RESTRICTED  WORLD TRADE  
ORGANIZATION  TN/RL/M/38 
31 March 2011 
 
 (11-1604) 
Negotiating Group on Rules  
  
 
SUMMARY REPORT OF THE MEETING  
HELD ON 4 FEBRUARY 2011 
 
Note by the Secretariat
 
 
 
1. The Negotiating Group on Rules ("the Group") held a formal meeting on 4 February 2011. 
A. ADOPTION OF THE AGENDA  
2. The Group adopted the following agenda: 
A.  ADOPTION OF THE AGENDA ............................................................................................1  
B.  REGIONAL TRADE AGREEMENTS REVIEW OF THE TRANSPARENCY MECHANISM 
FOR REGIONAL TRADE AGREEMENTS .............................................................................2  
C.  REGIONAL TRADE AGREEMENTS :  "SYSTEMIC ISSUES " ................................................12  
D.  OTHER BUSINESS .........................................................................................................16  
 
3. The Chairman urged participants to provide  written copies of their statements to the 
Secretariat prior to their interven tion for the use of interpreters. 
4. Reporting on the informal consultations held the day before the meeting, the Chairman 
indicated that the intention of th e process of informal consultations was twofold, namely, helping to 
define precisely the issues the Group wanted to ach ieve results on, and developing a strategy to 
achieve consensus on them.  The consultations were  not "rehearsals" for formal meetings, and, 
accordingly, no debate had been held on the submi ssions themselves.  He had invited Members to 
react to a number of points, which had since that tim e been circulated to Members and also been made 
available in the room.  He had been very happy to  see that despite having taken Members by surprise, 
they had been in a position to efficiently respond to his request. 
5. The Chairman summarized Members' views as expre ssed in the informal consultations.  First, 
Members had indicated that at that point in time no proposals were being prepared;  however they 
noted that they might wish to come forward, at some point in time, with new ideas depending on how 
the discussions progressed.  Second, there had been no discernible consensus on what should be the 
priority of the Group's work:  Members attached  enormous importance to the General Council 
mandate to make the Transparency Mechanism (TM)  permanent, and he did not recall having heard 
any Member say that work on systemic issues was re latively unimportant compared to the TM.  It had 
appeared, however, that some Members placed greater priority on the Review of the TM while others 
afforded equal priority to systemic issues and the Review of the TM. Third, it had appeared that the 
suggestion to examine both issues simultaneously, to  see how the process evolved before determining, 
at an appropriate time, which of the two areas s howed better prospects of arriving at a result, was 
reasonable.  Fourth, with regard to the legal re view of the TM, the Group should devote attention to 
work on legal issues, acting pragmatically.  These should not be left unattended for too long but, 
rather, should form part of the focus of the Group's work at an appropriate time, care being taken to TN/RL/M/38 
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  avoid getting lost in the details.  Input from the Secr etariat had been requested, initially with an oral 
contribution, to be concretized, as the process evolved, by a written input.  Fifth, a well crafted 
substantive work programme on systemic issues, fo rmed on the basis of Chair consultations with 
Members as regards scope and content, could be ach ieved;  whether this should be achieved was a 
matter for discussion and consensus.  Caution had also been expressed about the danger that starting 
discussions on a work programme might lead to a situation of prejudging discussions on systemic 
issues.  Sixth, as for the role of  the Chairman, it had been his impression that Members wanted him to 
act as a shepherd;  they expected the Chair to deve lop an intensive programme of work to force them 
to convene in different forms and formats to help build consensus, and he was ready to do so.  This 
could become a matter of personal pleasure if c onstructive positions were put forward rather than 
over-doctrinal approaches, which should be avoide d as they did not produce an atmosphere conducive 
to consensus building and compromise finding.   A suggestion made by one Member, with 
endorsement by some others, that the Chairman migh t wish to consider the possibility of appointing a 
facilitator to help him in particular with respect to  a work programme had been seen as attractive;  it 
was an approach that was being applied in the ot her areas of work of the Negotiating Group, with 
encouraging results.  Seventh, as regards deadlines, it had appeared that the setting of timelines would 
be helpful given the very tight timeframes the Gr oup was working under;  however, deadlines ought 
to have a degree of flexibility.  It had been suggest ed that a timeframe could be set for the submission 
of major proposals, but without making it impossible for the genesis of new proposals generated from the evolution of discussions.  There had been a common understanding, as the Group got closer to the 
end of April deadline, that new proposals should be tabled reflecting common views and ideas that 
had emerged among Members, and that these could pr oduce an unified outcome.  The point had been 
made that the review of the TM and systemic issues were different , however in that while proposals for the TM review could only be new since the Group had just embarked on the review, many of the systemic issues had been debated for a long time.  However, a new proposal on systemic issues might 
not always raise new issues but could instead be ta bled as a text-based contribution to a long standing 
debate. 
6. As regards the proposals discussed under the next  agenda items, Partic ipants thanked the 
proponents for having formulated written proposals in reply to the Chairman’s request;  various 
Participants noted that their comments were of a pre liminary nature and that they might wish to come 
back to them at a forthcoming meeting of the Group. 
B. 
REGIONAL TRADE AGREEMENTS REVIEW OF TH E TRANSPARENCY MECHANISM FOR REGIONAL 
TRADE AGREEMENTS  
7. The Chairman noted that at the meeting held on 13 December 2010, the Group had agreed to 
promptly launch the review of the TM.  He had in vited Members to contribute to the review;  the 
Secretariat had also been invited to do so, and,  further, he had written to the Chairmen of the 
Committees on Regional Trade Agreements (CRTA) and Trade and Development (CTD) requesting 
them to share with the Group their Committees’ e xperiences in implementing the TM.  He was happy 
to see that his request had been translated into action, with the Group having before it two proposals 
by Members, as well as inputs from the Chairmen and the Secretariat, distributed as documents 
JOB/RL/1, 2 and 4, respectively.  Among their comm ents, both Chairs had identified the absence of a 
provision in the TM dealing with notifications under two different provisions as a matter of concern.  
Furthermore, the Chair of the CRTA had commented on all the Sections of the TM, noting, in various 
instances, that there was room for improvement.  The Secretariat’s input, circulated upon request by 
the Group, provided comments on four Sections of the TM, and on three additional issues.  He proposed to consider individually the submissi ons made by the United States, contained in 
TN/RL/W/248, and Ecuador, contained in TN/RL/W/249.  Comments on the other three inputs, if any, could be made after that. 
  TN/RL/M/38 
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  8. Referring to JOB/RL/1, the CRTA Chairman indicated that, due to an unintentional omission, 
no reference had been made in paragraph 7 to a pr oposal by the United States circulated in document 
WT/REG/W/59.  This proposal related to a proposed  study by the Secretariat on the number of RTAs 
in force and a bibliography of literature on RTAs in the last five years.  He would be sending this 
correction in a letter to the Chairman and a correct document could be circulated later.1 
9. The proponent of TN/RL/W/248 presented his co untry's proposal that would improve the 
operationalization of the TM.  The proposal had been drafted in reply to the Chairman's fax circulated 
in December 2010 where he had requested delegatio ns not only to identify problems and hiccups but 
also solutions.  A problem that had been identif ied by the Chairmen of the CTD and the CRTA in 
their letters to the Chairman, and also by several Me mbers in the past year, was when one party to an 
RTA notified it under the Enabling Clause while anothe r did so under Article XXIV.  This constituted 
a kind of cross-cutting issue that had generate d numerous arguments regarding the forum for 
consideration of the RTA.  Her delegation's proposal  was to give back to the CRTA the responsibility 
of considering not only RTAs notified under Article  XXIV of the GATT and Article V of the GATS, 
but also those notified under the Enabling Clause;  this was a pragmatic solution that would avoid 
prolonged discussions on the choice of forum.  He r delegation had no illusions that Members could 
resolve the underlying disagreements about the applicability of various provisions of the GATT and Enabling Clause in the near future, but it was in cumbent upon the Group to try to resolve such an 
institutional problem. 
10. As a background, she noted that prior to the estab lishment of the CRTA, the task of looking at 
RTAs in the GATT was accomplished in individual wo rking parties.  With the increase in the number 
of RTAs, it had been decided in 1996 to establish th e CRTA.  The terms of reference (TORs) of the 
Committee, circulated as WT/L/127, gave th e Committee the mandate to consider not only 
agreements under the Article XXIV of the GATT a nd Article V of the GATS, but also the Enabling 
Clause, the idea being that all of it would be done in one place.  The Legal Division of the 
WTO Secretariat had in the past been asked to look at issues under the Enabling Clause, and why 
agreements under the Enabling Clause were not being considered in the CRTA;  that had resulted in 
the Legal Note circulated in 2003 (WT/COMTD/W/114) .  Looking at the CRTA's TORs, this Note 
observed that the CRTA could be reckoned as a specialised body to which WTO Members had 
delegated their power to examine, question,  consult on, and review RTAs pursuant to 
GATT Article XXIV, GATS Article V and the Enabling Clause.  Paragraph 60 of the Legal Note also 
stated that "it might be institutionally more effi cient and legally more coherent for the CRTA to 
conduct the primary examination of all RTAs, wit hout impairing Members rights and obligations", 
and her delegation was of the view that this was perhaps something that the Group needed to go back 
to.   
11. While it was easy to identify a problem, findi ng a solution was another matter, and her 
delegation had tried to find the most obvious solution.   It was their view that this did not affect 
anybody's legal rights whatsoever.  During the TM negotiations, the Group had dropped some of the 
less useful steps that had evolved through the year s;  it had developed procedures to ensure maximum 
transparency while avoiding getting into endless de bate on legal matters.  The TM limited the 
consideration of an RTA to one meeting and, desp ite the application of di fferent substantive legal 
standards to the various RTAs notified or without regard to which Committee they were notified, it 
allowed Members to understand their provisions and implications.  The TM provided for the 
consideration of an RTA;  the TORs for its exam ination were no longer provi ded nor were questions 
from the Chair about legal consistency addressed.  Th e consideration of an RTA placed on the agenda 
of the CRTA or the CTD was done on the basis of Factual Presentations, which were identical for 
agreements under the Enabling Clause, GATT Article XXIV or GATS Article V;  thus in effect the 
                                                     
