WORLD TRADE  
ORGANIZATION  TN/MA/W/110/Rev.1 
29 October 2009 
 (09-5409) 
Negotiating Group on Market Access Original:   English 
  
 
MARKET ACCESS FOR NON-AGRICULTURAL PRODUCTS 
 
Answers by the co-sponsors to Questions raised during Chair's NTB sessions in 2009
  
regarding the proposed "Ministerial Decision on procedures  
for the facilitation of solutions to non-tariff barriers"1  
 
Communication from the co-sponsors 
 
Revision  
 
 
 The following communication, dated 29 October 2009, is being circulated at the request of the co-sponsors of the proposed "Ministerial Decision on procedures for the facilitation of solutions to non-tariff barriers".  
_______________ 
 
  The co-sponsors of the "Ministerial Decision on procedures for the facilitation of solutions to 
Non-Tariff Barriers" (African Group, Canada, European Communities, LDC Group, NAMA-11, 
Group of Developing Countries, New Zealand, No rway, Pakistan and Switzerland) would like to 
express their gratitude for the questions raised by delegations on the proposal. The co-sponsors 
provide hereafter the answers given during the vari ous NTB sessions during 2009 in a written form as 
requested by these delegations. The high number of follow-up questi ons on answers already provided 
as much as the overlap of questions by some delegati ons clearly testify to the maturity of the proposal 
"Ministerial Decision on procedures for the fac ilitation of solutions to non-tariff barriers". 
 I. PURPOSE OF THE HORIZONTAL MECHANISM 
 The proponents of the "procedures for the fac ilitation of solutions to non-tariff barriers" 
(sometimes referred to as "Horizontal Mechanism" or in short HM) are conscious  of the fact that 
non-tariff measures vary significantly in form, effect s and objectives, and that non-tariff measures can 
serve legitimate and important purposes pursued by  Members.  At the same time, non-tariff measures 
may also constitute barriers that affect mark et access opportunities for other WTO Members and 
potentially impair benefits achieved from the reduc tion or elimination of ta riffs. This was shown by 
the initial NGMA Non-Tariff Barrier (NTB) inventory which listed a huge variety of issues, despite 
many of them being already cove red by different WTO Agreements . Numerous NTBs are caused by 
faulty implementation of a law rather than the law itself. The Horizontal M echanism seeks to provide 
a means to address such problems quickly and efficiently. 
 
                                                     
 
1 TN/MA/W/103/Rev.3. TN/MA/W/110/Rev.1 
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  1. The proponents state that “[n]umerous NTBs are caused by faulty implementation of a 
law rather than the law itself” and that th e HM “seeks to provide a means to address 
such problems quickly and efficiently.”  What criteria would the HM proponents apply to differentiate between an NTB caused by “faulty implementation” versus an NTB caused by “the law itself”?  If, as the propon ents indicate, the HM “is not designed to be 
a legalistic evaluation of Members’ rights and obligations,” who would decide whether a 
problem is caused by “faulty implementation” or by “the law itself”, and how would they do so without considering legal issues?  (U.S. – follow-up question on the statement 
above)   
 The statement was just an opinion of the pr oponents expressed to highlight their experience 
that NTBs often arise due to administrative and im plementation reasons. No le gal examination of any 
NTB is intended under the time-bound facilitate d problem solving procedures (HM).  
 
2. In what ways can this horizontal mechan ism provide an improved forum to address 
NTB issues in comparison with existing ones, such as procedures under DSU and 
bilateral consultations conducted through diplomatic channels or other ways? 
- In the event that the measure at issue ha s already exhausted bilateral consultations 
before reaching Stage I, it might be diffi cult to obtain the responding Member’s 
substantial responses in Stage I and its consent to proceed to Stage II. 
- Alternatively, if the measure at issue has not gone through bilateral consultations, it 
could be better to leave it to voluntary and fl exible procedures rather than bringing it 
into obligatory procedures. (Korea) 
 
 The Horizontal Mechanism (HM) has been pr oposed as an assisted NT B resolution procedure 
to be used within the framework  of WTO Committees to (i) gain clarity and information about any 
measure or issue that one or more Members consider to be a non-tariff barrier (NTB); and (ii) to have 
a facilitated discussion on the issue with the aim of  resolving or lessening the adverse trade impact 
that it may have on other Members’ trade.  It is not  designed to be a legalistic evaluation of Members’ 
rights and obligations and therefore is very different from the DSU.    The proposal seeks to strengthen the relevant WTO Committees, by going beyond their present remit of unstructured discussions of specific tr ade issues without any time frames. In this way 
it is felt that the returns on the resources that  Members already expend on the WTO will improve, 
thereby enhancing their commitment to the WTO.    It may be noted the HM is not simply a b ilateral engagement between two Members.  The 
HM seeks to build upon the strengths that its  multilateral character bestows on the WTO. 
 
3. In the last paragraph of the answer to quest ion 2, the proponents assert that “[t]he HM 
seeks to build upon the strengths that its multilateral character bestows on the WTO.”  Could the proponents clarify what aspects of the HM are multilateral?  (U.S. – follow-up 
question to answer provided) 
 In the opinion of the proponents the time- bound facilitated problem solving procedures (HM) 
will strengthen the WTO and its Committees by enab ling resolution of NTBs.  Its transparency 
provisions from the first notification through to the submission of the final factual report ensure that 
the larger Membership is kept fully informed of  the issue at hand and the status of discussions 
initiated and pending under the HM process. As well, the procedure is  designed to build capacity, 
institutional memory and foster informed discussion in  the relevant WTO Committee. In this way, the 
multilateral system will be strengthened.   TN/MA/W/110/Rev.1 
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  4. Some Members say that many NTBs remain unsolved not because of the lack of 
facilitators but because Members weak in tention to lift the NTBs. What is the 
cosponsors’ view on this point? Have the cosponsors conducted any analysis on reasons 
for unsolved NTBs? To what extent do th e cosponsors believe the HM would help 
address NTBs in other vertical proposals we are talking about? (China) 
 There are various reasons why non-tariff barri ers exist and why they remain unresolved. The 
experience of the co-sponsors is that if an issu e is taken up in a focused and time-bound manner the 
clarity about the issue and the possibilities of its resolution improve.  It is on this understanding that 
the time-bound facilitated problem solving procedures (H M) have been proposed. It is certainly true 
that if there is little will to remove or reduce the adverse impact of a measure the possibility of its 
resolution is already very dim. We have seen this  happen not just in WTO Committees but even when 
binding Appellate Body or Panel decisions are not  implemented for political compulsions.  In that 
sense, there can of course be no guarantee that the time-bound facilitated problem solving procedures 
(HM) with voluntary outcome will be effective in all circumstances.  The vertical proposals seek to 
improve the existing legal regime as applicable to  the sectors for which the proposals have been made. 
These proposals will work well in tandem with the time-bound facilitated problem solving procedures 
(HM) to comprehensively resolve NTBs.  
5. In circumstances where there may be little political will to address a measure of 
concern, how would the Horizontal Mechanism be effective?  How would it be more 
effective than existing ways to address issues, whether within the WTO system or 
outside? (U.S.) 
 In case of little political will to address any issue,  the possibility of its resolution may be dim, 
as can also be the case in formal di spute settlement.  In that sense, there can of course be no guarantee 
that a HM with voluntary outcome will be effective in all circumstances.  
 
