ATR, NTRs, Notification Procedures and NTMs Classification
in the Context of ATIGA’s Regulatory Transparency
Paolo R. Vergano
Institutional Strengthening Expert, ARISE
Two-Day National Workshop
20 – 21 October 2014
Vientiane, Laos PDR
ARISE’s assistance on NTMs, NTRs and ATR
• Transparency is a fundamental catalyst for economic development,
cross-border investment and trade, and ASEAN integration;
• This is an area where the EU has considerable expertise and its
assistance through the ARISE project is intended to contribute
strengthening the overall ASEAN integration process management
and build institutional capacity; and
• Transparency is also a critical tool to avoid ASEAN trade disputes
(EDSM) and to foster economic development, ensuring that ASEAN
remains an attractive FDI destination and can compete with other
regional blocks.
2
ARISE’s assistance on NTMs, NTRs and ATR
• The ATIGA does not provide for the timeline for the development of
the ATR or in relation to the architecture/design of the ATR;
• Discussions at different levels of the ASEAN-AEC decision making
mechanism have indicated that it is imperative to meet the
commitments of the ATR in the ATIGA by 2015; and
• A network of AMSs’ National Trade Repositories (NTRs) is seen as
the necessary precursor to the ATR and AMSs have been urged to
look into the setting-up of the NTRs to support the eventual settingup of the ATR at a regional level.
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ARISE’s assistance on NTMs, NTRs and ATR
• When the NTRs’ network is fully operational and based on a shared
architecture modelled on the basis of the agreed ATR, the ATR will
be effectively established and will link all the individual operating
NTRs. For the NTRs and ATR to operate efficiently, the integration
of government agencies at national levels must be organized and
well-implemented; and
• The cooperation among AMSs (primarily within the Coordinating
Committee on the Implementation of the ATIGA - the CCA), the
ASEAN Secretariat and the ASEAN sectoral committees responsible
for trade, customs, standards and technical regulations must be
assisted and enhanced.
4
The ASEAN: transparency, NTMs and NTRs/ATR
• ASEAN instruments refer to the three concepts of NTBs, NTMs and
quantitative restrictions;
• Both the CEPT (Art. 1.2) and the ATIGA (Art. 2(k)) define NTBs as
“measures other than tariffs which effectively prohibit or restrict
import or export of products within Member States”;
• No definition of NTMs is provided, even though NTMs are explicitly
mentioned in ATIGA (Articles 40 and 42) and the ATIGA clearly
distinguishes between NTMs and NTBs; and
• AMSs have agreed that NTMs “applied to CEPT products should be
transparent and would be considered as a non-tariff barrier only if
these have the effect of prohibiting or restricting trade”.
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The ASEAN: transparency, NTMs and NTRs/ATR
• NTMs therefore capture all measures other than “ordinary customs
duties”, “extra-ordinary duties and charges” (i.e., AD, CVD, etc.) and
“other duties and charges”;
• The ASEAN Trade in Goods Agreements (ATIGA) requires that an
ASEAN Trade Repository (ATR) be established;
• In particular, Article 13 of the ATIGA provides that:
“An ASEAN Trade Repository containing trade and customs laws
and procedures of all Member States shall be established and made
accessible to the public through the internet”
... and that ...
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The ASEAN: transparency, NTMs and NTRs/ATR
• ... the ATR must contain the following trade-related information
(indicative, non-exhaustive list):
i.
ii.
Tariff nomenclature;
MFN tariffs, preferential tariffs offered under the ATIGA and
other Agreements of ASEAN with its Dialogue Partners;
iii. Rules of origin;
iv. Non-tariff measures;
v. National trade and customs laws and rules;
vi. Procedures and documentary requirements;
vii. Administrative rulings;
viii. Best practices in trade facilitation applied by each Member State;
and
ix. List of authorised traders of AMSs.
