Đề cương luật thương mại quốc tế
Đề cương luật thương mại quốc tế
Môn: Luật thương mại quốc tế (WTO law)
Trường: Đại học Luật Thành phố Hồ Chí Minh
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Tác giả:
Thông tin :
Môn:
Luật thương mại quốc tế (WTO law)
Trường:
Đại học Luật Thành phố Hồ Chí Minh
Tác giả:
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1. INSTITUTIONAL DIMENSIONS: KHU VỰC THỂ CHẾ (GATT)
1- The WTO in its historical & legal context General Agreement on Tariffs and Trade – GATT 1947
- Concluded on 30/10/1947 as a historical accident
+ First effort to establish international rules
+ Governing trade in goods among 23 countries
+ An interim tariff reduction agreement
- GATT 1947 is a provisional legal instrument
+ A Protocol of Provisional Application from 1 Jan 1948
+ Functioned without a formal organizational framework
+ ‘Grandfather clause’: it needs only be applied to the ‘fullest extent not inconsistent with the tenor of the
GATT Agreement’ (against protectionist measures)
1.1- The GATT: Objectives – Functions
- Establish a multilateral trading system that became progressively liberal + Progressive Tariff Cuttings
through successive rounds of negotiations - Administers multilateral trade agreements + Forum for trade negotiations + Handling trade disputes
+ Monitoring national trade policies
+ Technical assistance & training for developing countries and least developed countries
+ Cooperation with other international organizations
* The evolution from GATT 1947 to the WTO 1995
- At GATT, tariff cuts in 8 rounds of negotiations
- Development (the mandate, rules, members) over time:
+ 1947-1961 tariffs only (23 -26 contracting members)
+ 1964-1967 tariffs, anti-dumping measures (62 members)
+ 1973-1979 tariffs, non-tariff measures (NTMs) but ‘framework agreements’ (102 members)
+ 1986-1994: the mandate was expanded (123 members)
+ Rules on trade in goods (tariff and non-tariff measures
+ Rules on trade in services and trade–related aspects of Intellectual Property Rights
* Marrakesh Agreement Establishing the World Trade Organization - The WTO Agreement
- WTO is the key international economic institution & treaty operation in the trade field and legal obligations
- The WTO global trading system.
+ Based on GATT 1947 - Established on 1 Jan 1995 (The Final Act Embodying the Results of the Urugoay
Round of Multilateral Trade Negotiations)
+ Location: Geneva, Switzerland (625 Secretariat staff)
+ Membership: 164 countries (as of 23/7/2016)
+ Budget: 200 million Swiss francs (for 2015)
* The WTO: Objectives & Legal framework
WTO Objectives - the Preamble
- Trade liberalization/Promotion of free trade
- Progressive liberal through rounds of negotiation
Legal framework – Art II
- Annex 1- Multilateral Trade Agreements
- Annex 2- Dispute settlement Understanding
- Annex 3- Trade Policy Review Mechanism
- Annex 4 –Plurilateral Trade Agreements
1.2. Organizational structure of the WTO - Functions –Art III
- Organizational structure: Art IV
+ The highest authority: Ministerial Conference
+ The standing body: General Council with functions
+ Establishing rules & procedures for itself & Committees
+ Overseeing the enforcement of WTO rules through mechanism of dispute settlement (DSB)
+ Being responsible for Trade Policy Review by members
+ Other Councils under guidance of General Council
2- Decision making in the WTO
- Voting power & basis?
- Mechanism/Rules of decision making?
+ Consensus system as GATT 1947 – Art IX
- Matters cannot be arrived by consensus?
+ Major voting – when 2/3? When 3/4? – Art XII, When negative consensus? 3 – WTO Membership
3.1- Accession - Why joint the WTO?
- Enjoy trade concessions made by all members under MFN
- Enjoy no quantitative restrictions and transit rights in trade
- Enjoy binding dispute resolutions – Challenge other members
- Have the same standing at table as big neighbourers
- Lock in domestic policy reforms * Notes:
- Gains from accession can be substantial but membership does not guarantee success in world trade
- ‘Noodle bow’ and difficult implementation
* VIETNAM accession to the WTO ( 1995 – 2006) - Processes
+ Application, bilateral and multilateral trade negotiation + Admission and ratification - Legal obligations
+ Report of the Working Party on the Accession of Vietnam WT/ACC/VNM/48 (27/10/2006)
+ The Memorandum on the Foreign Trade Regime of Viet Nam (WT/ACC/VNM/2)
+ Legislative texts and other information provided by Vietnamese authorities/Revisions
+ Websites of WTO, of Vietnam government, of VCCI (WTO centers), Ministry of Commerce
* Vietnam’s negotiating terms of market access
- VN was committed to upholding economic and legal principles of the GATT/WTO as
the basis for its trade policies
- VN has to revising trade policies to adapt to the principles – legal and administrative reforms
- VN has to comply with its accession commitments and report the committed legal revision to the WTO
+ Trade Policy Review Report by Vietnam on 13/8/2013 (i.e. Economic
environment, Trade Policy Framework, Trade policies and practices by import and export measures)
3.2- Members’ obligations - ‘Single Undertaking’: Why single undertaking?
- Agreements on non tariff barriers concluded at the Tokyo Round were not adopted by
all, being applied by countries who agreed to be bound
=> A different approach: ‘Single undertaking’ at the Urugoay Round negotiation is to
make sure certain multilateral agreements negotiated were to be adopted as a whole
- A ‘Package Deal’?
What is ‘Package Deal’?
- No preservation by any member to all multilateral trade agreements as listed in the
Annexes 1, 2 and 3 (Art II – the WTO Agreement)
- 04 optional plurilateral trade agreements listed in Annex 4 – just compulsory to those
members who adopted and agreed to be bound
- Compliance with the WTO regulatory framework in the course of domestic implementation
* Membership: types of legal obligations
WTO multilateral trade agreements
- Basic principles of GATT, GATS, TRIPs
- Trade rules in specific WTO agreements
- Authoritative interpretations by WTO competent bodies
Reports of GATT/WTO dispute settlement
- Panel/Appellate Body’s Interpretations - Rulings and Recommendations
Specific commitments of market access
- Member’s ‘Schedule of Concessions’ (GATT Art II)
- Member’s ‘Schedule of Concessions under GATS
- Obligations to negotiate further tariff reductions
* Note: WTO encourage members to convert non-tariff barriers to tariff barriers * Recap:
What is the WTO generally?
- A systemic regulator against protectionism
- Provide a permanent forum for negotiations - The WTO has:
+ A sophisticated and strong institutional structure
+ A clear, rule-based multilateral trading system - trade rules
+ A strong dispute settlement mechanism
- The GATT is ‘updated’ in the WTO system
+ Still built around the GATT key disciplines
+ GATT 1947, as modified by the GATT 1994 and other WTO Agreements, still central
+ Additional agreements (i.e., product standards/safety, energy ratings, labelling
requirements; SPS quarantine and food/plant safety measures)
2. SUBSTANTIVE WTO LAW (MFN, NT, Difference between CU & RTA) 1 - The WTO legal framework
1.1-What is WTO law? The law of WTO is the ‘hardcore’ of International Economic Law
- International economic law is defined as covering international rules pertaining to
government regulations on all economic matters.
