WORLD TRADE  
ORGANIZATION  TN/MA/W/130 
11 December 2009 
 (09-6459) 
Negotiating Group on Market Access Original:   English 
 
 
 
 
MARKET ACCESS FOR NON-AGRICULTURAL PRODUCTS 
 
Compendium  
 
Enhanced Transparency on Export Licensing  
 
Communication from the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu;  
 Japan; Republic of Korea and the United States 
 
  The following communication, dated 7 December 2009, is being circulated at the request of 
the delegations of the Separate Customs Territo ry of Taiwan, Penghu, Kinmen and Matsu; Japan; 
Republic of Korea and the United States.  
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Protocol on Transparency in Export Licensing to the  
General Agreement on Tariffs and Trade 1994 (User Friendly Doc) 
 
Members, 
 
 Desiring to ensure that export licensing pro cedures are not utilized in  a manner contrary to 
the principles and obligations of GATT 1994;  
 Convinced that export licensing should be implemented in a transparent and predictable 
manner;  and;  
 Desiring to bring transparency to the proced ures and practices related to export licensing 
so as to inform traders and Members and facilitate trade in these products;  
 Convinced that access to information on expor t licensing measures benefits traders in both 
developed and developing country Members;  
 Recognizing that the obligations set out in this Protocol are without prejudice to a 
Member’s rights and obligations under Article XX of GATT 1994;
 
  Hereby agree as follows: 
 Question from Malaysia:  What are the rationale s of having separate protocol as various WTO 
provisions have addressed the issue of transparen cy of export regime, including export licensing: 
 
- Article X.2 of GATT: all laws, regulations a nd administrative regulations relating to export 
restrictions to be promptly published;  TN/MA/W/130 
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  - Article XI.1 of GATT: prohibits quantitative restrictions on exportation, except for critical 
shortage, application of standards or regulati ons for classification, grading or marketing; 
 - Article XIII.1 of GATT: non-discriminatory administration of export restrictions; and  
 
-  Article XIII.5 of GATT: extends the princi ple of disclosure of detailed administrative 
procedures of licensing to export restrictions, as far as applicable. 
 Malaysia is of the view that, there is no necessity to  have a separate protocol and this proposal will set 
precedent on new disciplines, other th an transparency. (JOB(09)/93C.1) 
 
• Co-sponsors’ answer:  As the question states,  GATT already includes  various provisions 
regarding transparency of export restriction including export licensing and has made it clear 
that transparency with respect to export licen sing regime is an important principles. The 
Protocol intends to enhance transparency by establishing procedural methods for notifying the 
Committee on Market Access and other Members upon request of aspects of such export 
licensing regimes.  We are convinced that w ithout such procedural rules instructing each 
Member how to meet the transparency require ments, it would be difficult to secure the 
effectiveness of the provisions mentioned and give substance to the ideal of transparency 
under GATT including Article X.2 and XIII.5 of GA TT, which were listed in the question.  
As the Agreement on Import Licensing Proce dures demonstrated, without those detailed 
procedural rules, the ideal and obligations of enhanced transparency on import licensing 
regimes would not have been implemented easily.  The Protocol here is designed to fill up a 
gap by providing a set of procedural rules for Members to follow in order to achieve greater 
transparency in running their respective expor t licensing regimes in conformity with WTO 
obligations. Therefore, we must respectfully  disagree with the opinion that there is no 
rationale or necessity to have this Protocol.  Rather, the current WTO framework begs for a 
separate protocol as such to achieve the goal of enhanced transparency on export licensing.  
Also, we would like to emphasize that ther e will be no “new disciplines other than 
transparency” set up by this Protocol as it is neutral on what kind of export licensing is 
permitted and what kind is not . The Protocol does not affect the rights of a Member to 
implement export licensing measures consistent  with WTO legal disciplines including GATT 
Articles XI, XIII.1 and XX.  The Protocol only concerns certain procedural methods  of 
bringing transparency to export licensing regi mes that Members may operate, e.g., it requires 
the Member to notify its export licensing measures and answer questions posed by other 
Members concerning such measures. (JOB(09)/127) 
 Question from Malaysia:  How this proposal will be legally effective as there is no specific provisions 
on general rights and obligations on export rest rictions under GATT (unlike Article XIX which 
provides legal ground for the development of a separate Safeguard Agreement). (JOB(09)/93C.2) 
 
• Co-sponsors’ answer:  As we mentioned in our  answer C.1., this Protocol would further 
strengthens the principle of transparency that Article X.2 and XIII.5 of GATT establish.  In this sense, Article X.2 and XIII.5 of GATT would be the legal basis of this Protocol.  It 
should be noted again that the “Agreement on Import Licensing Procedures” was made to 
bring transparency to the import licensing procedures even though Article X, Paragraph 1, of 
the GATT requires Members to promptly publis h and provide transparency for measures 
related to “exports” as well as “imports”.  Just as the “Agreement on Import Licensing 
Procedures” is legally effective, the Protocol’s le gal effectiveness would also not be an issue.  
This Protocol will bridge the gap between transparency disciplines on import and export 
licensing and thereby help traders in importi ng Members access information relating to export 
licensing procedures.  Even if there may not be specific provisions in the GATT on general  TN/MA/W/130 
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  rights and obligations on export restrictions, it is  irrelevant to the legal effectiveness of the 
Protocol because the Protocol itself deals with ”transparency” of export licensing, not with 
any rights or obligations on export restricti ons including export licensing. (JOB(09)/127) 
 