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The ASEAN: transparency, NTMs and NTRs/ATR
• Finally, “The ASEAN Secretariat shall maintain and update the
ASEAN Trade Repository based on the notifications submitted by
Member States as set out in Article 11”;
• Relevance of ATIGA Article 11 on “Notification Procedures” and
rationale behind the “Standard notification procedures and forms”
developed by ARISE; and
• Linkage with ATIGA Article 40 on “Non-Tariff Measures”: obligation
of transparency (Art. 40.2); obligation of notification (Art. 40.3,
connected to Art. 11.3, 11.4, 11.5 and 11.6, further linked to
Art.13.3); and obligation to develop the NTM database (Art. 40.4)
to be included in the ATR (see proposal of NTM database developed
by World Bank in cooperation with ARISE).
8
The WTO: overarching obligations and structures
• GATT disciplines and interpretative guidance on NTMs and
transparency;
• Relevant WTO language in SPS and TBT Agreements calling for
measures to be notified when they have a “significant effect on
trade”;
• Difference vis-à-vis ATIGA (Art. 11.1 thereof, which calls for the
notification of any action or measure that AMSs intend to take that
(a) “may nullify or impair any benefit to other Member States,
directly or indirectly” under the ATIGA or (b) “when the action or
measure may impede the attainment of any objective” of the
ATIGA); and
• “Presumption of Innocence” vs. “Presumption of Guilt”.
9
The WTO: overarching obligations and structures
• Art. X of the GATT and Art. 12 of the ATIGA on the “Publication and
Administration of Trade Regulations”;
• Several WTO transparency and notification obligations are already
complied with by AMSs, all of which are now WTO Members; and
• To avoid overlaps, duplication and additional costs relating to
largely similar obligations under the WTO and the ATIGA, AMSs
should (as much as possible) rely on the same mechanisms and
authorities set up for the WTO or at least coordinate their WTO and
ATIGA tasks.
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Recommendations on ATR
•
•
•
•
•
•
•
•
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The ATR must be:
Well-structured;
Comprehensive;
Accessible;
Easy-to-search; and
Reliable (if not legally-binding);
Key factors to be considered:
Effective and well-coordinated ‘inter-agency platform’ at AMSs’
level;
Internal ‘synergies’ (i.e., WTO notifications, NSWs, ad hoc trade
repositories);
‘Architectural symmetry’ between ATR and NTRs’ interfaces; and
Definition of key concepts, categories and procedures.
Recommendations on ATR
‘Well-structured’:
• The ATR must be based on a framework that AMSs consider legally
binding;
• It should be simple, logical, easy to maintain and update and based
on the macro-areas of notification indicated in Article 13 of the
ATIGA; and
• The regional architecture agreed for the ATR should then inform the
structures of the individual AMSs’ NTRs.
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Recommendations on ATR
‘Comprehensive’:
• The ATR must contain all trade-related information on the trade
and customs laws and procedures of all AMSs;
• AMSs must display and apply the political will to systematically
identify, collect, classify and ultimately notify all domestic
measures that relate to trade; and
• Disciplines must be agreed and applied by AMSs with active and
collective engagement in training and capacity building activities.
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Recommendations on ATR
‘Accessible’:
• The ATR must be in English, based on standardised notification
forms and equipped with enough information to provide users with
sufficient elements to understand the trade-relevance of the
measures contained therein;
• It must be based on efficient and reliable software that can easily
connect to the NTRs and retrieve information; and
• The ATR must be public, non-fee-based and available on the
internet.
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Recommendations on ATR
‘Easy to search’:
• The ATR must be well organised, based on a shared classification,
well cross-referenced with hyperlinks to other AMSs’ internet
facilities and existing databases (i.e., NTRs) and be user-friendly;
• It must be based on efficient and reliable software that can easily
connect to the NTRs and retrieve information; and
• The same structures, style and searchability functions should apply
to the ATR and the NTRs of all AMSs.
