the stakes  and requested to  note their comments from the  CTS session on 
the record.  She had reiterated in the CTS, that her delegation saw the Indian TFS proposal as a 
balanced package and welcomed it. Turkey hoped to see the text discussed in detail as soon as 
possible, to work tow ards a final version by MC11. The proposed TFS was especially valuable in 
that it addressed areas of interest to developing countries, such as the movement of natural 
persons or cross -border issues, whose contribution to trade in services for developing ec onomies 
was evident. Turkey was a proponent of strong disciplines in those areas and was ready to 
contribute in detail to discussions aimed at finalizing the TFS text; to that end, her delegation had 
already sent detailed comments to India and hoped to see  a revised version of the text as soon as 
possible.  
2.287.   The representative of Cameroon  stated his delegation 's position had not changed and he 
was awaiting the revised version of the TFS proposal.  
2.288.   The representative of China  asked the Secretariat to reflect their intervention at the CTS 
on the TFS proposal in the minutes of this meeting . China  appreciated that India had circulated its 
responses to the issues raised by Members on its proposed TFS (in document RD/SERV/139) and 
that it was holding consultations wi th Members. With regard to the proposed provisions on 
facilitating cross -border flow of information, social security contributions and facilitating the 
movement of natural persons, China suggested that India take into full consideration other 
Members ' opinions. As for the less contentious issues of cooperation among competent authorities, S/WPDR/M/71  
 
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  S&D and technical assistance, China was supportive of further discussion. Since MC11 was 
approaching, her delegation hoped that India could adopt a pragmatic approach and narrow down 
elements of the proposed TFS to facilitate wider consensus among Members. Specifically, China 
provided the following comments. Regarding Article 2.1 on publication and Article 2.2 on 
opportunity to comment and information before entry into forc e, it suggested using soft law 
language or best -endeavor wording considering Members ' differen t legal systems. As for 
Article  3.2 on application timeframes, it proposed changing "at any time " to "within legal time 
period ". Turning to Article 3.4(d), China suggested inserting "and consistent with the legal format " 
between "in case an application is considered complete " and "under the domestic laws and 
regulations ". With regard to Article 3.4(e), it recommended changing "provide without undue delay 
informatio n concerning the status of the application " into "provide, in a timely manner and 
according to law, the processing status of the application ". Concerning Article 3.4(g), China 's 
suggestion was to change "inform the applicant of the procedures for resubmiss ion of an 
application " into "the applicant will have the possibility of deciding on its own to resubmit a new 
application where the reason for termination or denial has already been resolved ". Regarding 
Article 3.6 on information and verification requests,  it hoped that India could clarify the specific 
purpose of this provision; alternatively, China suggested deleting "and are not applied in a manner 
that would constitute a restriction to trade in services " in (a) and "completed without undue delay " 
in (b). With regard to Article 3.7 on fast -track procedure, since administrative licensing procedures 
had clear statutory time limits and processes, fast -track handling might go beyond the existing 
laws and regulations; as such, China suggested deleting A rticle 3.7. As for Article 4(a), it 
advocated changing the word "reasonable " in line 1 into "legal". Regarding Article 5, given the 
complicated nature of Economic Needs Tests (ENT) and the difficulty in reaching consensus on the 
issue, it recommended delet ing the article. With reference to the first paragraph of Article 6.1 on 
qualification and licensing requirements, it suggested deleting the last sentence "where the 
competent authority considers it relevant, it shall give due consideration to relevant pro fessional 
experience of the applicant and membership in a relevant professional association in the territory 
of another Member ". As for the second paragraph of Article 6.1, the proposal was to change "allow 
applicants to fulfil such requirements in the hom e country, host country or any third country 
jurisdiction " into "provide applicants with the opportunity of correcting any deficiency identified ". 
