RESTRICTED  WORLD TRADE  
ORGANIZATION  S/CSC/M/50 
20 October 2009 
 (09-5169) 
Committee on Specific Commitments   
  
 
REPORT OF THE MEETING HELD ON 8 OCTOBER 2009 
 
Note by the Secretariat
1 
  
1. The Committee on Specific Commit ments (CSC) held a meeting on 8 October 2009, chaired 
by Mr. Jean-Marc Mignon from France.  The agenda for the meeting, contained in WTO/AIR/3432, 
was adopted.  
A. R
ELATIONSHIP BETWEEN OLD AND NEW COMMITMENTS  
2. The Chairman  recalled that at the last meeting, the Committee had addressed outstanding 
issues in three areas:  the role of the verification exercise;  the method to incorporate new schedules 
into the GATS;  and possible language to be included in the final protocol.  He suggested that in order 
to have a more constructive discussion, the Comm ittee address the issue of verification after the 
compilation of past relevant practice, requested fr om the Secretariat, had been circulated.  He 
expected delegations to make submissions so as to contribute to the discussion.  With respect to the 
incorporation method, he recalled that it had been agreed that the replacement method would be the 
working assumption to incorporate the results of the current market access negotiations into the 
GATS.  Under this assumption, each Member would have a single consolidated schedule comprising all of its commitments at the end of the negotiations, which would replace the schedules currently in force.  In other words, each Member would have only one sche dule in operation containing the 
commitments negotiated and agreed during the current round as well as unchanged existing 
commitments.  He noted that delegations had differe nt views with respect to the implications of the 
replacement method.  In order to ensure that the level of treatment provided by pre-existing 
commitments would not be undermined, some delegati ons had suggested language to be included in 
the incorporation instrument, as the Canada's informal note of 2006 had done.  Some other 
delegations were not convinced of the need to includ e such language in the incorporation instrument.   
3. He suggested that delegations reflect further on the issues raised in the discussion.  He asked, 
for example, whether under the assumption that ol d schedules were replaced by new schedules, the 
Vienna Convention provided clear guidance on usin g old schedules as a source for interpretation. 
4. The representative of Japan
 proposed that the Committee accelerate concrete discussions 
under this item since it had agreed that the replace ment method would be the working assumption.  
Particular issues to be addressed included whethe r the final protocol s hould contain any language 
aimed at preventing rollback and how it should be phrased.  His delegation believed that carefully 
drafted language in the final protocol and Artic le 31:1 of the Vienna Convention on the Law of 
Treaties could provide assurance for preventing roll back.  Should rollbacks be contained in the new 
schedules, he thought that, pursuant to Article 32 of  the Vienna Convention, certain mechanism might 
be created so as to give legal value to old comm itments.  On verification, he asked whether the 
Secretariat could provide information about past practi ce.  It might not be appropriate to proceed with 
                                                      
