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Review of Maritime Transport 2011 - Unctad

Review of Maritime Transport 2011 - Unctad

CHAPTER 5: LEGAL ISSUES

CHAPTER 5: LEGAL ISSUES AND REGULATORY DEVELOPMENTS 131 Figure 5.1. Increasing number of RTAs with trade facilitation measures (cumulative) Number of RTAs 140 120 100 80 60 40 20 0 WTO 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 Year Source: UNCTAD secretariat. (c) WTO negotiations on trade facilitation The majority of the RTAs concluded after the launch of the WTO negotiations on trade facilitation in July 2004 contain measures which are very similar or identical in their content to those considered at WTO – the so-called WTO-like trade facilitation measures. In this case, a parallel can be drawn between regional commitments and multilateral trade facilitation negotiations at WTO. It appears that, to some extent, trade facilitation commitments that are contained in existing RTAs have provided a basis to those currently negotiated at WTO, while on other occasions the draft WTO text may have served as basis for newly negotiated RTAs. 160 For example, a well-established pattern by the United States of including provisions on express shipment in RTAs is mirrored at WTO in the negotiating draft text agreement. Similar observations can be made in the case of the EU’s interest in dealing with authorized traders. Provisions addressing this issue can be found in most of the Closer Economic Partnership Agreements by the EU and likewise advocated by the EU at WTO. Furthermore, a closer look at the Framework Agreement on Trade Facilitation DDA Trade Facilitation in DDA negotiations under the Asia-Pacific Trade Agreement (formerly known as the Bangkok Agreement) reveals that its trade facilitation measures are to a large extent similar to those negotiated at WTO. Figure 5.2 provides a breakdown of WTO-like trade facilitation measures contained in RTAs. 3. The interplay between trade facilitation commitments at the regional and multilateral level Trade facilitation at the regional level can be beneficial also to trading partners outside the region that are not part of the RTAs. It has been argued that trade facilitation measures undertaken regionally rarely have a preferential effect against non-RTA parties, when implemented on the ground. Some trade facilitation measures under RTAs indeed appear to be applied to all the trading partners, not only to those under RTAs. 161 Such measures, for instance, include some transparency provisions, such as public availability of trade-related laws, regulations and rulings, and the use of international instruments to simplify procedures

132 Figure 5.2. Overview of “WTO-like” trade facilitation measures under RTAs Cooperation, information exchange & TA Customs clearance & facilitation Use of ICT - automation & paperless trading Use of international standards Transit & temporary admission Source: UNCTAD secretariat. Publication & enquiry points Advance rulings Risk management Release of goods Express shipment Fees and charges and documents. It is not only more efficient, but also more practical to introduce one Internet portal where all the necessary trade-related information is available in one place for all the trading partners, rather than publicizing information on a preferential basis. Another example might include creation of a paperless trading environment or a national single window under an RTA, both of which in practice are usually applied equally to trade flows from all trading partners and not only those under an RTA. Are regional trade facilitation commitmets always discriminatory? On the other hand, due to the inherent nature of RTAs, many other trade facilitation provisions have shown to be applied on a preferential basis, i.e. solely among the parties to the RTA in question. This may potentially lead to discrimination against other trading partners. Such discrimination can be found in two forms: (a) The first type of potential discrimination lies in the nature of an agreed trade facilitation commitment that is exclusively agreed between members of an RTA. For example, this can include the provision of advance REVIEW OF MARITIME TRANSPORT 2011 0 10 20 30 40 50 60 Number of RTAs rulings, harmonized customs procedures, fees and charges, or the application of regional standards. Trade facilitation measures discriminate against non-trading partners that are WTO members by lowering trade and nontrade barriers within their RTA partners; (b) The second type of discrimination could potentially be in the differentiated level of preferential trade facilitation measures, which vary across a maze of different RTAs. This means that individual countries or regional groupings are parties to two or even more RTAs that apply similar trade facilitation measures with a different scope, depth and language. Put differently, trade facilitation measures covered by different RTAs, which include the same countries, if not harmonized, might potentially discriminate among the different trading partners under different RTAs, and at the same time against the non-members of RTAs. An interesting example of the second type of discrimination is the procedure and administration of advance rulings. Some remarkable differences and divergences were found in the scope, depth and

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