WORLD TRADE  
ORGANIZATION  TN/RL/W/248 
24 January 2011 
 
 (11-0381) 
Negotiating Group on Rules Original:   English 
  
 
REVIEW OF THE RTAs TRANSPARENCY MECHANISM UNDER PARAGRAPH 23: 
PROPOSAL FOR THE CONSIDERATION OF ALL RTAS IN A  
SINGLE WTO COMMITTEE 
 
Submission by the United States
 
 
  The following communication, dated 20 January  2011, has been received from the Delegation 
of the United States.  
_______________ 
 
 1. On 17 December 2010, the Rules Negotiating Gr oup (NG-Rules) initiated a review of the 
operation of the RTA Transparency Mechanism (TM) , and the Chair invited Members to submit any 
proposals to modify the TM in light of the experi ence gained under its operation.  While the TM has 
on the whole significantly improved transparency w ith respect to RTAs, some of its operational 
aspects could be improved.  Most notably, while there is no doubt that the TM applies to all RTAs – whether negotiated under GATT 1994, the GATS, or the Enabling Clause – practical questions of the 
venue of consideration have arisen when parties to an agreement differ among themselves in their 
view of the relevant WTO provision for concluding a particular preferential agreement.  While it is 
clear that such underlying differences go beyond th e scope of this review, we are submitting this 
paper to help ensure the consideration of RTAs  that have been "dually notified" under such 
circumstances, so as to eliminate, or at least re duce, disagreement and procedural challenges in a way 
that is without prejudice to any underlying rights.  As suggested by the Chair, this submission proposes a specific solution, in the form of a proposed change to paragraph 18 of the TM, to consolidate the consideration of a ll RTAs in a single committee.   
Factual Context
 
2. Following over three years of intensive nego tiations, in 2006 the Rules Negotiating Group 
agreed upon the TM, which became provisionally operational in 2007.1  Overall, the TM has been 
universally recognized as a success.2  B y  r e q u i r i n g  M e m b e r s  t o  s ubmit specified data, and the 
Secretariat to prepare factual presentations on its own responsibility which are subject to review by 
the parties to the agreement, the TM has helped f ill major knowledge gaps with respect to individual 
RTAs, and worked to ensure that certain informa tion is available on all notified agreements.  In 
addition, the on-line data base required by the TM not only makes product-specific trade and tariff data available to each Member, but also has provide d needed transparency to the public, including the 
academic community and other international organiza tions like the OECD – leading to a plethora of 
economic, political and legal analyses. 
                                                     
 
1 WT/L/671. 
2 WT/GC/W/605, 3 July 2009 Communication from India. TN/RL/W/248 
Page 2  
 
  3. Having adopted the TM, albeit on a provisional basis, the Membership has already gone a 
long way toward fulfilling the mandate in paragraph 29 of the Doha Declaration, by clarifying and 
improving transparency disciplines and procedures under the WTO provisions on regional trade agreements.  In order to make the TM permanent, it must be reviewed pursuant to paragraph 23 of the 
General Council Decision on the Mechanism.  Paragraph 23 of the Decision states:   
 "Members will review, and if necessary modify, this Decision, in light of the experience 
gained from its provisional operation, and rep lace it by a permanent mechanism adopted as 
part of the overall results of the Round, in  accordance with paragraph 47 of the 
Doha Declaration.  Members will also review th e legal relationship between this Mechanism 
and relevant WTO provisions related to RTAs." 
 4. The decision to initiate the review of the TM  to make it permanent was taken by the 
Membership in a meeting of the Negotiating Gr oup on Rules on 17 December 2010.  The basis for 
this review is to emanate from Members' submi ssions, with assistance from the Secretariat in sharing 
its experience in any problems encountered.  Beyond the identification of problems, and as stated by 
the Chairman of the Rules Negotiating Group at th e 17 December meeting and his follow-up work 
plan, there is a need for submissions "to propose solutions
 to the pitfalls encountered when 
implementing the TM." 
Problem Presented  
 5. One problem that has come clearly to light re lates to a disagreement between some Members 
over the forum in which a number of agreements sh ould be considered under the TM.  In two recent 
cases, the same agreement has b een notified by different parti es under Article XXIV of GATT 1994, 
and the Enabling Clause, respectively.  In other cases , while the parties to an agreement have notified 
it under a particular WTO provision, other Members, not party to the relevant agreement, disagreed 
with the decision on the appropriate forum for the no tification.  Disagreements of this nature even 
prevented adoption of the CTD and CRTA final a nnual reports for 2010.  While the NG-Rules is 
unlikely in the near term to be able to bridge  the underlying differences among Members as to the 
scope of the Enabling Clause, it is incumbent upon th e NG-Rules in its review of the TM to work to 
avoid future breakdowns in the WTO's working procedures.   
Solution Proposed
 
 
6. In order to avoid unresolvable conflicts am ong the Membership concerning the choice of 
forum, the United States proposes that all RTAs – notwithstanding the legal provisions under which 
they are notified – be considered, for purposes of  the Transparency Mechanism, in the CRTA.  
Paragraph 18 of the TM should be amended to read, in full:  
  "E.  Body Entrusted with the Implementation of the Mechanism 
 
 18.  The Committee on Regional Trade Agreeme nts ("CRTA") is instructed to implement 
this Transparency Mechanism. [FN 3 retained]"  
7. As described further below, such a solution is consistent with th e terms of reference 
establishing the CRTA in 1996.  Intended to move fr om the practice of GATT working parties, the 
decision establishing the CRTA provided for consideration of all RTAs in a single forum. 
 