Regarding Article 7, China advocated the orderly flow of cross -border information, on the 
precondition that n ational security, fair and open  environment, cybersecurity, business secrets and 
personal privacy were all safeguarded. Since the discussion on cross -border information flow 
created big difficulties for many Members, it recommended removing that article.  Moving on to 
Article 8.1, China could not agree to extend the coverage of its basic medical insurance to the 
medical expenditures incurred overseas. As for Article 8.2, China deemed it necessary to provide, 
within the allowed policy scope of each Member, co nvenience for consumers with real needs for 
medical services, and was willing to exchange with other Members regulatory practices in that 
regard.  Coming to Article 9.2, China might grant multiple entry visas to those natural persons who 
had met prescribed requirements, according to multilateral and bilateral agreements and domestic 
laws and regulations. As for Article 9.3, social security was a service supplied in the exercise of 
governmental authority according to the GATS Annex on Financial Services; ther efore, it should 
not be discussed in the context of domestic regulation. The suggestion was to delete that article.  
As for Article 10(c), China could agree to exchange information and share best practices on 
methodologies for the collection and compilation  of data relating to trade in services, and to 
collaboration among statistical organizations, as areas for cooperation among competent 
authorities. Regarding Article 10(e), China agreed that technical assistance and capacity building 
be strengthened in ord er to support and help developing countries, and especially LDCs, and their 
SMEs better integrate into Global Value Chains, as an area for cooperation among competent 
authorities.  Finally, with regard to Articles 11 and 12, China was supportive of the elem ents of 
S&D treatment for development countries, and improved technical assistance and capacity 
building.  
2.289.   The representative of South Africa  stated that her delegation was also looking forward to 
the revised text , and, l ike Uganda and China , asked  to put  have their last statement on the record.   
2.290.   In the CTS t he representative of South Africa , speaking with Rwanda on behalf of the 
African Group, said that the Group had addressed the TFS text at the Special Session on 3 May, 
was looking forward to India 's revi sed text and would revert at that stage.  
2.291.   The Chairperson  invited the delegations to take note of the statements  made and revert to 
the agenda item at the next meeting . S/WPDR/M/71  
 
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  2.292.   It was so agreed . 
3  ITEM C: FUTURE WORK AND TIMING OF THE NE XT MEETING  
3.1.  The Chairperson  informed Members, that she had consulted with numerous delegations in the 
past month, and in particular tried to reach out to delegations from whom Members had not heard 
regularly during recent WPDR meetings. She had contacted in total 43 delegations who were not 
co-sponsors of any proposal. Twenty -five of those delegations had responded and had been  able to 
meet with the Chairperson. Due to time pressures, several delegations had not yet been able to 
meet with her, and she expressed hope that those meetin gs could be arranged soon. During the 
consultations, a variety of ideas had been expressed on the way forward, and she had encouraged 
delegations to present these ideas for the benefit of all delegations at the current meeting. She 
opened the floor to dele gations to share their ideas on the way forward.  
3.2.  The representative of Australia  considered the discussion that Members had seen so far truly 
encouraging. She expressed her delegation 's appreciation with the substantive engagement from 
all Members. Members  were very diverse and so far did not see eye to eye on the issues at hand, 
however, she still considered the discussion quite promising to the extent that Members were 
really getting down to the nature of DR disciplines. She looked forward to continuing e ngage ment 
with interested Members and hoped to build understanding around the various proposals. She 
noted that her delegation would also be working with other co -sponsors to try to consolidate the 
proposals in order to have one single proposal , as, accord ing to Members, having a consolidated 
proposal  would be beneficial.  
3.3.  The representative of Cameroon  requested a clarification as to what text the representative 
of Australia meant when she had been referring to consolidation, and whether what she meant was 
consolidating Members ' divergences and misunderstandings.  
3.4.  The representative of the European Union  indicated his delegation 's readiness to continue 
having bilateral and s mall group discussions to clarify the proponents ' intention s and try to 
accommodate th e concerns . Responding to the question from Cameroon  he stated that 
consolidation had been requested s o as to allow the membership  more clarity on the articulation 
between the different proposals on the table . Members had posed  lots of questions during the  
current meeting, inter alia  on the scope of various  proposal s, therefore  some work was needed to 
clarify th ose questions and  take the discussion forward . 
3.5.  The representative of Ecuador  stated that he believed that Members were not at a stage 
where the consolidation of the text on which there was still an immense number of questions was 
appropriate. He held that in order to get to that stage, a lot of concerns needed to be addressed 
first. Moreover, he opined that consultations had to continue, as indicated earlier by the 
Chairperson herself, including with the delegation of Ecuador  that could not yet meet with the 
Chair.  