 
1 The document has since been circulated as JOB/RL/1/Rev.1. TN/RL/M/38 
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  same procedures applied for all RTAs and the adoption of the proposal would not prejudice Members' 
rights and obligations. 
12. Finally, she clarified that this proposal did not apply to the Transparency Mechanism for 
Preferential Trade Arrangements only to reciprocal  trade agreements as noted in the original 
CRTA TORs.  The proposal was a contribution intended  to try to help Members to move forward and 
develop ideas on how to resolve the institutional prob lem that had resulted in some annual reports not 
being adopted and  to disputes regarding choice of forum;  this sensible solution would avoid such 
disputes. 
13. One Participant recalled that in a fax circ ulated by the Chairman in December 2010 
submissions "to propose solutions to the pitfalls  encountered when implementing the TM" had been 
requested.  Further, the inbuilt mandate in paragra ph 23 of the TM called for a review of the TM "if 
necessary … in the light of experience gained";  it did not call for fundamental changes in the TM.  
The proposal contained in TN/RL/W/248 went well be yond the scope of the review the Chairman had 
envisaged or that had been envisaged in the i nbuilt mandate.  He requested therefore a consensus 
before discussing the proposal;  his delegation could not agree to reopening the TM in a fundamental 
way.    
14. In an informal mode discussions were held a nd divergent views expressed with respect to the 
point of order raised. 
15. Reverting to formal mode, the Chairman clarifie d that while he would not retract what he had 
said or written this was a Member driven organiza tion and it was not for the Chairman to decide on 
how to proceed.  Quoting paragr aphs 6 and 8 of the Note on th e Meeting held on 13 December 2010 
(TN/RL/M/37), he noted that nothing  had been said that could limit the scope of the review in any 
way.  He proposed to continue discussion on the proposal contained in TN/RL/W/248;  in the course of discussions, the position of Members on that would probably emerge.  In the absence of reactions 
against his proposal, the Group proceeded with discussions on the proposal. 
16. Participants stressed the need to get the TM to work well on the basis of a consensus and 
permanently.  The important substantive issue was that RTAs were reviewed in a consistent and 
prompt manner in order to promote transparen cy.  Among the issues needing improvement, dual 
notification was identified as a major problem;  un certainty and disagreement about the choice of 
forum where RTAs were examined detracted from the spirit and intention of the TM.  Some 
Participants highlighted that the fundamental so lution to the issue of dual notification was to 
determine the scope of the Enabling Clause. Ho wever, that was a controversial issue and a 
compromise on that could not be expected in the near  future. Another issue that needed clarification 
was the divergent views among Members on whether agreements concluded under the framework of 
the Latin American Integration Associati on (LAIA) had or not been notified.  
17. One Participant noted that the proposal focused  on the choice of forum for RTAs to be 
examined, but also alluded to the special needs a nd rights of developing countries;  that was also 
highlighted in the proposal circulated in TN/RL/W/250, to be discussed in the following agenda item.  
It was her delegation's preliminary view that it w ould be useful to consider both these elements in 
tandem, so as to have a balance of an efficient and coherent process, as highlighted in the former, 
while preserving the rights of developing countries.   Clarification was requested on the proponent's 
intended role for the CTD, given the important ro le it currently played for developing countries. 
18. Some Participants supported the proposal made;  they considered the proposed solution to be 
pragmatic.  In the absence of a solution regarding the scope of the Enabling  Clause, the proposal 
represented an affordable, practical, even if not  necessarily ideal, solution.  The proposed way 
forward for dually notified RTAs corrected a shortf all of the TM;  the current impasse regarding  TN/RL/M/38 
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  disagreement over the body responsible to cons ider RTAs notified under two different legal 
provisions was deferring their consideration process and therefore transparency.  The maintenance of 
one single Committee responsible for the operati on of the TM could bring in coherence and 
consistency in implementing the TM and eliminat e any disputes over the suitability of the CRTA or 
the CTD in considering an RTA.  At the time of  the adoption of the Decision, support had existed 
from some Members for considering all RTAs in a single body to ensure thei r full transparency and 
also that discussions took place in the body with the expertise for conducting such examinations;  
however, in a spirit of compromise in order to en sure the provisional adoption of the TM, the solution 
of having both the CRTA and the CTD performing f unctions in accordance with the notification of 
the RTA had been accepted.  One Participant qualifi ed this compromise as a mistake that had not 
passed the test of experience because it could not d eal with the unforeseen case of dual notifications;  
the fact that it represented the outcome of very  difficult negotiations should not however be 
minimized and it would be appropria te to explore better solutions. 
19. Participants supporting the proposal highlighted  that it also addressed the duplication of 
consideration sessions devoted to a single RTA when its goods aspects had been notified under the 
Enabling Clause and its services aspects under GATS Ar t. V. This had resulted in two disjointed 
consideration processes in the CRTA and CTD, thus duplicating work by the Secretariat and adding 
confusion regarding the overall coverage of an RTA.   Noting that any solution to the dual notification 
issue had to provide for advantages, it was inquired what were the advantages of maintaining the two 
bodies as currently foreseen in the TM. 
20. These Participants also concurred that as also i ndicated in the proposal the proposed solution 
did not affect Members rights and obligations unde r Article XXIV of GATT or the Enabling Clause 
regarding the substance of the RTAs reviewed.  The solution envisaged would not put into question 
the legal scope of any agreement, thus not impair ing a Member’s right to notify an agreement under 
the legal provision of its choice.  Referring to some  Members' preference to maintain the two forums 
on the grounds that benefits a nd value added derived from mainta ining the consideration of an 
Enabling Clause RTA in the CTD, one Participant suggested that a possible solution might be to 
incorporate, in the new permanent TM, criteria th at clearly established the conditions under which 
Members were to notify RTAs under the Enabling Clause, under Article XXIV of the GATT and 
Article V of the GATS. 
21. A Participant summarized that the proposal w as a useful solution to overcome current 
disputes and misunderstandings over the choice of th e CRTA or of the CTD for considering one RTA;  
pre-empt any future dispute over the most appropria te forum;  ensure a comprehensive consideration 
of an agreement, covering all goods and services aspect s;  avoid any duplication of the consideration 
process of a single RTA;  and ensure a consistent and coherent implementati on of the provisions laid 
down in the RTA Transparency Mechanism. 
22. Some other Participants held divergent views and did not concur with the proposal.  A few 
indicated that their comments were being presented w ithout prejudice to the scope of the mandate to 
review the TM. 
23. Although disagreeing with the proposal, some Partic ipants felt encouraged in that, by tabling 
this proposal, the proponent had recognized a number of systemic issues, namely that the TM in its current form was not equipped to deal with RTAs  with dual notifications and that there were 
persistent problems in this regard;  that no d ecision had been taken on the appropriate manner in 
which RTAs with dual notification status should be  considered under the TM – an issue that had 
puzzled Members during the past few years and r esulted in a failure to adopt the CRTA and CTD 
annual reports;  that it supported the observations in  the Secretariat's Legal Note circulated in 
WT/COMTD/W/114;  and that there were a number of specific and systemic legal and procedural 
issues that Members needed to discuss in the appr opriate forum that went well beyond the review of TN/RL/M/38 
Page 6  
 
