RESTRICTED
WORLD TRADE WT/CTE/W/10
G/TBT/W/11
ORGANIZATION 29August 1995
(95-2511)
Committee onTrade andEnvironment
Committee onTechnical Barriers toTrade
NEGOTIATING HISTORY OFTHE COVERAGE OFTHE
AGREEMENT ONTECHNICAL BARRIERS TOTRADE WITH REGARD TO
LABELLING REQUIREMENTS, VOLUNTARY STANDARDS, AND PROCESSES
AND PRODUCTION METHODS UNRELATED TOPRODUCT CHARACTERISTICS
Note bytheSecretariat
1. This note hasbeen prepared inresponse torequests atthemeeting oftheCommittee on
Trade andEnvironment on21June 1995 forthenegotiating history, covering both theTokyo and
theUruguay Round negotiations, oftheprovisions oftheWTO Agreement onTechnical Barriers
toTrade relating toitscoverage oflabelling requirements, processes andproduction methods
unrelated toproduct characteristics, andvoluntary standards.1Thus, thenote focuses onaselect
number ofissues anddoes notattempt toprovide acomprehensive review ofthenegotiating
history ofalldisciplines intheTokyo Round andWTO Agreements onTechnical Barriers to
Trade ("the TBT Agreements").
2. Section Isummarizes thediscussions onvarious issues thatwere considered toberelevant
with regard tolabelling requirements, including thecoverage ofthese requirements under the
TBT Agreements. Section IIaddresses three different aspects: (i)developments over time
regarding thedefinitions oftheterms "standard" and"standardizing body" inthe
TBT Agreements, inorder toprovide abasis forconsidering thecoverage ofthese terms under
theAgreements; (ii)disciplines under theTBT Agreements pertaining topreparation, adoption
andapplication ofstandards bydifferent types ofstandardizing bodies, i.e.bycentral government,
local government, regional, andnon-governmental bodies; and, (iii)disciplines under the
TBT Agreements ondifferent types ofbodies dealing with conformity assessment. Section III
summarizes thediscussion onthecoverage ofprocesses andproduction methods under the
TBT Agreements.
3. Inthecontext ofthediscussions oftheCommittee onTrade andEnvironment on
voluntary ecolabelling standards, thefindings ofthisnote canbesummarized asfollows:
(a) Following theDecisions oftheTokyo Round andtheWTO Committees on
Technical Barriers toTrade, mandatory labelling requirements aresubject tothe
notification provisions ofArticle 2.9oftheTBT Agreement regardless ofthekind
ofinformation thatisprovided onthelabel. Byimplication, voluntary labelling
standards aresubject tothenotification provisions ofArticle 4andAnnex 3
1This note hasbeen prepared bytheSecretariat onitsown responsibility. Itisbased ontheSecretariat 'srecord ofthediscussions
during thenegotiations and thedocuments that were circulated tothenegotiating groups ortotheCommittee onTechnical Barriers to
Trade.WT/CTE/W/10
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(Code ofGood Practice forthePreparation, Adoption andApplication of
Standards) oftheTBT Agreement regardless ofthekind ofinformation thatis
provided onthelabel;
(b) Article 4andAnnex 3oftheTBT Agreement contain provisions onthe
preparation, adoption andapplication ofvoluntary standards forcommon and
repeated use. Central Government standardizing bodies must comply with these
provisions, which include thenon-discriminatory application ofstandards, the
avoidance ofunnecessary obstacles totrade, theperiodic notification ofstandards
under preparation with allowance forthesubmission ofandtaking account of
comments made ondraft standards byinterested parties inother WTO Members.
Other standardizing bodies, including non-governmental bodies, involved inthe
preparation ofstandards forcommon andrepeated useareinvited toaccept and
comply with theCode ofGood Practice inAnnex 3oftheTBT Agreement.
Whether ornotastandardizing body does accept theCode ofGood Practice,
WTO Members arerequired under Article 4oftheTBT Agreement totake such
reasonable measures asmaybe available tothem toensure thatitcomplies with the
provisions oftheCode ofGood Practice. Inaddition, members must nottake
measures which have theaffect of,directly orindirectly, requiring orencouraging
thestandardizing body toactinamanner inconsistent with theCode ofGood
Practice. Parallel provisions onprocedures fortheassessment ofaproduct 's
conformity with astandard bycentral, local andnon-governmental bodies are
contained inArticles 5-9oftheTBT Agreement;
(c) Standards thatarebased onprocesses andproduction methods (PPMs) related to
thecharacteristics ofaproduct areclearly accepted under theTBT Agreement,
subject tothem being applied inconformity with itssubstantive disciplines. The
negotiating history suggests thatmany participants were oftheview thatstandards
based inter aliaonPPMs unrelated toaproduct 'scharacteristics should notbe
considered eligible forbeing treated asbeing inconformity with the
TBT Agreement.
Towards theendofthenegotiations, some delegations proposed changing the
language contained inthe"definitions" inAnnex 1oftheAgreement tomake it
unambiguous thatonly PPMs related toproduct characteristics were tobecovered
bytheAgreement, butalthough noparticipant isonrecord ashaving opposed that
objective, atthatlatestage ofthenegotiations itdidnotprove possible tofinda
consensus ontheproposal.
I.LABELLING REQUIREMENTS
(i) TheTokyo Round Negotiations
4. Initial work inthefield oflabelling requirements wascarried outbyWorking Group 3,
established bytheCommittee onTrade inIndustrial Products inDecember 1969 toexamine,
among other subjects, "the unreasonable application ofstandards, packaging, labelling and
marking requirements" (L/3298). Onthebasis ofinformation contained inanInventory ofWT/CTE/W/10
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non-tariff measures andpara-tariff measures2andanyinformation thatmight besubsequently
furnished, thetaskofthisgroup wastoexplore possibilities forconcrete action with regard to
standards acting asbarriers totrade (L/3496, page 53).
5. TheGroup 'sexamination ofthenotifications intheInventory indicated thattheproblems
inthearea oflabelling were arising because regulations were often toodetailed orunnecessarily
stringent anddifferent practices were adopted indifferent countries. Other relevant aspects noted
bytheGroup were thatthetype ofinformation required, modalities ofpresentation, andlanguages
tobeused varied across countries, andbyincreasing production costs, labelling requirements
could constitute obstacles tothedevelopment ofinternational trade.
6. With regard toGATT disciplines, itwasconsidered thatwhile GATT didnotexplicitly
refer toquestions ofpackaging andlabelling, "national treatment" accorded toimported goods
under Article IIIofGATT, inparticular under Article III:4, would apply tolaws andregulations
adopted bycountries inthearea oflabelling.3However, several delegations alsoexpressed
concerns regarding possible adverse trade effects ofthese requirements; forexample, in
February 1971, theCommittee onTrade inIndustrial Products initssecond report totheCouncil
concluded that"labelling ...requirements, many ofwhich were designed toprotect consumers,
could alsohave adverse trade effects" (L/3496). Thus, aneed forappropriate disciplines for
labelling requirements within theGATT framework wasemphasised. Itwasproposed that
packaging andlabelling becovered bytherelevant provisions thatwere being discussed with
regard tostandards (L/3496, page 61). Working Group 3provided itsreport indocument
COM.IND/W/108 (dated 25June 1973)4,which included initsannex a"Proposed GATT Code of
Conduct forPreventing Technical Barriers toTrade" ("Draft Standards Code").
7. Discussion ontheissues related tolabelling requirements continued andinthiscontext,
attention wasalsodrawn tothework carried outinthisarea bytheOECD 'sCommittee on
Consumer Policy, which hadproduced areport in1972 oncompulsory andvoluntary labelling,
with particular reference totextiles. TheOECD paper called forcompulsory labelling toprotect
thehealth orsafety oftheconsumers (i.e. dangerous goods) ortoprovide information onthe
characteristics oftheproduct (weight, volume, etc.). Inaddition, itdistinguished between
different types ofvoluntary labelling.5
8. Atitsmeeting inFebruary 1974, theTrade Negotiations Committee established Group
3(b) which wasinstructed todeal with, among other items, theissue oflabelling. Inparticular,
thetaskwastoexamine thework ofother organizations inthisarea andthen consider whether
labelling requirements could becovered bytheDraft Standards Code forpreventing technical
barriers totrade orbyaseparate legal instrument. InJuly 1974, theGroup presented areport to
2InNovember 1967, theCONTRACTING PARTIES decided, aspart oftheir future work, tosetupanInventory ofnon-tariff and
para-tariff barriers affecting international trade. TheInventory wasbased onnotifications received from contracting parties andconsolidated
bytheSecretariat (see document L/3298).
3SeeCOM.IND/W/114, page 1.This view was later reproduced, forinstance, inMTN/3B/23, page 15.
4Acorrigendum tothiswas circulated later inCOM.IND/W/108/Corr.1, dated 30October 1973.
5According totheOECD, there were four main types ofvoluntary labelling: (i)information labelling schemes applied by
specialized organizations, mainly designed togive information onthecomposition andperformance ofproducts; (ii)labelling schemes
applied byvarious private organizations such asstandardization organizations; (iii)recommendations issued bystandardization
organizations orbygovernments; and (iv)application ofcomplementary schemes byprofessional associations orother industrial
groups. Forfurther details seedocument COM.IND/W/114.WT/CTE/W/10
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theTrade Negotiations Committee (MTN/3), which showed awide measure ofagreement inthe
Group forinternational harmonization ofpackaging andlabelling requirements, useofappropriate
international organizations forthispurpose6,andfortheGATT tosupport thiswork. Wide
support wasalsoexpressed forother suggestions such asaneed forprocedures forprior
consultations onmandatory packaging andlabelling requirements, allowance foragrace period
before introducing new requirements (except ifurgent reasons including safety andhealth made
thisimpossible), publicity tobeprovided tonew packaging andlabelling requirements under
consideration andcomments ofaffected parties betaken intoaccount, notification tothe
GATT secretariat ofchanges inrequirements, andaneed todistinguish between consumer goods
andother goods. Another suggestion wastoconsider theusefulness ofdeveloping aninventory of
references tonational practices, provisions andlegislation inthefield oflabelling, setting outa
summary description ofproducts orareas covered bytheprovisions andwhether theexisting
provisions conformed tointernational standards ortoprovisions ofother countries, andthe
services responsible forthepreparation andadministration ofsuch provisions. Discussions inthe
Group alsoconsidered asuggestion forestablishment ofenquiry points forproviding information
onpackaging andlabelling regulations andtheestablishment ofprocedures forconsultations in
cases ofdifficulty (MTN/3B/23, page 17).
9. Developing countries pointed outthatlabelling requirements were more onerous totheir
products than toothers andthus represented adisproportionate burden totheir trade. Therefore,
they would accept anysolution ensuring thesimplification andharmonization oflabelling
requirements, andstrongly supported theestablishment ofenquiry points andtechnical assistance.
However, itwasconsidered premature atthatstage todecide which approach should beadopted.
10. Group 3(b) alsoreported awidely held view thatpotential problems were likely tobe
more important than those contained intheInventory, since atrend towards more requirements
waslikely tocontinue. Several delegations were oftheview thattheproposed Draft Standards
Code contained provisions todeal with most oftheissues thathadbeen raised. Some others,
however, questioned whether thedraft Code dealt with alltheproblems inthisfield.
11. InMarch 1975, thenegotiating group onNon-Tariff Measures agreed tocreate a
"Technical Barriers toTrade" Sub-Group ("TBT Sub-Group") tocontinue thework onlabelling
with thescope todraw upgeneral rules inthearea ofstandards (MTN/NTM/1). Itwasalso
agreed that "the applicability ofthese rules tohealth andsanitary regulations concerning
agriculture andtropical products should beexamined bytheGroups 'Agriculture 'and'Tropical
Products '"(MTN/NTM/1, paragraph 2).
12. During thegeneral discussions regarding theDraft Standards Code, delegations were still
uncertain whether labelling problems should besolved viageneral rules orbyproduct groups, and
whether such rules should beincluded intheStandards Code orelaborated asseparate rules.
However, thedefinition oftheterm "standard" inAnnex 1totheDraft Standards Code included
labelling totheextent thatitaffected products rather than processes (MTN/NTM/W/5; see
paragraph 28below forthedefinition).
13. InMay 1975, theTBT Sub-Group agreed thatthe"Draft Standards Code" would bea
basis forfurther work andthatitcould take theform ofabinding code. Itwasrecognized that
theDraft Code dealt generically with many oftheproblems inthearea oflabelling andthus
labelling could becovered bytheprovisions oftheCode, butdelegations were freetosuggest
6TheGroup hadexamined thework ofother organizations inthisarea with thehelp ofasecretariat note onthissubject inMTN/3B/17.WT/CTE/W/10
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amendments tothetext(including definitions) inorder toensure thatallaspects related to
labelling were adequately considered (MTN/NTM/3).
14. TheTBT Sub-Group metseveral times between theendof1975 and1979 andmany
changes were made tothetextandtothesubstance oftheCode. However, theissue ofthe
coverage oflabelling bythenew Code wasnotquestioned.
15. Thefinal textoftheTokyo Round Agreement onTechnical Barriers toTrade
("TBT Agreement") wascirculated on29March 1979 (MTN/NTM/W/192/Rev.5). Annex 1
(Terms andDefinitions fortheSpecific Purposes oftheAgreement), defines "technical
specification" as:
"aspecification contained inadocument which laysdown characteristics ofaproduct
such aslevels ofquality, performance, safety ordimensions. Itmay include ordeal
exclusively with terminology, symbols, testing andtestmethods, packaging, marking or
labelling requirements asthey apply toaproduct".
(ii) TheUruguay Round Negotiations
16. During theUruguay Round negotiations there wasnorecorded discussion ofthecoverage
oflabelling requirements bytheTBT Agreement. However, thedefinitions contained inAnnex 1
oftheAgreement were modified andinthelight ofsubsequent discussion intheCommittee on
Technical Barriers toTrade ("TBT Committee) itisimportant tonote theinclusion oftheword
"also" inthesecond sentence ofthedefinitions ofboth technical regulations andstandards. This
change wastaken from aNordic proposal inJune 1990 (TBT/W/145) which isdescribed in
paragraph 21below, butthere wasnorecorded discussion atthattime oftheintent behind the
inclusion ofthisword.
(iii) Discussions intheTokyo Round TBT Committee
17. Theneed toclarify therelationship between labelling requirements andtheprovisions of
theTBT Agreement wasexpressed bysome delegations during themeeting oftheTBT Committee
of31May 1991 (TBT/M/40). One Member reported theentry intoforce ofaMexican
regulation introducing changes inthelabelling oftextiles which hadnotbeen notified under the
Agreement. According toMexico, thatregulation required thatcertain textile products bear
"commercial information, whether theproducts were ofdomestic origin orimported, butitdid
notestablish quality standards andhisauthorities therefore didnotbelieve thatitwasatechnical
regulation within themeaning ofAnnex 1oftheAgreement." Mexico asked forfurther
clarification ofthecoverage oftheAgreement with respect to"labelling requirements", in
particular theobligations tonotify labelling requirements thatdidnotcontain "technical
specifications".
18. Mexico 'sview ofthedefinitions inAnnex 1.1oftheAgreement wasthat"the first and
second sentences ofparagraph 1needed toberead together sothatonly labelling requirements
containing technical specifications relating toproducts were covered bytheAgreement"
(TBT/M/40).
19. TheTBT Committee metinformally attheendofJune 1991 todiscuss theissue further on
thebasis ofaSecretariat note listing more than 250labelling notifications thathadbeen madeWT/CTE/W/10
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under theTBT Agreement, ofwhich fourteen concerned labelling requirements ontextile and
textile products. TheSecretariat alsogave thefollowing informal comment (TBT/Spec/23):
"Article 2.5oftheAgreement addresses "technical regulations orstandards" which "may
have asignificant effect ontrade ofother Parties". Article 2.5.2 oftheAgreement
requires thatallsuch technical regulations benotified. Technical regulations aredefined
inAnnex 1oftheAgreement asmandatory technical specifications, andlabelling
requirements arerecognized explicitly asonepossible type oftechnical specification. It
would therefore appear thataslong asitismandatory foraproduct tobear alabel ifitis
toenter thedomestic market, andthatthelabelling requirement may have asignificant
effect ontrade, then thelabelling requirement should benotified. That conclusion would
appear tostand regardless ofwhat isprinted onthelabel. Insome circumstances itmay
bethattechnical specifications have tobeprinted onthelabel; buteven ifthelabel
contains nothing more than consumer information (e.g. oncleaning orwashing
guidelines), itwould seem thatitshould benotified aslong asthelabel ismandatory and
itmay have asignificant effect ontrade."
20. During thediscussion onthisissue, Mexico expressed theview thatthesecond sentence of
Annex 1.1was"illustrative ofthefirst". Therefore, alabelling requirement wassubject tothe
notification obligation only ifitcontained product specifications.
21. Acontrasting view wasprovided byFinland thatthesecond sentence ofAnnex 1.1wasto
beseen "asadditional tothefirst andnotmerely illustrative" sothatallmandatory labelling
requirements hadtobenotified regardless oftheinformation printed onthelabel. According to
Finland, thiswassupported bytheinclusion of"test methods" inthesecond sentence of
Annex 1.1; atestmethod could notinclude technical specifications which laiddown
"characteristics ofaproduct", yetitwasclear thatitwascovered bytheterm "technical
specifications". Furthermore, thenew draft textoftheAgreement which hadbeen negotiated in
theUruguay Round included theword "also" atthebeginning ofthesecond sentence in
Annex 1.1, andthissupported theview thatthesecond sentence wasadditional tothefirst.
Labelling requirements which were notmandatory were instead covered bythemeaning of
"standards" given inAnnex 1.3, andwere notifiable upon request toother interested Parties under
Article 2.5.3 oftheAgreement. TheUnited States andtheEuropean Community shared Finland 's
view.
22. Mexico proposed thataformal understanding bereached onwhether alllabelling
requirements were covered byAnnex 1.1oftheTBT Agreement andonwhether allsignatories
hadtheright under Article 2.5.3 oftheAgreement torequest information onlabelling standards.7
23. Following consultations, theChairman oftheCommittee recommended theadoption ofa
formal decision inorder toavoid further problems regarding thecoverage oflabelling
requirements bytheTBT Agreement. Adraft textofthedecision wascirculated toallparties on
17July 1992 (TBT/W/159), andattheCommittee 'smeeting inOctober 1992 thedecision was
formally adopted. Itread asfollows:
"Inconformity with Article 2.5oftheAgreement, Parties areobliged tonotify all
mandatory labelling requirements thatarenotbased substantially onarelevant
international standard andthatmay have asignificant effect onthetrade ofother Parties.
7Alabel may represent amark ofconformity toagiven standard ortechnical regulation. SeeSection IIbelow foradiscussion ofthe
coverage oftheTBT Agreements with regard toconformity assessment.WT/CTE/W/10
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That obligation isnotdependent upon thekind ofinformation which isprovided onthe
label, whether itisinthenature ofatechnical specification ornot" (TBT/16/Rev.5).
