RESTRICTED  WORLD TRADE  
ORGANIZATION  S/CSC/M/52 
10 March 2010 
 (10-1268) 
Committee on Specific Commitments   
  
 
REPORT OF THE MEETING HELD ON 9 FEBRUARY 2010 
 
Note by the Secretariat
1 
  
1. The Committee on Specific Commitments (CSC) he ld a meeting on 9 February 2010, chaired 
by Mr. Jean-Marc Mignon from France.  The agenda for the meeting, contained in WTO/AIR/3500, 
was adopted.  
A. R
ELATIONSHIP BETWEEN OLD AND NEW COMMITMENTS  
(a) Proposals on old and new commitments  
2. The Chairman  recalled that how to treat the relati onship between old and new commitments 
in the incorporating instrument continued to be the focus of the Committee's discussion.  While the 
discussion under this item was substantive and construc tive, delegations' interventions reflected that a 
divergence of views remained, in particular on the issue of additional language to be included in the 
protocol.  A number of delegations  had reiterated the need to include certain language as a way to 
prevent rollbacks in the new schedules.  Some dele gations had expressed caution about this idea, but 
were willing to continue discussions on the basis of written proposals.  Australia had presented a 
proposal at the Committee's last meeting, and Swit zerland had circulated its submission shortly after 
the meeting.  The Committee had also received a room document from Japan during the week before this meeting.  These proposals constituted a good b asis for further deliberation.  Despite their 
differences, these proposals were serving a common objec tive.  They thought to ensure that the level 
of treatment provided by existing commitments woul d not be undermined after the schedules annexed 
to the protocol had replaced the schedules currently  in force.  Some Members had warned that the 
protocol language should be clear  and unambiguous and not create uncer tainty about the legal status 
of commitments, nor lead to interpretation problems in the future.  Therefore, in considering these 
proposals, Members needed to bear in mind the consequences of the proposed language in the 
protocol.   
3. In introducing the communication (S/CSC/W/56) from his delegation, the representative of 
Switzerland
 reminded Members that various elements ha d been presented in previous meetings. The 
paper highlighted the distinction between th e procedures for the current negotiations under 
Article XIX and the procedures for the modificati on of specific commitments under Article XXI.  The 
main part of the paper proposed an approach to introducing language in the protocol.  Paragraph 15 
listed certain facts or elements which needed to be  clarified through the prot ocol.  In paragraph 19, 
Switzerland invited Members to consider this approach .  If they concurred, a text would be needed.  
He noted that Australia had proposed such language.   
4. The representative of Japan  introduced his delegation's proposal which was contained in a 
room document dated 2 February 2 010.  The main purpose of the proposal was to stimulate discussion 
                                                      
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/52 
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  with regard to the relationship between old a nd new commitments and to emphasize that new 
commitments should not rollback from existing ones unless Article XXI procedures had been duly followed.  He noted that the proposals from Au stralia and Switzerland made the same point and 
indicated that clear language to this end was need ed in the protocol.  Based on these two proposals, 
his delegation's communication suggested that there be two main elements in the protocol.  First, it 
ought to mention that the commitments in a Memb er's new schedule should not be less favourable 
than those provided for in the existing schedule.  Second, certain mechanisms should be included in 
the protocol under which an affected Member might  claim rollbacks within a limited time period.  His 
delegation's paper also proposed elements for fu rther discussion, including verification procedures, 
how to deal with MFN exemption lists in the protocol, and how to treat disagreements among 
Members on the existence of rollbacks. 
5. The representative of Australia
 stated that the proposals from Switzerland and Japan provided 
thoughtful and timely contributions to the debate.  Like the Australian proposal, they were seeking a 
legal framework to ensure that new commitments we re more favourable than old ones.  All proposals 
were aimed at achieving a common objective and provid ed a good basis for further work.  Australia 
had some questions about the methodologies proposed in each document, particularly in relation to 
legal certainty and the status of old commitments .  On the proposal from Switzerland, Australia 
supported the underlying rationale that new commitment s were to either conf irm or improve market 
access, national treatment or other rights compared to old commitments.  It was a very useful contribution to the debate and set out thoughtfully some of the important issues Members would face 
in developing a technical framework for the D oha Round commitments.  Australia was concerned, 
however, about the uncertainty the proposal would cr eate as regards the status of old commitments.  
For new commitments to be valid only if there we re the same as or mo re favourable than old 
commitments, would add significant complexity to the already difficult and highly technical task of 
interpreting Members' commitments.  Australia recalle d that it was intention to ensure maximum legal 
certainty why Members had agreed to adopt the repl acement method last year.  Australia would have 
concerns with a situation where old commitment s would retain ongoing legal status after the 
conclusion of the Doha Round.  The proposal from Ja pan was intended to set out a means of ensuring 
that new commitments were more favourable than old ones.  It was clearly consistent with the broad 
consensus that there should be no rollback, and a very  useful contribution to the debate.  The concept 
of providing a grace period in which Members could protest instances of rollback was a creative one.  But Australia was concerned it would create uncer tainty because the status of old commitments 
during this period would be unclear.  It was also unc lear what process would be followed if there were 
instances of disagreement over rollback.  One of th e key differences between Japan's and Australia's 
proposal was that in Australia's view, conflicts  between old and new commitments and potential 
rollbacks were to be resolved befo re the entry into force of the pr otocol.  All instances of rollback 
should be addressed in an extensive and thorough ve rification process before the final conclusion of 
the Doha Round.  The pure replacement method with  a thorough verification process would provide 
the highest degree of legal certainty, while ensuring that new commitments would contain no rollbacks.  Australia recognized that this put partic ular emphasis on the verification process to ensure 
that Members would abide by their obligations under Articles XIX and XXI.   
