WORLD TRADE  
ORGANIZATION  TN/MA/W/11/Add.8 
1 May  2006 
 (06-2070) 
Negotiating Group on Market Access Original:   English 
  
MARKET ACCESS FOR NON-AGRICULTURAL PRODUCTS  
 
Negotiating Proposal on WTO Means to Reduce the Risk of Future NTBs 
 
and to Facilitate their Resolution  
 
Communication from the European Communities 
 
Addendum  
  The following communication, dated 28 April 2006,  is being circulated at the request of the 
delegation of the European Communities. 
_______________ 
 
 
1. In line with paragraph 16 of the Work Programme adopted at the WTO Ministerial 
Conference in Doha in November 2001, and paragr aph 22 of the decision at the WTO Ministerial 
Conference in Hong Kong in December 2005, the Eu ropean Communities (hereafter “the EC”) hereby 
submit its specific negotiating proposal on NTBs on WTO means to reduce the risk of future NTBs 
and to facilitate their resolution.   2. This EC negotiating proposal on NTBs builds upon and furthers the objectives set out in earlier EC communications to the Negotiating Group on Market Access (NGMA), notably its 
submission on 1 April 2003 (TN/MA/W/11/Add.3). The European Communities, in making the 
following proposal, also recognizes that other Me mbers have been discussing and proposing the 
establishment of similar “horizontal NTB mechanism s” in the WTO for the timely and cost effective 
resolution of non-tariff barriers in the NAMA negotia tions. For further progress in the direction of 
finalization of the negotiating draft the EC looks forw ard to cooperation with all interested Members.   
 I. INTRODUCTION 
3. WTO Members at all levels of developmen t, as well as representatives of their respective 
business communities, have expressed growing frustra tion with the lack of tangible progress in the 
negotiations on non-tariff barriers (NTBs) in NA MA. At the same time, with the exception of 
clarification and improvement of WTO disciplin es (e.g. in the on-going DDA negotiations on Trade 
Facilitation), NTBs do not always easily lend them selves to traditional multilateral rounds of trade 
negotiations. In particular devel oping countries have found it difficult to identify, gather necessary 
information on and analyse individual NTBs for th e negotiations – let alone pursue them, item-by-
item, in the negotiations. Equally important, even if  a country will be able to successfully address a 
particular issue, experience shows that new NTBs  tend to crop up over time. One NTB is replaced by 
another, leaving the industry in the same situa tion as before. Moreover, in many cases the “source” of 
the NTB is a legitimate policy objective, unrelated to  trade, yet the means of implementing it can have 
an undue trade-distorting effect.
1 
                                                      
1 It should be recalled that not all NTBs are cont rary to the WTO Agreement. As recognised in 
particular in Article XX of the GATT 1994, WTO Members may under certain conditions adopt measures to 
protect inter alia  human, animal and plant life and the environment. TN/MA/W/11/Add.8 
Page 2  
 
  4. Therefore, there is a need to improve the available means for WTO Members and their 
industries to:  (a) Reduce the risk of NTBs arising in the future;  (b) Facilitate more rapid resolution of NTBs  once the DDA negotiations are concluded.  
 
II. REDUCING THE RISK OF FUTURE NTBS 
5. Despite ample existing requirements on transp arency, there is still a shortage of readily 
available information for traders about relevant tr ade laws, regulations, decisions and administrative 
rulings of WTO Members. Many of the notified NTBs to the NGMA, and reoccurring complaints 
from industry, reflect this present information gap.  
 6. Shortage in accessible information can present a formidable challenge to exporters. At the 
very least, it raises the costs of participating in in ternational trade. In some instances, these added 
costs and their unpredictable nature may present real entry barriers to foreign markets, especially for 
small and medium-sized companies and companies from developing countries.  
 7. In addition, inadequate info rmation about potential trade e ffects on business in trade policy 
decision-making increases the risk that decisions are taken that perhaps unintentionally impede 
access. Transparent and open systems for consulting i ndustries that could be affected by any measure 
ensure better-informed decisions and may be one of  the most effective antidotes against new NTBs.  
 