24. Atitsmeeting of14July 1995, theWTO TBT Committee formally adopted thesame
decision, theonly change being toreplace theword "Parties" by"Members" (G/TBT/1/Rev.1 and
G/TBT/M/2).
II. VOLUNTARY STANDARDS
25. This section addresses three aspects ofthedisciplines pertaining tovoluntary standards in
theTokyo Round TBT Agreement andtheWTO TBT Agreement. Thesection begins with a
summary ofthedevelopments regarding definitions of"standard" and"standardizing body" inthe
TBT Agreements. This would provide abasis forassessing thecoverage ofthese terms under the
Agreements. Thesecond partofthissection first addresses preparation, adoption andapplication
ofstandards, andthen summarizes therelevant aspects with regard toconformity assessment.
With regard tovoluntary standards, itsummarizes themain aspects ofthenegotiations on
disciplines imposed ondifferent types ofstandardizing bodies andconformity assessment bodies.
Animportant focus inthiscontext isthedifferences indisciplines imposed oncentral government
bodies andonother bodies, inparticular onnon-governmental bodies.
1. Definitions of"standard" and"standardizing body"
(i) TheTokyo Round Negotiations
26. Since 1969 delegations hademphasized thatinorder toregulate theapplication of
standards, itwasimportant todraw aclear distinction between mandatory regulations and
voluntary standards. While mandatory regulations were issued bythegovernments, voluntary
standards were usually issued byprivate organizations onaregional, national orinternational
basis. Thedistinction wasimportant because ofthedifferent possibilities andlimits itimplied for
government action (L/3496).
27. InJune 1974, theGovernment Officials Responsible forStandardization within the
UNEconomic Commission forEurope (ECE) adopted asetofdefinitions concerning
standardization aimed atpartly solving theproblem ofthelack ofharmonization ofinternational
standards. According tothese definitions8,a"standard" was:
"atechnical specification orother document available tothepublic, drawn upwith the
co-operation andconsensus orgeneral approval ofallinterests affected byitbased onthe
consolidated results ofscience, technology andexperience, aimed atthepromotion of
optimum community benefits andapproved byabody recognized onthenational, regional
orinternational level."
Note 1:Atechnical specification which does satisfy alltheconditions given inthe
definition may sometimes becalled byother names, forexample: "recommendation".
8SeeMTN/NTM/W/5, Appendix 2.For acomparison ofGATT andECE definitions conducted in1975, seeMTN/NTM/W/14.WT/CTE/W/10
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Note 2:Insome languages theword "standard" isoften used with another meaning than
inthisdefinition, andinsuch cases itmay refer toatechnical specification which does not
satisfy allthecondition given inthedefinition, forexample "company standard".
"Standardizing body" wasdefined as:
"abody, governmental ornon-governmental, oneofwhose recognized activities isinthe
field ofstandardization ".
28. Following arequest presented bytheTBT Sub-Group atitsmeeting ofMarch 1975, the
Secretariat prepared abackground note onstandards (MTN/NTM/W/5) which contained, inter
alia, a"Proposed GATT Code forPreventing Technical Barriers toTrade". Annex 1tothe
proposed Code defined "standard" as:
"any specification which laysdown some oralloftheproperties ofaproduct interms of
quality, purity, nutritional value, performance, dimensions, orother characteristics. It
includes, where applicable, testmethods, andspecifications concerning testing, packaging,
marking orlabelling totheextent thatthey affect products rather than processes. It
excludes standards thatareprepared forusebyasingle enterprise, whether governmental,
semi-governmental ornon-governmental, either foritsown production orpurchasing
purposes."9
29. TheAnnex distinguished between "mandatory standard" and"voluntary standard", the
latter defined as"astandard with which there isnolegal obligation tocomply" .With respect to
standardizing bodies, theAnnex distinguished between:
voluntary standards body: "any non-governmental organization which prepares voluntary
standards forpublic use. Some ofthese arenational standards bodies asdefined below" ;
national standards body: "anationally recognized standards body which is,oriseligible
tobecome, amember ofnon-governmental international standards bodies ";
regional standards body: "anyinternational organization, whether governmental or
non-governmental, which prepares standards, andwhich does notadmit therelevant
bodies inalladherents toparticipate inthepreparation ofsuch standards "and;
international standards body: "any international organization ofrecognized standing,
whether governmental ornon-governmental, which prepares standards, andwhich admits
therelevant bodies inalladherents toparticipate inthepreparation ofsuch standards".
30. InMay 1975, some suggestions regarding definitions were presented totheSub-Group
(MTN/NTM/W/12 andAdd.1) anditwasnoted thattheGATT meaning of"standard" wasmore
limited than thecorresponding ECE definition since itexcluded company standards, standards
relating toservices andcodes ofpractice. InSeptember 1975, therepresentative ofFinland
presented astudy ontheapplicability oftheECE/ISO definitions fortheDraft Standards Code
(MTN/NTM/W/18). Herecommended thattheterms "technical specification" and"voluntary
technical specification" beused instead oftheterms "mandatory standards" and"voluntary
9Afootnote stated that "the term standard asused inthisCode hasawider meaning than incustomary usage".WT/CTE/W/10
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standard"; theterm "voluntary standards body" bedeleted from thesetofdefinitions10;andthat
theconcept of"standards body" wasnotneeded because theconcept of"standardizing body" was
sufficient forthepurposes oftheCode.
31. TheNordic countries suggested adoption ofECE/ISO definitions without modifications
andtoinclude anyqualification through separate notes (MTN/NTM/W/19, emphasis added). The
Sub-Group decided tocompare twohypothetical situations: hypothesis AwastheNordic proposal,
andhypothesis Bwastomodify thetextofthedefinitions instead ofrelying onseparate notes
(MTN/NTM/W/25). Adiscussion ofthese showed thatthere were diverse opinions regarding the
twoapproaches.11
32. Therepresentative ofFinland presented aproposal with aview togive apossible solution
totheproblem (MTN/NTM/W/35). Regarding thedefinition of"standard" henoted that"the
scope oftheECE/ISO ispartly toowide, partly toonarrow forthepurposes oftheCode" andthat
theECE andtheISOwere notwilling tomake anyamendments tothedefinitions. Therefore, he
suggested thattheECE/ISO definition beaccompanied bythefollowing note which infactgave a
new definition fortheterm: "Note: Forthepurposes oftheCode astandard means atechnical
specification approved byarecognized body forcontinued application" (emphasis added). Forthe
definition ofstandardizing body herecommended theadoption oftheECE/ISO definition
mentioned inparagraph 27above.
33. Comments ontheFinnish proposal andadditional suggestions were made tothe
Sub-Group atitsmeeting ofJanuary/February 1976 (MTN/NTM/W/37). Ingeneral, itwas
recommended toclarify themeaning of"recognized body". One suggestion wasthatthe
expression "recognized national standardizing body" should beused. Itwaspointed outthatthe
word "body" covered alsoanational standardizing system andthat"standardizing body" included
abody oforganization whose principal function wasinthefield ofstandardization. With respect
tothecoverage of"standard", theECsuggested thatcompany standards beexcluded, andthe
United States proposed to"exclude standards which were prepared forusebyasingle enterprise,
whether governmental ornon-governmental either foritsown production orpurchasing forits
own consumption". According toanother suggestion a"standard" could bedefined as"atechnical
specification approved byarecognized standardizing body forcontinued andgeneral application."
34. AttheSub-Group 'srequest, theSecretariat circulated inMarch 1976 aProposed Code
with alternatives texts ofthedefinitions based onthetwohypotheses mentioned above
(MTN/NTM/W/38). "Standard" wasdefined as:
Hypothesis A:
Atechnical specification orother document available tothepublic, drawn upwith
thecooperation andconsensus orgeneral approval ofallinterests affected byit,
based ontheconsolidated results ofscience, technology andexperience, aimed at
thepromotion ofoptimum community benefits andapproved byabody recognized
onthenational, regional orinternational level.
10Thesuggestions included replacing "voluntary standards bodies" by"non-governmental standardizing bodies" and"local government
bodies, regulatory bodies other than central government bodies, andvoluntary standards bodies" by"standardizing bodies other than central
government bodies within their territories todolikewise".
11Seeforexample documents MTN/NTM/W/25/Add.1, MTN/NTM/W/25/Add.2.WT/CTE/W/10
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ECE notes
(1)Atechnical specification which does satisfy alltheconditions given inthe
definition may sometimes becalled byother names, forexample:
"recommendation".
(2)Insome languages theword "standard" isoften used with another meaning
than inthisdefinition, andinsuch cases itmay refer toatechnical specification
which does notsatisfy alltheconditions given inthedefinition, forexample
"company standard".
Additional notes
(1)Forthepurposes ofthisCode thestandard covers anytechnical specification
approved byarecognized body forcontinued application.
(2)Forthepurposes ofthisCode thewords "orother document" shall bedeleted.
Hypothesis B:
Anytechnical specification approved byarecognized body forcontinued
application andwith which there isnolegal obligation tocomply.
For"standardizing body", only onedefinition wasprovided:
"Abody, governmental ornon-governmental, oneofwhose recognized activities is
inthefield ofstandardization."
35. InMay 1976, theUnited States suggested thattheterm "standardizing body" bedeleted
andJapan proposed toinsert thefollowing textinthedefinition ofstandard: "anytechnical
regulation approved byabody, either central governmental body, local governmental body,
regulatory body, abody other than acentral orlocal governmental body, anon-governmental
organization oranyother standardizing body, forcontinued application andwith which there is
nolegal obligation tocomply "(MTN/NTM/W/50). TheSub-Group requested therepresentative
ofFinland toprepare twopapers onthesubject ofdefinitions. Thefirst identified thereasons for
thedifferences between theECE/ISO definitions andthedefinitions under Hypothesis B
(MTN/NTM/W/70), andproposed deletion oftheterm "standardizing body". Thesecond paper
suggested acombination ofthetwohypotheses asasolution totheproblem (MTN/NTM/W/86).
Thesuggested definition ofstandardizing body remained thesame asthedefinition provided by
theECE/ISO (seeparagraph 27above), while "standard" wasdefined as:
"Atechnical specification approved byarecognized body forcontinued
application andwith which compliance hasnotbeen made mandatory bya
regulation".
Note: Thecorresponding ECE/ISO definition contains several normative elements
which arenotincluded intheabove definition. Forthepurposes oftheCode
other documents than technical specifications areexcluded. Ontheother hand
also technical specifications which arenotbased onconsensus arecovered bythe
Code".WT/CTE/W/10
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Toavoid duplication ofwork between theGATT andECE/ISO, thepaper suggested thatthe
definitions have "themeaning given tothem bytheECE andISOtaking intoaccount their context
andinthelight oftheobject andpurpose oftheAgreement. However, forthespecific purposes of
theCode thedefinitions given inAnnex 1apply ."
36. Thedefinition of"standard" waslater amended toread:12
"atechnical specification approved byarecognized body forcontinued application
standardizing body forrepeated orcontinuous application with which compliance hasnot
been made mandatory byaregulation isnotmandatory.
Explanatory Note:
Thecorresponding ECE/ISO definition contains several normative elements which arenot
included intheabove definition. Forthepurposes oftheCode other documents than
technical specifications areexcluded. Ontheother hand also Accordingly, technical
specifications which arenotbased onconsensus arecovered bytheCode" "
(MTN/NTM/W/93).
37. Theunchanged definition of"standardizing body" andtherevised definition of"standard"
were incorporated inAnnex 1ofthedraft Code ofConduct forPreventing Technical Barriers to
Trade (MTN/NTM/W/94). Subsequently anadditional sentence (given inbold type below) was
included intheexplanatory note to"standard":
Explanatory note:
Thecorresponding ECE/ISO definition contains several normative elements which arenot
included intheabove definition. Accordingly, technical specifications which arenotbased
onconsensus arecovered bytheCode. This definition does notcover technical
specifications prepared byanindividual company foritsown production orconsumption
requirements.
38. InMarch 1979, anexplanation oftheterm "body" wasadded totheexplanatory note
(MTN/NTM/W/192/Rev.4). Therefore, inthefinal textoftheTokyo Round TBT Agreement,
Annex 1(Terms andtheir Definitions fortheSpecific Purposes oftheAgreement) contained the
following definitions:
Standard
"Atechnical specification approved byarecognized body forrepeated orcontinuous
application with which compliance isnotmandatory".
Explanatory Note:
Thecorresponding ECE/ISO definition contains several normative elements which arenot
included intheabove definition. Accordingly, technical specifications which arenot
12Bold print shows thenew text added inthedefinitions, andthedeleted text isindicated bystriking outtherelevant text.WT/CTE/W/10
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based onconsensus arecovered bytheCode. This definition does notcover technical
specifications prepared byanindividual company foritsown production orconsumption
requirements. Theword "body" covers also anational standardizing system."
Standardizing body
"Agovernmental ornon-governmental body, oneofwhose recognized activities isinthe
field ofstandardization."
(ii) ECE/ISO Definitions after theTokyo Round
39. Thedefinitions under theTokyo Round TBT Agreement differed from those used bythe
ECE/ISO. TheECE government officials responsible forstandardization policies metin
September 1981 with theview, inter alia,toachieve theharmonization oftheECE/ISO
definitions with theGATT definitions (United Nations Economic Commission forEurope -
STAND/GE.1/R.54). Revised definitions ofstandard andstandardizing body were provided in
thefourth edition oftheISO/IEC Guide 2(1983). Therevised definition ofstandard included the
term "standardizing body." Thenew definition of"standard" was:
"atechnical specification orother document available tothepublic, drawn up
with thecooperation andtheconsensus orgeneral approval ofallinterests
affected byit,based ontheconsolidated results ofscience, technology and
experience, aimed atthepromotion ofoptimum community benefits andadopted by
astandardizing body" .
NOTES:
1. Adocument which satisfies alltheconditions given inthedefinition may sometimes
becalled byother names, forexample "recommendation".
2. Insome languages theword "standard" isoften used with another meaning than in
thisdefinition, andinsuch cases, itmay refer toatechnical specification which does
notsatisfy alltheconditions given inthedefinition, forexample: "company
standard".
"Standardizing body" wasdefined as"abody with recognized activities inthefield of
standardization ".
40. Subsequently, atthesuggestion ofECE, further work wasdone toalter thedefinitions.
Thefollowing revised definitions of"standard" and"standardizing body" were provided inthe
fifth edition ofISO/IEC Guide 2inNovember 1986:
Standard:
"Document established byconsensus andapproved byarecognized body, thatprovides,
forcommon andrepeated use, rules, guidelines orcharacteristics foractivities ortheir
results, aimed attheachievement oftheoptimum degree oforder inagiven context.WT/CTE/W/10
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Note: Standards should bebased ontheconsolidated results ofscience,
technology andexperience, andaimed atthepromotion ofoptimum community
benefits".
Standardizing body:
"Body thathasrecognized activities instandardization".
(iii) Uruguay Round Negotiations
41. IntheUruguay Round, theNegotiating Group onMTN Agreements andArrangements
(NG8) wasanumbrella forseveral sub-groups dealing with issues relating toTokyo Round
Agreements, including theAgreement onTechnical Barriers toTrade. NG8 wastheformal forum
fornegotiating changes totheTBT Agreement intheUruguay Round, butthebulk ofthe
discussions onchanges intheTBT Agreement were conducted under theauspices ofthe
TBT Committee inaprocess thatwasparallel tothenegotiations under theRound. Though there
wasnoformal linkbetween theTBT Committee andNG8, information ontherelevant discussions
intheTBT Committee wasprovided toNG8. Allproposals made totheNG8 relating tothe
renegotiation oftheAgreement were issued concurrently asTBT documents. Several ofthe
proposals hadpreviously been discussed intheTBT Committee inthecontext ofreviews under
Article 15oftheTokyo Round TBT Agreement, which provided theCommittee with amandate to
review itsoperations andwith theability toamend theAgreement.
42. AttheTBT Committee meeting ofOctober 1987, theNordic countries proposed to
update thedefinitions contained inAnnex 1oftheTBT Agreement onthebasis ofthe
above-mentioned revision ofISO/IEC Guide 2(TBT/W/103). Also, theamended Guide contained
new terms, anditwassuggested thattheCommittee assess thepossible implications forthe
Agreement oftheadoption ofsuch terms; consider amendment andupdating ofthedefinitions
andtheir explanatory notes; andconsider theinclusion ofadditional terms andtheir definitions.
Aproposal wastodelete "several normative" from theexplanatory note tothedefinition of
"standard", andtoreplace theGATT definition of"standardizing body" bythecorresponding
definition inISO/IEC Guide 2,i.e."body thathasrecognized activities instandardization" .
43. Many delegations supported theNordic proposal, though they feltthatitwaspremature to
determine whether theissue ofchanges inthedefinitions should beaddressed bytheCommittee or
intheUruguay Round negotiations. Following arequest bytheCommittee, theSecretariat
prepared adocument comparing thedefinitions inthefifth edition ofGuide 2:1986 with those of
thesecond edition oftheGuide 2:1978 (TBT/W/106).
44. Thediscussions ontheNordic proposal continued inthemeetings ofMarch andJuly 1988
(TBT/M/27 andTBT/M/28). Although anamendment tothedefinition ofoneterm wasagreed
upon13,nodecision wastaken regarding thechange inthedefinitions of"standard" and
"standardizing body".
45. InJune 1990, following thepresentation bytheISOrepresentative ofadraft amendment
sheet toGuide 2:1986 (ISO/STACO 151), theNordic countries suggested thatthedefinitions
13The Committee decided toreplace theterm "self-certification" bytheterm "declaration ofconformity".WT/CTE/W/10
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contained inAnnex 1totheAgreement beamended onthebasis ofthenew ISOproposal
(MTN.GNG/NG8/W/79). Theproposed new definition of"standard" read asfollows:
"adocument approved byarecognized body, thatprovides, forcommon andrepeated use,
rules, guidelines orcharacteristics forproducts, (processes andproduction methods) with
which compliance isnotmandatory. Itmay also include ordeal exclusively with
terminology, symbols, packaging, marking orlabelling requirements asthey apply toa
product."
46. InJuly 1990, adraft textoftheUruguay Round Agreement onTechnical Barriers to
Trade waspresented bytheChairman ofthenegotiating Group (MTN.GNG/NG8/W/83/Add.3),
which incorporated thedefinition of"standard" suggested bytheNordic countries butadded the
following explanatory note:
Explanatory note:
Theterms asdefined inISO/IEC Guide 2cover products, processes andservices. This
agreement deals only with technical regulations, standards andconformity assessment
procedures related toproducts (processes andproduction methods). Standards asdefined
byISO/IEC Guide 2may bemandatory orvoluntary. Forthepurposes ofthisAgreement
standards aredefined asvoluntary andtechnical regulations asmandatory documents.
Standards prepared bytheinternational standardization community arebased on
consensus. This agreement covers also documents thatarenotbased onconsensus.
This explanatory note didnotcontain thefollowing sentence from theexplanatory note inthe
Tokyo Round TBT Agreement: "This definition does notcover technical specifications prepared
byanindividual company foritsown production orconsumption requirements ".Both themain
textandtheexplanatory note inthedefinition ofstandard included "process andproduction
methods" within brackets (formore detail onthisaspect, seeSection IIIbelow).
