WORLD TRADE  
ORGANIZATION  TN/RL/W/247 
17 May 2010 
 (10-2730) 
Negotiating Group on Rules  
  
 
ANTI-DUMPING, SUBSIDIES AND COUNTERVAILING  
MEASURES AND FISHERIES SUBSIDIES 
 
Statement by the Chairman
 
 
 
1. As my Chairmanship of the Rules Negotiating Group  comes to an end, I wanted to share with 
the Group a few thoughts and reflections on our work.   
2. I first want to convey to all de legations, and to all of you indi vidual delegates, how very much 
I appreciate the constructive spirit in which you have  engaged throughout my five-and-a half years as 
Chairman in the negotiations on anti-dumping, horizontal subsidies disciplines, countervailing 
measures, and fisheries subsidies, in spite of the highl y controversial nature of these issues.  It is clear 
to me that your consistent positive engagement has allowed the Group to make real, substantive 
progress in sorting through the issues raised by dele gations, in reaching a high degree of convergence 
in a number of important areas, and in clearly iden tifying the nature of the differences on the most 
difficult issues where no convergence has yet emerged.  I have a great deal of confidence that when 
the time comes, this work will pay off, with delegations being well-prepared to confront and 
ultimately make both the technical decisions and the political trade-offs necessary to bring this 
negotiation to a successful conclusion within the context of the Round as a whole.   
3. Delegations will remember that when I assume d the Chairmanship in late 2004, the Group 
had just moved from the initial phase of issue identif ication based on formal documents and meetings, 
to more specific elaborated proposals identif ying particular problems and suggesting specific 
proposed approaches to resolve th em, with a corresponding move to meetings in informal mode.  
Some 140 proposals had been submitted in the first phase of the negotiations, a daunting number that 
the elaborated proposals helped to refine and focus.   
4. The process was further advanced  when the Group moved to its next phase of proposals in the 
form of legal text.  These very specific and focused proposals also provided a good basis for the 
Group to pursue its work in a variety of formats, pl enary, plurilateral and bilateral.  The additional 
clarification provided by these proposals and the re spective discussions, in terms of the positions of 
different delegations and the alternatives proposed for concrete solutions, helped to anchor our 
debates in practical and specific questions, and yiel ded for a number of issues the kernels of broadly 
acceptable outcomes.   
5. Of course, a number of the most central issues in each area of our work remained intractable, 
with proposals from different delegations taking at times diametrically-opposed approaches to a given 
problem.  In spite of this, the discussions were al ways illuminating, and thus even in those most 
difficult areas we all achieved greater understanding of the exact nature of the issues at hand, and the 
practical realities and considerations that will need  to be addressed in finding the final balanced 
outcome.   
6. As you all are well aware, the nature and extent  of differences of vi ew among delegations was 
what led the Ministers at Hong Kong, in 2005, to conclude that progress would best be made by the TN/RL/W/247 
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  issuance of arbitrated Chairman's texts at an a ppropriate moment, as the basis for concluding the 
negotiations.  In late 2007, pursuant to that mandate, I felt it was the right time, and I issued my first 
draft consolidated texts on anti-dumping, horizont al subsidies disciplines, countervailing measures, 
and fisheries subsidies.  These texts contained no  brackets or drafting alternatives, but instead 
proposed specific compromise language on all of the issues addressed.  As I had anticipated, reactions 
were extremely strong to parts of my texts.  While I did anticipate this, I did not avoid my 
responsibilities.  The solutions that I proposed on the most sensitive issues were at times highly 
controversial, and in some instances intensely disliked  by delegations on all sides of a given issue.   
7. The Group nevertheless conducted a very thorou gh review of my texts, in a constructive 
manner and again in a variety of formats.  In this  process, all delegations had the opportunity to voice 
their own views and to hear the reactions of others.  I must acknowledge that views did not 
substantively converge through this exchange, but positions were presented with greater sharpness of 
focus, and more detail, which helped all of us to  gain a greater understanding  of the nature of the 
problems to be resolved.  Moreover, it became cl ear through this process that while delegations 
sought new texts from the Chair, they wanted these texts to take a bottom-up approach to the most 
controversial issues.  In December 2008, I issued those texts.   
