WORLD TRADE  
ORGANIZATION  TN/MA/W/68/Add.1 
8 May 2006 
 (06-2220) 
Negotiating Group on Market Access Original:   English 
  
 
MARKET ACCESS FOR NON-AGRICULTURAL PRODUCTS 
 
Resolution of NTBs through a Facilitative Mechanism
 
 
Submission by NAMA 11 Group Of Developing Countries1 
 
Addendum  
 
 The following communication, dated 5 May 2006, is being circulated at the request of the 
delegations of Argentina, Bolivaria n Republic of Venezuela, Brazil, Egypt, India, Indonesia, Namibia, 
Philippines, South Africa and Tunisia. 
 
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1.  The NAMA 11 Group of Developing Countries, in making the following proposal, recognize 
that other Members have also been discussi ng and proposing establishment of “horizontal 
mechanisms” in the WTO for the timely and cost effective resolution of non-tariff barriers in the 
NAMA negotiations.  For further progress in the dir ection of finalization of the negotiating draft we 
look forward to cooperation with all interested Members.    1. Background 
2.  Non-Tariff Barriers (NTBs) are evolving as an area of serious concern for the WTO 
Membership. The term ‘Non-Tariff Barriers’ (NTBs)  has not been defined under the WTO, but its 
usage and understanding broadly refers to any borde r measure other than a tariff, which acts as a 
barrier on trade. This includes internal measures that , despite in several instances being in line with 
WTO rules and serving legitimate policy objectives, may discriminate or unnecessarily restrict access 
to markets, translating into additional costs fo r the exporters or the importers. Additionally, the 
benefits sought to be achieved from the reduction of  tariffs in the present Round may be negated as a 
result of the various non-tariff measures imposed by Members, especially against developing 
countries. Several WTO Members have notified NT Bs faced by them in the markets of other 
Members and have also suggested mechanisms for addressing them
2. 
 
3.  Outside negotiations for the reduction and el imination of NTBs as part of multilateral trade 
negotiations, at present there are two broad mechan isms for dealing with NTBs – the Committees 
under each WTO Agreement which oversee the implem entation of Members’ obligations under the 
relevant Agreement, and the U nderstanding on Rules and Procedur es Governing the Settlement of 
Disputes, (commonly referred to as the Dispute Settlement Understanding or  DSU), which provides 
for resolution of trade disputes. Both of these have  been advocated by Members as possible ways in 
                                                      
1Argentina, Bolivarian Republic of Venezuela, Braz il, Egypt, India, Indonesia, Namibia, Philippines, 
South Africa and Tunisia. 
2 See for example , TN/MA/W/25 and TN/MA/W/46 series of documents. TN/MA/W/68/Add.1 
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  which NTBs could be addressed under the WTO. However, these mechan isms have several 
limitations.  4.  The Committee system operates primarily on the principle of ‘notifications’ of NTBs. This practice, while playing a role as an ‘early warni ng system’, does not provide an efficient mechanism 
for resolving problems arising from the NTB. Th e dispute settlement process under the DSU has 
several inherent limitations that undermine early resolution of NTBs. While it should be recognized 
that the WTO’s DSU is a distinct improvement over the erstwhile GATT procedures due to its 
predictability and enforceability, as well as being one  of the most efficient mechanisms available 
under international legal regimes, the DSU, which works on the principles of an adversarial process, 
is expensive, and the time of up to 2 years taken for an enforceable decision, often frustrates the 
exporter’s need for a timely solution.  5.  Exporters facing NTBs need real time so lutions. A solution that comes 2 years after the 
identification of the problem does very little to assi st exporters in clearing their goods at the port of 
entry and only adds to costs and leads to a loss of  market opportunity. The lengthy dispute settlement 
mechanism can also creat e considerable instability especially for a new enterprise in the exporting 
country. For developing countries, in particular, th e dispute settlement process is very costly.    
    
2. NTB Resolution Mechanism  
6.  The need therefore is for a new, standi ng, flexible and expedient mechanism that is solution 
based  rather than rights based ; that would offer creative and pragmatic results, which further trade, 
rather than adversarial outcomes which hinder trade, at  least in the short term.   Accordingly, a “NTB 
Resolution Mechanism” is proposed to be established in the WTO as an outcome of this Round. This 
mechanism will supplement the presen tly available means to resolve NTBs in the WTO system even 
after the present Doha Round negotiations conc lude. The “NTB Resolution Mechanism” would 
consider NTBs that affect trade in goods and th e Agreements listed in Annex 1 of the Marrakesh 
Agreement Establishing the World Trade Organization  7.  The “NTB Resolution Mechanism” would be guided by the principle of “good faith” and conciliatory negotiations wherein every Member would make a concerted effort to resolve the NTB at 
hand, under the guidance of a mutually agreed “f acilitator”. Members would be required to engage 
with the intention of arriving at a solution to the NTB. It would be informal, low-key and less 
adversarial than the DSU, and without prejudice to  the rights of Members under the DSU. The basic 
characteristics of such a Mechanism would be:  (a) Finding Pragmatic Solutions to Trade Effects 
8. The fundamental premise for the “NTB Resolu tion Mechanism” is that there are many NTBs 
and related issues that can be resolved by trade e xperts on a case-by-case basis, without going into the 
legality of the measure. Such a Mechanism will cons ider primarily the adverse trade impact of such 
NTB, and not necessarily its legality, and attempt to  resolve it on a mediatory or facilitative platform. 
 