  the TM and the scope of the proposal.  This change  in position was welcomed, given that for the past 
three years a number of developing countries had pe rsistently raised systemic concerns over the 
appropriate manner by which RTAs with dual notifi cation status should be considered under the TM.  
24. One Participant noted that these concerns had been enumerated in detail in many 
configurations and placed on record in the CTD,  the CRTA, the Council for Trade in Goods and 
finally during the General Council's meeting on 14 December 2010, all of which formed in their 
entirety his country's contributions to the review of the TM, including the submission made regarding the specific and systemic issues arising from the dual notification of the Gulf Co-operation council 
(GCC) and circulated as document WT/COMTD/W/175.  With respect to that submission by China, 
Egypt and India, the proponent's recognition that only  some issues raised therein could be dealt with 
in the Group was noted;  that implied that the r est of the systemic issues had to be dealt with 
elsewhere.  The proponent's view that the 2003 Legal Note was a useful document was noted, in 
particular given its opposition to a request made by three delegations for its review. 
25. The point was made by a few Participants that the proposal was too simple as it explored a 
possible solution to a symptom rather than the underlying problem. 
26. A few Participants recalled that the proposal reve rberated ideas presented in CTD meetings in 
2002 and 2003, when the India-Sri Lanka Free-Trad e Agreement had been considered.  These ideas 
had already been discussed, challenged and refuted by  many developing countries, as reflected in the 
discussions in the CTD, which had led to the pr eparation of the Secretariat's 2003 Legal Note on 
RTAs under the Enabling Clause.  They argued that the CTD had decided against them and the issue was thus a closed matter;  it was therefore unclear  why the same ideas had been presented again, in 
particular given the difficult political agreement that had been reached in the TM to consider Enabling 
Clause RTAs in the CTD.  That agreement represen ted a vulnerable balance that should not be broken 
in the context of the review.  Reacting to that, th e point was made that that such balance should be 
revised so to provide an efficient so lution to the dual notification issue. 
27. Some Participants stressed that the proposal sought to introduce fundamental changes to the 
TM, and that this did not comply with the princi ples set for the TM review, which was based on the 
Chairman's statement that "no root and branch" changes were being sought.  It was their view that the proposal clearly went beyond the scope and mandate of  the review of the TM;  one Participant noted 
that it was actually construed to eliminate the TM altogether, while another pointed to the risk of 
reopening the negotiation of TM.  The point was ma de that when consensus had been reached to 
launch the review, several Members had stated that the TM had operated succe ssfully in general and 
that only modest adjustments were needed, in  accordance with the expe riences gained from its 
operation;  that had been made very clear in the Chairman's concluding remarks. 
28. Opponents to the proposal stressed that the cha nge of venue ignored the mandate and TORs 
of the CTD.  The Enabling Clause was one of th e effective tools for developing Members to better 
integrate into the multilateral trading system and to achieve their development goals.  The central role 
of the CTD in development-related issues, including  the application of Article 2(c) of the Enabling 
Clause, should be maintained and strengthened.  Th e TORs of the CTD provided that it would "serve 
as a focal point for consideration and coordinatio n of work on development" and "consider any 
questions which may arise with regard to either the application or the use of special provisions in the 
Multilateral Trade Agreements and related Ministerial Decisions in  favour of developing country 
Members";  therefore, any issue related to th e Enabling Clause was certainly under the CTD's 
competence and Members could not just pass on its duties to other WTO bodies like the CRTA.  It 
was recalled that the CTD allowed for an analysis of the different realities of developing countries, 
and that that had been reflected in the WTO architecture.   TN/RL/M/38 
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  29. It was also noted that the current paragraph 18 of the TM was the result of detailed 
deliberations and that during the negotiations it w as felt that the CTD would be the most appropriate 
forum for RTAs notified under the Enabling Clause, while the CRTA would be so for notifications under GATT Article XXIV and GATS Article V.  One Participant noted that his delegation had not 
seen a problem with that and therefore did not see the necessity of fixing something that was not 
broken.  He did not share the view that the CRTA wo uld be the more efficient forum due to its TORs;  
the TM had been negotiated keeping in mind the TO Rs of the CTD and the CRTA.  Further, it was 
noted, the TORs of the CTD provided a broad enough canvas to cover examination of an RTA 
notified under the Enabling Clause;  also, different  legal cover required diffe rent examinations.   
30. Acknowledging the problems raised by dual notifi cations of RTAs, since the TM was silent 
on the issue, one Participant noted that the 2003  Legal Note offered a clear solution when it 
mentioned that the CTD could examine such RTAs;  if such RTAs had to be examined in the CRTA, 
TORs would have to be established by the CTD.  This Participant offered an additional solution for 
dual notified RTAs to be examined in the CTD.  This was supported by the fact that the Enabling 
Clause was considered as lex specialis  in WTO law, which should preva il, and also by paragraphs 58, 
61 and 62 of the Secretariat's 2003 Legal Note, whic h clearly indicated the vast prerogatives that the 
CTD had, and the mandate it had been given to re view RTAs notified under the Enabling Clause.  The 
Group needed to be focused and review the TM in a manner that did not undermine either the 
Enabling Clause or the CTD's TORs nor the right s and obligations of Members under the Enabling 
Clause.  Attention was brought to the final conclusi on in the Secretariat's 2003 Legal Note that stated 
"It is clear that any review of an RTA, wherev er it occurs, must be performed according to the 
relevant applicable WTO law - Enabling Clause, GATT 1994 Article XXIV, or GATS Article V - that 
has been invoked to justify the WTO consistency of  the RTA in question.  Moreover, any review of 
an RTA notified under the Enabling Clause must be  carried out in accordance with TORs and the 
procedures provided by the CTD."  The proposal  was supported by some Participants.  One 
Participant suggested that RTAs involving developed and developing countries be also considered in 
the CTD. 
31. One Participant commented on vari ous paragraphs of the proposal.  Paragraph 1 indicated that 
the proposal addressed questions about the appropriate  venue to consider RTAs with dual notification 
status which was an implication of the procedural a nd legal systemic issues that had been raised in 
connection to dually notified RTAs in both the CT D and the CRTA.  Paragraph 2 of the proposal 
stated that the TM had been universally recognized as a success;  while Members might have different 
views regarding such optimism, he asked how such a qualification found premise having witnessed 
that some developed Members had inhibited the a pplication of the TM with respect to an RTA 
between developing countries that had been exclusively notified to the WTO under the Enabling Clause for nearly a whole year.  It was wo rth mentioning that such action came contrary to 
the assertions made by the Chair of the CTD, who ha d clearly declared that the RTA concerned was to 
be reviewed in the CTD Dedicated Session and sche duled to be completed within a one year period, 
in accordance with the procedures laid down in the TM .  He questioned its implications for the work 
that the Negotiating Group on Rules was trying to ca rry out, in particular as regards the disciplines 
under section C.5 of the TM that needed to be re-enforced to ensure that no a priori  challenge was 
permissible to contest developing Members' rights to notify their RTAs under the Enabling Clause or 
otherwise.  In other words, there was a need to ensure that the primary function of this Mechanism 
remained for transparency purposes and not any othe r reason;  his delegation therefore proposed the 
insertion of additional disciplines to uphold that, upon notification and regardless of the legal basis of 
the notification or Members presumptions, the procedures established by the TM must be triggered 
and take effect.  There was a need to avoid establishing the practice whereby Members would challenge prima facie  whether an RTA conformed or not with  particular WTO provisions;  moreover, 
the Group should re-assert that any interpretation of Article XXIV or the scope of the Enabling Clause 
laid within the General Council and was not a ri ght that Members bestowed upon themselves.  TN/RL/M/38 
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  32. On paragraph 5 of the proposal, this Participant noted that it was apparent that an attempt had 
been made to strike resemblance between two dis tinct problems arising from dual notifications;  it 
was his delegation's view that the two scenarios ha d to be distinguished. The first scenario occurred 
when two RTAs had been notified by each party on the basis of two different legal provisions;  the 
other case was an entirely different one, where one Member had submitted two notifications regarding 
the same RTA, each on the basis of a different legal provision, and involved two issues, namely 
Member's accession versus transparency commit ments.  As regards the second scenario, the 
proponent presumed that a decision had been taken on  the appropriate forum for considering the RTA;  
however, if that had been the case, then the en tire proposal was self-defeating: if Members had 
actually reached a decision on how to appropriately  address RTAs with dual notifications status under 
the TM, he enquired what was the point of the pre sent proposal.  Clearly these two cases required two 
different substantive approaches that went beyond the mere determination of the choice of forum or 
venue in which to examine RTAs with dual notification status as proposed in paragraph 6.  If the issue 
was to be simply resolved by having all RTAs  considered in a single WTO committee, then his 
delegation was compelled to ask whether Members w ould agree to have instead all RTAs considered 
in dedicated sessions of the CTD.  It was apparent  however that such a proposition not only would 
raise concerns due to what some Members woul d deem as prejudicing their rights under Article XXIV 
of GATT, but also on the premise that it would unde rmine the role of the CRTA.  For these very 
reasons his delegation would also argue against this  proposal since it would not only prejudice against 
developing countries rights under Paragraph 4 of th e Enabling Clause, but would also undermine the 
role of the CTD, by abolishing altogether its prer ogatives to review RTAs notified on the basis of the 
Enabling Clause, notwithstanding that such a proposal would be in direct contradiction to the CTD's 
TORs – a Committee which had been established by Ministers, as set out in the Marrakesh Agreement, to consider any questions which might ari se with regard to either the application or use of 
special provisions in favour of developing countries, including the Enabling Clause.   
33. The Participant then enumerated a number of matters which the Group needed to resolve.  
The Group needed to determine clearly the rights and obligations of Members, and a question was 
whether Members should have the prerogatives to bestow upon themselves the right to unilaterally 
notify an RTA under a specific legal provision without prior consent of the other parties to the same RTA;  that remained an open question.  It had b ecome apparent however that such unilateral actions 
had not only triggered a second notification regardi ng these RTAs, but had raised concerns over how 
unilateral actions would impair the rights and priv ileges of other Members to the same RTA.  His 
delegation therefore proposed that necessary disci plines be devised to further consolidate the 
notification provisions under paragr aphs 1 and 4 of the TM to ensure that Members of an RTA 
reached an agreement among themselves on the appr opriate legal basis that  should be invoked to 
notify their RTA’s to the WTO.  Unless such an understanding w as reached, the transparency 
procedures envisaged in paragraphs 5 to 13 should not be triggered so as to avoid any contentions 
between Members over having draft factual presentati ons circulated by the Secretariat in a manner 
that might adversely affect Member’s rights and obl igations. Moreover, paragraph 20 should also be 
amended so that any relevant information provid ed to the WTO secretariat was submitted with the 
consent of all Members parties to an RTA, in orde r to avoid a situation whereby Members would find 
their RTA being placed on the Work Programme by th e Secretariat despite clear reservations made in 
that respect. 
34. Commenting on paragraph 9 of the proposal, one Participant noted that all these practices had 
been superseded by the RTA – TM, where Members in  their wisdom had decided that there would be 
two forums for consideration.  
35. As regards paragraph 11 of the proposal, the poi nt was made by that no convincing arguments 
had been given as to why the current practice should be changed;  accordingly, questions were posed 
on why such change was being sought and an explanation was requested on the concern that 
consideration in the CTD might dissipate the su ccessful operation of the TM.  The proponent had  TN/RL/M/38 
 Page 9 
 
