WORLD TRADE  
ORGANIZATION  TN/CTD/W/29 
9 June 2006 
 
 (06-2768) 
Committee on Trade and Development 
Special Session Original:   English 
 
 
 
ANALYSIS OF THE TWENTY-EIGHT AGREEMENT-SPECIFIC PROPOSALS 
 
Communication by Kenya on behalf of the African Group  
 
 The following communication is being circulated at the request of the Delegation of Kenya on 
behalf of the African Group.  
_______________ 
 
 
I. INTRODUCTION 
 Although developing countries account for more th an three-fourths of the membership of the 
WTO, their share in world trade is around 30 per cen t.  The share of the majority of developing 
countries has stagnated or decreased, notwithstandi ng the implementation of far-reaching reforms in 
the last twenty years.  The shar e of least-developed countries (LDCs)  in world trade is less than 
0.5 per cent, while the share of African countri es is around 2 per cent.  The inability of most 
developing countries, particularly  African countries to benefit from the multilateral trading system has 
undermined the credibility of the GATT/WTO as an ins titution which caters for the interests of all its 
Members.  The WTO has been keen to reverse th e marginalisation of developing countries in the 
multilateral trading system by resorting to a number  of measures, including special and differential 
treatment (S&D) for developing countries within the WTO legal framework and improved technical 
cooperation and capacity building programmes.   
 With respect to S&D, five broad classes of measures have been identified by the WTO 
Secretariat.  The first set of measures are those which call upon developed countries to grant improved 
market access to products of export interest to  developing countries.  These measures are couched in 
hortatory language and are not legally enforceab le.  The second set of measures request developed 
country Members to safeguard the interests of developing country Members when imposing certain 
measures such as antidumping duties.  These measur es are also not couched in legally enforceable 
language, thus giving a wide discretion to develope d country Members.  The third set of measures 
allows developing country Members to assume le sser obligations than their developed country 
counterparts.  Under the Agreement on Agriculture , for example, developed country Members were 
obliged to reduce their tariffs by 36 per cent, while developing-country Members were required to 
reduce theirs by 24 per cent.  These measures are fr amed in legally enforceable language and as such 
are justiciable.  The fourth set of measures a llows developing-country Members longer transitional 
periods to comply with their obligations.  Thus , under the Agreement on Ag riculture, for example, 
whereas developed country Members had to implement their obligations within six years, developing 
country Members had ten years to comply with their obligations.  These measures are couched in 
legally enforceable language and t hus create rights and obligations for Members.  The final set of 
measures request developed country Members to provide technical and financial assistance to 
developing country Members.  These measures are c ouched in hortatory langua ge and do not create 
rights and obligations for WTO Members.   
 TN/CTD/W/29 
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  It is thus clear that a majority of the S&D provisions in the WTO are unenforceable and have 
failed in their basic objective to facilitate the inte gration of developing count ries into the multilateral 
trading system.  It is against this background that developing countries, including African countries demanded in the run-up to the Doha Ministeria l Conference that all S&D provisions should be 
reviewed and made legally enforceable.  For Afri can countries, it is pointless to have elaborate 
provisions in the WTO Agreement if they do not create effective rights and obligations.  What is 
needed are effective measures that would facilitate  the integration of our countries as well as other 
developing countries into multilateral trading system rather than empty words which would perpetuate 
the status quo.  In response to the demands of developing countries, paragraph 44 of the Doha Ministerial Declaration provided that: 
 
"We reaffirm that provisions for special and differential treatment (SDT) are an 
integral part of the WTO Agreements.  We note the concerns expressed regarding their operation in addressing specific constraints faced by developing countries, particularly least-developed countries.  In that connection, we also note that some 
Members have proposed a Framework Agreement on SDT (WT/GC/W/442).  We 
therefore agree that all special and diff erential treatment provisions shall be 
reviewed with a view to strengthening them and making them more precise, effective 
and operational .  In this connection, we endorse the work programme on SDT set out 
in the Decision on Implementation-Related Issues and Concerns."
1 (italics added) 
 From the perspective of African countries, the mandate given by Ministers in Doha was 
unambiguous and very clear in terms of the results to be expected at the conclusion of the review 
exercise.  All S&D provisions were not only to be legally enforceable, but should also contribute to 
the greater participation of developing countries in  the multilateral trading system.  Arguably, if a 
proposed measure does not meet this benchmark, th en it does not comply with the Doha mandate.  
The objective of this contribution from the African Group is to assess whether the proposed 
28 decisions meet the criteria set out in the Doha Decl aration.  It is the view of the Group that where a 
measure does not meet the benchmark, then its adopt ion is not warranted as it would not contribute to 
the integration of African and othe r developing countries into the multilateral trading system.  In such 
circumstances, it would be preferable, if further work is carried out on those proposed decisions until 
such a time that they comply with the Doha mandate.    
                                                     
 
 1Paragraph 12 of the Decision on Implementation-Related Issues and Concerns provides that: "The 
Committee on Trade and Development is  instructed:  (i) to identify those SDT provisions that are already 
mandatory in nature and those that are non-binding in char acter, to consider the legal and practical implications 
for developed and developing Members of converting SDT measures into mandatory provisions, to identify 
those that Members consider should be made manda tory, and report to the General Council with clear 
recommendations for a decision by July 2002;  (ii) to examine ways in which SDT provisions can be made more 
effective, to consider ways, including improved informa tion flows, in which developing countries, in particular 
LDCs, may be assisted to make the best use of SDT provisions, and to report to the General Council with clear recommendations for a decision by July 2002;  (iii) to consider, in the context of the work programme adopted 
at the Fourth Session of the Minist erial Conference, how SDT may be incorporated in to the architecture of 
WTO rules.  The work of the CTD in this regard shall ta ke fully into consideration previous work undertaken as 
noted in WT/COMTD/W/77/Rev.1.  It will also be with out prejudice to work in respect of implementation of 
WTO Agreements in the General Council an d in other Councils and Committees."  TN/CTD/W/29 
 Page 3 
 
 
  II. ANALYSIS OF THE TWENTY-EIGHT PROPOSED DECISIONS2 
II.1 ARTICLE  XVIII:C OF GATT 1994 – PROPOSED DECISION FOR ADOPTION  
 "The Ministerial Conference instructs the Council on Trade in Goods to develop and adopt 
procedures for recourse to Article XVIII:C.  Th e concerns raised by developing countries, 
especially the least-developed countries, including those related to the suspension of concessions 
or other obligations under Article XVIII:C shall be addressed."  Original proposals as tabled by St. Lucia and the LDC Group 
 
Proposal on Article XVIII:C by St. Lucia  - TN/CTD/W/8 
 
"The following proposals are advanced as a me ans towards enhancing the effectiveness of 
Article XVIII: Section C of GATT 1994 as a trade policy instrument which would address, inter alia , 
the needs of small and vulnerable developing country Members: 
• Basic guidelines setting out the procedures for r ecourse to Article XVIII:  Section C should be 
elaborated.  The guidelines would assist in clarifying certain procedural ambiguities in the text. 
 
• The condition limiting Article XVIII:  Section C to  circumstances involving 'infant industries' 
should be interpreted broadly to facilitate the implementation of sustainable economic 
development programmes in small and vulnera ble developing country Members, including 
circumstances where established indu stries are threatened by an ab solute or relative increase in 
imports.  Additionally, there should be clear rea ffirmation that the duration and review of the 
measure must be tied to achievement of the objectives for which the measure was imposed as 
opposed to any arbitrary absolute number of years. 
 
• The right to compensation and/or retaliation should be waived for an initial  period of application 
given the limited ability of small and vulnera ble developing country Members to provide 
compensatory concessions and the limited impact which restrictions would have on global trade.
3  
It is worth noting that there is a lack of symmetry regarding the application of trade remedies.  
Generally, the unilateral response of a larger nation against a smaller nation carries markedly 
more impact than the reverse. 
 
• Article XVIII:  Section C should be  affirmed as a new distinct sp ecial and differential (S&D) trade 
policy instrument for, inter alia , small and vulnerable developing country Members with limited 
administrative capacities; and not me rely a measure of last recourse.4  Small and vulnerable 
developing country Members requir e effective trade policy instru ments – considered vital for 
successful liberalization – to promote sustainable economic growth and development." 
 