47. Thedefinition of"standard" thatappeared inthefinal textoftheWTO TBT Agreement
removed thebrackets from theprevious version (MTN.GNG/NG8/W/83/Add.3/Rev.1). Itread:
Standard
"Document approved byarecognized body, thatprovides, forcommon andrepeated use,
rules, guidelines orcharacteristics forproducts orrelated processes andproduction
methods, with which compliance isnotmandatory. Itmay also include ordeal exclusively
with terminology, symbols, packaging, marking orlabelling requirements asthey apply to
aproduct, process orproduction method.
Explanatory note:
Theterms asdefined inISO/IEC Guide 2cover products, processes andservices. This
agreement deals only with technical regulations, standards andconformity assessment
procedures related toproducts orprocesses andproduction methods. Standards asdefined
byISO/IEC Guide 2may bemandatory orvoluntary. Forthepurpose ofthisAgreement
standards aredefined asvoluntary andtechnical regulations asmandatory documents.
Standards prepared bytheinternational standardization community arebased on
consensus. This agreement covers also documents thatarenotbased onconsensus".WT/CTE/W/10
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48. Nospecific definition of"standardizing body" wasgiven intherevised Annex 1ofthe
WTO TBT Agreement. However, Annex 1contains astatement that"[t]he terms presented inthe
sixth edition oftheISO/IEC Guide 2:1991, General Terms andtheir Definitions Concerning
Standardization andRelated Activities, shall, when used inthisAgreement, have thesame meaning
asgiven inthedefinitions inthesaidGuide taking intoaccount thatservices areexcluded from the
coverage ofthisAgreement ".Thedefinition of"standardizing body" intheISO/IEC Guide 2:
1991 remains unchanged from theprevious version oftheGuide i.e.from thefifth edition ofthe
Guide (seeparagraph 38above).
2. Disciplines forpreparation, adoption andapplications ofstandards,
andforconformity assessment
49. This section summarizes themain aspects ofthenegotiating history ofthedisciplines
under theTBT Agreements onstandardizing bodies andconformity assessment bodies
(inparticular local government andnon-governmental bodies), with regard totheir work relating
tostandards.
(a) Preparation, adoption andapplication ofstandards
(i) Tokyo Round Negotiations
50. Initially, theterm "standard" wasused todenote both mandatory andvoluntary standards,
anddifferent obligations regarding preparation, adoption anduseofstandards were considered for
three categories: mandatory central government standards, mandatory local government
standards, andvoluntary standards (COM.IND/W/108). Formandatory central government
standards, theDraft Standards Code specified first level ofobligations onthesignatories, i.e.
mandatory obligations. Second level ofobligations were specified fortheother twocategories of
standards, i.e.signatories were touseallreasonable means within their power toensure thatthe
relevant obligations were met. One ofthemain concerns during thenegotiations wasthequestion
ofbalance ofrights andobligations amongst thesignatories, forinstance, thealleged inequality of
obligations which would apply between countries with alarge proportion ofstandardization work
carried outbyprivate sector bodies producing voluntary standards andthose where allstandards
were mandatory.
51. Section 4oftheDraft Standards Code contained disciplines with regard topreparation,
adoption anduseofvoluntary standards (MTN/NTM/W/5).14Thefocus wasonpreventing
voluntary standards from becoming obstacles tointernational trade, cooperation inpreparation of
international standards, useofinternational standards, providing notice andtaking account of
comments when voluntary standards arenotsubstantially same asinternational standards,
exceptions tocertain disciplines incase ofurgent problems, andcompliance ofregional standards
bodies with therelevant disciplines. These disciplines were specified interms of"best efforts" or
second level ofobligations. Forexample, thefirst paragraph ofSection 4stated that:
"Adherents shall useallreasonable means within their power toensure thatvoluntary
standards arenotprepared, adopted orapplied with aview tocreating obstacles to
international trade. They shall likewise useallreasonable means within their power to
14Disciplines regarding "information about mandatory andvoluntary standards andquality assurance systems andarrangements"
were given inSection 16oftheDraft Standards Code. These disciplines were similar tothose contained inArticle 10oftheTokyo
Round TBT Agreement.WT/CTE/W/10
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ensure thatneither thevoluntary standards themselves, northeir application have theeffect
ofcreating anunjustifiable obstacle tointernational trade."
52. Atthemeeting oftheTBT Sub-Group inMay 1975, itwassuggested thatvoluntary
standards prepared bycentral government bodies should bedealt with separately from those
prepared byother bodies, such aslocal government bodies andnon-governmental bodies
(MTN/NTM/W/12). Asimilar change wasproposed alsoforthesections on"conformity with
voluntary standards" andon"systems operated byquality assurance bodies other than central
government bodies forassuring conformity with voluntary standards". Subsequent proposals
suggested thatthe"best efforts" provision should apply only todeveloping country adherents and
nottodeveloped country adherents, thatvoluntary standards should benotified toGATT
secretariat, andthatareasonable transition period beallowed (MTN/NTM/W/12/Add.1).
53. Atthemeeting oftheSub-Group inSeptember/October 1975, theECsuggested thatin
Section 4oftheproposed Code, thetwosub-items dealing with regional bodies bedeleted
(MTN/NTM/W/25). In1976, Japan suggested thatthefirst level ofobligation ("shall ensure")
should apply tomandatory standards, including testmethods andquality assurance systems, of
central aswell aslocal government bodies, andthatsecond level ofobligations should apply to
voluntary standards including quality assurance systems, regardless ofbodies which prepare and
apply them (MTN/NTM/W/25/Add.2). TheECproposed thatpreparation, adoption, anduseof
voluntary standards besubject tofirst level, andnotsecond level, ofobligations
(MTN/NTM/W/37).
54. Thedraft Code presented inMarch 1976 replaced theterms "mandatory standards" and
"voluntary standards" by"technical regulations" and"standards", respectively
(MTN/NTM/W/38). In1977, theECproposed thatfirst level ofobligations beimposed for
standards prepared, adopted orapplied bycentral government, itsministries anddepartments or
byanybody subject tothecontrol ofthecentral government bodies, with theexception of
disciplines pertaining tocooperation indeveloping international standards anddisciplines on
regional standardizing bodies (MTN/NTM/W/72). Canada proposed thatthroughout thedraft
Code thephrase "use allreasonable means within their power" should bereplaced by"take such
reasonable measures asmay beavailable tothem" since thelatter phrase wascontained in
GATT Article XXIV:12 (MTN/NTM/W/120).
55. Noting thetwodifferent levels ofobligations forcentral government bodies andother
bodies, theECemphasised thatthere wasaneed toseek abalanced level ofcommitment and
advantages foralladherents totheTBT Agreement, whether ornotthey hadacentralized
structure. In1978, theECsubmitted aproposal which suggested apossibility tobring adispute if
asignatory wasunable toachieve "results identical tothose imposed under thefirst level
obligations" (MTN/NTM/W/135). ThetextoftheECproposal was:
"Signatories would beresponsible toother signatories inregard tothe
preparation, adoption anduseofalltechnical regulations, standards, certification
systems andother standardizing activity subject totheCode within their territory:
(a) They would beunder anobligation toensure thatthepreparation,
adoption anduseoftechnical regulations, standards, certification
systems etc., ofcentral government bodies areinconformity with
theobligations oftheCode;WT/CTE/W/10
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(b) They would beresponsible toother signatories inregard tofailure
toachieve results identical tothose imposed under thefirstlevel
obligations, under the"best endeavours" provisions where
technical regulations, standards, certification systems etc.are
prepared bybodies within their territories;
(c) Intheevent thatasignatory isunable todischarge itsobligations
inregard tothefirstlevel obligation, ortoachieve results
identical tothefirstlevel obligation under the"best endeavours"
obligations, thematter could beraised byanyother signatory,
which feels thattheobligations oftheCode arenotbeing fulfilled,
under theprovisions oftheCode ondispute settlement (tobe
agreed). "15
56. After discussions ofthevarious proposals, arevised draft TBT Agreement waspresented
inOctober 1978 (MTN/NTM/W/192). This draft combined under asingle section thedisciplines
onpreparation, adoption anduseoftechnical regulations andstandards bycentral government
bodies, andfirst level ofobligations were imposed onthese bodies. Preparation, adoption anduse
oftechnical regulations andstandards bylocal government bodies were addressed separately, and
another Section dealt with preparation, adoption anduseofstandards bynon-governmental bodies.
Second level ofobligations were specified forbodies other than central government bodies.16
Also, though thesection dealing with "standards bylocal government bodies andregulatory bodies
other than central government bodies" stated thatinformation oncertain technical regulations (and
comments onthem) tobeprovided through adherents totheCode, itdidnotmention thatthese
aspects relating tostandards hadtobeprovided. Thesection dealing with preparation, adoption
anduseofstandards bynon-governmental bodies didnotinclude anyreference tosuch
information orcomments being provided; thedraft Code presented inDecember 1978
(MTN/NTM/W/192/Rev.1) included thepossibility of"comment anddiscussions referred toin
Sections 2.5.4 and2.5.8 may alsobethrough interested parties inother adherents".17
57. Inthedraft Code presented inDecember 1978 (MTN/NTM/W/192/Rev.1), thedifferent
levels ofobligations were alsotaken intoaccount intheSection dealing with dispute settlement.
Section 14.21 ofthatdraft stated that: "Thedispute settlement provisions setoutabove canbe
invoked incases where anadherent considers thatanother adherent hasnotachieved satisfactory
results under Sections 3,4,6,8and9anditstrade interests aresignificantly affected. Inthis
respect, such results shall beequivalent tothose envisaged inSections 2,5,and7asifthebody
inquestion were anadherent ."
15Foranoutline ofinstitutions and dispute settlement andsome detail onthese issues, seeMTN/NTM/W/144 and192 and its
addenda.
16InSection 2,thedraft included aprovision onnon-discriminatory treatment which iscontained inArticle 2.1oftheTokyo
Round TBT Agreement. The text ofSection 2inthisdraft Code showed lack ofagreement ontheconditions under which standards
hadtobenotified, andoncertain disciplines regarding regional standardization bodies andpreparation, adoption anduseofstandards
bynon-governmental bodies (see MTN/NTM/W/192, pages 3to8).Two subsequent texts ofthedraft Code (MTN/NTM/W/192/Rev.2
and3)contained proposals forchanges inthetext ofArticle 2which, inter alia,dealt with non-discriminatory treatment inproviding
copies ofstandards, with conditions under which international standards might notbeappropriate, and with theexceptions provided in
situation with urgent problems.
17Section 2.5.4 pertained only totechnical standards. ThetextofSection 2.5.8 stated: "allow other adherents with respect totechnical
regulations, andinterested parties inother adherents with respect tostandards, topresent their comments inwriting, discuss these comments
upon request andtake thewritten comments and theresults ofany such discussion into account."WT/CTE/W/10
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58. InMTN/NTM/W/192/Rev.4, there wasanagreed textforArticle 2andthephrase
"regulatory bodies other than central government bodies" wasdeleted from theArticle on
preparation, adoption anduseoftechnical regulations andstandards bynon-governmental bodies.
TheCanadian suggestion fordenoting bestendeavours wasadopted, i.e.thephrase "shall take
such reasonable measures asmay beavailable tothem toensure" replaced "shall useall
reasonable means within their power toensure". Also, intheArticle onpreparation, adoption and
useoftechnical regulations andstandards bylocal government bodies, therevised textincluded
additional references regarding information thathadtobeprovided through theParties.18
Furthermore, thefollowing sentence wasadded intheArticles dealing with preparation, adoption
anduseoftechnical regulations andstandards bylocal government bodies andbynon-
governmental bodies, i.e.inArticles 3and4:"Inaddition, Parties shall nottake measures which
have theeffect of,directly orindirectly, requiring orencouraging such non-governmental bodies
toactinamanner inconsistent with anyoftheprovisions ofArticle 2."
59. These provisions were included without further change inthefinal textofthe
Tokyo Round TBT Agreement.
(ii) Uruguay Round Negotiations
60. IntheUruguay Round, several delegations wanted enhancement ofthedisciplines on
preparation, adoption andapplication ofstandards intheTokyo Round TBT Agreement. A
number ofproposals addressed increased transparency andparticipation inthestandards-related
activities ofdifferent types ofstandardizing bodies, i.ecentral government, local, regional or
non-governmental standardizing bodies.19
61. India proposed notification ofvoluntary draft (orproposed) standards, including those
draft standards which were notnational standards, butwhose wide adoption bylocal industry gave
them astatus similar tonational standards (MTN.GNG/NG8/W/9, 45); notification ofvoluntary
standards thatwere made mandatory bylegislation orbystatutory orders (MTN.GNG/NG8/W/9);
andinformation tobeprovided on,andensuring compatibility among, standards issued by
recognized national bodies andother standardization bodies within theterritory ofaparty
(MTN.GNG/NG8/W/9). India explained thatmany parties totheAgreement were notnotifying
voluntary draft standards even though they were national standards, orwere being widely applied
bythelocal industry which gave them astatus similar tothatofnational standards. Also, itwas
difficult toobtain information onstandards thathadbenmade mandatory bylegislation oron
standards being formulated bydifferent bodies inthecountry. India suggested thatthestandards
prepared bylocal bodies benotified andthatanational body bemade responsible forproviding
information on,andensuring compatibility of,standards issued byother recognized bodies inthe
country.
62. TheUnited States proposed enhanced transparency ofstandards-related agreements
(MTN.GNG/NG8/W/1, 34,Rev.1 andRev.3), andoftheactivities ofregional standardization
bodies (MTN.GNG/NG8/W/1, 35). Improved information onstandards-related agreements was
emphasised because such information could beofimmediate interest andusetoparties, andwould
facilitate trade bymaking iteasier todeal with thenew technical requirements andstandards.
18Inrelevant part, thetextstated that"...noting thattheprovision ofinformation regarding technical regulations referred toinArticles
2.5.3 and 2.6.2 and comment anddiscussion referred toinArticles 2.5.4 and 2.6.3 had tobethrough Parties".
19Foracomplete listoftheinitial proposals, seeMTN.GNG/NG8/W/13.WT/CTE/W/10
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Regarding regional standards, theUnited States noted thatmany parties belonged toavariety of
governmental andnon-governmental regional standards development organizations, andthese
organizations frequently didnotallow non-members tofully participate intheir standards-related
activities. InMTN.GNG/NG8/W/35, theUnited States proposed adraft Code ofConduct relating
toregional standardization andcertification activities which addressed, inter alia,aspects related
totransparency ofpreparation, adoption andapplication ofstandards byregional bodies or
systems, provision ofcomments onproposed standards, enquiry points, andopportunity for
consultation tohelp achieve theobjectives oftheCode.
63. Japan addressed increased transparency oftheoperation ofcertification systems
(MTN.GNG/NG8/W/6, 36,36/Rev.1), andofthedrafting process ofstandards andcertification
systems (MTN.GNG/NG8/W/6, 37). Itconsidered thatinaddition tonotification/comments on
rules ofthecertification systems, itwasnecessary toensure transparency oftheoperation ofthe
system inorder toprevent thesystem from becoming anundue obstacle tointernational trade.
Regarding standards andcertification systems, Japan noted thatthese were notified totheparties
after their drafting wascomplete. Japan saidthatitwasdesirable toallow representatives of
foreign interests tohave anopportunity toparticipate inthedrafting process ortostate their
opinion during thatprocess.
64. Onbehalf oftheNordic countries, Finland made certain proposals toimprove
transparency (MTN.GNG/NG8/W/43/Rev.1, and75). These proposals, which overlapped with
some oftheaspects mentioned above, were based onanumber ofrecommendations ofthe
TBT Committee andaddressed improvements intiming ofnotifications, functions oftheenquiry
points andresponsibility forthenotification procedures.20
65. TheECproposed thattheAgreement 'sdisciplines pertaining tonon-governmental
standards bodies beenhanced, both atthenational level andatthelocal level. Forthispurpose, it
proposed aCode ofGood Practice forNon-Governmental Standardizing Bodies asanannex to
theAgreement (MTN.GNG/NG8/W/8).21According totheEC, theaimofthisproposal included
making "theobligations already laiddown inArticles 4,6and8oftheAgreement more concrete,
andtoprovide some yardstick bywhich theperformance ofboth Parties andprivate bodies could
bemeasured ".Thedisciplines intheEC'sinitial proposal fortheAgreement covered
transparency, non-discriminatory treatment, possibility tocomment inwriting, efforts torelyon
international standards foradopting technical regulations andstandards, determining conformity,
andoperating certification systems (MTN.GNG/NG8/W/8). Subsequently, theECprovided a
more detailed proposal ontheCode inMTN.GNG/NG8/W/31, andclarified thatacceptance ofthe
Code bynon-governmental bodies would bevoluntary, subject totheParties taking allpracticable
measures toensure acceptance ofandadherence totheCode bynon-governmental standardization
andcertification bodies within their territory. Italsosuggested thatthefollowing aspects of
transparency tobeincluded intheCode ofGood ofGood Practice forNon-Governmental
Standardizing Bodies:
20Complementarity was noted between theNordic proposal ontransparency and theproposal bytheUnited States onimproving
transparency ofstandards-related agreements (MTN.GNG/NG8/W/34), andJapan 'sproposals onimproving certain provisions ofthe
Agreement ontransparency (MTN.GNG/NG8/W/36 and37).
21Seealso, MTN.GNG/NG8/W/31, 49and 71. The ECsuggested that theCode ofGood Practice should cover standards aswell
astechnical regulations andpre-standards.WT/CTE/W/10
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"(1)Annual information would have tobeavailable onabody'sprogramme for
theadoption ofstandards ortechnical regulations inthecoming year, andonits
adoption ofinternational standards during theprevious year;
(2)atleast sixty days inadvance, information would have tobeavailable onany
particular standard ortechnical regulation tobeadopted, unless substantially the
same asaninternational standard, aswell asonacertification system tobe
introduced;
(3)whether thisinformation should bemade available atanational enquiry point,
obtainable forinterested Parties onrequest, orshould benotified toother Parties
viaaninternational central point (such asISONET) istobeinvestigated further;
(4)thefulltextofaproposed technical regulation, standard orcertification system
should beavailable upon request;
(5)Technical regulations andstandards which have been adopted should be
published promptly insuch amanner astoenable interested Parties tobecome
acquainted with them. They should bemade available upon request subject tothe
usual commercial terms andconditions ."
66. TheECalsomade aproposal forextending themajor obligations under theAgreement to
local government bodies (MTN.GNG/NG8/W/8, 32). TheECproposed thatthere should bean
increase inthelevel ofresponsibility ofParties forensuring theadherence oflocal government
bodies intheir territory totheobligations oftheAgreement, "byobliging Parties toensure that
local government bodies donotviolate these obligations ....One element theEEC considers
especially important toinclude isaprocedure bywhich adraft technical regulation ofalocal
government body hastobenotified through theParty concerned toother Parties, whenever its
technical content isnotsubstantially thesame asthetechnical content ofrelevant international
standards orapreviously notified national technical regulation, andthedraft technical regulation
may have asignificant effect ontrade ofother Parties. Comments inwriting anddiscussion on
such notified draft technical regulations should bepossible through theParty concerned "
(MTN.GNG/NG8/W/32).