 
  recognised that this was the result of a political agre ement, and there should be no attempts to unravel 
such agreement if the Group had to address the revi ew in an efficient manner.  One Participant noted 
that the reference made to an "informal unders tanding" in a formal submission seemed a bit odd, 
nevertheless, he pointed out that instead of having been dissipated, concerns had been aggravated by 
the impasse in the CTD on the GCC issue and the a voidable fallout that annual reports of the CTD 
and CRTA could not be submitted. 
36. The proponent was invited to clarify how the RTA consideration would proceed in cases 
where (a) the parties to an RTA had notified it under a particular WTO provision, while other 
Members not parties to the RTA disagreed with the applicability of that provision;  (b) two 
notifications had been made under different provisions – as for the GCC – as it would seem that under 
the proposal all the current debate over the appli cability of a WTO notification provision would still 
continue in the CRTA;  and (c) the same RT A had been notified by different parties under 
Article XXIV of GATT 1994 and the Enabling Clau se respectively – as for the Korea-India and the 
Korea-ASEAN FTAs – and in particular if the Partie s would be subject to the same legal provision or 
different legal provisions respectively. 
37. The proponent of TN/RL/W/248 thanked all the delegations who had commented on her 
country's proposal, asked questions, made construc tive suggestions or pointed to areas of further 
work.  It was gratifying to put in the effort to write a paper, when so many take the time to consider its 
content so thoughtfully.  Her country's tradition of freedom of speech provided for a "marketplace of ideas" where, while we might not ag ree with everything that others might say, their right to express 
themselves must be defended.  Having now undertak en a review of the TM, it was incumbent upon 
the Group to consider all proposals to improve its ope ration.  As regards a few participants' concern 
that her delegation was re-opening a political ag reement on an element they had perceived as 
maintaining the balance in the TM, she pointed to paragraph 13 of TN/RL/W/248, which explicitly 
noted that experience had shown that the political agreement had had unfortuna te repercussions that 
were impairing the operation of the TM.  As others  had noted, dual notifications had simply not been 
foreseen, though she did not agree that there was a "lac una";  a fair reading of the TM was that it had 
produced a result but which was not a sensible resu lt.  As regards the concern that developing 
countries would be deprived of a forum for trade-re lated development concerns  and worries that this 
proposal aimed at "passing on CTD duties", her dele gation disagreed with the view that having a 
single forum for considering all RTAs was inconsis tent with maintaining a forum for trade related 
development concerns.  Even if an RTA's factual pr esentation was officially considered in the CRTA, 
the proposal did nothing to diminish the CTD's role as forum to raise any matters of concern 
involving an Enabling Clause agreement.  Like th e Council for Trade in Goods and the Council for 
Trade in Services, the CTD would retain all of its  general mandate, and, as in those bodies, Members 
could raise trade concerns falling under the respectiv e mandates;  her delegation was certainly open to 
making that explicit.  She had taken note of the tentative support for what some delegations had 
described as a sensible proposal and the suggestion that confirmation was needed that rights of 
developing countries under the Enabling Clause we re not prejudiced.  Several delegations had 
referred to specific reassurances drawn from paragraph 15 of the submission, and she recalled that the WTO had made the drafting of "no prejudice" la nguage into an art form.  As regards how 
consideration would work as a practical matter, she re iterated that the steps taken in the consideration 
of any RTA, however notified, were identical as they followed the headings in the Factual 
Presentations.  Her country was interested in hear ing what additional precise elements would be 
important to include in what was being proposed.  In concluding, she observed that no one in the 
Group had belittled the problems identified in her dele gation's paper and it was auspicious that many 
Members seemed committed to finding a practical so lution.  She reaffirmed that the proposal for a 
single forum did not resolve the underlying disagr eements under the Enabling Clause, but that was 
unlikely in the near future.  The Group and its delega tes, in their capacity as officials of the foreign 
policy domain, owed it to the WTO to manage co nflicts to ensure that  Committees and the TM 
operated smoothly. TN/RL/M/38 
Page 10  
 