- WTO law is comprised of international trade rules and disciplines governing trade
relations among Member States of the WTO (i.e., trade in goods, food, health, transport, communication…)
* Results of the Urugoay Round of Multilateral Trade Negotiations (1986-1994) - Trade in goods - Trade in services
- Aspects of intellectual property rights,
a. Not all economic matters are governed by WTO law:
- Natural resources, private commercial transactions
- International finance, monetary matters, nuclear energy
- Sustainable environment, human rights…
=> GATT 1947 remains in the WTO
- The GATT 1947 is still there!
+ GATT 1994 incorporates, updates and amends GATT 1947 (Some provisions are
modified by other agreements/Understandings, Marrakesh Protocol)
+ Remove GATT waivers (Agriculture and Textile Agreements) but Treatment of subsidies
+ Additional provisions on non-tariff barriers (TBT, SPS)
- Legal obligations: NO PICKING AND CHOOSING + An all or nothing deal
+ Members of the WTO are bound by all compulsory agreements (Annexes 1-3). 1.2- Sources of WTO law
- Primary rules: multilateral trade agreements within the WTO (principles, trade rules and disciplines of WTO agreements) - Other sources:
+ Provisions in the GATT 1947 as modified by legal instruments entered into before the WTO Agreement
+ Other relevant documents under the GATT 1947
+ Understandings contained in the Annexes 1,2,3
+ Decisions, procedures and customary practices followed by the Contracting parties to
GATT 1947 and the bodies established in the framework of GATT 1947
* Principles, rules, legal text under The WTO Agreement
- ‘WTO covered agreements’ (Annex 1, 2,3 – Annex 4)
+ A rule-based global trading system completes with its own dispute resolution procedures
+ GATT’s broaden coverage and wide-ranging governing scope: trade in goods (GATT
1994); trade in services (GATS); trade related aspects of intellectual property rights (TRIPS)
+ About 550 pages of legal text: principles, trade rules and disciplines about tariff barriers
TBs, non tariff barriers NTB, trade facilitation, schedules of concession made by members under WTO agreements. * Free trade Principles
- Not to discriminate directly on the basis of product’s origin
+ Most-favored-nation treatment (MFN) + National Treatment (NT)
+ To give certain exceptions to MFN & NT rules
+ To ensure fair trading/competition rules
- To reduce tariffs and eliminate import restricting measures (market access rules)
- To ensure transparency in trade law and regulations and fair decision making (procedural rules of law)
- To grant special and different treatment to developing andleast developed countries
Secondary sources – Members’ specific commitments
- Subordinate to the WTO agreements
+ GATT/WTO authoritative interpretations
+ GATT/WTO adopted reports of dispute settlement
+ International law - Non-WTO agreements
+ Academics writings about the WTO and its law
- Specific rules of market access from WTO members
+ National schedules of tariff concession for trade in goods (under GATT)
+ National schedules of concession for trade in services (under GATS) 2- Basic
requirements of the GATT/WTO - The four ‘Must’:
+ To adhere to the clause of MFN
+ To adhere to the clause of NT
+ To refrain from maintaining or introducing quantitative restrictions – Rule of liberal trade
+ To adhere to bound rates contained in the Schedules of
concessions - Procedural requirement
+ Transparency of trade laws, regulations, decision making, and dispute
settlement * The core (legal-economic) principles 1- Non-discrimination - Most- favour – nation - National treatment - Exceptions 2- Trade liberalization - Reciprocity - Market access
- Binding and enforceable commitments 3- Transparency
4- Balance of rights and obligations
=> Why need the core principles?
The economic-legal principles are fundamental for:
- Negotiation: pre-accession, post-accession
- Implementation – legal compliance + International level + Domestic level
- Dispute settlement: WTO related issues - Domestic policy reforms
+ Law revision – Law amendment
+ Conflict of laws and legal harmonization
2.1- Non-discrimination principle: Nguyên tắc không phân biệt đối xử Definition
- Equal treatment – Preamble –The WTO Agreement
- The ‘cornerstone’ of the GATT/WTO - Foremost obligation for WTO accession - Economic commitments
on reducing tariffs and non tariff barriers Two key rules/regimes
- MFN clause: treating all members equally or no less favourable - NT clause: treating foreign
goods/companies and local goods/companies equally 2.1.1– MFN rule/clause * Definition
- Privileges exchange among member nation states - Key rules: Art I – GATT Art II – GATS Art IV- TRIPS * Aims
- Equal opportunity for market access
- Reduction of conflicts - Non-commerce values
- General guidance for domestic commerce rules
* Main content/requirements
- Article I.1 of the GATT 1994
+ Main idea: WTO members should always receive the best treatment available * MFN Obligations
- Must extend any trading preferences given to any State, to all other members
- Cannot discriminate between products on the basis of product origin …‘to the like product
originating in or destined for the territories of all other Member’
* MFN clause applies to trade preferences
- Trade preferences or measures (in any form) are subject to the MFN clause: + Laws, rules, regulations,
procedures, decision, administrative guidance, etc. + Border measures (tariff and non-tariff ):
+ Internal measures (Art III .2 and Art III.4)
i. Fiscal measures (taxes and charges)
ii. Non-fiscal measures (management requirements)
iii. Border-related measures (value-added tax, excise tax)
* Requirements of non-discrimination
- Immediate and unconditional application of the best trade measures available - Compliance of trade
measures in law (de jure) not enough but also in practical application ‘de facto’ - Extension of equal
treatment based on the determination of ‘like product
=> MFN applies to ‘Like product’
- No general criteria given by the WTO for application of the MFN clause under Art I.1 of the GATT but
‘Case – by – case’ application
- Degree of ‘likeness’ required varies depending on provisions of a number of WTO agreements
- Common criteria used in the GATT/WTO + Product end-uses
+ Consumers’ tastes and habits
+ Product properties, nature and quality
+ Tariff classifications for purpose of customs duties 2.2 – NT rule/clause
- Main idea: Once they cross the border, imported goods should face the same conditions of competition as the like domestic products - Aims:
- Equal opportunities for effective competition
- Equal conditions/domestic-foreign companies
- MFN protection via internal measures
- General guidance for domestic commerce rules
* NT applies to measures :
- Internal measures in any form:
+ Laws, rules, regulations, procedures, decision, administrative guidance, etc.
+ Any measure that affects production, distribution, marketing, sale or delivery of a goods or service
+ Fiscal measures (taxes and charges)
+ Any measures made by central, regional and local authorities
+ Application to imported products, foreign services and service suppliers * Main content/requirements
- Read carefully Art III of the GATT 1994
+ Art III.1: Chapeau with general principles – Its about the conditions of competition
+ Art III.2: Regulates ‘Internal taxes’ or ‘other internal charges of any kind’:
i. ‘like domestic products’: must be subject to the same tax
ii. ‘directly competitive or substitutable products’: should be similarly taxed (Interpretive note to Art III.2)
+ Art III.4: ‘Treatment no less favourable’ in respect of ‘all laws, regulations and requirement affecting
their internal sale, offering for sale, purchase, transportation, distribution or use’.
* When and how to apply?
- Once an import item has entered commercially into the market, having met all customs
levies and duties, the import item (and foreigners) has to be treated as if it is a national product (and locals)
Treating the foreign and the domestic equally :
- Foreign products and domestic products,
- Foreigners and one’s own nationals
- Prohibiting any requirements of local content (any government measure which would
require industries to source their components or inputs for production only from national producers)
* Requirements of non-discrimination
- Fiscal and regulatory measures ‘should not be applied to imported or domestic products
so as to afford protection to domestic production’
- Internal taxes, internal charges not in excess of those applied to domestic products (or
less favorable taxation to “like products” of foreign origin once they have entered the territory).