3.6.  The representative of South Africa  speaking on behalf of the African Group, rei terated that 
the African Group was not a demandeur  for DR disciplines and was very seriously examining the 
extent to which the proposed multilateral disciplines would support or constrain Africa 's continental 
integration agenda , as well as how the proposed  rules relate d to the Group Members ' industrial 
policies. The African Group was not in a position to agree to any prescribed way forward . It was up 
to the proponents to address all the Group 's concerns, questions and issues that ha d been raised 
at the curr ent and previous meeting s. Some of the questions that had been  raised over the four 
days of the current meeting include d: which disciplines proponents thought  were necessary and 
why; whether  all Members  agree d to the need to develop these disciplines; whic h of the  necessary 
disciplines Members  agree d to discuss with a view to developing them; what circumstances had led 
to the suspension of DR negotiations in the past  and whether  those circumstances had changed; 
what the economic rationale  was for adopting D R disciplines ; what the evidence -based benefits of 
the proposed disciplines were; whether the proponents had undertaken an economic impact 
assessment demonstrat ing that their stakeholders had been  losing out on economic opportunities 
in the absence of multilateral DR disciplines ; in which Members stakeholders had mostly 
experienced problems that the proposals were seeking to address,  and whether the proponents 
had tried to resolve them bilaterally ; whether the proponents had exhausted all domestic remedies 
to resolve the problem s; whether i n instances where the proponents  had felt aggrieved, they had  S/WPDR/M/71  
 
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  taken the issues up with the competent authorities in the host M ember ; how the provisional 
applicati on in GATS Article VI:5 had come up short in the absence of multilateral disciplines; and 
finally, h ow the  proposed disciplines  would  contribute to supporting structural transformation in 
Africa . She further pointed out that with seven proposals on the tab le, the piecemeal approach and 
fragmentation of the proposals by the proponents was inappropriate. There were two development 
of measures proposals, each of them prescribing equally concerning regulatory approaches. 
Furthermore, there ha d been a reorganiza tion of headings to include provisions under 
administration of measures, development of measures and transparency. The proposals reveal ed 
that some important substantive provisions on qualification requirements that had been  contained 
in the previous 2009 and 2011 Chairs text s had been removed. The proponents need ed to clarify 
what they want ed and how the y intend ed to address the African Group 's concerns.  
3.7.  The representative of Swaziland  aligned himself with the statement made by S outh Africa  on 
behalf of th e African Group , as well as the statements made by Ecuador and Cameroon , as regards  
the consolidated text. H is delegation fe lt that unless the proposed disciplines passed  a necessity 
test of GATS  Article VI:4, Members  could not think of consolidating the text. Article VI:4 could only 
fully kick off once the necessity test ha d been passed or justified.  
3.8.  The representative of  the Plurinational State of  Bolivia endorsed the statements made by  
Ecuador, South Africa on behalf of the African Group, Swaziland and  Cameroon. He held that the 
proposals still lacked maturity. I t was essential for the proponents, if they were interested in 
continuing to discuss th ese texts, to accommodate the concerns. It was also very important that 
meetings continue d in formal mode  to allow  capital s to follow  the discussion via  the minutes . The 
official record  allowed Members  to have information on the discussions that could  help capitals 
make decision s. He  therefore did not favou r informal meetings on this issue and encourage d the 
proponents to take Members ' concerns into accoun t. 
3.9.  The representative of Cameroon  stated that if the proponents wanted to clarify the questions 
that had been tabled, they did not need to consolidate their proposals . He noted that his 
delegation would appre ciate the helpful answers and clarifications to be provided in full on all 
issues, as promised. He felt that the time had not yet come to talk about consolidating the text. 
There were problems still remaining and it was not helpful to add another layer of complexity to an 
existing one.  
