WORLD TRADE  
ORGANIZATION  TN/TF/W/161 
29 October 2009 
 
 (09-5374) 
Negotiating Group on Trade Facilitation Original:   English 
  
 
COMMUNICATION FROM THE ACP GROUP 
 
Special & Differential Treatment and Tec hnical Assistance and Capacity Building 
 
in the Trade Facilitation Negotiations  
 
 
 The following communication, dated 27 October 2009, is being circulated at the request of the Delegations of the ACP Group.  
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TEXTUAL PROPOSALS OF THE ACP GROUP REGARDING THE S&DT AND  
TA/CB CHAPTER OF A FUTURE TRADE FACILITATION AGREEMENT 
 
  
 The following textual proposals of the ACP Group constitute "work in progress" and do not 
prejudice any future position of the ACP Group in the negotiations on trade facilitation. 
 
I. CHAPEAU OF S&DT CHAPTER  
Comment by the ACP Group:  The ACP Group is of th e view that the provisions contained in the 
S&DT chapter of a future TF Agreement have to be int erpreted in accordance w ith the principles laid 
down in Annex D of the 2004 July Framework Agreement . 
 "The provisions of this chapter shall be interpre ted in light of the following guiding principles: 
 
1. Least-developed country Members shall not be required to notify any provisions or 
 sub-part of provisions under Category A.  
2. Any implementation of provisions (or sub- part of provisions) notified or re-notified 
 under Category C by developing and least -developed countries is conditional on the 
 provision of adequate and effective technical assistance and capacity building  measures by developed countries as well as the acquisition of implementation 
 capacity by developing and least-developed country Members. 
3. The provision of technical assistance and capacity building measures by developed 
 country Members and relevant internationa l organizations, including the IMF, OECD, 
 UNCTAD, WCO and the World Bank, is  a precondition for the acquisition of 
 implementation capacity by developing and least-developed country Members in 
 respect of provisions (or sub-part of prov isions) notified or re -notified under Category 
 C. 
4. Annex D of the 2004 July Framework Ag reement clearly states that "support and 
 assistance should also be provided to help developing and least-developed countries TN/TF/W/161 
Page 2  
 
   implement the commitments resulting from th e negotiations, in accordance with their 
 nature and scope".  
5. In cases where technical assistance and capacity building measures are not provided 
 or lacks the requisite effectiveness, developing and least-developed countries are not  bound to implement the provisions (or sub-pa rt of provisions) notified or re-notified 
 under Category C. 
6. Notwithstanding the peace clause, Members shall exercise due restraint in raising 
 matters under the Understanding on Rules and Procedures Governing the Settlement 
 of Disputes involving least-developed country Members." 
II. DEFINITIONS 
"For the purpose of this Agreement: 
 
(a) "Category A" means provisions or sub-pa rt of provisions that a Member will 
implement upon the entry into force of the Agreement. Each developing country Member and least-developed country Member will determine which provisions or 
sub-part of provisions it will notify under Category A.  
(b) "Category B" means provisions or sub-part of provisions that a developing country 
Member or least-developed country Member will implement after the entry into force 
of the Agreement.  
(c) "Category C" means provisions or sub-part of provisions that a developing country 
Member or least-developed country Member will implement after the entry into force 
of the Agreement, the provision of ade quate and effective technical assistance and 
capacity building measures by donors and the acquisition of implementation capacity.  
(d) "Notification of provisions or sub-part of provisions under Category B to the WTO" 
means the notification to the Trade Facilitation Committee of the provisions or sub-part of provisions that a developing count ry Member or least-developed country 
Member will implement after the entry into force of the Agreement. 
(e) "Notification of provisions or sub-part of provisions under Category C to the WTO" 
means the notification to the Trade Facilitation Committee of the provisions or sub-part of provisions that a developing count ry Member or least-developed country 
Member will implement after the entry into force of the Agreement, the provision of 
adequate and effective technical assistan ce and capacity building measures by donors 
and the acquisition of implementation capacity. 
(f) "Notification of the implementation plan for provisions or sub-part of provisions 
notified under Category B" means the notification to the Trade Facilitation Committee of the implementation plan for the provisions or sub-part of provisions 
that a developing country Member or least-developed country Member notified under 
Category B. 
(g) "Notification of the implementation plan for provisions or sub-part of provisions 
notified under Category C" means the notification to the Trade Facilitation Committee of the implementation plan for the provisions or sub-part of provisions 
that a developing country Member or least-developed country Member notified under Category C.  TN/TF/W/161 
 Page 3 
 