- Directly or indirectly to ‘like’ domestic products
- Compliance of measures ‘as such’ (De jure) not enough but also in actual application of
fiscal and regulatory measures (De facto)
- For the 1st obligation ‘not in ‘excess’
+ Refer to ‘difference in the total amount payable that has been affecting
competition opportunities’
+ ‘For the 2nd obligation ‘not to afford protection to domestic
production - ‘Difference’ after using the test ‘Aims & Effects
* Two meanings of ‘like’ product
Art III seeks to prevent discriminatory treatment of ‘like’ domestic product’
- The focus is used when identifying the ‘like’ product’ corresponds each of the two obligations
- Narrow meaning: focus on product itself
- Broad meaning: focus on whether the products are substitutable and competitive - Case study:
US- Tuna Dolphin (GATT before the WTO)
Dolphin-friendly v.s Dolphin unfriendly/Tuna EC-Asbestos
Asbestos-containing fibre cement sheeting v.s Fibre cement sheeting that does not contain asbestos
- Similarity: no discrimination/no less favorable
+ Aim: equal opportunities of market access and competition
+ Legal basis: GATT, GATS, TRIPs
+ Coverage: fiscal and regulatory measures
+ Requirements: ‘likeness’; ‘de jure’ and ‘de facto’
- Difference: the coverage
+ MFN (State - States) >+ MFN (all trade measures) >< NT (internal measures)
+ MFN (at customs/ border) >< NT (post-clearance)
+ MFN (narrow likeness) >< NT (broad likeness)
+ MFN (external origin) >< NT (internal origin)
3- Key exceptions to non-discrimination rules
- General/horizontal exceptions - Specific exceptions + National security
+ Economic Emergency/‘Safeguard’ + Regional Integration + Balance of payment + Economic development
+ Protection of infant industry
+ Trade preferences for underdeveloped economies
3.1- General Exceptions - GATT Art XX - Art XX - GATT 1994
+ General idea: a country can establish that its trade restrictions satisfy Art XX
then they may impose trade restrictions that otherwise breach key disciplines of GATT
- Art XX is a ‘defense’, it will ‘save’ a measure that otherwise breaches one of the GATT
obligations – ‘Safety vales’
+ If a measure breaches the NT obligation Art III, it will be permitted if it satisfies requirements of Art XX
+ A complaining country must establish the breach - the burden of proof rests with
the country wishing to establish it * Required conditions
- Chapeau clause – 1st Sentence Art XX ?
- ‘When and how to apply? Does the restrictive measure fall within the scope of one of
the paras (a) - (j)? If yes, what is the objective?
* When and How to provoke?
- Countries may try to fit their measure into more than one exception listed under Art
XX - Important differences between the ‘thresholds’ applied in the different paragraphs + ‘relating to’ (para (g) + ‘necessary to’ (para (a) - Some cases:
- US - Tuna/Dolphin ; US – Shrimp
- EC – Asbestos ; EC – Seals
3.2- Exceptions specific to the MFN rule
- Preferential Trade Agreements (PTAs) + Regional Trade Areas (RTAs) + Customs Unions (CU)
- Trade preferences for developing country and least developed country
members + “Enabling Clause” - 1979 Decision
+ Special & Different treatment) - Historical Preferences - Cinematographic Films
* WTO’s MFN rule interfaces A new trend of trade policies -
The explosion in numbers of PTAs (585 notified to WTO 2014)
+ In Asia: more than 350 in force and more under way
+ Emergence of a new generation of FTAs
- Defensive response to proliferation of PTAs
+ Uncertainty over multilateral WTO system
+ Improve productivity (especially in face of emerging market
growth) + Deeper integration with key trading partners now necessary
+ Promotion of ‘behind the border’ reform
+ Problems of ‘spaghetti bow’ or ‘noodle bow’
+ Link between PTAs and poverty
* ‘Noodle bow’- A very messy system for global trade
- The WTO must deal with explosion of Free Trade
Agreements/PTAs + Most take WTO rules as bedrock to FTA rules
+ WTO rules cover more than just tariffs
- Dispute settlement is legally binding and frequently used by all parties
- Challenging new issues like climate change and trade
- Deeply complex negotiating environment
* Regional trade arrangements – A preferable policy
option - Trade policy options: + Multilateral: WTO
+ Trans-regional: APEC –CPTPP - – ASEM
+ Regional: EU– ASEAN – NAFTA – MERCOSUR + Sub-regional: CACM
+ Bilateral: ASEAN+3; ASEAN +1; EVFTA
- Regional trade areas (RTAs) are prefer to global trade – Also Customs Union (CU) *
WTO trade rules vs. Members’ preferred policy options
- The WTO is a systemic regulator again protectionism under the core principles and rule of law
- MFN rule (GATT Art I) requires to extend trade deal given one member to others
- Regional Trade Areas(RTAs) and Customs Union (CU) are ‘discriminatory’ but are
exempted from the MFN rule (GATT Art XXIV – GATS Art V)
+ RTAs/CU grant preferential treatment to the ‘within’ members – discriminate others
+ WTO rules regulating RTAs/CU have been pretty effective to facilitate trade.
* Why exceptions? Definition of a legal RTA or CU
- RTAs/CU: ‘reciprocal and discriminatory actions by governments to liberalize or facilitate trade’
- Contain ‘reciprocal’ obligations (not the same as equal)
- Forms: FTAs – new generation of FTAs - What is an RTA?
+ Action by governments to liberalize or facilitate trade on a regional basis’
+ RTAs/CU grant preferential treatment to the ‘within’ members – discriminate others
+ WTO rules regulating RTAs/CU have been pretty effective!
* What happens when Members enter a RTA/CU?
- Parties (developed and developing country members) must invoke the following provisions:
+ Trade in goods: GATT Art XXIV
+ Trade in services: GATS Art V
- Parties must comply with the relevant conditions:
+ Intra - must facilitate trade between the parties (GATT Art XXIV para.4 )
+ Extra - must not raise barriers with states outside the agreement (GATT Art XXIV para.8 )
+ Task: read carefully GATT Art XX with particular attention to para.4 and 8 – Cases in the Study Guide
* Enabling Clause’ of 1979 Decision– GATT Part IV
Same legal obligations – But (Merit) Preferential Trade Arrangements for less-developed countries
- Tariff Preferences from developed countries to developing country Members – - The
Generalised System of Preferences – GSP
- More favourable treatment with respect to Non-tariff measures (NTMs)
- Different regional or global arrangements between “less-developed
countries”/developing countries
- Special treatment for ‘least developed countries (LDCs)
- Certain conditions must be fulfilled in order to grant preferences (e.g non
discriminatory)-‘Asking and Giving?
* Exceptions specific to the NT rule
- Historical Preferences - GATT Art III:3
- Government Procurement - GATT Art. III:8(a)
- Production subsidies - GATT - GATT Art. III:8(b)
- Prejudicial effect of internal price measures - Art. III:9
- Cinematographic Films - GATT Arts. III:10, IV
RULE OF MARKET ACCESS: QUY TẮC TIẾP CẬN THỊ TRƯỜNG (type of
tariff, GATS, Rules of origin ROO)
4.1- Concept of market access
a. What is market access?