67. Anumber ofthese proposals covered aspects related tostandards aswell ascertification
systems, andaddressed disciplines pertaining todifferent types ofbodies, i.e.central government,
local government andnon-governmental bodies. Thus, theproposals byJapan, theUnited States
andNordic countries addressed certifications procedures also(MTN.GNG/NG8/W/1, 34,
34/Rev.3, and35). TheUnited States 'proposal ontransparency ofstandards-related Agreements
suggested thatinaddition toarrangements ontesting andinspection andlaboratory accreditation,
agreements ontheharmonization orconcordance ofstandards andregulations andthegeneral
issues ofstandards policy should becovered, including those concluded bytheParties with
"private bodies orsystems orregional bodies orsystems "(MTN.GNG/NG8/W/34 and34/Rev.3).
TheUnited States 'proposal onregional standardization bodies addressed Articles 2,9and10of
theTokyo Round TBT Agreement, andsuggested certain mandatory obligations forthese bodies
(MTN.GNG/NG8/W/35). Similarly, theproposals onincreased transparency byNordic countries
included enhanced transparency ofcertification systems, ofparticipation ininternational and
regional standardizing bodies andcertification systems, andofactivities ofrelevant central
government, local government ornon-governmental bodies (MTN.GNG/NG8/W/43/Rev.1, and
75). Similarly, asmentioned above, theproposals bytheECcovered standards-related aspects as
well asdetermination ofconformity andoperating certification systems.WT/CTE/W/10
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68. Thediscussion intheCommittee showed diverse opinions ontheproposals (see
MTN.GNG/NG8/4, 6,8,10,12,16,17and18). Based onthediscussions, revised proposals
were submitted byIndia with regard tovoluntary draft standards (MTN.GNG/NG8/W/45), by
Norway with regard toArticle 10(MTN.GNG/NG8/W/75), andbytheECwith regard tothe
Code ofGood Practice (MTN.GNG/NG8/W/49 and71).22
69. Initsfirst revision oftheproposal foraCode ofGood Practice forNon-Governmental
Standardizing Bodies (MTN.GNG/NG8/W/49), theECcovered non-governmental bodies atthe
regional, national andlocal levels, andsuggested anamendment toArticle 4oftheAgreement, to
read asfollows:
"Preparation, adoption andapplication ofstandards bynon-governmental bodies
4.1 Parties shall take such reasonable measures asmay beavailable tothem
toensure thatnon-governmental standardizing bodies within their territory aswell
asnon-governmental regional standardizing bodies ofwhich oneormore oftheir
non-governmental standardizing bodies aremember, accept andcomply with the
code ofgood practice fornon-governmental standardizing bodies inAnnex 4to
thisAgreement. Inaddition, Parties shall nottake measures which have theeffect
of,directly orindirectly, requiring orencouraging non-governmental standardizing
bodies toactinamanner inconsistent with thecode ofgood practice inAnnex 4.
4.2 Assoon aspossible after anon-governmental standardizing body within
their territory oranon-governmental regional standardizing body ofwhich oneor
more oftheir non-governmental standardizing bodies aremember, hasaccepted or
withdrawn from thecode ofgood practice inAnnex 4,Parties shall notify other
Parties through theGATT secretariat ofthisfact, except totheextent thatthenon-
governmental regional standardizing body hasfulfilled thisobligation. The
notification shall include thename andaddress ofthebody concerned andthe
products covered byitscurrent andexpected standardization activities."
70. Inaddition, theECsuggested thattheCommittee take aDecision that"...atleast once a
year [itwould] review alist,drawn upbytheGATT secretariat andsub-divided intoseparate
sections foreach Party, ofthenon-governmental standardizing bodies thathave accepted thecode
ofgood practice inAnnex 4,forthepurpose ofaffording Parties theopportunity ofconsulting on
anymatters relating totheoperation ofthatcode." Further, theECsuggested thata
recommendation totheCommittee bemade toestablish under ISONET, asystem through which
allISONET member bodies must transmit totheISOInformation Centre inGeneva therelevant
information, andthrough which theISOInformation Centre inGeneva shall inturn promptly
transmit theinformation received from oneofitsmember bodies toallother member bodies.
71. Following further discussion ofthevarious aspects regarding transparency anddisciplines
relating tostandards, theECagain revised itsproposal ontheCode ofGood Practice, butdidnot
limit ittoonly non-governmental bodies (MTN.GNG/NG8/W/71). Theproposal wasforaCode
ofGood Conduct forthePreparation, Adoption andApplication ofStandards intheAgreement on
Technical Barriers toTrade, covering central government bodies, local government bodies and
22The Nordic delegations submitted aproposal on"terms anddefinitions forthespecific purposes oftheAgreement"
(MTN.GNG/NG8/W/79), inwhich they provided definitions of,inter alia,international body orsystem, regional body orsystem,
central government body, local government body, andnon-governmental body.WT/CTE/W/10
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regional governmental bodies producing standards, aswell asthenon-governmental bodies that
were already covered intheEC'sprevious proposal. Thedisciplines onpreparation, adoption and
application ofstandards were tobeseparated from those relating totechnical regulations, and
allstandardizing bodies, whether governmental ornon-governmental, local, national orregional,
were tobecovered bytheCode ofGood Practice which, along with aproposed Article 4,
provided themain disciplines forpreparation, adoption andapplication ofstandards.23Under
Article 4,first level ofobligations, i.e.mandatory obligations, were proposed forcentral
government bodies andsecond level ofobligations, i.e.Parties taking "such reasonable measures
asmay beavailable tothem toensure", were proposed forlocal government, non-governmental
andregional standardizing bodies.
72. InJuly 1990, theChairman oftheNegotiating Group presented adraft textofthe
Agreement, with hisassessment ofthesections oftheAgreement onwhich there wasbroad
convergence ofviews (MTN.GNG/NG8/W/83/Add.3). Inhisintroductory note tothedraft text,
theChairman stated that"...textinbold type represents areas ofbroad convergence without
prejudging itsfinal acceptance byanyparticipant. However, itisnecessary tonote that, while
there isalarge majority supporting these issues, sometimes with different views, atleast one
delegation hasopposed theinclusion ofaCode ofGood Practice forthepreparation, adoption and
application ofstandards ...Thetextappearing innormal type represents areas where there are
divergences, sometimes fundamental, orwhere further work isneeded." Therelevant sections
from thatdocument arereproduced below.
" Article 4
Preparation, adoption andapplication ofstandards
With respect totheir central government bodies
4.1.1 Parties shall ensure thatproducts imported from theterritory ofany
other Party shall beaccorded treatment nolessfavourable than thataccorded to
likeproducts ofnational origin andtolikeproducts originating inanyother
country inrelation tosuch standards.
4.1.2 Parties shall ensure thatstandards arenotprepared, adopted orapplied
with aview tocreating obstacles tointernational trade. Parties shall likewise
ensure thatneither standards themselves northeir application have theeffect of
creating unnecessary obstacles tointernational trade. Insodoing, Parties shall
comply with theprovisions ofArticle 2,sub-paragraphs 1.2.1 to1.2.6.
4.2 Parties shall ensure thattheir central government standardizing bodies
accept andcomply with thecode ofgood practice forthepreparation, adoption
andapplication ofstandards inAnnex 4tothisAgreement. They shall take such
reasonable measures asmay beavailable tothem toensure thatlocal government
ornon-governmental standardizing bodies within their territory aswell asregional
standardizing bodies ofwhich they oroneormore bodies within their territory are
member, accept andcomply with thiscode ofgood practice. Inaddition, Parties
shall nottake measures which have theeffect of,directly orindirectly, requiring
23This also implied making accommodating changes toArticles 2and3oftheTokyo Round TBT Agreement. See
MTN.GNG/NG8/W/71.WT/CTE/W/10
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orencouraging such standardizing bodies toactinamanner inconsistent with the
code ofgood practice inAnnex 4.
4.3 Assoon aspossible after abody mentioned inArticle 4.2hasaccepted or
withdrawn from thecode ofgood practice inAnnex 4,Parties shall notify other Parties
through theGATT secretariat ofthisfact, except, inthecase ofaregional body, tothe
extent thattheregional body hasitself fulfilled thisobligation. Thenotification shall
include thename andaddress ofthebody concerned andtheproducts covered byits
current andexpected standardization activities.
Article 4bis
Whenever aParty hasreached anagreement with anyother party onissues related
tostandards andtechnical regulations (including processes andproduction
methods) which may have asignificant effect ontrade, atleast oneParty tothe
agreement shall notify other Parties through theGATT secretariat oftheproducts
tobecovered bytheagreement andabrief description oftheagreement. Parties
concerned areencouraged toenter, upon request, intoconsultations with other
Parties forthepurpose ofconcluding similar agreements orofarranging forthe
participation insuch agreements.
...
ANNEX 4
CODE OFGOOD PRACTICE FOR THE PREPARATION,
ADOPTION AND APPLICATION OFSTANDARDS
GENERAL PROVISIONS
A. Forthepurposes ofthiscode thedefinitions inAnnex 1ofthis
Agreement shall apply.
B. This code isopen toacceptance byanystandardizing body within the
territory ofaParty totheGATT Agreement onTechnical Barriers toTrade,
whether acentral government body, alocal government body, ora
non-governmental body; toanygovernmental regional standardizing body one
ormore members ofwhich areParty totheabove Agreement; andtoany
non-governmental regional standardizing body oneormore members ofwhich
aresituated within theterritory ofaParty totheabove Agreement (hereafter
collectively orindividually called standardizing bodies).
C. Standardizing bodies shall notify their relevant central government
authorities or,inthecase ofaregional body, those oftheir members, ofthefact
thatthey have accepted orwithdrawn from thiscode. Thenotification shall
include thename andaddress ofthebody concerned andthesubject matter
covered byitscurrent andexpected standardization activities. Regional
standardizing bodies may alternatively make thisnotification directly tothe
GATT secretariat.WT/CTE/W/10
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Standardizing bodies shall simultaneously make thesame notification tothe
ISO Information Centre inGeneva. Standardizing bodies within theterritory ofaParty
shall dothisthrough thenational member ofISONET, orintheabsence thereof,
directly. Regional standardizing bodies shall dothisthrough aninternational affiliate of
ISONET orthrough oneormore national members ofISONET or,intheabsence of
both, directly.
SUBSTANTIVE PROVISIONS
D. Where international standards exist ortheir completion isimminent,
standardizing bodies shall usethem, ortherelevant parts ofthem, asabasis for
thestandards they develop, except where such international standards orrelevant
parts areinappropriate forinter aliasuch reasons astheprevention ofdeceptive
practices*; protection forhuman health orsafety, animal orplant lifeorhealth,
ortheenvironment; fundamental climatic orother geographical factors;
fundamental technological problems; and, inthecase ofdeveloping countries,
development, financial ortrade needs.
*protection ofcompetition
E. With aview toharmonizing standards onaswide abasis aspossible,
standardizing bodies shall, inanappropriate way, play afullpart within thelimits
oftheir resources inthepreparation byrelevant international standardizing bodies
ofinternational standards regarding subject matter forwhich they either have
adopted, orexpect toadopt, standards. Forstandardizing bodies within the
territory ofaParty, participation inaparticular international standardization
activity shall, whenever possible, take place through onedelegation representing
allstandardizing bodies inthenational territory thathave adopted, orexpect to
adopt, standards forthesubject matter towhich theinternational standardization
activity relates.
F. Standardizing bodies shall make every effort towards theestablishment of,
andtheir association with, amember ofISONET onthenational territory orthe
regional level andtowards theacquisition bythismember ofthemost advanced
membership type possible.
G. Standardizing bodies within theterritory ofaParty shall make every effort
toavoid duplication oforoverlap with thework ofother standardizing bodies on
thenational territory orwith thework ofregional standardizing bodies which
covers thenational territory. They shall also make every effort toachieve a
national consensus onthestandards they develop andonthecomments they make
under paragraph L.
H. Wherever appropriate, standardizing bodies shall specify standards in
terms ofperformance rather than design ordescriptive characteristics.
I. Atleast once every sixmonths, standardizing bodies shall publish ina
national or,asthecase may be,regional publication ofstandardization activities
awork programme containing their name andaddress, thestandards they are
currently preparing andthestandards which they have adopted intheprecedingWT/CTE/W/10
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period. Astandard isunder preparation from themoment adecision hasbeen
taken todevelop astandard until thatstandard hasbeen adopted.
Thework programme shall foreach standard indicate, inaccordance with any
ISONET rules, theclassification relevant tothesubject matter, thestage attained inthe
standard 'sdevelopment, andthereferences ofanyinternational standards taken asa
basis. Nolater than atthetime ofpublication oftheir work programmes, standardizing
bodies shall notify theexistence thereof totheISOInformation Centre inGeneva.
Standardizing bodies within theterritory ofaParty shall dothisthrough thenational
member ofISONET or,intheabsence thereof, directly. Regional standardizing bodies
shall make thisnotification through aninternational affiliate ofISONET orthrough oneor
more national members ofISONET or,intheabsence ofeither, directly. Thenotification
shall contain thename andaddress ofthestandardizing body, theperiod towhich the
work programme applies, itsprice (ifany), andhow andwhere itcanbeobtained.
J. Before adopting astandard, standardizing bodies shall hold apublic
enquiry ofatleast 60days onthefulltextofthedraft standard. Nolater than the
start ofthispublic enquiry, standardizing bodies shall publish anotice announcing
theperiod ofthepublic enquiry onthedraft standard concerned inanational or,
asthecase may be,regional publication ofstandardization activities.
K. Ontherequest ofanyinterested party inaParty totheGATT Agreement
onTechnical Barriers toTrade, standardizing bodies shall provide acopy ofa
draft standard which they submitted topublic enquiry. Standardizing bodies shall
either send such copies themselves orhave them sentbyanother body with which
they have acontractual arrangement forthispurpose. Such copies shall besent
byspeedy means ofdelivery atthestart ofthepublic enquiry. Iftherequest has
been received during thepublic enquiry, aspromptly aspossible. Forthisservice
areasonable feemay becharged, which shall, apart from therealcosts of
delivery, bethesame fordomestic andforeign parties.
L. Standardizing bodies shall take comments ontheir draft standards into
account whenever those comments have been received during theperiod ofpublic
enquiry from standardizing bodies thathave accepted thiscode ofgood practice*.
Such comments shall bereplied toaspromptly aspossible. Standardizing bodies
shall make anobjective effort toresolve dissenting viewpoints. Where such a
comment contests aproposed deviation from aninternational standard, itisupto
thestandardizing body thathasprepared thedraft standard toexplain whythat
deviation isnecessary foralegitimate objective such asmentioned in
paragraph D.
*Standardizing bodies shall allow allinterested parties inother Parties tomake comments
inwriting, discuss these comments upon request, andtake these written comments and
results ofthediscussions intoaccount.
M. Once thestandard hasbeen adopted, itshall bepromptly published.
N. Ontherequest ofanyinterested party inaParty totheGATT Agreement
onTechnical Barriers toTrade, standardizing bodies shall promptly provide a
copy oftheir most recent work programme orofastandard which they produced.
Standardizing bodies shall either send copies themselves orhave them sentbyWT/CTE/W/10
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another body with which they have acontractual arrangement forthispurpose.
Forthisservice areasonable feemay becharged, which shall, apart from thereal
costs ofdelivery, bethesame forforeign anddomestic parties.
O. Standardizing bodies shall afford sympathetic consideration toandadequate
opportunity forprompt consultation regarding complaints with respect toanyof
thegood practices inthiscode whenever those complaints aremade by
standardizing bodies thathave accepted thiscode ofgood practice. They shall
make anobjective effort toresolve such complaints.
***
Companies established orincorporated intheterritories ofParties shall beaccorded the
right ofparticipation inregional bodies orsystems inthesame manner asitisaccorded toany
other companies participating inthose bodies orsystems."
73. ByOctober 1990, thediscussions resulted inagreement onthetextofArticle 4andthe
Code ofGood Practice, which wasreflected inadraft oftheAgreement circulated in
MTN.GNG/NG8/W/83/Add.3/Rev.1. This textofArticle 4andtheCode ofGood Practice was
thesame asthatintheFinal Text oftheWTO TBT Agreement.
74. Theproposals ontransparency bytheNordic countries, especially those contained in
MTN.GNG/NG8/W/75, formed thebasis forArticle 10intheAgreement.24Certain aspects of
theUnited States 'proposal ontransparency ofactivities ofregional standardizing bodies were
incorporated inArticle 10.7 oftheAgreement.
(b) Testing, certification andconformity assessment
75. Theissue ofcoverage with regard toconformity assessment includes thetypes ofactivities
covered by"conformity assessment" andthenature ofdisciplines fordifferent types ofconformity
assessment organizations (i.e. central orlocal government, orregional ornon-governmental).
This section summarizes thenegotiating history ofthedisciplines regarding conformity
assessment.25
(i) Tokyo Round Negotiations
76. TheDraft Standards Code (COM.IND/W/108; MTN/NTM/W/5) contained anumber of
provisions dealing with "conformity with standards" and"quality assurance systems". Section 8
oftheproposed Code addressed conformity with voluntary standards (covering governmental and
non-governmental bodies), section 10dealt with quality assurance systems ofcentral government
bodies forassuring conformity with voluntary standards, section 12dealt with systems operated by
quality assurance bodies other than central government bodies forassuring conformity with
voluntary standards, andsection 15dealt with international andregional quality assurance systems
24Seeinparticular thelastpart ofthechapeau which states "aswell astoprovide therelevant documents", andArticles 10.1.4, 10.2,
10.3.3, 10.4, 10.10 and 10.11.
25The previous section hasalready mentioned theproposals forenhanced transparency ofdifferent activities, including those
related toconformity assessment. Among theproposals forenhanced transparency ofcertification systems were Japan 'sproposals for
increased transparency oftheoperation ofcertification systems (MTN.GNG/NG8/W/6, 36,36/Rev.1), and forincreased transparency
regarding thedrafting process ofstandards and certification systems (MTN.GNG/NG8/W/6, 37).WT/CTE/W/10
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orarrangements forassuring conformity with voluntary standards. Ofthese, only Section 10
contained disciplines interms offirst level ofobligations, while alltheother sections had
disciplines interms of"adherents shall useallreasonable means within their power toensure
that". TheDraft Standards Code defined quality assurance body as"anorganization orperson,
governmental ornon-governmental, independent oftheproducer orsupplier, which provides
assurances thatproducts conform tothestandards inquestion orinformation onwhich adecision
astoconformity with thestandards canbetaken"; quality assurance system wasdefined as"a
formal arrangement having itsown rules ofprocedure andmanagement under which oneormore
quality assurance bodies provide anassurance thatproducts approved orcertified under thesystem
conform totherequirements ofthestandards inquestion".26
77. In1976 (MTN/NTM/W/37, page 9),theECproposed analternative textforSection 8,
i.e.27:
"(a) Adherents shall ensure thatquality assurance bodies under thedirect
jurisdiction ofcentral government shall comply with theprovisions of
Sections 5and6asregard:
(i) their testmethods andadministrative procedures for
determining conformity with voluntary standards, and;
(ii) theprovision ofassurances ofconformity with voluntary
standards, substituting theword 'voluntary 'for
'mandatory 'throughout andsubstituting 'Section 4'for
'Section 2'inSection 5(b).