8. To reduce the risk of adoption of business unfriendly NTBs, the existing notification and 
transparency requirements under WTO rules should be re-examined, including the current use in some 
trade policy areas of enquiry points. Options for improving those requirements should be explored – 
ranging from notification and reverse notificati on requirements to, where possible, domestic 
consultative procedures which allow adequate and reasonable opportunity for interested traders and 
other non-governmental parties to express opinions on relevant trade policy legislation before its 
adoption – with the view to enhancing transparen cy for economic operators worldwide while taking 
into account the possible capacity constraints of developing countries.   
III. FACILITATING THE RESOLUTION OF FUTURE NTBS 
9. More importantly, however, entrepreneurs must have an opportunity to swiftly and effectively 
tackle NTBs. The evolving nature of NTBs underscores the importance of empowering WTO 
Members to continuously address NTBs, as they occur, outside formal multilateral rounds of 
negotiations.   
10. In the current WTO system, Members have two main options – WTO regular bodies and 
dispute settlement – for raising concerns with, and seeking solutions to, trade measures of other WTO 
Members that negatively affect the interests of thei r industries. In the case of most NTBs, countries 
raise their concerns in regular WTO bodies, through notifications and consultations, or in trade policy 
reviews, through the procedure of question and answ ers. But while these mechanisms are useful for 
clarifying certain trade policies of Members, they rarely help addressing NTBs and, to some extent, 
they were never set up for the purpose of problem-solving. 
 11. Conversely, the dispute settlement system of  the WTO has proved capable of handling most, 
if not all, NTBs that Members have sought to address. However, compared to the number of NTBs of concern to industry, it would seem that Member s generally have refrained from using dispute 
settlement for many NTBs, and the use of good o ffices, conciliation and mediation under the DSU has 
been even less common. This has in  part to do with the costs and time  associated with disputes, which 
reduce the incentive of pursuing less pertinent NTBs as well as place a burden that can be particularly  TN/MA/W/11/Add.8 
 Page 3 
 
 
  deterring for developing countries. Another reason is that Members tend not to launch a dispute unless 
they have some good sense of the legality of an NT B, which in some instances may be difficult to 
determine due to the imprecise nature of WTO rules.  Less clear, however, are the reasons for the lack 
of use of good offices, conciliation and mediati on. The most likely expl anation is that these 
procedures are still seen as too “close” to the di spute settlement process, and have been seen, 
therefore, in the same light. 
 12. Thus, there appears to be a need to improve  problem-solving in WTO that would supplement 
the current options of dispute settlement and regul ar WTO bodies. This would of course have to be 
done without, in any way, interfering with Member s’ rights and obligations under dispute settlement 
or under other current WTO Agreements. Instead, th e objective would be to add to existing structures 
a new horizontal mechanism that enhances Members’  opportunities to address – in a conciliatory and 
expedient manner – any trade measure that affect tr ade with another Members.  This would provide a 
means of resolution that could make resort to  dispute settlement unnecess ary in certain cases. 
 
13. In conclusion, in order to facilitate progressive and more rapi d resolution of future NTBs, the 
WTO system would benefit from:   
• the establishment of horizontal mechanism, in the form of a procedure for problem-
solving in the area of NTBs,  with short time-lines, as well as  with the involvement of a 
facilitator that can assist countries in reaching mutually agreed solutions.  
 