                                                      
 2This section follows the order of the 28 proposed decisions in Annex C of the Derbez Text 
(JOB(03)/150/Rev.2).  For purposes of the analysis, it reproduces both the proposed decisions and the original 
proposals of the proponents.  
3Note that the Agreement on Safeguards waives the ri ght of compensation within the first three years 
provided that the safeguard measure imposed has been the result of an absolute rather than a relative increase in 
imports and that such a measure conforms to the prov isions of the Agreement;  see Agreement on Safeguards, 
Article 8.3.  This grace period does not extend to meas ures taken under Article XVIII of the GATT 1994;  see 
Article XVIII.7, 12 & 21 of the GATT 1994. 
 4"The condition stated in paragraph 13 of Article XVIII, permitting recourse to Section C only where 
'no measure consistent with the other provisions of this Agreement is practicable', appears particularly 
restrictive; arguably, suggesting that this provision is a measure of last recourse." TN/CTD/W/29 
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  Proposal on Article XVIII: C by the LDC Group  - TN/CTD/W/4/Add.1 
 
"Members shall exercise restraint in seeking co mpensation from least-developed countries when they 
need to modify or withdraw a tariff concession.  
In order to facilitate adoption by developing countri es, particularly by least-developed countries, of 
such measures in appropriate cases, it would be necessary to examine how the existing procedures 
prescribed by Article XVIII:C, for granting of appr oval are modified and improved.  One possible 
approach would be to make the rules applicable to safeguard actions taken for 'development purposes' 
under Article XVIII:C comparable to those appl icable under the Agreement on Safeguards, to 
safeguard actions taken 'in emerge ncy situations'.  In the latter case, countries can take actions 
involving increase in the bound rates of duties or imposition of the quantitative restrictions, if the 
conditions laid down by the Agre ement on Safeguards are met.  There is no need to seek prior 
approval of WTO, except in cases where the safegua rd action takes the form of application of 
quantitative restrictions to imports on a selective country basis. 
The improvements in the rules governing the use of  safeguard measures for development purposes on 
the above basis would, by assuring countries that  they could when needed, provide increased 
protection across sectors on a selective basis for th e attainment of development objectives, also 
enhance their willingness to continue w ith the overall liberalization process." 
 
Commentary on proposed decision
: 
 
While the first sentence of the proposed decision re flects the views of the proponents – St. Lucia and 
LDCs – in the sense of instructing the Council fo r Trade in Goods to develop and adopt procedures 
for the recourse to Article XVIII:C, it does not c apture the underlying objectives of St. Lucia and 
LDCs.  It should be borne in mind that there is no guarantee that a consensus would be reached in the 
CTD as to the nature of the procedures to be followed by a country wishing to have recourse to 
Article XVIII:C.  Some Members could insist on auth orization being granted by the Council for Trade 
in Goods before the adoption of any measures pursuant to Article XVIII:C. 
 The statement that the "concerns of developing co untries, especially the least-developed countries, 
including those related to the suspension of con cessions or other obligations under Article XVIII:C, 
shall be addressed" is very vague and does not  commit developed countries to agreeing to the 
demands of LDCs and St. Lucia.  What the propon ents are demanding are (i) the right to impose 
restrictive measures to protect thei r infant industries, including t hose which are firmly established but 
are experiencing difficulties, (ii) exemption from  the requirement to pay compensation upon the 
adoption of those restrictive measures and (iii) denying countries which might be affected by the measure the right to suspend equivalent concessions or other obligations.  As explicitly stated by the 
proponents, they want the rules and procedures to be  comparable to those under the Agreement on 
safeguards, which had been invoked by the United States to offer protection to its lamb and steel industries.    The economic value of this proposed decision cannot be determined with any degree of certainty.  
Such a definitive assessment can only be made after the rules and procedures have been agreed in the 
Council for Trade in Goods.  
  
II.2 ARTICLE XXXVI OF GATT 1994 – PROPOSED DECISION FOR ADOPTION
 
 "The Ministerial Conference agrees that the Committee on Trade and Development shall annually review the implementation of Article XXXVI of GATT 1994, and report to the General  TN/CTD/W/29 
 Page 5 
 
 
  Council with concrete recommendations, as agreed , no later than the last General Council of 
each year." 
 
Original proposal by the African Group  - TN/CTD/W/3/Rev.2  
 
"The phrase 'shall be a matter of conscious and purpo seful effort' in paragraph 9 used in relation to 
paragraphs 2 to 7 of Article XXXVI, and read toge ther with paragraph 8 of Article XXXVI, shall be 
understood to mean that the provisions of paragra phs 2 to 7 are binding commitments on the part of 
developed country Members in fa vour of developing and least-developed country Members to,  
 
 (a) ensure a rapid and sustained expansio n of export earnings of the developing and 
least-developed country Members; 
  (b) ensure that developing and least devel oped country Members secure a share in the 
growth in international trade commensur ate with the needs of their economic 
development; 
  (c) provide the maximum market access to pr oducts of export inter est to developing and 
least-developed country Members and take measures to stabilise and improve conditions in world markets for these products particularly measures to attain stable, 
equitable and remunerative prices; 
 
 (d) assist in the diversification of the economies of developing and least-developed 
country Members;  and  
  (f) ensure coherence in global economic po licymaking and implementation in a manner 
that ensures that gains and opportunities in the multilateral trading system are 
supported and not undermined by programmes implemented by international lending 
agencies and vice versa; 
  (g) It is further understood that this Decision shall be without prejudice to the acquis 
under any preferential regime governi ng the exports of developing and 
least-developed country Members by developed country Members. 
 Accordingly, implementation of the provisions of Ar ticle XXXVI shall be subject to reviews twice in 
every 12 months, in the Committee on Trade and De velopment.  In the reviews, objective criteria 
shall be used to determine whether the implementati on is meaningfully attaining the objectives set out 
in the provisions, in light of specific target s set by the Committee on Trade and Development." 
 
Commentary on proposed decision
: 
 The proposed decision is markedly different from th e proposal by the African Group.  It only partially 
addresses the issue of the review of the implementa tion of Article XXXVI.  Instead of the proposed 
bi-annual reviews by the African Group, the propos ed decision provides that there will be only one 
review each year.  It is surprisingly silent on th e underlying reasons of the proposal.  It does not 
indicate the nature of obligations to be assume d by developed country Memb ers towards meeting the 
very clear objectives set out by the proponents, incl uding the need for devel oped countries to increase 
market access opportunities for developing countries by  impliedly eliminating or reducing tariff peaks 
and tariff escalation which prevent African and oth er developing countries from diversifying their 
exports and also by assisting actively in the stabilisation of commodity prices.  
 Without any clear objectives, it is questionable whic h benchmark would be used in the assessment.  
The proposal as it currently stands will not have any  economic impact on developing countries.    TN/CTD/W/29 
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II.3 ARTICLE XXXVII OF GATT 1994 – PROPOSED DECISION FOR ADOPTION
 
 
"The Ministerial Conference agrees that any Member may initiate discussions in the Committee 
on Trade and Development on the basis of Ar ticle XXXVII and decides that a Member shall, 
upon request, provide a detailed explanation to matters raised in regard to the provisions under 
paragraph 1, with a view to reaching a solution that is satisfactory to all Members concerned." 
 
Original Proposal by the African Group  - TN/CTD/W/3/Rev.2   
 
"Paragraphs 1 and 3 of Article XXXVII provide for binding obligati ons and it is understood that the 
commitments set out shall be fully implemented and where it is felt that this would not be possible, leave shall be sought in the General Council by the concerned developed country Members on the 
basis of consultations on specific grounds advanced."  Commentary on proposed decision:
 
 The proposed decision is at variance with the or iginal proposal and does not even remotely address 
the concerns of developing countries.  The first part of the sentence of the proposed decision is not a 
concession as under normal WTO rules and procedu res, as any Member can raise any matter in 
connection with any of the covered agreements.  Th e proposed decision side steps the issue whether 
paragraphs 1 and 3 of Article XXXVII are mandatory and as such create legally enforceable 
obligations.    Under the present formulation, any pr oposed solution to the problem raised by the developing country 
Member has to be agreed not only between the developed country and developing country concerned, 
but also with other Members meaning that any Member could potentially block the adoption of the 
proposed solution.   As a result, this proposal will not bestow any economic benefits on developing 
countries, and the impact of this proposal can only  be determined when an agreement is reached, 
making it difficult to determine the extent of its impact.  
 