- Extent to which a good or service can compete with locally-made product in another market
- The totality of government- imposed conditions (regulations, measures) under which a
product from a country may enter to another country under non-discrimination conditions
4.2 – Market access for Trade in GOODs
Trade in goods is the central of global trading system
- 3 groups of rules governing market access:
+ Rules on customs duties/fees, internal taxes
+ Rules on import bans, quantitative restriction
+ Rules on other non-tariff barriers (import licensing, customs procedures, subsidies,
technical barrier to trade, sanitary and phyto-sanitary measures)
* Note: protection to domestic industries only through Tariffs, not Non-tariff measures
4.2.1 Rules on Customs duties
- Tariff negotiations – Art XXVIII bis
+ Basic principles to govern tariff negotiations
- Binding of Tariffs – Art II
+ Commitment not to raise tariff rate above levels specified in the Schedules of tariff
concessions/customs duties applied cannot exceed levels at which they are bound
- Modification of Schedules – Art XXVIII
+ Enable to modify or withdraw tariff concessions included in the Schedules + Bound
tariffs cannot be increased without compensation
* Tariff negotiations in the GATT/WTO
- Market access via negotiation –progressive liberal
+ 8 Rounds of multilateral tariff cutting since 1947
+ Members’ tariff cuttings through negotiation for the WTO accession - Schedules of concessions
- Types of tariffs for negotiation and commitment: + Ad valorem duty + Non-Ad valorem duty
* Type of tariffs – Tariff Item number (HS code)- …% - Ad Valorem duty
+ A percentage of the value of imported goods
+ A duty of 10% means the duty is 10% of customs value of goods. An imported
shipment of feed valued at $200,000 would attract a 10% ‘ad valorem’ duty of $20.000 - Non-Ad valorem duty
+ Example of specific duty: a customs duty which is not related to the value of the
imported goods, but to the weight, volume etc of the goods
* Administering MFN tariff bindings: quản lý ràng buộc thuế quan MFN
Schedules of tariff concessions containing maximum tariff levels (bound rates) for imported products - Administration by Members:
+ Can not apply a tariff rate “Applied rate’ higher than the “Bound rate’ indicated in the Schedules (GATT Art XXVIII)
+ Must apply the same rate on imports from all WTO members - MFN tariff bindings
+ Cannot modify the bound rate without compensation (GATT Art XXVIII) * Structure
of a Schedule of concessions - Part I- MFN Rates of duty + Section 1 – Agriculture + Duties + Tariff rate quotas + Section 2- Other Products - Part II-Preferential rates
- Part III- Non-tariff concessions - Part IV- Subsidies
- In general, developed states have lower tariffs
+ Domestic consumers benefit from lower tariffs
- The gap: Applied rates in the national schedule usually much lower than Bound rate - why?
+ Once tariffs are bound, cannot go above the rate - Except in few circumstances
+ Reason for reluctance to bind at low levels
- Tariff peaks can be very high – from 15%
Certain taxes and charges may be applied in addition to ordinary customs duties (MFN tariffs) - GATT Art II:2
+ Equivalent of Internal tax (i.e. border tax adjustment)
+ Anti-dumping or Countervailing duties
+ Fees ‘Commensurate’ with the costs of services rendered
- GATT Art II: 1(b) existing ‘other duties and charges’
E.g., statistical taxes, foreign trade fee recorded in the Schedule at the end of
Uruguay Round (Understanding on Art II:1(b)
- Bound tariff rates found in ‘Schedules’ for Every WTO Members and Every product – tariff item number/HS Code
+ Tariff duties on imported goods are collected by Customs
+ The Harmonized System on description and coding of goods (6 digits) is used to
find HS Codes (tariff item numbers)
- Government uses tariffs to protect selected industries and sectors
* Trade remedies as exceptions to MFN tariff bindings: Các biện pháp phòng vệ
thương mại là ngoại lệ đối với các ràng buộc thuế quan MFN
In principle, applied rates cannot be higher than bound rates (ordinary customs duties) but
- Renegotiations without compensation (Art XXVIII)
- Exceptional trade remedy duties/more import duties
+ Safeguard Measures ( GATT Art XIX)
+ Countervailing duties (GATT Art XVI)
+ Anti dumping duties (GATT Art VI GATT)
- Balance of payment difficulties (Art XII, Art XVIII.b)
4.2.2 Rules on Non-customs duties: Quy định về phi thuế quan - Prohibition of quantitative restrictions (Art XI)
- Customs valuation (Art VII GATT)
+ Agreement implementing GATT Article VII on customs valuation (CVA) + For purpose of Customs duties - ad-valorem duty:
+ Transaction price paid or payable to purchaser/importer under international sale contract
+ Contract price among related parties – adjustment with methods (identical or similar value, computed value…)
- Tariff classification - HS code
+ Tariff Number Item in Schedules of Tariff Concessions
+ HS Code is a non-WTO Agreement but almost all WTO members use its rules of goods classification to
negotiate concessions of tariff reduction
- Rules of origin ( GATT Art V)
a) What are rules of origin?: Laws, regulations and administrative determinations of general application
applied to any WTO member country to determine the country of the good Two types:
- MFN rules of origin (non-preferential rules);
- Preferential rule of origin (for PTAs)
* The Agreement implementing GATT Article V on Rules of Origin (ROO) b) Why rules of origin?
- ROOs are used to determine where a good/item comes from (Originating country’ good) Conditions
to qualify a good as ‘originating’? - Purposes of ROOs:
+ Eligibility for MFN treatment
+ Anti-dumping, countervailing duties or Safeguard actions
+ Requirements for marks of origin
+ Discriminatory quantitative restrictions + Trade statistics
* Conditions for a good qualifying as ‘originating’
Three ways to qualify a good as ‘originating’:
- It can be a ‘wholly obtained’ - within one country
+ No part of it originates outside of the country – no matter whether it is processed or not
(Eg. Minerals, agricultural commodities, animals)
- It can be a ‘substantially transformed’ – more than one
- It has been sufficiently transformed in the exporting country to qualify as ‘originating’ 4.3 – Trade in
SERVICES - GATS Agreement
GATS is the new legislative venture of the WTO:
- To make it easier to trade services across borders
- To unleash new sources of economic growth and development
- To benefits consumers with wide services at lower prices and better quality - To provide domestic firms with new opportunities
- To help ensure that foreign firms and service providers are treated more like domestic ones
- To make trade in services more transparent
4.3.1- The GATS: its role and structure
- GATS provides framework for handling trade in services
- Liberalization of services trade through all services sectors
- Impact on members’ services sectors as no existing private law agreement in the services areas that
corresponds to the Vienna Convention on International Sale of Goods – CISG
4.3.1- The GATS: its role and structure
- GATS is a set of rules and procedures
+ General obligations that are binding on all members
+ Annexes on some sectors in greater detail
+ Specific commitments (promises of liberalization) on market access and national treatment
+ National Schedules of each member
* Structure of the GATS framework agreement
General obligations under GATS (Art I - Art XXIX) - Scope and definition: Art I
- General obligations (Art II to XV)
- Specific commitments (Art XVI to XVIII)
- Progressive Liberalization (Art XIX to XXI)
- Institutional Provisions (Art XXII to XXVI)
- Final provisions (Art XXVII to XXIX)
* The framework agreement
- Annexes covering certain sectors or policy-related issues: + Financial services + Movement of Natural persons + Telecommunications + Air-Transport Services
- Exemption to general obligations
+ Schedules of specific commitments of market access that are negotiated by each member governments
+ The list of exemptions from MFN submitted
* Key provisions of the GATS
- Immediate and unconditional MFN (Art II)
+ List of exemptions: danh sách miễn trừ
- Transparency requirements (Art III) - Economic Integration (Art V)
- Domestic administration (Art VI)
- Developing countries (Art IV- Part IV)
- Recognition (Art VII) – Exemption (Art XIV)
- Safeguard balance of payment (Art XII)
- Monopolies (Art VIII) –Unfair trade competition (IX,X, XV)
4.3.2 - Administering the GATS by Members– Issues - Conceptual issues:
+ No definition of ‘services’ – Services are usually regulated by input – Goods are regulated by output of production