 
  (h) "Implementation plan for provisions or sub- part of provisions notified under Category 
B" means a plan that sets forth:  (i) the period of time required for the acquisition of implementation capacity in respect of each  provision or sub-part of provisions 
included in the plan;  and (ii) the nationa l agencies responsible for implementing the 
provisions or sub-part of provisions included in the plan. 
(i) "Implementation plan for provisions or sub- part of provisions notified under Category 
C" means a plan that sets forth:  (i) the period of time required for the acquisition of implementation capacity in respect of each provision or sub-part of provision included in the plan;  (ii) the technical assistance and capacity building measures required for the acquisition of implementati on capacity in respect of each provision or 
sub-part of provisions included in the plan;  (iii) the donors that agreed to provide the 
technical assistance and capacity buildi ng measures required for the acquisition of 
implementation capacity in respect of each  provision or sub-part of provisions 
included in the plan;  and (iv) the nationa l agencies responsible for implementing the 
provisions or sub-part of provisions included in the plan. 
(j) "Early warning mechanism" means a procedure that a developing country Member or 
least-developed country Member may invoke in order to:  (i) extend the period of 
time required for the acquisition of implementa tion capacity in respect of a provision 
or sub-part of a provision notified under Cate gory B or Category C;  or (ii) re-notify a 
provision or sub-part of a provision initia lly notified under Category B or Category C 
under a different Category. 
(k) "Notification of implementation" means a notification by a developing country 
Member or a least-developed country Member to the Trade Facilitation Committee that it has acquired implementation capacity fo r a provision or sub-part of a provision 
notified under Category B or Category C.  Th e provision or sub-part of the provision 
covered by the notification will become legally binding on the date when the 
notification has been submitted to the WTO.   
(l) "Peace clause" means a provision that exempts developing country Members and 
least-developed country Members from any actions by another Member based on Articles XXII and XXIII of GATT 1994 and the Understanding on Rules and Procedures Governing the Settlement of Di sputes for a given period of time after a 
provision or sub-part of a provision has become legally binding on the developing 
country Member or least-developed country Member concerned."    
III. NOTIFICATION OF PROVISIONS (OR SUB-PART OF PROVISIONS) TO THE 
TRADE FACILITATION COMMITTEE 
Comment by the ACP Group:  The ACP Group would like to note that the notification of provisions 
(or sub-part of provisions) to the WTO serves the sole purpose of informing WTO Members to which 
of the three categories the notifying Member has attr ibuted a given provision (or sub-part thereof). 
Notifications are not meant to provide any inform ation relating to the implementation of these 
provisions (or sub-part of provisions).  This latter information is  to be provided, in a second step, only 
in the implementation plans for provisions (or s ub-part of provisions) no tified under Category B and 
Category C, respectively (see section IV below).   TN/TF/W/161 
Page 4  
 
  A. N
OTIFICATION OF PROVISIONS (OR SUB-PART OF PROVISIONS ) UNDER CATEGORY A 
Developing Country Members 
 
"Developing country Members shall notify to th e Trade Facilitation Committee the provisions (or 
sub-part of provisions) under Category A at the time of the entry into force of the Agreement."  Comment by the ACP Group:  It is the understandi ng of the ACP Group, based on Article 18 of the 
Vienna Convention on the Law of Treaties 1969, that WTO Members, once they have signed the future 
TF Agreement, are obliged to refra in from acts which would defe at the object and purpose of the 
Agreement prior to its entry into force.  This should provide comfor t to those Members which insist on 
a notification at the time of signature of the futu re TF Agreement.  However, the ACP Group might be 
prepared to accept an inclusion of the concept "a t the time of the signature of the Agreement", but 
only in addition to
 the concept "at the time of the entry into force of the Agreement".  
 Least-Developed Country Members 
 
"Least-developed country Members may notify to th e Trade Facilitation Committee the provisions (or 
sub-part of provisions) under Category A at the entry into force of the Agreement or, at the latest, by [X] time after the entry into  force of the Agreement." 
 
Comment by the ACP Group:  The notification of pr ovisions or sub-part of provisions by a least-
developed country Member by [X] time after
 the entry into force of th e Agreement means that such 
provisions or sub-part of prov isions will be implemented only upon the date of notification and not 
upon the entry into force of the Agreement.  Althoug h this does not, strictly speaking, correspond to 
the definition of Category A, this option does not put in to question the concept of Category A.  This is 
because this option should be understood as a deroga tion in favour of least-developed countries that 
is intended to provide an incentive for these countries to notify provisions or sub-part of provisions 
under this particular Category.  
 
B. NOTIFICATION OF PROVISIONS (OR SUB-PART OF PROVISIONS ) UNDER CATEGORY B 
Developing Country Members 
 "Developing country Members shall notify to th e Trade Facilitation Committee the provisions (or 
sub-part of provisions) under Category B at [X] time  after the entry into force of the Agreement." 
 