6. The representative of China
 noted that as a matter of principle, new law prevailed over old 
law and that new law and old law should not co-e xist.  New commitments were part of treaty 
obligations in the WTO system and should replace or  supersede old commitments.  The purpose of the 
negotiations on new commitments was to impr ove market access and enhance the level of 
liberalization, not to roll back and become more re strictive in trade in services.  In cases where there 
was rollback, a distinction should be made between tw o situations.  First, rollback was a result of 
genuine negotiations.  For example, the outcome of  the negotiations initiated by the European Union 
under Article XXI after its enlargement was accepta ble.  Second, rollbacks resulted from negligence, 
mistakes or tricks in the scheduling process. Th ese were the issues to be addressed.  Verification 
could be an important step to prevent rollbacks.  While China attached importance to verification, it  S/CSC/M/52 
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  thought that the exercise might not be enough.  In case verification could not identify deviations, the 
last resort would be dispute settlement to resolv e the problem.  While China trusted that Members 
would act in good faith, it recognized that making schedules was an extremely complicated process.  
Therefore, China tentatively suggested to oblige scheduling Members to take due diligence in the 
whole process.  Different from what was suggested by Japan that the affected Member identified 
discrepancies between old and new commitments, Ch ina would prefer that the scheduling Member 
declared any technical modifications, amendments or  changes to its schedule so as to facilitate the 
verification process.  In other words, China was sugg esting a notification procedure.  As to the issue 
of introducing certain language to the protocol , China remained cautious, since this might cause 
uncertainty.  What was more important was to ta ke steps to prevent rollbacks from occurring.   
7. The representative of Chile  reiterated that his delegation was not convinced of the idea of 
including specific language in the protocol with  respect to the relationship between old and new 
commitments.  The objective sought by the propo sals could be met under relevant GATS provisions 
and the principles of treaty interpretation.  Ther efore, his delegation preferred not to include any 
language which might lead to interpretation problems in the future.  However, if there was consensus 
supporting the inclusion of certain language in the prot ocol, his delegation could go along with it.  He 
reiterated that such language should be as clear and direct as possible.  Regarding the three proposals, 
he thought that the one from Australia was the closes t to this requirement.  His delegation had certain 
concerns over the proposal from Switzerland which ga ve rise to doubts about the role that could be 
played by old commitments in relation to new one s.  With respect to the proposal from Japan, his 
delegation's concern was that the suggested opportuni ty for making claims concerning rollbacks might 
affect the stability of new commitments.  It was al so unclear what would be the procedures for an 
affected Member to make such claims.  Given the importance of the verification process, he suggested 
that delegations make efforts to participate in the process so as to ensure that commitments in the new 
schedules would be in line with the negotiating prin ciples.  Once the negotiations were concluded, 
new commitments needed to be stabilized.  If it was found out at a later stage that there were certain 
rollbacks, institutional instruments within the WT O system could be invoked to deal with the 
problem.  
8. The representative of Switzerland  drew delegations' attention to the fact that his delegation 
was not proposing a particular text in its co mmunication (S/CSC/W/56).  What his delegation 
proposed was that the protocol include language on "Application of successi ve specific commitments 
relating to the same subject matter" and that such language clarify a number of issues or facts as 
specified in paragraph 15 of document S/CSC/W/ 56.  His delegation made these proposals with a 
view to finding an agreement on language.   
9. The representative of South Africa  noted that the importance of legal certainty of new 
commitments vis-à-vis  old commitments was recognized.  His delegation was not convinced that a 
specific protocol language was needed to deal  with the relationship between old and new 
commitments as suggested, which might give rise to  interpretation problems.  The principle of 
progressive liberalization was captured in Article XIX, which meant that new commitments were to improve old commitments.  This had been highlight ed during the plurilateral process as well as in the 
Chairman's text developed for the 2009 ministerial.  It was a contradiction to even talk about possible 
rollbacks at this stage.  The protocol could reitera te the principle of progressive liberalization which 
had been enshrined in the GATS, but his delega tion did not wish to engage in any discussion on 
possible rollbacks.  He recalled that, when the democratic government had been established in 
South Africa in 1994, white South Africa, if taken separately, could be ranke d as developed country 
while black South Africa clearly had fallen into th e category of LDCs.  Despite this huge development 
deficit and despite the fact that South Africa ha d been treated as a developing Member after the 
establishment of the WTO, many big players had strongly opposed treating South Africa as a 
developing Member. South Africa's new gove rnment had maintained its Uruguay Round 
commitments, because it believed that WTO commitm ents could enhance security and predictability S/CSC/M/52 
Page 4  
 
  and accord governments the ability to make reforms domestically which anchored policies.  Rolling 
back such ability would open up a huge conundrum  for all Members and would not take Members 
anywhere closer to the objective of achieving a cr edible outcome in the services negotiations.  The 
proposal of discussing or negotiating possible rollbacks on a bilateral basis was inappropriate as the WTO was substantially driven by political interest and small Members would not be able to withstand 
economic and political pressure imposed by big Memb ers in terms of accepting rollbacks.  As to 
verification, it should be an open and transparent process.  Where there had been rollbacks, they 
should be addressed.  Those Members who refused to  address their rollbacks would have to pay in 
some form. 
