WORLD TRADE
ORGANIZATIONG/TBT/W/234
21 October 2003
(03-5559)
Committee on Technical Barriers to Trade Original:  English
ENHANCING TRANSPARENCY FOR NEW OR CHANGED REGULATIONS/
CA PROCEDURES WHICH ARISE AS A RESULT OF IMPLEMENTATION
OF A RECOMMENDATION OF THE DSB
Submission by Canada
I. BACKGROUND
1. In a recent dispute settlement case, the DSB recommended the losing party bring its
regulation into conformity with its obligations und er the TBT Agreement.  The parties negotiated a
reasonable period of time (RPT) for implementation.
2. Around the midway point in the implementation period, the losing party notified its revised
technical regulation under the TBT Agreement Article 2.9, with an intended date of force in the
following month.  The party provided a ten-day comment period.  A sixty-day comment period was
requested.  The party responded that it was unable to consider a sixty-day comment period as it was
limited by the deadline imposed by the RPT.  The comment period was extended by seven days.  Theparty stated that it did not consider itself obligated to notify the revised regulation, presumably as it
deemed itself to have met the chapeau conditions of Article 2.9;  but, was notifying on a voluntary
basis for transparency purposes.
II. CONSIDERATIONS
Transparency
3. Transparency is a key goal of the TBT Agreement.  It is an area where the Committee has
dedicated significant time for discussion and generated significant guidance, especially with respect to
the articles of the TBT Agreement which focus on obligations related to technical regulations and how
they can be effectively implemented.  As recently as the July 2003 TBT Committee meetings,
Members continued to highlight ongoing problems with certain aspects of notifications.  It is also
clear that Members generally wish to be notified as early as possible of the intentions of otherMembers in the area of new or revised technical regulations and conformity assessment procedures.
Current guidance from the Committee provides for a minimum sixty-day period during which
comments can be prepared by other Members and forwarded for the consideration of the notifying
Member.
III. DISPUTE SETTLEMENT
Significance of Issue
4. The Dispute Settlement Understanding makes clear that Members are to consider carefully a
decision whether to bring a case (Art.3.7).  Members are also required to “engage in these procedures
in good faith in an effort to resolve the dispute”.  As noted in Article 3.7, the first objective of thedispute settlement mechanism is usually to secure the withdrawal of the measures concerned if theseG/TBT/W/234
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are found to be inconsistent with the provisions of any of the covered agreements.  Dispute settlement
cases, if they cannot be resolved through consultations and initial mutually agreed solutions, are
usually very resource-intensive.  Thus, it can be inferred that the matters raised for resolution under
the DSU are matters considered serious to the party br inging the complaint.  The same can be said for
Members who decide to join as third parties.  The satisfactory resolution of a case will thus beimportant both to the Member initiating the action and third party Members, and may be of interest to
other Members, even if they have not joined the case as third parties.
IV. BRINGING A MEASURE INTO CONFORMITY
5. Where a panel and/or an Appellate Body conclude that a measure is inconsistent with a
covered agreement, it is obliged to recommend that the Member concerned bring the measure into
conformity with that agreement.  The panel/Appell ate Body report shall be adopted by the DSB unless
the DSB decides by consensus not to adopt the report.  In a case where the report is adopted, aMember is then required to determine how to brin g the measure into conformity with the covered
agreement.
6. In the area of the TBT Agreement, when the measure in question is a technical regulation or
conformity assessment procedure, it is normally notified under the Agreement (Art. 2.9 or Art. 5.6)
unless it meets the requirements set out in the chapeau of the relevant Article (and providing it is notdeemed “urgent” as defined in Art. 2.10 or Art. 5.7).  In the case of a technical regulation, for
example, a Member is required to notify when:
• A relevant international standard does not exist or the content of the proposed technical
regulation is not in accordance with the technical content of relevant international standards;and,
• the proposed technical regulation may have a significant effect on trade of other Members.
7. In the dispute settlement case noted above, a key issue in the case was the existence of a
Codex standard;  whether this standard was a releva nt international standard for the purposes of the
issue at hand;  and, whether this standard was used by the defending party as a basis for its measure.
Both the panel and the Appellate Body concluded that the Codex standard was a relevant internationalstandard.  It was clear from the evidence presented that the existing technical regulation had a
significant effect on trade of other Members.
8. Thus, the only condition remaining to be met in order to determine if the proposed technical
regulation had to be notified was whether the proposed technical regulation was in accordance with
the content of the relevant international standard.  The Member concluded that its proposed technicalregulation was in accordance with the relevant international standard and that it was not required to
notify in this case.  It is worth noting that the party did notify on what it deemed to be a “voluntary
basis”;  but, the comment period was so short as to make it difficult for other Members to provide
comprehensive comments.  The shortness of the comment period may also have prevented some
Members from providing their comments.
V. PROPOSAL
9. In the interest of enhanced transparency, Canada proposes that the TBT Committee agree to
explore the incorporation into its transparency guidelines of the following:G/TBT/W/234
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• A provision that encourages the notification by a Member of a technical regulation or
conformity assessment measure which is introduced or revised due to a recommendation in areport of a panel or Appellate Body and subse quent adoption of the report by the DSB;  and,
• a provision that encourages a Member to take into consideration an adequate comment period
under such a notification in the development of an RPT for implementation (unless the
notifications are legitimately exempted due to reasons of an urgent nature per Articles 2.10and 5.7).
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