3.10.   The representative of Uganda  thanked the Chairperson for her consultations and 
characterized WPDR discussions as  a good learning experience for all Members , especially those  
who ha d very limited time to look at the proposals.  In terms of the way forward he pointed to  
three critical points to take into account . First, Members  needed to have further understanding , i.e. 
bridge  the knowledge gap on the scope and extent of application of the proposals . It was 
important for the prop onents  to clarify whether the intended outcome on any domestic regulat ion 
disciplines would apply automatically to the preferential treatment notified under the waiver 
mechanism, and if not , why not . He enquired if the proponents believe d that an exemption  for 
LDCs was sufficient in and of  itself to ensure  the development of the LDCs' services industry ; if the  
proposals had been subjected to any necessity test , as required by Article VI:4 of the GATS ; what 
the overall object and purpose of these disciplines  were; w hat problems the proponents were 
trying to resolve with the proposed disciplines and which were the target markets ; if the 
proponents argue d that DR disciplines were entirely trade-related  or whether this was about 
controlling the  political , economic and social manner within which LDCs were governed and the 
way they led their lives; what the intended benefits  were for the LDCs in light of the preferential 
treatment under the waiver mechanism ; if the proponents had tested the GATS and found it  
insufficient for addressing their concerns; whether in case of the latter they had unsuccessfully 
attempt ed to utili ze all the available mechanisms provided for in the GATS, such as the domestic 
system and the DSB . On the question o f the right to regulate , he asked what the relationship  was 
between the right to regulate and these disciplines  and if the proponents could explain when a 
Member h eld that right and when he lost it. He enquired whether  the right to regulate, as 
suggested in the text was absolute , in which case the LDCs would not need an exemption , or 
whether it was unlimited . Regarding the scope of application of the measures , he asked whether 
the co -sponsors  were generally referring to the "Administration  of Measures " proposal by 
Australia ; what the meaning was of the measures "relating to " licensing and qualification 
requirements and procedures and technical standards, in sectors where specific commitments had 
been undertaken ; and what e xactly the scope of application  was. It was also important to clarify 
the exact meaning of the concepts  of "objective  and transparent criteria ", "independent ", S/WPDR/M/71  
 
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  "impartial ", "not more burdensome than necessary ", and measures and procedures that "did not 
unduly prevent fulfilment of requirements ". 
3.11.   The representative  of New Zealand  encouraged the Chairperson and proponents to continue 
consulting with Members in terms of the way forward. It was important for Members to not only 
talk to each other in the formal mode, but also meet bilaterally and in small groups. In the  four 
days of the current WPDR meeting Members had discussed a lot of issues and certainly not 
exhausted the long list of questions. It was very important not to restrict meetings to the formal 
format. From New Zealand 's perspective, recent informal meetin gs Members had been very useful 
to get into a different nature of discussion. There had been some questions from Members who 
had not engaged very actively in the formal setting; she suggested not to rule out any format of 
meetings, formal or informal. The process of questions and answers had been very helpful and 
should continue. In terms of some of the concerns raised about the efforts to consolidate the text, 
she pointed to some questions by Members that were relevant in this regard, such as South 
Africa 's question on how the scope of the "Administration of Measures " proposal related to the 
scope of "Transparency " or "Development of Measures " proposals. The co -sponsors could work on 
trying to more clearly demonstrate how they envisaged the different elemen ts fitting together, 
which would provide some useful clarity and help to respond to some of the questions that had 
been asked.  
3.12.   The representative of Kenya  stated that there was a substantial number of Members that 
were still examining the proposals and Ken ya was one of those delegations. When discussing the 
proposal on "Development ", the proponents had indicated that it was the first pillar of the 
development component and the first step in generating discussions on what kind of special and 
differential tre atment could be extended to the developing countries, as the proposal had only 
focused on special and differential treatment for LDCs. There was a need for completeness in this 
regard. Furthermore, there were still a number of issues that needed clarificat ion. He urged the 
proponents to thoroughly examine the concerns raised and take them into account in future 
discussions. The questions that had been raised by South Africa on behalf of the African Group 
were very relevant to the discussions and the Group w as looking forward to having answers. He 
considered the suggestion to have a consolidated text as an attempt to rush the process.  