  38. The proponent of TN/RL/W/249 noted that the purpose of the TM was to enhance 
transparency in, and understanding of, regional trade ag reements (RTAs).  To that end, it had decided 
that agreements notified under Article XXIV of the GATT 1994 and Ar ticle V of the GATS should be 
considered in the Committee on Regional Trade Agreements (CRTA) and regional agreements 
notified under paragraph 2(c) of the Enabling Clau se should be considered in the Committee on Trade 
and Development (CTD).  However, this provision, which appeared in paragraph 18 of the TM, had 
resulted in cases where the same RTA had been  notified under Article XXIV and under the Enabling 
Clause.  In these cases, the parti es to the RTA in question had submitted two notifications, or one of 
the parties had notified under Article XXIV and th e other party under the Enabling Clause.  These 
"dual" notifications, as they were known, could ultimately complicate and slow down the review 
process under the TM.  From a purely procedural poin t of view, there were a number of alternatives 
that would allow Members to avoid these "dual" no tifications, assuming, of course that they occurred 
for exclusively procedural reasons.  This was the objective of the proposal submitted by his country:  
to avoid "dual" notifications in the future by intr oducing a number of procedural adjustments to the 
Mechanism to determine who should submit the notif ications and how, and to  provide a channel for 
supplying information during the review process.  His country also believed that these adjustments 
could help to streamline the process, facilitating in teraction between the parties to an RTA and the 
WTO Secretariat.  The proposed procedural adjust ments fell into three groups.  The first group 
referred to notification, provided for in paragraphs 1 on early ann ouncement of participation in new 
negotiations and of newly signed RTAs, 3 and 4 on notification of RTAs, 14  on notification of 
changes to an RTA, and 15 on notification at the end of the implementation period; the proposal to 
insert a paragraph in Section G of the TM, was as follows: "Communications submitted under 
paragraphs 1, 3, 4, 14 and 15 shall take the fo rm of joint notes signed by all of the Members 
participating in new negotiations or by all Members parties to the RTA in question, as appropriate."  
Having gone through some of the minutes of the CR TA meetings in which a number of RTAs and 
notification forms had been reviewed, his country had the general impression that the prevailing 
practice was for notifications to be contingent upo n prior agreement among all of the parties to the 
RTA in question;  also, "joint notes" were among the procedures used to transmit consent by all the parties with respect to a particular matter.  Consequently, the proposed paragraph would merely 
formalize a practice that was alr eady prevalent, involving a well-known procedure.  Nevertheless, 
even under this procedure, it was reasonable to exp ect that the parties to an RTA might occasionally 
submit different communications on the same ma tter, for example, one party notifying under 
Article XXIV, and, some time later, a second pa rty notifying the same RTA under the Enabling 
Clause.  In order to deal with such cases,  and in accordance with the principle of lex posterior derogat 
priori , his country had proposed adding a paragraph:  "When Members parties to an RTA submit 
successive communications on the same subject ma tter following the procedures established under 
paragraph (4a), the bodies entrusted with the im plementation of the Mechanism as well as the WTO 
Secretariat shall act pursuant to the latest of those communications, unless the said Members provide 
otherwise."  The two other groups covered by the pr oposal referred to the provision of information, 
namely steps under paragraphs 7(a) on specified data and 12 on additional information, and 
consultations under the responsibility of the WTO Secretariat, namely under paragraphs 6 on 
establishment of a timetable, 7(b) on preparation of a factual presentation and 9 on general views.  The proposed inclusions under Section G were "The  information needed to assist Members in their 
consideration of a notified RTA, including the inform ation referred to in pa ragraphs 7(a) and 12 and 
in the Annex, shall be transmitted to the WTO Se cretariat through the party entrusted with submitting 
it on behalf of all of the Members parties to th e RTA in question." and "When the WTO Secretariat 
holds consultations concerning a notified RTA, includ ing the cases referred to in paragraphs 6, 7(b) 
and 9, it shall approach the party tasked with c onducting the consultations on behalf of the Members 
parties to the ACR in question."  He noted that not only did these provisions fit in harmoniously with 
the two previously proposed paragraphs, but they could also help to reduce the number of problems 
encountered in reviewing RTAs, and could also be said to reflect a prevailing practice.  Finally he 
invited Members to bear in mind paragraphs 2 and 12  of the Statement by the Secretariat contained in 
document JOB/RL/4.  TN/RL/M/38 
 Page 11 
 
