WORLD TRADE  
ORGANIZATION  TN/RL/GEN/150/Rev.2 
9 October 2007 
 (07-4313) 
Negotiating Group on Rules Original:   English 
  
FISHERIES SUBSIDIES:  PROPOSED NEW DISCIPLINES 
 
Revised Proposal from the Republic of Indonesia
 
 
Revision  
 
 
 The following communication, dated 4 October 2007, is being circulated at the request of the Delegation of the Republic of Indonesia.    
_______________ 
 
 
INTRODUCTION 
1. Following the discussion on Indonesia's 5 September 2007 Revised Proposal 
(TN/RL/Gen/150/Rev.1), Indonesia has undertaken to revise the text it submitted in September to 
reflect those discussions.  
 
2. The delegation of Indonesia believes that its  present revised text will provide a basis for 
further discussion and convergence of views around the important issues involved in this negotiation. The revisions focus primarily on three areas of the text.  These are: prohibited subsidies, adverse 
effects, and special and differential treatment. 
 3. First, Indonesia believes that the keys to  these negotiations are to put in place strong 
disciplines, and to make them practical and enfor ceable.  These goals are the focus of our proposals.  
In terms of strong disciplines, there was much discu ssion in the last meeting about the mandate from 
the Hong Kong Ministerial meeting.  As we indicated in the last meeting, we are very supportive of 
the mechanism of using a prohibition, provided that  we all understand that it is still an incomplete 
solution to many of the issues th at we are seeking to address.  We introduce a proposed text on 
prohibition with this Revised Proposal.  However,  Members should also remind themselves about the 
fact that the Hong Kong mandate is completely s ilent on how - or even whether - new WTO rules 
should impose disciplines on fisheries subsidies falling outside an eventual proh ibition.  This curious 
omission indicates that there were serious issues which we had not begun to address by Hong Kong, 
but which need to be addressed.  We believe that the overriding goal of strong disciplines for fishery 
subsidies requires disciplines both as to a prohibition, as well as to actionability.   
4. In terms of the new Article 2 in our Revised  Proposal which addresses a prohibition, we have 
been guided by several key principles.  To be c onsistent with the structure and coverage of the 
ASCM, and to avoid definitional confusions between the ASCM and this eventual Fisheries Subsidies 
Annex, any prohibitions should be focused on subsidies deemed by de finition to be harmful, with 
other subsidies being actionable and now also subject ed to a strong adverse effects standard specific 
to fisheries.  Members should be able to clear ly delineate between prohibited subsidies which are 
deemed by their nature to cause harm to other Me mbers, and actionable subsidies which need to be 
shown to cause adverse effects to other Members.  To  be clear, all fisheries subsidies other than those 
which are stated as prohibited would still be subject ed to possible measures as actionable subsidies. TN/RL/GEN/150/Rev.2 
Page 2  
 
  As we indicated in our last proposal, other than limited exceptions and S&D rules, all fishery 
subsidies would be captured.   5. In drafting our proposed article on prohibite d subsidies, we have drawn from proposals made 
by other Members, including the EC, Norway, and Japan, and have sought to include each of the 
proposals made by those Members.  We made some  modifications to the scope of the prohibitions 
addressed in those earlier proposals.  We have also added an important new class of prohibited 
subsidies addressed against overfishing, in terms of subsidies for fixed or variable operating costs of 
fishing and on-board processing.  Six different type s of fisheries subsidies are covered as prohibited 
subsidies.  Thus, the resulting list of prohibited fi sheries subsidies is broader and stronger than 
previously proposed by those Members. 
 6.  In terms of the remaining subsidies which require strong disciplines, we have continued to 
work on the areas of actionable subsidies and the cri tical subject of the test for determining whether 
they are actionable, namely the adverse effects test.  Members that do not had experience with 
actionable subsidies need to be aware that the sy stem of actionable subsidies under the ASCM is in 
fact the principle means used under the ASCM to discipline subsidies to  date.  We have restructured 
some of our approach to actionable subsidies, wh ich is now Article 3 of our Revised Proposal.  We 
have added a section 3.2 listing several types of su bsidy which are actionable.  One of them is the 
topic of vessel decommissioning, which we moved from being exempted if meeting certain conditions, to actionable unless meeting certain conditions.  We moved vessel decommissioning from 
the Article 4 exceptions to this new list of actionabl e subsidies, in order to make Article 4 of this 
proposal clearer as to its "green light" nature.  We  also added two subsidy types which other Members 
had proposed should be subject to being deemed to cause serious prejudice (see Art. 7.3 herein).  
There may be other subsidy types for which it would be useful to include in such a list.  One could 
also take the view that such a list is unnecessary,  since the definition of actionability covers these 
subsidies anyway.  We invite Member comments and suggestions on these areas. 
 
7. Second, we have also substantially restruct ured our text (formerly Article 6) on adverse 
effects, and in fact have split it into two Artic les (now Articles 7 and 8), one article paralleling 
Articles 5, 6 and 7 of the ASCM relating broadly to  actionable subsidies, and the other paralleling the 
articles in Part V of the ASCM relating to count ervailing duty investigations.  From comments by 
Members, we found that there was some confusion on the practical issues of applying the adverse 
effects test.  Our suggestions go a long way to resolving some questions .  There are still some 
conceptual areas on which Members need to focus, and we have noted areas that have thus far come to our attention by using brackets.  For example, in  Article 8.1, we have identified some of the areas 
where use of a test for injury to a fisheries resource is different than injury to a domestic industry, and 
the question of standing of recognized parties other than a domestic industry to bring a CVD 
application needs consideration.  We invite Memb er feedback on these and other issues.  We have 
added parallels from ASCM Article 15 to the practical  steps for evaluating injury in Articles 8.2, 8.3 
and 8.4.  We have sought wherever possible to use concepts and practices in the ASCM for the new 
test of adverse effects to a fishery resource. 
 
8. Third, relating to Special and Differential Treatment, we have noted that some Members 
commented about the conditions for these provisions in  the S&D "Cascade" that we have employed.  
We made that conditionality clearer in this Revised  Proposal, and also added some areas of coverage 
proposed by Brazil and Argentina in their recent paper. 
 
9. In sum, this Revised Proposal reflects earlie r responses, and represents many important areas 
of convergence of views, as well as addressing areas on which Members have needed to focus.  The 
Revised Proposal is attached.  We also attach a hi ghlighted version for the convenience of Members, 
showing all changes from our 5 September 2007 Proposal.  We welcome further comments and 
feedback from Members.   TN/RL/GEN/150/Rev.2 
 Page 3 
 
 
  Attachment 
 
ANNEX [VIII] TO THE AGREEMENT ON SUBSIDIES AND  
COUNTERVAILING MEASURES 
 
Preamble 
Members, 
Recalling  the commitment at Doha to clarify and im prove WTO disciplines on fishery subsidies.   
Noting  the current state of world fishery stocks and the desire of Members to address subsidies that 
have a harmful effect on them;   
Conscious  of the negative effects of overcapacity and overfishing on these fisheries resources;   
Reaffirming  that provisions for special and differential (S&D) treatment are an integral part of the 
WTO Agreements;   
Determined  to strengthen ASCM provisions with a view to making them more precise, effective and 
operational in relation to fisheries;   
Considering  the social and economic importance of the fisheries sector to developing country 
Members;   
Hereby agree  as follows:   
Article 1 
Definitions and coverage 
1.1 This Annex provides for specific provisions regard ing fisheries subsidies a nd it is an integral 
part of the Agreement on Subsidies and Countervailing Measures (ASCM).   
1.2 A subsidy as used in this Annex is a subsidy wi thin the meaning of paragraph 1 of Article 1 of 
the Agreement on Subsidies and Countervailing Measure s (ASCM).  A subsidy subject to this Annex 
must be specific, pursuant to Article 2 of the ASCM.   
1.3 This Annex shall not apply to inland fisheries1 or to aquaculture.2   
1.4 This Annex covers any subsidy that confers a benefit to or on behalf of any company and/or 
person linked in fact or in law, directly or indirectly3, to enterprises engaged in the harvesting of 
marine wild capture fisheries.  Fisheries subsidi es shall encompass any subsidy programme and/or the 
disbursement made under such programme.   
                                                      
