WORLD TRADE  
ORGANIZATION  TN/MA/W/106/Rev.1 
3 February 2010 
 (10-0573) 
Negotiating Group on Market Access Original:   English 
  
 
MARKET ACCESS FOR NON-AGRICULTURAL PRODUCTS
 
 
MINISTERIAL DECISION ON PROCEDURES FOR THE FACILITATION OF 
SOLUTIONS TO NON-TARIFF BARRIERS  
 
Communication  from the African Group, Cana da, European Union, LDC Group, NAMA-11, 
Group of Developing Countries, New Zeal and, Norway, Pakistan and Switzerland 
 
Revision  
 
 
 The following communication, dated 3 February 20 10, is being circulated at the request of the 
delegations of the African Group, Canada, Eu ropean Union, LDC Group, NAMA-11, Group of 
Developing Countries, New Zealand, Norway, Pakistan and Switzerland.  
_______________ 
 
 
MINISTERIAL DECISION ON PROCEDURES FOR THE FACILITATION OF 
SOLUTIONS TO NON-TARIFF BARRIERS 
 
Ministers , 
  Recalling that in paragraph 16 of the Doha Mini sterial Declaration, Annex B of the 
Framework Agreement and paragra ph 22 of the Hong Kong Ministerial Declaration, Members agreed 
to negotiations on, inter alia , reduction or as appropriate elimin ation of non-tariff barriers, in 
particular on products of export in terest to developing countries, 
  
Conscious of the fact that non-tariff measures vary significantly in form, effects and 
objectives, and that non-tariff measures can serve legitimate and important purposes pursued by 
Members, whilst non-tariff measures may also c onstitute barriers that affect market access 
opportunities for other WTO Members and potentially impair benefits sought to be achieved from the 
reduction or elimination of tariffs, 
  
Recognizing that flexible and expeditious procedures of  a conciliatory and non-adjudicatory 
nature, involving a facilitator, may promote mutu ally acceptable solutions to Members' concerns 
regarding non-tariff barriers that aid exporters  and importers, while respecting the legitimate 
objectives of the Members maintaining the measures,  
 Recognizing  that these procedures neither alter nor  address the rights and obligations of 
Members under the WTO Agreement, 
 
Recognizing  that these procedures build upon and further the objectives of existing 
procedures in WTO bodies, 
 TN/MA/W/106/Rev.1 
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  Emphasizing that the procedures under this Decision are not intended to replace or otherwise 
affect the Understanding on Rules and Procedur es Governing the Settlement of Disputes, and 
Members’ rights and obligations thereunder, 
 
Decide  as follows: 
 
G
ENERAL PROVISIONS  
1. Pursuant to this Decision, any Member  may seek to address through recourse to the 
procedures set out below its concerns regarding any non-tariff barrier (‘NTB’), as specified in 
Annex 1 of this Decision, which it be lieves adversely affects its trade. 
  
2. These procedures shall neither enforce any ri ghts or obligations under the WTO Agreement 
nor add to or diminish the rights and obligations  of Members, and shall be without prejudice to 
Members’ rights and obligations under the Unde rstanding on Rules and Procedures concerning the 
Settlement of Disputes ("DSU"). They are not intended to serve as a basis for the interpretation 
or the enforcement of specific obligations und er the WTO Agreement or for dispute settlement 
procedures, or to impose new po licy commitments on Members. 
3. These procedures shall be applied in the context of relevant WTO Committees1.  
 4. Any time limit referred to in this Decision ma y be modified by mutual agreement between the 
Members involved in these procedures.  
 
5. At all stages of these procedures, the special  situation of least-developed country Members 
involved in these procedures shall be given particular  consideration. In this regard, Members shall 
exercise due restraint in raising matters under these procedures involving a least-developed country 
Member and solutions explored shall take into consideration the specific situation of the least-
developed country Member involved, if any.  
 
P
ROCEDURES FOR ADDRESSING CONCERNS REGARDING NTB S 
Stage I:  Request and Response on a Specific NTB  
 
6. Any Member (the ‘requesting Member’) may, individually or jointly with other Members, 
initiate Stage I of these procedures by submitting in writing to another Member (the ‘responding 
Member’) a request for information regarding a non-tariff barrier. The request shall identify and 
describe the specific measure at i ssue and provide a detailed description of the requesting Member's 
concerns regarding the measure's impact on trade.   
7. The responding Member shall provide, within [2 0] days, to the extent practicable, a written 
response containing its comments on the information contained in the request.  Where the responding 
Member considers that a response within [20] days  is not practicable, it shall inform the requesting 
Member of the reasons for the delay, together with  an estimate of the period within which it will 
provide its response.    
8. Upon submission, the requesting Member sh all notify its request to the relevant WTO 
Committee
2, which shall circulate it to all Members.  The responding Member shall equally notify its 
                                                      