Least-Developed Country Members 
 "Least-developed country Members may notify to th e Trade Facilitation Committee the provisions (or 
sub-part of provisions) under Category B at [X] ti me after the time provided for developing country 
Members."  C. N
OTIFICATION OF PROVISIONS (OR SUB-PART OF PROVISIONS ) UNDER CATEGORY C 
Developing Country Members 
 
"Developing country Members shall notify to th e Trade Facilitation Committee the provisions (or 
sub-part of provisions) under Category C at [X] time  after the entry into force of the Agreement."  TN/TF/W/161 
 Page 5 
 
 
  Least-Developed Country Members 
 
"Least-developed country Members may notify to th e Trade Facilitation Committee the provisions (or 
sub-part of provisions) under Category C at [X] ti me after the time provided for developing country 
Members." 
 
IV. NOTIFICATION OF IMPLEMENTATION PLANS TO THE TRADE 
FACILITATION COMMITTEE 
Comment by the ACP Group:  The ACP Group takes the view that the notification of the 
implementation plans to the WTO serves the pur pose of providing WTO Members with the essential 
minimum information regarding the implementation of  provisions (or sub-par t of provisions) notified 
under Category B and Category C, respectively.  This  information will differ depending on whether a 
provision (or sub-part of provision) has been notified under Category B or Category C, since these 
two categories are legally different.   
 A. N
OTIFICATION OF IMPLEMENTATION PLANS FOR PROVISIONS (OR SUB-PART OF PROVISIONS ) 
NOTIFIED UNDER CATEGORY B 
Developing Country Members 
 
"Developing country Members shall notify to the Trade Facilitation Committee the implementation 
plan for provisions (or sub-part of provisions) notified under Category B at [X] time after they 
submitted the notification of the provisions (or sub-part of provisions) under Category B." 
 
Least-Developed Country Members 
 
The ACP Group supports any additional flexi bility for least-developed country Members. 
 
B. NOTIFICATION OF IMPLEMENTATION PLANS FOR PROVISIONS (OR SUB-PART OF PROVISIONS ) 
NOTIFIED UNDER CATEGORY C 
Developing Country Members 
 
"Developing country Members shall notify to the Trade Facilitation Committee the implementation 
plan for a provision (or sub-part of a provision) notified under Category C after an agreement with a 
donor has been reached to assist in the implementati on of the provision (or sub-part of the provision) 
concerned."   
Comment by the ACP Group:  The issue of wh ether a developing country Member should submit one 
global implementation plan, covering all provisions or sub-part of provisi ons that it notified under 
Category C, after it has reached ag reement with all donors on assistan ce for the implementation of all 
these provisions or sub-part of provisions, or several implementation plans, covering only the 
provision or sub-part of the prov ision for which an agreement has been  reached with a donor to assist 
in the implementation of that provision or sub-part  of that provision, is still under discussion within 
the ACP Group. 
 
Least-Developed Country Members 
 
The ACP Group supports any additional flexi bility for least-developed country Members.  
 TN/TF/W/161 
Page 6  
 
  V. EARLY WARNING MECHANISM 
A. P
ROVISIONS (OR SUB-PART OF PROVISIONS ) NOTIFIED UNDER CATEGORY B 
1. Additional Time for the Implementation of Provisions (or Sub-Part of Provisions) 
Notified Under Category B  
"1. Any developing country Member, including  any least-developed country Member, may 
extend the time required to implement a provision (o r sub-part of a provisi on) notified under Category 
B.  Any extension shall be notified to the Trade Facilitation Committee prior to the expiration of the 
date of implementation for the provision (or sub-pa rt of the provision) concerned which was notified 
to the Trade Facilitation Committee. 
2. Any developing country Member, including any least-developed country Member, that 
wishes to extend the time required to implement a pr ovision (or sub-part of a provision) notified under 
Category B beyond the time extended and notified under the first paragraph, has to submit a request to 
the Trade Facilitation Committee prior to the expirati on of the date of implementation, as extended 
and notified in accordance with the first paragra ph.  The Trade Facilitation Committee shall take a 
decision on the request, taking into account any sp ecific circumstances of the Member submitting the 
request." 
Least Developed Country Members 
 
The ACP Group supports any additional flexi bility for least developed country Members.  
 
2. Re-Notification of Provisions (or Sub-Part of Provisions) Initially Notified Under 
Category B  
"Any provision (or sub-part of a provision) in itially notified under Categor y B may be re-notified 
under Category C.  A re-notification of a provision (or sub-part of a provision) under Category C has 
to be notified to the Trade Facilitation Committee accordingly."  Least-Developed Country Members 
 
The ACP Group supports any additional flexi bility for least-developed country Members.  
 