Anti-dumping
 
8. In my December 2008 anti-dumping text, I addressed the eleven most controversial issues – 
zeroing, causation of injury, material retardation,  the exclusion of related producers, product under 
consideration, information requests to affiliate d parties, public interest & lesser duty, anti-
circumvention, sunset reviews, third country du mping, and special and differential treatment / 
technical assistance – using brackets identifying the issue and summarizing the difference of views 
among delegations, rather than proposing specific le gal drafting.  By addressing in this way these 
issues I indicated that all delegations' positions remain ed explicitly on the table, and that it would be 
up to you, the delegations, to provide new inputs and signals as to where an eventual compromise could be found.   
9. The discussions on my revised anti-dumping text, which took up all of 2009, were very 
constructive and allowed the Group to consolidate im portant progress in a number of areas.  These 
discussions were conducted on the basis of a three- pillars approach, where at each meeting we 
discussed unbracketed proposed chang es, bracketed issues, and unaddressed issues.  It remains my 
view that this was the most neutral and efficient wa y to proceed.  Particularly in respect of many of 
the unbracketed changes, we saw a considerable degree of convergence.  At times, I felt that we were 
on the verge of getting into a drafting exercise.  For the bracketed and unaddressed issues, the 
discussions were very useful in further clarifying  delegations' positions, and perhaps also indicating 
how we could best address those issues in the next phases.  
10. Taking an overall view, I thus believe that our  anti-dumping work to date has been very 
successful in framing and exploring all of the issu es of interest to delegations, and focusing those 
issues through consideration of possible legal drafting.   In this respect, even  for some of the most 
controversial issues, participants continue to use th e draft language from my first draft text as at least 
a point of reference, and to me as a Chair this h as been very encouraging in the last months.   
11. That said, on the most politically sensitive issues in respect of anti-dumping, it is clear that we 
have not yet seen any real narrowing of the substantiv e gaps that have existed since the beginning of 
this negotiation.  I recognize that it will remain diff icult for participants in this Group to negotiate 
final compromises on those issues until the overall direction, and ambition level, of the Round 
becomes clearer to all of us.  For this reason, I con tinue to think that any effort to identify in advance 
some sort of agreed "landing zones" would imply th at we turn to a top-down approach, in which the 
Chair would have to arbitrate solutions, and politica lly we are clearly not at that stage.  On the  TN/RL/W/247 
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  contrary, our discussions since I circulated my second draft text have continued to indicate that the 
Group at this time remains in a bottom-up mode, and is not seeking a new proposal from the Chair for a comprehensive balance.  Neverthele ss, I do believe that there is room  for delegations to continue to 
explore on a technical basis possible alterna tive solutions to the key political issues.  
Horizontal subsidies disciplines and countervailing measures
 
12. In my December 2008 revised SCM text, as for anti-dumping I addressed four of the most 
controversial issues in respect of horizontal subs idies disciplines -- certain financing by loss-making 
institutions;  export competitiveness;  export cr edits–market benchmarks;  and export credits–
successor undertakings -- using brackets that identif ied the issue and summarized the difference of 
views among delegations, rather than proposing specific legal drafting.  Furthermore, the un-
bracketed issues related to regulated pricing re main highly controversial and of comparable 
importance.  And a number of other significant i ssues, such as pass-through and subsidy allocation, 
also are addressed through un-bracketed text.  It is clear that all delegations' positions remain on the 
table on all issues, and thus it is up to delegations to work together to provide inputs and signals for 
how these issues could be resolved in a wa y that all will be able to accept.   