(b) Adherents shall useallreasonable means within their power toensure that
other quality assurance bodies within their territories comply with the
provisions ofparagraph (a)above ".
78. InMarch 1976, theterm "quality assurance" waschanged to"certification"
(MTN/NTM/W/38). Anumber ofproposals were considered over time (seeforexample,
MTN/NTM/W/37, 50,72,95,120and151), andin1978 awide-ranging proposal wasmade for
redrafting Sections 5to15(MTN/NTM/W/176). This redraft combined technical regulations and
standards inSection 5,which dealt with determination bycentral government bodies ofconformity
with technical regulations orstandards. Theproposed Section 6dealt with determination bylocal
government bodies andnon-governmental bodies ofconformity with technical regulations or
standards. Certification systems operated bycentral government bodies were thesubject of
Section 7,Section 8addressed certification systems operated bylocal government bodies and
non-governmental bodies, andSection 9covered international andregional certification systems.
79. First level ofobligations were specified inSection 5,while Section 6contained second
level ofobligations: theobligations inSection 5were similar tothose contained inArticle 5in
theTokyo Round TBT Agreement; theobligations inSection 6were interms of"shall useall
reasonable means within their power toensure". Asmentioned above, thephrase inSection 6
26The texts oftheproposed Code that were circulated after MTN/NTM/W/71, didnotinclude definitions ofquality assurance or
certification system orbody.
27Asimilar proposal forfirst level ofobligations oncentral government certification bodies was made bytheECin1977
(MTN/NTM/W/72, page 12).WT/CTE/W/10
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thatdenoted bestefforts wassubsequently altered to"shall take such reasonable measures asmay
beavailable tothem toensure" (seeparagraph 58above). Also, similar tothechanges made to
Articles 3and4,astatement wasadded toArticle 6later that"Parties shall nottake measures
which have theeffect of,directly orindirectly, requiring orencouraging such bodies toactina
manner inconsistent with anyoftheprovisions ofArticle 5"(MTN/NTM/W/192/Rev.4; see
paragraph 58above).
80. InMTN/NTM/W/176, therevised textofSection 7(which addressed certification systems
operated bycentral governmental bodies), contained first level ofobligations forthese bodies, and
thenature oftheobligations were similar tothose contained inArticle 7oftheTokyo Round
TBT Agreement. Themain difference incomparison tothefinal textoftheTBT Agreement was
thattheterm "without discrimination" wasnotincluded inprovisions thatcorresponded tothe
Tokyo Round Articles 7.3.3, 7.3.4, 7.4.2 and7.4.3, andthemeaning ofaccess forsuppliers was
notprovided. InDecember 1978, themeaning of"access forsuppliers" wasadded inArticle 7.2
andtheterm "without discrimination" wasadded intheprovisions mentioned above
(MTN/NTM/W/192/Rev.1 andRev.2).
81. ThetextofSection 8inMTN/NTM/W/176 hadtwoparagraphs ofwhich thesecond
contained thesame obligations asinArticle 8.2oftheTokyo Round TBT Agreement. Section 8
stated:
"(a) Adherents shall useallreasonable means within their power toensure that
local government andnon-governmental bodies within their territories
when operating certification systems comply with theprovisions of
Section 7.
(b) Adherents shall ensure thattheir central government bodies relyon
certification systems operated bylocal government ornon-governmental
bodies only totheextent thatthese bodies andsystems comply with the
relevant provisions ofSection 7".
InArticle 8.1, theobligations with regard toinformation tobeprovided through theParties was
included inthetextpresented inMarch 1979 (MTN/NTM/W/192/Rev.4)28.
82. Section 9inMTN/NTM/W/176 contained twoparagraphs, thefirst being similar to
Article 9.1oftheTokyo Round Code. Thesecond paragraph stated that:
"Adherents shall useallreasonable means within their power toensure that
international andregional certification systems andbodies, inwhich relevant
bodies within their territories aremembers orparticipants comply with the
provisions ofSection 7".
Discussions continued onthesections dealing with certification systems operated bycentral
government bodies, andinternational andregional certification systems, andArticles 9.3and9.4
were added totheArticle oninternational andregional certification systems inDecember 1978
(MTN/NTM/W/192/Rev.1).
28The relevant part ofthetext stated that "...noting that theprovision ofinformation referred toinArticles 7.3.3 and7.4.2, the
notification referred toinArticle 7.4.1, and thecomment anddiscussion referred toinArticle 7.4.3, shall bethrough Parties."WT/CTE/W/10
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(ii) Uruguay Round Negotiations
83. Disciplines onconformity assessment ofstandards areprovided mainly inArticles 5-9of
theUruguay Round TBT Agreement. This section first summarizes thedevelopments regarding
thedifferent types ofconformity assessment activities forwhich disciplines were proposed inthe
Uruguay Round. Then, thenature ofthedisciplines ondifferent types oforganizations willbe
addressed.
Types ofactivities covered byconformity assessment
84. Inthearea ofconformity assessment ofstandards, theTokyo Round TBT Agreement
covered disciplines mainly with respect totesting andcertification. Negotiators intheUruguay
Round extended thecoverage oftheactivities toalsoinclude inspection andproduct approval. In
theearly phase ofthenegotiations, theUnited States submitted proposals on"testing, inspection
andtype approval" andonprocedures forissuing product approval (MTN.GNG/NG8/W/1 and
23). Thediscussion ofthese proposals focused, inter alia,ontypes ofactivities andbodies
subject todisciplines, thenature ofdisciplines imposed ondifferent bodies, practicality ofrelying
onimpartial technical experts foreach approval, relevant time limits, andtheimportance of
dealing with testing andinspection along with product approval. Itwasalsoemphasized thatthere
should bereference tointernationally accepted criteria fortheoperation ofapproval bodies and
thatprogress inthisarea inother forashould betaken intoaccount (seeMTN.GNG/NG8/4, 6,8,
10,12,16,17and18).
85. TheNordic countries proposed todevelop andstrengthen theprovisions ontesting and
certification "byadding anobligation touseinternationally agreed recommendations innational
andregional testing, inspection andcertification activities, aswell asbyclarifying some ofthe
present provisions oftheAgreement" (MTN.GNG/NG8/W/15/Add.1). Their proposals regarding
testing procedures andinspection procedures incorporated these aspects (MTN.GNG/NG8/W/41
and42), andtheproposal oninspection procedures alsoaddressed other issues such asdefinition
andscope ofcertain terms29,transparency, non-discriminatory treatment, simplified procedures
andadministrative mechanisms which would notcause undue delay orcreate obstacles to
international trade, andreciprocal recognition ofinspection results.30Inaddition, theNordic
proposal oninspection procedures included disciplines with regard totheactivities oflocal
government andnon-governmental bodies (seebelow).
86. Thediscussions resulted inrevised andconsolidated proposals ondifferent aspects of
conformity assessment. TheUnited States made arevised proposal onproduct approval
(MTN.GNG/NG8/W/52/Rev.1; seealsoparagraph 139below), andpresented aproposal on
systems fortheaccreditation orapproval oftesting laboratories, inspection orquality systems
registration bodies (MTN.GNG/NG8/W/60). Itnoted thatthelatter proposal wascomplementary
toprevious proposals ontesting, inspection andapproval procedures, paralleled theprovisions on
certification intheTokyo Round TBT Agreement, andsome oftheproposed texthaditsorigin in
other proposals made during thenegotiations.
29These were "inspection", "inspection body" and "inspection method".
30InMTN.GNG/NG8/W/58, New Zealand stated that itsproposal regarding PPMs was complementary totheNordic countries '
proposal ontesting and inspection procedures. SeeSection IIIformore detail ontheproposal byNew Zealand.WT/CTE/W/10
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87. TheNordic countries presented arevised, combined proposal on"Testing andInspection
Procedures" (MTN.GNG/NG8/W/50; seealsoparagraph 139below). This proposal addressed
Article 5,anddefined certain relevant terms: "evaluation ofconformity" wasdefined as
"systematic examination ofthecapability ofaproduct, process orservice tomeet specified
requirements"; "testing" wasdefined as"evaluation ofconformity bymeasurement oranalysis of
oneormore characteristics ofagiven product, process orservice according toaspecified
procedure"; and"inspection" wasdefined as"evaluation ofconformity byother means than
testing (e.g. byvisual checks)".
88. Subsequently, Canada proposed disciplines oncertification systems
(MTN.GNG/NG8/W/69), focusing onimproving theoperation, transparency andmutual
recognition ofproduct certification systems under theAgreement. Theproposal suggested
amending thetitleoftheArticle to"Assurance ofConformity with Technical Regulations or
Standards" andadding provisions onoperation ofcertification systems inparallel with those
applying toprocedures forevaluating conformity with technical regulations andstandards
(e.g. testing) inArticle 5asappropriate; replacing references to"self certification" with
"declaration ofconformity" inArticle 5.2; incorporating theprinciple ofencouraging mutual
recognition ofcertification through acceptance ofproducts certified bybodies accredited under
relevant international guidelines andstandards; expanding provisions oftheAgreement toensure
transparency ofcertification procedures; andintegrating provisions oncertification andother
conformity assurance methods intheAgreement, e.g.byincluding Article 9onregional and
international certification systems under theArticle suggested byCanada.
89. Inview ofthevarious aspects covered under thedifferent proposals, theECpresented a
proposal onconformity assessment procedures which wasmore comprehensive initscoverage of
different activities (MTN.GNG/NG8/W/72). Inthatproposal, "conformity assessment procedure"
wasdefined as:
"any technical procedure used, directly orindirectly, togive positive assurance
thataproduct conforms with theapplicable technical regulations orstandards"
Anexplanatory note stated: "For thepurposes ofthisAgreement, possible conformity
assessment procedures orelements thereof are, inter alia, amanufacturer 'sdeclaration of
conformity regarding theproduct orthequality assurance system used; thesubmission or
availability ofinformation regarding theproduct orthequality assurance system used;
testing orinspection oftheproduct orthequality system used; certification oftheproduct
orregistration ofthequality assurance system used; application ofamark ofconformity;
accreditation oftesting laboratories, inspection bodies, orcertification bodies; type
approval, lotapproval orunitapproval oftheproduct orapproval ofthequality
assurance system used; good manufacturing practices; good laboratory practices; good
clinical practices".
90. ForArticle 5,theEC'sproposal suggested revised disciplines similar tothose which were
included inthefinal textoftheWTO TBT Agreement. Theproposal alsoincluded suggestions
pertaining toconformity assessment procedures operated bylocal government bodies and
non-governmental bodies, mutual recognition agreements concerning conformity assessment
procedures, andcertain amendments toArticle 10.
91. Thedraft oftheAgreement presented bytheChairman oftheNegotiating Group in
July 1990 (MTN.GNG/NG8/W/83/Add.3) showed thatthere was"broad convergence ofviews"
onArticle 5,except forthefollowing provisions:WT/CTE/W/10
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"5.1.3 anyrequirements forconformity assessment procedures ofindividual
specimens ofaproduct shall belimited towhat isreasonable and
necessary;
5.1.4 approval authorities shall make their approval decisions onthebasis of
sound technical evidence;
...
5.1.8 theconfidentiality ofinformation about imported products arising from or
supplied inconnection with such conformity assessment procedures shall
berespected inthesame wayasfordomestic products insuch awaythat
legitimate commercial interests areprotected ".
However, convergence ofviews hadnotbeen reached forthedefinition ofconformity
assessment procedures, forprovisions relating torecognition ofconformity assessment (Article 6),
orforprocedures forassessment ofconformity bylocal government andnon-governmental bodies
(Article 7).Thedraft provided twoalternative definitions ofconformity assessment procedures,
onesuggested bytheNordic delegations (based ontheISO/IEC definitions)31,andtheother the
definition provided intheEC'sproposal onconformity assessment procedures. These were:
"Conformity assessment procedure
Anyprocedure used, directly orindirectly, todetermine thatrelevant requirements
intechnical regulations orstandards arefulfilled.
Note: Conformity assessment procedures include inter aliaprocedures for
sampling, testing andinspection; evaluation, verification andassurance of
conformity; registration, accreditation andapproval aswell astheir
combinations.
Conformity assessment procedure
Anytechnical procedure used, directly orindirectly, togive positive assurance that
aproduct conforms with theapplicable technical regulations orstandards.
Explanatory note:
Forthepurposes ofthisAgreement, possible conformity assessment procedures or
elements thereof are, inter alia, amanufacturer 'sdeclaration ofconformity
regarding theproduct orthequality assurance system used; thesubmission or
availability ofinformation regarding theproduct orthequality assurance system
used; testing orinspection oftheproduct orthequality system used; certification
oftheproduct orregistration ofthequality assurance system used; application of
amark ofconformity; accreditation oftesting laboratories, inspection bodies, or
certification bodies; type approval, lotapproval orunitapproval oftheproduct
orapproval ofthequality assurance system used; good manufacturing practices;
good laboratory practices; good clinical practices. "
31SeeMTN.GNG/NG8/W/79. The draft amendments made totherelevant definitions intheISO/IEC Guide 2were reproduced in
theAppendix toMTN.GNG/NG8/W/79.WT/CTE/W/10
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92. Theformer definition wasadopted forthefinal textoftheWTO TBT Agreement.
Incorporating conformity assessment intheAgreement meant thatthetwoseparate sections on
testing andcertification intheTokyo Round TBT Agreement were combined under conformity
assessment. Hence, accommodating changes hadtobemade inother parts oftheAgreement, for
example inArticle 9.
Disciplines ondifferent types ofbodies involved with conformity assessment
93. Some oftheproposals mentioned above specifically addressed disciplines onconformity
assessment bylocal, non-governmental orregional bodies. Forexample, theEC'sproposals on
Code ofGood Practice fornon-governmental bodies andforextending obligations tolocal
governmental bodies addressed Articles 3,6and8oftheAgreement andincluded conformity and
operation ofcertification systems intheir scope. Thecoverage oftheCode ofGood Practice was
defined bytheECtoinclude "also thedetermination ofconformity andtheoperation of
certification systems "(MTN.GNG/NG8/W/31, page 2),andtheECemphasized "thelinkwith the
other twoelements tofollow, namely local government bodies andtesting andcertification
activities. Anydefinitive evaluation should, therefore, bemade onthebasis ofallthree elements
together "(MTN.GNG/NG8/W/49, page 2).Theprevious section summarized thedevelopments
regarding thediscussion ontheEC'sproposals onCode ofGood Practice andontheUnited
States 'proposals onregional standards andcertification systems andontransparency regarding
standards-related agreements. This section focuses ontheother proposals onconformity
assessment activities which contained specific provisions relating tobodies other than central
government bodies.
94. TheNordic proposal oninspection procedures included disciplines with regard tothe
inspection service performed bylocal government andnon-governmental bodies, andstated that
"Parties shall take such reasonable measures asmay beavailable tothem toensure thatlocal
government bodies andnon-governmental bodies within their territories comply with theabove
provisions concerning inspection procedures. Inaddition, Parties shall nottake measures which
have theeffect of,directly orindirectly, requiring orencouraging such bodies toactinamanner
inconsistent with anyoftheabove provisions concerning inspection procedures "
(MTN.GNG/NG8/W/42, page 3).
95. Similarly, theUnited States 'proposal onsystems fortheaccreditation orapproval of
testing laboratories, inspection orquality systems registration bodies (MTN.GNG/NG8/W/60),
included thefollowing provisions:
"8.1 Parties shall take such reasonable measures asmay beavailable tothem
toensure thatlocal government bodies andnon-governmental bodies within their
territories when operating systems fortheaccreditation orapproval oftesting
laboratories, inspection orquality system registration bodies comply with the
provisions ofArticle 7,except paragraph 4,sub-paragraph 2,noting thatthe
provision ofinformation referred toinArticle 7,paragraph 4,sub-paragraph 3
andparagraph 4,sub-paragraph 2,thenotification referred toinArticle 7,
paragraph 5,sub-paragraph 1,andthecomment anddiscussion referred toin
Article 7,paragraph 5,sub-paragraph 3,shall bethrough Parties. Inaddition,
Parties shall nottake measures which have theeffect of,directly orindirectly,
requiring orencouraging such bodies toactinamanner inconsistent with anyof
theprovisions ofArticle 7.WT/CTE/W/10
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8.2 Parties shall ensure thattheir central government bodies relyonsystems
fortheaccreditation orapproval oftesting laboratories, inspection orquality
system registration bodies operated bylocal government andnon-governmental
bodies only totheextent thatthese bodies andsystems comply with therelevant
provisions ofArticle 7".
Anaccommodating change wassuggested inArticle 5.2, byreplacing thetextofthatArticle by
thefollowing text:
"Parties shall ensure, whenever possible, thattheir central government bodies accept
testing andinspection results, certificates ormarks ofconformity issued byrelevant
bodies intheterritories ofother Parties; orrelyupon declaration ofconformity by
producers intheterritories ofother Parties even when thetesting andinspection
methods differ from their own, provided thattherelevant body hasbeen accredited or
approved under (New) Articles 7or8,orprovided they areotherwise satisfied that
themethods employed intheterritory oftheexporting Party provide asufficient
means ofevaluating conformity with therelevant requirements. Itisrecognized that
prior consultations may benecessary inorder toarrive atamutually satisfactory
understanding regarding declaration ofconformity, testing andinspection methods
andresults, andcertificates ormarks ofconformity employed intheterritory ofthe
exporting Party, inparticular inthecase ofperishable products orofother products
which areliable todeteriorate intransit ".
96. TheEC'sproposal onconformity assessment (MTN.GNG/NG8/W/72) contained the
following Article ondisciplines with regard tolocal government bodies andnon-governmental
bodies32:
"7.1 Parties shall take such reasonable measures asmay beavailable tothem to
ensure thatlocal government bodies andnon-governmental bodies within their
territories which operate conformity assessment procedures, aswell as
non-governmental regional bodies which operate conformity assessment
procedures andofwhich oneormore oftheir non-governmental bodies are
member, comply with theprovisions ofArticle 5,with theexception of
Article 5,paragraph 5,sub-paragraph 2,andArticle 5,paragraph 6,
sub-paragraph 1.Inaddition, Parties shall nottake measures which have the
effect of,directly orindirectly, requiring orencouraging local government
bodies ornon-governmental bodies operating conformity assessment
procedures toactinamanner inconsistent with anyoftheprovisions of
Article 5.