10. The representative of Japan
 stated that his delegation's proposal was aimed at preventing 
rollbacks, but not at how to  deal with rollbacks. 
11. The representative of Turkey  said that the protocol should clearly state the objectives of 
negotiations, including achieving a progressively higher  level of liberalization and ensuring that the 
existing commitments would not be undermined.  Hi s delegation agreed in principle with the three 
delegations that had made proposals.  As indicat ed in the Annotated Agenda, these proposals were 
pursuing the same objective.  In terms of simplicity , the Australia's proposal seemed appropriate.  He 
noted that Switzerland had clarified the confusion hi s delegation had had regarding the validity of old 
commitments according to the proposal.  His dele gation thought that the proposal should include 
certain language by reference to Article XIX.   
12. The representative of Hong Kong, China  noted that the three proposals provided a good basis 
for further deliberation on additional language with  respect to the relationship between old and new 
commitments.  His delegation was fully supportive of the need for such language in the protocol to 
provide necessary legal certainty.  To ensure that new commitments would accord treatment no less 
favourable than that provided previously, his delegati on believed that the final protocol to be agreed 
upon would have to include at least two fundamental elements.  First, an express and legally binding 
provision saying that the old schedules had the status of being interpreting context for the new 
schedules.  Here "interpreting context" went beyond  its literal meaning, which also meant the context 
for interpreting the scope and covera ge of commitments in old and new schedules.  This was to avoid 
doubt about the status of old schedule.  Second, an  express and legally binding provision to the effect 
that any specific commitment in th e new consolidated schedule shall not accord, or be construed to 
accord, treatment to other Members less favourable than that provided by the corresponding specific 
commitment under the old schedule, unless it had be en done in accordance with Article XXI.  While 
noting that the proposals from Australia and Switzerla nd were in the same direction, his delegation 
had concerns about both proposals.  The proposal from Australia might not be able to provide 
sufficient assurance on its own, as it did not expressly state that old schedules had the status of being interpreting context.  With respect to the Swiss proposal, his delegation was concerned about the idea 
that new commitments would supersede old commitmen ts to the extent that they improved existing 
commitments.  The relationship between old and ne w commitments in this context would create legal 
uncertainty and give rise to situations where old commitments continued to have legal effect when 
new commitments were found to fail the "more favour able test".  Regarding Japan's proposal, he 
wondered how the suggested notifi cation and consultation process within a specific time period would 
work in practice.  His delegation wished to  continue the discussion on Japan's proposal.  
13. The representative of the Republic of Korea
 noted that Japan's proposal put forward a creative 
idea which brought together the verification process  and a grace period for implementation. This 
hybrid approach appeared to be a "post safety check ".  In paragraph 8 of the proposal, singular form 
was used to refer to Members involved in consultatio ns, which seemed to suggest a bilateral process.  
He therefore sought clarification from Japan as to the possibility of involving third parties, as a Member's commitments affected other Members as well.    S/CSC/M/52 
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  14. The representative of Pakistan  stated that additional clarification in the protocol was needed 
because the language "achieving a progressively higher level of liberalization" in Article XIX was not sufficient.  It could be interpreted as achieving a better overall level of new commitments than that of 
old commitments.  Therefore, it needed to be specified that rollback was not permitted for each 
specific commitment.  With respect to verification,  not all Members had the same capacity and it was 
not clear what the course of action would be to  address discrepancies found during the verification 
exercise.  It was open how discrepancies found after the verification exercise would be dealt with.  
When replacement was the incorporating method, certain bridging language in the protocol was 
needed to keep previous commitmen ts alive.  The proposals on the table were in the same direction, 
although they did not take into account all concerns that had been mentioned in the discussion.  While 
he understood that Switzerland was not  proposing a legal text, he suggested that if the proposed idea 
was converted into text, it would acknowledge that Members were not supposed to improve each 
specific commitment.  With respect to the propo sal from Japan, he thought that the proposed 
consultation should be conducted at  a multilateral level and that th e suggested one-year time period 
was too short.  Without prejudice to his delega tion's position, he said that should the approach 
proposed by Japan be adopted, the time period would need to be longer, for example, five years.   
15. The representative of Colombia
 noted that the Committee was confronted with two issues.  