+ ‘Trade in services’ is the cross-border supply of a service through any of four modes of services supply (Art I para. 2)
+ Service transactions also involves the cross-border movement of capital, labor and investment rights
* Administering the GATS - applies to measures
- Laws, rules, regulations, procedures, decisions, administrative guidance (domestic regulations )
- All services and service suppliers (except government services and measures affecting air traffic rights)
- GATS regulates market access, ultimately rules about business establishment (of new services industry)
and investment regulations in foreign markets
* Administering the GATS - Modes of services supply:
- Mode 1- cross-border trade (services flow across the order via telecommunication, post, etc)
- Mode 2 – consumption abroad (eg, residents of one member country travel to another for tourism, education, healthcare)
- Mode 3 – commercial presence (service providers of one member set up operations in another – foreign investment)
- Mode 4- movement of natural persons (temporary entry of individual service suppliers)
- There is no tariffs on services, no border inspection as there is with customs administration
- There is no obvious means to offer acceptable protection in the area of services
- The most common form of protection is the refusal of establishment rights (eg banking, air transport…)
- Services issues are about different styles of domestic regulation
- Barriers to services trade – each sector + Government imposed barriers
+ Services suppliers’ imposed barriers
+ Anti-competitive arrangements imposed by multinationals or monopolists themselves
- Many input regulations are not barriers:
+ Qualifications that lawyers should have
+ Limitations on lawyers ability to enter into joint arrangement with foreign law firms
+ Areas that lawyers should be allowed to practice in overseas…
4.3.3- Market access via negotiations of NT treatment: Tiếp cận thị trường thông qua đàm phán đối xử NT
Using similar concept of ‘market access’ (the extent of competition) for GOODs Trade, but some
variations for liberalising SERVICES Trade:
- National treatment is not a general obligation but Members’ commitments in National Schedules
- Commitments are undertaken with respect to each of the four Modes of services supply
- No less favorable NT than that provided for under terms, limitations and conditions indicated in the Schedules
- Possible for additional commitments to the Schedules with regard to standards, regulations
- Possible renegotiation of services trade commitments
* Gradual approach of market access (con’t): Từng bước tiếp cận thị trường ‘Step by step’ opening
of domestic market
- Different levels/NT limitations for sectors: + Transportation + Financial services + Telecommunication + Professional services + Logistics + Distribution services
+ Key rules: MFN, NT, transparency, non-quantitative restriction, non-commercial presentation: Các quy
tắc chính: MFN, NT, minh bạch, hạn chế phi định lượng, trình bày phi thương mại
* Schedules of commitments under the GATS – Art XVI: Within six types of limitations from
Members’ domestic regulations on business establishment of new services industries and investment
regulations for foreign suppliers – No more - Numbers of foreign suppliers
- Total value of transactions or assets
- Numbers of operations or quantity of output
- Numbers of natural persons supplying a service
- Type of legal entity or joint venture
- Maximum participation of foreign capital
* Gradual approach of market access (con’t)
- Structure of Schedules of commitments:
+ Services Item Number vs. Goods Item Number
+ List of minimum levels of market access + Specific for each sector
i. Services Item number (Central Product Classification -CPC) +
‘Types of commitments/NT limits: i. Conditions, requirements
ii. Areas for restrictive market access
iii. Standards and conditions of treatment
iv. Timeframe for implementation.
4. A NUMBER OF SPECIFIC WTO AGREEMENTS (dumping, methods for fair comparision,
Zeroing, Like product, Subsidies and Countervailing Measures, Safeguard measures, unforeseen
developement, serious injury)
5.1.1- Anti-dumping Measures - Art. VI GATT a. What is dumping?
- An fair international trading practice: where goods are sold overseas for less than their home market –
International price discrimination
+ Art 2.1 - The Anti-dumping Agreement (ADA): ‘
- Governments use anti-dumping rules as key device to provide protection for local industry.
- GATT/WTO does not prohibit dumping but set forth rules against dumped imports b. Principles for
anti-dumping actions GATT 1994 - Art VI
- Allows imposition anti-dumping duties (additional amount to ordinary customs duties) to counteract but
only where the dumping causes or threatens material injury to a domestic industry;
- But limits governments using anti-dumping duties as a protectionist device – ways: + The amount of
duty must be no more than the dumping margin, which is the between the normal value of goods and the export price,
+ Investigation processes in foreign jurisdictions
c. Legal basis for anti-dumping actions :
- WTO Agreement on Implementation of Article VI of the GATT 1994 - ADA elaborates on:
+ Principles and procedures for anti-dumping actions
+ Actions that governments can (cannot) take in response to dumping in their markets - Issues:
+ Dumping margin/criteria for anti-dumping actions + Material injury + Interested parties
+ Price comparison - Export price and Normal value + Domestic industry + Like goods + Procedure and investigations
d. Dumping margin : When dumping arises?
Export Price (EP) of goods < Its Normal Value (NV)
- EP is normally referred to the price paid or payable for the export of goods - the price of international sale contracts
- NV is the comparable price, in the ordinary course of trade, for the like product when destined for
consumption in the exporting country - the price at which the exporter sells that good in its home market
- It is the authority of importing country who carries the comparison for dumping margin to the subject product
e. Establishing dumping margin
- Determine the NV of the subject product when sold in the domestic market of the exporting country –
- Determine the EP of the subject product
- Compare the EP to the NV appropriately
+ NV – (Adjustment) – Adjusted NV
+ EP – (Adjustment) – Adjusted EP
- Computing the margin of dumping >0
+ (Adjusted) NV – (Adjusted) EP + (Adjusted) EP x 100%
f. Dumping and Material injury
How to determine there has been material injury?
- Use a non-exhaustive list of relevant factors: + Material Injury + Threat of Material Injury
+ Material retardation of the establishment of an industry
- Establish a causal link between the dumping and the material injury + The domestic industry in the
importing country is actually suffering from the injury caused by the imported ‘like product’ allegedly
being dumped g. Domestic industry
Who may file a petition? whose data may be considered in analysis of material injury? - It is the
Industry/producers through out of the importing country allegedly being injured by allegedly dumped product
+ The producers as the whole of the like domestic product OR
+ The producers whose collective output of the product constitute a major proportion of the domestic production of the like product h. ‘Like Product’
The material injury must be caused to an industry producing like product (Art 2.6) - ‘Product under
consideration or the subject product is the product allegedly dumped and exported to the importing
country and is allegedly injuring the domestic industry producing a like product in the importing country
- ‘Like product’ in the importing country does not mean the same
i. Methods for fair comparison
For fairness, a number of adjustments need to be made to both EP and NV in exporting country - Methods:
+ Comparison of the weighted average NV and weighted average of prices of all comparable export transactions or
+ Comparison of the NV and EP on a transaction-totransaction basis + Comparison of the weighted
average NV and EP of individual transactions j. Adjusted Normal Value
What if there are no arm’s length (not related seller – buyer) or no real domestic sales? * Available alternatives:
- The price of export to a third party - must be representative price
- A constructed value in the exporting country
- Other alternative prices where the country of export is treated as a centrally market economies (Vietnam, China…)
k. Unfair price comparison –Practice of ‘Zeroing’ What is ‘Zeroing’?