 
  39. Participants welcomed the proposal made, and th e importance it gave to having parties to an 
RTA behaving as real Parties throughout the WTO consideration process of their RTA.  While 
Participants agreed that joint notifications and join t provision of information we re preferred, divergent 
views were expressed on whether this should be made mandatory.  
40. Some Participants highlighted the value of the proposal in that it maintained the two forums 
for the examination of the RTAs while calling for join t notification by parties to an RTA;  they felt 
this could provide a solution to the problem of double notifications.  Unilateral notifications should 
not be accepted by the WTO Secretariat;  that  lacuna in the TM should be corrected. 
41. However, some others highlighted the separate and independent obligation of each Member to 
notify an RTA to which it is party, which stemmed from the underlying substantive rule of the GATT 
and Enabling Clause, which provided for transp arency requirements explicitly falling on "any 
contracting party" that was entering into such arra ngements.  While ideally parties would notify at the 
same time, and together, making this a mandatory ob ligation posed a problem.  First, this might create 
a disincentive to early notification by holding up tran sparency for the rest of the WTO Members while 
the Parties discussed the matter;  ultimately, for c ases in which the parties to an RTA had different 
interpretations of the applicable legal framework and were  unable to reach an agreement, it might 
even result in the parties not notifying the RTA, th ereby failing to comply w ith the obligation to do 
so.  It would therefore seem that the proposal, although attractive, would not solve the difficult 
underlying issue of dual notification.  Regarding pa ragraph 4(a) of the proposal, clarification was 
sought on the rationale behind propos ing submissions in the form of joint notes, as extra-paper work 
for Members was to be avoided. 
42. With respect to the provision of information to  the Secretariat, some Members, while noting 
that it would be best to have the Parties' join t position, expressed doubts about whether this could be 
micromanaged.  Rather, it was pointed out that it should be up to the RTA Parties to decide on how 
they intended to provide the necessary information to the Secretariat.  It was noted that some 
Members, not only developing Members, might have at times capacity constraints which explained 
why the existing deadlines to deliver were not alwa ys observed as they should be;  however, the mere 
designation of one party as coordinator of the work  would not necessarily resolve this problem and 
shorten the response time.  Coordination was not an easy  task and the coordinator could be faster than 
the slowest of the parties;  accordingly, if one pa rty had constraints from a material or timing point of 
view, having a coordinator would not necessarily accelerate the process for responding to the Secretariat's requests.  It was even noted that in  some instances, the proposed entrusting of a single 
party to submit information from all the parti es to the WTO Secretariat might actually cause 
significant delay in the process of preparation of a factual presentation and s ubsequent consideration 
of the RTA in question.  Technical assistance was already provided by the Secretariat to Members 
who required it, and the Group could explore what more  could be done, if needed, to help countries to 
fulfill their transparency requirements under the TM.  As regards the suggestion to only entrust one 
Party to submit the information and maintain exclusiv e contact with the WTO Secretariat,  this should 
be at the discretion of the Parties, and it was up to them to decide whether they preferred to have a 
single representative. However, there was agreemen t with the ultimate objective of the suggestion, 
which was to speak with one single voice. This was necessary for the smooth and effective consideration of an RTA. 
43. Some Participants agreed that the processes relating to the submission of data and comments 
on the Factual Presentation by the Parties to the Secr etariat could be messy at times.  The process of 
coordinating with multiple parties was long and the Group might need to take that into account when 
reviewing the TM's timelines. TN/RL/M/38 
Page 12  
 
  44. With respect to paragraph 4(d), the points we re made that the proposal might create some 
uncertainties and increase the burden on the WTO S ecretariat due to multiple submissions of 
notifications and early announcements. 
45. The Proponent of TN/RL/W/249 thanked Participan ts for their comments, which encouraged 
his country to reflect on the different issues put forward in the proposal.  He reiterated that the 
proposal was based on the premise that coordination be tween parties played a fundamental role for the 
agreement and this should also be reflected in the di fferent acts of notification as required by the TM.  
Furthermore, the proposal was also based on the fact  that RTAs were fundamental tenants of the trade 
policies of Members and that gradually, the scope  and the complexity of these agreements had 
increased.  Therefore, it would not seem realistic that parties to an agreement, after agreeing on a 
series of complex issues, could not define how they would notify it under the TM.  If the parties had 
managed to agree on an agreement, then quite certain ly they would be able to define the means to 
fulfil the corresponding notification. 
46. Some comments were made regarding other specific elements of the TM that merited 
revision.  It was noted that developing countries in particular had had practical difficulties in 
submitting data required for the preparation of f actual presentation and that the deadlines should be 
relaxed for developing countries.  Further discussi ons could also take place on addressing the late 
submission of data, including through technical as sistance by the WTO Secretariat or developed 
country Members.  It was also noted that the TM  was only one means of enhancing transparency and 
that other proposals had been made on an Annual RTA review and a horizontal analysis of cross-cutting elements in RTAs that also merited consideration. 
47. The Chairman thanked the Proponents, the Chairmen of the CTD and of the CRTA and the 
Secretariat for having provided very important i nputs to this discussion, as well as delegations who 
had reacted to the inputs.  It was clear that there was enough on the table to warrant further 
investigation and analysis;  this would be duly accommodated in the Group's schedule of forthcoming 
meetings. 
C. 
REGIONAL TRADE AGREEMENTS :  "SYSTEMIC ISSUES " 
48. The Chairman noted that the Group had two docum ents for discussion under this agenda item, 
namely the submission by the Plurinational State of Bolivia, circulated as TN/RL/W/250, and the Secretariat’s Informal Background Note entitled Checklist Of Systemic Issues Related To RTAs , 
circulated as JOB/RL/3 and its Corrigendum 1 in the English version.  That note responded to the Group’s request for an update of document TN/RL/W/ 8/Rev.1, circulated in 2002.  The note had been 
drafted on the basis of work carried out in the Group;  it provided a summary of written proposals by 
Members but, in light of the limited time available, it did not reflect the debates held in the Group.  It 
also made reference to relevant findings in WTO panel and Appellate Body reports. 
49. The proponent of TN/RL/W/250 noted that the proposal had been prepared to support 
compliance with the mandate under paragraph 29 of the Doha Work Programme aimed at "clarifying 
and improving disciplines and procedures under the existing WTO provisions applying to regional 
trade agreements", taking into account at the same  time their "developmental aspects".  Only a few 
developing countries had taken part in the negotiations  leading to the adoption of Article XXIV of the 
GATT in 1947, mainly because many developing coun tries had not achieved independence and there 
were therefore few RTAs at the time and their interest in multin ational disciplines governing RTAs 
was limited.  Decades later, however, North-Sout h RTAs had increased significantly in number and 
many developing countries had conc luded, were negotiating or would be negotiati ng, agreements with 
developed countries for the liberalization of trade in goods.  On the question of trade agreements, a 
number of developing countries had expressed concern because extensive liberalization applicable to 
all without distinction would for others cause sudden increases in imports and the loss of tax revenues,  TN/RL/M/38 
 Page 13 
 
