RESTRICTED  WORLD TRADE  
ORGANIZATION  S/WPDR/W/32/Rev.1 
28 October 2005 
 (05-5009) 
Working Party on Domestic Regulation Original:   English 
  
 
COMMUNICATION FROM SWITZERLAND AND MEXICO 
 
Proposal for Disciplines on Technical Standards in Services 
 
 
Revision  
 
 
The following communication, dated 27 Octobe r 2005, from the delegations of Switzerland 
and Mexico, is being circulated to the Members of the Working Party on Domestic Regulation.  This 
document replaces Switzerland's previous communication S/WPDR/W/32. 
Switzerland and Mexico reserve the right to re vise, supplement or withdraw this proposal 
according to the results of further examinations. 
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1. The provision of services in many sectors is heavily affected by an array of domestic 
regulations.  Recognizing the right of Members to regulate, and to introduce new regulations, on the 
supply of services within their territories as provided for in the preamble of the GATS, Switzerland 
and Mexico consider the development of regulatory disciplines as an important element of the current 
negotiations. Therefore, disciplines need to strike a balance between the right of Members to adopt 
and implement domestic regulations  deemed necessary to pursue legitimate policy objectives and 
ensuring that such measures do not constitute unnecessar y barriers to trade in services. Provided that 
this balance can be found, establishing disciplin es is in the interest of all Members alike. 
2. In line with other WTO Agreements, it is neith er the intention nor the purpose that these 
disciplines formulate the substance of any regulation.   Domestic regulations shall be formulated and 
developed in response to changing legal, so cial and economic environments and differing 
circumstances in the territory of each Member. 
3. The Working Party on Domestic Regulation (WPDR) has made important progress in recent 
times towards a deeper understanding of the scope of  these disciplines and the balance to be achieved 
therein.  With this contribution, Switzerland a nd Mexico intend to complement other valuable 
contributions by Members to the Working Party.  Our approach has been to present a comprehensive 
set of disciplines on technical standards, mindful of the fact that it contains common elements with 
disciplines that are or will be developed for licensing  and qualification requir ements and procedures.  
These elements for disciplines on technical standards ha ve been developed with the intention that they 
integrate the Draft Annex on Domestic Regula tion developed by the delegations of Japan.1, and or any 
                                                      
1 See document JOB(03)/45/Rev.1 Communication from Japan, Draft Annex on Domestic regulation  of 
2 May 2003. S/WPDR/W/32/Rev.1 
Page 2  
 
 other Draft Annex.
2  They take into account the examples of regulatory measures to be addressed by 
disciplines under GATS Article VI:4 th at have been submitted by Members.3 
4. There have been numerous discussions in the WPDR whether disciplines should be of 
horizontal application or be developed on a sectoral  basis. Switzerland and Mexico are of the view 
that many of the issues to be addressed by th e disciplines are sufficiently similar across services 
sectors that common building blocks can be deve loped.  Yet, Switzerland and Mexico also 
acknowledge the high diversity of services sectors and therefore can easily see the merits for focused sectoral complements where appropriate.  Thus th e two approaches should not be seen as mutually 
exclusive. 
5. Switzerland and Mexico have paid particular a ttention to the fact that the elements they 
propose for disciplines on technical standards doe s not address measures subject to be scheduled 
under GATS Articles XVI and XVII.  They are also intended to underpin GATS Articles II and III.  
This approach does not preclude work on the develo pment of other regulatory principles that may be 
necessary. 
6. Technical standards have been looked at under the development of disciplines for the 
accountancy sector. Hitherto, only two paragraphs are devoted to technical standards, the one making 
sure that such standards are prepared, adopted or applied only to fulfil the legitimate objective, and 
the other making reference to international standard s.  The accountancy sector certainly is one of the 
sectors where international standards play a recognized  role.  Yet, this is not the case for the time 
being for other services sectors.  For this reas on, Switzerland believes that more comprehensive 
disciplines are necessary. 
7. One particular difficulty encountered during the work on disciplines on technical standards is 
that GATS Article VI:4 does not provide any definition of technical standards.  In this regard three 
central questions needed to be answered:  
(a) Which kind of requirements should technical standards cover? 
(b) Should technical standards comprise mandatory and voluntary standards? 
(c) Should technical standards only cover standards prepared, adopted or applied by 
governmental authorities and non-government al bodies to whom such authority has 
been delegated or should it also include  non-governmental standardizing bodies? 
8. Switzerland and Mexico share the analysis by the WTO-Secretariat
4 that work carried out in 
the accountancy sector would suggest that standards in the area of trade in services apply not only to 
the technical characteristics of the service itself but also to the rules accordi ng to which the service 
must be performed. 
9. The second and third question are closely linked.  Professional associations play an important 
role in setting the state of the art of providing a ser vice (which may become relevant in the settlement 
of disputes).  Particularly professional services as sociations very often exercise a standard setting 
activity.  It becomes therefore clear to us that voluntary standards, even if they are developed by non-
                                                      