32InMay 1990, Canada proposed amendments toArticle 2.1oftheTokyo Round Agreement (MTN.GNG/NG8/W/77), noting that
itsproposal was linked tosome other proposals, notably theECproposal onconformity assessment procedures which suggested the
need totake risk into account, and theNordic proposal ondifferent types oftechnical regulations andstandards. Amendments to
Article 2.1were sought byincorporating theprinciples ofproportionality anddegressive application oftechnical regulations and
standards. Canada stated that while theproposed amendments applied "tocentral government bodies, theadditional obligations would
also apply tolocal government and non-governmental bodies under therelevant provisions ofArticles 3and 4[oftheTokyo Round
Agreement] ".The main focus oftheproposal was toensure national treatment andmost favoured nation treatment, that technical
regulations and standards ortheir application donotresult inunnecessary obstacles totrade, technical regulations and standards are
based onacceptable degree ofrisk and donotcontain requirements higher than necessary tomeet theobjectives, that they arenot
maintained ifthecircumstances giving rise totheir adoption cease toexist orifthechanged circumstances canbeaddressed inaless
trade-restrictive manner, and that they arenotapplied inaway that affects products originating from (ordestined for) areas where the
problem does notexist.WT/CTE/W/10
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7.2 Parties shall ensure thattheir central government bodies relyonconformity
assessment procedures operated bynon-governmental bodies orlocal
government bodies only ifthese latter bodies comply with theprovisions of
Article 5,with theexception ofArticle 5,paragraph 5,sub-paragraph 2,and
Article 5,paragraph 6,sub-paragraph 1."
97. Thedraft oftheAgreement presented bytheChairman oftheGroup inJuly 1990 showed
thatthere wasnoagreement ontheprovisions relating toprocedures forassessment ofconformity
bylocal government andnon-governmental bodies (MTN.GNG/NG8/W/83/Add.3). Anumber of
alternative proposals were included intheChairman 'sdraft, namely:
"7.1 Parties shall take such reasonable measures asmay beavailable tothem to
ensure thatlocal government bodies andnon-governmental bodies within their
territories which operate conformity assessment procedures, aswell asregional
bodies which operate conformity assessment procedures andofwhich oneormore of
their bodies aremember, comply with theprovisions ofArticle 5,with theexception
ofArticle 5,paragraph 2,sub-paragraph 2,andArticle 5,paragraph 6,
sub-paragraph 1.Inaddition, Parties shall nottake measures which have theeffect
of,directly orindirectly, requiring orencouraging such bodies operating conformity
assessment procedures toactinamanner inconsistent with anyoftheprovisions of
Article 5.
7.2 Parties shall ensure thattheir central government bodies relyonconformity
assessment procedures operated bynon-governmental bodies orlocal government
bodies only ifthese latter bodies comply with theprovisions ofArticle 5,with the
exception ofArticle 5,paragraph 5,sub-paragraph 2,andArticle 5,paragraph 6,
sub-paragraph 1.
***
7.1 Parties shall ensure thatlocal government bodies within their territories
comply with theprovisions ofArticles 5and6,noting that:
7.1.1 Notification shall notberequired incases where alocal government body actsonly
asasub-contractor foracentral government body; and
7.1.2 Contacts with other Parties referred toinArticle 5,paragraphs 5and6,shall take
place through theParty concerned.
(Proposal byNordic countries of18July 1990)
7.2 Parties shall take such reasonable measures asmay beavailable tothem to
ensure thatnon-governmental bodies within their territories which operate conformity
assessment procedures, comply with theprovisions ofArticles 5and6,with the
exception ofArticle 5,paragraph 5,sub-paragraph 2,andArticle 5,paragraph 6,
sub-paragraph 1.Inaddition, Parties shall nottake measures which have theeffect
of,directly orindirectly requiring orencouraging such bodies toactinamanner
inconsistent with theprovisions ofArticles 5and6.
7.3 Parties shall ensure thattheir central government bodies relyonconformity
assessment procedures operated bylocal government bodies ornon-governmentalWT/CTE/W/10
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bodies only ifthese latter bodies comply with theprovisions ofArticles 5and6,with
theexception ofArticle 5,paragraph 5,sub-paragraph 2,andArticle 5,paragraph
6,sub-paragraph 1.
***
7.1 Parties shall take such reasonable measures asmay beavailable tothem to
ensure thatlocal government andnon-governmental bodies within their territories
which operate conformity assessment procedures comply with theprovisions of
Article 5,with theexception ofnotification requirements (5.5.2 and5.6.1). In
addition, Parties shall nottake measures which have theeffect of,directly or
indirectly, requiring orencouraging such bodies toactinamanner inconsistent with
anyoftheprovisions ofArticle 5(and 6).
7.2 Parties shall ensure thattheir central government bodies relyonconformity
assessment procedures operated bylocal government andnon-governmental bodies
only ifthese bodies comply with theprovisions ofArticle 5,with theexception of
notification requirements (Articles ...;...)".
98. Subsequent discussions resulted inaseparation oftheprovisions relating toconformity
assessment bylocal government bodies (Article 7oftherevised textwhich wascirculated in
MTN.GNG/NG8/W/83/Add.3/Rev.1) andthose relating toconformity assessment by
non-governmental bodies (Article 8oftherevised text). Therevised textshowed thatthere was
agreement onArticle 8,butnotonArticle 7which addressed local government bodies.
Two options were provided forArticle 7inMTN.GNG/NG8/W/83/Add.3/Rev.1, oneinterms of
first level ofobligation andtheother interms of"best efforts" obligation. This issue waslinked
with thedisciplines onpreparation, adoption andapplication oftechnical regulations bylocal
government bodies andnon-governmental bodies (i.e. Article 3).Further discussion resulted in
agreement ondisciplines under Article 7being reached interms of"shall take such reasonable
measures asmay beavailable tothem toensure compliance".
99. Thediscussion oninternational andregional conformity assessment addressed theextension
ofthecoverage ofactivities subject todisciplines under theAgreement, andthepoints raised in
theUnited States proposal onregional bodies andCanada 'sproposal ondisciplines for
certification systems (MTN.GNG/NG8/W/35 and69).33Thedraft oftheAgreement presented by
theChairman oftheGroup inJuly 1990 (MTN.GNG/NG8/W/83/Add.3) showed thatthere was
broad agreement onthefirst twoparagraphs oftheArticle (shown inbold print), butnotonthe
other paragraphs. ThetextoftheArticle inthedraft textpresented bytheChairman wasas
follows:
"Article 8
International andregional systems
8.1 Where apositive assurance ofconformity with atechnical regulation or
standard isrequired, Parties shall, wherever practicable, formulate andadopt
33Asdiscussed intheprevious section, anumber ofaspects oftheUnited States 'proposal were incorporated inArticles 4and10
oftheAgreement.WT/CTE/W/10
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international systems forconformity assessment andbecome members thereof or
participate therein.
8.2 Parties shall take such reasonable measures asmay beavailable tothem to
ensure thatinternational andregional systems forconformity assessment inwhich
relevant bodies within their territories aremembers orparticipants comply with the
provisions ofArticle 5,with theexception ofparagraph 1,sub-paragraph 1,having
regard totheprovisions ofArticle 8,paragraph 3.Inaddition, Parties shall not
take anymeasures which have theeffect of,directly orindirectly, requiring or
encouraging such systems toactinamanner inconsistent with anyofthe
provisions ofArticle 5.
8.3 Parties shall take such reasonable measures asmay beavailable tothem to
ensure thatinternational andregional systems forproduct certification andguides for
certification bodies inwhich relevant bodies within their territories aremembers or
participants, areformulated andapplied soastogrant access forsuppliers oflike
products originating intheterritories ofother Parties, under conditions noless
favourable than those accorded tosuppliers oflikeproducts originating inamember
country, aparticipant country orinanyother country, including thedetermination
thatsuch suppliers areable andwilling tofulfil therequirements ofthesystem.
Access forsuppliers isobtaining certification from animporting Party which isa
member oforparticipant inthesystem, orfrom abody authorized bythesystem to
grant certification, under therules ofthesystem. Access forsuppliers also includes
receiving themark ofthesystem, ifany, under conditions nolessfavourable than
those accorded tosuppliers oflikeproducts originating inamember country ora
participant country.
8.4 Parties shall ensure thattheir central government bodies relyoninternational
orregional systems forcertification ofproducts andguides forcertification bodies
only totheextent thatthesystems andguides comply with theprovisions ofArticle 5
andArticle 8,paragraph 3.
8.4 Parties shall ensure thattheir central government bodies relyoninternational
orregional conformity assessment systems only totheextent thatthese systems
comply with theprovisions ofArticles 5and6,asapplicable ".
100. Thedraft textsuggested first level ofobligations with regard tothereliance oninternational
andregional conformity assessment systems bycentral government bodies, andsecond level of
obligations onmembers with regard tointernational andregional systems forconformity
assessment inwhich relevant bodies within their territories were members orparticipants. Two
alternative texts were provided forArticle 8.4.
101. Article 8.3suggested intheChairman 'sdraft textwasmentioned inArticle 8.2andinthe
first alternative textsuggested forArticle 8.4. Subsequent discussion resulted indeletion of
Article 8.3suggested intheChairman 'sdraft (seeMTN.GNG/NG8/W/83/Add.3/Rev.1). Thus,
thesecond alternative textforArticle 8.4wasselected, andreference toArticle 8.3wasdropped
inthetextofArticle 8.2oftheChairman 'sdraft. Instead areference toArticle 6(which
addresses recognition ofconformity assessment bycentral government bodies) wasincluded; theWT/CTE/W/10
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second alternative textsuggested forArticle 8.4already contained areference toboth Articles 5
and6.34
102. Theseparation oftheprovisions relating toconformity assessment bylocal government
bodies andbynon-governmental bodies intoArticles 7and8(seeparagraph 98above) meant that
theArticle dealing with international andregional systems became Article 9
(seeMTN.GNG/NG8/W/83/Add.3/Rev.1). Thedisciplines with therevisions mentioned above
were incorporated inthefinal textoftheWTO TBT Agreement.
III. PROCESSES AND PRODUCTION METHODS (PPMS)
TheTokyo Round Negotiations anddiscussions ofPPMs inthecontext of
Article 14.25 oftheAgreement
103. TheTokyo Round TBT Agreement defines theterms "Technical Regulation" and
"Standard" solely interms ofproduct characteristics. Article 14.25 oftheAgreement istheonly
provision containing areference toPPMs.
104. Attherequest oftheTBT Committee inJune 1980 (TBT/M/3), theSecretariat prepared a
factual (Tokyo Round) negotiating history ofthedefinition oftheterm "Technical Specification"
andoftheprovisions ofArticle 14.25 oftheTBT Agreement inasmuch astheissue ofPPMs was
concerned. Thesubstantive parts ofthatdocument (TBT/W/15) arereproduced inparagraphs
105-111 below.
105. InMay 1975, theSub-Group "Technical Barriers toTrade" agreed thatthetextdrawn upin
thepre-negotiating period should beused asabasis foritswork. Atthatpoint PPMs were
excluded from thescope ofthedraft Code byvirtue ofthedefinition oftheterm "standard",
which read asfollows:
"The term "standard" means anyspecification which laysdown some orallofthe
properties ofaproduct interms ofquality, purity, nutritional value, performance,
dimensions, orother characteristics. Itincludes, where applicable, testmethods, and
specifications concerning testing, packaging, marking orlabelling totheextent thatthey
affect products rather than processes. Itexcludes standards which areprepared foruseby
asingle enterprise, whether governmental, semi-governmental ornon-governmental, either
foritsown production orpurchasing purposes." (MTN/NTM/W/5).
106. InSeptember/October 1975, based onthework ofISO/ECE thedefinition oftheterm
"technical specification" inthedraft Code waschanged toinclude "processes, conditions of
growth, andproduction methods, which must bemettoensure health andsafety"
(MTN/NTM/W/25). However, inJanuary/February 1976, thisreference wasremoved, sothat
theterm technical specification wasdefined as:
"Adocument which laysdown characteristics ofaproduct such aslevels ofquality,
performance, safety, ordimensions. Itmay include, ordeal exclusively with, terminology,
symbols, testing andtestmethods, packaging, marking orlabelling requirements."
(MTN/NTM/W/38).
34Article 6was given innormal type intheChairman 'sdraft text (i.e. MTN.GNG/NG8/W/83/Add.3), showing divergence ofviews
andtheneed forfurther work onthisprovision.WT/CTE/W/10
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107. Discussion oftheissue continued andaproposal wasmade bytheUnited States tomodify
thedefinition bytheaddition ofthefollowing language:
"For thepurpose ofthisCode "technical specifications" includes processes andproduction
methods, [which must bemettoensure health andsafety"], [insofar asthey arenecessary
toachieve thefinal product desired."] [insofar asthey affect thecharacteristics ofthefinal
product.]" (MTN/NTM/W/37)
Atthemeeting inMay 1976, further discussion ledtotheremoval ofthesquare brackets sothat
theproposal read:
"For thepurposes ofthisCode "technical specifications" includes processes andproduction
methods insofar asthey arenecessary toachieve thefinal product desired."
(MTN/NTM/W/50)
108. InMarch 1977 Group "Agriculture" initiated itsreview oftheapplicability ofthe
draft Code toagricultural products. One point made inthediscussion wasthat"appropriate
definitions would need tobeincluded ifitisdecided thattheCode should alsocover processing
andproduction methods" (MTN/AG/W/21).
109. Atitsmeeting ofMarch 1977 theSub-Group "Technical Barriers toTrade" agreed ona
textofthedefinitions forinclusion intheDraft Code (MTN/NTM/31). Allreference toPPMs
hadbeen dropped again. Thediscussion ofthedefinitions hadbeen complex andcontroversial
andnodelegation wished tore-open them after thisstage. Thefollowing definition oftheterm
"technical specification" wastherefore carried forward unchanged through successive drafts into
thetextoftheAgreement itself. Itreads:
"Aspecification contained inadocument which laysdown characteristics ofaproduct such
aslevels ofquality, performance, safety ordimensions. Itmay include, ordeal exclusively
with terminology, symbols, testing andtestmethods, packaging, marking orlabelling
requirements asthey apply toaproduct.
Explanatory note:
This Agreement deals only with technical specifications relating toproducts. Thus the
wording ofthecorresponding Economic Commission forEurope/International Organization
forStandardization definition isamended inorder toexclude services andcodes of
practice."
110. Further discussion ofPPMs continued under theheading "scope oftheCode" andatits
meeting ofSeptember 1977, theSub-Group considered aproposal bytheUnited States that
"processes andproduction methods should besubject totheprovisions oftheCode when they are
directly related tothecharacteristics ofaproduct" (MTN/NTM/W/95) and"agreed thataway
should befound ofensuring thatobligations under theCode arenotcircumvented bythedrafting
oftechnical specifications interms ofprocesses andproduction methods rather than interms of
thecharacteristics orperformance ofproducts." (MTN/NTM/W/120)
111. Atthemeeting ofMarch 1979 theNordic countries proposed that:
"the enforcement provisions could beinvoked incases where anadherent considers that
obligations under theCode arebeing circumvented bythedrafting oftechnicalWT/CTE/W/10
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specifications interms ofprocesses andproduction methods rather than interms of
characteristics ofproducts." (MTN/NTM/W/151)
During theautumn of1978 thetextoftheDraft Code wassimplified andrevised. Thefirst
proposal forarevised textincorporated thisproposal with oneortwominor changes
(MTN/NTM/W/192, Add.2). InDecember 1978, anumber orchanges were introduced tomake
thedraft Code applicable toagricultural products butthese didnotmodify thetextofthis
paragraph inanysignificant way. Thetextwastherefore carried forward intotheAgreement as
Article 14.25, which reads:
"The dispute settlement procedures setoutabove canbeinvoked incases where aParty
considers thatobligations under thisAgreement arebeing circumvented bythedrafting of
requirements interms ofprocesses andproduction methods rather than interms of
characteristics ofproducts."
112. Atitsmeetings in1980-81 (TBT/M/4, 5,6and7),theCommittee examined the
"Applicability oftheAgreement toProcesses andProduction Methods". Thediscussions showed
adivergence ofviews among Committee Members.35
113. One view wasthatArticle 14.25 hadbeen aimed atfinding away tosubject technical
specifications drafted interms ofPPMs toallofthebasic objectives oftheAgreement. PPMs had
notbeen explicitly covered initsother provisions since several participants inthenegotiations had
notwanted tosubject them toalloftheAgreement 'sprocedural requirements. Proposals made
during thenegotiations thatwould have specified those provisions oftheAgreement towhich
PPMs would besubject hadnotbeen pressed ontheunderstanding thatcomplaints could be
brought under Article 14.25 oftheAgreement whenever trading problems resulted from PPMs,
without limitation tothenature oftheproblem. Any interpretation ofArticle 14.25 thatwas
restrictive andwould limit Parties from complaining about substantive problems deriving from
PPMs, such asdiscrimination intheapplication ofaPPM-based measure, would becontrary to
thatunderstanding. Itwould alsoreduce theutility oftheAgreement, particularly (although not
solely) asitapplied totrade inagricultural products. Anelaboration ofthispoint ofview was
circulated bytheUnited States inTBT/W/24, along with an"Illustrative ListofProcesses and
Production Methods" (TBT/W/33) anda"Definition andCase Studies" (TBT/W/46).
114. Another view wasthatmeasures based onPPMs were notcovered directly bythe
substantive ortheprocedural provisions oftheAgreement. Article 14.25 applied only ifthere
wasadeliberate attempt toescape orcircumvent obligations under theAgreement bydrafting
requirements interms ofPPMs rather than product characteristics. Thedefinitions inthe
Agreement referred only toproduct characteristics, andtheAgreement therefore didnotapply to
PPMs except ifthey were used tocircumvent itsobligations. Certain proposals would have given
more explicit recognition totheapplicability oftheAgreement toPPMs, butthose proposals had
notbeen accepted. Ithadbeen suggested atthetime thatifPPMs were tobecovered bythe
Agreement, appropriate definitions would need tobeinserted (MTN/AG/W/21). Since nosuch
definitions hadbeen included andnoamendments toexisting definitions hadbeen made, itwas
clear thattheAgreement didnotcover PPMs.
35The discussions intheCommittee onthisissue were given added focus byspecific PPM-related issues brought before the
Committee, e.g., theUnited Kingdom requirement forspin-chilling ofpoultry (see TBT/Spec/4 and5).WT/CTE/W/10
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115. Atitsmeeting inJune 1981 (TBT/M/7), theCommittee noted thatnoconsensus hadbeen
reached onthequestion oftheapplicability oftheAgreement toPPMs, butinorder toallow for
anexchange ofinformation onthissubject theCommittee took thefollowing decision:
"Delegations may make submissions totheCommittee relating toPPMs thatmight create
unnecessary obstacles totrade, which willbecirculated totheCommittee butnot
consolidated intoasingle document intheform ofaninventory. Delegations should also
befreetosubmit anyrelevant working documents andcase studies ofhow theAgreement 's
coverage ofPPMs could lead totheelimination oftrade barriers. Thesecretariat will
follow normal practice incirculating anydocuments submitted byParties onthesubject."
(TBT/16/Rev.8, paragraph H).
116. InSeptember 1982, during preparations forthefirst three-year review oftheoperation and
implementation oftheAgreement, theUnited States proposed thattheCommittee should establish
aworking party toexamine thesubject oftheAgreement 'scoverage ofPPMs with theaimof
arriving ataconsensus interpretation (TBT/12). Theproposal received support from some
Committee Members, butothers expressed various reservations about theusefulness ofsuch an
exercise, among them theview thatPPMs were notcovered bytheAgreement andtheissue
therefore didnotfallwithin thecompetence oftheCommittee andtheview thattheissue wasnot
oneofinterpretation oftheAgreement butrather ofextension ofitscoverage (TBT/M/11,12,13).