- While making comparison of NV and EP, some comparisons at intermediate stage (prior to ADA) may
result in negative dumping margin, where EP is more than the NV. - In the final calculation of dumping
margin if negative dumping margins are not taken into account, such practice is called “Zeroing”.
- After the EU-Textiles- The WTO does not allow ‘Zeroing’
l. Unfair ‘Zeroing” to the Vietnamese exportation of shrimp - US- Shrimp case (DS404)
+ Vietnam successfully challenges the US Department of Commerce (US DOC) for its use of unfair
Zeroing to impose shrimp antidumping under its Sunset Review + The calculation of the separate rate
through use of the contested zeroing calculated margin
+ ADA technical provisions are transferred into Vietnam legislations on anti dumping – Government
Decree No. 69/2018/ND-CP regulating the implementation of a number of provisions of the 2017 Law on foreign trade.
m. Anti-dumping investigation PROCESSES : QUY TRÌNH ĐIỀU TRA CHỐNG BÁN GIÁ
- Inititating proceeding – 25%/50% test - Information gathering - Questionaires - Fact available (Art 6.8) - Confidentiality (Art 6.5)
- Provisional measures and duration (Art 7)
- Final duty and duration (Art 11)
- Price undertaking/voluntary (Art 8) - Non-market economies
n. Interested Parties – Art 6.11 ADA Non-exhaustive list:
- Exporters or foreign producers of the product under investigation, their trade or business association – being investigated
- Importers of the product under investigation, or their trade or business association - initiate anti-dumping measures
- The Government of the importing Member initiates investigation
- Producers of the “Like Product” in the country of import or their trade and business association –
representatives of domestic industry affected
* Investigation completion with public notice
- Sufficient detail on findings and conclusions reached on all issues of fact and law + Names of suppliers/supplying countries + Product description + Margin of dumping
+ Considerations (re: injury, Main reasons behind determination)
* Investigation completion with public notice
- NO duty can be imposed + ‘De minimis’
+ If the final margin <2% of export price
+ If the volume of dumped imports from any given country is negligible:
+ One country member: less than 3% of imports of the like product in the importing Member
+ More than one: all together these countries account for 7%
* Duration of Final Duty (Art 11.1)
- No longer than five years after imposition: + Periodic review + Sunset review
- But can be reviewed upon request after a “reasonable period” or at own initiative of authorities - Non-market economies (NME):
+ China, in its accession accepted the concept of NME treatment for 15 years - Graduated in 2015
+ Vietnam: 12 years - until 2019
5.1.2- Subsidies and Countervailing Measures: Trợ cấp và các biện pháp đối kháng a. What is subsidy?
- Government intervention where there is financial or price support from governments or public bodies to
specific enterprises or industries for their exports
- Unfair international competition – protectionism
- Export subsidy is common for agricultural products
b. Principles on countervailing duties
Before Uruguay Round - GATT 1947
- Art IV: obligation to consult about subsidies - Art XXIV:
+ Export subsidies should not be granted on goods other than primary products + Limited obligations on primary products
=> export country have more than an ‘equitable share of world export trade’ in that product
c. Developing GATT rules into a Code on export subsidies
Tokyo Round Subsidies Code
- No definition of a subsidy, but a list of export subsidies Uruguay Round Agreement on Subsidies and
Countervailing Measures (SCM Agreement)
- Clear definition of an export subsidy - financial support by government to specific recipient’s exports
- What constitutes an export subsidy as opposed a domestic subsidy? Three categories of export subsidies: + Prohibited subsidies + Actionable subsidies + Non-actionable subsidies
d. Subsidies and Countervailing Measures – SCM: Các biện pháp trợ cấp và đối kháng – SCM
- Read Art 1, Art 2 - The SCM Agreement - Also the Government Decree No 68/ND CP/2018 of Vietnam)
- Check with the provisions if there is an export subsidy?
1- Governments use tax incentives or budgetary allocations to promote the development of infrastructure for national development?
2- A government choose to build a rail way line to a factory in an outlying region, is this a subsidy on production?
3- If some of the factory’s goods are ultimately exported, is that a subsidy on export? e. Focus: Actionable Subsidies
- The notion - a subsidy being actionable means that countervailing duties imposed (GATT Art XXIV) - Notes:
+ SCM Agreement prohibits export subsidies on all products including primary products
+ SCM Agreement allows for export subsidies on agricultural products to be
phased out over a long period of time
+ SCM needs to be read along side the Uruguay Round Agriculture Agreement
f. Export subsidies on agricultural products: Agriculture has always been the most
contentious are area of GATT/WTO law – Agricultural protectionism
- GATT Art XI outlaws/ban on quotas
+ Existence of variable tariffs (EU, the US)
+ Market distortion - Need corrections
- A subsidy system helps exporters (with local low price) to sell on world market (with higher price) + Example of rice export + Trade distortion
g. Limiting export subsidies on agricultural products: Why?
- Agricultural subsidies are very costly world-wide due to the existence of numerous non
tariff barriers to agricultural trade in major trading partners
- Tariff rate quotas in use for agricultural products (primary products/sugar, tobacco materials, dairy products)
h. Countervailing measures against actionable subsidies: Các biện pháp chống
trợ cấp đối với các khoản trợ cấp khả thi
- Export subsidies being actionable are subject to countervailing measures – Interested parties + Subsiding Exporting country
+ Importing country applying counteracting measures
- Substantive elements - Importing country
+ Subsidy to the import products
+ Material injury or threat thereof + Causal link
i. Uruguay Round Agreement on Agriculture
- The negotiations broke agriculture up in to 4 areas: + Market access + Domestic supports + Export competition
+ Sanitary and phytosanitary regulations
- Market access obligations:
+ The concept of market access rather than tariff rates
+ The obligation on market access is phased out over periods of
time + Non-tariff measures have to be converted to tariffs
+ Limiting levels of subsidies - Cuts in agricultural tariffs 4.2- Economic
Emergency – Safeguards
a. Safeguards - ‘Escape’ in situations of emergency - GATT Art. XIX
- Safeguards measures are the ‘escape’ from breaching free trade obligations that cause
serious injury to exporting countries: Các biện pháp tự vệ là “lối thoát” khỏi việc vi
phạm các nghĩa vụ thương mại tự do gây ra thiệt hại nghiêm trọng cho các nước xuất khẩu
+ Not “unfair” trade due to economic emergency
+ High level of material injury on affected trading partners
+ MFN based application and compensation to
b. Escape clause - Agreement on Safeguards – SA (con’t)
- Rationale for application of the safeguards:
+ the “unforeseen circumstances”, unexpected surges as a result of tariff
concessions… which negatively affecting domestic industry
- SA provides detailed procedural and substantive requirements for initiation of safeguard measures + Main substantive elements
- Increase in the volume of imports/unforeseen development
- Serious injury or threat thereof - Causal link
c. Safeguards exemptions in the WTO
- Many countries such as the US, exempt FTA partners from global safeguards
+ WTO Appellate Body has made this very difficult where FTA partners were major producers of products
- Developing country exports are exempted if a country represents under 3% of total exports, or
developing countries in the aggregate, under 9%
d. Substantive elements- Increased imports
Case: US – Steel Safeguards
- Only increased imports throughout the period of investigation would be sufficient justification for safeguards.