(b) Using Expert Facilitators to find the ‘Solution’  
9. Since most NTBs pertain to specialized areas in trade such as SPS, TBT, customs valuation, 
etc., any resolution of a problem in these technical  areas would also require specialized knowledge on 
part of the “facilitator”. The “facilitator” would thus be an expert in one or more of the concerned 
fields. For the early appointment of a “facilitato r” relevant bodies/committees of the WTO would 
maintain a roster of relevant experts. The roster  would be prepared by Members in the concerned 
committees through consensus, ensuring adequate re presentation of experts from developing country 
Members. Members to the process could select any of the “facilitators” on the roster or any other  TN/MA/W/68/Add.1 
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  person, by mutual consent. In the absence of a c onsensus, the DG would be empowered to appoint a 
“facilitator” from among the roster of experts.   (c) Submitting an NTB to the Resolution Mechanism 
10. Any Member may submit an issue adversely aff ecting its trade, and identified by it to be a 
NTB maintained by another WTO Member, to the re levant WTO body/committee for reference to the 
other party through the “NTB Resolution Mechanism”. The Member to which su ch a request is made 
would then be obliged to submit itself to the “NTB Resolution Mechanism”. The role of the 
“facilitator” would be to actively aid and advise the Members in reaching a solu tion that is workable 
and pragmatic, including by helping establish th e facts of the matter and by providing advice and 
recommendations on possible solutions. The “facilitat or” will also respect any mutually agreeable 
solution that is arrived at by the parties themselves.     (d) Sectoral/Plurilateral Elements  
11. In recognition of the fact that several Me mbers may face similar problems in a particular 
sector in the territory of another Member, the NTB Resolution Mechanism would allow affected 
Members to collectively present their problem. Howe ver, the time lines applicable to a one-to-one 
facilitation would also apply to group requests.   (e) Establishment of Facts and Trade Effects
 
12. The NTB Resolution Mechanism would have clear and short deadlines. An outcome should 
be sought within no longer than 60 working days of the appointment of the “facilitator”. In order to 
ensure speedy resolution, the affected Member or Members would submit a brief statement of issues 
describing the problem to the concerned WTO Committee. Pursuant to the selection of the 
“facilitator”, the affected Member(s) would submit a detailed statement of issue describing the NTB 
and identify the adverse trade effect. On receipt of the statement of issues, the same would be 
transmitted to the Member to which the request is made, who would submit its response along with 
any defenses. All such submission by Memb ers will be within a fixed time-frame. 
 (f) Recommendations on the Solution
 
13. The “facilitator” would enable the Members to  reach an amicable solution for the referred 
NTB. This would be a pragmatic solution based on th e facts presented and with details as to actions 
required on the part of the concerned Members. The “facilitator” will fully take into account the 
particular problems and interests of the developing country Member, if any involved, while making 
the recommendation. The “facilitator” will also take into account the differential and more favourable 
treatment in the covered agreements while maki ng his recommendations. It is reiterated that the 
“facilitator” would not be a passive listener; he would be empowered to  offer solutions to resolve the 
issue. Considering that the facilitator would not a pproach the issue as a ‘dispute’ for the purpose of 
the DSU, the DSU would not apply to the proce dures and recommendations of the “NTB Resolution 
Mechanism”.   (g) Flexibility of Procedure   
 
14. The procedure would be flexible and the “f acilitator” will be free to choose the preferred 
method. The “facilitator” would consult the involved Members either individually or collectively; the 
WTO Secretariat; affected industries; and othe r experts, including from industry and other non-
governmental organizations. The procedure adopted  will not be unduly burdensome for developing 
country Members. The result, either an amicable solu tion or the failure to reach such a solution, will TN/MA/W/68/Add.1 
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  be recorded and forwarded to the relevant body/committee referring the matter to the “NTB 
Resolution Mechanism”.              15. Flexibility would also apply to the solutions sought. For example, where a Member feels that 
an interim solution is warranted, particularly in  the case of perishable goods, the facilitator would 
explore this aspect as well and encourage the parties to reach an agreement on an appropriate interim 
solution.           (h) Implementation of Award
 
16. While participating in the procedure will be mandatory, implementation of the recommended 
solution will not be so.  This is important as a ma ndatory implementation requirement will affect the 
legal rights of the Members concerned. Instead, any party unwilling to implement the recommended 
solution will be required to state its reasons in  the relevant WTO body/committee, to which the 
original request for launching of the “N TB Resolutions Mechanism” was made.  
 
17. As in a final result, the implementing Memb er would have the right not to implement an 
interim solution. Any decision not to implement th e interim solution would have to be communicated 
with the reason to the “facilitator” and the referring Member.  (i) Right to Approach the DSU
 
18. This mechanism will be independent of the WTO’s dispute settlement mechanism. The “NTB 
Resolution Mechanism” would be without prejudi ce to the right of the Members concerned to 
approach the DSU at any stage of the process. Rights of Members under the DSU will be protected. 
Information exchanged or solutions reached dur ing the process would not be used in any WTO 
dispute settlement procedure.   
(j) Confidentiality 
 
19. Central to the NTB Resolution Mechanism w ould be the principle that the process can be 
effectively facilitated only in an atmosphere of confidentiality. There shall be no third party 
participation unless both the parties agree to the same . This is expected to lay down the foundation for 
an open and effective interaction be tween the parties, and the options for a solution. The result of the 
process, which essentially lays down whether or not a solution was reached, including any interim 
solution, would be published and communicated to th e relevant body/committee as a report. It is 
believed that under a confidential mechanism, Memb ers may be more willing to make difficult but 
necessary concessions to reach a solution.  
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