RESTRICTED  WORLD TRADE  
ORGANIZATION  S/CSC/M/51 
18 December 2009 
 (09-6600) 
Committee on Specific Commitments   
  
 
REPORT OF THE MEETING HELD ON 6 NOVEMBER 2009 
 
Note by the Secretariat
1 
  
1. The Committee on Specific Co mmitments (CSC) held a m eeting on 6 November 2009, 
chaired by Mr. Jean-Marc Mignon from France.  The agenda for the meeting, contained in WTO/AIR/3467, was adopted.  
A. R
ELATIONSHIP BETWEEN OLD AND NEW COMMITMENTS  
2. The Chairman  recalled that the Secretariat's Note on past practice in incorporation and 
verification of the results of market access nego tiations, contained in document S/CSC/W/55,  had 
been circulated to delegations.   
3. A representative from the Secretariat  introduced the Note.  The Note consisted of three parts.  
Part I examined past GATT and GATS practice in  incorporating the results of market access 
negotiations.  The focus was on using the method of protocol.  Normally any Member was entitled to 
add new commitments or improve existing commi tments unilaterally through the certification 
procedure (S/L/80).   The reason why a protocol was needed at the end of market access negotiations 
was that each Member attached conditionality to its  own commitments.  In other words, each Member 
undertook a new set of commitments provided that all other Members who participated in the negotiations did the same.  Such conditionality made  a protocol necessary.  Technically, a protocol 
was a new treaty in public international law.  As indicated in the Note, GATT and GATS had taken 
different approaches in addressing the relationship be tween old and new commitments.  Part II of the 
Note looked at the verification exercise conduc ted in the Uruguay Round, which had been a 
consultative process.  Part III examined relevant pr actice in the regional trade agreements notified to 
the WTO under Article V:7 of the GATS.  He finally  reminded Members that this new Note should be 
read in conjunction with the Secretariat's pr evious Note circulated in 2002 (S/CSC/W/33). 
4. The Chairman
 noted that the results of the current  market access negotiations on services 
would also be incorporated into the GATS by means of a protocol.  He recalled that as agreed, the 
replacement method was the working assumption for su ch incorporation.  Based on this assumption, 
each Member would have one single consolidated schedule comprising of all of its commitments at the end of the negotiations, which would replace the schedules currently in force.  The new schedule 
would be annexed to the final protocol for this purpose.  He invited Members to consider what 
language was needed in the protocol so as to speci fy the relationship between the schedules currently 
in force and the new schedules. 
5. An important issue raised under this item was how to ensure the legal certainty of 
commitments under the replacement method.  Me mbers had yet to reach a common understanding on 
this issue.  One suggestion made was that additiona l language be included in th e protocol to reiterate 
                                                     