1 The relevant WTO Committee is the one overseeing the operation of the WTO agreement most 
closely related to the measure at issue. If there is no such Committee for a particular measure, the request shall 
be notified to the Council for Trade in Goods.  TN/MA/W/106/Rev.1 
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  response to the relevant WTO Committee, which sh all circulate it to all Members. Following the 
receipt of these notifications, upon the request of either the requesting or the responding Member (hereinafter referred to as “the parties”), the Ch airperson or one of the Vice Chairpersons of the 
relevant WTO Committee shall convene  a meeting with the parties to inter alia  address any 
outstanding issues and explore possible next steps. 
 
Stage II:  Resolution Procedures 
 
9. Following this initial information exchange unde r Stage I, the parties shall decide on whether 
to proceed to Stage II of these procedures. Stag e II of these procedures ma y only be initiated by 
mutual agreement of the parties. However, if one of the parties requests to proceed to Stage II of these 
procedures, the other party shall accord symp athetic consideration to that request.  
 10. The parties shall notify any decision to pro ceed to Stage II to the relevant WTO Committee, 
which shall circulate it to all Members .     
 
11. Any other Member may submit a written request  to the parties, within [10] days of 
notification under paragraph 10, that  it be permitted to participate in these procedures as a third party.  
Such other Member may participate in these proce dures if both parties so agree and on the terms 
agreed to by the parties.  
11bis.  Once initiated, Stage II shall be term inated upon request of either party. 
 
Appointment of a Facilitator 
 
12. Upon their agreement to initiate Stage II of these procedures, the parties may request that the 
Chairperson of the relevant WTO Committee, (or if  it is unclear which agreement is most closely 
related, the Chairperson of the Council for Trade in Goods), or one of the Vice Chairpersons, serve as 
facilitator. Alternatively, the par ties may request that a Friend of th e Chair agreed upon by the parties 
serve as facilitator. If the parties cannot agree on th e appointment of a facilitator within [15] days of 
the initiation of Stage II of these procedures, and if on e of the parties so requests, the [Chairperson of 
the Council for Trade in Goods] shall appoint the fac ilitator within an additional [10] days and after 
consulting the parties. The selection of facilitator sha ll take place in accordance with Annex 2 of this 
Decision.  
Seeking Mutually Agreed Solutions 
 13. The facilitator, in consultation with the par ties, shall have full flexibility in organizing and 
conducting the deliberations under these procedures, which normally should take place at the WTO 
headquarters, unless the parties agree on any other place of mutual convenience, taking into account 
possible capacity constraints of developing country pa rties. The facilitator and the parties may rely on 
existing working procedures of any WTO Committee con cerned, to the extent they are relevant for the 
prompt resolution of the NTB in question. Vide o conferencing and other telecommunication facilities 
may be utilized, if considered suitable and agreed to between the parties.  
 14. Either party may present to the facilitator a nd the other party any in formation that it deems 
relevant. 
                                                                                                                                                                    
 
2 If the Committee to which these communications were notified considers itself not to be the relevant 
Committee, it shall forward the notifications to the Co mmittee overseeing the opera tion of the WTO agreement 
most closely related to the measure at issue, or if it is  unclear which WTO agreement is  most closely related, to 
the Council for Trade in Goods. TN/MA/W/106/Rev.1 
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  15. In assisting the parties, in an impartial and tr ansparent manner, in bringing clarity to the NTB 
concerned and its possible trade-related impact, the facilitator may:   
(a) offer advice and propose possible solutions for the parties’ consideration, taking into 
account the information presented by the parties; provided  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 leg itimate objectives for the maintenance of 
the measure;  
 (b) organize meetings between, and meet individuall y or jointly with, the parties, in order 
to facilitate discussions on the NTB and to assist in reaching mutually agreed 
solutions;  
 (c) seek assistance of the WTO Secretariat and, after consulting with the parties, consult 
with relevant experts and stakeholders; and 
 
(d) provide any additional support requested by the parties.   
 16. The parties shall endeavour to reach a mutu ally agreed solution within [60] days from the 
appointment of the facilitator. Pending final resoluti on of the NTB, the parties may consider possible 
interim solutions, especially if th e NTB relates to perishable goods. 
 