1 "Inland fisheries" are fisheries which are carried  out in freshwater or estuaries of a Member and 
whose target species are those that spen d all of their life-cycle therein.   
2 "Aquaculture" is the farming of aquatic organism s, including fish, mollusc s and crustaceans, provided 
that no capture fisheries is used to feed raised fish or is farmed.   
3 The term "directly or indirectly" is used in this Annex in the same sense as it is used in paragraph 1 of 
Article XVI of GATT 1994.   TN/RL/GEN/150/Rev.2 
Page 4  
 
  1.5 Harvesting includes the on-vessel processing of fish and transport of fish from one vessel to 
another or from a vessel to shore, but it does not  include inland or on-shore processing or other post-
harvest handling or activity.   
1.6 This Annex does not cover government-to- government payments to obtain access for a 
Member's distant water fishing fleet to fisheri es resources within the territorial sea or exclusive 
economic zone of a developing country, or to  quotas or other rights established by any regional 
fishery management organization (RFMO) or arrangeme nt.  The further transfer of such rights to the 
Member's fishing fleet is covered by this Annex but is not actionable under Article 3, provided that:   
(a) a benefit is not conferred by the onward transfer of such rights to the Member's 
fishing fleet, in that the Member's fleet pa ys compensation comparable to the value of 
the access of the resource;   
(b) the access arrangements provide for compliance with applicable fishery management 
plans and for a science-based assessment and monitoring of the status of the fishery 
resources covered by the access arrangements;  and 
(c) such payments are notified pursuant to Article 6 herein.  
 
 
Article 2 
 
Prohibition of Fisheries Subsidies 
 
2.1  Except as provided in this Annex, and without prejudice to Article 3 of the ASCM, the following subsidies, within the meaning of Article 1 of the ASCM and this Annex, shall be prohibited 
within the meaning of Article 3 of the ASCM:
  
 
(a)  subsidies granted, in law or in fact, whether solely or as one of several other 
conditions, for the purpose of vessel construction of any fishing vessel4;  
 
(b)  subsidies granted, in law or in fact, whether solely or as one of several other 
conditions, for the purpose of modernizati on, renovation, repair or upgrading of 
existing fishing vessels, including engine or gear acquisition, any technical or 
electronic equipment5 onboard the vessel, and any other significant capital inputs to 
fishing;  
 
(c)  subsidies granted, in law or in fact, whether solely or as one of several other 
conditions, for the purpose of fixed or va riable operational costs of fishing vessels 
and fishing activities, including on-board processing;  
 (d)  subsidies granted, in law or in fact, whether solely or as one of several other 
conditions, for shipbuilding ya rds contingent upon the cons truction of fishing vessels; 
 
                                                     
 
4 For the purpose of this Annex, fishing vessel means any vessel intended for use for the purpose of 
commercial exploitation of fishing resources, including fish processing vessels and vessels engaged in 
transshipment.  
5 This comprises, inter alia, engines, fishing gear, fish-processing machinery, fish-finding technology, 
refrigerators, machines for sorting or cleaning fish, or any other equipment onboard the fishing vessel.  The 
prohibition does not cover the installation of equipment fo r safety or for control and enforcement purposes.  
Neither does the prohibition cover equipment fitted for the purpose of reducing environmentally harmful 
emissions.  TN/RL/GEN/150/Rev.2 
 Page 5 
 
 
  (e)  subsidies granted, in law or in fact, whether solely or as one of several other 
conditions, relating to illegal, unr eported and unregulated fishing,6 as well as to any 
fishing vessels flying "flags of convenience"; and 
 
(f)  subsidies granted, in law or in fact, whether solely or as one of several other 
conditions, upon the transfer of fishing vessels to foreign owners, including through the creation of joint ventures with those countries. 
 
2.2 A Member shall neither grant nor maintain  subsidies referred to in paragraph 1. 
 
2.3 Whenever a Member has reason to believe that  a prohibited subsidy is being granted or 
maintained by another Member as defined in Artic le 2.1 of this Annex and without prejudice to 
Article 3 of the ASCM, such Member may seek re medies in accordance with Article 4 of the ASCM. 
 
Article 3 
Fishery Subsidies Actionable  
3.1 No Member shall cause, through the use of an y fishery subsidy included in paragraphs 1 
and 2 of ASCM Article 1, adverse effects to the interests of other Members as defined in ASCM 
Article 5 or adverse effects to fishery resources as defined in Article 7.1 to this Annex, except as 
otherwise provided in this Annex.   
3.2 Except as provided in this Annex, and without prejudice to Parts III and V of the ASCM and 
Articles 2 and 3.1 herein, the following subsidies, within the meaning of Article 1 of the ASCM and 
this Annex, shall be considered as actionable within the meaning of Article 5 of the ASCM: 
(a) Vessel decommissioning programmes, unless:   
(i) the vessels subject to such programmes are scrapped or otherwise 
permanently and effectively prevented from being  used for fishing 
anywhere in the world;7  and 
(ii) the fish harvesting rights associated wi th such vessels, whether they are 
permits, licenses, fish quotas or any other form of harvesting rights, are 
permanently revoked and may not be reassigned;  and 
(iii) the owners of such vessels, and the hol ders of such fish harvesting rights, 
are required to relinquish any clai m associated with such vessels and 
harvesting rights that could qualify such owners and holders for any 
present or future harvesting rights in such fisheries;  and 
(iv) there are in place fisheries manageme nt plan designed to prevent over-
fishing in the targeted fishery, such  as limited entry systems, catch quotas, 
limits on fishing effort or allocation of exclusive quotas to vessels, 
individuals and/or groups , provided that special flexibility should be given 
to developing countries, including any technical assistance requested by 
any such developing country as provided in Article 5 below. 
                                                      
6 The term "illegal, unreported and unregulated fish ing" shall be interpreted in accordance with the 
definition set out in paragraph 3 of the International Pl an of Action to Prevent, Deter and Eliminate Illegal, 
Unreported and Unregulated Fishing of the United Nations Food and Agricultural Organization (FAO). 
7 Vessels decommissioned for legitimate research and training purposes, with no commercial functions, 
need not comply with the conditions of this exception.   TN/RL/GEN/150/Rev.2 
Page 6  
 
  (b) subsidies granted, in law or in fact, whether solely or as one of several other 
conditions, where there is an increase in the subsidizing Member's capacity to 
produce a fishery product due to the subsidy. 
 (c) subsidies granted, in law or in fact, whether solely or as one of several other 
conditions, where there is an increase in the subsidizing Member's relative share of 
production of a fishery product, as compared to non-subsidized production, over a 
representative period sufficient to demonstr ate clear trends in production.   
3.3 The list of actionable subsidies in section 3.2 above is merely illustrative, and does not limit 
the general rule expressed in section 3.1 above.  
3.4 Whenever a Member has reason to believe th at an actionable subsidy being granted or 
maintained by another Member, results in any adve rse effects to the interests of other Members as 
defined in ASCM Article 5 or adverse effects to fishery resources as defined in Article 7.1 to this 
Annex, except as otherwise provided in this Annex,  such Member may seek remedies in accordance 
with Article 7 of the ASCM. 
 