 
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/51 
Page 2  
 
  that any rollbacks would not be permitted unless Artic le XXI procedures have been followed and to 
specify the legal value of old commitments as a s ource of interpretation.  However, some Members 
were concerned that additional language might cr eate new uncertainty for the legal status of 
commitments.  In view of this, the Chairman aske d :  1) Would a reference to Article XXI in the 
protocol be necessarily inconsistent with the replace ment method?  If so, why?  If not, how should it 
be phrased?  2) Would a reference to the legal valu e of old commitments as a source of interpretation 
in the protocol be necessarily inconsistent with the replacement method?  If so, why?  If not, how 
should it be phrased? 
6. On the verification exercise, the Chairman inv ited Members to consider whether past practice 
was to be followed and which adjustments to the process were needed in terms of, for example, 
timing, duration, procedures, and the role of the Secretariat. 
7. In response to the questions raised in the A nnotated Agenda, the representative of the United 
States  stated that a mere reference to Article XXI in the protocol was not necessarily inconsistent with 
the replacement method.  However, if it sought to elaborate that the new schedules could not include rollbacks, then it might be creating a consistency pr oblem. It would be helpful if Members could see 
some proposed language to ponder the implications .  A reference to the legal value of old 
commitments as a source of interpretation in the prot ocol was acceptable, but again it depended on the 
actual language.  Concerning the verification process, Members needed time to reflect on how it should proceed.  He enquired whether the Committe e or the Special Session of the Services Council 
would take up the schedules one by one and provi de Members opportunities to raise issues, and 
whether the results achieved would have to be sh ared with the Committee.   He thought that the 
deliberation process should have some initial limits, which should be linked to consensus, and its 
duration could be extended if issues required more time to resolve.  On the role of the Secretariat in 
the verification process, he said that the Secretariat could provide technical assistance upon request.  
8. The representative of Chile
 thanked the Secretariat for its Note, which was very helpful for 
Members to have a deeper understanding of relevant  practices for incorporation and verification.  
With respect to the inclusion of certain language in  the protocol, his delegation was one of those who 
had expressed concerns.  He echoed the considerations  made by the United States.  In response to the 
questions raised by the Chair in the Annotated Agenda , he said that a simple reference to Article XXI 
in the protocol was not problematic.  As a matter of  principle, any incorporating language needed to 
be as straightforward as possible so as to avoid an y interpretation problem in the future.  Certain 
existing elements or tools in international law woul d enable Members to tackle any kind of difficulties 
in interpreting the relationship between old and ne w commitments.  His delegation was open to the 
idea of including certain language in the protocol  provided it was as clear, precise and simple as 
possible.  The verification practice in the Urugua y Round was valuable, containing elements that 
could be used in the current round, for example,  the collective review of commitments in the 
schedules to ensure that they reflected what had been negotiated and agreed.  Recognizing that it was 
time to think about the issue of verification, his delegation would put forward well-defined and 
precise comments at future meetings.  
9. The representative of Canada  stated that the discussion should focus on the desired outcome.   
For Canada, the objective was to have one consolid ated schedule for each Member.  That said, the 
formal replacement of the pre-existing schedules s hould be without prejudice to a Member's legal 
rights under previous commitments.  A clear and common understanding was needed that each 
Member's Doha Round schedule could not represen t a lower level of liberalization than that 
commitment in a pre-existing schedule unless this commitment had been modified through the Article 
XXI process.   Canada had concerns that if th e Doha commitments replaced previous commitments, 
the Vienna Convention might enable Members to us e previous commitments only in instances when 
the ordinary meaning of the commitments could not be otherwise determined.  In other words, the 
Convention would likely allow Members to refe r to previous commitments in cases where the  S/CSC/M/51 
 Page 3 
 
