RESTRICTED  WORLD TRADE  
ORGANIZATION  S/WPDR/M/47 
31 January 2011 
 (11-0487) 
Working Party on Domestic Regulation  
  
 
REPORT OF THE MEETING HELD ON 22 NOVEMBER 2010 
 
Note by the Secretariat
1 
 
 1. The Working Party on Domestic Regulation (WPDR) held a meeting on 22 November 2010.  
The agenda for the meeting was contained in Airgram WTO/AIR/3664, dated 12 November 2010. 
2. The representative of Brazil proposed raising unde r the item "Other Busi ness", the issue of 
updating Notes by the Secretariat on necessity tests in the WTO (S/WPDR/W/27), of December 2003 
and "disguised trade restrictions" (April 2007).  
3. The agenda was adopted
 as amended.  
A. DEVELOPMENT OF REGULATORY DISCIPLINES UNDER GATS ARTICLE  VI:4  
4. The Working Party addressed the above agenda  item in informal mode.  The Chairman  stated 
that he would prepare an informal summary of  the deliberations, under his own responsibility.2   
B. FUTURE WORK 
5. The Chairman  noted that at the last meeting, Memb ers had agreed to reflect further on a 
proposal for a Workshop on Regulatory Practices.  In the annotated agenda for the meeting 
(RD/SERV/30), he had suggested an outline and st ructure for the workshop.   The Workshop would 
comprise of two main parts.  A general introduc tory session which would provide background on the 
role of regulation in the services sector and its relevance to trade in services.  The session would also 
highlight any capacity building activities aimed at developing regulatory policy capacity.  In that session, representatives from international organizations  would be invited as speakers.  This would be 
followed by presentations of a maximum of five to six short country-case studies on the development and implementation of regulatory frameworks, and how  they relate to national policy objectives, as 
well as any obstacles identified and lessons learne d.  Speakers might also address how regulatory 
concepts were addressed in their domestic fram eworks, and highlight existing mechanisms for 
international regulatory cooperation.  For the count ry case studies, by way of facilitating the work of 
the Secretariat, he informed Members that they mi ght wish to propose possible services regulators that 
would be best placed to present on these topics by 17 December 2010.  
6. The representative of Bolivia
 noted that his delegation had not participated in the 
consultations conducted by the Chairman.  In his view, the Workshop should not be a repetition of a 
similar event that took place in 2004.  Much had happened since that time.  In light of the 
international financial crisis, mu ltilateral processes, which in some way or another, limit the 
regulating capacity of countries needed to be analys ed.  His delegation would be very interested in 
having the workshop include aspects of particular inte rest to developing countries.  For example, how 
                                                      
1 This document has been prepared under the Secret ariat's own responsibility and without prejudice to 
the positions of Members and to their rights and obligations under the WTO. 
2 As contained in "The Informal Summary by the Chairman" dated 13 January 2011. S/WPDR/M/47 
Page 2  
 
  regulatory practices could contribute to achievi ng universal coverage and other development 
objectives.  He recalled that Members had a mandate under the Doha Development Agenda 
negotiations to take account of the needs of develo ping countries.  In this connection, he proposed 
inviting the South Centre as a speaker in the first session of the Workshop.  
7. The representative of Ecuador
 noted that his delegation had not participated in the 
consultations on the Workshop.  His delegation supporte d the idea of organizing an event of this type 
as it could facilitate the consideration of new elemen ts in the context of the negotiations.  His capital 
agreed with the structure but would like to see deve lopment interests better reflected.  Developing 
countries have special needs and this could be a ddressed in two ways.  Firstly, speakers could be 
invited from the South Centre or academia.  Secondl y, while country experiences could be illustrative 
the analysis could be more usefully organised on a se ctoral basis.  This would facilitate consideration 
of regulatory challenges in a specific country, for instance in mining or financial services.  
8. The Chairman  clarified that the sectoral studies would be part of the session at which country 
experiences would be presented.  He underscored that when a country presented its regulatory 
experiences, it would necessarily do so on the basi s of a specific sector or sectors.  A sector only 
approach would not work, as the Workshop was only for one day and it would not be possible to 
cover all sectors in that limited amount of time.   On development, which was of paramount 
importance, he noted that UNCTAD was one of the organizations to be invited.  UNCTAD's work 
was primarily from a developing country perspective and in the area of domestic regulation it had an 
ongoing project on regulatory practices and frameworks in developing countries.  The OECD had also 
worked on issues of concern to developing countr ies.  In the session on case studies, the balance 
between developed and developing countries would, of course, be taken into consideration.  
Moreover, when presenting country experiences, speak ers could develop the concept of development 
and its linkage with regulatory prac tices.  Delegations would also have the opportunity to present all 
points of views and all types of issues from the fl oor.  Thus, he believed that the Workshop outline 
was appropriately balanced.   
9. The representative of Turkey  noted that it would have prefer red if the consultations on the 
workshop outline had been undertaken through open-e nded informal meetings, as that would allow all 
interested Members to provide their views.  Her delegation supported the outline for a Workshop on 
Regulatory Practices.  The previous Workshop on Domestic Regulation held  in March 2004 had been 
quite useful, however it mainly focused on the GATS approach to the regulation of services.  The 
forthcoming Workshop should focus more on diffe rent regulatory policies and experiences of 
Members, which should be valuable in addressing complementary and important matters regarding 
domestic regulation that were not emphasized in the 2004  workshop.  In addition, the Workshop 
would provide a venue for dialogue between represen tatives of international institutions and services 
regulators from Members. 
10. The Chairman  took note of the request to broaden the consultations.  
11. The representative of Chinese Taipei  expressed its interest in having service suppliers from  
developing countries inform Members on the main obst acles that they faced.  Service suppliers could 
also provide their views on what would be effec tive regulations and assess the current Chair's text.  
This information sharing would help to identif y specific problems.  By having service suppliers 
participate in the Workshop, Members would get a better understanding of the day to day problems 
faced by the private sector and the type of di sciplines they would need from the negotiations. 
12. The representative of Chile  noted that the outline corresponde d to comments that had been 
made at the previous meeting of the Working Party.  His delegation felt that it would be very useful to 
have the Workshop in the context of the negotiations on Article VI.4 disciplines.  It also believed that 
the issue of development was well reflected in the outline and explic itly mentioned in the annotations  S/WPDR/M/47 
 Page 3 
 