Question from Malaysia:  Please clarify on whether th is Protocol is covere d by Dispute Settlement 
Mechanism, should Member failed to conform to its obligations under this proposed Agreement. 
(JOB(09)/93C.3) 
 
• Co-sponsors’ answer:  Yes, it is our view that this Protocol should be covered by the WTO 
Dispute Settlement Mechanism, although ther e may be relatively fewer cases where the 
interpretation of the provisions of this Protocol is in dispute. (JOB(09)/127) 
 
Question from Malaysia:  Japan’s communication on 26 March 2007 indicated that this proposal 
covers finished goods and not agricultural prod ucts which are under the purview of agricultural 
negotiations. Are there any changes to the proposed product coverage?( JOB(09)/93C.4) 
 
• Co-sponsors’ answer:  No, we have not changed our position on the proposed product 
coverage.  The proposed agreement covers finished goods as well as raw materials.  
Agricultural products should not be incl uded because the Negotiating Group on Market 
Access does not have a mandate to negotiate on agriculture. Also, Art.12 of the Agreement on 
Agriculture has its own system on transparency w ith regard to export regimes, which requires 
Members to notify export prohibitions or restric tions in respect of food-stuffs. (JOB(09)/127) 
 
Question from Singapore:  Will the co-sponsors cons ider providing additional phase-in periods and 
technical assistance for developing country Member s and least developed country Members to meet 
these transparency obligations? (JOB(09)/22 E.1) 
 
• Co-sponsors answer:  The co-sponsors (Japan, th e Republic of Korea, the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu and the United States) acknowledge the 
importance of technical assistance provisions. The co-sponsors draw Members’ attention to the fact that this proposal already includes so me flexibility: Article 3.1.(b) requires Members 
to submit certain types of information only wher e available; and Article 5.1. provides that 
Members shall review the impl ementation and operation of the notification requirements at 
least every 2 years.  Nevertheless, the co-s ponsors are ready to listen to any suggestions 
concerning what kinds of additional assistance would be necessary for developing and least-
developed Members. (JOB(09)/41) 
 Article 1:  Definition of Export Licensing
 
 
 For the purposes of this Protocol, export li censing means any administrative procedures 
involving the submission of an application or other documentation (i.e., other than that required for customs purposes) to the relevant administrati ve body or bodies as a prior condition for 
exportation from the customs territory of the exporting Member.   
Question from Malaysia:  Noted that the proposed definition is using Import Licensing Agreement as 
a basis. With regards to export licensing, in most  instances, the license would ultimately be required 
by customs to facilitate shipment activities. Do th e end result involving customs substantiate “customs 
purposes”? (JOB(09)/93C.5)  
• Co-sponsors’ answer:  We understand this ques tion to be about the linkage between the 
Protocol and “customs purpose”.  The ultimat e purpose of this Prot ocol is to bring 
transparency of export licensing regimes. We ar e open to discussion as to the definition of the TN/MA/W/130 
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  “export license” in this regard if there is any ambiguity, including with regard to the phrase 
“customs purposes.” (JOB(09)/127)  
 
Article 2:  Notification  
 
4. Any interested Member which considers that another Member has not notified a new or 
existing measure on export licensing or modifi cation thereto in accordance with the provisions 
of Paragraphs 1 and 2 may bring the matter to the attention of such other Member.  If notification is not made promptly thereafter, the interested Member may itself notify the 
measure on export licensing or changes ther ein, including all relevant information.  
 
Question from Malaysia:  Interested party can notif y on behalf of the implementing parties, should 
implementing countries fail to do so. It would not be  appropriate for interested party to notify on 
behalf of the implementing party due to accuracy of information. How the interested party can verify 
the accuracy of the information for notification purposes? (JOB(09)/93C.6) 
 
• Co-sponsors’ answer:  We think this is important  point and we are working to further develop 
idea to address this issue.  While we very much welcome any constructive comments with 
respects to this issue, we would like to clarif y that this option is intended as a supplementary 
element in addition to the regular notificati on by implementing parties.  Only when the 
implementing parties were not reporting the re quired information regarding its own export 
licensing regime, then the interested parties would have the opportunity to do so. Such 
supplementary approach would help ensuring gr eater transparency ev en when implementing 
parties were unable to fulfil their obligations in making such notifications. (JOB(09)/127)  
 
Article 3:  Requests for Information
 
 
1. A Member shall provide to any Member, upon request: 
 (a) all relevant information concerning: 
 
(i)   the administration of the measure on export licensing , incl uding the information 
listed in Paragraph 2 of Article 2; 
(ii)   the export licenses granted over a recent period;  and 
(iii)   measures, if any, taken in conjuncti on with export licensing, including but not 
limited to restrictions on domestic production or consumption, and 
governmental stabilization plans for a good; and 
 
Question from Malaysia:  Need clarification on th e definition of “government stabilisation plan”. 
Does this mean that Members have to notify a ll policy updates and changes related to specific 
industries of which export licensing are being implemented? (JOB(09)/93C.7) 
 
• Co-sponsors’ answer:  Article 3(a)(iii) of the proposal is not a general notification 
requirement, but is instead triggered only if a Member requests information. Upon receiving a 
request regarding export licensing implem ented in conjunction with a government 
stabilization plan, the Member should supply all “relevant” information concerning the 
government stabilization plan for the good( s) referenced by the requesting Member. 
(JOB(09)/127)  
 
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