 
II.4 ARTICLE XXXVIII OF GATT 1994 – PROPOSED DECISION FOR ADOPTION
 
 
"The Ministerial Conference instructs the Direct or-General to pursue and conclude cooperation 
arrangements as may be necessary to further the objectives set forth in Article XXXVI of the 
GATT 1994.  The Ministerial Conference furt her instructs the Committee on Trade and 
Development to receive studies and reports from relevant international agencies and 
organizations that may assist Members in analyzing the development plans and policies of individual developing and least-developed count ry Members, export potential and market 
prospects over the short and medium terms, measures that could be taken in the WTO framework and by other international agencies and organizations as well as the assistance 
required by developing and least-developed count ry Members to help achieve their respective 
development goals."  
Original Proposal by the African Group  - TN/CTD/W/3/Rev.2   
 "(a) It is understood, under Article XXXVIII of GATT 1994, that the WTO shall arrange with the 
United Nations and its agencies, and with all international and regional organisations that 
have observer status in WTO bodies, to annua lly provide studies and reports pertaining to 
elements indicated in Article XXXVIII to th e Committee on Trade and Development, which 
shall deliberate on them and report with recommendations to the General Council.   TN/CTD/W/29 
 Page 7 
 
 
  (b) The studies and reports, and the recommenda tions to the General Council shall provide 
guidelines on, development indicators and goals, de sirable rates of growth in actual market 
access levels for products of export interest  to developing and least-developed country 
Members, targets to be achieved over the short and medium terms, measures to be taken in 
the WTO framework and by other international organisations as well as the assistance 
required by developing and least-developed coun try Members to ensure the achievement of 
goals and targets, and deal with any relevant matters." 
 
Commentary on proposed decision : 
 
The first sentence of the proposed decision accurately reflects paragraph  (a) of the original proposal 
by the proponents.  It is more specific in calli ng upon the Director-General of the WTO to conclude 
cooperation agreements with relevant international or ganisations to further the objectives set forth in 
Article XXXVI of the GATT 1994.  The second senten ce of the proposed decision does not fully reflect 
the views of the proponents.  First, there is no men tion in the proposed decision that after receiving 
the reports, the CTD would have a discussion on them and make recommendations to the General 
Council.   The advantage of having the reports discu ssed in the General Council, which is the highest 
political body when the Ministerial Conference is not  in session, would thus be lost.  Usually matters 
before the General Council are handled very seriously  at the level of Heads of Delegation and 
routinely receive attention in the medi a than those before subsidiary bodies.   
 
Second, the proposed decision dilutes the wording of  the original proposal  which implicitly would 
require developed countries to take action to impro ve market access for products of export interest to 
developing countries.  Under the proposed decision, there is no mention of measures being taken to 
improve market access for products of export int erest to developing countries.  Analysing the export 
potential and market prospects of developing countri es is not enough if they are not accompanied by 
effective measures which would open markets for their products.  Third, the proposed decision 
weakens the original proposal by not making it manda tory for the reports of the various international 
organisations to be taken into account.  It merely provides that "measures that could be taken in the 
WTO framework", instead of "measures to be taken in the WTO framework".    
 Thus, it follows that the proposed decision does not impose any substantive obligations in favour of 
developing country Members.  Its ec onomic value is therefore limited. 
 
 II.5 UNDERSTANDING ON THE INTERPRETATION OF ARTICLE XVII OF THE GATT 
1994 – PROPOSED DECISION FOR ADOPTION  
 "While acknowledging that the provisions of Article XVII of the GATT 1994 apply to all Members, Members recognize that state trading enterprises may have a significant role to play in promoting and protecting public policy objectiv es in developing and least-developed country 
Members." 
 Original Proposal by the African Group  - TN/CTD/W/3/Rev.2   
 "Members agree that state trading enterprises may have  a significant role to play in protecting public 
policy in developing and least-developed country Members."  TN/CTD/W/29 
Page 8  
 
  Commentary on proposed decision
: 
 The proposed decision strays a little bit from the or iginal proposal by the African Group as it was 
intended to be a reaffirmation of the importance of state trading enterprises for developing and 
least-developed countries.  Arguably, the opening sente nce is redundant as it was not the intention of 
the proponents to state that the relevant rules of  the WTO on state trading enterprises were only 
applicable to developing and leas t-developed countries.    
 In any event, this proposal does not have any economic  value, as the current rules of the WTO permit 
Members to have state trading enterprises provided  they operate in acco rdance with commercial 
considerations.     
 II.6 UNDERSTANDING ON BALANCE-OF-PAYMENTS PROVISIONS OF THE GATT 
1994 – PARAGRAPH 8 – PROPOSED DECISION FOR ADOPTION  
 
"The Ministerial Conference mandates the Commi ttee on Balance-of-Payments Restrictions to 
examine ways and means of simplifying the administrative requirements within the full consultation procedures." 
 
Original Proposal 
 
"The General Council mandates the Committee on Ba lance-of-Payments Restrictions to examine 
ways and means of simplifying the administra tive requirements within the full consultation 
procedures."  Commentary on proposed decision
: 
 The proposed decision fully reflects the proposal by  the proponents.  The proposed decision does not 
have any economic value, as it would not result in an  increase in the exports of developing countries.  
While simplifying the administrative requirements w ill lower transaction costs, they will not confer 
any substantive benefits on developing-country Members. 
 
 II.7 ENABLING CLAUSE – PROPOSED DECISION FOR ADOPTION
 
 
"The Ministerial Conference confirms that th e terms and conditions of the Enabling Clause 
shall apply when action is taken by Members under the provisions of this Clause."   
Original Proposal  
 
"The General Council confirms that  the terms and conditions of the Enabling Clause shall apply when 
action is taken by Members under the provisions of this Clause."  Commentary on proposed decision
: 
 The proposed decision fully reflects the original prop osal by the proponents.  However, it is not clear 
which terms and conditions are being referred to.  The proposed decision as currently drafted will not 
have any economic value for developing countries.  It should be added, however, that the recent 
decision by the Appellate Body decision in the EU  – GSP case has clarified the scope of the Enabling 
Clause.    
  TN/CTD/W/29 
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  II.8 AGREEMENT ON AGRICULTURE – ARTICLE 15.2 – PROPOSED DECISION FOR 
ADOPTION  
 
"The Ministerial Conference confirms that le ast-developed country Members remain exempt 
from reduction commitments, as  provided in Article 15.2, unless decided otherwise by 
consensus."   
Original Proposal  
 
"The General Council confirms th at least-developed country Memb ers remain exempt from reduction 
commitments, as provided in Article 15.2, unless decided otherwise by consensus."  
 
Commentary on proposed decision
: 
 The proposed decision fully reflects the original pr oposal by the proponents.  Its economic value to 
LDCs is, however, highly questionable as it is genera lly accepted in the current round of negotiations 
that LDCs do not have to undertake reduction commitments.  Paragraph 45 of Annex A of the July 2004 General Council Decision provides that: "Least-Developed Countries, which will have full 
access to all special and differential treatment pr ovisions above, are not required to undertake 
reduction commitments.  Developed Members, and d eveloping country Members in a position to do so, 
should provide duty-free and quota-free market acc ess for products originating from least-developed 
countries.” 
  
II.9 PSI AGREEMENT - ARTICLE 3.3 – PROPOSED DECISION FOR ADOPTION
 
 "(a) The Ministerial Conference agrees that  technical assistance for purposes of the 
Agreement on Preshipment Inspection sha ll address the concerns of developing and 
least-developed country Members relating among others to:  
 
 (i) training customs and revenue official s to promote and achieve the objectives of 
the Agreement on Preshipment Inspection through the activities defined in Article 1.3 of 
the Agreement, in order to ensure the proper inspection of consignments to be exported 
to the user Member, and the prevention of fa lse declaration, wrong classification and 
any fraud;  
 
(ii) regulation of preshipment entities. 
 
(b) The Ministerial Conference further agrees that  customs authorities of Members shall, in 
accordance with paragraph 8.3 of the Decision on Implementation-Related Issues and Concerns, closely cooperate in the context of  the Agreement on Customs Valuation, and 
of the Decision Regarding Cases where Cust oms Administrations Have Reasons to 
Doubt the Truth or Accuracy of the Declared Value." 
 
Original Proposal by the African Group  - TN/CTD/W/3/Rev.2   
 "Technical assistance for purposes of the Agreemen t shall address the concerns of developing and 
least-developed country Members or user Members relating among others to:  
 
(i) training customs and revenue officials to  ensure that the objectives of preshipment 
inspection are achieved; particularly those relating to prevention of false declaration, wrong classification, and any fraud; 
 TN/CTD/W/29 
Page 10  
 
   (ii) ensuring that it is duly inspected consi gnments that are shipped to user Members;  
and 
  (iii) regulation of preshipment entities.  
In this regard, and in the context of the Agre ement on Customs Valuation and of the Decision 
Regarding Cases Where Customs Administrations Ha ve Reasons To Doubt The Truth Or Accuracy 
Of The Declared Value, it is agre ed that customs authorities of Members shall closely co-operate with 
a view to fully assisting user Members achieve  the objectives of the Agreement on Preshipment 
Inspection." 
 
