FACILITATION Jakarta, April 24-25 2018 Alexandre Larouche-Maltais - - PowerPoint PPT Presentation
SESSION 5 LEGAL ASPECTS OF TRADE FACILITATION Jakarta, April 24-25 2018 Alexandre Larouche-Maltais Senior Trade & Investment Expert Conference Board of Canada Partner: Project Executed by: 2 Outline: Legal aspects of Trade
Project Executed by: Partner:
Alexandre Larouche-Maltais Senior Trade & Investment Expert Conference Board of Canada Jakarta, April 24-25 2018
2
1) TFA Structure
and Institutional Provisions
2) S&D Treatment
Provisions
3) Nature of Obligations
4
A binding instrument, which means that the contracting parties intended to create legal rights and duties; Concluded by states or international organizations with treaty-making power; Governed by international law; In writing.
Source: United Nations Treaty collection
The 1969 Vienna Convention on the law
"an international agreement concluded between States in written form and governed by international law."
5 Bali Agreement on Trade Facilitation
(1) legal scrubbing (2) Adoption of the Protocol of Amendement Ratification and notification to the WTO Acceptation by 2/3
Adoption Authentification Expression of consent Entry into force
July - Nov. 2014 In the process 22 Feb. 2017
135 Instruments of Acceptance deposited (As of 23 April 2018) Indonesia ratified on 5 December 2017
Trade Facilitation Agreement
Preamble Section I – Substantive Provisions Section II – Special and Differential Treatment Section III – Institutional
arrangements
and final provisions TFA Objecti ctives ves
Clarify and improve GATT Art. V, VIII and X Recognize LDCs' particular needs Recognize the need for cooperation
compliance
Administration of Trade
Trade Facilitation Agreement
Preamble Section I – Substantive Provisions Section II – Special and Differential Treatment Section III – Institutional
arrangements
and final provisions Art. Scope
Transparency
Fees and Formalities
Transit
Customs Cooperation
1.1 Publication 1.2 Information available through Internet 1.3 Enquiry Points 1.4 Notification 2.1.1 Opportunity to Comment on New and Amended Rules 2.1.2 Interval between Publication and Entry into Force 2.2 Consultations
5.1 Notifications for enhanced controls or inspections 5.2 Detention 5.3 Test Procedures
Transparency Articles (1-5)
6.1 Disciplines on fees and charges… 6.2 Specific disciplines on Fees and Charges for Customs… 6.3 Penalty Disciplines 7.1 Pre-arrival Processing 7.2 Electronic Payment 7.3 Separation of Release from Final Determination… 7.4 Risk Management 7.5 Post-clearance Audit 7.6 Establishment and Publication of Average Release Times 7.7 Authorized Operators 7.8 Expedited Shipments 7.9 Perishable Goods
Fees & Formaliti ties Articles les (6 (6-10) 10)
control 10.1 Review of Formalities and Documentation Requirements 10.2 Acceptance of Copies 10.3 Use of International Standards 10.4 Single Window 10.5 Pre-shipment Inspections 10.6 Use of Customs Brokers 10.7 Common Border Procedures and Uniform Documentation Requirements 10.8 Rejected Goods 10.9.1 Temporary Admission 10.9.2 Inward and Outward Processing
Fees & Formaliti ties Articles les (6 (6-10) 10)
Other provisions
Trade Facilitation Agreement
Preamble Section I – Substantive Provisions Section II – Special and Differential Treatment Section III – Institutional
arrangements
and final provisions
Special provisions giving developing countries and LDCs special rights ts and which give developed countries the possibility to treat developing countries more favourably bly than
Definition Strengthened S&DT and + effective and
Category A and B
S&D Treatment Articles (13-22)
Trade Facilitation Agreement
Preamble Section I – Substantive Provisions Section II – Special and Differential Treatment Section III – Institutional
arrangements
and final provisions Institutions Multilateral
Trade Facilitation Committee National
Trade Facilitation Committee
S&DT T in WTO Agreements ments S&DT T in TFA
periods
carry out WTO work, handle disputes, and implement technical standards, etc.
decided by individual country
implementation linked with acquisition of implementation capacity
including the financial assistance
Deve velopin ing g and LDCs s having ng favour urab able le treatm tment ent as s compared red to Developed Countries has been an ‘integral al part’ of WTO
Extra Flexibility
Trade Facilitation Agreement
Preamble Section I – Substantive Provisions Section II – Special and Differential Treatment Section III – Institutional
arrangements
and final provisions Cat. Implementation A Implementation upon entry into force B Transition period C Transition period + financial and/or technical assistance Categorization NOT possible !
