RESTRICTED  WORLD TRADE  
ORGANIZATION  S/CSC/W/56 
10 November 2009 
 
 (09-5595) 
Committee on Specific Commitments Original:   English 
  
 
COMMUNICATION FROM SWITZERLAND 
 
The Relationship between “Old Commitments” and “New Commitments” of the GATS 
 
and the Conclusion of the Doha Round Negotiations  
 
 
 The following communication, dated 9 November  2009, from the delegation of Switzerland is 
being circulated to the Members of  the Committee on Specific Commitments. 
 
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I. INTRODUCTION 
1. The objective of this paper is to creat e a common approach among Members on the 
relationship between “old commitments” and “new commitments”, with a view to facilitating the 
conclusion of the Doha Round services negotiations. 
2. The main advantage of the approach presented in this paper is that it makes clear by 
excluding all possibility of doubt that the Doha round services negotiations are used for the purpose of 
Article XIX GATS only, namely the achievement of  a higher level of liberalization of trade in 
services.  The approach proposed is pragmatic and prac tical.  It ensures that with the conclusion of the 
Doha round, a situation is created which guarantees a high degree of legal certainty and transparency 
with respect to specific commitments of Members. 
II. “CURRENT INSTRUMENTS” AND “DOHA INSTRUMENTS” 
3. As observed by the Secretariat in Document  S/CSC/W/33 of 3 June 2002, “many Members 
have made changes to their original Uruguay Round or accession schedules of commitments.”  These 
changes resulted chiefly from the extended nego tiations on the movement of  natural persons (1995), 
on maritime services (1996), on financial services (1995 and 1997) and on basic telecommunications 
(1997).1 As a consequence of those changes, a large number of Members maintain GATS 
commitments in more than one single document.2  In the following, the term “current instruments” 
refers to any instruments in which Members inscrib ed their specific commitme nts currently in force. 
4. With the conclusion of the Doha Round, Me mbers will inscribe specific commitments in 
another instrument.  That instrument will here inafter be referred to as “Doha instrument”. 
                                                      
 1 S/CSC/W/33 Para 2. 
 2 S/CSC/W/33 Para 5. S/CSC/W/56 
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  III. THE “REPLACEMENT METHOD” 
5. The replacement method, as described by the S ecretariat in S/CSC/W/33, implies that the 
“Doha instrument” shall incorporate both “existin g ‘unmodified’ commitments [set out in “current 
instruments” already] and ‘improved or new’ co mmitments resulting from the current [Doha round] 
negotiations”.
3  
6. It must be emphasized, however, that the repl acement method does “not necessarily mean that 
existing schedules with commitments currently in for ce would be completely irrelevant in relation to 
the commitments they contain”.  As explained by the Secretariat in S/CSC/W/33, the “scope of the 
‘replacement’” still remains to be defined.4  Insofar, the term “repl acement method” is somewhat 
misleading. 
7. Hence, should Members favor the “replacement  method”, they must then decide on the 
implication of this approach for the relationship between the “old commitmen ts” currently in force 
and contained in “current instruments” and the “new commitments” inscribed in the “Doha schedule”.  
That said, it needs to be said th at “replacement method” is not a concept of WTO law and should not 
be attributed too excessive a weight, beyond its practical value to facilitate the discussion among 
Members. 
IV. ABSENCE OF MANDATE TO DETERIORATE SPECIFIC COMMITMENTS 
8. In determining the extent to which “old co mmitments” in “current instruments” shall be 
replaced by “new commitments” in “Doha instru ments”, it is clear that there is no mandate 
authorizing Members to define or to implement the “replacement me thod” in a manner that may allow 
to deteriorate their specific commitments currently in force and inscribed in  “current instruments”.  
9. First, the general mandate for all rounds of services negotiations, according to Article XIX 
GATS, is to achieve “a progressively higher level of liberalization”.  The negotiations “shall be 
directed to the reduction or elimination of the a dverse effect on trade in services of measures as a 
means of providing effective market  access”.  Almost the same langua ge was used in Paragraph 1 of 
the Guidelines and Procedures for the Negotiations (S/L/93).5  
10. Second, the mandate adopted for the Doha R ound services negotiations too does not empower 
Members to deteriorate specific commitments cu rrently in force and inscribed in “current 
instruments”.6 
11. Under the GATS, a Member may well “modify or withdraw” its specific commitments 
currently in force, but it may only do so accordi ng to the procedure set out in Article XXI GATS. 
12. Unless the procedure set out in Article XXI GATS has been duly observed, specific 
commitments currently in force contained in “cu rrent instruments” may thus be replaced by the 
specific commitments set out in “Doha instruments” onl y to the extent that such replacement does not 
undermine WTO Members’ specific co mmitments currently in force.7  
                                                      