 
  for both the general introductory section as well as the country case studies.  The difficulties that 
Members might face when developing and implementing regulatory frameworks are development issues.  These would be further elaborated upon when Members discussed country experiences.  It 
would be very interesting to many developing Members to exchange experiences, as well as 
difficulties.  In his view, the concerns expressed by a number of Members on development issues had 
already been covered by the outline.  His delega tion supported the organization of the workshop and 
looked forward to having it during the next cluster. 
13. The representative of Bolivia
 reiterated that consultations should be conducted with the 
participation of as large a number of Members, as  possible.  His delegation supported the outline for 
the Workshop and believed it had a good focus.  There should be balance between developed and 
developing country Members in the mix of speakers.  In this connection, it would like to either have 
the South Centre invited, or an expert from academia  with a specifically developing country focus.  
This would ensure a balance in the spea kers for the general introductory session.  
14. The Chairman  took note of the request to invite the South Centre.  
15. The representative of the United States  strongly supported the idea of a Workshop at the 
upcoming cluster.  In particular, it looked forward to a full discussion of development, particularly the 
challenges faced by regulators from developing co untries.  He noted that his delegation would 
consider the proposals laid out by Bolivia and Ecuador.  With respect to the proposal from the representative of Chinese Taipei, it would prefer ha ving a separate event to address the concerns of 
service suppliers, as it would not wish to overload the February cluster. 
16. The representative of Australia
 noted that the Chairman's outline for the workshop took a 
balanced approach and sought to take into account  developing country interests, as well as the 
principles underpinning regulatory frameworks.  Sh e further noted that her delegation particularly 
liked the emphasis on practical experiences.  Such a focus would help inform the negotiations of the 
principles underpinning various systems, as well as  the approaches taken in different sectors.  The 
country case studies would also provide plenty of opportunity for participation by developing country 
Members.  Her delegation looked forward to hearing the sorts of difficulties encountered and to 
considering how they might be taken into account in  either the development chapter of the domestic 
regulation disciplines, or in relation to the disciplines in general.  She recalled that there was scope in 
the general introductory session to deal with capaci ty-building activities, including the development 
of regulatory policy capacity.  The organizations identified in the outline: UNCTAD;  the World Bank;  and the OECD were all experienced in th at field and would provide the Workshop with a 
strong focus on development issues.  Her delegatio n would not, however, be inclined to have the 
participation of academia.  The purpose of the Workshop was to convey information on practical 
experiences from a regulator's perspectiv e and it preferred keeping this focus. 
17. The representative of Ecuador
 felt that it would not always be easy to apply lessons learned 
from one country to another.  However, it did recogn ize that time was a constraint and it would be in 
favour of inviting other than the usual in ter-governmental organizations to speak.  
18. The representative of Japan  supported the Workshop.  The importance of addressing issues 
such as transparency, licensing and qualification requirements, and development in a balanced 
manner, was underscored.  A variety of e xperts should be invited to the Workshop. 
19. The representative of Zambia  on behalf of the LDC group expressed support for the outline of 
the proposed Workshop.  The event would provide a good opportunity to learn from the various 
domestic regulations disciplines of different Members.   The representative also noted that there would 
be an opportunity to bring out development aspects in the case studies.  In this connection, assistance S/WPDR/M/47 
Page 4  
 