First, there was a desire for the greatest legal certainty of specific commitments.  Second, there was 
the objective to avoid rollbacks in the new schedules .  He was concerned that the Swiss proposal, in 
particular paragraph 15:(b) of document S/CSC/W 56, and paragraph 8 of Japan's room document 
would undermine the certainty of some new spec ific commitments.  This was not the objective 
Members were seeking.  There were principles and ru les in international law to be followed as to what 
commitments should prevail when new schedules took effect, such as Articles 30 and 59 of the 
Vienna Convention on the Law of Treaties.  What  was needed was a common understanding of these 
rules, including their meaning and scope, and the results of their a pplication.  Regarding rollbacks, 
noting that several proposals were on the table, he  warned that any decision on this subject would 
have considerable legal consequences.  Therefore, delegations had to be car eful in considering the 
scope and content of the proposals, particularly the meaning of the terms used.  With respect to institutional arrangements, there were mechanisms in the WTO which provided for the review of and 
helped ensure the compliance with  commitments by Members.  He cautioned that what would be 
agreed upon in services would constitute an im portant precedent for the implementation of 
commitments and would have implic ations for other areas as well.  He therefore suggested that 
Members consider how the discussion in this Comm ittee could inform discussions in other areas.  
16. The representative of the Secretariat
 stated, that although a debate on how to legalize the 
results of the DDA has not been la unched formally, the Secretariat had started internally to think 
about this matter.  One issue was the variety of th e results of the DDA, which might be grouped into 
two broad categories.  The first category were the results of market access negotiations, be it 
agriculture, NAMA or services, which would be reflected in schedules.  The practice was to 
incorporate the results of market access negotiations into relevant agreements through protocols.   A 
protocol was a legal instrument specifying the conditi ons for the entry into force of the results and the 
relationship between old and new commitments, be it tariff concessions or services commitments.  The second category were the rule-making resu lts, which would normally produce new legal 
provisions, and thus would normally take effect  through the amendment procedures set out in 
Article X of the WTO Agreement.  All elements of the DDA would presumably be in a single 
package, possibly a Final Act,  as the DDA was a single undertaking and its outcome would be 
presented for legal acceptance by Members as such.  The Final Act would contain all results of the negotiations, including various protocols on market access and various amendments, as well as the 
conditions for acceptance and entry into force.   
17. He noted from the discussion that Members a ll agreed that the new schedules should not 
contain rollbacks and that they were seeking an a ppropriate legal approach.  There were normally two S/CSC/M/52 
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  ways to address this issue.   One way was to devi se a rule that would be enforceable through dispute 
settlement in the future.  It need ed to be clear in terms of content and should not cause interpretation 
problems.  However, given the nature of services commitments, it would be difficult to have an objective and factually verifiable measure by which Members could determine whether there was rollback or not.  While in most cases it would be easy to ascertain whether th ere is rollback, in some 
cases it might not be.  For example, if a limitati on on the number of service suppliers was replaced by 
a foreign equity limitation, this would be an improvement for new entrants but a rollback for 
incumbents.  Another way of trying to ensure that  there was no rollback was to provide for a process 
of negotiations in cases where a Member claims ther e is a rollback.  Such negotiations were already 
foreseen, for example, in the certification procedur es (S/L/84) and the procedures for the modification 
of commitments under Article XXI (S/L/80).  He thought that the existence of rollback might also 
have to be determined by way of negotiations.  They could take place, either during an extended 
verification exercise prior to the conclusion of the Round or, as Japan had suggested, Members might 
raise concerns on rollback and initiate a consultati on process within a limited period of time after the 
entry into force of the protocol.   
18. The representative of the Secretariat noted that the relationship between old and new 
commitments had not been addressed in agriculture  and NAMA as Members were still working on the 
modalities in these two areas.  Although the establis hed practice in tariff concessions was that new 
tariffs schedules did not replace old tariff schedules, enforcement was straightforward as the matter was about numbers.   
19. The representative of Canada
 was hopeful that continued discussions would provide 
consensus on language beneficial to all Members.  She noted that the proposal from Switzerland had 
covered a couple of relevant issues.  In particular, it had captured much  of what Canada believed to be 
important in the exercise, namely, the importance of  an extensive verification process, the expectation 
that Members would act in good faith by not drafti ng their Doha commitments in a way that would 
provide less favourable treatment than their Uruguay Round commitments, and the insistence that no 
specific commitments currently in force might be deteriorated with the conclusion of the Round and 
that the Sixth Protocol should include clear language  in this respect.  However, the Swiss paper had 
raised several questions for furthe r discussion, in particular the view that "...'replacement method' is 
not a concept of WTO law and should not be attributed too excessive a weight, beyond its practical value to facilitate the discussion among Members".  With respect to the proposal from Australia, she 
noted that it captured and affirmed what Canada had suggested, i.e. incorporating a reference to no 
less favourable treatment in the proposed language for the protocol.  Canada was interested in 
Australia's views on the verification process: how timelines and duration would be addressed. 
Furthermore, Canada wished to hear Australia's specific views regarding the replacement method.  