 
  a situation that would be unsustainable from the ec onomic, social and political point of view in the 
medium and long term, with possibly additional re percussions on food security and food sovereignty, 
employment, industrial growth and the achieve ment of public policy objectives, thus having 
potentially negative effects on development in ge neral.  Furthermore, the deep regulatory 
harmonization that might be required under such  agreements could excessively constrain their 
regulatory autonomy and policy space in pursuing development and poverty reduction policy 
objectives.  One of the reasons for these concerns derived from the fact that the implementation of 
RTAs, especially between devel oped and developing countries, di d not explicitly recognize certain 
realities with respect to the level of asymmetries in economic and social development;  the difficulties 
that developing countries faced in benefiting from these agreements and assuming the costs of 
implementation and adjustment;  the challenges that  liberalization schemes could generate for weaker 
actors and sectors of society;  the need to  preserve policy space for introducing incentives and 
measures to promote the development of strategic sect ors and  protect infant industries;  the existence 
of imbalances in negotia tion and implementation capacities;  a nd the need to ensure economic and 
development outcomes.  Consequently, the recognition of these realities should be translated into 
legal provisions at the WTO level so that developi ng countries were afforded the right to design RTAs 
that best fit their development requirements wh ile remaining WTO-compatible.  These include full 
recognition in the RTA negotiations of the GATT/WT O principle of "less than full reciprocity for 
tariff reduction commitments", so that developi ng countries were entitled to make a significantly 
lower level of tariff and non-tariff liberalization commi tments in relation to de veloped countries, so as 
to duly reflect their level of development;  de veloping countries should be entitled to design and 
implement progressive liberalization over a longer tim e-frame in order to cater for their trade and 
development interests, including the possibility of  linking trade liberalization with development 
benchmarks as agreed among RTA parties;  suff iciently and meaningfully long implementation 
periods should be made available for developing countries according to  their level of development, 
including the possibility of going far beyond wh at is currently envisag ed in the multilateral 
agreements of this Orga nization.  In this connection, some developing country Members had proposed 
to strengthen the development dimension of WT O rules on RTAs, such as the ACP Group in the 
document on Developmental Aspects of Regional Trade Agreements and Special and Differential 
Treatment in WTO rules:  GATT 1994 Article XXIV and the Enabling Clause , circulated as 
TN/RL/W/155.  This proposal set out key arguments to support the incorporation of a pro-development clarification and improvement of  GATT Article XXIV, and called for the formal 
and explicit incorporation of special and differentia l (S&D) treatment on an operational and effective 
basis within the framework of Article XXIV of the GATT, so as thereby to enhance its development 
dimension.  Her country had reite rated its support for various para graphs of that proposal, placing 
emphasis on the reference therein to Article V of the GATS.  The lack of provisions on S&D 
treatment in Article XXIV of the GATT stood in co ntradiction to Article V of the GATS, which was 
concerned with economic integration agreements on trade in services and which explicitly provided 
for S&D treatment for developing countries in impl ementation of the criteria implicit in paragraph 1 
of GATS Article V.  Moreover, the GATS recogni zed a difference between economic integration 
agreements which might affect developed and developing countries , on the one hand, as provided for 
in paragraph 3(a) of Article V, and those that onl y affected developing countries, as provided for in 
paragraph 3(b) of Article V.  In both cases, flex ibility and more favourable treatment were extended 
to developing countries. 
50. She continued by noting that her country wished  to continue work along the lines initiated by 
this and other proposals from developing countries,  with the common aim of ensuring that the 
clarification and improvement of WTO rules on the establishment and operation of RTAs supported 
the development strategies of developing countries by providing a supportive multilateral framework.  
They were required to promote coherence between th e various provisions and agreements in order to 
generate similar outcomes, as in the case of GATT Article XXIV and GATS Article V, and they were 
required to support the strengthening  and implementation of the prin ciples of S&D treatment and less 
than full reciprocity of the rules governing RTAs between developed and de veloping countries, in TN/RL/M/38 
Page 14  
 
  accordance with the mandate set out in paragraph 2 of  the Doha Ministerial Declaration, that stated 
"[t]he majority of WTO Members are developing  countries.  We seek to place their needs and 
interests at the heart of the Work Programme adop ted in this Declaration".  Furthermore, although 
currently S&D treatment was not explicitly accorded to developing countries in compliance with the 
requirements laid down in the existing disciplin es of GATT Article XXIV, their introduction on a de 
jure basis would provide a legal framework in the WTO for the establishment of North-South RTAs 
that would be supportive of the sustainable devel opment objectives of the MTS and consistent with 
the overarching ambitions of the Doha Development Agenda.  Therefore, the main aim  was to put 
forward a direct and simple textual proposal, in  accordance with the mandate, which explicitly 
included "S&D treatment and less than full reciproc ity" in the WTO rules applicable to RTAs and 
more specifically in GATT Article XXIV.   
51. Bearing in mind that the negotiations had focused  on detailed discussion of systemic issues, 
especially on "substantially all the trade", and with a view to facilitating progress in the Negotiating 
Group and in response to the Chair's call for new text-based proposals, her delegation had proposed the inclusion at an appropriate place in GATT Article XXIV of the provision contained in 
TN/RL/W/250, based on Article V:3(a) of the GATS.  As Members would appreciate, this proposal 
was not intended to generate lengthy discussion but was clear, concise, direct and put forward in a 
constructive spirit with the aim of resolving a development concern in the Round which was of 
interest to various developing countries.  In the sy stemic issues context, this proposal was a priority 
topic based on a clear mandate and should fo rm part of the outcomes of the Doha Round. 
52. Participants thanked the sponsor for its propo sal, which replied to the Chairman's invitation 
for text-based proposals on systemic issues.  They underlined that the developmental aspects of RTAs 
were an important part of the Doha Development Program. 
53. A few Participants noted that MFN was an issue of particular importance;  the purpose of the 
WTO and of these negotiations should not be to encour age Members to enter into RTAs.  Attempts to 
lower current standards regarding the completion of RTAs were a matter of worry and should be 
resisted;  the dilution of Article XXIV disciplines was not a signal that should come from the WTO, 
even if records showed that Article  XXIV has been and was being abused. 
54. Some participants were of the view that there was no need for a specific provision in 
Article XXIV of GATT to ensure th at the S&D treatment and less than full reciprocity principle were 
adequately taken into account when the compatibility  of RTAs with the multilateral trading system 
(MTS) was being examined, specifically in the cont ext of North-South RTAs.  A few indicated that 
they could not support the proposed change to Article XXIV of GATT. 
55. Some Participants stressed that the correct a pplication of current rules on RTAs, notably 
Article XXIV GATT, did not result in unbalanced and development-unfriendl y agreements and did 
not impair the process of economic integration am ongst developing countries' efforts, as the proposal 
inferred;  rather, there were many aspects to bene fit from greater trade liberalization and the creation 
of bigger, stable markets. 
56. The different nature of multilateral trade negotia tions and RTAs was stressed:  while in the 
former all WTO Members were required to participate,  in the latter parties were free to negotiate the 
contents and shape of their agreement as long as th ey were compatible with the WTO rules as stated 
in Article XXIV of GATT;  nobody could force a developing country to conclude an RTA if it 
considered the proposed agreement as not being in it s economic, social and developmental interest. In 
principle, S&D measures in the RTAs should be  achieved during the course of negotiation of 
respective RTAs.   This difference in nature explai ned why it was important that developing countries 
and particularly LDCs be allowed to take advantage of S&D treatmen t provisions in their multilateral 
commitments, while there had so far been  no specific S&D clause under Article XXIV.  TN/RL/M/38 
 Page 15 
 
