RESTRICTED  WORLD TRADE  
ORGANIZATION  TN/TF/M/37 
20 October 2010 
 
 (10-5449) 
Negotiating Group on Trade Facilitation  
  
 
MINUTES OF THE MEETING 
 
Held in the Centre William Rappard
  
from 4- 8 October 2010  
 
Chairman:  H.E. Mr. Eduardo Ernesto Sperisen-Yurt (Guatemala) 
 
 
1. The Chairman  recalled that the agenda for the session had been circulated in WTO/AIR/3615. 
2. As Members would have noticed from the airgra m, the meeting focused on three main areas 
of work.  The first related to new submissions fro m the membership.  They would be addressed right 
after the end of the opening plenary.  Once this ha d been completed, delegatio ns would be invited to 
move into the GATT Article VIII ar ea to continue the negotiations fro m where they had been left in 
July.  This would be followed by work on special and differential treatment as a third key item on the 
agenda.  
3. Time would also be accorded to Members' bila teral, plurilateral and open-ended activities, as 
had been requested.  The afternoons of the first three days had been reserved to this end.  Delegations 
wishing to organize such initiatives would be expected to report on their results in the closing plenary. 
After that, the Negotiating Group would take up the traditional technical assistance and needs 
assessment items.   
4. The agenda was adopted . 
A. WORK ON THE  DRAFT CONSOLIDATED NEGOTIATING TEXT 
5. This part of the meeting was conducted in informal mode  with the exception of the following 
presentation: 
6. The representative of Israel  introduced JOB/TF/10, explaining the textual suggestions it 
contained.  Some of them were self evident, wh ich was the reason for limiting the current intervention 
to the language proposed for Article 10, section 10. 1, and Article 12, paragraph XVI of the Draft 
Consolidated Negotiating Text. 
7. With respect to Article 10, section 10.1, Israel proposed the insertion of the following text:  
"[In cases where goods are proven to be in violation of intellectual Property Rights, the good will be 
handled in accordance to the TRIPS Agreement (including destruction of the goods, where 
appropriate).]".  The reason for this provision was that the current text would create a new obligation 
for customs administrations.  Complying with the proposed language would imply a de jure  
modification of legal obligations derived from th e TRIPS Agreement, namely from its Article 46 
which stated:  "In order to create an effective de terrent to infringement, the judicial authorities shall 
have the authority to order that goods that they have found to be infringing be, without compensation 
of any sort, disposed of outside the channels of  commerce in such a manner as to avoid any harm 
caused to the right holder, or, unless this would be  contrary to existing c onstitutional requirements, 
destroyed." TN/TF/M/37 
Page 2  
 
  8. As one could see, the authority of customs to  order the destruction of goods infringing 
intellectual property rights already existed.  It would not be created through the Agreement on Trade 
Facilitation by adding the proposed language.  Rath er, it already existed under the TRIPS Agreement 
and was being enforced by most customs administrations around the world.   
9. On the other hand, the proposed Article 10.1 created an obligation to grant an unqualified 
"option to return goods".  In cases where the rej ection was based on a proven violation of the TRIPS 
Agreement, granting such an option to return the re jected goods would in fact mean that the future 
Agreement on Trade Facilitation would overrule the la nguage of Article 46 of the TRIPS Agreement.  
Since Israel paid great importan ce to the legitimate fight against counterfeiting, providing such an 
option was not acceptable and would affect the way cu stoms currently administ ered and enforced the 
TRIPS Agreement.  This was why Israel believed that a specific reference to the TRIPS Agreement 
should be inserted in Article 10,  paragraph 10.1, of the Draft Consolidated Negotiating Text.  
10. Perhaps discussing a more general exception to  the obligation derived from the proposed 
language in Article 10 could also be appropriate, as long as the resu lting language assured that this 
provision of the Trade Facilitation Agreement did not  affect the obligations created by previous 
international agreements, incl uding the TRIPS Agreement. 
11. With respect to Article 12, paragraph XVI, Israel proposed the inclusion of the following 
language:  "[or would violate a commercial, industria l or professional secret]."  Paragraph XVI would 
read as follows:  "[In cases where the requested Member is of the opinion that exchange of 
information under these provisions is prohibited by it s laws and regulations or would infringe upon its 
sovereignty, security, public policy,  or other substantial interest, [or would violate a commercial, 
industrial or professional secret],  the request may be refused or has to be withheld, or may be subject 
to the satisfaction of certain conditions or requirements.]" 
12. Although the concept of "other substantial inte rest" was broad and vague  and seemingly could 
encompass many things, Israel would like to see this te xt inserted in this paragraph since - due to its 
importance and relevance - the protection of comme rcial, industrial and pr ofessional confidentiality 
merited an explicit mention within the text. 
13. Israel was more than happy to further discu ss those ideas both multilaterally and bilaterally 
with interested delegations.  
14. The Negotiating Group took note
 of the statements made.  
B.  A D HOC ATTENDANCE OF RELEVANT INTERNATIONAL ORGANIZATIONS , INCLUDING THE 
IMF, OECD, UNCTAD , WCO AND THE WORLD BANK, AT THE NEXT MEETING OF THE 
NEGOTIATING GROUP  
15. The Chairman  suggested inviting relevant internati onal organizations, including the IMF, 
OECD, UNCTAD, WCO and the World Bank to attend the next formal meeting of the Negotiating 
Group on an ad hoc basis, as provided for in the Work Plan. 
16. It was so agreed . 
C. O THER BUSINESS  
17. The Chairman  addressed the issue of the Negotiating Group's next meeting, suggesting to 
hold it from 29 November – 3 December.  Details regarding its content and structure would be 
communicated to Members in due course.   TN/TF/M/37 
 Page 3 
 
 
  18. It was so agreed .  
19. The Negotiating Group took note  of the statements made. 
20. The meeting was adjourned . 
  
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