WORLD TRADE  
ORGANIZATION  G/SPS/W/233 
18 February 2009 
 (09-0850) 
Committee on Sanitary a nd Phytosanitary Measures Original:   English 
  
 
ARTICLE 12.2 - CONSULTATIONS 
 
Proposal by Argentina and the United States
 
  
 The following communication, received on 17 Fe bruary 2009, is being circulated at the 
request of the Delegations of Argentina
 and the United States . 
 
_______________ 
 
BACKGROUND  
1. Article 12.2 of the Agreement on the Applica tion of Sanitary and Phytosanitary Measures 
(SPS Agreement) states that the SPS Committee (the Committee): 
"... shall encourage and facilitate ad hoc  consultations or negotiations among 
Members on specific sanitary or phytosanitary issues.  The Committee shall 
encourage the use of international sta ndards, guidelines or recommendations by all 
Members and, in this regard, shall sponsor  technical consultation and study with the 
objective of increasing coordination and in tegration between international and 
national systems and approaches for appr oving the use of food additives or for 
establishing tolerances for contaminants in  foods, beverages or feedstuffs". 
2. In this regard, the Working Proce dures of the Committee provide that: 
"With respect to any matter which has been raised under the Agreement, the 
Chairperson may, at the request of the Members directly concerned, assist them in dealing with the matter in question.  Th e Chairperson shall normally report to the 
Committee on the general outcome with respect to the matter in question."
1 
3. The Members have made use of consultations  under Article 12.2 on three prior occasions.2 
4. The WTO Secretariat has invited the Committee to "consider whether more explicit guidance 
of the use of ‘Good Offices’ would be helpful to Members, or whether other mechanisms for ad hoc  
consultations shoul d be developed".3 
5. In March 2008, Argentina introduced a proposal (G/SPS/W/219) that provides procedures for 
the functioning of good offices under Article 12.2.  In June 2008, the United States introduced a 
separate proposal (G/SPS/W/227) that also elab orates on how Members would consult with one 
another pursuant to Article 12.2.  Following the submission of the US proposal, the Chairperson 
                                                      
1 G/SPS/1, para. 6. 
2 G/SPS/1, para. 6; Communication from Argentina, G/SPS/W/219, footnote 3 (17 March 2008). 
3 JOB(07)/14, para. 30. G/SPS/W/233 
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  called on Argentina and the United States to work t ogether to propose draft Article 12.2 guidelines for 
the Committee’s consideration. 
PURPOSE 
 
6. The United States and Argentina believe that the Committee process, coupled with bilateral 
discussions, remains the best  forum for Members to raise concerns regarding specific measures and 
related technical issues of other Members and encour ages the Members to continue to participate in 
these meetings and discussions. 
7. However, SPS measures, their scientific bases, and related technical issues are often complex 
and Members may gain a better understanding of thei r concerns if they have the opportunity to 
consult with one another within the context of  a formal procedure under Article 12.2.  Such 
consultations may involve discussions on the technical aspects of the measure(s) and scientific support, as well as explore other related technica l issues, including the possibility of technical 
exchanges or special and differen tial treatment, where available. 
8. With this purpose in mind, Argentina and the United States propose the following guidelines 
for the Members to use when consulting w ith one another pursuant to Article 12.2. 
GUIDELINES 
 
9. Any Member may at any time request consulta tions regarding any SPS measure(s) or related 
technical issue(s). 
10. Member participation in consultations is voluntary. 
11. The decision of whether to participate in cons ultations, and all positi ons taken by Members 
during such consultations, will be without prejudice to the rights or obligations of a Member under the 
WTO Agreements. 
12. The consulting Members will treat as confiden tial the information submitted and positions 
taken during consultations, unless disclosure is consented to by the consulting Members. 
13. The Members agree that consultati ons will be held in good faith. 
14. A Member (the "requesting Member") must requ est consultations with another Member (the 
"responding Member") in writing.  The request will:  (1) refer to the measure(s ) or technical issue(s) 
to be consulted on; and (2) state the reasons fo r requesting consultations as well as any preliminary 
questions and concerns regarding the measure(s) or technical issue(s), including possible effects on trade.  In addition to sending the request to the responding Member, the requesting Member will send 
the request to the Secretariat and the Chairper son of the SPS Committee on the same day as the 
request is made. 
15. The responding Member will notify the requesti ng Member in writing whether it accepts or 
rejects the request within 30 days of receiving the request.  The responding Member will also send the 
response to the Secretariat and the Chairperson of the SPS Committee on the same day as the response 
is made. 
16. Where the responding Member has accepted th e consultations request, the consulting 
Members shall set a date within 45 days of accepti ng the request for the consultations for a meeting.  G/SPS/W/233 
 Page 3 
 
 
  17. The role of the Committee Chairperson (or d esignee thereof) is to facilitate communication 
between the consulting Members.  In that rega rd, the Committee Chairperson (or designee thereof) 
will consult with both Members regarding the parame ters of the consultations, including, but not 
limited to, whether it is recommended that technical  experts of each consulting Member should be 
present at the consultations, whether production of written responses and suppl ementary questions are 
desirable; and whether a mutually acceptable schedul e for such submissions a nd for further meetings, 
if necessary, can be determined.  At no time ma y the Committee Chairperson (or designee thereof) 
opine on a technical issue or on the consistenc y with any WTO agreement, including the SPS 
Agreement, of a measure or a consulting Member’s position on a technical issue. 
18. Where a consulting Member identifies a standard, guideline, or recommendation of Codex, 
OIE, or IPPC the consulting Members may jointly re quest the participation of the secretariat of the 
organization whose standard, guideline, or recomme ndation has been invoked to explain the scope or 
content of that standard, guideline, or recommendation. 
19. The consulting Members will endeavour to comp lete the consultations within a reasonable 
period of time. 
20. When either one or both of the consulting Me mbers wish to conclude the consultations, the 
Member(s) may do so through written notification to the other consulting Member at any time.  The 
Member or Members (if acting jointly) will promp tly provide written notification to the Secretariat 
and the Chairperson (or designee thereof) th at the consultations have concluded. 
21. At the conclusion of the consultations, with  approval from both Members, the Committee 
Chairperson will report the general outcome of the c onsultations to the Committee in accordance with 
the established working procedures of the Committee.4  The report will not contain confidential 
information unless both consulting Members consent to the inclusion of such information as described 
in paragraph 12. 
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4 G/SPS/1, para. 6.