117. Following informal consultations, atitsmeeting inOctober 1983 theCommittee concluded
onthefunctioning ofArticle 14.25 oftheAgreement:
"The Committee recognizes thatthere aredifferences ofviews among Parties inrespect to
Article 14.25 ....Inthiscontext, where aParty considers thatobligations under the
Agreement arebeing circumvented bythedrafting ofrequirements interms ofprocesses and
production methods rather than interms ofcharacteristics ofproducts, theParties agree to
cooperate intheprocess ofdispute settlement." (TBT/M/14)
Further discussion intheTokyo Round TBT Committee
118. Theissue ofPPMs arose again in1988 inconnection with theCommittee 'swork on
updating thedefinitions used intheAgreement inthelight ofthefifth edition oftheISO/IEC
Guide 2(1986). TheCommittee considered aNordic proposal toupdate thedefinitions insuch a
way thatthesubstance oftheAgreement remained untouched (TBT/W/103), inter aliaby
amending the"Explanatory note" attached tothedefinition ofa"Technical Specification" inthe
Agreement asfollows:
"This Agreement deals only with technical specifications relating toproducts. Thus the
wording ofthecorresponding Economic Commission forEurope/International Organization
forStandardization definition isamended inorder toexclude services andcodes ofpractice
processes andservices ".
Several Members oftheCommittee feltthatthiscould amount toasubstantive change tothe
Agreement, since although theISO/IEC Guide contained adefinition oftheterm "code of
practice" neither thatGuide northeTBT Agreement contained adefinition oftheterm
"processes". They therefore expressed doubts about theinterchangeability ofthetwoterms. The
Committee agreed topostpone further discussion ofthisproposal until after discussions hadbeenWT/CTE/W/10
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held ontheissue ofPPMs raised inrelation totheimprovement, clarification andexpansion ofthe
Agreement inthecontext oftheUruguay Round negotiations (TBT/M/27 and28).
TheUruguay Round Negotiations
119. Atthefirst meeting oftheNegotiating Group onMTN Agreements andArrangements
(NG8) inMarch 1987, theUnited States proposed negotiations aimed inter aliaatclarifying the
TBT Agreement 'scoverage inrelation toPPMs (MTN.GNG/NG8/W/1 andNG8/1). As
mentioned above, thebulk ofthesubsequent discussion ontheissue took place inthe
TBT Committee, which reported regularly toNG8 where thechanges totheAgreement were
formally negotiated.
120. InFebruary 1988 theUnited States presented adraft proposal toamend thedefinition ofthe
term "Technical Specification" andtoamend Article 14.25 oftheAgreement
(MTN.GNG/NG8/W/24)36:
"Technical Specification
Aspecification contained inadocument which laysdown characteristics ofaproduct such
aslevels ofperformance, quality, safety ordimensions. Itmay include, ordeal exclusively
with terminology, symbols, testing andtestmethods, packaging, marking orlabelling
requirements, processes, conditions ofgrowth andproduction methods.
Article 14.25
Thedispute procedures setoutabove canbeinvoked incases where aParty considers that
benefits under thisAgreement arebeing nullified orimpaired bythedrafting of
requirements interms ofprocesses andproduction methods rather than interms of
characteristics ofproducts."
121. TheUnited States saiditsproposal would extend allmajor disciplines intheAgreement to
technical specifications based onPPMs. Lack offullcoverage ofPPMs seriously weakened the
effectiveness oftheAgreement byexcluding agrowing body ofregulations from itsdisciplines.
Theintention wasnottodiscourage theuseofPPMs butrather toeliminate potential trade
barriers toboth industrial andagricultural trade posed byPPM-based requirements. Full
extension oftheprovisions oftheAgreement toPPM-based requirements would strengthen the
Agreement andmake itmore effective inreducing arbitrary orunnecessary technical barriers to
trade (MTN.GNG/NG8/6). IntheTBT Committee theUnited States clarified itsproposal further,
noting thatinduecourse itwould benecessary toaddress thequestion ofthedefinition ofthe
term "PPM", thatanalternative toamending Article 14.25 would betodelete italtogether, and
thatthepurpose wasnottoestablish apreference fortechnical specifications drafted interms of
product characteristics asopposed tothose drafted interms ofPPMs (TBT/M/27).
122. Incommenting ontheUSproposal (MTN.GNG/NG8/6 and8,TBT/M/28 and29), some
participants expressed concerns about thefeasibility anddesirability ofmaking national
requirements based onPPMs mandatory ininternational trade. However, agood deal ofsupport
wasexpressed forextending thecoverage oftheTBT Agreement toensure thatPPM-based
36Asmentioned earlier, allproposals made totheNG8 relating totherenegotiation oftheAgreement were issued concurrently as
TBT documents.WT/CTE/W/10
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measures didnotcause unnecessary barriers totrade. Many feltthatifaParty chose tobase a
requirement onPPMs rather than onproduct characteristics inorder toachieve aparticular
objective, andifthisconstituted atechnical barrier totrade, then thePPM-based requirement
should besubject totheprovisions oftheAgreement.
123. There wasawidely held view thatArticle 14.25 didnotprovide asuitable basis for
pursuing further theextension ofthecoverage oftheAgreement toinclude PPM-based measures.
Itwasnoted thatitsoperation hadproved unsatisfactory because oflack ofagreement among
Parties onitsapplication. Some participants feltthattheissue ofcircumvention oftheobligations
oftheAgreement through theuseofPPM-based measures wassecondary totheneed tospell out
clearly theapplication ofthesubstantive provisions oftheAgreement toPPMs. Some feltalso
thatmaintaining thisprovision might imply theestablishment ofahierarchy, under which
requirements drafted interms ofPPMs were tobeused only inresidual cases when theuseof
requirements drafted interms ofproduct characteristics were notfeasible.
124. There wasmore support fortheapproach suggested intheUSproposal tochange the
definition of"Technical Specification", although some participants doubted thatthisalone would
besufficient toextend theprovisions oftheAgreement satisfactorily toPPMs. Inparticular, they
feltthatseparate conformity assessment provisions would beneeded toensure thatdetermination
ofconformity with PPM-based measures didnotinitself cause unnecessary trade restriction.
Some feltalsothattheAgreement should accommodate theuseofPPM-based measures only in
exceptional cases, where requirements drafted interms ofproduct characteristics were not
practical (TBT/M/28).
125. Several participants feltthere wasaneed foraclear definition ofPPMs iftheir coverage
under theAgreement wastobeestablished, andinJanuary 1989 adraft proposal containing
"Suggested definitions related toPPMs" wassubmitted bytheUnited States (TBT/W/108/Add.1):
"1. Process orProduction Method (PPM):
One ormore planned actions inaseries ofconditions oroperations (e.g. mechanical,
electrical, chemical, inspection, test) bymeans ofwhich amaterial orproduct advances
from onestage toitsfinal state. PPMs include conditions ofgrowth aswell ascontrolled
treatments thatsubject materials orproducts totheinfluence ofoneormore types ofenergy
(e.g. human, animal, mechanical, electrical, chemical, thermal) asrequired toachieve a
desired reaction, change, result orperformance.
2. PPM Standard (orPPM provision within aproduct orprocess standard):
Standard orprovision thatspecifies theprocess orproduction method tobeemployed inone
ormore stages inthedesign, manufacture, delivery, installation, treatment, orutilization of
equipment, structures orproducts, orthatspecifies methods orconditions inaccordance
with which aproduct istobegrown orraised. Testing orcertification forconformity with
these methods, rather than thecharacteristics ofthefinal product, isrequired in
conjunction with oneormore steps intheprocess."
There waslittle recorded discussion ofthisproposal (TBT/M/30 and31).
126. One general reservation expressed byoneparticipant atthistime, which wasrepeated
throughout most oftheremainder oftheTBT Committee 'sdiscussion ofextending theAgreement
tocover PPMs, wasthatthetraditional field ofapplication ofPPM-based requirements hadbeenWT/CTE/W/10
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agriculture andthatthewhole issue should therefore bemore properly discussed andsettled inits
entirety intheNegotiating Group onAgriculture (NG5), inthecontext ofdeveloping rules onthe
useofsanitary andphytosanitary measures. Other participants agreed ontheimportance of
discussing PPM-based agricultural requirements inNG5, butdidnotconsider thisneeded tobe
done totheexclusion offurther discussion oftheissue inthecontext oftheTBT Agreement.
They feltthatanynecessary adjustments toensure consistency with theresults ofdiscussion in
NG5 could bemade attheappropriate time.
127. InNovember 1989, anew proposal toincorporate PPMs within thescope ofthe
Agreement andtomake itscoverage ofPPMs clearer wassubmitted byNew Zealand
(MTN.GNG/NG8/W/58). Theoperative parts oftheproposal read:
"1. Annex 1.1
Amend thedefinition ofTechnical Specification asfollows:
Aspecification contained inadocument which laysdown characteristics ofaproduct
such aslevels ofquality, performance, safety ordimensions. Itmay include, ordeal
exclusively with terminology, symbols, testing andtestmethods, packaging, marking
orlabelling requirements asthey apply toaproduct.
Itmay also include processes andproduction methods insofar asthey arenecessary
toachieve therequired characteristics ofaproduct.
This definition isintended tomake clear thattheprocesses andmethods thatmust beused
intheproduction ofaproduct arecovered bytheAgreement. Theproduct coverage ofthe
Agreement isdefined inexisting Article 1.3, which does notrequire anychange.
Aseparate definition of"process andproduction method" could also beincorporated in
Annex 1,asfollows:
Means bywhich orconditions under which aproduct advances toitsfinal state.
New Zealand does notbelieve adefinition isabsolutely necessary, butacknowledges that
several participants favour devising one. While New Zealand hasnospecific objection to
theU.S. definition, ourpreference isforabroader andsimpler overall definition, asthere
does notappear tobemuch disagreement over what constitutes aprocess andproduction
method.
2. Article 2.4
Tobeamended asfollows:
Wherever appropriate, Parties shall specify technical regulations andstandards in
terms ofperformance rather than design ordescriptive characteristics, orprocesses
andproduction methods.
This makes PPMs thethird element ofthehierarchy oftypes ofregulation orstandard. By
establishing apreference forother types, itwilldiscourage theuseofPPMs inanarbitrary
way, when another typeisavailable. There maywellbecases where aPPM willbemore
appropriate than another typeofstandard even when either could beused. Itwould beup
totheparty imposing thisPPM toexplain, onrequest, whythePPM wasappropriate inthisWT/CTE/W/10
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case. Atypical case would bewhere suitable testing methods areunavailable or
impractical, eg.infood irradiation orpressure vessels.
3. New Article 5.2BIS
Parties shall ensure thatindetermining conformity with technical regulations and
standards based onprocesses andproduction methods, their central government
bodies also accept PPMs used inexporting Parties which differ from their own,
provided they aresatisfied thatthePPMs intheexporting Parties provide equivalent
guarantees interms oftheobjectives ofthetechnical regulations andstandards.
Parties shall ensure thattheir central government bodies make every effort toreach
agreement onconformity, orequivalency ofPPMs, through consultation. Tothis
end, exporting Parties shall make available allrelevant information toimporting
Parties, andshall ensure they have adequate access tofacilities they require forthe
purpose.
This article recognizes thatwhen they dousePPM regulations/standards, inorder to
minimize theriskofunjustified obstacles totrade, Parties should beprepared toaccept
PPMs, which while notidentical, canbeshown tobejustaseffective inmeeting the
objectives ofthePPM regulation/standard. These objectives ofcourse would bethose that
arelegitimate under theterms oftheAgreement.
4. Article 14.25: Delete
Asitwould nolonger bepossible tocircumvent theprovisions oftheAgreement simply by
drafting aregulation orstandard interms ofaPPM, thisspecific dispute settlement
provision becomes superfluous. PPMs would besubject tothesame setofdispute
settlement provisions asother regulations andstandards. "
128. Inintroducing itsproposal (MTN.GNG/NG8/14 andTBT/M/33), New Zealand added that
thesubstantive disciplines oftheAgreement, such astransparency, national treatment, andtheuse
ofinternational standards, were equally appropriate forPPM-based measures. Specific
PPM-related provisions were required inthedetermination ofconformity, where thecooperation
oftheexporting country would beneeded since thetesting procedures ofArticle 5.1could notbe
applied because ofthenature ofPPMs. Theprinciple ofequivalency wasnecessary toallow
exporting parties tomeet aPPM-based regulation orstandard byusing aPPM which might notbe
identical butwhich hadequivalent effects.
129. Considerable support fortheproposal byNew Zealand, inparticular itsintent andthe
introduction oftheprinciple ofequivalence forPPM-base measures, wasexpressed inboth NG8
andtheTBT Committee, although oneparticipant continued toexpress reservations about
proceeding anyfurther inthecontext oftheTBT Agreement aslong astheissue ofPPM-based
measures wasstillunder consideration inNG5 (TBT/M/33, 34,35and36).
130. Three aspects oftheNew Zealand proposal received particular attention.
(i) TheDefinitions inAnnex 1oftheAgreement
131. New Zealand explained thattheintent ofitsproposal toamend thedefinition of"Technical
specification" hadnotbeen toinclude allkinds ofPPMs, butonly those thatwere necessary toWT/CTE/W/10
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ensure certain legitimate objectives ofquality inafinal product such asitsstrength, purity or
safety. APPM thatwasrequired forreligious purposes, forexample, didnothave anydirect
effect onthequality orthefinal characteristics ofaproduct andwould therefore notbecovered.
Many participants saidthey supported theintent ofthisproposal, butsome feltthephrase "Itmay
include processes andproduction methods insofar asthey arenecessary toachieve therequired
characteristics ofaproduct" required further elaboration tomake thatintent clear.
132. One participant felttheuseofPPM-based measures should beviewed inalarger context,
both from thepoint ofview ofthedifferent problems raised bythose related toagricultural and
industrial products andfrom thepoint ofview oftheuseofcertain PPMs related toconcepts such
asprotection ofenvironment, social order, andworkers 'health andsafety.
133. InJune 1990, theNordic countries presented new proposals (MTN.GNG/NG8/W/79) for
thedrafting ofthedefinitions intheAgreement totake account ofdraft amendments tothe
ISO/IEC Guide 2.Theproposal read, inpart, thatforthepurposes oftheAgreement the
following exceptions would apply totheISO/IEC definitions ofterms:
"(a) Services (and processes) shall beexcluded from thecoverage ofthedefinitions.
(b) Fortheterm "Standard" thefollowing definition shall apply.
Document approved byarecognized body, thatprovides, forcommon andrepeated
use, rules, guidelines orcharacteristics forproducts, (processes andproduction
methods) with which compliance isnotmandatory. Itmay also include ordeal
exclusively with terminology, symbols, packaging, marking orlabelling requirements
asthey apply toaproduct."
(ii) Article 2.4oftheAgreement
134. New Zealand 'sproposal (MTN.GNG/NG8/W/58) toamend Article 2.4oftheAgreement
received most attention from thepoint ofview ofthehierarchy itestablished between different
types oftechnical specifications. One view wasthattherationale forestablishing anyhierarchy at
allamong types ofrequirements wasunclear anddifficult todefend. Another view wasthatthe
concept ofhierarchy should notexclude thepossibility ofusing PPM-based measures, which were
becoming ofincreasing importance totheproduction andtrade ofindustrial products, particularly
high-technology products, andwhich incertain cases were notonly thepreferable way butindeed
theonly way toregulate product quality. However, requirements drafted interms ofproduct
characteristics should bepreferred generally toPPM-based requirements since generally they were
lesstrade-restrictive. Themain reasons given were: thedetermination ofconformity with
product requirements could bemade both intheimporting andtheexporting country, whereas
conformity with PPMs-based requirements could beevaluated only onthesiteofproduction which
made thistype ofassessment expensive; according tothepractice ofstandardization atthe
national andinternational level, technical specifications were drafted interms ofcharacteristics of
products rather than interms ofPPMs unless under exceptional circumstances when itwasnot
possible toachieve thepurpose oftherequirement through product characteristics; PPM-based
regulations could restrict foreign suppliers 'choice oftechnology andmight compel them tousean
inferior orlessefficient technology ormethodology, andrestrain their ability toadopt amore
cost-competitive means ofproducing aproduct ortoachieve targets relating toproduct quality.WT/CTE/W/10
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135. InApril 1990, theNordic countries proposed anew draft forArticle 2.4toaddress the
issue ofhierarchy interms ofthetrade restrictiveness ofthemeasure chosen (TBT/W/143):
"Parties shall ensure thatinpreparing technical regulations inthechoice between different
ways topresent thenecessary requirements (onperformance, marking ordesign ofthe
products, oronprocesses andproduction methods) they usethose which areleast trade
restrictive except incases when thisfortechnical oreconomic reasons isnotfeasible."
Inintroducing their proposal, theNordic countries saidthatitgave sufficient guidance toParties
forthedrafting oftechnical regulations intheleast trade restrictive way butallowed them
flexibility inchoosing between types oftechnical regulations (TBT/M/37). Ifanexporting Party
considered thatthespecification used wasnottheleast trade restrictive itshould have the
possibility ofentering intoconsultations with theimporting Party. Ifadispute arose, itwould be
uptotheexporting Party todemonstrate thatalesstrade restrictive method forspecifying the
technical regulation inquestion existed which wasalsoeconomically andtechnically feasible.
136. While some delegations considered theNordic proposal tobemore flexible in
accommodating PPM-based measures andtherefore more realistic than theNew Zealand proposal,
some concern wasexpressed thatitinvolved technical aswell ascommercial andeconomic
judgements which could undermine theobjectiveness oftheprovisions ofArticle 2.4.
137. Theissue of"least trade restrictiveness" ofmeasures continued tobediscussed inthe
Committee inthecontext ofamendments toArticle 2oftheAgreement. InMay 1990, for
example, Canada proposed anew draft forArticle 2.1(MTN.GNG/NG8/W/77) which aimed to
ensure thattechnical regulations andstandards, including those based onPPMs, didnotcreate
unnecessary obstacles totrade. One element ofCanada 'sproposal which appears tohave been
addressed directly totheissue ofPPM-based measures read:
"With respect totheir central government bodies:
2.1Parties shall ensure thattechnical regulations andstandards arenotprepared, adopted
orapplied with aview tocreating obstacles tointernational trade. Furthermore, products
imported from theterritory ofanyParty shall beaccorded treatment nolessfavourable than
thataccorded tolikeproducts ofnational origin andtolikeproducts originating inany
other country inrelation tosuch technical regulations orstandards. They shall likewise
ensure thatneither technical regulations norstandards themselves northeir application have
theeffect ofcreating unnecessary obstacles tointernational trade. Insodoing, Parties
shall, inter alia, ensure thattechnical regulations andstandards including changes thereto:
2.1.4. arenotapplied insuch awayastoaffect imported products either
originating ingeographic areas where theproblem being addressed does notoccur
ordestined forindustrial orconsumer applications where theproblem does not
exist;"
There wasnorecorded discussion ofthisparticular aspect ofCanada 'sproposal relating to
PPM-based measures (TBT/M/38), andfurther development ofdisciplines toavoid unnecessary
barriers totrade, such asproportional anddegressive application oftechnical regulations and
standards, proceeded without particular reference toPPM-based measures.WT/CTE/W/10
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(iii) Conformity assessment
138. Support wasexpressed forNew Zealand 'sproposal (MTN.GNG/NG8/W/58) toinclude
new conformity assessment provisions intheAgreement addressed specially toPPM-based
requirements. Several participants feltthatissues ofconformity assessment were closely related to
concepts ofPPMs andtheir coverage bytheAgreement, andthattheprinciple ofequivalence was
important inthecontext oftheassessment oftheconformity ofproducts toPPM-based measures.
