RESTRICTED  WORLD TRADE  
ORGANIZATION  S/CSC/M/48 
11 May 2009 
 (09-2294) 
Committee on Specific Commitments  
  
 
REPORT OF THE MEETING HELD ON 2 APRIL 2009 
 
Note by the Secretariat
1 
  
1. The Committee on Specific Commitments (CSC) he ld a meeting on 2 April 2009, chaired by 
Mr. Nicolas Torres from Colombia.  The agenda for the meeting, contained in WTO/AIR/3338, was adopted
.  
2. Before turning to the items on the agenda, the Chairman  informed the Committee that a list of 
the summaries of previous discussions on classification issues, scheduling issues and the relationship 
between old and new commitments had been prepared  by the Secretariat.  He noted that most 
discussions on these topics had been undertaken in info rmal mode and, thus, had not been reflected in 
the Committee's meeting reports.  He suggested th at delegations review the record of previous 
informal discussions in order to avoid unnecess ary repetition.  Delegations could get from the 
Secretariat the copies of the documents included in the list. 
A. SCHEDULING ISSUES  
3. The Chairman  recalled that, at the last meeting, most  delegations had cons idered this item as 
one of the priorities in the Committee's work progra mme.  He thus suggested that delegations adopt a 
pro-active approach.  
4. He noted that one specific scheduling issue rai sed at the last meeting were economic needs 
tests (ENTs).  Members were concerned, because  most of the ENTs inscribed in the schedules 
remained without implementation criteria specified.  This created uncertainty.  It had been suggested 
that the Committee conduct further discussions on issues related to ENTs.  To build on the work that 
had been done, delegations had been encourag ed to review previous documents, including a 
background note (S/CSS/W/118) prepared by the Secret ariat on this topic.  To facilitate discussion, 
the Committee might start by reflecting on issues such as: what was meant by "economic needs"; 
what kind of measures might qualify as an ENT; and which elements would be used to assess 
"economic needs"?  Delegations might also consid er whether a sectoral or modal discussion on ENTs 
would be helpful for achieving a more in-depth understanding of these issues . 
5. Referring to the background note on ENTs pr epared by the Secretariat in 2001, the 
representative of China  noted that in total 253 ENTs had been inscribed by 90 Members in their 
schedules, and that not all of them were small Members.  These ENTs varied in terms of both form and content.  Of the 253 entries, 96 provided no guidance concerning the criteria on which the test 
was based.  Of those entries that provided criteria on which the tests were based, very few were in 
accordance with the Scheduling Guidelines.  Criteri a listed were usually very vague, and in some 
cases they referred to public interests or public benefits  tests.  In view of this fact, there might be a 
need to discuss what was meant by ENTs and what measures might qualify.  Public interests or public 
                                                     
 
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/48 
Page 2  
 
  benefits tests were not measures envisaged under Ar ticle XVI of the GATS.  She noted that Annex C 
of the Hong Kong Ministerial Declaration had prov ided political guidance to clarify ENTs.  The 
Scheduling Guidelines required Members to indicate th e main criteria on which the test was based.  
For example, if the authority to establish a fac ility was based on a population criterion, the criterion 
should be described concisely.  Her delegati on hoped that Members would follow these guidelines 
and conduct a thorough review of their schedules. 
6. The representative of Hong Kong, China
 recalled that her delegation had made a contribution 
to previous discussions on ENTs by submitting a pa per (Job(04)/171) on 11 November 2004.  This 
paper indicated that scheduling of ENTs should only be for the purpose of inscribing quantitative 
limitations in accordance with Article XVI:2 (a)-(d ) of the GATS.  The Scheduling Guidelines had 
provided specific guidance on how ENTs should be expressed.  As with other market access 
limitations, the elements of inconsistency with Ar ticles XVI or XVII should be clearly described in 
schedules.  It was incumbent upon the scheduling Memb er to specify ENTs with sufficient clarity and 
specificity so as to enable other Members to iden tify the specific elements which made the limitation 
inconsistent with Articles XVI or XVII.  Her de legation also called for further discussions on the 
specification of ENTs and welcomed an information exchange on the application of scheduled ENTs.  
While open to a sectoral or modal discussion on  ENTs, her delegation thought that a generic 
discussion would be a good starting point at this stage.  
7. The representative of Pakistan  recognized the need for further discussion on ENTs.  His 
delegation was of the view that wherever ENTs were scheduled, they should be accompanied by clear definitions and implementation criteria.  Further discussion on a sectoral basis would help Members 
get a better understanding of ENTs.  His delegation was in an advanced  stage of finalizing its revised 
offer where almost all ENTs in initia l offers would be removed.    
8. The representative of Egypt
 stated that a revision of document S/CSS/118 might be needed as 
the ENTs in Egypt's Schedule as listed in th e Annex of the document had been removed. 
9. In responding to Egypt's statement, the Chairman  noted that document S/CSS/118 might need 
to be updated with respect to ENTs of all Members.   He suggested that the Committee take note of the 
statements made and revert to this item at its next meeting 
10. It was so agreed .  
B. RELATIONSHIP BETWEEN OLD AND NEW COMMITMENTS  
11. The Chairman  recalled that, at the last meeting, this item had also been identified as a priority 
in the Committee's work programme.  The delegation of Canada had highlighted again the two issues 
raised in its paper: (1) whether certain language in the final protocol at the end of the current round 
was needed to ensure that old schedules would cons titute a source for interpreting commitments in the 
new schedules;  and (2) whether certain language was also needed to ensure that commitments in a 
Member's new schedule would not accord treatment  less favourable than that accorded by old 
commitments.  Some delegations had made prel iminary comments under this item, indicating that 
their capitals were still reflecting on these issues.  To facilitate further discussion under this item, 
some questions had been listed in the annotated  agenda for delegations' consideration.    
12. The representative of Switzerland  stated that New Zealand's valuable comments in the last 
meeting with respect to the Vienna Convention on the Law of Treaties  had led the Committee again to 
analyze the relationship between old and new commitm ents from a legal perspective.  The analysis 
confirmed the view that rights granted by a Member to other Members under a specific commitment 
could not be undermined by simply reformulating this commitment in the new schedule.  The GATS 
was clear with respect to withdrawal or modification of specific commitments.  A specific S/CSC/M/48 
Page 3 
 
