WORLD TRADE
ORGANIZATIONTN/CTD/W/6
17 June 2002
(02-3362)
Committee on Trade and Development
Special SessionOriginal:  English
SPECIAL AND DIFFERENTIAL TREATMENT PROVISIONS
Communication from India
The following proposals1 were submitted by India at the Special Session of the Committee on
Trade and Development held on 9 April 2002 for making some non-mandatory special anddifferential treatment provisions into mandatory provisions.
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I. AGREEMENT ON IMPORT LICENSING PROCEDURES
Article 3.5 (j) – existing provision :
"In allocating licenses, the Member should consider the import performance of the
applicant.  In this regard, consideration should be given as to whether licences issuedto applicants in the past have been fully utilised during a recent representative
period.  In cases where licences have not been fully utilised, the Member shall
examine the reasons for this and take these reasons into consideration when
allocating new licences.  Consideration shall also be given to ensuring a reasonable
distribution of licences to new importers, taking into account the desirability of
issuing licences for products in economic quantities.  In this regard, special
consideration should be given to those importers importing products originating indeveloping country Members and, in particular, the least-developed country
Members".
Interpretation of the provision
1. It is clear from the above provision that it is incumbent on Members to examine the reasons
for non-utilisation of licences and to take these reasons into consideration when allocating new
licences.  Further, it is also incumbent to give consideration to ensuring reasonable distribution of
licences to new importers taking into account the de sirability of issuing such licences for products in
economic quantities.  It will be useful to work for uniformity in the administration of Tariff Rate
Quotas (TRQs).  However, in view of the word "should" appearing in the last sentence of thisprovision, referring to special consideration to those importers importing products originating in
developing countries and in particular the least-developed country (LDC) Members, there is lack of
clarity on whether the provision is mandatory.
                                                     
1 India reserves the right to amend or modify the proposals at a later date.TN/CTD/W/6
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Proposal
2. There is need for making this Special and Differential (S&D) provision mandatory to enable
the products originating from developing countries to benefit from this provision.  This could be doneeither through an authoritative interpretation or by replacing the word "should" in the last sentence by
"shall".  In the context of Article 3.5 (j) of the Agreement on Import Licensing Procedures, making
the last section mandatory, would help developing countries, especially the least-developed ones, to
increase their share in exports of products of export interest to them, as envisaged in the preamble to
the Marrakesh Agreement.
II. AGREEMENT ON THE APPLICATION OF SANITARY AND PHYTOSANITARY
MEASURES
Article 10.2 – existing provision :
"Where the appropriate level of sanitary or phytosanitary protection allows scope for
the phased introduction of new sanitary or phytosanitary measures, longer time-frames for compliance should be accorded on products of interest to developing
country Members so as to maintain opportunities for their exports".
3. In this context, it would be recalled that the following decision was taken at Doha on
14 November 2001 vide paragraph 3.1 of  the Decision on Implementation-Related Issues and
Concerns (WT/MIN(01)/W/10):
"Where the appropriate level of sanitary and phytosanitary protection allows scope
for the phased introduction of new sanitary and phytosanitary measures, the phrase
"longer time-frame for compliance" referred to in Article 10.2 of the Agreement on
the Application of Sanitary and Phytosanitary Measures, shall be understood to mean
normally a period of not less than 6 months.  Where the appropriate level of sanitaryand phytosanitary protection does not allow scope for the phased introduction of a
new measure, but specific problems are identified by a Member, the Member
applying the measure shall upon request enter into consultations with the country
with a view of finding a mutually satisfactory solution to the problem while
continuing to achieve the importing Member’s appropriate level of protection".
Proposal
4. While paragraph 3.1 of the Decision on Implementation-Related Issues and Concerns
(WT/MIN(01)/W/10) of the Ministerial Conference taken at Doha on 14 November 2001, gives an
interpretation of the phrase "longer time-frame for compliance" referred to in Article 10.2 of the
Agreement on the Application of Sanitary and Phytosanitary Measures, there remains some ambiguity
on the period of the time-frame for compliance owing to  the use of word "normally" in this paragraph.
5. In the light of the above decision and the need  for longer time-frames for compliance for the
developing countries, it is proposed that in Article 10.2 of the Agreement on the Application of
Sanitary and Phytosanitary Measures, the term "should" be read to express "duty" rather than mere
exhortation.  This could be clarified through an authoritative interpretation under Article IX.2 of the
Marrakesh Agreement Establishing the WTO.  It is further proposed that the word "normally" in thefirst sentence of paragraph 3 of  the Decision on Implementation-Related Issues and Concerns
(WT/MIN(01)/W/10), be deleted.TN/CTD/W/6
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6. The above changes would make this important S&D provision fully operational and effective
and will give necessary flexibility to developing countries.
Article 10.4 – existing provision:
"Members should encourage and facilitate the active participation of developing
country Members in the relevant international organisations".