Commentary on proposed decision
: 
 The proposal as currently drafted could have some economic value to developing countries as it could 
prevent customs fraud and improve efficiency of custom s.  This would also in turn depend on the 
degree to which customs cooperate.  It would be recalled that in the context of implementation, a 
number of countries objected to a proposal by India which would have obliged customs to pass on information requested by other customs authorities.  
 
 II.10 AGREEMENT ON RULES OF ORIGIN – PROPOSED DECISION FOR ADOPTION
 
 "In regard to preferential rules of origin under the Common Declaration in Annex II to the Agreement, the Ministerial Conference agrees that in  their arrangements for mutual reduction 
or elimination of tariffs or non-tariff barriers, developing and least-developed country Members 
shall have the right to adopt preferential rules of origin designed to achieve trade policy 
objectives relating to their ra pid economic development, particularly through generating 
regional trade.   Furthermore, the Ministerial Conference instruct s the Director-General to take action to 
facilitate the increased participation of developi ng and least-developed country Members in the 
activities of the Technical Committee on Rules of  Origin of the World Customs Organization as 
well as to coordinate with this organization in  identifying technical and financial assistance 
needs of developing and least-developed count ry Members, and report to the Committee on 
Rules of Origin and the Council for Trade in Goods periodically, and the General Council as 
appropriate."  
 
Original proposal 
 
"In regard to preferential rules of origin un der the Common Declaration in Annex II to the 
Agreement, the General Council agr ees that in their arrangements for mutual reduction or elimination 
of tariff or non-tariff barriers, developing and least -developed country Members shall have the right to 
adopt preferential rules of origin designed to ach ieve trade policy objectives relating to their rapid 
economic development, particularly through generating regional trade.  
 Furthermore, the General Council instructs the Dir ector-General to take action to facilitate the 
increased participation of developing and least-developed country Members in the activities of the Technical Committee on Rules of Origin of the Wo rld Customs Organisation as well as to coordinate 
with this organization in identifying technical and financial assistance needs of developing and 
least-developed country Members, and report to th e Committee on Rules of Origin and the Council 
for Trade in Goods periodically, an d the General Council as appropriate." 
  TN/CTD/W/29 
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  Commentary on proposed decision : 
 The proposed decision fully reflects the original proposal.  The proposal could have some economic 
value to developing countries, and lead to the adopt ion of preferential rules of origin which would 
facilitate trade between themselves.  It is import ant to note, however, that in the absence of common 
rules, WTO Members are free to adopt whichever ru les they want subject to the non-discrimination 
principle and other relevant principles of the WTO.  It should, however, be borne in mind that it 
would be open to any Member to have recourse to th e dispute settlement mechanism to challenge the 
consistency or otherwise of the preferential rules of  origin adopted by a Member.  The possibility of 
adopting harmonized preferential rules of origin in the near future cannot be discounted. 
 
 
II.11 AGREEMENT ON IMPORT LICENSING PROCEDURES – ARTICLE 1.2 – PROPOSED 
DECISION FOR ADOPTION  
 "It is understood that the requirement to take  into account the 'development purposes and 
financial and trade needs of developing count ry Members' in Article 1.2 of the Agreement 
means that the burden of the administrative pr ocedures used to implement import licensing 
regimes shall be further reduced in order to fac ilitate trade of developing country Members and 
minimize possible adverse effects to their trad e, including by making import licensing 
procedures as expeditious as possible."  
 Original proposal by the African Group - TN/CTD/W/3/Rev.2  
 "It is understood that the requirement to take in to account the 'development purposes and trade needs 
of developing country Members' in Article 1.2 of  the Agreement means that import licensing regimes 
shall be designed in a manner that  prevents adverse effects to the trade of developing country 
Members.  In this regard, the regimes shall specifi cally be expeditious in relation to the trade of 
developing country Members." 
 
Commentary on proposed decision
: 
 
The proposed decision does not fully reflect the ob jectives of the proponents.  Under the original 
proposal, developed countries must ensure that all adverse effects to the trade of developing countries are eliminated as a result of the administration of import licensing regimes.  Under the proposed 
decision, the obligation on developed countries is to mi nimize possible adverse effects to the trade of 
developing countries.  In effect, there could still be some adverse effects on the trade of developing 
countries.  As currently drafted, the economic value of this proposed decision is quite limited.  It 
could be of enormous value to developing countri es if developed countries were to implement their 
regimes in a simple and transparent manner so as to avoid transaction and related costs.   
II.12 ARTICLE IV OF GATS– PROPOSED DECISION FOR ADOPTION
 
 
"Pursuant to Article IV.3 of the GATS, in all services negotiations, whether broad-based rounds 
of negotiations or separate negotiations on speci fic sectors, modalities shall be developed in 
order to allow the priorities of least-developed country Members to be presented and duly taken 
into account." 
 TN/CTD/W/29 
Page 12  
 
  Original proposal 
 
"Pursuant to Article IV.3 of the GATS, in all services negotiations, whether broad-based rounds of 
negotiations or separate negotiations on specific se ctors, modalities shall be developed in order to 
allow the priorities of least-developed country Member s to be presented and duly taken into account." 
 Commentary on proposed decision
: 
 The proposed decision fully reflects the original propo sal.  However, it is d ifficult to assess the impact 
the proposed decision would have on the services trade  of least-developed countries.  Potentially, it 
could increase their services trade, but that would very much depend on the commitments assumed by 
other WTO Members, particularly develope d countries in their favour.   
  
II.13 ARTICLE IV.3 OF GATS – PROPOSED DECISION FOR ADOPTION
 
 
"The Ministerial Conference agrees that the in formation to be provided by Members shall 
indicate how the requirement that special priori ty be given to least-developed country Members 
in the implementation of paragraphs 1 and 2 of Article IV is being met, and that contact points, in this context, shall provide information of  particular interest to services suppliers from 
least-developed country Members." 
 
Original proposal 
 
"The General Council agrees that the information to  be provided by Members shall indicate how the 
requirement that special priority be given to l east-developed country Members in the implementation 
of paragraphs 1 and 2 of Article IV is being met, and that contact points, in this context, shall provide 
information of particular interest to services suppliers from least-developed country Members." 
 
Commentary on proposed decision
: 
 The proposed decision fully reflects the original proposal.  From an economic perspective, it would 
not confer any specific or direct benefit to LDCs.  Its main advantage lies in the fact that apart from 
making information more accessible to LDC servi ce providers, the proposed decision would put 
pressure on developed countries to fulfil their obliga tions under Articles IV:1 and 2 of the GATS.  
Developed countries might take the view that the obligations are not legally binding, making the proposed decision valueless.  
 
 
II.14 ARTICLE XXV OF GATS – PROPOSED DECISION FOR ADOPTION
 
 
"The Ministerial Conference instructs the WTO Secre tariat to pursue with a view to concluding 
arrangements with relevant international institutio ns that have the technical assistance capacity 
to assist developing and least-developed count ry Members in addressing their supply-side and 
infrastructural constraints and their developmen t needs in the services sector.  This shall be 
without prejudice to the prerogative of the Co uncil for Trade in Services to decide upon 
technical assistance to developing countries whic h shall be provided at the multilateral level by 
the Secretariat, in accordance with Article XXV.2." 
 
Original proposal 
 
"The General Council instructs the WTO Secret ariat to pursue with a view to concluding 
arrangements with relevant international institutions  that have the technical assistance capacity to  TN/CTD/W/29 
 Page 13 
 
 
  assist developing and least-developed country Members in addressing their supply-side and 
infrastructural constraints and their development n eeds in the services sector.  This shall be without 
prejudice to the prerogative of the Council for Trade in Services to decide upon technical assistance to 
developing countries which shall be provided at th e multilateral level by the Secretariat, in accordance 
with Article XXV.2." 
 
Commentary on proposed decision : 
 The proposed decision fully reflects the original proposal.  As currently drafted, the proposed 
decision's economic value is limited.  As to wh ether developing countries would benefit from it would 
depend on the nature of agreements to be concluded and also the sort of assistance that would be 
provided in addressing the supply-side constraints faced by developing countries.  If the agreements 
are couched in non-legally enforce able language, then it cannot be expected with a high degree of 
certainty that developing countries would benefit from this proposal.   
 II.15 PARAGRAPH 6 OF THE GATS ANNEX ON TELECOMMUNICATIONS – PROPOSED 
DECISION FOR ADOPTION  
 
"The Ministerial Conference instructs the Counc il for Trade in Services to put in place 
arrangements for prompt notification of any me asures taken with regard to the implementation 
of subparagraphs (a) to (d) of paragra ph 6 of the Annex on Telecommunications." 
 Original proposal 
 
"The General Council instructs the Council for Trad e in Services to put in place arrangements for 
prompt notification of any measures taken with rega rd to the implementation of subparagraphs (a) to 
(d) of paragraph 6 of the Annex on Telecommunications."  
 