For example, how would potential rollbacks be treated should they be discovered once new 
commitments had been agreed upon.  She noted that th e Japan's approach also tried to capture the idea 
that commitments in the new schedules should not be less favourable than those provided in the 
existing schedules.  With respect to the proposed  timeline of one year for a verification process 
following the conclusion of the Round,  Canada woul d be interested in learning what recourse would 
exist should a rollback be identified at a later stage.   Moreover, Canada also wished to know whether 
the agreement between Members on the existence of rollback and applicable solution would be based 
on a bilateral negotiation or a multilateral process.  W ith respect to Japan's pr oposal that rollbacks in a 
given sector or subsector be resolved by reverting to pre-Doha commitments for that sector or 
subsector, Canada wished to know Japan's position regarding what would happen if commitments for 
that sector or subsector contained liberalization in  certain aspects, which would be then lost.   
20. The representative of Saudi Arabia
 stated that the Sixth Protocol should make it clear that the 
new schedules resulting from the Doha Round would not withdraw old commitments.  His delegation 
appreciated the clarity of the text proposed by Aust ralia which reiterated that commitments could only 
be modified or withdrawn through the procedures laid down in Article XXI.  With respect to the  S/CSC/M/52 
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  proposal from Switzerland, he was concerned that para graphs 15(a) and (b) coul d imply that a balance 
might be struck between improvements and deterior ations resulting from a new commitment and that 
if on balance a new commitment was more advantage ous than the old, it would prevail.  While there 
was no question about balancing gains against losses , it was well established that no right under an 
existing commitment might be impaired and that all rights existing prior to the Sixth Protocol were 
preserved.  Any language that would eventually be adopted should make th is clear beyond doubt.  
With respect to the room document from Japan,  his delegation was still considering it and would 
comment on it at a later time.  
21. The representative of the European Union  stated that it was for the purposes of legal certainty 
that Members had adopted the replacement method.   While his delegation was open to discuss the 
inclusion of appropriate language in the protocol, the discussion should not unravel the principle of 
the replacement method.  The proposal from Switz erland suggested resorting to old commitments 
with a view to ensuring that they would not be undermined.  This would not only create legal uncertainty, but also contradict the replacement me thod.  Regarding Australia's proposal, the idea was 
to resort to Article XXI, which could not fully gua rantee the absence of modifications or withdrawals 
of old commitments.  On the contrary, such refe rence to Article XXI implicitly accepted and even 
encouraged rollbacks if compensation took place,  and opened the door for the revival of old 
commitments.  He noted that Article XXI did not  apply across schedules and that old schedules would 
not have legal standing as a result of the repl acement method.  Australia's proposal could de facto  lead 
to the co-existence of two schedules.  In sum, the legal status of old commitments was uncertain in 
both proposals.  He emphasized that the co-existence of two schedules was not consistent with the 
replacement method and that the best way to avoi d rollbacks was a thorough verification process.   
22. The representative of South Africa
 noted that Members had agr eed not to roll back their 
commitments and to address this issue consciously in their scheduling.  In this situation, any rollback 
would be inadvertent, and therefore, should be addressed, A time period for fixing it should not be 
allowed.  On the verification exercise, he wished to know in more detail how it would be conducted.  
The time period for this exercise might need to be extensive because of the complexity of the exercise 
and the resource constraints on developing countries.   
23. The representative of Chinese Taipei  stated that his capital was still reviewing the three 
proposals.  Without prejudice to its final position on this matter, his delegation wished to share some 
preliminary observations in the Committee.  These proposals were aimed at achieving the common 
objective of ensuring no rollbacks in the new schedules.  In the view of his delegation, what was 
suggested by Australia seemed more like "principl es", while Switzerland’s proposal was more like an 
"operational clause" which was more specific on how to deal with the situation s hould rollbacks exist.  
His delegation wondered whether in Australia's pr oposal, the wording "may not accord" was to be 
replaced with "shall not accord" in order to refer to  a Member’s future obligation.  Regarding the 
wording "to the extend that they confirm" in paragr aph 15(a) of the Swiss proposal, he asked what the 
term "they" was referring to.  Concerning paragrap h 15(b) of the Swiss proposal, which began with 
"as a consequence", it was unclear whether there wa s any causal link between the two paragraphs.  A 
small paragraph might be needed at the beginnin g of Switzerland’s proposal, for example, "Members 
agree to use the replacement method in making thei r commitments.  In the event of the rollbacks, 
Members agree to abide by the foll owing guidelines:".  This would make it clearer that old schedules 
would be referred to only when there was a dispute on the interpretation of rollbacks.  With respect to 
Japan’s suggestion that the protocol specify a limite d time period within which an affected Member 
could make claims on rollbacks in another Member's schedule, he believed that this mechanism would 
require a more detailed procedural designs.  A numb er of questions needed to be answered: When 
would an affected Member make a claim?  Within what time limit should another Member respond?  
