Selected WTO Legal Aspects of UNECE Report
"Regulatory and Procedural Barriers to Trade in
Kyrgyzstan: Needs Assessment"
Jan Bohanes
Senior Counsel, Advisory Centre on WTO Law
Geneva, 1 September 2015
Overview of selected topics
• Regulatory and Standardization Policies:
Technical Regulations, Standards and Quality
Assessment & Sanitary and Phytosanitary
Measures
• Aspects relating to Regional Integration
• Trade Facilitation Aspects
Regulatory and standardization policies (1)
• Issues highlighted/recommendations by UNECE Report
– Use of technical regulations and technical standards:
quality control and quality assurance system; capacity
shortfalls; need to strengthen (standard setting) expertise;
equivalency arrangements; (comprehensive) mutual
recognition agreements.
• Relevant WTO disciplines
• No unnecessary technical barriers to trade (Article 2.2 TBT
Agreement); requirement to base SPS measures on scientific
principles and risk assessments (2.2 and 5.1 SPS Agreement)
• Requirement to use international standards whenever they exist,
unless they are ineffective or inappropriate or a higher level of
protection is desired (Article 2.4 TBT; 3.1 and 3.3 of the SPS
Agreement)
• The TBT disciplines apply not only to technical regulations, but also
to (non-binding) technical standards enacted by standardizing
bodies
Regulatory and standardization policies (2)
• Relevant WTO disciplines (cont'd)
• Mutual recognition (Article 6.1) and MR agreements (Article
6.3) – recognize other Members' conformity assessment
procedures; ensure equal treatment of requesting Members
– Kyrgystan has 12 MRAs
• Equivalence (Article 2.7 TBT and 4 SPS) – recognize the
content of regulation of another Member as equivalent.
Ensure equal treatment of requesting Members
– Note: equivalence guidelines by the SPS Committee
• Information dissemination (enquiry points) (Article 10.1 TBT
Agreement, Annex B of the SPS Agreement)
• Conformity assessment procedures
Aspects relating to Regional
Integration/GSP+ regime (1)
• Issues highlighted by UNECE Report
– Participation in the EU’s GSP+ regime
– Accession to Eurasian Economic Community (EEC)
Customs Union
• Relevant WTO disciplines
– The GSP+ regime is a preferential tariff regime covered by
the Enabling Clause (although academic commentators
sometimes question the WTO-legality of the EU’s criteria).
Kyrgyz participation in this regime does not entail any
issues of WTO-legality for Kyrgyzstan itself
– Accession to EEC Customs Union will require respecting
the WTO rules on re-binding (Article XXIV:6 and XXVIII),
including any applicable renegotiation and compensation
• Kyrgyz Republic’s trading regime vs. the CU/Russia
Aspects relating to Regional
Integration/GSP+ regime (2)
• Relevant WTO disciplines (cont’d)
– Article XXVIII negotiations are conducted with Members
who have so-called "initial negotiating rights (INRs)" and
"principal supplying interests"; consultations with
Members who have a "substantial interest".
– Examples from WTO practice concerning accession to CUs
• certain Central and Eastern European countries’ accession to the
EU;
• Most recently, see also Armenia’s accession to the Eurasian
Economic Union.
– However, very little publicly available information on these
negotiations themselves, because the process is
confidential. Results reflected in the CU's schedule.
Aspects relating to Regional
Integration/GSP+ regime (3)
• Relevant WTO disciplines (cont’d)
– Other aspects (e.g. rise in non-tariff barriers) due to
accession must be "necessary" for the
accession/formation of a customs union
– Discussion of intra-CU technical regulations
Trade Facilitation Aspects (1)
• Issues highlighted/recommendations by
UNECE Report & issues to keep in mind going
forward
– Information dissemination; strengthen market
support institutions; inform traders on changes in
trade-related regulations; consolidate private
sector consultation mechanisms; consolidate risk
management system; improve customs valuation;
– Report also highlights challenges for traders to
obtain necessary import/export documents
Trade Facilitation Aspects (2)
• WTO disciplines
– Transparency provisions in the Annex 1A
agreements (GATT 1994, TBT, SPS)
– New trade facilitation agreement (TFA) amplifies
and specifies these obligations, e.g. publication via
internet (Article 1.2.1); enquiry points (Article
1.3); advance publication (2.1)
– Requirements for obtaining import and export
permits/documentation must not constitute
import/export restrictions and must not be
discretionary (must be automatic)