Commentary on proposed decision
: 
 The proposed decision fully reflects the original proposal.  As currently drafted, the proposed 
decision's economic value is quite limited.  What might confer potential economic benefits is the 
implementation of paragraph 6 of the Annex on Telecommunications.  The main advantage of the proposed decision is that developing countries would be promptly kept abreast of measures taken pursuant to paragraph 6 of the Annex on Telecommunications.  
 II.16 ARTICLE 66.2 OF THE TRIPS AGREEMENT – PROPOSED DECISION FOR 
ADOPTION  
 
"Members, having regard to Article 66.2 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, and having regard to the decision of the TRIPS Council of 
19 February 2003, contained in document IP/C/28, reaffirm that this decision be expeditiously 
implemented in a way that ensures the monitoring and full implementation of the obligations in Article 66.2." 
 
Original proposal by the African Group  - TN/CTD/W/3/Rev.2  
 
"(a) It is agreed that in implementing Article 66.2:   (i) developed country Members shall give incentives to enterprises and institutions in 
their territories through their laws or other administrative instruments; TN/CTD/W/29 
Page 14  
 
   (ii) the incentives shall be of a magnitude and nature that will effectively operate as 
motivation to transfer technology to l east-developed country Members taking into 
account the actual conditions in the least-developed country Members and the difficulties expressed by the enterprises and institutions;  and 
 
(b) The incentives shall take any appropriate fo rms provided that the forms shall effectively 
operate as incentives to motivate the enterprises and institutions to transfer technology to 
least-developed country Members. 
 (c) Developed country Members sh all report on their implementation of Articles 7, 8, and 66.2 of 
the Agreement, according to a reporting schedul e to be regularly drawn up by the TRIPS 
Council.  The reports shall be evaluated in th e TRIPS Council to establish whether or not the 
implementation is achieving the objectives of building sound technological bases in developing and least-dev eloped country Members  
 
(d) 'Technology' for purposes of the Agreement shall include equipment, knowledge and skills 
including their tacit forms and trade secrets, practical and theoretical training, and insights into the history and global context of innovations and pr ocesses relating to particular 
technologies.  
 (e) Accordingly, it is understood that co- operation arrangements between enterprises and 
institutions of developed country Members on the one hand and research and other learning 
institutions in developing a nd least developed country Memb ers on the other, shall be 
essential components of implementing the Agreement.  The reporting shall indicate implementation in terms also of arrangements with the research and learning institutions." 
 
Commentary on proposed decision
: 
 The proposed decision does not fully reflect the obj ectives of the African Group.  It is not as 
self-contained as the original proposal, under which developed countries would be expected to 
provide effective incentives to their enterprises and institutions to transfer technology to LDCs, 
bearing in mind the conditions prevailing in th ese countries and the difficulties expressed by the 
relevant enterprises and institutions.  Regular exc hanges between developed countries' enterprises 
and institutions and developing countries' research and learning institutions would be encouraged 
and there would be an effective monitoring system  to determine progress towards achieving the 
objective of transferring technology to LDCs.  
The economic value of this proposed decision cannot be determined with any certainty, as very much 
would depend on the measures taken by developed countries and the response of their enterprises and 
institutions.   
 
 II.17 ARTICLE 67 OF THE TRIPS AGREEMENT – PROPOSED DECISION FOR ADOPTION
 
 "The Ministerial Conference agrees that technica l and financial cooperation, in accordance 
with Article 67, shall be provided on request a nd on mutually agreed terms and conditions, with 
due consideration given to comprehensive pr ogrammes comprising such components as 
improving the relevant legal framework in line with the general obligations of the Agreement, 
enhancing enforcement mechanisms, increasing tr aining of personnel at the various levels, 
assisting in the preparation of laws and pro cedures in an effort to encourage and monitor 
technology transfer, making use of the rights  and policy flexibility in the Agreement, and 
strengthening or establishing coordination between intellectual property rights, investment and competition authorities.  TN/CTD/W/29 
 Page 15 
 
 
   
The Ministerial Conference instructs the Counc il for Trade-Related Aspects of Intellectual 
Property Rights to annually review the state of implementation of the Agreement between the 
World Intellectual Property Organization and the World Trade Organization, taking into account opportunities for technical assist ance as provided for in the Agreement." 
 
Original proposal 
 
"The General Council agrees that technical and fina ncial cooperation, in accordance with Article 67, 
shall be provided on request and on mutually ag reed terms and conditions, with due consideration 
given to comprehensive programmes comprising su ch components as improving the relevant legal 
framework in line with the general obligations  of the Agreement, enhancing enforcement 
mechanisms, increasing training of personnel at the vari ous levels, assisting in the preparation of laws 
and procedures in an effort to encourage and m onitor technology transfer, making use of the rights 
and policy flexibility in the Agreement, and st rengthening or establishing coordination between 
intellectual property rights, investment and competition authorities. 
 The General Council instructs the Council for Trade- Related Aspects of Intellectual Property Rights 
to annually review the state of implementation of the Agreement between the World Intellectual 
Property Organization and the World Trade Orga nisation, taking into account opportunities for 
technical assistance as provided for in the Agreement." 
 
Commentary on proposed decision
: 
 The proposed decision fully reflects the original proposal.  As to whether it would confer economic 
benefits on developing countries would depend on the terms of the technical and financial 
cooperation agreements to be mutually agreed be tween the donor country and the recipient country.  
In any event, the benefits that might accrue would not be direct.  The assistance envisaged to be 
provided could help some developing countries to  attract foreign direct investment into certain 
critical sectors of their economies.     
II.18 ARTICLE 70.9 OF THE TRIPS AGREEMENT – PROPOSED DECISION FOR 
ADOPTION5 
 
"For purposes of the requirement to grant exclusiv e marketing rights during transition periods, 
it is understood that there is a clear distinction between 'patent rights' on the one hand and 
'exclusive marketing rights' on the other.  Patent rights are set out in Article 28 of the TRIPS 
Agreement.  Exclusive marketing rights are not the same as patent rights.  Members have the 
right to define exclusive marketing rights, so long  as the definition accords with the meaning of 
the term in the TRIPS Agreement as interpreted under the rules of public international law.  There is no requirement to grant exclusive marketing rights unless marketing approval is 
granted in that WTO Member for which ex clusive marketing rights is sought." 
 
Original Proposal by the African Group  - TN/CTD/W/3/Rev.2  
 "(a) It is understood that devel oping country Members shall be en titled to extensions beyond the 
additional 5 year period under Article 65.4 relati ng to other areas of technology required to be 
protected under the TRIPS Agreement. 
 
                                                     
 
 5 Category II proposal. TN/CTD/W/29 
Page 16  
 
  (b) For purposes of the requirement to grant exclus ive marketing rights during transition periods, 
it is understood that there is a clear distinc tion between 'patent rights' on the one hand and 
'exclusive marketing rights' on the other.  The two shall not confer the same rights.  Patent 
rights as set out in Article 28 of the TRIPS Ag reement are the following: 'to prevent third 
parties not having the owner’s consent from the acts of making, using, offering for sale, 
selling, or importing for these purposes the (pat ented) product' as well as the products 
obtained directly by the patented process. These rights conferred by a patent, are not the same rights as may be conferred by the grant of exclusive marketing rights.  Members have the right and the freedom to define what constitut es exclusive marketing rights, and may do so in 
light of any interpretations that the General Council or the TRIPS Council may adopt.  It is 
understood also that there is no requirement to  grant exclusive marketing rights until and only 
if marketing approval is granted." 
 
Commentary on proposed decision
: 
 
There are a number of differences be tween the original proposal and the proposed decision.  First, 
the proposed decision does not reflect the proposal  that developing countries should be entitled to 
extensions beyond the additional five year period under Article 65.4 relating to other areas of 
technology required to be protected under the TRIPS Agreement.  Second, while the proposed 
decision mirrors the second element of the original  proposal, there is one important distinction.  
Under the original proposal, while Members w ould have an unfettered right to define exclusive 
marketing rights in light of any interpretations adopted by the TRIPS Council and the General 
Council, under the proposed decision any definition has to be in acco rd with the relevant rules of 
public international law.    The economic value of the proposed decision is limite d as it does not address the first proposal by the 
proponents and only clarifies the scope of Article  28 of the TRIPS Agreement.  It does not add 
anything new to Article 28 and may even have restricted its scope by subjecting it expressly to rules of 
public international law.  
 