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Recommendations on ATR
‘Reliable’:
• The ATR must be complete, timely updated by AMSs (through
their management of the NTRs and their notifications to the ATR)
and based on a shared set of ASEAN templates, classification and
categories; and
• Ideally, the SOPs related to the management of the NTRs and the
notifications to the ATR should be legally binding, all AMSs should
timely notify all of their trade-related measures, and crossreferences to AMSs’ official journals, gazettes and national
registers be provided.
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Recommendations on ATR
To achieve these objectives the following 5 aspects need to be taken
into account:
1) The need that AMSs establish and regularly convene an effective,
comprehensive and well-coordinated inter-agency platform. ARISE
(alone or in cooperation with other donors) can and will assist
these bodies to build the necessary capacity for notifications of
NTMs and management of NTRs;
2) The need to establish, to the extent possible, synergies with
activities conducted by AMSs vis-à-vis WTO transparency
obligations and with respect to pre-existing transparency tools
and frameworks;
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Recommendations on ATR
3) The need to define key concepts found in the ATIGA (i.e., NTMs,
trade-relevance) to improve the process of identification,
collection and classification of measures to be notified and to
frame the list of Article 13 of the ATIGA, which is indicative in
nature;
4) The need to ensure correspondence between the architecture of
the ATR and that of AMSs’ NTRs. To achieve this, a single
classification must be used. The recommendation is made that the
2012 UNCTAD’s NTM classification (eventually fine-tuned) be
adopted an used by all AMSs; and
5) The resources (databases and portals) available in AMSs are
currently unable to meet all ATR’s requirements.
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Definition of the ATR’s ‘Shell’ Architecture
• ATR as a web portal, a single point of access to AMSs’ trade-related
information (on their NTRs);
• Information accessible by ‘topic’ or by ‘country’;
• ATR’s server ‘parked’ on ASEC’s ASEAN website and maintained by
the ASEC;
• The actual trade-related information of all AMSs will be ‘parked’ in
each individual AMS’s NTR;
• ‘Topic’ structure based on shared classification (i.e., based in part on
UNCTAD’s 2012 NTM Classification);
• Restricted log-in section for AMSs’ notifications under Article 11 of
the ATIGA; and
• Link to ACT system.
Trade-related information by ‘topic’
ATR’s ‘Mock-Up’ Home-Page
ATR’s ‘Mock-Up’ Topics Page
Proposed NTM Classification Template
Issuing
Ministry
1
ASEAN
Regulation
Trade
Description Source URL
Reason
Reference
Repository
URL
2
3
Specify:
Indicate the
type of
relation to
measure
trade of the
(law,
measure
decree,
directive,
etc.); title;
number and
signing date
4
Encode
specific URL
with link to
the actual
measure (in
English if
available)
5
Not yet
available (it
will provide
link to the
actual
notification
form
submitted
to the
ASEAN
Secretariat)
6
Describe
with
sufficient
detail (2-3
sentences)
the
measure's
objectives,
specifying
relevant
articles
Product
Notification
Description Year
NTM Code NTM Name Start Date
End Date
HS Code
7
8
Use
Use name
UNCTAD's correspondi
NTM
ng to the
classification NTM code
(Feb 2012),
as available
in Annex D
of the WB's
Toolkit on
NTMs:
https://ope
nknowledge
.worldbank.
org/bitstrea
m/handle/1
0986/6019/
683590PUB
0EPI007902
B009780821
395103.pdf?
sequence=1
10
If the
measure is
temporary,
indicate the
end date,
otherwise
indicate
"permanent
"
11
12
Indicate the List the
HS code/s product
correspondi categories
ng to the
correspondi
products
ng to the HS
covered by codes
the measure
9
Indicate
date of
entry into
force of the
measure
13
Indicate
year of
notification
to ASEAN
Secretariat
Thank You
ASEAN Regional Integration Support from the EU
ASEAN Secretariat
Jl. Sisingamangaraja 70A, Jakarta 12110 – Indonesia
Tel: (+62 21) 726 2991, 724 3372 ext. 852
Fax: (+62 21) 739 8234
E-mail: arise@asean.org
http://arise.asean.org