3.13.   The representative of Cameroon  asked the Chairperson if she intended to continue her 
consultations, as there were Members she  had not yet met with and he felt that everybody should 
benefit from equal treatment. His delegation endorsed the statements made by Uganda and South 
Africa. His delegation opposed having to receive answers to questions raised in a formal WPDR 
meeting in a n informal meeting, and supported the point made by the representative of Bolivia 
that capitals ne eded to have the formal meeting  reports.  
3.14.   The representative of Zimbabwe  aligned herself with the previous speakers from the African 
and LDC Groups. She felt t hat it was premature to have a consolidated text, as there were still 
many outstanding issues, such as the establishment of whether the disciplines were necessary or 
not, issues of principles, scope, definitions and clarifications of terms, such as the sin gle window 
and how a single window would be implemented in countries such as Zimbabwe, especially in 
terms of the number of sectors that would need to be covered. There were many questions still 
awaiting the answers from the proponents. She suggested first  trying to understand the proposals 
on the table and to proceed subsequently to the next stage. She also pointed out that her 
delegation was quite small and in the event of more formal WPDR meetings attendance would be 
challenging, taking into account the overall number of meetings, including those on agriculture and 
other areas of work in the WTO.  
3.15.   The representative of Chile was of the view that the numerous questions indicated a need to 
meet more and relatively frequently to make progress. Many delegation s had previously stated 
that they were not in favour of domestic regulation proposals and needed to see the whole picture, 
so in this regard it was useful to produce a consolidated text. It would bring more clarity on the 
way the proposals would work with one another.  
3.16.   The representative of Colombia  noted that many Members were interested in the 
practicalities of implementation of the current proposals, especially developing countries. In view 
of that, he supported the idea of pursuing further discussions, i ncluding informal and bilateral 
meetings. He signalled that the delegation of Colombia was prepared to share their experiences as 
a developing country with anybody who wished to come forward.  S/WPDR/M/71  
 
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  3.17.   The representative of Canada  considered that the tense discussio ns were a sign that 
Members were taking the process seriously and expressed hope that the engagement on all of the 
proposals would bode well for further substantive work on DR. Canada was a proponent of two of 
the proposals currently on the table and was w illing to engage with the proponents on other 
proposals to see what could be done to bring those together and to simplify the work of Members 
in trying to understand how all proposals fitted together. With respect to the proposal on gender 
equality, the de legation of Canada would continue to reach out to Members.  
3.18.   The representative of Republic of Korea  was pleased to see active engagement of many 
Members and believed that this demonstrated a high level of interest. There were still gaps to be 
filled among t he membership that he was looking forward to further addressing in the upcoming 
discussions. Regarding future work, he saw merit in seeing all the separate proposals in one place, 
as some of the concerns raised previously had related to the piece meal appr oach of having 
separate proposals.  
3.19.   The representative of Mexico  believed that it was important to have a consolidated  text, and 
at least group all the answers into one document, as requested previously by some Members. 
Having informal consultations and returning to formal mode in which all Members could have their 
positions reflected on record was a practical way of proceeding . 
3.20.   The representative of Cuba supported the statements made by Ecuador, South Africa on 
behalf of the African Group, Cameroon and others. She believed that it was not the time to submit 
a compiled document, as there were still many questions to be answered for Members to have a 
common understanding on this subject.  
3.21.   The representative of Chinese Taipei  echoed the representative of New Zealand and other 
fellow Members ' statements. He supported the idea of having more meetings and constructive 
discussions. He a lso recognized the importance of disciplines on special and differential treatment 
that could help Members with different levels of development to be included into global service 
trade. A consolidated document would facilit ate the discussion and express  readiness to share his 
government 's past experiences with other Members.  
3.22.   The representative of Hong Kong, China  repeated his invitation to all Members to consult on 
his delegation 's proposal and  looked forward to having further discussions either in small gr oups, 
informal or formal mode. He saw great value in having a consolidated proposal, as some Members 
had asked for more clarity in terms of how proposals related to one another. He opined that a 
consolidated proposal could help everyone to understand the p roposals better.  
3.23.   The representative of Argentina  expressed his delegation 's satisfaction with the 
consolidation of the various documents that the proponents had put on the table, as requested by 
some Members. He thought it was the best way to analyse  and w eigh the text as a whole.  