 
  commitment could only be withdrawn or modifi ed in accordance with the procedures set out in 
Article XXI of the GATS.  No backtracking or rollback could be made by simply changing the 
wording in the new schedule.  His delegation supporte d Canada's non-paper of 20 April 2006 in so far 
as Members could use appropriate language in th e relevant legal instrument to clearly and 
transparently clarify that the wording in the new schedule might not provide for less favourable 
treatment than commitments made earlier.     
13. The representative of Thailand  stated that, while a discussion on what constituted rollback 
might be useful, it would be a nearly impossible ta sk to define it clearly .  A rollback was to be 
determined on a case-by-case basis as commitments were to be interpreted in their context.  Without 
prejudice to his delegation's position, he wished to contribute to a few hypothetic cases that might be 
worth considering.  For instance, in respondi ng to domestic industries, some Members might 
unavoidably inscribe additional language to assist th e interpretation of their commitments.  Another 
example, in committing more market  access, Members might need to ad d more restrictive language in 
certain aspects, but provide net gains in overall ma rket access.  Would these cases be considered as 
rollback nevertheless?  In his view, these were ove rall improvement of original commitments.  He 
recognized that rollback was an absolutely undesira ble outcome and that certain language to provide 
certainty to existing commitments would be useful.  But at the same time, Members also needed to be 
careful about language that might discourage overall improvement of commitments.     
14. The representative of Japan  stated that his delegation consid ered the relationship between old 
and new commitments as priority, because it was directly related to the current market access 
negotiations.  In responding to questions raised in the annotated agenda, his delegation took the view 
that the Committee should not spend too much time on discussing the definition of rollback, and that 
rollbacks should be realistically prevented.  No rollback would be acceptable in the new schedule 
without having recourse to Article XXI of the GA TS.   His delegation would check thoroughly the 
new commitments of any other Members.  Certai n language would also be needed in the final 
protocol.  The main issue was how to deal with the legal status of old schedules.  One way of thinking 
might be to give certain legal status to ol d schedules, as suggested by Canada, when new 
commitments were considered to provide less favour able treatment than commi tments made earlier.  
There was language in bilateral ec onomic partnership agreements, whic h could also be useful in the 
WTO context.    
15. The representative of the European Communities  reiterated his delegation's position with 
respect to the relationship between old and new commitments.  Noting that old schedules would not 
be maintained when new schedules entered into fo rce, his delegation was ready to consider any 
language that could be useful to make sure th at new schedules would contain no rollbacks.  The 
verification exercise was one of the most useful tools for this purpose.  Some time therefore needed to 
be devoted to this exercise.    
16. The representative of Australia  stated that with respect to the relationship between old and 
new commitments, the most liberal commitments w ould stand.  The purpose of the negotiations was 
progressive liberalization of Members' services markets.  Therefore, Members could not use new offers to undermine their Uruguay Round commitmen ts.  Any attempt to undertake commitments 
resulting in treatment less favourable than prior co mmitments would undermine one of the principles 
and aims of the GATS and the rights and obligations contained therein.  Her delegation agreed with 
Canada's and New Zealand's view that unless the pr ocedures of Article XXI had been followed, the 
commitments in the new consolidated schedule might  not accord or be construed to accord treatment 
less favourable than that provided under previous co mmitments.  In responding to the questions raised 
in the annotated agenda, her delegation considered  that a statement on "no less favourable treatment" 
in the final protocol would be sufficient, with a clarification that it would apply to individual 
commitments rather than the schedule as a whole.  A verification exercise would be useful as it would S/CSC/M/48 
Page 4  
 
  be more difficult to hold Members accountable for their rollbacks after the negotiations were 
finalized.  A technical discussion on what constituted rollback could be an interesting idea to pursue. 
17. The representative of Pakistan
 noted that according to the GATS, the services negotiations 
were to be based on the concept of progressive lib eralization which should be reflected in the new 
schedules of specific commitments.  Given the complex nature of GATS schedules, his delegation 
was interested in a technical discussion on what cons tituted rollback in light of the parameters laid 
down in Article XIX of the GATS with a view to brin ging more clarity to the issue.  The checking and 
balancing mechanisms within the WTO system were su fficient to ensure legal certainty of schedules.  
His delegation recognized the need for further discussion under this item.    
18. The Chairman  suggested that the Committee take note of the statements made and revert to 
this item at its next meeting.  
19. It was so agreed .  
C. CLASSIFICATION ISSUES  
20. The Chairman  recalled that this item had been identi fied as a medium or long–term item in 
the Committee's work programme.  He noted however  that delegations with interest in discussing 
particular classification issues could put them forwar d at any time.  To assist further consideration , 
the Secretariat had re-circulated, as requested, th e summaries of previous discussions on classification 
issues shortly after the last meeting.   
21. Noting that there was no intervention under this item, he suggested that the Committee revert 
to this item at its next meeting.  
D. OTHER BUSINESS  
22. There was no intervention under this item.  
E. APPOINTMENT OF CHAIRPERSON  
23. The Committee elected Mr Jean-Marc Mignon,  from France, as its new Chairman by 
acclamation.  Mr. Mignon adjourned the meeting. 
 
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