Developing countries LDCs
up to one year after entry into force
integral part of the Agreement
into force
will then be made an integral part of the Agreement
Indonesia notified
4 August 2018
5.5% 26.1% 49.9% 86.9% 46.3% Indonesia Africa Asia & the Pacific Europe World
SHARE OF CAT. A BASED ON % OF ALL NOTIFIABLE ITEMS
Source: TFAdatabase.org
TFA enters into force
TFA + 1 year
for category B designations
arrangements with Donors on TACB for category C TFA + 2.5 years
implementation dates for category C designations
category C
22 Feb 2017 22 Feb 2018 22 Aug. 2019 INDONESIA IS LAGGING BEHIND !
0.0% 10.4% 15.1% 8.8% 10.0% 0.0% 13.8% 20.9% 4.3% 13.6% 94.5% 49.7% 14.2% 0.0% 30.1% Indonesia Africa Asia & the Pacific Europe World
BASED ON % OF ALL NOTIFIABLE ITEMS
B C NYN
Source: TFAdatabase.org
If a a M Member ber experi perience nces difficul culti ties implementi menting ng by t the defini niti tive ve dates it e esta tabli blishe hed, it should ld notify y the Committee: tee:
before the expiration date Notify fy new w dates and indicate te reasons ns for delay Automa mati tic c exte tens nsion:
(developing) Subseq eque uent nt exte tens nsion
submitted tted to the e Committee tee which ch will give sympatheti thetic c consider derati ation
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Shifting between Cat. B and C Dispute Settlement – Grace Period
Devel elop
g members rs and LDC would have option
t between een categories
Shiftin ting g from B t to C w would contain informa rmati tion
Extens ension
time frame, if n needed ded, through gh Early waning Mechanism sm
for LDCs only
grace period
implementation
Obligation Conditional Obligation Recommendation Possibility or Option Language of the TFA provides for 4 different levels of commitments
Obligation Conditional Obligation Recommendation Possibility or Option
Mandat ator
description of the provision Member has the disc scret retion ion to implement or otherwise Obligato atory ry but the level of obligation has been 'watere tered down' n' by adding some qualifying language 'Best endeav eavor' measure, it is enco cour urag aged that Member should implement the measure.
Each Member shall, to the extent practicable, adopt or maintain procedures allowing the option of electronic payment for duties, taxes, fees, and charges collected by customs incurred upon importation and exportation.
Members are encouraged to measure and publish their average release time of goods periodically and in a consistent manner, using tools such as, inter alia, the Time Release Study of the World Customs Organization (referred to in this Agreement as the "WCO").6
Each Member sh shall, l, to the e extent tent practicab cable le, adopt or maintain procedures allowing the option of electronic payment for duties, taxes, fees, and charges collected by customs incurred upon importation and exportation.
Members are encour courag aged to measure and publish their average release time of goods periodically and in a consistent manner, using tools such as, inter alia, the Time Release Study of the World Customs Organization (referred to in this Agreement as the "WCO").6
7.4 Single Window Members shall endeavour to establish or maintain a single window, enabling traders to submit documentation and/or data requirements for importation, exportation, or transit of goods through a single entry point to the participating authorities or agencies. After the examination by the participating authorities or agencies of the documentation and/or data, the results shall be notified to the applicants through the single window in a timely manner. 23.2 National Committee on Trade Facilitation Each Member shall establish and/or maintain a national committee on trade facilitation or designate an existing mechanism to facilitate both domestic coordination and implementation of the provisions of this Agreement.
7.4 Single Window Members shall ll endea deavour vour to establish or maintain a single window, enabling traders to submit documentation and/or data requirements for importation, exportation, or transit of goods through a single entry point to the participating authorities or agencies. After the examination by the participating authorities or agencies of the documentation and/or data, the results shall be notified to the applicants through the single window in a timely manner. 23.2 National Committee on Trade Facilitation Each Member shall establish and/or maintain a national committee on trade facilitation or designate an existing mechanism to facilitate both domestic coordination and implementation of the provisions of this Agreement.
10.1 Formalities and Documentation Requirements With a view to minimizing the incidence and complexity of import, export, and transit formalities and to decreasing and simplifying import, export, and transit documentation requirements and taking into account the legitimate policy objectives and other factors such as changed circumstances, relevant new information, business practices, availability of techniques and technology, international best practices, and inputs from interested parties, each Member shall review such formalities and documentation requirements and, based on the results of the review, ensure, as appropriate, that such formalities and documentation requirements are: (a) adopted and/or applied with a view to a rapid release and clearance of goods, particularly perishable goods; (b) adopted and/or applied in a manner that aims at reducing the time and cost of compliance for traders and operators; (c) the least trade restrictive measure chosen where two or more alternative measures are reasonably available for fulfilling the policy objective or
(d) not maintained, including parts thereof, if no longer required.
10.1 Formalities and Documentation Requirements With a view to minimizing the incidence and complexity of import, export, and transit formalities and to decreasing and simplifying import, export, and transit documentation requirements and taking into account the legitimate policy objectives and other factors such as changed circumstances, relevant new information, business practices, availability of techniques and technology, international best practices, and inputs from interested parties, each Member shall review ew such formalities and documentation requirements and, based on the results of the review, ensure re, , as appropri riate, te, that such formalities and documentation requirements are: (a) adopted and/or applied with a view to a rapid release and clearance of goods, particularly perishable goods; (b) adopted and/or applied in a manner that aims at reducing the time and cost of compliance for traders and operators; (c) the least trade restrictive measure chosen where two or more alternative measures are reasonably available for fulfilling the policy objective or
(d) not maintained, including parts thereof, if no longer required.