3.24.   The representative of Swaziland  reiterated the point made by Cameroon, as regards the 
series of meetings that was being proposed. He believed that Members could not hold a series of 
meeting without any meaningful progress, as this  would discredit the Working Party. Progress 
could only be made if the proponents would specifically and adequately address the concerns. He 
urged the proponents to come up with responses at the next meeting. He believed that without 
responses Members coul d not come back and considered that subsequent meetings could be a 
waste of valuable time.  
3.25.   The representative of Singapore  supported the idea to consolidate the proposals. She did 
not consider this to mean rushing the process, as the same substance would b e on the table and 
Members would still be able to engage on any outstanding concerns. The value added in 
consolidating the proposals would be in streamlining the process, helping Members understand the 
linkages across the proposals and looking at the situa tion realistically.  
3.26.   The representative of Switzerland  stood ready to pursue the present discussions, as 
appropriate and was interested in seeing how the proposals would fit together.  
3.27.   The representative of Thailand  saw the benefits of having a consolidated text. Some 
Members wanted to have another discussion on various measures to seek further clarification. S/WPDR/M/71  
 
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  Having the consolidated text, however, would allow Members to understand linkages between 
various parts of the package, and would address concerns on th e piece meal approach.  
3.28.   The representative of South Africa  recalled the statement of South Africa 's Minister at the 
informal June mini -Ministerial meeting where he had expressed South Africa 's view that all DR 
proposals unacceptably narrowed the space neede d for policies and regulation that supported 
South Africa 's development objectives and domestic priorities, some of which specifically 
addressed the historical injustices of apartheid. The concerns were amplified by the lack of any 
meaningful headway on th e long -standing priority Doha issues, inter alia , agricultural domestic 
support and strengthening provisions on special and differential treatment. South Africa had 
undertaken substantial market access commitments in services during the Uruguay Round that 
were comparable to, or exceeded those of many developed countries. The current DR proposals 
deepened those commitments and extended them into new areas. The proposals were onerous 
and intrusive into South Africa 's regulatory processes. In addition to this,  the proposals went 
beyond what was necessary in accordance with GATS Article VI:4 mandate for reasons previously 
expressed. The proposals would subject domestic regulatory processes to multilateral oversight 
and the dispute settlement mechanism, even thou gh South Africa 's regulations might be 
addressing specific national priorities. Therefore, she did not consider these proposals consistent 
with the object, purpose and spirit of the GATS. Even if Members were to agree on the desirability 
of such discipline s, which they had not done, any domestic consultations would involve extensive 
processes across all government departments and regulatory agencies, at all levels: national, 
provincial and local. The proposals were not feasible. Beyond these issues, the lac k of specificity in 
the current discussions, which seemed evident by the number of questions and issues raised by 
Members that had not been fully answered, would suggest that proponents needed to dedicate 
more time to focusing and harmonizing their proposa ls. It appeared too many Members that 
proponents did not share a common view on how they wanted to proceed. The manner in which 
the discussion had unfolded also suggested that some proponents did not seem prepared to 
engage on their own proposals. Real eng agement appeared to be mainly amongst Members who 
negotiated these texts outside the WTO. Even though some of these proposals had been on the 
table for a few months, they had only really been the subject of assessment and engagement by 
Members in the last cluster of meetings  in June . The delegation of South Africa wanted to improve 
their own understanding of the intent of the proposals in formal sessions and to seek clarity on the 
questions raised. Without such clarity she did not see how the discussion cou ld proceed.  
3.29.   The Chairperson noted that there was still need for further understanding among the 
Members. Some questions still needed to be responded to. She had also heard the requests for 
more meetings and was ready to organize any meetings that would mov e the process forward. 
She promised to consult to find out how to most efficiently use Members ' time in this respect. She 
had also heard the calls for consolidation of the proposals and agreed that it was up to the 
proponents whether to put the consolidate d text on the table, or not. She assured Members that in 
conducting the consultations she would try to reach out to as many Members on the next steps 
and future work, as possible.  
3.30.    The Chairperson  invited the Working Party to take note of the statements  made.  
3.31.   It was so agreed . 
4  ITEM D: OTHER BUSINE SS 
4.1.  No item was raised under this agenda item.  
 
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