Article 4 
Exceptions to Actionable Subsidies 
 
4.1 Notwithstanding Articles 2 and 3 of this Annex,  the following subsidies are not actionable:   
 
(a) Provision of a social safety net for fisher men, including early retirement schemes, re-
education, training or alternative employment assistance, unemployment relief, life 
insurance, support for the temporary suspension of fishing activities;   
(b) Fisheries research, including data collection, surveys, data analysis, and stock 
monitoring, sampling and assessment;
8   
(c) Fisheries stock enhancement, including ma rine conservation and protection, marine 
environment restoration, protection and deve lopment of a Member's own archipelagic 
waters9, artificial reefs, hatcheries for breeding and by-catch mitigation devices;10   
(d) Improving vessel and crew safety11, provided that the improvement is undertaken to 
comply with international or domestic sta ndards; and there is no increase in fishing 
capacity12, such as the volume of fish hold or engine power of a vessel subject to such 
programme;   
(e) Construction and maintenance of general infr astructure for fishing activities, such as 
wharves and fishing ports and related fac ilities, roadways, water and sanitary waste 
systems, the provision of housing and other forms of community development 
infrastructure;13   
                                                      
8 This is limited to fisheries research that does not result in commercial sale of  the fish harvested.   
9 Archipelago is as defined in Article 46 of UNCLOS 1982, and calculati on of the archipelagic 
baselines is defined in Article 47 thereof.   
10 This provision is aimed at measures that enhance marine resources rather than capacity to harvest 
those resources.   
11 Programmes or activities aimed primarily at vessel modernisation or repair do not fall within this 
sub-paragraph.  The construction of vessels is not permitted under this sub-paragraph.   
12 Fishing capacity is understood here to mean the ability  of a vessel or fleet of vessels to catch fish.   
13 General infrastructure for fishing communities shall also not be considered to be regionally specific 
under the ASCM.    TN/RL/GEN/150/Rev.2 
 Page 7 
 
 
  (f) Short-term emergency relief, recovery ad justment programmes and replacement of 
fishing capacity following natural or envir onmental disasters, provided that fishing 
fleet capacity is not restored beyond its pre-disaster state14, except that special 
flexibility shall be given to developing countri es pursuant to Article 5 of this Annex;   
(g) Assistance and user-specific allocations to individuals and groups under limited 
access privileges and other exclusive quota programmes, and other expenses related 
to administration and operation of fishery management programmes, including allocation and monitoring of licences, permits, quotas, vessel numbers and catch returns.    
 
Article 5 
Special and Differential Treatment of Developing Country Members 
5.1 Notwithstanding the provisions of the ASCM and Articles 2, 3, and 4 of this Annex, a 
developing country Member shall be allowed to grant or maintain fisheries subsidies to its artisanal 
fisheries activities
15, defined herein as those which:   
(a) Operate within its territorial waters and mostly close to shore;   
(b) Use vessels of [proportional ratio between  gross tonnage and engine power] and 
which utilize primarily manual gear;  and 
(c) Are operated by individual fishermen or family members for the purpose of 
subsistence or local trade.   
Such subsidies are not actionable.   
5.2 Notwithstanding the provisions of the ASCM and Articles 2, 3, and 4 of this Annex, a 
developing country Member shall be allowed to grant or maintain subsidies to its small-scale fisheries 
for the purpose of fishing vessel construction, repa ir, or modernization, or gear acquisition or 
improvement, or fuel, or bait, or ice.  For the purposes of this section, small-scale fisheries shall be 
defined as those that:   
(a) Are below 20 meters dimension;  and 
(b) Operate within the Member's 12 nautical mile limit or the Member's own archipelagic 
waters.   
Provided that they meet the contingencies of Artic le 5.5 of this Annex, such subsidies are not 
actionable.   
5.3 Notwithstanding the provisions of the ASCM and Articles 2, 3, and 4 of this Annex, a 
developing country Member shall be allowed to gran t or maintain subsidies for the purpose of fishing 
vessel construction, repair, or modernization, or g ear acquisition or improvement, or fuel, or bait, or 
ice, provided that the purpose is to exploit:   
(a) fisheries in the Member's own Exclusive Economic Zone;  or 
                                                      
14 Restoration to pre-disaster state is not intended to restore a pre-disaster state of over-capacity.   
15 Artisanal fisheries activities shall include on-board handling (including but not limited to provision 
of cool boxes, fish holds and other measures to enco urage hygiene and sanitation and to preserve fish quality) 
and post-harvest handling.   TN/RL/GEN/150/Rev.2 
Page 8  
 
  (b) rights held by the Member in high seas fishing quotas or any other rights established 
by a regional fisheries management orga nization (RFMO) or a regional fisheries 
management arrangement.   
Provided that they meet the contingencies of Artic le 5.6, of this Annex such subsidies are not 
actionable.   
5.4 Upon the request of developing country Memb ers, and with reference to guidance provided 
by the UN Fish Stocks Agreement, developed count ry Members shall provide technical assistance on 
mutually agreed terms and conditions to developing  country Members to allow them to participate 
fully in any RFMO adjacent to their exclusiv e economic zone or archipelagic waters.   
5.5 Fishing subsidies meet the definition of Artic le 5.2 of this Annex contingent on a showing 
that:   
(a) The Member has a fishery management plan  in place that is effectively monitored and 
adequately enforced;   
(b) The fishery does not adversely affect re sources governed by the fishery management 
plan; and 
(c) The small-scale fishing activities will not adversely affect fishery resources of other 
Members or the resources governed by relevant RFMO's.   
 
5.6 Fishing subsidies meet the definition of Artic le 5.3 of this Annex contingent on a showing 
that the developing country Member has:    
(a) underexploited resources in its EEZ;  or 
 
(b) a right to high seas fishing quotas or extra quota in a RFMO. 
 5.7 Upon the request of developing country Memb ers, developed country Members shall provide 
technical assistance to developing country Member s on mutually agreed terms and conditions to 
develop the capacity to initiate, implement and enfo rce compliance with a fishery management plan in 
keeping with the FAO Code of Conduct on Respons ible Fisheries and adequate to provide the 
showing required by Articles 5.3, 5.4 and 5.5 of this Annex.    
Article 6 
Notifications and Enquiry Points 
6.1 A Member asserting that a subsidy covered by  this Annex qualifies for an exception pursuant 
to Articles 4 and 5 of this Annex , with the exception of artisanal fisheries under Article 5.1 of this 
Annex, shall include in its annual notification, mutatis mutandis,  under Article 25 of the ASCM, 
information fully describing the fisheries benefiti ng from the subsidy and describing how the subsidy 
conforms to the conditions set forth in the excep tion.  Information shall include, where relevant, 
measures to address fishing capacity and effort, the biological status of managed stocks and other 
fishery resources.   
6.2 The Committee on the ASCM will annually review  such notifications and report to Members 
on the extent to which Members are availing th emselves of such exceptions.  Reports will be 
published annually in a form available to the public.    TN/RL/GEN/150/Rev.2 
 Page 9 
 
 
  6.3 In reviewing notifications, the Committee is en couraged to consult with and seek information 
from fishery experts, as authorized by Article 24.5 of the ASCM.   
6.4 Each Member shall maintain an enquiry poi nt to answer all reasonable enquiries from other 
Members and interested parties in other Members concerning its fisheries management plan, including measures in place to address fishing capacity and fishin g effort and the biological status of managed 
stocks.  Special flexibility shall be given to develo ping countries with respect to instituting enquiry 
points, including flexibility to de velop such enquiry points with th e help of technical assistance.  
Upon the request of developing country Member s, developed country Members shall provide 
technical assistance to develop the capacity to initiate  and implement compliance with this Section.   
  
Article 7 
 
Actionable Subsidies:  Adverse Effects 
 
7.1 For purposes of ASCM Part III, no Member should cause, through the use of any fishery 
subsidy referred to in Article 3 of this Annex, adverse effects to the interests of other Members, which 
in addition to adverse effects as defined in Article 5 of the ASCM, shall also include adverse effects  
to a fishery resource
16, i.e.:   
 
(a) injury to the fishery resource of another Member;17   
 
(b) nullification or impairment of benefits  accruing directly or indirectly to other 
Members under GATT 1994, in particular the benefits of concessions bound under 
Article II of GATT 1994, as a result of an effect on a fishery resource;   
 
(c) serious prejudice to a fishery resource of another Member.    
 