 The idea behind the HM is primarily to have focused and time-bound discussions amongst 
affected Members involved in an issue, with in the framework of a Committee. Through these 
discussions, as a second step, if a solution is possible it should be explored with the assistance of a facilitator and implemented in a WTO-compatible way.    These features make the HM valuable as an a dditional tool not available today and as being 
less formal, lengthy and complex than formal dis pute settlement. Purely informal bilateral trade 
diplomacy remains in the requesting party’s discreti on.  However, all bilateral relations reflect the 
power equation between the parties concerned. To overcome this limitation, big and small countries, 
developed and developing alike, participate in the WTO. For this very reason the proponents, a 
majority of which are developing and least developed countries, prefer to strengthen the systems in 
the WTO and seek solutions in the WTO where they have invested significant resources rather than 
just concentrate on bilateral solutions.    
6. In the last paragraph of the answer to question 5 in this section, it is stated that 
developing and least developed countries “p refer to strengthen the systems in the WTO 
and seek solutions in the WTO where they have invested significant resources rather 
than just concentrate on bilateral soluti ons.”  What systems in the WTO are being 
strengthened by the HM?  How do proponents  respond to the concern raised that an 
important element of the WTO system --- the Committees --- may in fact be weakened by the HM, particularly if the HM can be tr iggered without an initial discussion of an 
issue in the relevant Committee?  (U.S. – follow-up question to answer provided) 
 Given that as a first step, the Chair or Vice Chair of a Committee is proposed to be involved 
as a facilitator, the Committee’s role is strengthene d. In addition, the procedure's transparency TN/MA/W/110/Rev.1 
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  provisions strengthen the Committee's awareness of the issue at hand and the status of discussions 
initiated and pending under the HM process. As well, the procedure is  designed to build capacity, 
institutional memory and foster informed discussion in the relevant WTO Committee. 
  
II. RELATIONSHIP OF THE HORIZONTAL MECHANISM TO THE DSU 
 The proponents emphasize that the procedures of  the Horizontal Mechanism are not intended 
to replace or otherwise affect the Understanding on Rules and Procedures Governing the Settlement 
of Disputes, and Members’ right s and obligations thereunder. 
 
1. In connection to the procedures under DSU,  can this mechanism and DSU procedures 
take place simultaneously? (Korea) 
 Technically speaking, yes. However the par ties seeking such engagement, i.e. discussions 
under the HM during the pendency of a dispute under the DSU and on the same matter, should be realistic about the outcome that they may expect.  The expectation, therefore, is that parallel 
procedures would normally not take place.   
 
2. What are the differences between this mechan ism and the "good offices, conciliation and 
mediation" procedures under Article 5 of the DSU? (Korea) 
 The essential difference is that a procedure under Article 5 of the DSU requires that a formal 
WTO dispute has already been launched, and it al so requires agreement by the responding party. 
Article 5 is part of the DSU and the whole DSU unde r its Article 1.1 applies only to disputes brought 
pursuant to the consultation and dispute settlement procedures of the covered agreements. Therefore, 
Article 5 cannot apply if a formal request for consultations has not already been submitted under 
Article 4 of the DSU. It is precisely the intenti on of the proponents of the HM to allow Members to 
explore the scope for a solution without having to take the formal step of submitting a request for 
consultations under the DSU, which is quite a high threshold and also frames the discussion in a legal 
and adversarial direction. Further, the HM provides a structure which is not available in such detail 
under Article 5 of the DSU.   
 
3. The proposal provides that all informatio n acquired pursuant to Stage II of the 
Horizontal Resolution Mechanism (“HRM”) shall be “confidential” and “without 
prejudice to the rights of any party or other WTO Member in any dispute settlement 
proceeding under the DSU”. (para. 16) Does this discipline cover the information 
acquired pursuant to Stage I of the HRM?  Furthermore, is it correct to understand that this discipline guarantees to Members that any information acquired pursuant to the HRM will not be used in future DS case(s)  in any manner? How does the mechanism 
laid out in the proposal make sure it? (Japan) 
 Stage I of the process is designed to be an in formation exchange stage. It has two functions: 
the first is to gain clarity on the issue and the othe r is for the parties to explore whether they will go 
ahead into Stage II for assisted problem resolution. Being a transparency stage, paragraph 16 does not 
apply to this stage of the process.   Paragraph 16 seeks to protect Members rights under a later dispute, if any.  It is designed to 
balance the need for confidentiality (an important element for problem solving) and information on 
the issue.    Since it is possible that several bits of in formation exchanged in Stage II are factual and 
available publicly, there can be no reason for preventing later access to such information in a dispute. 
The confidentiality provision seeks to protect ideas exchanged; solutions explored; and analysis  TN/MA/W/110/Rev.1 
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  conducted purely from the perspective of finding a solu tion to be used prejudicially later. Since this 
objective is not very dissimilar to that of the TPRM or, even more relevant, consultations in the DSM, 
the proponents have used similar language in  paragraphs 2 and 16 of the proposal.  
 