 
  57. The fact that that Part IV of GATT and it s Articles XXXVI to XXVIII already included S&D 
treatment and less than full reciprocity meant that  the inclusion of such specific reference in 
Article XXIV was not needed.  That  approach was similar to the way S&D provisions had been 
included in other WTO agreements such as Articles XXXVI:8 and XXXVII:1.   
58. It was also pointed out that a developing coun try Member could always avail itself of the 
provisions of Article 2 (c) of the Enabling Clause in the context of an RTA to which it is a party to 
ensure that it benefited from S&D treatment and less th an full reciprocity principles. In this context, a 
solution had to be found on how to examine unde r the TM those RTAs with dual notifications. 
59. Noting that the proposal aimed to redress the comparative advantages of some countries in 
terms of their trading capacities, one Participant inquired whether the proposal referred to those 
agreements that were signed between a major trad ing economy and another that was not, in addition 
to North-South or developed-de veloping country RTAs.  Clarification was sought on whether the 
reference in Section II to "powerful Members im posing their preferred interpretation on weaker 
Members, thereby prejudging the course of negotiati ons" was to be understood to mean "powerful" on 
the basis of the trading capacity of a Member, and if  so, clarification was also sought as to the level of 
its trading capacity for a Member to qualify as such as well as on whether a "weaker" Member would 
be considered as such in terms of a lower tradi ng capacity with respect to the other Party in an 
agreement. 
60. Various Participants noted the surge in the numbe r of RTAs due to the interest of developing 
countries in achieving greater economic growth and integration within the global economy.  They 
emphasized the importance of the development aspect  in these negotiations, and the fact that the 
GATT, unlike GATS or other agreements did not refl ect the present situation where the number of 
RTAs was increasing even between developed a nd developing countries.  The GATT was born long 
before other agreements, hence the lack of any prov ision for S&D treatment.  While they agreed that 
the present situation might require an adaptation of GATT Article XXIV to the new environment, 
these Participants disagreed on how to take this quest ion forward.  For some, there was a clear need to 
review Article XXIV of the GATT and to include in it a clause on S&D treatment to take into account 
the Doha mandate;  the proposal represented a way fo rward.  Others however indicated that they 
shared concerns expressed previously as regards bot h practical and legal aspects of the proposal.  The 
point was also made that the language contained in Article V of the GATS could be of help in this 
context. 
61. One Participant speaking on behalf of a group of  countries, recalled their previous submission 
of April 2004, circulated as TN/RL/W/155, which aimed to address the developmental imperatives of 
developing countries and to clarify the treatment to be accorded to developing countries engaged in 
negotiations pursuant to GATT Article XXIV.  The WTO practice continued to reflect sensitivity to 
the asymmetries that invariably exist between de veloped and developing co untries engaged in RTA 
negotiations, notifications and c onsideration;  the 2004 submission sought to give legal expression 
and certainty to current practice and the de facto  acceptance that a one size fits all approach to the 
rules concerning RTAs was not reflective of the inte nt of the framers of Article XXIV.  The vexing 
and difficult questions related to the appropriate thr esholds for transition periods and substantially all 
the trade were thoroughly addressed in TN/RL/W/155;   while this proposal had been welcomed, no 
development-related proposal had immediately fo und consensus. This notwithstanding that the 
principles enunciated in it met with the broad acc eptance of more than a substantial number of 
delegations.   
62. Noting that this proposal shared many points with TN/RL/W/155, one Participant asked what 
change of circumstances had invited the Proponent to  submit it.  Several papers with the same purpose 
had been circulated before and discussed in the Group without conclusion, as indicated in 
Secretariat’s paper JOB/RL/3;  that might result in a repetition of the same arguments exchanged a TN/RL/M/38 
Page 16  
 
  couple of years ago, consequently using more ti me than necessary given the timelines the Group was 
working under.  
63. Some Participants associated themselves with the substance and thrust of the submission. 
They recalled the mandate given by Ministers to "clarify and improve" rules, the emphasis it placed 
on developmental aspects of RTAs and the fact th at this round was the "Doha Development Round".  
They stressed that the proposal was an elegant and precise expression of observed realities that sought 
to codify practice;  further, it was a non-prescrip tive and commonsensical approach to grafting into 
Article XXIV what most agreed was current practice.   The inclusion in Article XXIV of the GATT of 
the principles of S&D treatment and less than full reciprocity would give developing countries more 
flexibility when negotiating RTAs. 
64. The Proponent thanked delegations for their comments, support and the questions posed.  
Regarding the question on the need for the prop osal, she replied that while some of the S&D 
principles contained therein were already included in other parts of the WTO, these were extremely 
insufficient.  Her experience had shown that even if disciplines existed elsewhere in the GATT, for 
example in Article XXXVI, Article XXIV did not include  such flexibilities.  That was in contrast with 
the GATS, where Article V did include S&D specifically, but even there, flexibilities might, but not necessarily always, apply.  The fact was that there was an ocean of divergence between what 
happened in the WTO and in negotiations of an RTA.   Coherence was needed both with respect to a 
development Round and also in the negotiation of preferential agreements.  With respect to the 
question regarding trading powers, the proposal was to be read on the basis of the OECD definition.  She stressed that the actual proposal was only a para graph long;  it required very little time for its in-
depth consideration.  She concurred with a point ma de by a Participant that Article XXIV had been 
and was being abused.  She requested that the Gr oup pursue its discussions of this paragraph-long 
proposal. 
65. The Participants thanked the Secretariat fo r having prepared document JOB/RL/3, which 
revised the checklist of systemic issues.  It served to remind Members of the numerous difficult and 
technical issues with systemic aspect they had to co nfront.  Reference was made to paragraph 23 of 
the Note, that referred to TN/RL/W187 entitled Best Practices for RTAs/FTAs in APEC ;  it was 
suggested that this document merited further discussi ons.  The point was made that the Note did not 
underline the need for text-based proposals for progressing on systemic issues.  
66. The Group discussed the possibility of a forward-looking post-Doha Work Programme on 
systemic issues.  Divergent views were expr essed on whether discussions on a Work Programme 
should be held jointly with those on specific syst emic issues supported by text proposals.  Some 
Participants emphasized the specific development ma ndate on RTAs and the fact that Doha was the 
Development round;  thus, there was a need to firs t deliver an outcome on development issues before 
moving into other areas that were not part of the Doha mandate.  The shaping of any Work 
Programme could only take place once discussions on the recently circulated proposal had been 
exhausted.  Others noted that such parallel discussi ons should be held in pa rticular given the time 
constraints the negotiations were facing.  Discu ssions on both these issues should not necessarily be 
conducted in the same format or precisely at the same time, but both issues should be discussed. 
D. O
THER BUSINESS  
67. The Chairman informed the Group that the ne xt meeting was scheduled for 7 March;  
submissions to be considered at that meeting should reach the Secretariat at the latest on Friday, 18 February.  As indicated in the fax he had sent in December, meetings were also scheduled 
for 4 and 27 April.  These meetings will be comple mented with small group consultations, the first of 
which was to take place on 17 and 18 February as necessary.  
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