14. A more detailed description of how any such mechanism would work has been further 
elaborated in the ANNEX.    
 
     TN/MA/W/11/Add.8 
Page 4  
 
  ANNEX 
 
Parameters for a Problem-Solving Mechanism: 
 
Facilitating the Resolution of Non-Tariff Meas ures Adversely Affecting Trade between WTO 
Members 
 
1.  The Mechanism shall apply to non-tariff me asures which adversely affect trade between 
WTO Members and, directly or indirectly, the operation of GATT 1994 or other multilateral 
agreements on trade in goods, without prejudice to  the question whether or  not the measures breach 
existing obligations or otherwise nullify or impair  the balance of Members’ rights and obligations 
under WTO Agreements.   
2.  Any Member, whose trade is adversely affected by a non-tariff measure of another Member, 
may request to begin the procedure under the Mechan ism, as set out below. Such request shall be 
notified to the relevant WTO body. The request shall include a brief description of the matter 
sufficient to present clearly the measure in question and its trade effects. The Member to which such 
request is made shall favourably consider the re quest and provide a written reply to the notifying 
Member in no less than 10 days after the date of re ceipt of the notification.  The reply shall also be 
notified to the relevant WTO body.   
 
3.  Upon launch of the procedure under this mechan ism, the parties are en couraged to agree on a 
facilitator, which shall be an expert on  the subject matter and act as a mediator.
2 The parties shall 
agree on the expert facilitator no later than 15 days after the receipt of the request, after which the 
parties shall inform the relevant WTO body of their choice.3 If no expert facilitator can be agreed 
within the established time frame, and one of the pa rties so requests, the Director-General shall 
appoint the expert facilitator within 10 days of the request and after consulting the parties.   
 4.  The purpose of the expert facilitator shall be to assist the parties in bringing clarity to the 
possible trade effects arising from the NTB in que stion and reaching a mutually agreed solution, 
without reference to the legality of the NTB.   5.  In the initial stage of the procedure, within  15 days after the appointment of the expert 
facilitator, the party invoking the mechanism shall present the problem to the expert facilitator, in 
particular the facts and trade effects relating to  the NTB at issue. Within 10 days after this 
presentation, the other party may provide its comments in writing to the expert facilitator. The expert 
facilitator may decide the most appropriate way of completing the fact-finding. In particular, the expert facilitator may decide whether to schedule a hear ing of the parties, meet with any of the parties 
individually, seek the assistance of the Secretariat or  consult with relevant e xperts, affected industry 
and other non-governmental organizations. 
 
6.  Following this fact-finding, the expert fac ilitator may provide adviso ry opinions and propose 
solutions to the notified matter for the parties’ consideration. The expert facilitator may meet 
individually or jointly with the parties in orde r to facilitate a mutually agreed solution.  
 
7.  The procedure shall normally take no longer th an 60 days from the appointment of the expert 
facilitator.  
  
                                                     
 
2 For example, in cases concerning standards and technical requirements, the panellists should 
preferably have a background in relevant international standard setting bodies. 
3 For example, in order to ease the appointment of a facilitator, relevant WTO bodies can establish 
rosters of potential facilitators, from which the parties may find the appropriate fac ilitator of mutual consent.  TN/MA/W/11/Add.8 
 Page 5 
 
 
  8.  Consultations under the mechanism may take pl ace in either concerned countries, in the WTO 
or in any other third place as per mutual conveni ence. All deliberations a nd information exchanged 
under the procedure of this Mechanism shall be stri ctly confidential. There shall be no third party 
participation in the process unless the parties mutually agree.   
9.  At the end of the procedure under the Mechan ism, the expert facilitator shall report to the 
relevant WTO body to which the matter was origina lly notified, about (1) the process, (2) the fact-
finding conducted by the expert facilitator and (3) th e agreed solutions, if any. Any party unwilling to 
implement the proposed solutions by the facilitator is expected to state its reasons for not doing so.  
 
10.  The Mechanism is without prejudice to  the Understanding on Rules and Procedures 
Governing the Settlement of Disputes (DSU), including Article 5, and Members’ rights and 
obligations there under. Members may pursue under  this mechanism any measure having a trade 
effect, without prejudice to its rights and obligations under the WTO Agreement. Members may pursue the same matter in parallel or subseque ntly under the DSU. Information exchanged and 
solutions explored under this Mechanism shall not  be used in any subsequent dispute settlement 
procedure.   
__________