II.19 UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE 
SETTLEMENT OF DISPUTES – ARTICLE 8.10 – PROPOSED DECISION FOR 
ADOPTION  
 
"Pursuant to Article 8.10 of the DSU, the Ministerial Conference agrees that in disputes between a developing country Member and a deve loped country Member, at least one panellist 
shall be from a developing country Member, unl ess the developing country Member party to the 
dispute waives this right."  
 
Original proposal 
 
"Pursuant to Article 8.10 of the DSU, the Ge neral Council agrees that in disputes between a 
developing country Member and a developed country Member, at least one panellist shall be from a 
developing country Member, unless the developing count ry Member party to the dispute waives this 
right."  
Commentary on proposed decision
: 
 
The proposed decision fully reflects the original proposal.  The argument is  usually made that a 
panellist from a developing country is more likel y to understand and show appreciation of the 
challenges faced by developing country Members in the multilateral trading system.  While that may 
be true, its economic value is highly questionable, as the outcome of a dispute is likely to remain the  TN/CTD/W/29 
 Page 17 
 
 
  same even with one or more of the panellists  coming from a developing country.  A panellist is 
expected to be neutral and has to apply WTO rule s impartially.  If the WTO rules under consideration 
are clear and confer effective special and differential  treatment to developing countries, then every 
panellist whether from a developed or developing country, would have to give effect to them.  It is in 
this sense that it is important for there to be very clear and legally enforceable S&D provisions.  
 
 
II.20 PARAGRAPH 2(v) OF THE DECISION ON MEASURES IN FAVOUR OF 
LEAST-DEVELOPED COUNTRIES – PROPOSED DECISIONS FOR ADOPTION  
 
"The Ministerial Conference agrees that the WTO through its participation in the Integrated 
Framework and JITAP and other relevant institutions will work to ensure that supply-side constraints of the LDCs are identified in the Diagnostic Trade Integration Studies (DTIS) and are addressed in the implementation and follow-up taking into account the specific 
circumstances of each beneficiary country.  Th e Ministerial Conference also instructs the Sub-
Committee on LDCs to undertake a biennial review of the implementation of the DTIS and to 
monitor the possible impact of assistance that is targeted towards the div ersification of exports 
from LDCs, including through comparing the co mposition and concentration of LDCs' export 
structures over time and across LDCs and th rough the establishment of other relevant 
indicators." 
 
Original proposal 
 
"The General Council agrees that the WTO through its participation in the Integrated Framework and 
JITAP [and other relevant institutions ] will work to ensure that supply-side constraints of the LDCs 
are identified in the Diagnostic Trade Integra tion Studies (DTIS) and are addressed in the 
implementation and follow-up taking into account the specific circumstance s of each beneficiary 
country.  The General Council also instructs the Sub-Committee of the LDCs to undertake a biennial 
review of the implementation of the DTIS and to monitor the possible impact of assistance that is 
targeted towards the diversification of expor ts from LDCs, including through comparing the 
composition and concentration of LDCs' export stru ctures over time and across LDCs and through the 
establishment of other relevant indicators." 
 
Commentary on proposed decision
: 
 The proposed decision fully reflects the original  proposal except that there appears to be some 
disagreement as to the extent of involvement of oth er relevant international institutions in the process.  
It is difficult to assess the potential economic benefits  of the proposed decision, as its real contribution 
towards alleviating the supply-side constrai nts facing least-developed countries can only be 
determined after the implementation of the Diagnostic Trade Integration Studies.   Thus, as currently 
drafted, the proposed decision has very little economic value. 
  
II.21 RULES RELATING TO NOTIFICATION PROCEDURES – PROPOSED DECISION FOR 
ADOPTION  
 
"Recognizing the practical difficulties faced by  least-developed country Members in abiding 
fully by their notification obligations, the Ministerial Conference instructs the Sub-Committee 
on Least-Developed Countries to examine possibl e improvements to the notification procedures 
for least-developed country Members, taking into  account the experience regarding Secretariat 
produced reports that helped fulfil some of these  requirements.  In conducting its examination, 
the Sub-Committee shall seek the input of relevant WTO bodies, which may be in a position to 
advise on practical means for improving the notification procedures in relation to TN/CTD/W/29 
Page 18  
 
  least-developed country Members, for example the possibility of longer timeframes, specified 
exemptions and simplified procedures for notifica tions, and cross-notifications.  The Committee 
on Trade and Development shall forward the Sub-Committee's report to the General Council 
by 31 December 2003 for appropriate action." 
 
Original proposal  
"Recognizing the practical difficulties faced by least -developed country Members in abiding fully by 
their notification obligations, the General Counc il instructs the Sub-Committee on Least-Developed 
Countries to examine possible improvements to the notification procedures for least-developed 
country Members, taking into account the experience regarding Secretariat produced reports that 
helped fulfil some of these requirements.  In c onducting its examination, the Sub-Committee shall 
seek the input of relevant WTO bodies, which may be in a position to advise on practical means for 
improving the notification procedures in relation to  least-developed country Members, for example 
the possibility of longer timeframes, specified exem ptions and simplified procedures for notifications, 
and cross-notifications.  The Committee on Trade and Development shall forward the 
Sub-Committee's report to the General Council by 31 December 2003 for appropriate action." 
 
Commentary on proposed decision
: 
 The proposed decision fully reflects the original pr oposal.  Arguably, the proposed decision would not 
confer any direct economic benefits to developing countries.  It would merely assist developing 
countries to fulfil their notification obligations.   
II.22 ENABLING CLAUSE – PROPOSED DECISION FOR ADOPTION
 
 "The Ministerial Conference agrees that in fo rmulating schemes under paragraph 2(a), (b) and 
(c) of the Enabling Clause, and in furtherance of paragraph 3 thereof, developed country Members will take into account, among other fa ctors, the needs of developing and least-
developed country Members and consult with them wi th a view to ensuring that their products 
of export interest are accorded meaningful  market access. The Committee on Trade and 
Development will annually review the progress made  in this regard and report to the General 
Council with recommendations, if any."  
Proposal by the African Group  - TN/CTD/W/3/Rev.2  
 
"(a) In formulating schemes under paragraphs (a) and (b) of clause 2 of the Enabling Clause, 
developed country Members shall consult unde r the auspices of the Committee on Trade and 
Development with developing and least-developed country Members with a view to ensuring 
that products of export interest to devel oping and least-developed country Members are 
accorded meaningful market access that will ac hieve the objectives set out in Article XXXVI 
of GATT 1994.  
 
(b) In this regard, developed country Memb ers shall show to the Committee on Trade and 
Development how they have included in the programmes specific products of particular 
export interest to developing and least-devel oped country Members and taken measures to 
ensure meaningful market access. 
 
(c) Meaningful market access shall be construe d in accordance with targets set or adopted from 
time to time in the Committee on Trade and Development. 
  TN/CTD/W/29 
 Page 19 
 
 
  (d) The Enabling Clause provides developing a nd least-developed country Members with the 
right to enter regional or global arrangements for the mutual reduction or elimination of tariffs 
or non-tariff barriers.  It is understood that  the arrangements can be for reduction or 
elimination of tariffs or non-tariff barriers, and that with regard to reduction or elimination of 
tariffs no WTO body or Members can prescribe any criteria relating to the arrangements.  
Members shall respect any such arrangements as an exercise of rights that developing and 
least-developed country Members have under the WTO Agreement. 
 (e) It is understood that this Decision sha ll be without prejudice to the acquis under any 
preferential regime governing the exports of developing and least-developed country 
Members by developed country Members." 
 
