. /.   WORLD TRADE  
ORGANIZATION  TN/MA/W/111 
19 May 2009 
 (09-2438) 
Negotiating Group on Market Access Original:   English 
  
 
MARKET ACCESS FOR NON-AGRICULTURAL PRODUCTS 
 
Questions on the Horizontal Mechanism
 
 
Communication from the United States 
 
  The following communication, dated 18 May 2009, is being circulated at the request of the delegation of the United States. 
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 1. In the summary paragraph Section I on the Pu rposes of the Horizontal Mechanism,” what is 
the distinction the proponents are trying to draw  by saying that the procedure could “quickly and 
efficiently” address NTBs caused by “faulty implementa tion of a law rather than the law itself.”  What 
does this mean:  “Faulty implementation of a law,” who would decide how the law should be 
interpreted, and how can this be done without considering legal issues, which as we understand it 
continue to be outside the scope of the Horizontal Mechanism?    2. In the response to question II.1, you state that  the HM is “not simply a bilateral engagement 
between two Members” and in the response to question 2 you suggest that proponents prefer not just 
to concentrate on bilateral solutions.  Yet the pro cedures provide for a bilate ral exchange between two 
Members, where one Member makes a request and a nother responds.  The response to question IV.2 
confirms that the standard situation is limited to just two parties.  If the Members decide to proceed to 
the stage with the facilitator, the discussions w ould include those two Members.  What opportunities 
do other Members have to learn about the issue?  Will the two Members concerned take into account 
other Members’ interests? 
 
3. In the responses to questions  II.3 and 5, you provided additi onal detail on the confidentiality 
provisions of the HM.  These details clarify your po sition that the information provided during Stage I 
and even some of the information provided during Stag e II would not be confidential.  Is this correct?  
For Stage II, who would decide what information is confidential?  If the Member who provided the 
information objects to the publication of informati on (e.g., its use during dispute settlement), does the 
objecting Member have any recourse to protect the information they provided for the HM? 
 4. Question II.6 and its response concern the eff ect of HM-solutions on other Members.  The 
response notes that other Members may raise this is sue with the Committee, dispute settlement, or the 
HM. 
 - Provided the HM-solution is WTO-consistent, on what basis could a Member other than the 
Member that made the HM request object to  how the solution affects its interests? 
- Could a Member whose measure is challenged under the HM offer different solutions to 
different Members?   
- If a Member would like to have the same solution for a measure that another Member 
received through the HM, could it?  TN/MA/W/111 
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  5. The response to question III.4 clarifies the broa d scope of issues that Members may explore in 
the HM, regardless of whether the issue is politically  sensitive or a resolution is likely.  Responding to 
requests for information could be a significant burden,  particularly for developing countries.  Is there 
any limit on the number of HM requests a Member would need to respond to?  
6. In Question III.2 and III.3, the response provi ded by the proponents seems to suggest that for 
SPS, agricultural SPS issues would be excluded from the scope of the Horizontal Mechanism, while 
fish and lumber SPS issues could be raised.  Is th is a correct interpretation?  If so, please explain the 
rationale for such a distincti on under the SPS Agreement.   
 
7. Can we extrapolate from this that agricultu re-related issues including customs valuation, 
licensing, TBT, or Rules of Origin issues also  would be excluded from the scope of the HM? 
 8. Singapore asked a question regarding the rela tionship between joint requests and committee 
discussion.  It’s true that, as stated in the respon se, Members can discuss issues if they want.  But, 
would it not be helpful to encourage such discussi ons in Committees early on so that Members can 
coordinate their approaches to issues?  Would not a coordinated response limit the risk that a bilateral 
HM-solution would adversely affect other Members?  9. In question VIII.1, the U.S. asked for an  example of how the HM would work, including 
regarding issues that had been raised in Committees .  The response refers to  the possibility that an 
issue is before a Committee for a long time, but does not provide an example as requested in the 
question.  The U.S. believes a description of a hypot hetical example of an HM request and facilitation 
procedures would be helpful.  C ould the proponents provide this? 
 10. In Article 23 of the latest HM text, it stat es that “…each Committee to which this Decision 
applies may decide, by consensus, to modify certa in procedural aspects of this Decision.”  Can the 
proponents clarify the depth and breadth of what  the Committees may modify with respect to 
procedural aspects, for example, could a Committee modify any procedural aspect – or all procedural aspects – and might other areas such as coverage or findings also be modified?    
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