4. The proposal provides that the facilitator may “offer advice and propose possible 
solutions”, which “shall not pertain to the WTO consistency of the NTB” at issue. 
(para. 15)  Is it correct to understand that such advice or proposal does not include any kinds of interpretation of the Articles of the WTO Agreements?  (Japan) 
 The intention of the HM is to focus on the adve rse trade impact and try and find a solution to 
that in a pragmatic manner, without regard to the legality or illegality of the measure.  Legal 
interpretations or discussions of rights and obligatio ns are not seen to be germane to this intent.  
  It is not excluded that a discussion between the parties on the WTO Agreement takes place 
from the perspective of coverage of issues; etc.  Notwithstanding such discussions on the sidelines, it 
is correct to understand that that advice or proposals of the facilitator will not include any kinds of 
interpretation of the Articles of the WTO Agreements.  
 
5. How could the procedures affect confidenti ality and future dispute resolution? (U.S.) 
 Given that the ideas and analysis exchanged in  the problem solving phase of the process will 
be confidential, the procedures protect confidentiali ty notably relative to future dispute settlement 
procedures. Please refer also to the answer to question 3.  
 
6. From the responses to questions II.3 and 5, it appears that information provided during 
Stage I and even some of the informatio n provided during Stage II would not be 
confidential.  Is this a correct interpretat ion?  For Stage II, who decides what 
information is confidential?  (U.S. – follow-up question to answers provided) 
 As per paragraph 16 of the text , all meetings and information (whether provided in oral or 
written form) during Stage II of the Procedures are confidential. As noted in II.3 above, publicly 
available information would not be subject to this provision. 
 
7. Mutually Agreed Solutions have to be cons istent with the WTO Agreements and not 
diminish rights and obligations of WTO me mbers.  Why didn’t the proponents reaffirm 
these objectives and use for example a language similar to article 3.5 of the DSU?  How 
can those objectives be assured? 
 In the same line, have proponents consid ered the possibility that a non-party to the 
facilitation can be affected with the MAS?   What instruments would be available for 
that party to challenge the MAS? (Chile -  para. 19) 
  Paragraph 19 of the proposed Ministerial Decision stipulates that any mutually agreed 
solutions must be implemented in  conformity with the WTO Agreement.  Of course, non-parties who 
feel affected either in their legal position or other trade interest are free to  raise the matter in the 
available fora.  These include the relevant Comm ittee (see paragraph 20), formal dispute settlement, 
and the HM itself.   III. COVERAGE OF THE HORIZONTAL MECHANISM 
 The Horizontal Mechanism covers all NTBs  affecting trade in goods and falling under the 
remit of the Council for Trade in Goods except for measures regulated by the Agreement on 
Agriculture, countervailing measures, antidumping measures, and safeguard measures (Annex 1). TN/MA/W/110/Rev.1 
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  1. Regarding the trade related characteristics of NTB measures subject to Stage I, 
different languages are used in paragraphs  1 and 6: in paragraph 1 “non-tariff 
barrier …, which it believes adversely affect s its trade” and in paragraph 6, “the 
measure’s impact on trade.” Do the proponents have any reason for using different terms? (Korea) 
 The words “which it believes adversely affects its  trade” relate to defining an NTB.  In the 
later reference, the intention is to indicate the actual “impact on trade” of the NTB in question.   
 
2. With respect to the scope of application, the Doha Ministerial Declaration 
(paragraph 16), Annex B of the Framewor k Agreement, and paragraph 22 of the 
Hong Kong Ministerial Declaration, all only mention NTBs in relation to 
non-agricultural products. The scope here seems therefore self-evident. Could the proponents confirm this understanding? (Korea) 
3. Are there any other reasons beyond the fact that this negotiating body deals with 
non-agriculture products to exclude agricul ture from the scope of the Horizontal 
Mechanism (“HM”)? (Chile) 
 The suggested coverage of the HM reflects th e present structure of the WTO Agreement, as 
well as the type of measures in question.  If the work  in WTO is demarcated between agricultural and 
non-agricultural products as far as market-access nego tiations are concerned, the HM could in theory 
also have been made applicable only to NAMA products. However, given that the WTO Committees 
are structured on the basis of trad e disciplines, rather than product-na ture, and even more importantly 
in view of the nature of the underlying measures in question, such a division does not make sense. 
The exceptions provided are the measures regulated  by the Agreement on Agriculture and specific 
trade defence measures because these types of measur es are not amenable to a solution in the HM. All 
other issues affecting the trade in goods are proposed  to be covered, including SPS matters. NTBs for 
instance on fish and fish products were notified by several proponents as being of specific interest.    4. Would the proponents of the HM view as  appropriate Members making requests under 
the Horizontal Mechanism for the following  issues: automotive engine displacement 
taxes, export taxes and export restrictions, classification issues, private standards, 
import licenses linked to local production, minimum import prices, customs valuation 
issues, preferential rules of origin, nucle ar materials restrictions, port security 
measures, level of mercury in fish, different customs treatment of the same product by 
Customs Union members, administrative delays (U.S.) 
 Any non-tariff measure that is within the remit of a covered WTO Committee or under the 
remit of the Council for Trade in Goods can be raised , i.e. any issue that can be raised and discussed 
in the WTO Committees or the DSM can be raised in  the HM. The proponents do not want to start off 
with a positive or negative list given the complications  of such an approach, which could include an 
unhelpful legal debate at the beginning of a HM pr ocedure on whether an issue is within the agreed 
list or otherwise.    However, Members raising politically sensitive i ssues, such as nuclear materials restrictions 
or other security related matters, should realistically peg their expectations for a solution. The point is, 
if these issues can be resolved in  the WTO even today, albeit in different time-frames, there is little 
reason to exclude them from the HM.     TN/MA/W/110/Rev.1 
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  5. Have the proponents given further consideration to whether certain issues, such as SPS 
matters, should be excluded from the scope of the HM? (U.S.) 
Following extensive discussions amongst the propon ents, the scope as Annex 1 to the present 
draft text has been agreed to. No ch anges are envisaged by co-sponsors.  
 