Within what period should both si des resolve their differences?  W ho would determine the existence 
of rollbacks if the disputing parties could not reach agreement?  In a ddition, this might create a period 
of uncertainty and would affect third parties. S/CSC/M/52 
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  24. The representative of New Zealand
 said that, in principle, her delegation supported the 
approach set out in the Australian proposal.  The la nguage was simple and clear and avoided creating 
uncertainty about the legal status of old commitm ents.  Her delegation al so supported Colombia's 
statement and the reference it had made to the rele vant provisions of the Vienna Convention.  In 
addition, she cited Article 79 of the Convention, wh ich enabled the correction, within a time period, 
of errors after the new agreement had entered into force.  This would seem to offer an intermediate 
step between the verification process prior to the incorporation of a new agreement and the 
Article XXI compensation-seeking process after th e entry into force of new commitments.   
25. The representative of the United States  noted that one of the principal objectives was to 
ensure that the outcome of the negotiations would not  result in rollbacks from prior commitments.  An 
ambitious liberalizing outcome in services required that  the commitments agreed to in this Round be 
legally certain and predictable.  Each Member s hould emerge from the negotiations with a single and 
clear schedule of commitments.  The replacement method was an impor tant tool in this regard.  
Although the negotiations and the verification process  were the principal means to guard against 
rollbacks, his delegation could consider other pro cedures.  However, these should not undermine the 
final schedules.  There was some promise in Japan's  proposal to set aside a period of time after the 
negotiations for Members to consult on assertions of  possible rollbacks.  Japan's proposal seemed to 
recognize that Members might not agree on what rollb ack was or whether it existed in a certain case.  
At the end of this Round, prior commitments should have no legal effect other than that given by the 
customary rules of interpretation in public intern ational law, which were reflected in the Vienna 
Convention.  Accordingly, prior commitments woul d be a supplementary means of interpretation to 
confirm the meaning based on the general rules of interpretation or to determine the meaning in 
specific circumstances, su ch as when the general rules left the meaning ambiguous or led to a result 
which was manifestly absurd or unreasonable.  B ecause prior commitments already had this effect by 
virtue of the Vienna Convention, there was no need for additional language in the protocol.  
Additional language was more likely to create conf usion than clarity.  All current proposals for 
additional language affected the legal certainty of commitments. 
26. The representative of India  stated that his delegation was open to incorporating particular 
language into the protocol.  There were two optio ns: pure replacement which assumed no rollbacks;  
and the Swiss and Japanese proposals which recogni zed that rollbacks might exist and that an 
insurance policy was therefore needed.  His delega tion agreed that old commitments had legal value 
in the light of Article 31 of the Vienna Conventio n.  Since Members were negotiating in good faith, 
rollbacks, if any, would be mostly inadvertent.  He reminded Members that in the Protocols approved 
since 1947, the issue of rollback had been explicitly addressed only in a few cases.  It needed to be 
kept in mind that this issue would be addressed horizontally as well. 
27. The representative of Switzerland  noted the existence of consensus that the deterioration of 
existing commitments would not be permissible in this Round, at least from a negotiating and political 
perspective.  Several means could be used to achieve  this objective.  Some might be relevant before 
the conclusion of the Round, such as verification.  Ot hers could be resorted to after the conclusion of 
the Round.  His delegation strongly supported an open, transparent, systemic and in-depth verification 
process.  The representative of the Secretariat had highlighted the complexity of services 
commitments compared to commitments in other areas, which meant that it was sometimes difficult to draw a definitive comparison between different levels of commitments.  In addition to the difficulty of 
identifying rollbacks, another problem was that rollbacks might be found several years after an 
extensive verification.  That was the problem Swit zerland's proposal tried to address.  In response to 
other delegations' comments, he noted that there wa s consensus on one aspect, i.e., that rollback was 
permitted only through Article XXI.  When the Round was concluded, it would always be possible for 
a Member to challenge what it believed to be a rollback through WTO legal channels, despite the 
replacement method.  This needed to be taken in to account by delegations who attached particular 
importance to legal certainty of commitments.  The replacement method did not eliminate the  S/CSC/M/52 
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  application of the GATS, including Articles XIX and XXI.  He sought clarifications from the 
Secretariat on the certification procedures and the procedures under Article XXI as he understood that 
it was the backtracking Member who initiated these procedures.  
28. The representative of the Secretariat  said that Article XXI enabled any Member who wished 
to modify or withdraw its commitments to invoke the procedures.  The provision did not foresee that 
the procedures be invoked with respect to anot her Member's modification or withdrawal of 
commitments.  The certification procedures were desi gned to certify any changes of a technical nature 
or changes that did not alter the substance of commitments.  Such procedures took 45 days provided 
that no objection were raised.  If a Member objected  to the certification, the modifying Member might 
initiate the Article XXI procedures.  There were wa ys of devising mechanisms in the protocol if 
Members so wished, which could be an Article XXI- type negotiating procedure with some changes to 
suit the situation. 
29. In response to the comments by th e EU, the representative of Australia  agreed that 
Article XXI could not apply across schedules.  Austra lia's proposal applied to the stage prior to the 
entry into force of the protocol and therefore woul d not lead to the co-existence of schedules.  Her 
delegation supported a pure replacement met hod and a through verification process.   