7.2. The examination of the adverse effects to a fishery resource from fishery activity shall include 
an evaluation of all relevant fishery resource factors, including:    
(a) the total catch or production or trading (in volume terms) by the Member of target 
species, with breakdown by fishery, and th e number of vessels used in those catching 
or production operations, with breakdown by operated location areas;
18   
 
(b) the criteria and scientific information used  to set the status of the fishery;   
 
(c) whether the fishery in question is under management of a regional fisheries 
management organization or arrangement a nd which are the nature of the monitoring 
and the quantitative limits applicable to the Member;   
 
(d) national fisheries management plans in pl ace, with sufficient information to enable 
Members to evaluate and to understa nd their framework and operation;  and 
 
                                                      
16 Nothing in the concept of adverse effects to a fishery resource shall prejudice the ability of a panel to 
find adverse effects as otherwise defined in Article 5 of the ASCM for products covered by Articles 2 and 3 of 
this Annex.  An adverse effect to the fishery resource is an alternative additional means of meeting the ASCM 
adverse effects standard.   
 17 The term "injury to the fisheries resource" ha s the same meaning in ASCM Part III and ASCM 
Part V, except as specified by paragraph 7.8 of this Annex.   
18 For evaluation of stocks involving multi-species, for example in tropical waters, Members shall use 
the available scientific data to identify trends. TN/RL/GEN/150/Rev.2 
Page 10  
 
  (e) government-to-government payment for access  by foreign vessels to fishing resources 
of a developing country's maritime jurisdiction or to quotas or any other rights established by any regional fishery management organization or arrangement ("access rights"), with breakdown by recipient c ountry, total amounts paid, amounts received 
on the onward transfer of the access rights, fisheries data (in accordance with items 
(a) and (b) of this paragraph) a nd other relevant information.   
 
(f) information on the biological status of relevant marine ecosystems.   
 
This list is not exhaustive, nor can one or several of these factors necessarily give decisive 
guidance.
19   
 
7.3 Without prejudice of Article 6 of the ASCM, serious prejudice to a fishery resource in the sense of paragraph (c) of Article 7.1 of this  Annex shall be presumed to arise when:   
 
(a) there is an increase in the subsidizing Me mber's capacity to produce a fishery product 
due to the subsidy;  or 
  (b) an increase in the subsidizing Member's relative share of production of a fishery 
product, as compared to non-subsidized production, over a representative period sufficient to demonstrate clear trends in production.   
 
7.4 For purposes of assessment of adverse effects pursuant to Articles 7 and 8 of this Annex, the period of data collection normally should be at least  three years, and should include the entirety of the 
period of data collection for the subsidy investigation.  
 
Article 8 
 
Countervailing Measures:  Determinatio n of Injury to a Fishery Resource 
 
8.1. Members taking any countervailing duty measures under Part V of the ASCM shall do so only in accordance with the provision s thereof, except that where they avail themselves of the injury 
test in this Article of this Annex, they shall utili ze any provisions specified in this Article of this 
Annex.
20  In particular, the following provisions shall apply to any investigations involving 
allegations of injury to a fishery resource:  
(a) With reference to Article 11.1, 11.4 and 11.6 of the ASCM, Members shall grant 
recognized consumer, industry and advocacy  groups standing to submit a written 
application, and the authorities may decide to initiate an investigation without having 
received a written application by or on beha lf of a domestic industry without needing 
to show that special circumstances exist for taking such action, it being recognized 
that injury to that Memb er's fishery resource may or may not be drawn to the 
attention of the Member by a domestic industry;   
 
(b) With reference to Article 11.2 of the AS CM, an application may refer the criteria in 
Article 11.2(iv) of the ASCM or the injury factors referred to in this Article of the Annex relating to injury to a fishery resource;   
 
                                                     
 
19 This provision parallels ASCM Article 15.4, usin g the factors contained in Indonesia's 2 July 2007 
Proposal.   
20  This provision parallels ASCM Article 10.  TN/RL/GEN/150/Rev.2 
 Page 11 
 
 
  (c) [Consider whether the definition of "interested parties" under Article 12.9 of the 
ASCM needs to broaden the parties included, and in particular to grant standing to recognized consumer, industry and advocacy groups as interested parties as well as 
applicants, with a possible amendment to Article 16 of the ASCM];  
 
(d) With reference to calculation of the amount  of a subsidy in terms of benefit to the 
recipient, in addition to the guidelines of  Article 14 of the ASCM, Members may use 
a method consistent with the following:  
  …. 
 
(e) With reference to determination of th e amount of any countervailing duty pursuant to 
Article 19.4 of the ASCM, subsidization pe r unit of the subsidized and exported 
product, the amount of the subsidy may include  all subsidies found to exist in relation 
to the harvesting and production of such a product, including subsidies to any vessels 
used in such harvesting … [give any other necessary examples].  
 
(f) …. [identify any other provisions that should be specific to a countervailing duty 
investigation involving allegations of injury to a fishery resource.]  
 8.2 A determination of injury to a fishery resour ce in the sense of paragraph (a) of Article 7.1 of 
this Annex in a countervailing duty investigation shall be based on positive evidence and involve an 
objective examination of the volume of the fishery activity and its effect on the Member's fishery stocks, and the effect of the fishery activity on the fishery resource.
21   
 8.3 The examination of the injury  to a fishery resource from fi shery activity shall include an 
evaluation of the volume of the fishery activity, in  particular whether there has been a significant 
increase in subsidized imports, either  in absolute terms or relative to production or catch related to the 
product in the Member's waters. With regard to  the effect on Member's fishery stocks, the 
investigatory authorities shall consider whether th ere has been a significant decrease in their fish 
stocks, or whether the effect of the fishery activity is to reduce stocks of migratory fisheries, reduce 
traditional hatching in the Member's fishing territori es, or otherwise impair production or catch in the 
Member's waters. No one or several of these factors can necessarily give decisive guidance. 
22  
 8.4. The examination of the inju ry to a fishery resource from fishery activity shall include an 
evaluation of the effect of the fishery activity on all relevant fishery resource factors, including:   
 
(a) the total catch (in volume terms) by the Member of target species and by-catch, with 
breakdown by fishery, and the number of vessels used in those catching operations, 
with breakdown by operated location areas;
23   
 
(b) the criteria and scientific information used  to set the status of the fishery;   
 
(c) whether the fishery in question is under management of a regional fisheries 
management organization or arrangement a nd which are the nature of the monitoring 
and the quantitative limits applicable to the Member;   
 
                                                      
 21 This provision parallels ASCM Article 15.1.   
22 This provision parallels ASCM Article 15.2.   
23 For evaluation of stocks involving multi-species, for example in tropical waters, Members shall use 
the available scientific data to identify trends.  TN/RL/GEN/150/Rev.2 
Page 12  
 
  (d) national fisheries management plans in pl ace, with sufficient information to enable 
Members to evaluate and to understa nd their framework and operation;  and 
 
(e) government-to-government payment for access  by foreign vessels to fishing resources 
of a developing country's maritime jurisdiction or to quotas or any other rights 
established by any regional fishery management organization or arrangement ("access 
rights"), with breakdown by recipient c ountry, total amounts paid, amounts received 
on the onward transfer of the access rights, fisheries data (in accordance with items 
(a) and (b) of this paragraph) a nd other relevant information.   
 
(f) information on the biological status of relevant marine ecosystems.   
 
This list is not exhaustive, nor can one or several of these factors necessarily give decisive guidance.
24   
 
8.5 Where fishery activities of more than one count ry are simultaneously subject to a proceeding, 
the effects of such activities shall be cumulate d only if they determine that the amount of 
subsidization established in relation to the imports from each country is more than de minimis  as 
defined in paragraph 9 of ASCM Article 11 and th e volume of imports from the fishery activity of 
each country is not negligible.25   
 
8.6 It must be demonstrated that the fishery ac tivity is, through the effects of subsidies, causing 
injury within the meaning of this section.  The demonstration of a causal relationship between the 
fishery activity and injury to the fishery resource shall be based on an examination of all relevant 
evidence before the authorities.  The authorities sha ll also examine any known factors other than the 
subsidized fishery activity which at the same time are injuring the fishery resource, and the injuries 
caused by these other factors must not be attr ibuted to the subsidized fishery activity.26   
 
8.7 The effect of the subsidized fishery activit y for a particular product covered by this Annex 
shall be assessed in relation to any fi sheries resource covered by this Annex.27   
 
8.8 For purposes of a countervailing duty proceeding under ASCM Part V, injury shall include the 
provisions of Articles 7 and 8 of this Annex, exce pt that the fishery resource examined shall be 
exclusively within the Exclusive Economic Zone or archipelagic waters of the Member investigating 
injury to its fisheries resource.  Injury for the purposes of a countervailing duty proceeding under 
ASCM Part V may also be determined according to the standards of Article 15 ASCM, even if it is a 
fishery subsidy covered by this Annex.28   
 