 
  ordinary meaning was not clear, but would not likely to allow Members to use them in interpreting the 
ordinary meaning in their context as a general rule of  interpretation since they would not be part of the 
WTO agreements. For this reason, Canada believe d that explicit language in the protocol would 
enable Members to resort to all schedules and not to rely entirely on the verification exercise at the 
end of the negotiations.  Canada was interested in the views of other Members, and agreed that the 
protocol needed to be very clear in its language to ensure legal certainty.  With regards to verification, 
there were tools from past practice that could be used, but it might be preferable to revisit the 
verification exercise when Members had a clearer  idea about the timeline for issues such as the 
submission of final schedules, etc.  Canada suppor ted the idea to have an extensive verification 
process to ensure that Members' schedules were accu rate and reflective of progressive liberalization, 
but it was premature to settle this issue at the moment.   
10. The representative of Australia  thanked the Secretariat for its comprehensi ve paper examining 
in useful detail past practice of inc orporation and verification of results of market access ne gotiations 
under both G ATT and GATS.  Australia also appreciated the Ch air's Annotated Agenda which drew 
out the most salient po ints raised b y the Secret ariat in its paper.  There h ad been l imited e xperience in 
terms of further liberalisation of market acce ss under the G ATS.  The conclus ion of the Doha Round 
would m ark the conclusion of the first comprehensi ve market access ne gotiation since the incept ion of 
the G ATS.  Against that background, GATT practice provided use ful history and context , but not 
necessarily a template for incorporating new comm itments under the GATS.  The nature of services 
commitments was intrinsically distinct from co mmitments under GATT. Australia continued to 
support the practice which had emerged in  adopting various protocols on new ser vices commitments 
negotiated under the G ATS since the conclusion of the Urugua y Round.  Tha t was to  explicitl y 
specif y the relationship bet ween pre-e xisting schedules and ne wly attached schedules.  It was 
necessar y for the si xth protocol to the GATS to state un ambiguousl y the relationship bet ween old and 
new commitments.   
11. Australia noted that Members ha d alread y agreed to adopt the replacement method whereb y 
new, more liberal , Doha Round commitments would replace old commitments.  However , regardless 
of the method chosen , it was imperative that new commitments be accurately reflected in ser vices 
schedules and lists of exemptions  and that the results of negotiations  be consistent with Articles XIX 
and XXI.  In other words , there was no scope for rollback, and commitments always needed to be 
"more fa vourable " than those made in the Urugua y Round.  While the object ive of a verification 
process would  be to ensure that schedules accuratel y reflected the results of negotiations and that 
there was no rollback, it could not be  ruled out that certain issues might  be overlooked  and Members 
would  not a gree on all points of clari fication.  While the replacement method me ant that old 
commitments would cease to have direct le gal effect,  in pract ice, old schedules would be n ecessa ry 
as a reference to e nsure that Mem bers did not ro ll back commi tment s.  A ustralia therefore considered 
that t he protocol should m ake clear that Doha R ound c ommitm ents were to be more favourable than 
previous commitments.  In accordance with GATS A rticle XIX , commi tments tabled at the end of the 
Doha R ound might  not be less liberal than pre vious commitment s and a Me mber might  only table a 
less liberal commitm ent if it had undertak en A rticle XXI procedure s.  On th is basis, Australia 
considered that the protocol needed to re flect both the 2001 Doha and 2005 Hong Kong Ministerial 
Declarations and take into account the gu idelines and procedures adopted b y the CT S SS in 2001. 
Members ' schedules of specific commitments to the G ATS  would be anne xed, noting that these 
replace the pre vious schedules , and specif ying that, if an Article XXI pr ocess ha d not been dul y 
follo wed, previous commitments could not be underm ine.  Australia considered that such a reference 
would not be inconsistent with the replacement method  which  could onl y apply wher e new 
commitm ents were  more favourable than existing commitmen ts.  As such , if a Member h ad attempted 
to downgrade their commitments through an ything other than an Article XXI proc ess, the 
commitment would not be valid pursuant to the protocol.  Austral ia had de veloped some draft 
language to this end  for Members' consideration:  S/CSC/M/51 
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  "Unless the procedures of G ATS Article XX I have been dul y follo wed, Members' 
commitments in the ann exed Sch edule of Sp ecific Commitment s and List of 
Exempt ions from Article II ma y not accord , or be construed to accord , treatment less 
favourable than tha t pr
ovided und er the previously anne xed Schedule of Sp ecific 
Commitm ents and List of E xemptions from Arti cle II." 
12. She reiterated that  a reference to the legal status of old commitments as a source of 
interpretation would not be inconsistent with th e replacement method.  There appeared to b e 
consensus that a robust verification process ought to be held after the conclusion o f the negotiations to 
ensure the technical accurac y and clarity of  services schedules and MFN exemptions vis-à-vis the 
agreed results of the ne gotiations.  Notabl y, at the conclusion of the Urugua y Round , the TNC 
communication establish ing the verification process had confirmed that the proce ss did not e xtinguish 
Members ' rights to question commitments , for example throu gh dispute settlement , after it had been  
concluded.  Australia agreed with this approach. Veri fication would in volve a detailed , line-by-line 
examination of draft schedules and an interactive e xchange of comments and revision s.  The process 
would not commence form ally until the Secretar iat circulated Members ' draft final schedules.  The 
Secre tariat should ha ve a role in pro viding technical ad vice to Members throu ghout the pr ocess.  
However, it was ultimatel y for Members to ensure that ne gotiated commitm ents were correctl y 
reflected in schedules of trading partners and that technical erro rs were rectified.  Therefore , Australia 
expected that Members would scrutinise their o wn and other Members ' offer s, meet bilaterall y in the 
first instance , concurrent to which plurilateral negotiati ons would continue to exchange initial 
information on issues requiring verification and rec tification.  Since the plurilateral exercise was 
expected to be bigger and take place over a longer period of time than in the Urugua y Round, it might 