30. The representative of Japan  responded to comments on his delegation's proposal.  Rollbacks 
might occur due to mistake, but Members might  have different views as to whether a new 
commitment constituted a rollback.  The approach proposed by his delegation was not  intended to 
describe various types of rollback, but sought to find devices to prevent them.  Details of the 
mechanism could still be discussed should Members be in terested in principle.  That "the affected 
Member" in paragraph 8 of the proposal was in singular form did not mean that Japan was suggesting 
a bilateral process.  He noted that the same form  was used in Article XXI, though other affected 
Members could join the negotiations under Article  XXI.  Concerning the time period, while the 
reference to "one year" in the proposal was just an example, the period was intended not to be too 
long for reasons of legal certainty.  Afterwards , commitments in the new schedules would not be 
changed.  The question what to do if disagreement remained after the time period should be further 
discussion.  He recalled that China had suggested to resort to DSU, and that Article XXI referred to 
arbitration.  The approach proposed by his delega tion did not contradict the replacement method as it 
only provided for possibilities of making claims wit hout affecting the validity of new commitments.  
As to possibilities that a commitment contained lib eralization of certain aspects, but rollback in 
others, he stressed that any form of rollback shoul d be avoided.  While recognizing that commitments 
were to be interpreted based on th e Vienna Convention, he said if a rollback was apparently due to 
mistake, it should be addressed through the approach provided for in the protocol rather than through 
treaty interpretation.  
31. The Chairman  said that Members might have to comp romise between two positions.  One was 
to seek legal simplicity with a pure replacement method.   The other was to ensure legal certainty with 
regard to pre-existing commitments.  The latter pos ition could call for the replacement method to be 
made subject to conditions which might even lead to  the co-existence of schedules.  Further work was 
needed, based either on new proposals or on modificati ons of existing proposals.  It was desirable to 
solve the issue before the endgame of negations starte d.  He would continue to  hold consultations with 
delegations.  
(b) Issues related to verification  
32. The Chairman  recalled that verification had been pu t forward in the Committee's discussion 
as one of the means to prevent rollbacks in the new sc hedules.  While there were different views as to 
the nature of the verification exercise and the ro le it might play, its importance had been generally 
recognized.  The Secretariat's Note (S/CSC/W/55) ex amined in detail the verification practice in the S/CSC/M/52 
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  Uruguay Round, and provided delegati ons with important food for thought.  At the Committee's last 
meeting, Members had been invited to consider wh ether past practice should be followed and, if not, 
which adjustments would be needed.  More specifica lly, Members needed to consider the nature of 
the exercise, the procedures that would serve its  purpose and other issues such as the timing and 
duration of the exercise, as well as the role of the Secretariat. 
33. The representative of the European Union
 reiterated that a thorough verification process was 
needed, which should allow Members to identify a ll clear rollbacks.  To have an efficient and 
effective exercise, his delegation was willing to di scuss the procedures, including those that would 
allow for the resolution of possible disagreement on th e existence and nature of  rollbacks.  He thought 
that the rules of interpretation, in particular Articles 31 and 32 of the Vienna Convention, were 
applicable to cases where there was disagreement on rollbacks.  Article XIX:4 of the GATS should 
also be taken into account in this context. By following this approach, legal certainty and 
predictability of the system could be ensured.   
34. The representative of Australia  stated that her delegation's proposal put considerable emphasis 
on the verification process to ensure that Member s abide by their obligations under Articles XIX 
and XXI.  For Members to be comfortable with this process, it was necessary to devote some time to 
discussing its design.  The replacement method relie d heavily on the thoroughness and effectiveness 
of the verification process.  There could be, if necessary, recourse to an Article XXI-type process as suggested by the Secretariat.  Members might discuss  the details of the mechanism.  She also noted 
the suggestion that language be included in the prot ocol to allow old commitments to be used as a 
source of interpretation.  Her dele gation emphasized that the period before the entry into force of the 
protocol would be key to resolving potential rollbacks.  For verification to be effective, sufficient time 
was needed, possibly up to six months, to make sure  that no old commitments were replaced with 
commitments that implied rollbacks.  Her delegations  was also interested in discussing how Members 
might engage with each other.  The obvious point was that Members could use all negotiating means 
available to them – bilateral, plur ilateral and multilateral – to ensure that there were no rollbacks.  She 
reiterated that the plurilateral process could be a pa rticularly useful mechanism and that a small group 
might be formed to undertake the task.  If the veri fication exercise took place over a six-month period, 
her delegation would feel comfortable that any ro llbacks had been identified and addressed.  This 
would also ensure that the replacement method was the best option to provide for legal certainty.   
35. The representative of Japan
 said that his delegation attached great importance to the 
verification exercise not only to ensure the technical accuracy and clarity of schedules, but also to 
prevent rollbacks.  He therefore anticipated a mo re complicated process than in the Uruguay Round.  
It was important to have further discussions on how to  proceed with the exercise.  In his delegation's 
view, the longer the time period, the better for th e exercise.  His delegation supported the idea of 
establishing small groups to exchange information on technical issues.  The verification exercise 
would be conducted by Members and it would be u seful for the Secretariat to provide technical 
assistance or promote information sharing.  Noting that the timing and period of the exercise 
depended on the whole movement of  the Round and could not be decided until the last moment, he 
suggested that Members discuss technical issues in the Committee.   