                                                      
24 This provision parallels ASCM Article 15.4, usin g the factors contained in Indonesia's 2 July 2007 
Proposal.   
 25 This provision parallels ASCM Article 15.3 on the is sue of multiple countries being investigated in a 
countervailing duty proceeding.    
26 This provision parallels ASCM Article 15.5 on the need for proof of causation.   
 27 This provision parallels ASCM Article 15.6 on "like product".  However, for purposes of the adverse 
effects to fisheries resource test, the "like product" determ ination would not be the same as in a standard injury 
test that measures trade effects to a like product.  For example, a fishing activity for bluefin tuna that "injures" 
the dolphin resource of another Member could be covered by these provisions, despite the fact that the bluefin 
tuna fishing might not be "injuring" the bluefin tuna catch.    
28 Nothing in the concept of adverse effects to fisher ies resources or injury to  a fishery resources shall 
prejudice the ability of a panel or investigating authority to find adverse effects or injury as otherwise defined in 
Article 5 and Part V of the ASCM.  An adverse effect to a fisheries resource or injury to a fisheries resource is 
an alternative additional means of m eeting the traditional adverse effects or  injury standard of Part III and 
Part V of the ASCM.    TN/RL/GEN/150/Rev.2 
 Page 13 
 
 
   
Article 9 
Prevention of circumvention 
 Members shall not have recourse to rules of or igin (preferential or non-preferential), the flag 
of a vessel and access rights, among others, as a means to undermine the objectives set out in the 
preamble and to circumvent their obligations under this Annex.   
 
Article 10 
Review 
The provisions of this Annex shall be reviewed  by the Committee after a period of 8 (eight) 
years from the date of its entry into force, with a view to determining whether any modification is 
necessary.   
Article 11 
Transitional provisions 
11.1 Any fisheries subsidy which has been establishe d within the territory of a Member before the 
date of the entry into force of this Annex shall be notified to the Committee in no later than 90 days 
after that date.   
11.2 From the entry into force of this Annex, there shall be a period of three years for developed 
country Members and a period of five years for de veloping country Members to gradually phase out 
and eliminate fisheries subsidies that are inconsistent  with the provisions of this Annex.  The starting 
point of the reduction shall be the 2003-2005 average of the fisheries subsidies prohibited under Article 2.  Members shall not be allowed to adopt new prohibited fisheries subsidies or to extend the 
scope of any existing prohibited fisheries subsidy.   
11.3 Any least-developed country Member shall phase out its fisheries subsidies within an eight-
year period, preferably in a progressive manner, from the date of entry into force of this Annex.  If 
such least-developed country Member deems it nec essary to apply such subsidies beyond the 8-year 
period, it shall not later than one year before the e xpiry of this period enter into consultation with the 
Committee, which will determine whether an extension of this period is justified, after examining all 
the relevant economic, financial a nd development needs of the Member  in question.  If the Committee 
determines that the extension is justified, the Me mber concerned shall hold a nnual consultations with 
the Committee to determine the neces sity of maintaining the subsidies.  If no such determination is 
made by the Committee, the least-developed country Member shall phase out those fisheries subsidies 
within 3 (three) years from the end of the last authorized period.   
 
 
_______________ TN/RL/GEN/150/Rev.2 
Page 14  
 
  Attachment 
 
ANNEX [VIII] TO THE AGREEMENT ON SUBSIDIES AND  
COUNTERVAILING MEASURES 
 
Preamble 
Members, 
Recalling  the commitment at Doha to clarify and im prove WTO disciplines on fishery subsidies.   
Noting  the current state of world fishery stocks and the desire of Members to address subsidies that 
have a harmful effect on them;   
Conscious  of the negative effects of overcapacity and overfishing on these fisheries resources;   
Reaffirming  that provisions for special and differential (S&D) treatment are an integral part of the 
WTO Agreements;   
Determined  to strengthen ASCM provisions with a view to making them more precise, effective and 
operational in relation to fisheries;   
Considering  the social and economic importance of the fisheries sector to developing country 
Members;   
Hereby agree  as follows:   
Article 1 
Definitions and coverage 
1.1 This Annex provides for specific provisions regard ing fisheries subsidies a nd it is an integral 
part of the Agreement on Subsidies and Countervailing Measures (ASCM).   
1.2 A subsidy as used in this Annex is a subsidy wi thin the meaning of paragraph 1 of Article 1 of 
the Agreement on Subsidies and Countervailing Measure s (ASCM).  A subsidy subject to this Annex 
must be specific, pursuant to Article 2 of the ASCM.   
1.3 This Annex shall not apply to inland fisheries
1 or to aquaculture.2   
1.4 This Annex covers any subsidy that confers a benefit to or on behalf of any company and/or 
person linked in fact or in law, directly or indirectly3, to enterprises engaged in the harvesting of 
marine wild capture fisheries.  Fisheries subsidi es shall encompass any subsidy programme and/or the 
disbursement made under such programme.   
                                                      
1 "Inland fisheries" are fisheries which are carried  out in freshwater or estuaries of a Member and 
whose target species are those that spen d all of their life-cycle therein.   
2 "Aquaculture" is the farming of aquatic organism s, including fish, mollusc s and crustaceans, provided 
that no capture fisheries is used to feed raised fish or is farmed.   
3 The term "directly or indirectly" is used in this Annex in the same sense as it is used in paragraph 1 of 
Article XVI of GATT 1994.    TN/RL/GEN/150/Rev.2 
 Page 15 
 
 
  1.5 Harvesting includes the on-vessel processing of fish and transport of fish from one vessel to 
another or from a vessel to shore, but it does not  include inland or on-shore processing or other post-
harvest handling or activity.   
1.6 This Annex does not cover government-to- government payments to obtain access for a 
Member's distant water fishing fleet to fisheri es resources within the territorial sea or exclusive 
economic zone of a developing country, or to  quotas or other rights established by any regional 
fishery management organization (RFMO) or arrangeme nt.  The further transfer of such rights to the 
Member's fishing fleet is covered by this Annex but is not actionable under Article 3, provided that:   
(a) a benefit is not conferred by the onward transfer of such rights to the Member's fishing 
fleet, in that the Member's fleet pays comp ensation comparable to the value of the access 
of the resource;   
(b) the access arrangements provide for compliance with applicable fishery management 
plans and for a science-based assessment and monitoring of the status of the fishery 
resources covered by the access arrangements;  and 
(c) such payments are notified pursuant to Article 6 herein.   
 
Article 2  
 
Prohibition of Fisheries Subsidies 
 
2.1  Except as provided in this Annex, and without prejudice to Article 3 of the ASCM, the 
following subsidies, within the meaning of Article 1 of the ASCM and this Annex, shall be prohibited 
within the meaning of Article 3 of the ASCM:  
 
(a)  subsidies granted, in law or in fact, whether solely or as one of several other 
conditions, for the purpose of vessel construction of any fishing vessel4;  
 
(b)  subsidies granted, in law or in fact, whether solely or as one of several other 
conditions, for the purpose of modernizati on, renovation, repair or upgrading of 
existing fishing vessels, including engine or gear acquisition, any technical or 
electronic equipment5 onboard the vessel, and any other significant capital inputs to 
fishing;  
 
(c)  subsidies granted, in law or in fact, whether solely or as one of several other 
conditions, for the purpose of fixed or va riable operational costs of fishing vessels 
and fishing activities, including on-board processing;  
 
(d)  subsidies granted, in law or in fact, whether solely or as one of several other 
conditions, for shipbuilding ya rds contingent upon the cons truction of fishing vessels; 
 
                                                      
4 For the purpose of this Annex, fishing vessel means any vessel intended for use for the purpose of 
commercial exploitation of fishing resources, including fish processing vessels and vessels engaged in 
transshipment.  
5 This comprises, inter alia, engines, fishing gear, fish-processing machinery, fish-finding technology, 
refrigerators, machines for sorting or cleaning fish, or any other equipment onboard the fishing vessel. The 
prohibition does not cover the installation of equipment fo r safety or for control and enforcement purposes.  
Neither does the prohibition cover equipment fitted for the purpose of reducing environmentally harmful 
emissions. TN/RL/GEN/150/Rev.2 
Page 16  
 
  (e)  subsidies granted, in law or in fact, whether solely or as one of several other 
conditions, relating to illegal, unr eported and unregulated fishing,6 as well as to any 
fishing vessels flying "flags of convenience"; and 
 
(f)  subsidies granted, in law or in fact, whether solely or as one of several other 
conditions, upon the transfer of fishing vessels to foreign owners, including through 
the creation of joint ventures with those countries. 
 