- FTA members who were major producers – Mexico and Canada– could not be excluded if their imports
were covered in the investigation - Unforeseen developments
+ Unforeseen means “unexpected”, not “unforeseeable” (AB, Korea-Dairy, para. 84& AB, Footwear, para. 91)
+ The “as a result of unforeseen developments” requirement of Article XIX applies today (AB, Footwear, paras. 87-90).
+ The analysis relating to this requirement should appear in the final determination. (AB, Lamb, para. 72.)
* Unforeseen developments: When should it have been unforeseen?
- The Panel in Argentina – Preserved Peaches cites AB in Dairy: at the time the concession was negotiated (para. 7.28).
- Increase in the volume of imports
+ Increase in the volume of imports:
+ Absolute, or Relative to domestic production (not to domestic consumption, unlike anti-dumping and CVDs)
+ Important distinction-certain legal effects will depend on the type of increase.
* Serious injury: thiệt hại nghiêm trọng
Definition of serious injury: “Significant overall impairment in the position of the domestic industry” (SA Art. 4.1(a))
- Panels must take into account this definition of serious injury in determining whether there is serious
injury or threat thereof. (AB, Lamb, para. 126)
- Serious injury standard is higher than material injury required in AD and CVD cases because of the
nature of SG measures that are not aimed at unfair trade practices such as dumping and subsidisation (AB, Lamb, para. 124) - Threat of serious injury:
+ Must be clearly imminent…The anticipated serious injury must be on the very verge of occurring. (AB, Lamb, para. 125)
+ Based on facts and not allegation conjecture or remote possibility
+ Should be proven on the basis of the same (serious injury) factors (Art. 4.1(b)) * Injury analysis: Injury analysis must include:
- Rate and amount of increase in imports (absolute and relative)
- Market share of increased imports - Changes in level of: + Sales, + Production, Productivity + Capacity utilization, + Profits and losses, + Employment
* Causation: nhân quả - NON-ATTRIBUTION
+ Identify injury caused by factors other than increased imports, and demonstrate that such injury has not
been attributed to increased imports (Art.4.2(b))
+ Genuine and substantial relationship of cause and effect between increased imports and serious injury” (AB, Wheat Gluten, para. 69)
* Procedure (Art. 3)
- Procedural rules are more general in safeguards compared with anti-dumping and countervailing duties investigations.
+ Pre-requisite: investigation is a “MUST’
+ Investigative procedures must be published
+ Reasonable public notice to interested parties
+ Hearings or other appropriate means
+ Opportunity to address public interest
+ Report of findings and conclusions on all issues of fact and law
* Confidentiality: bảo mật
- By nature confidential vs. claim of confidentiality
- Specific permission needed for disclosure
- Non-confidential summaries may be requested
- If the request for confidentiality is not warranted and the relevant party is unwilling to make it public, IA
can disregard that info unless it is demonstrated that the information is correct.
* Safeguard measures: tự vệ thương mại - Types of safeguards: + Not specified in GATT 1994 + Not in the SA . + Different forms + Quotas + Tariff rate quotas + Tariff surcharges...
+ Must choose the most suitable measure (Art. 5.1) + Provisional Measures
+ Only in the form of increased tariffs + Maximum 200 days
+ Duration counted towards that of the definitive measure
+ Notify the Committee before imposition and initiate consultations immediately after imposition (Art. 12.4)
+ Notify the CTG immediately on the outcome of consultations (Art. 12.5) * Definitive measures
- FORM: not specified in the SA - DURATION:
+ Only for such period of time as may be necessary to prevent or remedy serious injury and facilitate adjustment + Can not exceed 4 years
+ Can be extended to 8 years if continuation necessary and industry adjusting (no extension of modulated
quota) “Extensions are the continuation of the original measure.” (Panel, Chile-Price Band, para. 7.119
- S & D: measures shall not apply to developing countries (Art 9)
* Recap 4.1 and 4.2: Trade remedy measures – TRMs
- TRMs target only foreign imports that damage/threaten to cause damages to domestic industries
- Aiming at mitigating the damages caused (not to penalize foreign exporters/importers) - TRMs are
temporary and must be reviewed periodically
- The application of TRMs by competent authorities must be the result of an administrative investigation;
assess the opinion and evidence provided
- The application of TRMs by competent authorities must be the result of an administrative investigation;
assess the opinion and evidence provided
- The stages and timeframe for trade remedy proceedings must strictly comply with the WTO law
- Members are encouraged to use trade remedy in form of special duties as it would be less restrictive
5. SANITARY AND PHYTOSANITARY MEASURES: BIỆN PHÁP VỆ SINH ĐỘNG VẬT DĨNH
VỰC (SPS – TBT) (Technical Barriers to Trade Uruguay Round Agreement on Technical Barriers to Trade)
Uruguay Round Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) SPS Agreement -
Regulatory control vs. Facilitation
- Unreasonable hindrance of diversified systems of SPS measures to inter trade to protect non-commerce values by importing countries
+ When imposing tight control requirements and standards on food safety, animal quarantine and plant
quarantine to protect the lives and health of people, animals and plants
+ Misusing SPS measures that prevent the penetration of foreign goods to local markets
Why SPS measures/import controls? - Regulatory requirements:
+ WTO allows to maintain specific SPS measures applicable to products entry from a disease-free area
(inspection, specific treatment, goods processing, allowable maximum levels of pesticide residues,
permitted use of only certain addictive in foods
+ To protect animal, plant or human life from pertinent SPS risks
+ To prevent the spread of pests or diseases among animals &plants
=>SPS measures are taken to address specified types of SPS risks
* Why SPS Agreement?
- Two categories of SPS measures taken by WTO Members to protect the non-commerce values (while promoting inter trade)
+ Sanitary measures to protect human and animal health
+ Phytosanitary measures to protect plant health - SPS measures are applied to
+ domestically produced foods, or local animal and plants diseases
+ foreign products entering the teritory of Members SPS’ main purpose
- Respecting basic rights to protect (human, animal, plant life or health - Art 2.1 “Members have the right
to take sanitary and phytosanitary measures necessary for the protection of human, animal or plant life or
health, provided that such measures are not inconsistent with the provisions of this Agreement”
=>any measures to products entry from a disease-free area:
* Definition - Annex A- SPS Agreement:
SPS measures are legal provisions (in laws, delegated legislations, procedures, decisions, administrative
guidelines) related to food safety, animal quarantine, plant quarantine Objective - driven measures:
- Inspection of goods/Import checks / Sampling
- Specific treatment/Certification/Equivalence Recognition/Approval Procedures - Goods processing/Labeling/Marking
- Maximum levels of pesticide residues
- Permitted use of only certain addictive in foods
Measures vs. types of SPS risks - Annex A
The SPS measures defined in Annex A are taken to address specified types of SPS risks:
- Risks arising from additives, animal health, contaminants, toxins or disease organisms in food, drink,
feedstuff (Protect Human or animal health)
- Plan or animal-carried diseases (Protect Human life)
- Risks from the spread of pests, diseases, diseases-causing organisms (Protect animals or plant life)
These risks cause damages upon the entry of imports in the territory of Members * Principles of
appropriate protection
- Restricts the use of unjustified SPS measures for the purpose of trade protection
- Require Members provide appropriate the level of health protection (the necessary extent) without
misusing their sovereign rights for protectionist purposes - Principles: + Non-discrimination
+ Scientific justification + Equivalence
+ Transparency SPS Measures in Vietnam’s laws - Food Safety Law 2010 - Plant Protection Law 2013 - Animal Health Law 2015 - Biodiversity Law 2008
- Law on Standards and Technical Regulation 2006
- Law on Promulgation of Legal Normative Documents 2015
5.2- Technical Barriers to Trade Uruguay Round Agreement on Technical Barriers to Trade (TBT
Agreement) Why TBT Agreement?