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. S/CSC/M/50 
Page 2  
 
  the verification process multilaterally.  While the initia l thought of his delegation was that verification 
should be pursued within friends groups, he was in terested in the ideas of other delegations.   
5. The representative of Canada
 stated that his delegation's informal note of 2006 had been 
intended to spark discussions regarding possible language  in the final protocol.  The past three-year 
showed that Members had different opinions about ho w to best achieve legal certainty.  There was a 
common objective, however, to ensure that Me mbers would not roll back from their existing 
commitments, whether intentionally or otherwise.  The discussion could be furthered by the tabling of 
a potential draft text.  Canada therefore suggested th at the Chairman take in to account comments that 
had been made in the past three years and prepare draft language for future deliberation.  On such 
language, Canada's view was that it should reiterate that rollbacks would only be permitted by way of 
Article XXI procedures.  Any language confirmi ng the use of old commitments as a tool for 
interpretation should not contradi ct the replacement method which Member had agreed to.  With 
respect to verification, the exercise should be conduc ted at the end of the Round to ensure that there 
were no rollbacks in the new schedules.  Any details  of the exercise would depend on the process to 
be used to conclude the Round.  Canada encourag ed Members to be as thorough as possible in their 
review of the offers on the table in order to mini mize potential problems that could come up at the end 
of the Round.  Given the uncertainty of the role of the verification exercise, Canada continued to 
emphasize the need for language in the final protocol  to ensure that rollbacks did not occur.     
6. The representative of Columbia  disagreed with the view that, since the Vienna Convention 
provided guidance, there was no need for the inclusion of language in the final protocol regarding the 
legal value of old commitments.  He noted that becau se of the Vienna Convention, there was a need to 
include language to ensure that old commitments c ould be used as context for interpretation in the 
sense of Article 31 of the Convention.  He shared th e view that additional language was needed in the 
final protocol with a view to preven ting rollbacks in the new schedules.   
7. The representative of Pakistan  noted the agreement among Members that, in accordance with 
Article XIX of the GATS, new commitments should not accord treatment less favourable than that 
provided previously.  He also noted that the results  of the current negotiations would not be a single 
instrument, but as many as 153 schedules of specifi c commitments.  Since not all these schedules 
would be subject to legal review or analysis, Members had to take a precautionary approach.  Neither 
Article XIX nor the Vienna Convention provided the guarantee Members were seeking unless there 
was enabling language in the final protocol which w ould play an intermediary role.  Such language 
was needed under the replacement method in order to provide Members with some comfort, as 
Canada had proposed.  His delegation was willing to contribute.   
8. The representative of the European Communities  stated that her delegation shared the view 
that certain legal language was needed in the fi nal protocol.  Although th e Vienna Convention was 
helpful, it was not precise enough to convey the role old commitments were intended to play.  For example, Article 32 of the Convention was onl y about the use of supplementary means of 
interpretation.  If Members wanted old commitments to serve as benchmark to avoid rollbacks, they 
needed to specify this.    
9. Concerning the issue of possible language to main tain the level of commitments and the legal 
value of old commitments, the representative of Thailand
 suggested that the Secretariat prepare the 
draft protocol to facilitate discussion.  It might provide Members guidance for discussion.    
10. The representative of Switzerland  stated that it was indispensable  to ensure that there would 
be no rollback in the new commitments.  Appropriate  language in the final protocol was needed to 
this effect.  This was essential because the GATS c ontained two provisions rela ting to the updating of 
schedules of specific commitments:  Article XIX an d Article XXI.  The ongoing negotiations were 
conducted pursuant to Article XIX.  There was no le gal basis for rollback in the current negotiations.   S/CSC/M/50 
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  His delegation had difficulties to understand why the interpretation provisions of the Vienna 
Convention should be linked to the maintenance of  the level of commitments under the replacement 
method.  The issue facing Members was not one of interpretation, but, concerned the legal value of 
old schedules which would be replaced.  Commitmen ts in the new schedules should be explicit and 
unambiguous in terms of wording;  and, in accordance with Article XIX the level of old commitments 
was not to be undermined.  He did not see why Artic le 31 of the Vienna Convention could be helpful 
in this circumstance.  His delega tion would continue to work on this issue in order to help find a 
solution satisfactory to all.  
11. The representative of the United States  said that it was difficult to discuss these issues in the 
abstract.  There was a risk that additional language might create new uncertainty for the legal standing 
of commitments.  He suggested that the Committ ee move to the next stage to discuss specific 
language Members might propose.  The envisaged Secr etariat's Note on past practice would also help 
his delegation consult more effectively and review relevant options.     
12. The representative of Chile  reiterated that it was not necessary to include any language in the 
final protocol to avoid rollbacks as there were appr opriate legal elements to this effect, such as the 
GATS and the Vienna Convention.  Like the United States, his delegation was also concerned that 
additional language might introduce uncertainty, and therefore wished to see specific proposals.  
Referring to the intervention by Switzerland as to wh ether there was an issue of interpretation, he 
noted that there might be conflicts among Member s with regard to the meaning of a specific 
commitment.  Panels and the Appellate Body wo uld interpret a commitment based on the Vienna 
Convention.  
13. The representative of Jamaica  noted the imprecise nature of existing specific commitments.  
Sometimes it was not clear whether a new commitment  constituted an improvement or a rollback.  He 
asked whether the Secretariat's Note could address this issue.    
14. The representative of the Secretariat  stated that, it was not always clear whether a new 
commitment constituted an improvement or a rollback.  For example, if a limitation on the number of 
service suppliers was replaced by a foreign equity li mitation, this would be an improvement for new 
entrants but a rollback for incumbents.  He suggest ed that Members make up their minds about what 
they wanted to see in the final protocol, and ho w they wished to deal with cases he had just 
mentioned.  When Members reached a certain degree of clarity, the Chairman, with the help of the 
Secretariat, would produce a first draft as the basis for further discussion.  Verification was also important, but that was an issue to be addressed in parallel.   
15. In responding to the Secretariat's co mments, the representative of Switzerland
 noted that the 
issue of interpretation had two levels.  The fi rst concerned the comparison between old and new 
commitments, like the examples given by the S ecretariat, to determine which was better in 
commercial terms.  Members might have different views on the meaning of the commitments concerned.  At a second level, it was necessary to determine the meaning of a specific commitment.  
The Vienna Convention might be helpful in cases where the wording of a commitment was 
ambiguous.  But it might not help to determine which commitment was better in commercial terms.  It 
appeared that in cases where there were conflicts  between old and new commitments, the Convention 
did not necessarily give precedence to the commitme nt that assured a higher level of market access, 
but to the more recent or more precise commitmen t unless the intention of the parties was clearly 
different.  Therefore, it was appropriate to have re levant language in the incorporation instrument.   
16. The Chairman
 suggested that the Committee take note of the statements made and revert to 
this item at its next meeting. 
17. It was so agreed .  S/CSC/M/50 
Page 4  
 