2 For example: room document of 26 April by Brazil, Colombia, Dominican Republic, Peru and the 
Philippines. 
3 See document Jo b(02)/20/Rev.9 Examples of measures to be addressed by disciplines under GATS 
Article VI:4, informal note by the Secretariat  of 16 November 2004. 
4 See document S/WPPS/W/9 The relevance of the disciplines of the Agreements on Technical Barriers 
to Trade (TBT) and on Import Licensing Procedures to Article VI:4 of the General Agreement on Trade in 
Services, note by the Secretariat of 11 September 1996.  S/WPDR/W/32/Rev.1 
 Page 3 
 
 
 governmental bodies to which no standardizing power has been formally delegated, may constitute 
important barriers to trade and should therefore retain  our attention in the development of disciplines.  
Yet, governmental action in this regard is very limited. 
10. Members will realise that the WTO Agreement on Technical Barriers to Trade (TBT) has 
been a valuable source of inspiration for the deve lopment of disciplines on technical standards, while 
taking into account the differences that exist betwee n trade in goods and trade in services.  This has 
been the more evident as the TBT and the discip lines to be developed under GATS Article VI:4 
pursue the same objective of striking a balance between the right to regulate and not creating 
unnecessary barriers to trade.  Switzerland and Mexico are of the view that despite some difficulties 
with this Agreement since its adoption, it has show n to be effective.  Lessons learnt have been 
reflected in the proposed elements for disciplines on technical standards.  This link to the TBT could 
be made even stronger by making e.g. an explicit re ference to the provisions in the TBT with regards 
to Members' obligation to notify technical regulati ons and extending them to technical standards in 
services, instead of the proposed language of paragraph 26. 
11. Members will also realise that particular em phasis has been put on the role international 
standards can play towards achieving the objectives set  out in GATS Article VI:4.  Attention is also 
paid to potential difficulties some  developing countries may face to comply with these disciplines. 
12. Taking into account the progress made in understanding the scope of the disciplines, the 
objective of this communication is to go beyond genera l considerations on technical standards and to 
engage in detailed discussions.  Swit zerland and Mexico are of the view that this objective is best met 
when submitting concrete text to the Members of the WPDR, as divergences of view can sometimes 
only be detected at a certain level of details.  We s uggest to invite the WPDR to consider the elements 
for disciplines on technical standards in order to aliment further discussion. 
 S/WPDR/W/32/Rev.1 
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GATS ARTICLE VI:4. TECHNICAL STANDARDS 
 
Elements for Disciplines on Technical Standards
5 
 
 
Definitions  
 
1. For purposes of this Disciplines: 
 conformity assessment procedure  means any procedure used, directly or indirectly, to 
determine that a technical standard is fulfilled, including inter alia  inspection, evaluation, 
verification, monitoring, auditing, but does not mean an approval procedure; 
  services  means those sectors in which the Me mbers of the WTO undertake specific 
commitments, and 
 
 technical standard  means measures which provide for common and repeated use, rules, 
guidelines or characteristics for services or rela ted operating methods, including the relevant 
conformity assessment procedure. 
  General provisions
 
 
2. Where technical standards are prepared, adopted or applied by the central governments and 
authorities, the following disciplines shall apply.  
3.  In addition, Members shall take such reasona ble measures as may be available to them to 
ensure that the regional and local governments and authorities, and non-governmental bodies in the 
exercise of power delegated by central, regional or local governments or authorities within their territories comply with the pr inciples of these disciplines.  
4. Recognising the role of business associations involved in the exercise of standard setting 
impacting trade even in the absence of dele gated power by the competent governments and 
authorities, Members encourage these non-governmental  bodies to adopt the principles set out in the 
Code of Good Practices, Annex III of the Agreement on Technical Barriers to Trade. 
 