IV. STAGE I OF THE PROCEDURE 
 Stage I of the problem solving procedure fo cuses on information exchange through request 
and response on a specific NTB.  
1. Is it correct to understand that  “the Members” in this paragraph exclusively means 
requesting and responding Members, and does not include third parties? (Japan - 
paragraph 4)  
 
 Yes, in Stage I “Members” should be understood as meaning only the requesting and responding Members.  2. Can the proponents explain how the sequencing in their proposal helps to facilitate 
problem solving? (U.S.) 
 There is no sequencing suggested by proponents.  The proposal seeks to put in place a 
procedure or a method for problem solving that can be resorted to at any stage by affected Members. It 
can be resorted to even after a matter has been previously discu ssed in the relevant Committee or 
before any such discussion.  
  Regarding the two stages in the proposal, Stage I is identification of the problem and 
exploration of whether a solution is possible. Stag e II is a facilitated dialogue towards achieving the 
solution in a WTO compatible way. Recognizing possible implications of stage II on Members rights 
and obligations, the participation in stage II is not mandatory and can also be terminated even after 
initiation.  The proponents believe that the steps foreseen in the draft Ministerial Decision flow 
naturally from what is the most useful and effectiv e procedure for the purpose of fostering a mutually 
acceptable solution.  
3. How does this paragraph ensure that request s are made based on evidences? (Japan - 
paragraph 6) 
 The requesting Member has to describe the concerns regarding the measures impact on trade 
i.e., it has to provide a detailed description showing that the issue under consideration is a legitimate 
trade concern. In the absence of sufficient details, the possibility of a satisfactory resolution will be 
adversely affected. Transparency through notificat ion to the relevant Committee ensures that the 
requesting Member provides a sufficient justification for the request. 
 
4. Paragraph 9 envisages a situation which involves one requesting Member and one 
responding Member; whereas paragraph 6 provi des for the possibility of more than one 
requesting Member in the case of a joint re quest.  How will paragraph 9 operate in the 
event of a joint request submitted under Stage I? (Singapore – para. 6 and 9) 
 It is true that paragraph 9 has in mind the standard situation where there are two parties. If 
there are two requesting Members, then the procedur e can operate jointly if the parties can agree on a 
joint approach – if they cannot, the procedure will have to be split up and proceed (or not proceed) TN/MA/W/110/Rev.1 
Page 8  
 
  separately, e.g. in the case where one requesting party wants to proceed to Stage II, but the other does  
not.   
5. What information is required to launch a request under the Horizontal Mechanism – for 
example, the nature of the barrier, the pro ducts affected, the trade effects of the 
measure, the relevant WTO agreement?  Would the party launching the request 
indicate what solution they are seeking or – as is suggested by the language of draft 
proposal – is the request solely for the purpose of obtaining information about the measure? (U.S.) 
 The three elements mentioned, i.e., informati on on the nature of the barrier; products affected 
and the trade impact would be crucial for launching  the process.  Further information exchange will 
take place through the exchange of the request and repl y. It is for this reason it is clearly mentioned 
that the request “…shall identify and describe the specific measure at issue and provide a detailed 
description of the requesting Member’s concerns” . The solution will have to be mutually acceptable, 
but generally it will be to remove or reduce the adverse trade impact.   
 
6. Any Member, individually or jointly can put written submission to another party to 
request information on NTBs and requested country is obliged to provide detailed description on measures that have impact on its trade. Detailed description is too specific and will circumvent Members’ flexibilit y. How this proposal can be effectively 
implemented by developing and LDCs due to their limited resources? (Malaysia – 
paragraph 6) 
 The time-bound facilitated problem solving proce dures have provisions that take on board the 
limited resources and related constraints faced by de veloping countries, particularly the LDCs. These 
include due restraint to be exercised by Members in raising matters under the Procedures involving an 
LDC (paragraph 5), flexibility in organization a nd conduct of deliberations under the Procedures 
taking into account the possible capacity constr aints of developing countries (paragraph 13) and 
request for technical assistance from the WTO Secr etariat (paragraph 22). The requested country (or 
responding member) is obliged to provide, to the extent practicable , a written response containing 
comments on the information contained in the request  (Para 7). A description of the issue, as detailed 
as practicable, increases the effectiveness of the pro cedure and enhances the chances of its resolution. 
 
7. What elements of a request should be in a notification which will be circulated among 
the Members in a relevant Committee? Japan is of the opinion that sensitive elements should be dealt only between the parties involved. (Japan - paragraph 8) 
 Stage I of the procedures is for exchange of information. All the information exchanged 
during this stage for gaining clarity on the issue would be non confidential. Sensitive information is 
expected to be shared only during the closed  meetings under the tim e-bound facilitated problem 
solving procedures (HM) in Stage II and these shall be confidential. 
 
At which point does a responding Member have  an opportunity to say its opinion on 
which Committee is the most relevant to deal with the issue in question? 
 
 Upon submission of the written response, the responding Member would need to tell the 
relevant Committee (which has circulated the request ) his opinion of the most relevant Committee to 
deal with the issue in question. 
 
Who bares the cost for a meeting (e.g. meeting place, interpreters, travel expenses) 
addressed in the last sentence? 
  TN/MA/W/110/Rev.1 
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   The costs would be borne in the same ma nner as for any other meeting of the WTO 
Committees. The cost of the facilitator shall be borne as indicated in Annex 2 of the proposal. 
 
8. With regard to the threshold for triggering  this mechanism, under the current proposal, 
a member may launch a Stage I obligatory response process with only two simple 
conditions: the existence of an NTB and its adverse trade effects. Given this low 
threshold, fishing expeditions on other memb ers’ NTBs could take place and impose too 
much burden on the responding member. Coul d the proponents consider raising the 
threshold? (Korea – para. 1 and 6) 
 The issue regarding establishing a threshold is the balance that must be struck between the 
objectives of increasing the participation of smalle r countries, particularly LDCs, and preventing 
fishing expeditions. The interest of these countries typically would be low va lue or relate to small 
businesses when compared to that of the bigger players. Members could consider and place thresholds after some experience is gained during the proposed  built-in review of the HM. Fishing expeditions 
could in theory always take place, also in the fo rm of a request for consultations under the DSU where 
the threshold is similar, and yet it is not a frequent  occurrence.  It would not make a lot of sense to 
raise the threshold for using the HM to such a high level that many WTO Members would in many cases be unable to use the HM.  
9. Also, would a joint request under Stage I not be more likely if the issue in question has 
been discussed by the Committee first? (Singapore) 
 Experience gained in the WTO shows that Memb ers affected by an issue usually coordinate 
their positions.  As such,  a discussion in a Commi ttee is a possibility, but is not essential for joint 
requests.  
10. With regard to the contents of responding  members’ responses, this proposal only 
stipulates that they should include “comments on the information contained in the 
request.”  
 It appears that under the current terms, the responding member has a leeway to provide 
non-substantial and vague statements as a re sponse such as, for example, “the measure 
at issue and its actual trade impact are different from the information presented by the requesting party.” Do the proponents share the above concern?  (Korea – para. 7) 
 
 Yes, the possibility of non-constructive r esponses exists, as it always does. Based on 
experience in the WTO, the proponents however do not think that there are reasons to be overly concerned in this relation. Also, the discussions in  Stage II are moderated by the Chair/Vice-Chairs of 
the relevant WTO Committees. They are expected to  ensure that the discussions are in the right 
direction and outstanding issues, not covered in the written replies, are addressed.  
 