  B. S
CHEDULING ISSUES  
18. The Chairman  recalled that at the Committee's last form al meeting, it had been suggested that 
the Secretariat update the background note (S/C SS/W/118) on economic needs tests (ENTs).  
However, the mandate for this updating had yet to be clarified.  If the previous working assumption 
was followed, the document would be updated by ex amining ENTs as registered in the schedules of 
those Members that had acceded to the WTO afte r the circulation of document S/CSC/W/118 in 
November 2001.  He further recalled that two propo sals on the scope of the updating had been made 
at the last meeting.  One proposal was that the Secretariat examine ENTs in offers.  The second 
proposal was that the update include Members'  in formation on applied regime s concerning ENTs.  To 
follow the second proposal, the Secretariat would need  to be provided with re levant information by 
Members.  He wished that a decision could be taken at this meeting.  
19. The representative of China reiterated that his delegation s upported the proposal that the 
Secretariat update document S/CSS/W/118 based on the previous working assumption.  The Secretariat could also compile the information on th e removal of ENTs contained in offers so as to 
complement the updating of document S/CSS/W/11 8.  The latter would help Members assess the 
achievements made since the beginning of the current negotiations.    
20. The representative of Japan
 stated that his delegation supported the updating of the document 
based on offers.  
21. The representative of the European Communities  stated that her delegation had reservation 
concerning such an update since offers we re conditional and subject to changes. 
22. The representative of Chile  reiterated his delegation's reser vations of a similar nature. 
23. The representative of China  explained that his delegation's suggestion was that two separate 
documents be prepared by the Secretariat: one was to update document S/CSS/W/118 based on the 
previous working assumption; the other was to compile the information on the removal of ENTs based on Members' offers, which could be in the form of a job document or an informal note.  
24. The representative of the United States
 said that his delegation shared the concerns of the 
European Communities and Chile with respect to  the second document suggested by China.   
25. The Chairman  proposed that the Secretariat update document S/CSS/W/118 based on the 
previous working assumption and that he woul d consult with delega tions on China's second 
suggestion.  He also proposed that  the Committee take note of the statements made and revert to this 
agenda item at the next meeting. 
26. It was so agreed . 
C. CLASSIFICATION  ISSUES 
27. The Chairman  recalled that a suggestion had been made at the last meeting that the 
Committee discuss new services in various sector s based on the Background Papers currently 
prepared by the Secretariat for the Council for Trade in Services.  He invited delegations to consider 
this suggestion.   
28. There was no intervention under this item.  The Chairman  suggested that the Committee 
revert to this item at the next meeting.  S/CSC/M/50 
 Page 5 
 
 
  D. OTHER BUSINESS  
29. The Chairman  reminded delegations that the Briefi ng Session on scheduling issues conducted 
by the Secretariat for Geneva-based delegates would take place on 16 October.   
30. There was no intervention under this item.   
__________