Substance of Accession Negotiations

5.2 Rules

Transparency  back to top

Transparency is a basic principle of the rule of law in general and for the WTO in particular. It is achieved in the WTO through provisions which require publication, notification and the provision of information on relevant matters, for instance by enquiry points. These provisions are specific to each of the WTO agreements.⁴²⁴

Publication

The main principles behind the various WTO provisions on publication are that all relevant measures of general application should be published in such a way as to enable governments and traders to become acquainted with them; that measures should be officially published before being enforced; and that confidential information need not be provided if contrary to the public interest or prejudicial to legitimate commercial interests of particular enterprises. However, each WTO agreement has its own provisions. Some do not contain all of the above elements: the GATS does not, for instance, require that relevant measures must be published before they are enforced. Some agreements contain additional elements: for instance, the Agreement on Technical Barriers to Trade requires that Members publish a notice at an early appropriate stage if they propose to introduce certain technical regulations or conformity assessment procedures and provide an opportunity for consultation on these.

Applicants are expected to provide information about arrangements made for the publication of their laws, regulations, etc.

The practice of Working Parties regarding Protocol commitments has varied and only half the Reports contain commitments on this subject. Nevertheless, the more recent Reports do address this issue and commitments have tended to become more detailed.

Protocol commitments sometimes deal with the WTO provisions relating to both publication and notification. One version reads as follows: “The representative of [X] confirmed that [X] would implement fully Article X of GATT 1994, and Article III of GATS and the other transparency requirements in WTO agreements requiring notification and publication.”⁴²⁵ Some commitments specifically provide that measures will not enter into force before they are published.⁴²⁶

One acceding country entered into a commitment making it clear that “official letters” were not recognized as legal normative documents and would be invalid if they provided for legal normative rules.⁴²⁷

Some acceders have agreed to Protocol commitments requiring them not only to publish the text of measures but also some or all of the following: the names of the authorities responsible for implementing a particular measure, the effective date of the measure, a list of the products and services affected, identified by appropriate tariff line and classification.⁴²⁸

Some acceders committed themselves to publish measures prior to implementation and to provide a minimum period of time for comment before such measures are implemented — in some but not all of these commitments an exception is made for cases of emergency or security or for which publication would impede law enforcement.⁴²⁹

The method of publication is usually specified in the commitment. Some are to be published in an official publication⁴³⁰, some in an official publication or website⁴³¹, and some in both an official publication and a website⁴³². In two cases in which the creation of a website is not foreseen, Protocol commitments provide for the establishment of one or more enquiry points where information relating to measures affecting trade in goods, services and TRIPS (in one case, also foreign exchange measures) could be obtained. These two acceders have also accepted commitments to make available translations of these measures into one or more of the official languages of WTO (English, French, Spanish) not later than 90 days after they are implemented or enforced (in one case) or enacted or issued (in the other).⁴³³

Notification

The WTO agreements contain a large number of provisions requiring Members to make notifications of relevant measures that they have taken (or not taken) — and in some cases of proposed measures.⁴³⁴ The notifications must be made in one of the official languages of the WTO⁴³⁵ and are then translated into the other official languages. These requirements, and the existence of WTO bodies to examine them, are important to the functioning of the WTO rule-based system.

Under this heading, the main aim of members of Working Parties has been to ensure that acceders make the initial notifications required as soon as they become Members of the organization and the standard Protocol commitment is, subject to minor variations: “The representative of [X] confirmed that at the latest upon entry into force of the Protocol of Accession [X] would submit all initial notifications required by any agreement constituting part of the WTO agreements. Any regulations subsequently enacted by [X] which gave effect to the laws enacted to implement any agreement constituting part of the WTO agreements would also conform to the requirements of that agreement”.⁴³⁶

This formula was modified in a Report: “The representative of [X] said that at the latest upon accession, [it]would submit all initial notifications required by the WTO Agreement. Any laws, regulations, or other measures subsequently enacted by [X], and which were required to be notified pursuant to the WTO Agreement, would also be notified in a time and manner consistent with WTO requirements.⁴³⁷

Some applicants have been requested to present draft initial notifications during the accession process and commit themselves to make these notifications immediately after accession.⁴³⁸

One country has committed itself to provide specified information during a transitional period to subsidiary bodies of the WTO which have a mandate covering [its] commitments under the WTO Agreement or [its] Protocol.⁴³⁹

 

Notes:

424. Compare, for example: GATT Article X:1 and 2; GATS Article III:1 and 2; and TRIPS Article 63:1. back to text
425. Viet Nam, para 518; Saudi Arabia, para 305; Nepal, para 147; Cambodia, para 217; Armenia, para 215; Moldova, para 235; Oman, para 150. For two early cases, see Kyrgyz Republic, para 113 and Ecuador, para 65. back to text
426. Tonga, para 180; Viet Nam, para 518; Nepal, para 147; Cambodia, para 217; Panama, para 115; Mongolia, para 44. back to text
427. Viet Nam, para 517. back to text
428. Tonga, para 180; Viet Nam, para 518; Saudi Arabia, para 305; Nepal, para 147; Cambodia, para 217; China, para 332. back to text
429. Viet Nam, para 518 (no less than 60 days); Armenia, para 215 (two weeks); Chinese Taipei, para 219 (60 calendar days); China, Protocol I.2(C) 1 and 3 (a reasonable period); Bulgaria, para 40 (two weeks). back to text
430. Tonga, para 180; Nepal, para 147; Armenia, para 215; China, para 332, Protocol I.2(C); Oman, para 150; Panama, para 115; Mongolia, para 44. back to text
431. Cambodia, para 217. back to text
432. Viet Nam, para 518; Saudi Arabia, para 305. back to text
433. Chinese Taipei, para 217; China, paras 334 and 336, Protocol I.2(C). See the texts of these for the exact language of each. back to text
434. See WTO document G/L/223 and its subsequent revisions. back to text
435. English, French and Spanish. back to text
436. Tonga, para 181; Viet Nam, para 508; Saudi Arabia, para 306; the former Yugoslav Republic of Macedonia, para 247; Armenia, para 217; Chinese Taipei, para 220; Lithuania, para 179; Croatia, para 216; Oman, para 151; Albania, para 160; Georgia, para 172; Estonia, para 136; Latvia, para 124; Kyrgyz Republic, para 168. back to text
437. Viet Nam, para 519. back to text
438. Examples include: China, Annex 5A; Moldova, para 236; Jordan, para 240. back to text
439. China, para 322 and Protocol I.18. Notifications to be made to: Council for Trade in Goods, Council for Trade-Related Aspects of Intellectual Property Rights, Council for Trade in Services, Committees on Balance-of-Payments Restrictions, Market Access (covering also ITA), Agriculture, Sanitary and Phytosanitary Measures, Technical Barriers to Trade, Subsidies and Countervailing Measures, Anti-Dumping Measures, Customs Valuation, Rules of Origin, Import Licensing, Trade-Related Investment Measures, Safeguards, Trade in Financial Services. back to text