13. We spent the better part of 2009 reviewing bot h the bracketed and unbracketed language in 
my new text, and we also further considered a num ber of unaddressed issues that had been raised by 
delegations.  In addition, the Group has made  good progress on the issues relating to possible 
transposition of potential amendments to the AD te xt into the CVD rules, as well as on considering 
the differences between the existing AD and CVD ru les and whether and how those differences might 
be addressed.  To some, this work might seem not so important or relevant, yet in my view it is both 
important and relevant for the coherence of the te xts in the future, and time spent now will save you 
and the overall process a lot of time and work as we go into the final phase of this discussion.  In 
particular, the drafting of the counterpart chang es to the CVD rules clearly will be time consuming 
and delicate.  The present period of relatively low ac tivity in the Round might be put to good use in 
exploring, in as specific a way possible, legal drafting on the areas where transposition may be 
possible, on the clear understanding, as always, that such technical work is without prejudice to the 
final position of any delegation.   
14. In terms of where we go next on horizontal s ubsidies issues, first, while we have made 
progress on technical issues, substantive gaps rema in on the most important political issues, and 
compromises are likely to reveal themselves only at the latter stages of this Round.  That said, there is 
certainly scope for further technical engagement on a ll issues, even the most controversial ones, and I 
would encourage all of you to continue to work on all issues in a range of formats, which may 
facilitate exploration, without prejudice to any one's position, of possible alternative technical 
solutions.  Second, I note that there are two new pr oposals, from India, that have yet to be discussed, 
and are to be taken up when the Group next meets.  To  the extent that there are other issues of interest 
to delegations that have not yet been raised, it woul d make sense to get those on the table so that they 
can be fully explored.  This will allow the bottom-up dynamic to work fully.   
Fisheries subsidies  
15. On fisheries subsidies, as we all know we are st arting with a blank piece of paper, as there are 
of course no sector-specific disciplines on fisheries subsidies in the WTO.  For this reason, my 
first draft text of November 2007 included a ne w annex to the SCM Agreement that proposed 
additional disciplines on fisheries subsidies, based upon the prohibition of certain subsidies that I 
considered, based on participants' submissions to the Group, were most likely to give rise to 
overcapacity or over-fishing.  My text also incl uded certain general exceptions; provisions on special 
and differential treatment; general disciplines addressing certain fisheries adverse effects;  fisheries TN/RL/W/247 
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  management conditionalities;  and pr ovisions on notifications and surv eillance, transition and dispute 
settlement.   
16. I crafted this annex with a view to mee ting the mandate from Hong Kong to "strengthen 
disciplines on subsidies in the fi sheries sector, including through th e prohibition of certain forms of 
fisheries subsidies that contribute to overcapacity and over-fishing", and to include in the disciplines 
provisions on "transparency and enforceability", as well as "appropriate and effective special and 
differential treatment for developing and least-devel oped Members [which] should be an integral part 
of the ... negotiations, taking into account the importa nce of this sector to development priorities, 
poverty reduction, and livelihood a nd food security concerns".  In my view, the key points of the 
Hong Kong Declaration were that the focus was ov ercapacity and over-fishing, that the disciplines 
should include a prohibition on certain forms of subs idies that contributed to such overcapacity and 
over-fishing, that the rules needed  to be enforceable, and that effective special and differential 
treatment needed to be an integral part of our work.   
17. As you know, my draft text on fisheries subsidi es proved at least as cont roversial as my draft 
texts on AD and horizontal subsidies, and our discu ssions of the text throughout 2008 yielded no real 
narrowing in positions.  Thus, when I issued my ne w texts in December 2008, I was not in a position 
to issue a revised comprehensive text  on fisheries, nor, given that th e fisheries text was a wholly new 
text rather than adjustments to an existing framework , was I able to revert on controversial issues to 
an existing agreement.  Accordingly, I decided to circulate a roadmap, detailing specific focused 
questions on all aspects of the proposed disciplines.   The purpose of the roadmap was to provide a 
basis for a well-structured point-by-point discussion  on the wide range of complex issues facing the 
Group.   
18. We dedicated 2009 to considering each and every one of the questions raised in that roadmap, 
in respect of the prohibition;  the general exce ptions;  special and differential treatment;  
general disciplines / actionability;  fisheries ma nagement;  transparency;  dispute settlement;  
implementation;  and transition rules.  In this re view, in particular, we analyzed the balance and 
relationship among the various structural elements in  possible new disciplines:  the relationship of the 
breadth of a prohibition to the breadth of general and S&D exceptions, with a view to ensuring an effective but not overly broad discipline;  the relati onship of fisheries management to the possibility to 
access certain types of subsidies;  and the rela tionship between using flexibilities and providing 
transparency in respect of their use.  We co mpleted the process in December last year.   
