NEGOTIATING TRADE FACILITATION Kennedy Mbekeani UNDP, RSC

2 Annex D of the July Package Annex D of the ‘July Package’ stipulates that “the results of the negotiations shall take fully into account the principle of special and differential treatment for developing and least-developed countries”, and extends this principle beyond the granting of transition periods for implementing commitments to require consideration of the implementation capacities of these countries.

3 Annex D of the July Package In particular, Annex D states least-developed countries “will only be required to undertake commitments to the extent consistent with their individual development, financial and trade needs or their administrative and institutional capabilities”. Annex D makes it very clear that the success or otherwise of the trade facilitation negotiations will be conditional on the provision of technical assistance and capacity-building for developing and least-developed Members.

4 Annex D of the July Package Annex D asks Members to identify their trade facilitation needs and priorities, particularly those of developing and least-developed countries” and to address the concerns of these countries related to cost implications of proposed measures. The annex also acknowledges that technical assistance and support for capacity-building is vital to enable them to fully participate in and benefit from the negotiations.

5 Annex D of the July Package Annex D also addresses the need to review the effectiveness of the support and assistance provided and its ability to support the implementation of the results of the negotiations.

6 Approved agenda of the Negotiating Group At the first meeting of Negotiating Group on Trade Facilitation on 15 November 2004, Members of the Negotiating Group agreed on a Work Plan and meeting schedule. The Plan provides for work to proceed as per Members’ contributions and input as requested.

7 Approved agenda of the Negotiating Group The approved agenda of the Negotiating Group comprises:  Clarification and improvement of relevant aspects of Articles V, VIII and X of the GATT 1994;  Special and differential treatment for developing and least-developed countries;  Identification of trade facilitation needs and priorities;  Concerns related to cost implications of proposed measures;  Technical assistance and support for capacity-building; Working with other relevant international organizations.

8 Life after July Package… It is therefore important to ensure that the implementation needs and requirements of African countries are clearly identified within the relevant timeframes of the negotiating timetable. It is critical that the individual circumstances of each country be taken into account in designing and implementing an effective consultation and coordination framework.

9 Life after the July Package… Need to carefully consider the scope and content of the negotiations Impact of any negotiated outcome on the domestic policies, including the costs and benefits The vital issue is to clearly understand the technical and legal issues related to Articles V, VIII and X, to identify needs and priorities for possible implementation, commitments and Special and Differential Treatment (S&D)

10 Key Issues for Developing and Least Developed Countries Enhance understanding of trade facilitation negotiators on the technical issues of GATT Articles V, VIII and X, and possible implications thereof Look at relevant trade facilitation options in a broader context than the three GATT Articles Consider the trade facilitation instruments and tools available that fit within the three GATT Articles and also the broader areas of trade facilitation mentioned above

11 Looking beyond the three GATT Articles WTO trade facilitation negotiations are centered around GATT Articles V, VIII and X, which are very much dealing with border issues However, countries need to better understand what is happening outside the border procedures to obtain a complete picture on trade facilitation, and its challenges and benefits

12 Assessing Implementation Needs Situation Analysis Gap Analysis Coordination and Consultation

13 Situation Analysis The purpose of the situation analysis is to compare a country’s current legal framework and administrative processes with the provisions of the relevant GATT Articles and any proposals that may come from the negotiations. The analysis will assist in identifying those elements which a Member already conforms.

14 Situation Analysis The situation analysis will also serve to highlight areas where action will be required in order to conform to certain provisions or proposals. The analysis may also highlight some areas where further clarification is required. Each country is likely to adopt a slightly different approach to its regulatory framework.

15 Gap Analysis The next step is to determine what needs to be done to close any gaps that may have been identified.  This may entail drafting of new legislation and the introduction of regulatory practices that reflect the new legislative provisions.

16 Gap Analysis When undertaking the gap analysis, it is particularly important for individual countries to determine the cost and benefits to government and business so that a decision can be made in the context of the negotiations. The gap analysis will also enable countries to identify training, technical assistance and capacity-building needs.

17 Coordination and Consultation Negotiations require timely and effective processes that ensure a country’s interests are adequately represented. Effective coordination is essential for providing governments with an ability to participate fully in the negotiations. The primary objective of establishing a coordination mechanism is to promote effective participation in the trade negotiations.

18 Coordination and Consultation Any coordination mechanism should be kept as simple and streamlined as possible. The simplest coordination mechanism is to have a single contact point that will be responsible for receiving requests, disseminating those requests to relevant experts for response and then consolidating the responses for communication back to the negotiators.

19 Coordination and Consultation In the context of trade facilitation, it will be important for Customs to play a key role in the coordination process, since some of the more technical issues will inevitably require Customs input.  Moreover, the trade facilitation agenda places particular emphasis on customs procedures.

20 Examples of Article X GAP Analysis GAP Analysis for Legal Framework Systems and Procedures (Information)

21 Article X GAP Analysis: Legal Framework Does national legislation provide for Customs to furnish rulings in writing? Does national legislation provide for Customs to furnish rulings within a specified period? Does national legislation establish an administrative settlement and penalty regime? Does national legislation provide for the right of appeal in Customs matters? Does national legislation provide for the right of an initial appeal to Customs?

22 Article X GAP Analysis: Legal Framework When an appeal is dismissed, does national legislation provide for the right of a further appeal to an authority independent of Customs? Does national legislation provide for a final appeal to a judicial authority? Does national legislation provide for the right of appeal in cases of decisions and omissions by Customs? Does national legislation provide for Customs to furnish decisions in writing? Does national legislation provide for Customs to furnish decisions within a specified period?

23 Article X GAP Analysis: Systems and Procedures (Information) Are all relevant information of general Customs application made available to interested persons such as: laws regulations documentary requirements standard operating practices specific customs procedures tariff classification

24 Article X GAP Analysis: Systems and Procedures (Information) Does Customs publish all relevant information of general Customs application such as: laws regulations documentary requirements standard operating practices specific customs procedures

25 Article X GAP Analysis: Systems and Procedures (Information) Are relevant Customs and trade related information made available via: Customs tariff; customs bulletins compendiums education seminars gazettes handbooks brochures Web sites

26 Article X GAP Analysis: Systems and Procedures (Information) Are appropriate monitoring systems in place to ensure the consistency of available information across all Customs office locations? Is information made available to interested parties within specified time limits? Is information relevant to any proposed changes or new requirements made available sufficiently in advance for interested parties to take account of them? Does Customs publish all proposed changes or new requirements in advance of the entry into force? Do stakeholders have the opportunity to contribute / develop / influence / question all proposed changes or new requirements in advance of the entry into force?

27 Major References – Article X related Transparency and Predictability  Revised Kyoto Convention General Annex Chapter 9 Review and Appeal  Revised Kyoto Convention General Annex Chapter 10

28 Major References – Article VII related Fees and charges  Revised Kyoto Convention General Annex Chapter 3 and 9 Procedures and formalities  Revised Kyoto Convention General Annex Chapter 3 and 6  WCO Customs Data Model  WCO Risk Management Guidelines, Risk Indicators/profiles  WCO Time Release Study  WCO Immediate Release Guidelines

29 Major References – Article VII related Co-operation with the other agencies and foreign partners  Revised Kyoto Convention General Annex Chapter 3 and 6  Nairobi Convention, revised WCO Model Bilateral Agreement, Johannesburg Convention Maximum use of IT  Revised Kyoto Convention General Annex Chapter 7  WCO Recommendations  WCO Compendium on Customs Computerization

30 Major References – Article V related Customs transit  Revised Kyoto Convention Specific Annex E.1  Istanbul Convention