11. Which language may be used to provide information as a response? Members should 
keep in mind that if all relevant information is required to be provided only in WTO languages, requesting Members may not obtain it promptly as translation needs time and resources. (Japan - paragraph 7) 
 As for all Committee work at present, the la nguage to provide information as a response will 
be one of the three official WTO languages. The procedure allows for enough flexibility to take 
account of reasonable delays due to problems of tr anslation. If there is a willingness to solve the 
problem, translation of a document will not be the reason for failing to find a solution.  
  TN/MA/W/110/Rev.1 
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  12. This paragraph states, inter alia, that the parties shall decide whether to proceed to 
Stage II and that Stage II may only be initiated upon mutual agreement of the parties.  However, could the responding Member indica te whether or not it is interested in 
proceeding to Stage II in its initial response de scribed in paragraph 7?  If it does so, 
would the parties nonetheless be obliged to  proceed through the steps described in 
paragraphs 8 and 9?  If so, why, given the additional time and resources that this would 
entail for both parties? (U.S. - paragraph 9) 
 The responding Member could indicate in its initia l response in paragraph 7 whether or not it 
is interested to proceed to Stage II. Depending on the response, it would be up to the requesting 
Member to determine if it wants to proceed through the steps in paragraphs 8 and 9. Notification by 
the requesting Member shall certainly further enhance the work of the relevant Committee by 
highlighting to all Members where difficulties are experienced even when there is no willingness to 
resolve them.  
V. STAGE II OF THE PROCEDURE 
 Stage II of the procedure focuses on assisted pr oblem solving. This voluntary procedure can 
be terminated upon request of either party.  
 
1. We understand and the proponents have repeatedly stated that the HM is a voluntary 
non-binding instrument.  But looking to some of the provisions in the proposal we feel that the parties will have to engage and the voluntary nature could be undermined.  One 
can even see some elements of semi automatism .  In  that sense, shouldn’t the selection 
process of the facilitator be left entirely to the parties’ will so they can select the person 
who they deem is the most appropriate for the job? (Chile)  
 There is no automaticity in the problem solvi ng stage of the Horizontal Mechanism, nor is 
there an obligation to enter into th is stage. Each party can decide whether to engage and even after 
that when to terminate the problem solving procedure.   It is however very important to provide for a 
fallback procedure in cases where the parties are not able to agree on a facilitator, so that the 
procedure does not become deadlo cked for this reason alone.   
 
2. Given that these procedures are to facilitat e a mutually acceptable solution in an 
expeditious manner, would it not be useful  if some guidance on the terms of the 
procedures is provided? (Singapore – para. 11) 
 The proponents believe that the procedures outlin ed in paragraphs 6 to 17 of its proposal 
provide enough guidance striking the balance between standard procedures and flexibility. But if there 
is a genuine need for additional procedures/guidelines that would assist in a timely resolution of the 
NTB concern, which is at the heart/spirit of the proposal, the proponents would be open to 
suggestions from Members.  
 
 3. China would like to invite the cosponsors to elaborate on the role of the third party in 
this mechanism. China notes that Paragraph 11 of the proposal mentions the participation request from a third party. Ho wever, the rights and obligations of the 
third party remain ambiguous. And this ambi guity would prevent the third party from 
guarding either its economic interest s or systemic concern. (China) 
 Given the simplicity of the procedure, it is envisaged that Members with serious and 
significant concern in an issue would participate di rectly in the time-bound facilitated problem solving 
procedures (HM). The concept of Third Party particip ation in the HM is more directed at granting  TN/MA/W/110/Rev.1 
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  transparency to the process and enab ling interested Members to offer their views on the issue at hand. 
To ensure that the basic character istics of the HM, i.e. timeliness and flexibility are retained, the third 
party participation in the procedures may be on the te rms agreed to by the parties. The co-sponsors are 
open to further discussion and definition of third party rights and obligations. 
 4. What rights and obligations do third parties have under the mechanism? (Japan - 
paragraph 11) 
 The third parties would participate in the ti me-bound facilitated problem solving procedures 
(HM) on terms agreed to by the parties.   5. Regarding third party participation is the da te of notification under paragraph 10 or the 
date of circulation of the notification to the members to be considered as the 
starting-point for the 10 day time-limit? (Korea – para. 12) 
 The date of circulation. The question will be  kept on record as a drafting suggestion.  
 6. In the same line, why the tasks of the facilit ator or the steps that she or he has to 
undertake have to be precisely identified?  Could that be a constraint for party to accept a facilitation process?  Shouldn’t the parti es, together with the facilitator, decide the 
appropriate procedure?  Certainly if part ies cannot agree and despite that they are 
willing to continue with the process, some guidelines can be provided to the facilitator. 
(Chile) 
 If the parties have to negotiate the procedur es first and in each individual case, they will lose 
most of the advantages of the Horizontal Mechanis m. Standard procedures are precisely an advantage 
in such situations where the parties have different  underlying interests. This being said, a requesting 
party that does not like the guidance provided in the HM continues to be able to address the issue in a 
purely bilateral setting. There is no obliga tion to invoke the Horizontal Mechanism. 
 
7. Does this paragraph ensure that consultations with relevant experts or stakeholders take 
place if either the requesting or responding Member so requests? (Japan – para. 15) 
 As stated in paragraph 13, the facilitator on  consultation with the parties shall have full 
flexibility in organizing and conducting the deliberations under this Procedure. 
 8. Who bares the cost related to a meeting (e.g. meeting place, interpreters, 
experts/stakeholders’ travel expenses)? (Japan - paragraph 13) 
 The costs would be borne in the same manne r as any other meeting of the WTO Committees. 
The cost of the facilitator shall be borne as indicated in Annex 2 of the proposal. 
 