139. From December 1989 toMay 1990, new provisions were drafted tocover conformity
assessment procedures andtherecognition ofconformity assessment. Certain proposals inthis
regard made itclear they were designed tocover theassessment oftheconformity ofproducts
with PPM-based standards. One direct reference toPPM-based measures wascontained ina
U.S. proposal (MTN.GNG/NG8/W/52/Rev.1) ofFebruary 1990 onProduct Approval Procedures,
which called forareasonable interval tobeprovided between thepublication ofrequirements
concerning product approval andtheir entry intoforce "inorder toallow time forproducers in
exporting countries, andparticularly indeveloping countries, toadapt their products ormethods
ofproduction totherequirements oftheimporting country." However, thetendency atthistime
seems tohave been torelyupon extending coverage toPPM-based measures through the
definitions oftechnical regulations, standards andconformity assessment intheAnnex tothe
Agreement rather than directly intothetextoftheAgreement ashadbeen proposed by
New Zealand. Forexample, aNordic proposal (MTN.GNG/NG8/W/50) ofAugust 1989 on
Testing andInspection Procedures contained aprovisional definition of"evaluation ofconformity"
as"systematic examination oftheextent towhich aproduct, process orservice fulfils specified
requirements". AnECproposal ofMarch 1990 onConformity Assessment
(MTN.GNG/NG8/W/72) dealt exclusively with product requirements andexplicitly excluded
PPM-based measures, leaving thequestion ofcoverage ofPPM-based measures tobedecided in
thecontext ofseparate discussions.
Preparation oftheBrussels Text oftheTBT Agreement
140. Asmentioned earlier, theChairman ofNG8 circulated adraft textoftheTBT Agreement
inJuly 1990 (MTN.GNG/NG8/W/83/Add.3). Although several aspects ofthetextwere already
relatively well developed atthisstage, most questions relating tocoverage ofPPM-based measures
bytheAgreement remained open andwere reflected inthetextthrough theinclusion ofthe
original proposals thathadbeen made.
141. TheChairman hadstated inhisintroductory note tothedraft textthatthe"...textinbold
type represents areas ofbroad convergence without prejudging itsfinal acceptance byany
participant. However, itisnecessary tonote that, while there isalarge majority supporting these
issues, sometimes with different views, ...oneother delegation hasreserved itsposition onthe
extension oftheAgreement toProcesses andProduction Methods. Thetextappearing innormal
type represents areas where there aredivergences, sometimes fundamental, orwhere further work
isneeded."
142. Therelevant parts ofthedraft textoftheAgreement read asfollows:
"Article 2Preparation, adoption andapplication oftechnical regulations bycentral
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With respect totheir central government bodies:
2.2 Parties shall ensure thattechnical regulations arenotprepared, adopted orapplied
with aview toorwith theeffect ofcreating unnecessary obstacles tointernational trade.
Insodoing, Parties shall, inter alia, ensure thattechnical regulations:
2.2.4 arenotapplied insuch awayastoaffect products either originating in
geographic areas where theproblem being addressed does notoccur ordestined for
industrial orconsumer applications where theproblem does notexist;
2.5 Wherever appropriate, Parties shall specify technical regulations interms of
performance rather than design ordescriptive characteristics.
2.5 Whenever appropriate, Parties shall specify technical regulations andstandards in
terms ofperformance rather than design ordescriptive characteristics, orprocesses and
production methods.
2.9 Except inthose urgent circumstances referred toinArticle 2,paragraph 6,
Parties shall allow areasonable interval between thepublication ofatechnical regulation
anditsentry intoforce inorder toallow time forproducers inexporting countries, and
particularly indeveloping countries, toadapt their products ormethods ofproduction to
therequirements oftheimporting country.
Article 4 Preparation, adoption andapplication ofstandards
With respect totheir central government bodies:
Article 4bis
Whenever aParty hasreached anagreement with anyother party onissues related to
standards andtechnical regulations (including processes andproduction methods) which
may have asignificant effect ontrade, atleast oneParty totheagreement shall notify other
Parties through theGATT secretariat oftheproducts tobecovered bytheagreement anda
brief description oftheagreement. Parties concerned areencouraged toenter, upon
request, intoconsultations with other Parties forthepurpose ofconcluding similar
agreements orofarranging fortheparticipation insuch agreements.
Article 5Conformity with Technical regulations andStandards
5.8 Except inthose urgent circumstances referred toinArticle 5,paragraph 6,Parties
shall allow areasonable interval between thepublication ofrequirements concerning
conformity assessment procedures andtheir entry intoforce inorder toallow time for
producers inexporting countries, andparticularly indeveloping countries, toadapt their
products ormethods ofproduction totherequirements oftheimporting country .
Article 6[Recognition ofConformity Assessment]
Parties shall ensure thatinassessing conformity with technical regulations andstandards
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PPMs used inexporting Parties which differ from their own, provided they aresatisfied that
thePPMs intheexporting Parties provide equivalent guarantees interms oftheobjectives
ofthetechnical regulations andstandards. Parties shall ensure thattheir central
government bodies make every effort toreach agreement onconformity, orequivalency of
PPMs, through consultation. Tothisend, exporting Parties shall facilitate theprovision of
relevant information toimporting Parties. They shall also facilitate thecarrying outof
inspections orspot checks intheir territories byimporting Parties when these arenecessary
forthispurpose.
6.1 Parties areencouraged to:
6.1.2 accept theresults ofconformity assessment procedures inother Parties, even when
those procedures differ from their own, provided they offer anassurance equivalent totheir
own thatproducts conform with theapplicable technical regulations orstandards.
ANNEX 1
TERMS AND THEIR DEFINITIONS FOR THE SPECIFIC PURPOSES
OFTHIS AGREEMENT
1. Theterms presented inthefifthedition oftheISO/IEC Guide 2,General Terms and
Their Definitions Concerning Standardization andRelated Activities, andintheamendment
sheet adopted ...1990 tothisGuide, shall when used inthisAgreement have thesame
meaning asgiven inthedefinitions inthesaid Guide andintheamendment sheet therefore
with thefollowing exceptions.
1.1 Services [and processes] shall beexcluded from thecoverage ofthedefinitions.
1.2 Standard
Fortheterm "Standard" thefollowing definition shall apply.
Document approved byarecognized body, thatprovides, forcommon andrepeated use,
rules, guidelines orcharacteristics forproducts, (processes andproduction methods) with
which compliance isnotmandatory. Itmay also include ordeal exclusively with
terminology, symbols, packaging, marking orlabelling requirements asthey apply toa
product.
Explanatory note:
Theterms asdefined inISO/IEC Guide 2cover products, processes andservices. This
agreement deals only with technical regulations, standards andconformity assessment
procedures related toproducts (processes andproduction methods). Standards asdefined
byISO/IEC Guide 2may bemandatory orvoluntary. Forthepurposes ofthisAgreement
standards aredefined asvoluntary andtechnical regulations asmandatory documents.
Standards prepared bytheinternational standardization community arebased onconsensus.
This agreement covers also documents thatarenotbased onconsensus.
Technical regulations
(tobeworked out)WT/CTE/W/10
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Processes andproduction methods
Means bywhich orconditions under which aproduct advances toitsfinal state.
One ormore planned actions inaseries ofconditions oroperations (e.g. mechanical,
electrical, chemical, inspection, test) bymeans ofwhich amaterial orproduct advances
from onestage toitsfinal state. PPMs include conditions ofgrowth aswell ascontrolled
treatments thatsubject materials orproducts totheinfluence ofoneormore types ofenergy
(e.g. human, animal, mechanical, electrical, chemical, thermal) asrequired toachieve a
desired reaction, change, result orperformance.
PPM Standard (orPPM provision within aproduct orprocess standard)
Standard orprovision thatspecifies theprocess orproduction method tobeemployed inone
ormore stages inthedesign, manufacture, delivery, installation, treatment, orutilization of
equipment, structures orproducts, orthatspecifies methods orconditions inaccordance
with which aproduct istobegrown orraised. Testing orcertification for
conformity with these methods, rather than thecharacteristics ofthefinal product, is
required inconjunction with oneormore steps intheprocess."
2.6 Conformity assessment procedure
Anyprocedure used, directly orindirectly, todetermine thatrelevant requirements in
technical regulations orstandards arefulfilled.
Note: Conformity assessment procedures include inter aliaprocedures forsampling, testing
andinspection; evaluation, verification andassurance ofconformity; registration,
accreditation andapproval aswell astheir combinations.
Conformity assessment procedure
Anytechnical procedure used, directly orindirectly, togive positive assurance thata
product conforms with theapplicable technical regulations orstandards.
Explanatory note:
Forthepurposes ofthisAgreement, possible conformity assessment procedures orelements
thereof are, inter alia, amanufacturer 'sdeclaration ofconformity regarding theproduct or
thequality assurance system used; thesubmission oravailability ofinformation regarding
theproduct orthequality assurance system used; testing orinspection oftheproduct or
thequality system used; certification oftheproduct orregistration ofthequality assurance
system used; application ofamark ofconformity; accreditation oftesting laboratories,
inspection bodies, orcertification bodies; type approval, lotapproval orunitapproval of
theproduct orapproval ofthequality assurance system used; good manufacturing
practices; good laboratory practices; good clinical practices."
143. NG8 metinformally inSeptember andOctober, andon30October 1990 itpresented its
final draft oftheTBT Agreement totheGroup ofNegotiations onGoods forsubmission tothe
Brussels Ministerial meeting (MTN.GNG/NG8/W/83/Add.3/Rev.1). NG8 identified anumber ofWT/CTE/W/10
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outstanding issues itsaidwould have tobesettled through further informal consultations. These
didnotcontain anyreference toPPM-based measures.
144. Inthetextsubmitted totheBrussels meeting, themajority ofthedirect references to
PPM-based measures hadbeen dropped from thetext, butthereferences were retained inthe
definitions. Those parts ofthetextoftheAgreement inthe1990 Draft Final Actwhich appear
relevant inthelight ofpastandlater negotiations read asfollows:
"Article 2:Preparation, adoption andapplication oftechnical regulations by
central government bodies
With respect totheir central government bodies:
2.7 Parties shall give positive consideration toaccepting asequivalent technical
regulations ofother Parties, even ifthese regulations differ from their own, provided
they aresatisfied thatthese regulations adequately fulfil theobjectives oftheir own
regulations.
2.8Wherever appropriate, Parties shall specify technical regulations based onproduct
requirements interms ofperformance rather than design ordescriptive characteristics.
2.12 Except inthose urgent circumstances referred toinArticle 2,paragraph 10,
Parties shall allow areasonable interval between thepublication ofatechnical
regulation anditsentry intoforce inorder toallow time forproducers inexporting
Parties, andparticularly indeveloping country Parties, toadapt their products or
methods ofproduction totherequirements oftheimporting Party.
Article 5Procedures forassessment ofconformity bycentral government bodies
5.9 Except inthose urgent circumstances referred toinArticle 5,paragraph 7,Parties
shall allow areasonable interval between thepublication ofrequirements concerning
conformity assessment procedures andtheir entry intoforce inorder toallow time for
producers inexporting Parties, andparticularly indeveloping country Parties, toadapt
their products ormethods ofproduction totherequirements oftheimporting Party.
Article 6Recognition ofconformity assessment bycentral government bodies
With respect totheir central government bodies:
6.1 Without prejudice totheprovisions ofArticle 6,paragraphs 3and4,Parties shall
ensure, whenever possible, thatresults ofconformity assessment procedures inother
Parties areaccepted, even when those procedures differ from their own, provided they are
satisfied thatthose procedures offer anassurance ofconformity with applicable technical
regulations orstandards equivalent totheir own procedures.WT/CTE/W/10
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ANNEX 1
TERMS AND THEIR DEFINITIONS FOR THE PURPOSE OFTHIS AGREEMENT
1.Technical regulation
Document which laysdown characteristics forproducts, processes andproduction
methods including theapplicable administrative provisions, with which compliance is
mandatory. Itmay also include ordeal exclusively with terminology, symbols, packaging,
marking orlabelling requirements asthey apply toaproduct, process orproduction
method.
2. Standard
Fortheterm "Standard" thefollowing definition shall apply:
Document approved byarecognized body, thatprovides, forcommon andrepeated use,
rules, guidelines orcharacteristics forproducts, processes andproduction methods, with
which compliance isnotmandatory. Itmay also include ordeal exclusively with
terminology, symbols, packaging, marking orlabelling requirements asthey apply toa
product, process orproduction method.
Explanatory note:
Theterms asdefined inISO/IEC Guide 2cover products, processes andservices.
This agreement deals only with technical regulations, standards andconformity assessment
procedures related toproducts processes andproduction methods.
3. Conformity assessment procedures
Anyprocedure used, directly orindirectly, todetermine thatrelevant requirements
intechnical regulations orstandards arefulfilled.
Explanatory note:
Conformity assessment procedures include, inter alia, procedures forsampling,
testing andinspection; evaluation, verification andassurance ofconformity; registration,
accreditation andapproval aswell astheir combinations.
Thefinal phase ofthenegotiations
145. Consultations onfurther revisions totheBrussels textoftheTBT Agreement were taken
upinOctober 1991 under theauthority oftheRule-Making Group. Inthearea ofPPM-based
measures, those consultations focused exclusively onthedefinitions contained inAnnex 1ofthe
Agreement.
146. During informal consultations inOctober 1991, thequestion ofthecoverage of
PPM-based measures bytheAgreement wasdiscussed. Aproposal byMexico toclarify the
coverage ofPPM-based measures inthedefinitions of"Technical regulations" and"Standards"
wasaccepted, andfollowing further discussions itwasagreed thatthewords "orrelated" should
beinserted intothephrase "...products, processes andproduction methods ..."inthree places inWT/CTE/W/10
G/TBT/W/11
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theworking text. Inintroducing itsproposal, Mexico made itclear thattheintent wastoexclude
PPMs unrelated tothecharacteristics ofaproduct from thecoverage oftheAgreement.
Corresponding changes were notmade intwoother places inthedefinitions inwhich similar
phrases appeared. Thedefinitions contained inthetextsubmitted inOctober 1991 tothe
Rules-Making Group (MTN.GNG/RM/W/7) read inpart:
1. Technical regulation
Document which laysdown characteristics forproducts orrelated processes and
production methods, including theapplicable administrative provisions, with which
compliance ismandatory. Itmay also include ordeal exclusively with terminology,
symbols, packaging, marking orlabelling requirements asthey apply toaproduct, process
orproduction method.
2. Standard
Fortheterm "Standard" thefollowing definition shall apply:
Document approved byarecognized body, thatprovides, forcommon andrepeated use,
rules, guidelines orcharacteristics forproducts orrelated processes andproduction
methods, with which compliance isnotmandatory. Itmay also include ordeal exclusively
with terminology, symbols, packaging, marking orlabelling requirements asthey apply to
aproduct, process orproduction method.
Explanatory note:
Theterms asdefined inISO/IEC Guide 2cover products, processes andservices.
This agreement deals only with technical regulations, standards andconformity assessment
procedures related toproducts orrelated processes andproduction methods.
Itshould benoted thatthistextoftheAgreement wasdrawn upontheassumption thatthere
would beaseparate Agreement onSanitary andPhytosanitary Measures.
147. Atinformal consultations held under theauthority oftheRules-Making Group in
December 1991, Mexico proposed thattheword "their" should beinserted intothedefinition of
"Technical regulation". Records ofthose consultations indicate thatMexico stated thechange
would be"intheinterests ofadditional clarity andtoensure thattheAgreement willonly address
anarrow selection ofprocesses andproduction methods". Thechange wasreflected inthetextof
the"Agreement (1991) onTechnical Barriers toTrade" inMTN.TNC/W/FA.
148. InApril-June 1992, theLegal Drafting Group addressed theTBT Agreement. Anote
prepared bytheSecretariat fortheGroup (numbered 940anddated 10June 1992) included the
following drafting suggestion:
"Annex 1,paragraph 2definition oftheterm "standard"
Onthesecond line, itwassuggested toalign thisdefinition with thedefinition oftheterm
"technical regulation" inparagraph 1byreplacing thewords "orcharacteristics for
products orrelated processes andproduction methods" by"orproduct characteristics or
their related processes andproduction methods"."WT/CTE/W/10
G/TBT/W/11
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149. Inan"Informal Note bytheSecretariat" numbered 941anddated 10June 1992 itwas
noted thatatinformal meetings held inApril andMay 1992 theLegal Drafting Group discussed
rectifications totheTBT Agreement andacertain number ofchanges were agreed on. Changing
thedefinition oftheterm "standard" wasnotamong them.
150. Nofurther discussion oftheissue wasrecorded until informal consultations held on
1December 1993 onunresolved points intheDraft Final Acthanded down bytheLegal Drafting
Group. Attheendofthose consultations three points remained outstanding, oneofwhich wasa
proposal byMexico toalign thedefinition of"Standard" with thatof"Technical regulation". All
butoneofthedelegations involved inthose consultations which expressed anopinion stated that
they were prepared toaccept Mexico 'sproposal asanimprovement tothetext. However,
twoother proposals forchanges tothetexttabled bytheUnited States didnotfindconsensus
support, andconsequently thetextremained unchanged. Several delegations involved inthose
consultations expressed aview atthetime thatsince thechange proposed byMexico wasnotone
ofsubstance, they were prepared toleave itinabeyance tobetaken care ofinalegal drafting
exercise which itwasplanned tohold early in1994, after agreement ontheFinal Act.
151. Further informal consultations were held on9and11-14 December 1993 tofinalize the
textoftheTBT Agreement. Many participants expressed reluctance atthispoint tore-open the
texttoanychanges atall. Aninformal, compromise solution covering allthree outstanding points
ofthetextwasputforward during informal consultations among alimited number ofparticipants
on11December. Itcontained thefollowing language forthedefinition of"Standard":
"Document approved byarecognized body thatprovides, forcommon andrepeated use,
rules, guidelines, product characteristics orprocesses andproduction methods related to
product characteristics, with which compliance isnotnecessary."
Thecompromise solution didnotprove acceptable, andthewording for"Definitions" inAnnex 1
oftheTBT Agreement which hadbeen agreed oninDecember 1991 inMTN.TNC/W/FA was
therefore carried forward intotheWTO textoftheAgreement.