2.4 A Member shall neither grant nor maintain  subsidies referred to in paragraph 1. 
 
2.5 Whenever a Member has reason to believe that  a prohibited subsidy is being granted or 
maintained by another Member as defined in Artic le 2.1 of this Annex and without prejudice to 
Article 3 of the ASCM, such Member may seek re medies in accordance with Article 4 of the ASCM. 
 
Article 3 
Fishery Subsidies Actionable  
3.1 No Member shall cause, through the use of any fishery subsidy included in paragraphs 1 and 2 
of ASCM Article 1, adverse effects to the interests of other Members as defined in ASCM Article 5 or 
adverse effects to fishery resources as defined in  Article 7.1 to this Annex, except as otherwise 
provided in this Annex.   
3.2 Except as provided in this Annex, and without prejudice to Parts III and V of the ASCM and 
Articles 2 and 3.1 herein, the following subsidies, within the meaning of Article 1 of the ASCM and 
this Annex, shall be considered as actionable within the meaning of Article 5 of the ASCM: 
(a) Vessel decommissioning programmes, unless:   
(i) the vessels subject to such programmes are scrapped or otherwise 
permanently and effectively prevented from being  used for fishing 
anywhere in the world;7  and 
(ii) the fish harvesting rights associated wi th such vessels, whether they are 
permits, licenses, fish quotas or any other form of harvesting rights, are 
permanently revoked and may not be reassigned;  and 
(iii) the owners of such vessels, and the hol ders of such fish harvesting rights, 
are required to relinquish any clai m associated with such vessels and 
harvesting rights that could qualify such owners and holders for any 
present or future harvesting rights in such fisheries;  and 
(iv) there are in place fisheries manageme nt plan designed to prevent over-
fishing in the targeted fishery, such  as limited entry systems, catch quotas, 
limits on fishing effort or allocation of exclusive quotas to vessels, 
individuals and/or groups , provided that special flexibility should be given 
                                                      
6 The term "illegal, unreported and unregulated fish ing" shall be interpreted in accordance with the 
definition set out in paragraph 3 of the International Pl an of Action to Prevent, Deter and Eliminate Illegal, 
Unreported and Unregulated Fishing of the United Nations Food and Agricultural Organization (FAO). 
7 Vessels decommissioned for legitimate research and training purposes, with no commercial functions, 
need not comply with the conditions of this exception.    TN/RL/GEN/150/Rev.2 
 Page 17 
 
 
  to developing countries, including any technical assistance requested by 
any such developing country as provided in Article 5 below. 
(b) subsidies granted, in law or in fact, whether solely or as one of several other 
conditions, where there is an increase in the subsidizing Member's capacity to 
produce a fishery product due to the subsidy. 
 
 (c) subsidies granted, in law or in fact, whether solely or as one of several other 
conditions, where there is an increase in the subsidizing Member's relative share of 
production of a fishery product, as compared to non-subsidized production, over a 
representative period sufficient to demonstr ate clear trends in production.   
 
3.3 The list of actionable subsidies in section 3.2 above is merely illustrative, and does not limit 
the general rule expressed in section 3.1 above.  
 
3.4 Whenever a Member has reason to believe th at an actionable subsidy being granted or 
maintained by another Member, results in any adve rse effects to the interests of other Members as 
defined in ASCM Article 5 or adverse effects to fishery resources as defined in Article 7.1 to this 
Annex, except as otherwise provided in this Annex,  such Member may seek remedies in accordance 
with Article 7 of the ASCM. 
 
Article 4 
 
Exceptions to Actionable Subsidies 
 
4.1 Notwithstanding Articles 2 and 3 of this Annex,  the following subsidies are not actionable:   
 
(a) Provision of a social safety net for fisher men, including early retirement schemes, re-
education, training or alternative employment assistance, unemployment relief, life 
insurance, support for the temporary suspension of fishing activities;   
(b) Fisheries research, including data collection, surveys, data analysis, and stock 
monitoring, sampling and assessment;8   
(c) Fisheries stock enhancement, including ma rine conservation and protection, marine 
environment restoration, protection and deve lopment of a Member's own archipelagic 
waters9, artificial reefs, hatcheries for breeding and by-catch mitigation devices;10   
(d) Improving vessel and crew safety11, provided that the improvement is undertaken to 
comply with international or domestic sta ndards; and there is no increase in fishing 
capacity12, such as the volume of fish hold or engine power of a vessel subject to such 
programme;   
                                                      
8 This is limited to fisheries research that does not result in commercial sale of  the fish harvested.   
9 Archipelago is as defined in Article 46 of UNCLOS 1982, and calculati on of the archipelagic 
baselines is defined in Article 47 thereof.   
10 This provision is aimed at measures that enhance marine resources rather than capacity to harvest 
those resources.   
11 Programmes or activities aimed primarily at vessel modernisation or repair do not fall within this 
sub-paragraph.  The construction of vessels is not permitted under this sub-paragraph.   
12 Fishing capacity is understood here to mean the ability  of a vessel or fleet of vessels to catch fish.   TN/RL/GEN/150/Rev.2 
Page 18  
 
  (e) Construction and maintenance of general infr astructure for fishing activities, such as 
wharves and fishing ports and related fac ilities, roadways, water and sanitary waste 
systems, the provision of housing  and other forms of community development 
infrastructure;
13   
(f) Short-term emergency relief, recovery ad justment programmes and replacement of 
fishing capacity following natural or envir onmental disasters, provided that fishing 
fleet capacity is not restored beyond its pre-disaster state14, except that special 
flexibility shall be given to developing countri es pursuant to Article 5 of this Annex;   
(g) Assistance and user-specific allocations to individuals and groups under limited 
access privileges and other exclusive quota programmes, and other expenses related 
to administration and operation of fishery management programmes, including allocation and monitoring of licences, permits, quotas, vessel numbers and catch returns.   
  
Article 5 
Special and Differential Treatment of Developing Country Members 
5.1 Notwithstanding the provisions of the ASCM and Articles 2, 3, and 4 of this Annex, a 
developing country Member shall be allowed to grant or maintain fisheries subsidies to its artisanal 
fisheries activities15, defined herein as those which:   
(a) Operate within its territorial waters and mostly close to shore;   
(b) Use vessels of [proportional ratio between  gross tonnage and engine power] and 
which utilize primarily manual gear;  and 
(c) Are operated by individual fishermen or family members for the purpose of 
subsistence or local trade.   
Such subsidies are not actionable.   
5.2 Notwithstanding the provisions of the ASCM and Articles 2, 3, and 4 of this Annex, a 
developing country Member shall be allowed to grant or maintain subsidies to its small-scale fisheries 
for the purpose of fishing vessel construction, repa ir, or modernization, or gear acquisition or 
improvement, or fuel, or bait, or ice.  For the purposes of this section, small-scale fisheries shall be 
defined as those that:   
(a) Are below 20 meters dimension;  and 
(b) Operate within the Member's 12 nautical mile limit or the Member's own archipelagic 
waters.   
Provided that they meet the contingencies of Ar ticle 5.5 of this Annex such subsidies are not 
actionable.   
                                                      
13 General infrastructure for fishing communities shall also not be considered to be regionally specific 
under the ASCM.   
14 Restoration to pre-disaster state is not intended to restore a pre-disaster state of over-capacity.   
15 Artisanal fisheries activities shall include on-board handling (including but not limited to provision 
of cool boxes, fish holds and other measures to enco urage hygiene and sanitation and to preserve fish quality) 
and post-harvest handling.    TN/RL/GEN/150/Rev.2 
 Page 19 
 