    TN/RL/W/248 
 Page 3 
 
 
  Explanation  
 8. Prior to the establishment of the CRTA, RTAs we re reviewed in individual working parties or 
considered briefly in the GATT Council.  Given th e proliferation of RTAs starting in the 1990's, 
Members sought a more efficient means by which to  consider them.  The General Council established 
the CRTA in 1996 "having regard to agreements which are to  be notified, as the case may be, under 
Article XXIV of the General Agreement on Tariffs and Trade (GATT) 1994, Article V of the General 
Agreement on Trade in Services or the 1979 Decision on Differential and More Favourable 
Treatment, Reciprocity and Fuller Participation of Developing Countries."
3 
9. Under the Committee's terms of reference, th e CRTA was established "to carry out the 
examination of agreements in accordance with the procedures and terms of reference adopted by the 
Council for Trade in Goods (CTG), the Council fo r Trade in Services (CTS) of the Committee on 
Trade and Development (CTD), as the case may be, a nd thereafter present its report to the relevant 
body for appropriate action."  Agreements were notif ied to the WTO as required by the relevant legal 
provisions governing RTAs, but then referred the CTG, the CTS, and the CTD.  Following these 
referrals, in practice, the CTG and CTS forwarded their agreements to the CRTA for consideration, 
but for reasons that are not entirely clear, the CTD did not.   
10. In negotiating the TM, Members sought to drop so me of the less useful steps that had evolved 
preceding actual consideration of an RTA, and to develop procedures that would ensure the maximum 
transparency while avoiding unnecessary burdens on Me mbers.  Despite the application of different 
substantive legal standards to the various RTAs being notified, Members shared an interest in 
understanding the provisions of these agreements a nd their implications.  Accordingly, the TM sets 
forth a single set of procedures to enhance transpar ency, which applies to all RTAs without regard to 
which committee they are notified. 
11. The issue of which forum would consider En abling Clause agreements was undecided until 
the end of the negotiation of the TM.  Despite rec ognition that the CRTA was the most efficient forum 
for this activity, a political agreement was finally reached to consider Enab ling Clause agreements in 
the CTD, as an accommodation to concerns expressed about how the TM would work, in particular in 
possibly prejudicing Members’ rights.  On an info rmal basis, Members expressing those concerns 
acknowledged that they might dissipate following th e successful operation of the TM on a provisional 
basis.  
12. After applying the TM for four years on a provisional basis, such concerns about the effect 
and operation of the TM appear to have been obviated.  As India noted in its 3 July 2009 
communication to the General Council (WT/GC/W/605), "[c]ertainly, one can say today that the RTA Transparency Mechanism is  a resounding success.  It has contributed immensely to our 
understanding of the contents of RTAs." 
13. However, failure to have the TM function in a single Committee has raised some difficult 
operational problems in the context of so-called "dual no tifications."  At best, as a practical matter, if 
Party A notifies an RTA under Article XXIV of GA TT 1994, and Party B notifies the same agreement 
under the Enabling Clause, it appears that the Secretariat would be required to prepare two factual presentations, and for the same agreemen t to be considered in both the CRTA and the 
CTD.  Leaving aside any political or legal tensions this may create, this outcome is neither practical 
nor efficient.  In addition, when parties have notified the goods part of their agreement under the 
Enabling Clause, and the services part under the GATS,  the consideration of the RTA has been split 
so that each aspect would be considered on a di fferent day, creating a disjointed, inefficient 
experience for participants.  It behoves the Member ship to provide for a more sensible procedure. 
                                                     
 
3 WT/L/127.  TN/RL/W/248 
Page 4  
 
  14. Accordingly, the United States proposes to cha nge the TM to ensure that its practical 
operation, as reflected in the consideration of each RT A, is not impaired by different views over the 
applicability of a WTO notification provision.  
15. Under the terms of the TM, the consideration of an RTA does not affect Members' rights and 
obligations under the WTO agreements under which [the RTA] was notified.
4  Similarly, nothing in 
the TM can change the legal scope of any agreemen t.  However, if agreements notified under the 
Enabling Clause could be considered in the CRT A, along with agreements notified under GATT 1994 
or the GATS, then the f act that they had been notified under th e Enabling Clause or Article XXIV of 
GATT 1994 would not give rise to choice of forum debates.  The agreement or agreements under 
which an RTA is notified could be simply an ite m to be noted with some standard, accompanying 
language specifying that no Member’s rights are being prejudiced. 
Conclusion  
16. In 2003, the WTO Secretariat was asked to prepare a legal note to assist Members in 
considering the transparency provisions of the Enabling Clause.5  Based on the CRTA's terms of 
reference, this document noted that the CRTA "c an be reckoned as a specialized body to which 
WTO Members have delegated their power to ex amine, question, consult on and review RTAs 
pursuant to GATT Article XXIV, GATS V and the Enabling Clause."6  The legal note also stated that 
"it might be institutionally more efficient and lega lly more coherent for the CRTA to consider the 
primary examination of all RTAs, without impairing Members' rights and obligations."7  The United 
States agrees fully with this observatio n.  The issues that have arisen as a result of the TM's dividing 
the consideration of RTAs between two WTO Co mmittees only underscore the wisdom of fulfilling 
the original objectives of the CRTA. 
 
  
__________  
 
                                                     
 
4 WT/L/671, para. 5.  
5 WT/COMTD/W/114, Secretariat’s 2003 Legal Note on Regional Trade Arrangements under the 
Enabling Clause. 
6 WT/COMTD/W/114, para. 43. 
7 WT/COMTD/W/114, para. 60.