36. The representative of Turkey  noted that, in terms of verification, Members were facing a 
more complex situation in this Round than in the past.  His delegation was of the view that 
verification needed to be conduc ted multilaterally, preferably as a consultative exercise which should 
address rollbacks as well as the technical accuracy an d clarity of schedules.  It was clear that 
Members could invoke Articles XXII and XXIII to d eal with possible rollbacks after the entry into 
force of commitments.  What was unclear was how to tackle contentious cases during the verification 
process.  He agreed with Japan that any rollback should not be allowed, and took issue with the 
example given by the Secretariat.  In his view, if  a limitation on the number of service suppliers was 
replaced by a foreign equity limitation, this w as a rollback because there had been no limitation on  S/CSC/M/52 
 Page 11 
 
 
  foreign equity in the old schedule and the lim itation was newly introduced.  Removing the limitation 
on the number of service suppliers was an act of progr essive liberalization, but this was another issue.  
Members could not evaluate possible rollbacks based on benefits to individual service suppliers or 
countries.  They needed to assess rollbacks in comparison with resp ective commitments.  No trade-off 
was allowed in this context.   
37. The representative of the Secretariat  said that the intervention by Turkey had actually 
established the point he had trie d to make, namely, rollback was debatable in some instances.  
Another example in this regard could be an econo mic needs test without specific criteria that was 
replaced with a quota.  Therefore it would be difficult to establish a clear bench mark which would allow Members to determine where a rollback occurred.  With respect to verification, he recognized 
that more time might be needed in this Round than in the Uruguay Round because the exercise would 
need to verify not only technical accur acy but also the absence of rollbacks.   
38. The representative of Canada
 reiterated that her delega tion supported the conduct of a 
verification exercise at the end of the Round to ensure that Members did not backtrack on their previous commitments.  Many details of the ex ercise would depend on the broader process of the 
Round.  Canada encouraged Members to be as thorough as possible in reviewing the offers on the 
table in advance of verification.  Given the un certainty of how thorough the verification exercise 
could be, Canada would continue to emphasize the need for language in the final protocol that 
rollbacks were not allowed without following Article XXI procedures. 
39. The representative of Chile
 stated that his delegation also attached importance to the 
verification process before the entry into force of th e protocol.  He agreed that Members were facing a 
more complex situation than in the past.  One issue raised in the discussion was that how to proceed if 
there were still rollbacks in the sch edules after the verification process and the entry into force of the 
protocol.  He noted that language in the protocol could not prevent such situations from arising, and 
that there were institutional m echanisms established in the GATS to address them.  The Committee 
needed to continue the discussion and consider whet her the inclusion of par ticular language in the 
protocol might prove useful. 
40. The representative of Argentina  noted that there was a certain degree of consensus on 
conducting a thorough verification exercise which woul d be the means to deal with rollbacks.  He 
noted the statement made by Australia that action under Article XXI could only be taken prior to the 
entry into force of the protocol.  Similarly, the EU had said that Members could not have recourse to 
Article XXI to address rollbacks after the protocol had entered into force as Article XXI could not 
apply across schedules.  Others were of the view that there might still be a need to address rollbacks 
after the entry into force of the protocol, even if  the verification exercise had been substantive and 
thorough.  According to this view, it was necessary to  include additional language in the protocol to 
prevent rollbacks.  He thought that this would creat e uncertainty in the future by allowing for the 
possibility of challenging the comm itments Members had agreed upon.  Finally, he shared the view 
that it was important for Members, in particular de veloping Members, to have sufficient time to carry 
out the verification exercise.   
41. The representative of Switzerland  echoed the view about the complexity of the verification 
exercise in this Round, which would not only focus on the technical accuracy of schedules but also on 
rollbacks.  It would be difficult to guarantee the ex ercise to be complete and exhaustive.  He noted 
that sometimes a Member might underestimate the re al scope of its own commitments as revealed, for 
example, in US – Gambling .  Such situations might arise during the verification exercise and therefore 
to assess whether a commitment constituted a rollb ack would process the process.  He therefore 
supported the idea that the duration of the exercise had to be in line with the complexity of the task.   S/CSC/M/52 
Page 12  
 
  42. The Chairman
 suggested that the Committee take note of the statements made and revert to 
this agenda time at its next meeting.   
43. It was so agreed . 
B. SCHEDULING ISSUES  
44. There was no intervention under this item.  The Chairman  suggested that the Committee 
revert to this item at the next meeting. 
45. It was so agreed . 
C. CLASSIFICATION ISSUES  
46. There was no intervention under this item.  The Chairman  suggested that the Committee 
revert to this item at the next meeting. 
47. It was so agreed . 
D. OTHER BUSINESS  
48. There was no intervention under this item.   
E. APPOINTMENT OF CHAIRPERSON FOR THE COMMITTEE  
49. The Chairman  noted that the item on the "Appointment of Chairperson for the Committee" 
was included in the agenda for this meeting pursuant to the Rules of Procedures.  However, the formal 
election of the Committee's Chair for 2010 would take  place at the beginning of the next meeting as 
the consultations on the slate of names for various bodies were still on-going. 
 
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