  was requested for speakers and participants from de veloping countries, and least developed countries, 
in particular. 
20. The representative of China
 expressed support for the outline and structure of the proposed 
Workshop.  The presentations should be relevant to the current nego tiations and thus be focused on 
licensing and qualification requirements and procedures, and technical standards.  He believed that the 
Workshop could be made more productive, if devel opment-related elements were reflected in the 
discussions and presentations.  In this connecti on, China supported the suggestion to invite a 
representative from the South Centre to participate.   
21. The Chairman  expressed appreciation for the comments and feedback.  Concerning the 
speakers, the request for the inclusion of the South Ce ntre  was noted.  In terms of other speakers, he 
recalled that the purpose of the Workshop would be  to discuss regulatory practices and it might not 
thus be that useful to have an academic speaker.  With regard to the privat e sector, the focus of the 
Workshop was on the experience of regulators.  It would change the perspective of the workshop 
should industry representatives be invited.  It might be  possible in the future to have a separate event 
where service suppliers would be represented.  On the question of funding, he clarified that as there 
had been no budget allocation for this event, partic ipation in the Workshop would have to be self-
funded.  Members were requested to submit propo sed national speakers to the Secretariat by 17 
December 2010 and the Secretariat would seek to  put together a programme of presenters.  
22. The representative of Chinese Taipei  concurred with the Chairman with respect to the 
participation of the private sector.  
23. The representative of India  noted that at the previous meeting of the Council for Trade in 
Services in Special Session, together with some other Members, it had called for the intensification of 
informal discussions to narrow down differences in  domestic regulation.  While discussions during  
formal sessions were useful, one informal meeti ng in a two or three month period would not be 
sufficient to make progress.  Therefore, he reiterate d his delegation's request for informals to be held 
in between clusters.  
24. The representative of the United States  reiterated his delegation's concerns with having  
meetings in between clusters if th at would require the involvement of  capital based officials, but could 
otherwise agree to more informal meetings.  
25. The Chairman  noted that he would discuss further with Members the format and frequency of 
informal meetings.  
C. OTHER BUSINESS  
26. The representative of Brazil  noted that according to the indica tive work plan approved in July, 
the Working Party would tackle, during the next clus ter, the introductory session of the Chair’s text.  
This part of the text would touch on the issues of "n ecessity test" and "disguised restrictions on trade".  
Previous Secretariat notes on both concepts had great ly contributed to the discussions.  However, new 
dispute settlement developments had occurred since then  and it would be very useful if the Secretariat 
could update the jurisprudence on both concepts in a single note.   
27. The representative of Australia  supported the proposal by the delegation of Brazil.  The 
format of the previous Secretariat Note (S/WPDE7W/27), which described the differences and common elements of necessity tests, had been very  useful and would enrich the negotiations both at 
the senior level and in the Working Party.   S/WPDR/M/47 
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  28. The representative of Switzerland  believed that there had been some renewed interest on the 
subject of a necessity test.  The subject, although one of the three elements of the negotiating mandate under Article VI:4, had seen little progress.  He noted that the issue of a necessity test, in comparison 
to other domestic regulation subjects, was being taken up in parallel discussions.  His delegation 
supported the proposal for an updated Secretariat No te.  He further noted that the jurisprudence 
should be grouped in such a way so that the ne cessity tests in the exception provisions of GATT 
Article XX and GATS Article XIV, would be dist inguished from those embodied in the normative 
provisions of the TBT and SPS Agreements.   
29. The representative of Hong Kong, China
 believed that the Working Party should be prepared 
to address the issue of a necessity test and supported the proposal to update the Secretariat Note.  This 
was one of the most important topics in the dom estic regulation negotiations but it had not been 
discussed in the Working Party for quite some time.  He noted that, for his delegation, whether and 
how the issue of a necessity test was treated in th e disciplines, would affect its consideration of the 
level of ambition required from  the operational provisions.  
30. The representative of the United States  noted that it had grave concerns with the inclusion of 
a necessity test in the disciplines, but had no obj ection to the Secretariat updating its note on the uses 
of the concept of necessity in other WTO contexts. 
31. The Chairman  requested the Secretariat to update its  Note on "necessity tests" and "disguised 
trade restrictions".  
32. The representative of the Secretariat  noted that it would aim to provide the update by the end 
of January, in time for the February cluster.  It was recalled that the previous Note (S/WPDR/W/27)  
had a certain analytical structure with the informatio n grouped along the lines of certain themes, so as 
to facilitate the readers understanding of the concept of  necessity.  The Note contained four parts:  the 
policy objective;  the level of attainment of the obj ective;  the necessity of the measure itself;  and the 
burden of proof.  Under each of those 4 sections, in formation was provided on existing jurisprudence.  
The same structure would be followed in the update , with the inclusion of case law since the end of 
2003.  As had been proposed, both "necessity test s" and "disguised trade restrictions" would be 
covered in one note.  The previous  note had sought to distinguish between the use of a necessity test 
in an exception provision, like in Article XIV of the GATS or Article XX of the GATT, and the use 
necessity in a normative standard such as in the SPS  and TBT Agreements.  As had been requested by 
the delegation of Switzerland, the same stru cture would be kept in the updated Note. 
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