B. P
ROVISIONS (OR SUB-PART OF PROVISIONS ) NOTIFIED UNDER CATEGORY C 
1. Additional Time for the Implementation of Provisions (or Sub-Part of Provisions) 
Notified Under Category C 
"1. Any developing country Member, including  any least developed country Member, may 
extend the time required to implement a provision (o r sub-part of a provisi on) notified under Category 
C.  Any extension shall be notified to the Trade Facilitation Committee prior to the expiration of the 
date of implementation for the measure concer ned which was notified to the Trade Facilitation 
Committee.  
2. Any developing country Member, including any least-developed country Member, that 
wishes to extend the time required to implement a pr ovision (or sub-part of a provision) notified under 
Category C beyond the time extended and notified under the first paragraph, has to submit a request to 
the Trade Facilitation Committee prior to the expirati on of the date of implementation, as extended 
and notified to the Trade Facilitation Committee in accordance with the first paragraph.  The Trade  TN/TF/W/161 
 Page 7 
 
 
  Facilitation Committee shall take a decision on the request, taking into account any specific 
circumstances of the Member submitting the request."  
Least-Developed Country Members 
 
The ACP Group supports any additional flexi bility for least-developed country Members.  
 
2. Re-Notification of Provisions (or Sub-Part of Provisions) Initially Notified Under 
Category C 
"Any provision (or sub-part of a provision) in itially notified under Categor y C may be re-notified 
under Category B.  A re-notification of a provision (or sub-part of a provision) under Category B has 
to be notified to the Trade Facilitation Committee accordingly."  
Least-Developed Country Members 
 
The ACP Group supports any additional flexi bility for least-developed country Members.  
 
VI. NOTIFICATION OF IMPLEMENTATION  TO THE TRADE FACILITATION 
COMMITTEE 
A. P
ROVISIONS (OR SUB-PART OF PROVISIONS ) NOTIFIED UNDER CATEGORY B  
"A provision or sub-part of a provision notified un der Category B shall become legally binding only 
on the date when a developing country Member or a least-developed country Member submits a 
notification to the Trade Facilitation Committee that  it has acquired implementation capacity for the 
provision or sub-part of the provision concerned."   
Comment by the ACP Group:  The ACP Group strongl y believes that for reasons of legal clarity and 
transparency a notification of implementation is required  in order for a provision or sub-part of a 
provision notified under Category B to become legally binding.  
 
B. P
ROVISIONS (OR SUB-PART OF PROVISIONS ) NOTIFIED UNDER CATEGORY C 
"A provision or sub-part of a provision notified un der Category C shall become legally binding only 
on the date when a developing country Member or a least-developed country Member submits a 
notification to the Trade Facilitation Committee that  it has acquired implementation capacity for the 
provision or sub-part of the provision concerned."   
Comment by the ACP Group:  The ACP Group strongl y believes that for reasons of legal clarity and 
transparency a notification of implementation is required  in order for a provision or sub-part of a 
provision notified under Category C to become legally binding.  
 
VII. PEACE CLAUSE  
A. P
ROVISIONS (OR SUB-PART OF PROVISIONS ) NOTIFIED UNDER CATEGORY A 
"Developing country Members, including least-developed country Members, shall be exempt from 
any actions based on Articles XXII and XXIII of GATT 1994 and the Understanding on Rules and 
Procedures Governing the Settlement of Disputes for a period of [X] years after a provision (or sub-
part of a provision) has been notified under Category A." TN/TF/W/161 
Page 8  
 
  B. P
ROVISIONS (OR SUB-PART OF PROVISIONS ) NOTIFIED UNDER CATEGORY B 
"Developing country Members, including least-developed country Members, shall be exempt from 
any actions based on Articles XXII and XXIII of GATT 1994 and the Understanding on Rules and 
Procedures Governing the Settlement of Disputes fo r a period of [X] years after notification by a 
Member to the Trade Facilitation Committee that a pr ovision (or sub-part of a provision) notified or 
re-notified under Category B has been implemented."  
 
C. PROVISIONS (OR SUB-PART OF PROVISIONS ) NOTIFIED UNDER CATEGORY C 
"Developing country Members, including least-developed country Members, shall be exempt from 
any actions based on Articles XXII and XXIII of GATT 1994 and the Understanding on Rules and 
Procedures Governing the Settlement of Disputes for a period of [X] years after the notification by a 
Member to the Trade Facilitation Committee that a pr ovision (or sub-part of a provision) notified or 
re-notified under Category C has been implemented."   
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