be desirable for this Committee to establish a small group - perhaps a Friends of the Chair process - to 
work in conjunction with the Secretariat to e xamine and resolve outstandi ng technical corrections.  
Austral ia considered that th e verification process would occur o ver a period of three to si x months.  
Since the design and construction of a vigorous verification process was fundamental, Australia 
suggested that the Committee discuss on ho w to approach it and what might be possible or desirable.  
13. The representative of Switzerland  stated that the introduction of certain language in the 
protocol was useful and even necessary to gua rantee the consistency and legal certainty of 
commitments as the results of negotiations.  His delegation had shared its legal analysis with 
Members on this issue.  The ongoing negotiations were based on Article XIX of the GATS which 
provided for progressive liberalization.  Members had the latitude to reduce the scope of their 
commitments, but this was to be based on Article XXI.  Therefore, it was necessary to clarify in the 
protocol that nothing in the schedules annexed could be tantamount to undermining previous 
commitments.   Referring to the first question ra ised in the Annotated Agenda, he said that the 
language in the protocol needed to refer to both Article XIX and Article XXI.  A reference to these 
two provisions together would not constitute any inconsistency.  The question might have been 
phrased as followed: Would the replacement method as de fined by Members be inconsistent with the 
legal bases contained in the GATS?  Articles XIX and XXI as legal bases already existed, but the 
replacement method remained to be introduced.   Th erefore, if a consistency problem arose, it would 
revolve around whether the replacement method would be consistent with Articles XIX and XXI.  As 
to how a reference to these legal bases should be  phrased, his delegation ha d been consulting with 
other delegations on the basis of its draft communica tion.  A concrete proposal would be submitted.   
Referring to the second question raised in the Annot ated Agenda, he recalled the views expressed by 
his delegation.  An issue of interpretation might ar ise with respect to specific commitments, but it was 
not relevant to the relationship between old an d new commitments.  A new commitment could be 
sufficiently clear without leaving any doubt about its meaning and, therefore, would not give rise to a problem of interpretation.  But it could be below the level of old commitments and thus constituted 
depreciation of commitments.  The problem here wa s two-fold.  On the one hand, it was about treaty 
succession in international law.  Pursuant to the cu stomary rules of international law, the more recent 
or more specific treaty would prevail over the previous or less specific one.  Therefore, there was an  S/CSC/M/51 
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  increased necessity to introduce explicit language in the protocol.  On the other hand, the depreciation 
of commitments in the new schedules would be in consistent with Article XIX of GATS.  Such 
commitments might be considered as legally invalid,  but there was no jurisprudence in this regard. 
With regards to the replacement method, he noted that past practice in the GATS negotiations during 
the 1990s was different from the method Members envi saged for this Round.  Therefore, one should 
be prudent when referring to the sectoral protocols to the GATS.   
14. In response to the questions raised in th e Annotated Agenda, the representative of Japan  said 
that a simple reference to Article XXI in the protoc ol did not contradict the replacement approach.  If 
a Member considered it to be problematic, Japan wi shed to know the reasons for that.  However her 
delelgation thought that a reference to the legal value of old commitments as a source for 
interpretation in the protocol would contradict the replacement approach if the legal value was meant 
to be legally binding.  Members could use old co mmitments to judge whether there was rollback in 
new commitments by means of Article 32 of the Vie nna Convention, but there was no need to refer to 
the Vienna Convention in the Protocol.  With respect to verification, she noted that at some point after 
the conclusion of the market access negotiations, Members would have to conduct the exercise in a 
very intensive manner.  While a more complex pro cess might be expected in this Round than in the 
Uruguay Round, its timing should take into account the overall negotiating stages in Agriculture and 
NAMA.  It was premature to discuss this issue now.     
15. In response to the questions raised in paragra ph 9 of the Annotated Agenda, the representative 
of Pakistan  stated that the answer was negative.  He en couraged those Members that had concerns to 
suggest language as a basis for further discussion.  Ot herwise, what had been proposed by Canada and 
Australia was appropriate in order to ensure legal certainty of commitments.  The verification process 
depended on the kind of language in the protocol an d the level of legal certainty Members envisaged.  
In any event, the verification process would require  time and effort.  He therefore requested the 
Secretariat to provide consistent and constant technical assistance in  the process.  While the issue of 
time needed remained open, a period of three to six months as suggested by Australia appeared 
appropriate.  
16. The representative of Brazil  said that his delegation had yet to develop its final position as to 
the inclusion of certain language in the protocol.  The starting point should be that there was no rollback.  In response to the questions raised in paragraph 9 of the Annotated Agenda, he said that 
while a reference to Article XXI or to the legal va lue of old commitments in the protocol would not 
necessarily be inconsistent with the replaceme nt method, concrete proposals would help his 
delegation to define final position on this issue.   On verification, while past practice was a good basis, 
Members needed to revisit issues like timing and duration.  
17. The representative of the European Communities
2 reiterated that his delegation was in favour 
of the replacement method.  The new schedules of commitments should completely replace the old schedules.  This implied that the old schedules would have no legal value as of the entry into force of 
the new schedules.  Members were working based  on the assumption that new commitments would 
not be less favourable than old commitments.  Th e only way to avoid rollbacks was to undertake a 
detailed and thorough verification process. Normal ly, there should be no rollbacks after such a 
process.  All efforts should thus be made so as to achieve a quasi-perfect result, i.e. schedules 
containing no rollbacks.  While certain language in th e protocol might be useful to deal with rare 
cases of rollback, such language should in no wa y create uncertainty about the legal standing of 
                                                     