19. Where do we go next?  We have already been discussing a number of new proposals from 
participants, offering either new approaches to specific issues or entirely new architectures for 
disciplines on fisheries subsidies.  To date, these  proposals include a shift in the focus of the 
disciplines from a prohibition to an amber box where subsidies caused fisheries adverse effects;  a proposal to expand special and differential treatment  for small and vulnerable economies;  a proposal 
to substantially alter the S&D treatment from what was proposed in my first draft text, and a proposal 
that would address general exceptions, the general discipline, fisheries management, and other 
elements.  I recall that during the process of discussing the roadmap, a number of delegations expressed interest in submitting new proposals, so I imagine that there may be more new proposals in 
the pipeline that will need to be considered.  My sense is that in this area, as in  the others, participants 
remain in bottom-up mode for the time being.   
20. As I have said in the past, however, in my view  this area of our negotiations has a particular 
urgency, which has been emphasized at some point during our meetings by vi rtually all delegations, 
from every region and at all levels of development.  You know well to what I am referring – the dire 
state of global fish stocks, which has only wor sened since the WTO first took up the question of 
fisheries subsidies in the late 1990s.  The latest  figures from the FAO indicate that by now, some 
80 per cent of world fish stocks are fully or over-exp loited, as are most of the stocks of the top ten  TN/RL/W/247 
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  species, with fishing capacity remaining far above a level commensurate with sustainable catch levels.  
And the enormous level of subsidies continues una bated, with the negative consequences not only of 
contributing to the depletion of fish stocks but also of encouraging fishing well beyond economically 
rational levels, costing society as a whole billions of dollars annually in lost potential profits, in 
addition to the direct costs of the subsidies.  Th e time pressure is only increasing, with the decline in 
fish stocks and the economically irrational fishi ng activities putting at increasing risk the livelihoods 
of vast numbers of people around the globe.  This is what our negotiating mandates recognize, and 
this is what we are charged to address through these negotiations.   
21. So, your challenge remains to achieve results  that create new disciplines that effectively 
address the contribution of subsidies to that overcapac ity and over-fishing, before it is too late.  And 
here, we must be very careful when we think about our ambition level.  In particular, given the unique 
characteristics of the fisheries sector, if we lower our sights too low, we will end up with a result that 
is contrary to our mandate.  In other words, while certain trade-offs are imaginable in the context of 
fisheries subsidies disciplines, the principle of establishing a discipline that is effective in controlling 
subsidies that contribute to overcapacity or over-fish ing, by definition, limits the number and scope of 
such potential trade-offs.  It is for this reason that the questions in my roadmap sought, among other 
things, to concentrate the minds of delegations on th e need to reconcile their legitimate concerns over 
the impact on them of new disciplines with a result that conforms to, rather than undermines, our 
mandate in regard to overcapacity and over-fishing.   This remains our central challenge in these 
negotiations.   
22. In this regard, all delegations have a real, substantial interest in seeing global fisheries 
subsidies levels controlled.  And given this, all dele gations will need to be prepared for the day when 
they will have to answer the question of the nature  and level of disciplines they themselves can take 
on in return for obtaining disciplines on the s ubsidies of others.  While domestically, accepting 
subsidy disciplines always is difficult, in this cas e in particular it is an important element in a 
sustainable future for fisheries, and the liv elihoods that depend on them, everywhere.   
23. I therefore can only encourage you, here as in the other areas of our work, to continue and 
really deepen your engagement on the full range of issues relating to fisheries subsidies.  Make your 
discussions as specific and as grounded in your own r ealities as you can.  This will help others to 
understand your difficulties, but it may also help you to envisage policy alternatives that might work 
better to achieve your policy goals, overall, than  your current approaches.  Moreover, while 
concluding the fisheries subsidies negotiations will ultimately require decisions at a high political 
level, the issues are highly complex and technical, and thus the decisions will need to be technically 
extremely well-prepared.   