Commentary on proposed decision
: 
 The proposed decision is very different from the or iginal proposal tabled by the African Group.  
Under the proposal by the African Group, preference -giving countries would be obliged to consult 
under the auspices of the Committee on Trade and Development (CTD) with developing and least-developing countries before implementing thei r preferential schemes.  Arguably, without the 
agreement of these countries, the developed country may not be able to implement its scheme.  Put in 
another way, the original proposal would oblige p reference-giving countries to demonstrate to the 
CTD that it has taken specific me asures to increase market  access for products of export interest to 
developing and least-developed countries  in acco rdance with the guidelines set by the Committee on 
Trade and Development.  Under the proposed decisi on, the obligation on preference-giving countries 
is less strict.  They would only be required "to ta ke into account, among other factors, the needs of 
developing and least-developed country Members and cons ult with them with a view to ensuring that 
their products of export interest are accorded me aningful market access".  The obligation is not 
absolute and moreover preference-giving countries w ould be free to take into consideration other 
matters in designing their prefe rential schemes.  They are not re quired to take account of the 
benchmarks set by UNCTAD in granting preferences to LDCs and developing countries. They would also not be required to demonstrate to the CTD t hat they have taken measures to boost market access 
for products of export interest to developing and le ast-developed countries.  Instead, the CTD would 
conduct annual reviews to determine progress and ma ke recommendations, if any, to the General 
Council.  It should be pointed out that without  the concurrence of developed countries, the CTD 
cannot formulate any recommendations to the Gen eral Council.  In other words, assuming that 
substantial progress has not been made to improve the market access of LDCs and developing 
countries, there is no guarantee that the CTD would be in a position to make recommendations to the 
General Council.   
 
The proposed decision is silent on the proposal which would have broadened the scope of the 
Enabling Clause to allow developing countries to not only exchange tariff preferences among themselves, but also non-tariff preferences.  It is  also silent on the proposed amendment of the 
Enabling Clause to dispense with the requirement that  the exchange of tariff preferences should be in 
accordance with criteria prescribed by Members [General Council]. 
 
The economic value of the proposed decision cannot be determined with any certainty, as it would 
depend on the preferences that woul d be accorded by developed countries to products of export 
interest to developing countries.  
 TN/CTD/W/29 
Page 20  
 
  II.23 REVIEW OF PROGRESS ON MARKET ACCESS FOR LEAST-DEVELOPED 
COUNTRIES – PROPOSED DECISION FOR ADOPTION  
 
"We recall paragraph 2(d) of the Decision on  Differential and More Favourable Treatment, 
Reciprocity and Fuller Participation of Develo ping Countries, and Members' commitment to 
the objective of duty-free, quota-free market  access for products originating from 
least-developed countries, as contained in paragr aph 42 of the Doha Ministerial Declaration. 
The Ministerial Conference agrees to review the progress made in providing access to the least-
developed countries on the above basis." 
 
Original proposal by the LDC Group 
 
"For effective operationalisation of the provisions of the Decision on More Favourable Treatment and 
to ensure that the least-developed countries derive continued and sustained benefits from the special 
preferential treatment extended by the developed countr ies, it is suggested that its provisions shall be 
clarified as follows:   
(a) Special treatment to be extended to least -developed countries in accordance with the 
provisions of Paragraph 1 and 2(d) of the Decision shall take the form of duty-free 
and quota free access for all products. 
 
(b) The Committee on Trade and Development shall prior to the Fifth Ministerial 
Conference review the progress made by the developed countries in providing access 
to the least-developed countries on the above basis and shall make appropriate recommendations for consideration at the Ministerial Meeting." 
 
Commentary on proposed decision
: 
 
The proposed decision is fundamentally different from  the original proposal , as it is couched in 
hortatory language.  Contrary to the original proposal, it would not oblige developed countries to grant quota-free and duty-free access to all products or iginating in LDCs.  It would be left to each 
developed country to decide whether or not to gran t duty-free and quota-free access to the exports of 
LDCs.   
 
As currently drafted, this proposed decision would not confer any specific economic benefits to LDCs.  
The economic benefits can only be realized after developed countries make the necessary changes to 
their GSP schemes.    
 II.24 PARAGRAPH 2(ii) OF THE DECISION ON MEASURES IN FAVOUR OF 
LEAST-DEVELOPED COUNTRIES – PROPOSED DECISION FOR ADOPTION  
 
"Without prejudice to the binding commitments that may result from work under 
Paragraphs 13 , 16 and 42 of the Doha Ministerial Declaration, and building upon our 
commitment in the Doha Ministerial Declaratio n, Members shall continue to expeditiously 
pursue the objective of duty-free and quota-free ma rket access for products originating from 
[all] least-developed countries in a manner that en sures security and predictability.  We urge 
Members to adopt and implement rules of origin so  as to facilitate exports from least-developed 
countries." 
  TN/CTD/W/29 
 Page 21 
 
 
  Original proposal by the LDC Group LDCs - TN/CTD/W/4 
 
"The initiative to improve market access for LDCs was first contained in the 1996 Singapore 
Ministerial Declaration by which WTO Members agr eed to a plan of action in favour of LDCs.  
Among the stated objectives of this initiative, was th at of taking positive measures, for example, to 
provide duty-free market access on an autonomous basi s, for products of LDCs and thus aiming at 
improving their overall capacity to respond to th e opportunities offered by the trading system. 
While recent initiatives undertaken by major tradi ng partners in favour of LDCs such as the 
Everything But Arms and African Growth and  Opportunity Act should be welcomed, further 
improvement of Generalized System of Prefer ences (GSP) and other schemes for products of 
particular interest to the LDCs should include not  only expanding the product coverage, and lowering 
of barriers, but also include the important dimens ion of predictability and security of these access 
conditions.  Binding of these measures are critical to  strengthening the supply capacities in LDCs and 
necessary for the improvement of secure and be neficial market acce ss for these countries. 
• Establishment of a commitment that provides a contractual status to duty free and quota free 
preferential market access through the negotiation of  a legal instrument to make market access 
secure, stable and predictable.  Any temporar y withdrawal of duty-free treatment should be 
disciplined in a contractual manner; 
 
• Duty-free treatment should be provided to all products.  Any temporary exceptions could 
provide for duty-free tariff quotas, which would be subject to an agreed phase-out programme; 
 
• Rules of origin requirements should be realistic and flexible to match the industrial capacity of 
LDCs in order to ensure the effective and full utilisation of preferences.  The rules of origin 
should also be harmonised among preference-g iving countries and subject to simplified 
customs documentation and procedures; 
 
• Existing S&D treatment provisions under the va rious WTO Agreements should be improved in 
an effective manner with a view to ensuring that duty-free access is not nullified by non-tariff 
measures;  
 
• Technical and financial assistance to meet the cost of compliance with SPS measures and 
technical standards." 
 
Commentary on proposed decision : 
 
The proposed decision partially reflects the objec tives of the proponents.  Unlike the original 
proposal which would oblige developed countries to provide duty-free and quota-free access to 
products originating in [all] least-developed countries and improve security and predictability 
through the binding of these preferences, the propo sed decision would leave it to developed countries 
to decide whether to grant duty-free and quota- free access to products of LDCs in a secure and 
predictable manner.  Put in another way, the language of the proposed decision is hortatory in 
character.    The proposed decision does not provide the same level  of details as the original proposal.  For 
example under the original proposal, developed c ountries would be required to reach an agreement 
with the beneficiary countries, should they wish to  temporarily withdraw duty-free treatment for 
certain products.  Furthermore, developed countries would be obliged to establish a tariff rate quota 
for products in respect of which they had not exten ded duty-free treatment.  The proposed decision 
does not fully reflect the underlying objectives of the proponents as far as rules of origin are TN/CTD/W/29 
Page 22  
 
  concerned.  While the proposed d ecision "urges Members to adopt and implement rules of origin so 
as to facilitate exports from le ast-developed countries", the language in the original proposal would 
obligate preference-giving countries not only to adopt  simple and flexible rules of origin which 
beneficiary countries could easily meet, but also to harmonise their preferential ru les of origin so as 
to ensure consistency and transparency.  The proposed  decision does not reflect the proposal that 
S&D provisions in the various WTO agreements should be strengthened so as to ensure that duty-free 
market access is not circumvented through the adopti on of non-tariff barriers.  Finally, the proposed 
decision is silent on the proposal that developing countries should be provided with technical and 
financial assistance to facilitate their complian ce with TBT and SPS measures imposed by Members. 
 
In effect, as currently drafted, the proposed decision has very little economic value to developing 
countries.  
 
 
II.25 PARAGRAPH 2 OF THE DECISION ON MEASURES IN FAVOUR OF 
LEAST-DEVELOPED COUNTRIES – PROPOSED DECISION FOR ADOPTION  
 
"We agree that:  (a) Taking into account their development needs, least-developed countries, following 
application, shall in principle be eligible for extensions of their transition periods; where 
relevant procedural provisions exist in the WTO agreements, those provisions shall 
apply.  
 (b) Technical assistance to least-developed countries shall aim among other things to 
remove their supply-side constraints which lim it their ability to benefit from the WTO 
Agreements, including market access oppo rtunities and development of domestic 
productivity.  In this context, the Ministerial Conference also instructs the 
Director-General to consult other institutions on programmes/assistance related to supply-side constraints in least-developed country Members to determine what additional technical assistance may be made available." 
 Original proposal by the African Group - TN/CTD/W/3/Rev.2  
 "(a) It is understood that notwithstanding any pr ovision of any WTO Agreement, least-developed 
country Members shall always be entitled to ex tensions for their transition periods as they 
may require. 
 