 
2 On 1 December 2009, the Treaty of Lisbon amendi ng the Treaty on Europe an Union and the Treaty 
establishing the European Community (done at Lisbon , 13 December 2007) entere d into force.  On 29 
November 2009, the WTO received a Verbal Note (WT/L/7 79) from the Council of th e European Union and the 
Commission of the European Communities stating that, by virtue of the Treaty of Lisbon, as of 1 December 
2009, the European Union replaces an d succeeds the European Community. S/CSC/M/51 
Page 6  
 
  commitments.  The aim was to ensure that old comm itments could serve as a source of interpretation.  
Therefore, one could envisage a provision in the pr otocol stating that new commitments could not 
accord treatment less favourable than that provide d by old commitments.  However, such language 
could not have the effect of retaining any legal validity for old commitments, but serve only as a sort 
of a safety net against rollbacks.  His delegation also wished to engage in discussions based on 
concrete proposals.  When proposin g any language, Members should be prudent in referring to Article 
XXI in the protocol.  For example, a statement providing that "rollbacks are not permitted unless the 
Article XXI procedures have been followed" might im ply that old commitments would remain valid if 
the Article XXI procedures had not been followed.   This would be in contradiction with the 
replacement method.  On the verification process, the Secretariat Note had provided important food 
for thought.  As Members would face a more co mplex situation compared to the Uruguay Round, 
sufficient time was needed to conduct the verificati on exercise.  In this respect, his delegation shared 
the comments made by Australia.  Nevertheless, this  was not the most urgent issue to address and his 
delegation needed time to reflect further on it.    
18. Referring to the questions raised in the A nnotated Agenda, the representative of Turkey
 stated 
that a reference to Article XXI in the protocol might be inconsistent with the replacement method 
because Article XXI was about the modification of  schedules by consensus.  The adoption of the 
protocol for the new schedules was itself an act of consensus.  Any Member who might have rollbacks in its schedules could successf ully claim before a panel that the adoption of the protocol for 
the new schedules actually met the condition in Article XXI.  Therefore, a reference to Article XIX in 
the protocol would be more appropriate  than a reference to Article XXI.   
19. Commenting on the verification exer cise, the representative of China
 raised the issue of 
timing.  He asked when the exercise was to take plac e, before or after the conclusion of the services 
negotiations.  He thought that this needed to be addr essed in the later discussions as it was relevant to 
the effectiveness of the exercise.  If it took place af ter the conclusion of the services negotiations, the 
question was how any substantial changes to offers would be dealt with.   
20. The Chairman  reminded Members that the discussion under this item was aimed at achieving 
agreement on the content of the draft protocol wh ich would be presented to the Council for Trade in 
Services for adoption.  Most parts of the draft was clear as they could be based on past examples.  
What delegations were concerned with was the language in the protocol with respect to the 
relationship between old and ne w commitments.  Such language could mention the working 
assumption – the replacement method.  Some dele gation believed that a dditional language was 
necessary to preclude rollbacks.  But there was still a divergence of views in this regard.  It was clear 
from past discussions, however, that Members were  essentially share key objectives.  One was to 
ensure the legal certainty of schedules, and the replacement method appeared appropriate in this 
context.  Another objective was to ensure the lega l certainty of commitments, with many delegations 
emphasizing that there should be no rollbacks.  Th e problem was how to achieve these objectives.  
This was not an easy task and some additional th inking was needed.  Noting that some delegations 
wished to have text-based discussions, he hoped that texts could be communicated soon.  To facilitate 
future work, he would consult with  delegations in a more focused manner.  Finally, he suggested that 
the Committee take note of the statements made and reve rt to this agenda item at the next meeting.   
21. It was so agreed .  
B. SCHEDULING ISSUES  
22. There was no intervention under this item.  The Chairman  suggested that the Committee 
revert to this item at the next meeting. 
23. It was so agreed .  S/CSC/M/51 
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  C. CLASSIFICATION ISSUES  
24. The Chairman  noted that delegations had identified some classification issues in various 
sectors during the discussion of sectoral papers at the meetings of the Council.  He thought it desirable 
to have a more focused discussion on these issues in the Committee.   
25. There was no intervention under this item.  The Chairman  suggested that the Committee 
revert to this item at the next meeting. 
26. It was so agreed . 
D. OTHER BUSINESS  
27. There was no intervention under this item.   
 
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