7. Vide paragraph 3.5 of  the Decision on Implementation-Related Issues and Concerns
(WT/MIN(01)/W/10) of the Ministerial Conference taken at Doha on 14 November 2001, Members
decided:
(i) "Takes note of the actions taken to date by the Director-General to facilitate the
increased participation of Members at different levels of development in the work of
the relevant international standard setting organizations as well as his efforts tocoordinate with these organizations and financial institutions in identifying
SPS-related technical assistance needs and how best to address them; and
(ii) urges the Director-General to continue his cooperative efforts with these
organizations and institutions in this regard, including with a view to accordingpriority to the effective participation of least developed countries and facilitating the
provision of technical and financial assistance for this purpose."
Proposal
8. The language used in the Article 10.4 is of best endeavour nature.  It urges Members to
encourage and facilitate the active participation of developing country Members in the relevant
international organizations.
9. In the light of paragraph 3.5, as mentioned above, of the Decision on Implementation-Related
Issues and Concerns (WT/MIN(01)/W/10) by the Ministerial Conference taken at Doha on
14 November 2001 and in view of the importance of ensuring greater participation of Members atdifferent levels of development throughout all phases of standard setting, it is proposed that in
Article 10.4 of the Agreement on the Application of Sanitary and Phytosanitary Measures the term
"should" be read to express "duty" rather than mere exhortation.  This could be clarified through an
authoritative interpretation under Article IX.2 of the Marrakesh Agreement Establishing the WTO.
This would help achieve the intended objective of this S&D provision.
III. UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE
SETTLEMENT OF DISPUTES
Article 4.10 – existing provision:
"During consultations Members should give special attention to developing country
Members’ particular problems and interests."
Comment
10. Request for consultations is the first step for initiation of a dispute in the WTO.  Holding of
consultations is mandatory before making any request for establishment of a panel.  Consultations are
intended to provide opportunity to the disputing parties to know each other’s views and to the
defending party to explain its measure subjected to the dispute.TN/CTD/W/6
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Proposal
11. It is suggested that the word "should" be replaced by "shall" so as to make this S&D provision
mandatory.
12. The precise operational content of the phrase "give special attention" is not defined.  It is
proposed that:
(a) if the complaining party is a developed Member and if it decides to seek
establishment of a panel, it should be made mandatory for it to explain in the panel
request as well as in its submissions to the panel as to how it had taken or paid special
attention to the particular problems and interests of the responding developing
country;
(b) if the developed Member is a defending party, it should be made mandatory for it to
explain in its submissions to the panel as to how it had addressed or paid special
attention to the particular problems and interests of the complaining developing
country;
(c) the Panel, while adjudicating the matter referred to it, should give ruling on this
matter as well.
13. These suggestions, when implemented will make the provisions of Article 4.10 mandatory,
effective, operational and of value to the developing counties.
Article 21.2 – existing provision:
"Particular attention should be paid to matters affecting the interests of developing
country Members with respect to measures which have been subject of dispute
settlement".
Comment
14. This provision is part of an Article that re quires the Dispute Settlement Body (DSB) to keep
under surveillance, the implementation of its rulings , following the adoption of the panel/Appellate
Body (AB) reports.  The Article provides for de termination of reasonable period of time (RPT) for
compliance of the DSB rulings; in case of disagr eement, for initiation of further dispute settlement
proceedings to determine whether the defendant Member has complied with DSB rulings;  and for
receiving status reports on implementation of DSB rulings at every regular DSB meeting six months
after adoption of the panel/AB reports.
Proposal
15. It is suggested that the word "should" be replac ed by "shall", so as to make this provision
mandatory.
16. The utility of the provision could be increased by clarifying the phrase "matters affecting the
interests of developing country Members".  It is proposed that:
(a) this provision, having been placed at the beginning of the long and important
Article 21, should be made mandatory, for the panels and Appellate Body to interpret
it as an overarching provision in all disputes, involving a developing country Member
as a disputing party;TN/CTD/W/6
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(b) if the defending party is a developing Member and the complainant, a developed
member ,
(i) RPT:  15 months should be considered as normal RPT and if the measure at
issue is change of statutory provisions or change of long held practice/policy
[like Quantitative Restrictions/Balance of Payment (QRs/BOP)], RPT shouldbe two to three years and panels/AB should indicate requirement of more
RPT;
(ii) 21.5 Procedures:  Time for completion of 21.5 panel proceedings should be
increased from 90 days to 120 days; and the panel should give all due
consideration as any normal panel would give to the particular situation of
developing country Members.
(iii) Filing of status report should be in alternate meetings rather than in every
regular meeting.
(c) if the complaint is by a developing Member against a developed Member:
The defending developed country Member should be given no more than
15 months of RPT in any circumstance;  existing 90 days time limit for
21.5 procedures should be observed strictly.  In case of delay, it should entailan obligation to compensate for continuing trade losses to the developing
country complainant.
17. These suggestions, when implemented will make the provisions of Article 21.2 mandatory,
effective, operational and of value to the developing counties.
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