 
  5.3 Notwithstanding the provisions of the ASCM and Articles 2, 3, and 4 of this Annex, a 
developing country Member shall be allowed to gran t or maintain subsidies for the purpose of fishing 
vessel construction, repair, or modernization, or g ear acquisition or improvement, or fuel, or bait, or 
ice, provided that the purpose is to exploit:   
(a) fisheries in the Member's own Exclusive Economic Zone;  or 
(b) rights held by the Member in high seas fishing quotas or any other rights established 
by a regional fisheries management orga nization (RFMO) or a regional fisheries 
management arrangement.   
Provided that they meet the contingencies of Artic le 5.6, of this Annex such subsidies are not 
actionable.   
5.4 Upon the request of developing country Memb ers, and with reference to guidance provided 
by the UN Fish Stocks Agreement, developed count ry Members shall provide technical assistance on 
mutually agreed terms and conditions to developing  country Members to allow them to participate 
fully in any RFMO adjacent to their exclusiv e economic zone or archipelagic waters.   
5.5 Fishing subsidies meet the definition of Artic le 5.2 of this Annex contingent on a showing 
that:   
(a) The Member has a fishery management plan  in place that is effectively monitored and 
adequately enforced;   
(b) The fishery does not adversely affect re sources governed by the fishery management 
plan; and 
(c) The small-scale fishing activities will not adversely affect fishery resources of other 
Members or the resources governed by relevant RFMO's.   
5.6 Fishing subsidies meet the definition of Artic le 5.3 of this Annex contingent on a showing 
that the developing country Member has:   
(a) underexploited resources in its EEZ;  or 
(b) a right to high seas fishing quotas or extra quota in a RFMO. 
5.7 Upon the request of developing country Memb ers, developed country Members shall provide 
technical assistance to developing country Member s on mutually agreed terms and conditions to 
develop the capacity to initiate, implement and enfo rce compliance with a fishery management plan in 
keeping with the FAO Code of Conduct on Respons ible Fisheries and adequate to provide the 
showing required by Articles 5.3, 5.4 and 5.5 of this Annex.   
Article 6 
Notifications and Enquiry Points 
6.1 A Member asserting that a subsidy covered by  this Annex qualifies for an exception pursuant 
to Articles 4 and 5 of this Annex, with the excepti on of artisanal fisheries under Article 5.1 of this 
Annex, shall include in its annual notification, mutatis mutandis,  under Article 25 of the ASCM, 
information fully describing the fisheries benefiti ng from the subsidy and describing how the subsidy 
conforms to the conditions set forth in the excep tion.  Information shall include, where relevant, 
measures to address fishing capacity and effort, the biological status of managed stocks and other 
fishery resources.   TN/RL/GEN/150/Rev.2 
Page 20  
 
  6.2 The Committee on the ASCM will annually review  such notifications and report to Members 
on the extent to which Members are availing th emselves of such exceptions.  Reports will be 
published annually in a form available to the public.   
6.3 In reviewing notifications, the Committee is en couraged to consult with and seek information 
from fishery experts, as authorized by Article 24.5 of the ASCM.   
6.4 Each Member shall maintain an enquiry poi nt to answer all reasonable enquiries from other 
Members and interested parties in other Members concerning its fisheries management plan, including measures in place to address fishing capacity and fishin g effort and the biological status of managed 
stocks.  Special flexibility shall be given to develo ping countries with respect to instituting enquiry 
points, including flexibility to de velop such enquiry points with th e help of technical assistance.  
Upon the request of developing country Member s, developed country Members shall provide 
technical assistance to develop the capacity to initiate  and implement compliance with this Section.   
 
Article 7 
 
Actionable Subsidies:  Adverse Effects 
 
7.1 For purposes of ASCM Part III, no Member should cause, through the use of any fishery 
subsidy referred to in Article 3 of this Annex, adverse effects to the interests of other Members, which 
in addition to adverse effects as defined in Article 5 of the ASCM, shall also include adverse effects  
to a fishery resource16, i.e.:   
 
(a) injury to the fishery resource of another Member;17   
 
(b) nullification or impairment of benefits  accruing directly or indirectly to other 
Members under GATT 1994, in particular the benefits of concessions bound under 
Article II of GATT 1994, as a result of an effect on a fishery resource;   
  (c) serious prejudice to a fishery resource of another Member.     
7.2. The examination of the adverse effects to a fishery resource from fishery activity shall include 
an evaluation of all relevant fishery resource factors, including:   
 
(a) the total catch or production or trading (in volume terms) by the Member of target 
species, with breakdown by fishery, and th e number of vessels used in those catching 
or production operations, with breakdown by operated location areas;18  
 
(b) the criteria and scientific information used  to set the status of the fishery;   
 
(c) whether the fishery in question is under management of a regional fisheries 
management organization or arrangement a nd which are the nature of the monitoring 
and the quantitative limits applicable to the Member;   
 
                                                      
16 Nothing in the concept of adverse effects to a fishery resource shall prejudice the ability of a panel to 
find adverse effects as otherwise defined in Article 5 of the ASCM for products covered by Articles 2 and 3 of 
this Annex.  An adverse effect to the fishery resource is an alternative additional means of meeting the ASCM 
adverse effects standard.   
 17 The term "injury to the fisheries resource" ha s the same meaning in ASCM Part III and ASCM 
Part V, except as specified by paragraph 7.8 of this Annex.   
18 For evaluation of stocks involving multi-species, for example in tropical waters, Members shall use 
the available scientific data to identify trends.  TN/RL/GEN/150/Rev.2 
 Page 21 
 
 
  (d) national fisheries management plans in pl ace, with sufficient information to enable 
Members to evaluate and to understa nd their framework and operation;  and 
 
(e) government-to-government payment for access  by foreign vessels to fishing resources 
of a developing country's maritime jurisdiction or to quotas or any other rights 
established by any regional fishery management organization or arrangement ("access 
rights"), with breakdown by recipient c ountry, total amounts paid, amounts received 
on the onward transfer of the access rights, fisheries data (in accordance with items 
(a) and (b) of this paragraph) a nd other relevant information.   
 
(f) information on the biological status of relevant marine ecosystems.   
 
This list is not exhaustive, nor can one or several of these factors necessarily give decisive guidance.
19   
 
7.3 Without prejudice of Article 6 of the ASCM, serious prejudice to a fishery resource in the 
sense of paragraph (c) of Article 7.1 of this  Annex shall be presumed to arise when:   
 
(a) there is an increase in the subsidizing Me mber's capacity to produce a fishery product 
due to the subsidy;  or 
 
 (b) an increase in the subsidizing Member's relative share of production of a fishery 
product, as compared to non-subsidized production, over a representative period sufficient to demonstrate clear trends in production.   
 
7.4 For purposes of assessment of adverse effects pursuant to Articles 7 and 8 of this Annex, the 
period of data collection normally should be at least  three years, and should include the entirety of the 
period of data collection for the subsidy investigation.  
 
Article 8 
 
Countervailing Measures:  Determinatio n of Injury to a Fishery Resource 
 
8.1. Members taking any countervailing duty measures under Part V of the ASCM shall do so 
only in accordance with the provision s thereof, except that where they avail themselves of the injury 
test in this Article of this Annex, they shall utili ze any provisions specified in this Article of this 
Annex.20  In particular, the following provisions shall apply to any investigations involving 
allegations of injury to a fishery resource: 
 
(a) With reference to Article 11.1, 11.4 and 11.6 of the ASCM, Members shall grant 
recognized consumer, industry and advocacy  groups standing to submit a written 
application, and the authorities may decide to initiate an investigation without having 
received a written application by or on beha lf of a domestic industry without needing 
to show that special circumstances exist for taking such action, it being recognized 
that injury to that Memb er's fishery resource may or may not be drawn to the 
attention of the Member by a domestic industry;   
 
                                                      
19 This provision parallels ASCM Article 15.4, using the factors contained in Indonesia's July 2, 2007 
Proposal.   
20  This provision parallels ASCM Article 10. TN/RL/GEN/150/Rev.2 
Page 22  
 
  (b) With reference to Article 11.2 of the AS CM, an application may refer the criteria in 
Article 11.2(iv) of the ASCM or the injury factors referred to in this Article of the 
Annex relating to injury to a fishery resource;   
 
(c) [Consider whether the definition of "interested parties" under Article 12.9 of the 
ASCM needs to broaden the parties included, and in particular to grant standing to 
recognized consumer, industry and advocacy groups as interested parties as well as 
applicants, with a possible amendment to Article 16 of the ASCM];  
 
(d) With reference to calculation of the amount  of a subsidy in terms of benefit to the 
recipient, in addition to the guidelines of  Article 14 of the ASCM, Members may use 
a method consistent with the following:  
 
 …. 
 