(b) It is understood that technical assistance to least-developed country Members shall aim 
among other things to remove any supply-si de constraints to benefits under all WTO 
Agreements, such as benefits of market access opportunities and development of domestic 
productivity." 
  TN/CTD/W/29 
 Page 23 
 
 
  Commentary on proposed decision : 
 The proposed decision does not reflect the original proposal of the African Group relating to the extension of transitional periods.  Whereas under the original proposal, a request for an extension of 
the transitional period would automatically be gran ted, it would not be the case under the proposed 
decision.  Given the fact that decisions are m ade by consensus, there is no guarantee that an 
application for an extension by an LDC would always be granted under the proposed decision.  As currently drafted, the proposed decision do es not have much economic value to LDCs. 
  
II.26 PARAGRAPH 3(b) OF THE DECISION ON MEASURES IN FAVOUR OF 
LEAST-DEVELOPED COUNTRIES – MARKET OPPORTUNITIES ENABLING 
CLAUSE – PARAGRAPH 3(B) – PROPOSED DECISION FOR ADOPTION  
 
"Accepting that extension of differential and mo re favourable treatment to developing countries 
should not constitute an impediment to the reducti on or elimination of tariffs on an MFN basis, 
but recognizing that as WTO Members pursue improved MFN tariff liberalization some Members may have concerns about adjusting to the loss of preferences, we agree that this issue 
be considered, in close coordination with other relevant international organizations, with a view 
to identifying possible ways, including targeted  assistance programmes, by which LDCs should 
be assisted." 
 
Original proposal by the LDC Group  - TN/CTD/W/4/Add.1  
 "Paragraph 3(b) of the Decision provides that th e extension of differential and more favourable 
treatment to developing countries, including special  treatment to the least-developed countries, shall 
not constitute an impediment to the reduction or el imination of tariffs on MFN basis.  However, it 
should be recognized that MFN tariff reductions results  in the erosion of preferential margins and the 
consequent loss of competitiveness for the affected  LDC exports.  In such a situation, the LDC 
affected would require compensatory or adjustme nt support measures in the trade, financial and 
technological fields to mitigate adverse effects on their export earnings as well as enable them cope 
with increased global competition, through, inter alia : 
(i) Elimination of all internal and border c onstraints inhibiting the full utilization of 
existing preferential access. 
 
(ii) Support diversification efforts including e limination of all tariff peaks and tariff 
escalation affecting semi-processed and processed products. 
 
(iii) Provide debt relief through cancellation to release resources for building productive 
capacities. 
 
(iv) Provide targeted incentives to their enterpri ses to facilitate technology transfer in the 
spirit of Article 66.2 of the TRIPS Agreement. 
 
(v) Remove all non-tariff barriers to all LDCs exports. 
 
(vi) Provide temporary financial compensation for fall in export earnings resulting from a 
reduction of MFN tariff rates in the case of  products whose share in the total export 
earnings of an LDC exceeds 50 per cent." 
 TN/CTD/W/29 
Page 24  
 
  Commentary on proposed decision
: 
 It appears that the proposed decision does not refl ect the original proposal by the LDC Group.  
Under the original proposal, developed countries woul d be obliged to adopt the following measures 
to compensate LDCs as a result of the erosion of  preferences: the elimination of all non-tariff barriers 
affecting the exports of LDCs and also the elimina tion of all internal and border restrictions which 
prevent LDCs from fully utilizing preferences acco rded them under GSP sch emes and other schemes 
such as AGOA and EBA.  Developed countries would al so be obliged to eliminate all tariff peaks and 
tariff escalation and provide debt relief through the c ancellation of debts of LDCs.  They would also 
be required to provide incentives to their enterprise s to facilitate technology transfer to LDCs in line 
with Article 66.2 of the TRIPS Agreement and also to provide temporary financial compensation as a 
result of MFN tariff cuts to LDCs in respect of t hose products which contribute at least 50 per cent of 
the export earnings of an LDC.   The proposed decision only recognises the problems which multilateral tariff reductions could pose 
for LDCs, but does not offer any specific measures such  as those listed above to assist them to cope 
with the problems.  The proposed decision merely mandates the WTO to cooperate closely with other 
relevant international organizations and identify possible ways, including targeted assistance 
programmes to assist LDCs.  It is not clear what is meant by "targeted assistance programmes".  The 
proposed decision is couched in non-binding langu age making it difficult to assess its economic 
relevance.  In any event, as to whether it woul d benefit LDCs would depend on the measures which 
would be agreed between the WTO and other relevant  international organizations to compensate 
LDCs as a result of the erosion of preferences.  Thus, the proposed decision as currently drafted 
would not confer any tang ible benefits on LDCs. 
  
II.27 ARTICLE XVIII:B OF GATT 1994 – PROPOSED DECISION FOR ADOPTION
 
 
"In determining the need for taking measures und er Article XVIII:B, full consideration shall be 
given to the impact of the volatilit y of short-term financial flows on the level of external reserves 
or surpluses of Members."  
Original Proposal by the African Group  - TN/CTD/W/3/Rev.2   
 "It is understood that short term financial flows sh all not be included in determining the external 
reserves or surpluses of Members and financial in stability shall be duly taken into account as a 
problem to be addressed over a reasonable period of  time when measures under Article XVIII: B shall 
be maintained.  The reasonable period of time shall not be less than 3 years, taking into account 
differences in industry types."  
Commentary on proposed decision
: 
 The proposed decision does not accurately reflect the views of the African Group and does not capture 
the underlying reasons for the introduction of the pro posal.  What the proponents want is quite clear:  
they do not want short-term financial flows to be taken into account in determining the external 
reserves or surpluses of Members.  Un der the proposed decision, it is not clear whether they would be 
totally ignored in the determination of whether a Member has adequate external reserves or surpluses.   
 
The proposed decision is silent on whether the issu e of financial instability shall be addressed over a 
reasonable period of time when the measures taken pu rsuant to Article XVIII:B remain in force.  It 
does not also indicate whether the term “reasonabl e period of time” shall be construed to mean a 
period not less than 3 years, taking into a ccount differences in industry types.   
  TN/CTD/W/29 
 Page 25 
 
 
  If by stating that "full consideration shall be given to the impact of the volatility of short-term financial 
flows on the level of external reserves or surpluses of Members", it is meant that short-term financial 
flows would be excluded from the analysis, then th e proposed decision could be of some value to 
developing countries, as it would give them some room to adopt measures which would assist them to deal with their balance of payments problems.  Over all, the economic value of this proposed decision 
to developing countries is very limited.   
 
 
III. CONCLUDING REMARKS 
 As demonstrated above, most of the proposed decisions will not confer any economic benefits 
on developing countries, much less facilitate their integration into the multilateral trading system.  
They are framed in language which would not oblig e developed countries to take positive measures to 
increase market access opportunities for developing count ries.  In many cases, the proposed decisions 
did not reflect the original proposals tabled by the proponents or capture the underlying reasons for the introduction of the proposals.  Those which fully reflected the original proposals were only 
declaratory and confirmed existing WTO provisions  or jurisprudence.  The Doha mandate was 
explicit in stating that "all special and differential treatment provisions shall be reviewed with a view 
to strengthening them and making them more precise , effective and operational".  By any measure, it 
cannot be argued that the proposed twenty-e ight decisions meet these criteria.   
  The objective of S&D measures should be to fac ilitate the integration of developing countries, 
particularly the least-developed ones, into the multilateral trading system.  As underscored in the 
preamble to the Marrakesh Agreement, "there is a need for positive efforts designed to ensure that 
developing countries, and especially the least-develop ed among them, secure a share in the growth in 
international trade commensurate with the needs of  their economic development".  Clearly, if the 
proposed decisions are of economic value to developi ng countries, we would have been the first to ask 
for their adoption.  African countries are concerne d about their marginalisation in the multilateral 
trading system and are prepared to work with ot her WTO Members to ensure that the grains from 
trade are spread around equitably.  African countri es are committed to the Doha Development Agenda 
negotiations as they consider trade as an engine  of economic growth and development, which can 
assist them to deal effectively with poverty.  To  that end, they are committed to work towards the 
Doha mandates. 
 
 
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