Basic Rights and Obligations
 
 
Right to Take Technical Standards  
 
5. Each Member may, in accordance with these Disciplines, prepare, adopt, maintain or apply 
any technical standards, including any measure to ensure its enforcement or implementation.  Such measures include those to prohibit the provision of a service by a service provider of another Party 
that fails to comply with the applicable requireme nts of those measures or to complete the Party's 
approval procedures. 
                                                     
 
5 Wherever possible, language is based on existing WTO texts, in particular Article VI and the Annex 
on Telecommunications of the GATS, the Disciplines on Domestic Regulation in the Accountancy Sector 
(S/L/64), the Agreement on Technical Barriers to Trade, the Japanese paper (JOB(03)/45/Rev.1), the Mexican submission (S/WPDR/W/30), the submission by the EU (S/WPDR/W/25) and the submission by Canada in the 
SPS committee (G/SPS/W/132/Rev.3).  S/WPDR/W/32/Rev.1 
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Right to Regulate  
 
6. Notwithstanding any other provision of these Disciplines, each Member may, in pursuing its national policy objectives, take the measures that it considers appropriate in accordance with  
paragraph 7 below. 
Unnecessary Obstacles  
 
7. No Member may prepare, adopt, maintain or apply any technical standards with a view to or with the effect of creating an unnecessary obstacle to trade between the Members. For this purpose, 
Members shall ensure that such measures are not more trade-restrictive than necessary to fulfil a 
national policy objective, taking account of the ri sks non-fulfilment would create. Such national 
policy objectives are, inter alia : the protection of human health or safety, animal or plant life or 
health; the protection of public morals and the maintenance of public order; national security 
requirements; the access to essential services; the quality of the service; professional competence; the 
integrity of the profession; or the prevention of  deceptive and fraudulent practices.  Requirements 
should be based on objective and transparent criteria. 
8. Conformity assessment procedures will be cons idered not to create an unnecessary obstacle to 
trade if Members, not adopt or maintain any such procedure that is stricter, nor apply the procedure 
more strictly, than necessary to give it confidence th at a service conforms with an applicable technical 
standard, taking into account the risks that non-conformity would create. 
9. Technical standards shall not be maintained if the circumstances or objectives giving rise to 
their adoption no longer exist of if the changed ci rcumstances or objectives can be addressed in a less 
trade-restrictive manner.  
Use of International Standards
 
 10. Each Member shall use, as a basis for its tec hnical standards, relevant international standards 
or international standards whose completion is im minent, except where such standards would be an 
ineffective or inappropriate means to fulfil its national policy objectives, for example because of 
fundamental climatic, geographical, technological or infrastructural factors. 
11. A Members’s standards-related measure that c onforms to an international standard shall be 
presumed to be consistent with these Disciplines. 
12. Members recognize the role played by releva nt international bodies (intergovernmental and 
non-governmental organisations) in establishing and pr omoting international best practices to ensure 
the efficient trade in services.  
13. Whenever a technical standard is prepared, adopted or applied for one of the national policy 
objectives explicitly mentioned in paragraph 7, and is in accordan ce with relevant international 
standards of relevant in ternational organizations
6, it shall be presumed not to create an unnecessary 
obstacle to international trade.  
                                                      
6 The term "relevant international organizations" refers to international bodies whose membership is 
open to the relevant bodies of at least all Members of the WTO. S/WPDR/W/32/Rev.1 
Page 6  
 