24. The involvement of fisheries officials in your governments in these discussions can only help 
in this regard.  For one thing, it is clear that in  our discussions, we continue to grapple with basic 
concepts and elements of fisheries management, how  these are reflected in the various international 
instruments that have been referred to in our discu ssions, and how they are implemented in real life.  
It seems to me that the time has arrived where it is increasingly important for all of us trade negotiators to bring some outside perspectives and information to bear as we consider how to draft 
provisions concerning fisheries management and other technical aspects related to fisheries.  Having 
your national technical experts enga ged will help you as negotiators to sift through the issues and 
arrive at a result that is technically sound, and supp ortive of sustainability.  The trends in global fish 
stocks are alarming, and business as usual may have truly disastrous consequences.  A great deal of 
creativity is called for, so that governments can meet the legitimate needs of th eir citizens in the short 
term, while establishing a sound a nd sustainable economic footing for those citizens over the long 
term, and time is short.  I have confidence in your ability to do what is need ed on fisheries subsidies, 
as in the other areas of our work.   TN/RL/W/247 
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  Conclusion
 
25. As I now leave the Group, I would offer the fo llowing general suggestions and advice to the 
Group.  First, I would encourage you, the particip ants, to remain engaged on a technical basis on all 
issues, including in particular the controversial ones.  While the ultimate decisions as to how to 
resolve those issues will need to be made at the politi cal rather than the technical level, in my view 
there would be value in a process whereby you expl ore on a technical basis how various alternative 
solutions could be drafted.  This is in your ha nds - I cannot imagine Ministers or Deputy Ministers 
undertaking this exercise.  This would help to ensu re that the final political decisions have a sound 
technical basis.   
26. As for how to do this, I have a few ideas.  One, keep your domestic technical experts, 
including your investigating authorities, if you have them, close to the process.  Second, keep meeting 
in different configurations; think about possible va riable geometries.  Most importantly, take the 
initiative.  Don't wait for the Chair, help him; if pos sible, surprise him with your consensus ideas.  I 
find no reason why you, who have sh own so much responsibility over these five years, cannot do this 
yourselves.   
27. More generally, although the political momentum to  resolve the more controversial issues is 
likely to come only at the final stage of the Ro und as a whole, when the outlines of the overall 
package are clearer, continuing with a technical proce ss will help to maintain something which I deem 
extremely important:  the good lines of communicati on that all of you have established through the 
work of this Group.  Those constructive communi cation channels can only help in reaching an 
acceptable final balance.  Indeed, without t hose channels, you will not reach consensus. 
28. Of course today I cannot predict what the ultim ate compromises will look like, or what the 
final balance will be.  It is clear, however, that Ru les will need to make its contribution to the final 
outcome of the Round, and that the Rules package will need to cover all areas of the Rules mandate.  I 
cannot foresee an overall package without a substa ntive outcome from the Rules Negotiating Group.  
Given the significant number of politically difficult  issues that remain on the table, and the large 
divergences among delegations' positions on those issues,  all delegations will need at some stage to 
make compromises, identifying their top priorities and what they are willing to pay for them.  This of 
course will not be easy, as if it were, it would alre ady have been done.  And I know that for all 
delegations engaged in the negotia tions, taking the necessary decisions will be difficult not just 
multilaterally but also, perhaps more so, at home.  E ach Member's domestic situation is different and 
there are no magic formulas for successfully mana ging the interface between the multilateral and 
national political contexts.  That said, I believe th at you, the participants in this Group, are well-
positioned at least for the multilateral side, and I thus  have a great deal of confidence that you will 
continue to contribute to the DDA's successful conclusion.   
29. My last message is, negotiate thinking about th e future.  Negotiate informed about the past, 
but don't anchor yourselves in the past.  What you are drafting will be the rules of the game for the 
next decade, if not the next decades.  Try to imagin e what that future will be, try to imagine your own 
countries in that future, and negotiate with that view in your minds.   
 
 
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