9. In addition, and although we see that parties can modify the deadlines, why deadlines 
were established for example, during the selection process of the facilitator?  Couldn’t that put pressure on the part ies (especially the requested party) and hence go against the 
voluntary nature of the whole exercise? (Chile) 
 The overall purpose of the HM is to enhance sp eedy problem solving. This requires that there 
are deadlines for each step in the procedure as a default. The procedure strongly relies on the 
assistance in the problem solving stage and therefore th e appointment of the facilitator is a crucial step 
that should not be left open to delays within the procedure.  
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  10. In the event that a Member is refused (by the requesting Member, responding Member, 
or both) third party participation, will that Member be required to initiate Stage I or could that Member initiate Stage II based on the information provided by the responding Member to the requesting Member under Stage I? (Singapore – para. 12) 
 The Member that was refused as a third party will have to start from Stage I since it will not 
have gone through the information exchange process as a party. Note that the Stage I documents are 
notified to the Committee.   
 
11. Given that the Council for Trade in Goods co uld be a relevant body to the measure at 
issue; would it not be better to add “Counc il” to “any WTO Committee” in the fifth line 
of the paragraph for the reference of th e working procedures? (Korea – para. 13) 
 This seems like a reasonable proposal. The question will be kept on record as a drafting 
suggestion.   
 
VI. FACILITATOR 
 The Horizontal Mechanism fo resees that parties are assisted by a facilitator (Chairperson, 
Vice Chairpersons, Friend of the Chair).  
1. Would the elected Chairperson and Vice-Chai rperson (together with the assistance of 
the WTO Secretariat) not be expected possess such technical expertise? (Singapore) 
 The Chairperson and Vice-Chairperson will often possess the technical expertise, but not 
necessarily always. 
 
2. With respect to legal issues generally, the HM  indicates that the facilitator is not to 
provide views on legal issues such as the WTO-consistency of an NTB or possible legitimate objectives for maintaining the measure.  If a Member feels that a particular 
measure it maintains is legally permissible and meets its legitimate objectives, what 
would be the motivation for that Member to change the measure?  (U.S.) 
If a Member feels that a particular measure it maintains is legally permissible and meets its 
legitimate objectives, the Member may or may no t want to enter into the time-bound facilitated 
problem solving procedures (HM). It is not legally bound to enter into such a procedure. The time-
bound facilitated problem solving procedures are intended to be a best endeavour effort on the part of 
the Members concerned.  
 
3. Given that the opinion of the facilitator “any such opinion shall not pertain to the WTO 
consistency of the NTB, the parties' rights and obligations under the WTO Agreement, or to any possible legitimate objectives fo r the maintenance of the measure”, what 
technical expertise would be required of the facilitator?  (Singapore) 
 The technical expertise that would be required of the facilitator would depend on the concerns 
expressed.  Besides technical expertise, the facilitato r should also be prepared to explore and spend 
time to assist the exploration of all avenues to s uggest a timely solution to a concern. The minimum 
requirements are laid down in Annex 2.  The facilitator’s role is to understand the facts, the measure, 
and possible alternatives, rather than WTO legal questions.  
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  4. Annex 2 – Given that the funding of AB Me mbers and panelists are based on different 
criteria, why should the criteria adopted for panelists be applied to non-Chair facilitators? (Singapore) 
 The co-sponsors believe that the role of the fac ilitator is closer to that of an ad hoc serving 
panelist rather than a permanent AB member, hen ce the proposal. The criteria existing for panelists 
are ready to be used and suitable.   
 
5. China also has concerns about the qualificatio n of facilitators. It may come out that 
there would be a surge of initiation of the HM at the beginning of its implementation 
since many pending NTBs may resort to the HM. In that case, how to ensure the 
availability of competent facilitators with expertise? (China) 
 Annex 2 of the time-bound facilitated pr oblem solving procedures (HM) gives the 
background of the facilitator. As pe r paragraph 12, the parties by mutual consent or Chairperson of 
the Council for Trade in Goods after consultation with  the parties would select the facilitator in line 
with Annex 2. This is an automatic check that the facilitator would be well qua lified. Geneva is well 
placed to offer persons with the required qua lifications who could be sourced from Member 
Governments, international orga nizations, regulatory organizations , trade and industry associations, 
trade research agencie, etc.  
6. Under what circumstances is a non-Chai r facilitator requested and can these 
circumstances be codified in textual form to provide guidance and avoid any unintended 
ambiguity? (Singapore – para. 12)  
 As stated in paragraph 12, the preference would be for the Chairperson or the Vice 
Chairperson to serve as facilitator given their competence. A possible circumstance on which a non-
Chair facilitator would be requested by the parties w ould be if one of the parties or both express doubt 
on the technical competence of the Chairperson or Vice Chairperson to assist the parties to find a 
solution to their concern; non-availability of the Chair/Vice Chair due to other engagements; the 
possibility that the Chair/Vice Chairs are citizens of the parties concerned; reluctance of the 
Chair/Vice Chairs due to personal reasons, etc. are some  the possible scenarios. However, given that 
our proposal is a “new” way of trying to resolve an NTB concern, it would be difficult at the early 
stage of the implementation to have a strict codi fication of the circumstances in which a non-Chair 
facilitator would be requested. The review period envisioned in paragraph 24 may provide enough 
experience to determine if a codification of the circumstances would be useful.  
 
7. Will there be an indicative roster list of no n-Chair facilitators which the parties could 
refer to in the event that the parties prefer to request for a non-Chair facilitator? (Singapore) 
 Members may consider establishing a roster b ased on the experienced gained at the Review 
Stage (in para. 24). It may be noted that there are already several Rosters of Experts prepared in the 
WTO.  The efficacy of the present Rosters in providi ng relevant experts for an issue could also feed 
into the Review. 
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  8. Why the proponents have not included a requirement to consult first with the parties if 
the facilitator wants to request the assistance of the WTO Secretariat, as is the case for 
external expertise or stakeholders?  What kind of assistance could provide the WTO Secretariat?  Would the WTO Secretariat have additional roles throughout the process, 
for example during the selection process of the facilitator?  Who is the WTO 
Secretariat?  The Secretariat of the relevant Committee or a dedicated Division that will 
be in charge of logistical issues – for e xample travel arrangements for facilitators – 
budget, archives as well as substantive support  and technical assistance for developing 
countries? (Chile – para. 15) 
 The proponents wish to outline some of the po ssibilities open for the facilitator to call in. In 
order to devise possible solutions, the facilitator may need information that is best provided by the 
WTO Secretariat. The WTO Secretariat has the role  of assisting the facilitator if the facilitator so 
desires. The ‘WTO Secretariat’ refers to the Division servicing the concerned WTO Committee to 
which the issue has been notified. No dedicated Division is proposed. All logistical support, including co-ordination with other Divisions of the WTO,  will be provided by the concerned Division. 
   