 Equivalency
 
 
14. Where feasible, and as long as the service is provided cross-border, each importing Member shall endeavour to treat a mandatory technical stan dard adopted or maintained by an exporting Party 
as equivalent to its own where the exporting Me mber, in cooperation with the importing Member, 
demonstrates to the satisfaction of the importing Member that its mandatory technical standard 
adequately fulfils the importing Member's national policy objectives. 
15. The importing Member should, on request and to  the extent possible, provide to the exporting 
Member its reasons for not treating a technical  regulation as equivalent under paragraph 14. 
Transparency
 
 
16. Members shall make publicly available, or sh all ensure that their competent authorities make 
publicly available, including through enquiry and contact points, and in an easily accessible manner, 
where possible by electronic means:  
(a) the list of service activities subject to technical standards;  
(b) information on the technical standards;  
17. The list of services and a summary of the in formation required under (ii) shall be made 
available in one of the WTO languages. 
18. Whenever a relevant international standard  does not exist or the technical content of a 
proposed mandatory technical standard is not in accordance with the technical content of relevant 
international standards, and if the ma ndatory technical standard may have a significant effect on trade  
of other Members, Members shall:  
(c) publish a notice in a publication at an early appropriate stage, in such a manner as to 
enable interested parties in other Members to become acquainted with it, that they 
propose to introduce a particular technical standard;  
(d) notify other Members through the Secretaria t of the sectors to be covered by the 
proposed mandatory technical standard. Such no tifications shall take place at an early 
appropriate stage, when amendments can still be introduced and comments taken into 
account;  
(e) without discrimination, allow at least 60 days for other Members to make comments 
in writing, discuss these comments upon request, and take these written comments and the results of these discussions into account.  
Special and differential treatment for developing countries
 
 
19. Developing countries may request special and differential treatment in cases where 
international standards entail high compliance costs a nd result in policies and institutions that are ill 
suited to a Member's legal and in stitutional development level. Members therefore recognize that in 
this case developing country Members should not be exp ected to use international standards as a basis 
for their technical standards, which are not approp riate to their development, financial and trade 
needs.  
20. Members shall take such reasonable measures as  may be available to them to ensure that 
relevant international organizations are organised  and operated in a way which facilitates active and  S/WPDR/W/32/Rev.1 
 Page 7 
 
 
 representative participation of relevant bodies in  all Members, taking into account the special 
problems of developing country Members.  
21. It is recognized that developing country Members may face special problems, including 
lacking institutional capacities, in the field of prepar ation and application of technical standards. It is 
further recognized that the special development a nd trade needs of developing country Members, as 
well as their stage of technological development, may hinder their ability to discharge fully their 
obligations in respect to technical standards unde r these disciplines. Accordingly, with a view to 
ensuring that developing country Members are able to comply with these disciplines, the Council for 
Trade in Services is enabled to grant, upon request , specified, time-limited exceptions in whole or in 
part from these obligations.  
 
22. Where the appropriate fulfilment of the leg itimate national policy objective allows scope for 
the phased introduction of the new technical standa rd, longer time-frames for compliance should be 
accorded on the supply of services of interest to  developing country Members so as to maintain 
opportunities for their exports.  
Technical assistance  
 
23. If, following the entry into force of a new t echnical standard, an exporting developing country 
Member identifies significant difficulties which its se rvices suppliers face in complying with the new 
regulation, it may request an opportunity to discuss its difficulties with the importing Member to attempt to resolve the issue of concern. The di scussions may lead the importing Member to examine 
whether and how the identified problem could best be addressed – as for example through technical 
assistance – to take into account th e special needs of the interested exporting developing country 
Member.  
24. Members shall, if requested, take such reas onable measures as may be available to them to 
advise developing country Members, on the preparation of technical standards.  
25. Members shall, if requested, take such reas onable measures as may be available to them to 
arrange for technical assistance to developing country  Members to establish or strengthen institutional 
capacity to prepare, adopt or apply technical standards. 
26. Members shall make every effort to ensure participation in relevant  international bodies 
(intergovernmental and non-governme ntal organizations) by the standa rd setting bodies of developing 
countries.] 
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