 3 S/CSC/W/33 Para 26. 
 4 S/CSC/W/33 Para 32. 
 5 S/CSC/W/33 Para 7. 
 6 S/CSC/W/33 Para 8. 
 7 S/CSC/W/33 Para 8.  S/CSC/W/56 
 Page 3 
 
 
  V. LANGUAGE TO BE INCLUDED IN THE SIXTH PROTOCOL 
13. The commitments inscribed in the “Doha inst rument” will be incorporated into the GATS 
through a Protocol, namely the “Sixth Protocol”.  All Members’ “Doha instruments” will be annexed 
to this Protocol.  This approach is in accordan ce with past practice on the incorporation of specific 
commitments.8 
14. It is desirable to clarify explicitly and confirm that no specific commitments currently in force 
may be deteriorated with the conclusion of the Doha Round services negotiations, and the Sixth 
Protocol should include a clear language in this respect.  
15. A language on “Application of successive specifi c commitments relating to the same subject 
matter” should clarify the following issues or facts: 
(a) A Member’s specific commitments inscribed in the relevant instrument annexed to 
the Protocol supersede that Member’s sp ecific commitments in force prior to the 
entry into force of the Protocol to the extent that they confirm, improve or add to the market access, national treatment and othe r rights that Member grants to other 
Members by virtue of specific commitments in force prior to the entry into force of 
the Protocol;  
(b) As a consequence, a Member’s specific commi tments in force prior to the entry into 
force of the Protocol prevail to the extent  that they accord more favorable market 
access, national treatment and other rights th an those inscribed in the instrument 
annexed to the Protocol; 
(c) This is without prejudice to modification or withdrawal of specific commitments 
according to the procedure set out in Article XXI of the GATS. 
VI. VERIFICATION EXERCISE 
16. Switzerland is convinced that Members act in g ood faith and are cautious to avoid errors in 
their “Doha instrument” including deteriorations of specific commitments.  Nonetheless, Switzerland 
supports the idea that an appropriate verification exercise should be carried out with a view to 
eliminating possible errors in Member’s final schedules. 
17. In spite of the verification exercise, Switzerland finds it not safe enough to assume that the 
“Doha instruments” will not contain any errors, in cluding specific commitments which accord, or may 
be construed to accord, treatment less favorable th an that provided under “current instruments”.  That 
is why Switzerland is of the view that the inclusio n of an explicit language in the Sixth Protocol is 
important. 
VII. HOW FAR MAY INTERPRETATION RULES HELP ? 
18. Some have asked whether interpretation rules may help solve the issu e described in this 
paper.  Interpretation rules are fundamental to unde rstand the meaning of a given legal provision, but 
only provided that the meaning is unclear or ambiguous.  In the absence of any ambiguity there is no ground to resort to interpretation rules.  For ex ample, if the wording of a “new commitment” is 
unambiguous but that commitment actually accords a less favorable treatment than an “old 
commitment”, then interpretation rul es may not help resolve the problem. 
                                                     
 
 8 S/CSC/W/33 Para 6. S/CSC/W/55 Section I. S/CSC/W/56 
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  VIII.  FOLLOW UP 
19. Switzerland proposes to Members to consider the a pproach set out above with a view to find 
an agreement on a language on “Application of successi ve specific commitments relating to the same 
subject matter” to be included in the Sixth Protocol. 
 
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