(e) With reference to determination of th e amount of any countervailing duty pursuant to 
Article 19.4 of the ASCM, subsidization pe r unit of the subsidized and exported 
product, the amount of the subsidy may include  all subsidies found to exist in relation 
to the harvesting and production of such a product, including subsidies to any vessels 
used in such harvesting … [give any other necessary examples].  
 
(f) …. [identify any other provisions that should be specific to a countervailing duty 
investigation involving allegations of injury to a fishery resource.]  
 
8.2 A determination of injury to a fishery resour ce in the sense of paragraph (a) of Article 7.1 of 
this Annex in a countervailing duty investigation shall be based on positive evidence and involve an 
objective examination of the volume of the fishery activity and its effect on the Member's fishery 
stocks, and the effect of the fishery activity on the fishery resource.21   
 
8.3 The examination of the injury  to a fishery resource from fi shery activity shall include an 
evaluation of the volume of the fishery activity, in  particular whether there has been a significant 
increase in subsidized imports, either  in absolute terms or relative to production or catch related to the 
product in the Member's waters. With regard to  the effect on Member's fishery stocks, the 
investigatory authorities shall consider whether th ere has been a significant decrease in their fish 
stocks, or whether the effect of the fishery activity is to reduce stocks of migratory fisheries, reduce 
traditional hatching in the Member's fishing territori es, or otherwise impair production or catch in the 
Member's waters. No one or several of these factors can necessarily give decisive guidance. 22  
 
8.4. The examination of the inju ry to a fishery resource from fishery activity shall include an 
evaluation of the effect of the fishery activity on all relevant fishery resource factors, including:   
 
(a) the total catch (in volume terms) by the Member of target species and by-catch, with 
breakdown by fishery, and the number of vessels used in those catching operations, 
with breakdown by operated location areas;23   
 
(b) the criteria and scientific information used  to set the status of the fishery;   
 
                                                      
 21 This provision parallels ASCM Article 15.1.   
22 This provision parallels ASCM Article 15.2.   
23 For evaluation of stocks involving multi-species, for example in tropical waters, Members shall use 
the available scientific data to identify trends.   TN/RL/GEN/150/Rev.2 
 Page 23 
 
 
  (c) whether the fishery in question is under management of a regional fisheries 
management organization or arrangement a nd which are the nature of the monitoring 
and the quantitative limits applicable to the Member;   
 
(d) national fisheries management plans in pl ace, with sufficient information to enable 
Members to evaluate and to understa nd their framework and operation;  and 
 
(e) government-to-government payment for access  by foreign vessels to fishing resources 
of a developing country's maritime jurisdiction or to quotas or any other rights 
established by any regional fishery management organization or arrangement ("access 
rights"), with breakdown by recipient c ountry, total amounts paid, amounts received 
on the onward transfer of the access rights, fisheries data (in accordance with items 
(a) and (b) of this paragraph) a nd other relevant information.   
 
(f) information on the biological status of relevant marine ecosystems.   
 
This list is not exhaustive, nor can one or several of these factors necessarily give decisive 
guidance.24   
 
8.5 Where fishery activities of more than one count ry are simultaneously subject to a proceeding, 
the effects of such activities shall be cumulate d only if they determine that the amount of 
subsidization established in relation to the imports from each country is more than de minimis  as 
defined in paragraph 9 of ASCM Article 11 and th e volume of imports from the fishery activity of 
each country is not negligible.25   
 
8.6 It must be demonstrated that the fishery ac tivity is, through the effects of subsidies, causing 
injury within the meaning of this section.  The demonstration of a causal relationship between the 
fishery activity and injury to the fishery resource shall be based on an examination of all relevant 
evidence before the authorities.  The authorities sha ll also examine any known factors other than the 
subsidized fishery activity which at the same time are injuring the fishery resource, and the injuries 
caused by these other factors must not be attr ibuted to the subsidized fishery activity.26   
 
8.7 The effect of the subsidized fishery activit y for a particular product covered by this Annex 
shall be assessed in relation to any fi sheries resource covered by this Annex.27   
 
8.8 For purposes of a countervailing duty proceeding under ASCM Part V, injury shall include the 
provisions of Articles 7 and 8 of this Annex, exce pt that the fishery resource examined shall be 
exclusively within the Exclusive Economic Zone or archipelagic waters of the Member investigating 
injury to its fisheries resource.  Injury for the purposes of a countervailing duty proceeding under 
ASCM Part V may also be determined according to the standards of Article 15 ASCM, even if it is a 
fishery subsidy covered by this Annex.28   
                                                      
24 This provision parallels ASCM Article 15.4, using the factors contained in Indonesia's July 2, 2007 
Proposal.   
 25 This provision parallels ASCM Article 15.3 on the is sue of multiple countries being investigated in a 
countervailing duty proceeding.   
 26 This provision parallels ASCM Article 15.5 on the need for proof of causation.   
 27 This provision parallels ASCM Article 15.6 on "like product".  However, for purposes of the adverse 
effects to fisheries resource test, the "like product" determ ination would not be the same as in a standard injury 
test that measures trade effects to a like product.  For example, a fishing activity for bluefin tuna that "injures" 
the dolphin resource of another Member could be covered by these provisions, despite the fact that the bluefin 
tuna fishing might not be "injuring" the bluefin tuna catch.   
 28 Nothing in the concept of adverse effects to fisher ies resources or injury to  a fishery resources shall 
prejudice the ability of a panel or investigating authority to find adverse effects or injury as otherwise defined in TN/RL/GEN/150/Rev.2 
Page 24  
 
   
Article 9 
Prevention of circumvention 
 Members shall not have recourse to rules of or igin (preferential or non-preferential), the flag 
of a vessel and access rights, among others, as a means to undermine the objectives set out in the 
preamble and to circumvent their obligations under this Annex.   
 
Article 10 
Review 
The provisions of this Annex shall be reviewed  by the Committee after a period of 8 (eight) 
years from the date of its entry into force, with a view to determining whether any modification is 
necessary.   
Article 11 
Transitional provisions 
11.1 Any fisheries subsidy which has been establishe d within the territory of a Member before the 
date of the entry into force of this Annex shall be notified to the Committee in no later than 90 days 
after that date.   
11.2 From the entry into force of this Annex, there shall be a period of three years for developed 
country Members and a period of five years for de veloping country Members to gradually phase out 
and eliminate fisheries subsidies that are inconsistent  with the provisions of this Annex.  The starting 
point of the reduction shall be the 2003-2005 average of the fisheries subsidies prohibited under Article 2.  Members shall not be allowed to adopt new prohibited fisheries subsidies or to extend the 
scope of any existing prohibited fisheries subsidy.   
11.3 Any least-developed country Member shall phase out its fisheries subsidies within an eight-
year period, preferably in a progressive manner, from the date of entry into force of this Annex.  If 
such least-developed country Member deems it nec essary to apply such subsidies beyond the 8-year 
period, it shall not later than one year before the e xpiry of this period enter into consultation with the 
Committee, which will determine whether an extension of this period is justified, after examining all 
the relevant economic, financial a nd development needs of the Member  in question.  If the Committee 
determines that the extension is justified, the Me mber concerned shall hold a nnual consultations with 
the Committee to determine the neces sity of maintaining the subsidies.  If no such determination is 
made by the Committee, the least-developed country Member shall phase out those fisheries subsidies 
within 3 (three) years from the end of the last authorized period.   
 
 
__________ 
 
  
                                                                                                                                                                    
 
Article 5 and Part V of the ASCM.  An adverse effect to a fisheries resource or injury to a fisheries resource is 
an alternative additional means of m eeting the traditional adverse effects or  injury standard of Part III and 
Part V of the ASCM.