- WTO monitors the national application of TBT measures by Members
- TBT Agreement promotes transparency in the adoption of technical regulations, standards and
conformity assessment procedures 5.2- TBT categories - General obligation:
TBT measures must be applied non-discriminatory and do not create unnecessary obstacles to trade
- Technical regulations/Mandatory requirements
- Standards for assessment of products quality
- Procedures for conformity assessment
- Procedures for certification purposes
* Definition of technical regulations
Document which lays down products characteristics or their related processes and production methods,
including the applicable administrative provisions - Mandatory requirements - Terminology - Symbols - Packaging - Marking - or Labeling requirements
* Technical standards – Conformity assessment - Technical standards
+ Definition - Document approved by a recognized body, that provides, for
common and repeated use, rules, guidelines or characteristics for products or related
processes and production methods
+ Voluntary provisions/compliance
- TBT Conformity Assessment Procedures: any procedure used, directly or indirectly, to
determine that relevant requirements in technical regulations or standards are fulfilled
* Administering TBT measures
- Members may implement technical regulations, standards and conformity assessment
procedures as long as transparency and notification procedures are followed
- Exception - Members may deviate from the normal procedures in emergency as covered
by the TBT Agreement (eg urgent problems of safety, health, environment protection or national security)
- WTO Panel and Appellate Body’s interpretation of the TBT Agreement should be
viewed/reviewed to better understand the way in which TBT obligations have been interpreted
* SPS measures vs. TBT measures
- Both TBT and SPS measures are complex technical barriers to
trade + Eliminating unnecessary barriers is the key objective
+ Both Agreements promote transparency in adoption of measures
- TBT measures are defined by TYPES OF MEASURES
- SPS measures are defined by PRODUCT’s OBJECTIVE
* Recap: SPS measures vs. TBT measures
- SPS measures are defined according to OBJECTIVES (not by types of measures) => are applied to protect:
- Human or animal health from food-born risks
- Human health from animal- or plant-carried diseases animals and plants from pests or diseases
- TBT types of measures are for:
+ Human disease control (unless it’s food safety) such as nutritional claims, food packaging and quality
+ Eg labelling (unless related to food safety); pesticide handling; seat belts; office furniture – mandatory
compliance (goods and services– ISO/IEC)
- Conformity assessment procedures:
+ Sampling, testing, inspection
+ Verification and assurance of conformity + Registration, certification
- Human disease control (unless it’s food safety) - Nutritional claims - Food packaging and quality
+ Eg labelling (unless related to food safety) - Pesticide handling - Seat belts
- Human or animal health from food-borne risks
- Human health from animal- or plant-carried diseases
- Animals and plants from pests or diseases
+ Eg: pesticide residues, food additives
* Similar rules in SPS Agreement & TBT Agreement
- Promote harmonization of pertinent measures
- Require Members use international standards as a basis for domestic measures - Require transparency
- Require establishment of National Enquiry Points
*NGUYÊN TẮC CHUNG TRONG THƯƠNG MẠI HÀNG HÓA Hiệp định:
1. MFN: quy tắc tối huệ quốc: Điều I.1 hiệp định GATT 1994, điều 2 hiệp định GATS, điều 4 hiệp định TRIPS
- Quy tắc pháp lý quan trọng nhất WTO
- Nếu một nước dành cho một nước thành viên một sự đối xử ưu đãi nào đó thì nước này cũng phải dành
sự đối xử ưu đãi đó cho tất cả các nước thành viên khác
- Không có tính chất áp dụng tuyệt đối
- Áp dụng thông thường trong hợp đồng thương mại song phương.
- Áp dụng đa phương đối với tất cả các nước thành viên WTO thì cũng đồng nghĩa với nguyên tắc bình
đẳng và không phân biệt đối xử vì tất cả các nước sẽ dành cho nhau sự "đối xử ưu đãi nhất" 2 miễn trừ:
- Hệ thống ưu đãi phổ cập (GSP): chỉ áp dụng cho hàng hóa từ nước đang phát triển và chậm phát triển.
- Đàm phán thương mại giữa các nước đang phát triển: cho phép các nước này có quyền đàm phán, ký kết
những hiệp định thương mại dành cho nhau những ưu đãi về thuế quan và không có nghĩa vụ phải áp dụng
cho hàng hóa đến từ các nước phát triển
-> GSPT: hiệp định về hệ thống ưu đãi toàn cầu giữa các nước đang phát triển.
2. NT: Đãi ngộ quốc gia (National Treatment): Điều III GATT, điều XVIII GATS, điều III TRIPS
- Quốc gia thành viên phải đảm bảo dành cho hàng hóa nhập khẩu của các thành viên khác chế độ đãi ngộ
thương mại (ưu đãi, miễn trừ) như chế độ mà họ áp dụng cho hàng hóa trong nước mình.
- Đảm bảo không có sự phân biệt trên văn bản (de jure) và trên thực tiễn áp dụng (de facto): giống quy chế
MFN, chỉ khác ở đối tượng áp dụng: hàng hóa nội địa và hàng nhập khẩu.
3. FET: Nguyên tắc đối xử công bằng và thỏa đáng trong đầu tư quốc tế
Được hiểu là những hành vi của nước tiếp nhận đầu tư đối với các nhà đầu tư nước ngoài phải dựa trên các
quy tắc không thiên vị. Nhằm tạo ra sự đối xử công bằng với tất cả các bên có lợi ích liên quan mà có thể
bị ảnh hưởng bởi quyết định của Chính phủ nước tiếp nhận đầu tư.
+ Không được từ chối cho hưởng công lý trong tố tụng phù hợp với thủ tục pháp luật (denial of justice).
VD: Điều 11(2)(a) Hiệp định đầu tư toàn diện ASEAN (ACIA) quy định “sự đối xử công bằng và thỏa
đáng yêu cầu mỗi quốc gia thành viên không được từ chối cho hưởng công lý trong bất kỳ tố tụng pháp lý
hay hành chính nào phù hợp với thủ tục pháp luật”;
+ Phải tôn trọng kỳ vọng chính đáng của nhà đầu tư. Mong đợi được coi là chính đáng có thể xuất phát từ
những cam kết cụ thể rõ ràng; hay được suy ra mà nước tiếp nhận đầu tư dành cho nhà đầu tư trong các
nghị định, giấy phép hay hợp đồng. Nhà đầu tư đã dựa trên quyền lợi hợp pháp đó để tiến hành đầu tư.
VD: Chính phủ nước tiếp nhận đầu tư phải tránh các thay đổi tùy tiện trong các quy định điều chỉnh khoản đầu tư;
+ Không được đối xử tùy tiện;
+ Không được tiến hành các biện pháp có ý đồ xấu đối với đầu tư; và không được ép buộc đe dọa nhà đầu
tư. Bao gồm: việc sử dụng công cụ pháp luật sai mục đích; cố ý gây thiệt hại hay làm cho khoản đầu tư bị
thất bại; thiên vị công ty trong nước và loại bỏ khoản đầu tư nước ngoài…