Confidentiality 
 
17. All meetings and information (whether provided in oral or written form) acquired pursuant to 
paragraphs 14, 15 and 16 of these procedures shall be  confidential and without prejudice to the rights 
of any party or other WTO Member in any dispute settlement proceeding under the DSU. The 
obligation of confidentiality does not extend to fa ctual information already existing in the public 
domain.  17bis.  Nothing in this Decision shall require Me mbers to disclose confidential information, 
which would impede law enforcement  or otherwise be contrary to the public interest or would 
prejudice the legitimate commercial interests of  particular enterprises, public or private. 
 17ter.  Any third party admitted to the procedur es under paragraph 11 shall be bound by the 
confidentiality requirements pursuant to these procedures. 
 
Outcome and Implementation 
 
18. Upon termination of Stage II of these procedur es by a party or in the event that the parties 
reach a mutually agreed solution, the facilitator shall issue to the pa rties, in writing, a draft factual 
report, providing a brief summary of (1) the NTB at  issue in these procedures; (2) the procedures 
followed; and (3) any mutually agreed solution re ached as the final outcome of these procedures, 
including possible interim solutions. The facilitator shall provide the parties [15] days to comment on 
the draft report. After considering the comments of the parties submitted within the period , the 
facilitator shall submit, in writing, a final factual report to the relevant WTO Committee within [15] 
days of receiving the comments. The factual repor t shall not provide any interpretation of the 
WTO Agreement regardless of any prior reports of the panels or the Appellate Body of the 
DSU.  
19. If the parties reach a mutual ly agreed solution, such solu tion shall be implemented in 
conformity with the WTO Agreement.    TN/MA/W/106/Rev.1 
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  FINAL PROVISIONS  
Transparency 
 
20. Notifications pursuant to this Decision and the facilitators’ final factual reports submitted to 
the relevant WTO Committees pursuant to this Decision shall constitute regular items on the 
agenda of the relevant WTO Committees. Adequate opportunity shall be provided for an exchange of 
views amongst Members in the relevant WTO Committee.  21. For the purpose of transparen cy, the Chairpersons of the re levant WTO Committees or, when 
applicable, the Council for Trade in Goods shall pr ovide to Members, on an annual basis, a status 
report of notified requests and r esponses and of ongoing and recently completed procedures, together 
with a list of any reports from facilitators.   
Technical Assistance 
 22. Developing country Members and in par ticular least-developed country Members may 
request assistance from the WTO Secretariat to promote their understanding of the use and 
functioning of these procedures. Technical assist ance required by least-developed country Members 
will be made available through the Technical Assistance Programmes of the WTO. Developed 
country Members are encouraged to provide technical assistance , inter alia , to share with developing 
country Members their experience for effective participation in these procedures. 
 
Application and Review 
 
23.  The Council for Trade in Goods and the relevant Committees
15 shall apply this Decision and 
implement it within the framework of their work fro m the date of the adoption of this Decision.  The 
Council for Trade in Goods and each Committee to which this Decision applies may decide, by 
consensus, to modify certain procedural aspects of this Decision.  Any modifications shall apply only 
within the Council or Committee that has adopted the modifications and only to procedures initiated 
after the date of effectiveness of the decision on the modifications.  
 24. In light of experience gained from the opera tion of these procedures, the [Council for Trade in 
Goods] will undertake a review of the effectivene ss of the procedures under this Decision no later 
than [5] years after the adoption of this Decisi on. Based on this review, Members may decide on 
whether to extend these procedures to other matte rs falling under the WTO Agreement or otherwise 
modify these procedures.  
Annex 1
 
 
 These procedures shall cover all NTBs affecti ng trade in goods and falling under the remit of 
the Council for Trade in Goods, except:  
• Any measure regulated by th e Agreement on Agriculture; 
• Countervailing measures adopted pursuant to Part V of the Agreement on Subsidies 
and Countervailing Measures; 
• Antidumping measures within the meaning of Article 1 of the Agreement on 
Implementation of Article VI of the GATT 1994;  and 
• Safeguard measures within the meaning of Article 1 of the Agreement on Safeguards. 
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  Annex 2
 
 
 In so far as the facilitator agreed upon by the parties or appointed by the Chairperson of the 
Council for Trade in Goods in accordance with paragr aph 12 of this Decision is not the Chairperson 
of the relevant WTO Committee, or one of the Vice Chairpersons: 
 
1. Facilitator shall be well-qualified govern mental or non-governmental individuals. 
 2. Facilitator shall serve in their individual capacity and not as government representatives, nor 
as representatives of any organization.  
 
3. Facilitator shall not be citizens of Memb ers whose governments are parties to these 
procedures, unless the parties agree otherwise.  4. Facilitator’s expenses, including travel and subsistence allowance, shall be met from the 
WTO budget in accordance with the criteria adopted  for panellists under Article 8.11 of the DSU. 
  
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