9. Also, should the criteria for non-Chair fa cilitators not be adopted by the General 
Council, based on recommendations of the Committee on Budget, Finance and 
Administration (see WT/L/76 – Procedure for decisions having financial implications 
which may be taken by WTO bodies)? (Singapore) 
 The proposed decision is not one for a WTO body to take, but rather a Ministerial Decision.  
The proponents do not have in mind the adoption of new criteria.  Those existing for panelists are 
there and ready to be used.  
VII. FACILITATOR'S FACTUAL REPORT 
 The facilitator shall issue to the parties, in wr iting, a draft factual report. After considering the 
comments of the parties, the facilitator shall submit, in writing, a final factual report to the relevant 
WTO Committee.  
1. What is the object and purpose of the repo rt of the facilitator?  Being a voluntary 
mechanism, why should the facilitator only “take into consideration” the comments of 
the parties to its draft factual report?  Wo uldn’t the parties lose control of the whole 
(voluntary) process if their comments are not binding to the facilitator?  What if the 
parties have joint agreed comments?  Shouldn’t the final report reflect or include only those elements that the parties feel are nec essary to reach a mutually agreed solution?  
Nevertheless a balance will have to be found with the need for minimum transparency for the rest of the WTO members. (Chile – para. 18) 
 The particular strength of the facilitator in assi sting the parties in finding a solution is exactly 
his independence from their influence. If there is a solution, the facilitator has no interest in not 
accepting comments by the parties, in particular if they are jointly agreed. The Horizontal Mechanism 
is not a purely bilateral procedure. In particular, proponents have wished to create the highest possible 
transparency of the procedure with regard to the relevant Committees whilst balancing the interest of 
other WTO Members with the interests of the par ties to come to a mutually agreed solution. 
 2. What is the legal nature and function of th e facilitator’s draft factual report? (Korea) 
 There is no legal nature to the facilitator’s dr aft factual report.  Its purpose is to allow the 
parties to see the report before it is finalised.   
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  3. What is the object and purpose of the facilit ator’s report if the parties couldn’t reach a 
mutually agreed solution? If the facilitator has to provide such a report, wouldn’t there 
be a risk that she or he could prejudge or give  some clues of the reasons for the lack of a 
mutually agreed solution (especially consideri ng that the facilitator is not bound by the 
comments of the parties to th e draft factual report)?  Shouldn’t the parties notify to the 
relevant Committee the end of the process and the lack of a solution?  If the role of the 
facilitator should be limited to help the parties find a solution, why do the proponents think that she or he has to provide notifi cations to the relevant Committees? (Chile) 
 Proponents highly value the work of Committees. In particular in cases where the HM would 
not deliver the desired speedy solution of a problem,  it is likely that the requesting party that still 
suffers the consequences of not finding a solution mi ght wish to raise the problem in the Committee. 
It is therefore a reasonable use of resources that the factual report covers the aspects of the issue discussed. Paragraph 18 of the HM is very specific about the information that should be included. The 
submission of the final factual report does also  allow the Committee to build up an overall 
appreciation of issues existing under its remits, bot h those resolved and those not resolved. The 
Committee could focus on the difficult issues with po ssible systemic implications that could not be 
addressed by the Horizontal Mechanism. 
 
4. The proposal states that the facilitator sh all submit its final factual report to the 
relevant WTO Committee. (para.18). Is it co rrect to understand that the final factual 
report does not have any impact on factual fi nding to be made by the panel in the future 
DS case(s)?  How does the mechanism laid out in the proposal make sure it? (Japan) 
 The factual report of the facilitator is designed to simply state the issue; the process followed 
and the solution agreed to, if any. The internal deliberations during Stage II will remain confidential.  
Currently, the factual report can possibly be used in  DS, as it contains factual information, which the 
procedure may have revealed and which cannot afterw ards be deleted from people’s memories.   This 
being said, the factual report does not bind any panel that is tasked to independently establish facts, 
thus the proponents are ready to reconsider this aspect. 
 
 To ensure that the report is factual and to pr otect member’s interests, the parties have been 
given the right to comment on the report.   5. Who is responsible for writing a factual report in case Stage II is terminated or parties 
reach a mutually agreed solution before th e appointment of facilitators? (Japan - 
paragraph 18) 
 If the Stage II is initiated and then terminated , the Facilitator appointed will write the factual 
report. However, in case there is a MAS even before a facilitator is appointed, i.e. before the Stage II 
is initiated,  de facto  there will be no need for a Report.  
 
6. Given that all information acquired during the proceedings of Stage II shall be 
confidential, it seems that the facilitator canno t include it in the factual report. Hence, 
what kind of information can we find in this  report other than procedural aspects? 
(Korea) 
 A factual report outlining the problem faced, pro cedure followed and the so lution agreed to, if 
any. This is deemed by the proponents to be the b est way to balance the needs of transparency and 
confidentiality.  
 
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  VIII.  DISCUSSION IN COMMITTEE AND IMPLEMENTATION OF SOLUTIONS 
 The Horizontal Mechanism is designed to preserve and indeed strengthen the present WTO 
structures (e.g. Committees). Its procedures shall be applied in the context of relevant WTO Committees. The relevant WTO Committee is the one overseeing the operation of the WTO 
agreement most closely related to the measure at is sue. If there is no such Committee for a particular 
measure, the request shall be notified to the Council for Trade in Goods. In view of the importance of 
Committees, the proponents refer to them no less than  20 times in a total of 25 paragraphs of the 
Horizontal Mechanism. 
 
1. Paragraph 8 states that the Member making  a request under the HM shall notify its 
request to the relevant Committee, which wo uld then circulate the request to all 
Members.  What is the role of the Committee at that point?  (U.S.) 
Paragraph 8 additionally states that the response to the request would also be notified to 
the relevant Committee, and then circulated to all Members.  What is the role of the Committee at this point? (U.S.) 
Co-sponsors would like to reiterate that th e proposal on time-bound facilitated problem 
solving procedures (HM) is meant to strengthen the wo rk of the relevant WTO Committees.  It is well 
known that the functioning of the Committees could be improved to make it responsive to the needs 
of Members to resolve NTBs in an expeditious manner.  The purpose of the notification to the 
concerned Committee at the two stages mentioned in the question i.e. of a request and response to the 
HM procedures is to ensure transparency and to  keep all the WTO Members fully informed of a 
process that is underway and may be relevant to the Committee’s work. Individual Members may 
wish to take note and decide upon their interest  in the issue under consideration based on the 
notifications made . 
  
 Finally, paragraph 8 states that upon request of either party, both Members must meet 
with the Chairperson or Vice Chairperson of the relevant Committee.  Why is it 
necessary to require a meeting with the Chairperson at this stage, before the parties have agreed to initiate Stage II?  How wo uld this add to existing problem-solving 
mechanisms, such as the existing ability of a Member to request that a Chairperson use his or her good offices? (U.S.) 
 
Please note that the meeting with the Chairper son or Vice Chairperson is upon request by 
either party and not a requirement.  Co-sponsors believ e that if either party request for a meeting with 
the Chair or Vice Chairperson of a Committee even be fore the parties have agreed to initiate Stage II 
procedures, it is with the hope that the problem may be solved without the need to proceed to Stage II 
procedures. The problem solving procedures are different from the existing ability of a Member to 
request that a Chairperson use his or her good o ffices because the present concept of good offices is 
very much linked to the DSU process which is exac tly what the HM proposal would like to avoid. 
 
2. Paragraph 18 states that the facilitator will submit a final factual report to the relevant 
Committee.  What is the role of the Committee at that point?  (U.S.) 
 The final factual report is submitted to th e Committee for transparency purposes and for 
information. 
 
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  3. Can the Horizontal Mechanism proponents  lead Members through the facilitation 
procedures in a hypothetical Horizontal Mechanism request – for example, what if an issue was raised that had been in front of Committees extensively in the past.  What sort 
of advice or proposed solution could the facilitator be expected to provide (see HM paragraph 15(a))? (U.S.) 
 There are various reasons why an issue can be before a Committee fo r a longish time-frame 
without resolution.    A Facilitator can take into account the info rmation sought/ exchanged already and help the 
concerned Members focus on the solution, if there is one, within the time frame that is offered here in 
terms of paragraph 15 (a).   
 
4. Notifications pursuant to this Decision and the facilitators’ final factual reports shall 
constitute regular items on the agenda of the relevant WTO Committees.  The US has submitted a communication (JOB(08)/45) proposing a “Committee First” requirement 
i.e. for the issue to be placed on the ag enda of the Committee and for the Committee to 
discuss it first.  One key consideration is the issue of time-lag between putting the item on the agenda and the Committee discussion.  Would additional regularly-scheduled Committee meetings or special meetings not help to address the issue of time-lag? (Singapore – para. 20) 
 The proponents believe that the concern they are trying to address in the proposal  is not just 
about time-lags in the Committee meetings but tim ely and time bound  consideration of a concern. 
Based on the historical workings of the Committee s, more meetings do not necessarily lead to the 
resolution of a concern.  Thus, it may be unwarra nted to impose more frequent meetings than the 
Committee's other work justifies or to delay a pr ocedure until the next regular meeting.  But the 
requesting party can always choose to go to the Committee first, and may sometimes or even often 
have a good reason to do so.  This, however, should not be prescribed. 
 
5. It seems that “exchange of views amongst Members in the relevant WTO Committee” 
and Stage I or II can take place simultaneously.  If such is the case, one of them could be 
nominal rather than play a substantial role in resolving issues.  
 In connection to this, could the proponents consider the “committee first” proposal by 
the United States as an alternative in order to address this problem? (Korea  - para. 21) 
 
6. The US proposal on “Committee First” highlights a series of objectives and benefits 
such as Institutional Expertise, Multila teral Discussion, Timing and Cross-Cutting 
Discussions among others.   Do proponents consider them relevant and if that is the case, 
how does the Horizontal Mechanism fulfil th ose same objectives and provide the same 
benefits? (Chile)  
 Pursuing a matter in multiple forums is not prevented now and it is not proposed to be 
prevented in the future either. It is for individua l Members to decide on the forum where they foresee 
the best results for their problems and pursue a matter there.   
 The proponents are providing their views on the U.S. ‘Committee-First’ proposal separately.  
The proponents have addressed however in these responses herewith provided specific questions 
relating to the institutional expertise regarding the facilitator and WTO Secretariat, participation of 
third parties in the procedure, timing, and notificatio n at the various stages as well as information to 
the relevant Committees at the end of the problem solving procedure.  TN/MA/W/110/Rev.1 
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  7. Could the proponents explain what does it mean that the MAS has to be implemented in 
conformity with the WTO Agreements?  Does  it mean that the parties have all the 
recourses and instruments provided for in the WTO Agreement to enforce the MAS, including the DSU?  Does it mean that the facilitator has to suggest or explain how the 
parties have to implement the MAS?  (Chile – para. 19) 
 No, by no means any of the above.  It means that the parties are not entitled to depart from 
WTO obligations in implementing the MAS.  
8. In Article 23 of the latest HM text, it states that “…each Committee to which this 
Decision applies may decide, by consensus, to  modify certain procedural aspects of this 
Decision.”  Would the proponents clarify what is meant by “certain procedural 
aspects”?  (U.S.) 
 Given that the time-bound facilitated problem so lving procedures (HM) would be applicable 
to a variety of disciplines, the proponents have agreed upon and proposed a simple template that 
should apply, in their opinion, to all the relevant Committees. However, it is certainly possible that a 
specific Committee may, considering its past experi ence, by consensus agree to alter certain aspects 
of the procedure.  Proponents are open to such po ssibilities. Members may agree to specify or alter 
aspects, such as the default time lines proposed, po ssible qualification requirement for facilitators, 
confidentiality of submissions etc. by consensus.  
__________