What are geographical indications? What do they mean for post-Brexit UK?

People’s views of geographical indications range from cherishing them as precious cultural heritage and commercial property, to annoyance and scorn. They are complicated. Every argument has a counter-argument

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“How was your Cornish pasty sir? And your lamb, madam? It was New Zealand lamb. Excellent. Would you like some dessert? A cheese plate? We have a new Tiroler Bergkäse from Austria. I also recommend a fine French or Swiss Gruyère. And we have a lovely Caerphilly. Or our chef’s favourite mature Cheddar. A selection? Of course. And to go with that? Would you like to stay with your Amarone della Valpolicella? An Armagnac? A perfect choice. And sir? More Evian. Coming right up.”
Which of these are geographical indications? Answer at the end. (Click the image to see it full size)

By Peter Ungphakorn
POSTED MAY 5, 2018 | FIRST PUBLISHED ON UK TRADE FORUM APRIL 3, 2018 | UPDATED MAY 7, 2018

JUMP TO
PART 1 BASICS
What are geographical indications (GIs)?
What do they apply to?
Are they always place names?
How do they relate to rules of origin?
Why protect them?
How much protection?

PART 2 POLICY
How are geographical indications protected?
What does the UK face with the EU?
What does the UK face with other countries?
What does the UK face in the WTO?
Some GI titbits

PART 3 WHAT THE WAITRESS SAID

Among the thousands of policy questions facing Britain after it leaves the EU is what its approach should be for geographical indications. These are names — like Melton Mowbray pork pies, Rutland bitter and Bordeaux wine — that are used to identify certain products. The UK’s policy will affect both its own and other countries’ names.

People’s views of geographical indications range from cherishing them as precious cultural heritage and commercial property, to annoyance and scorn.

What are they? And what are the decisions facing the UK? This is an attempt to explain them simply. It’s in two main parts with a small third part tacked on.

Part 1 is the basics. Part 2 looks beyond that at policy. Meanwhile the waitress above mentions 10 types of food and drink. How many are geographical indications? The answer is in Part 3 at the end.

More details can be found on the websites of the World Intellectual Property Organization (WIPO) and World Trade Organization (WTO).

PART 1 BASICSBack to top
Photo by Lana Abie on Unsplash
Protection is not all the same: some products with geographical indications

What are geographical indications (GIs)?Back to top

They are names used to define both the origin and the quality, characteristics or reputation of products.

Origin is not enough. A cheese made around Roquefort-sur-Soulzon in southern France cannot be called Roquefort unless it is blue, made from sheep’s milk and meets a number of other criteria.

What do they apply to?Back to top

The vast majority of geographical indications are on food and drink, particularly wines and spirits. This is because soil and climate conditions can contribute to the products’ specific qualities.

Some countries protect other types of products as well. For example “Native Shetland Wool” (agricultural but not food) in the UK, “Swiss” watches (non-agricultural) in Switzerland, and some types of carpets and other handicrafts around the world.

Thailand would even like a service to be protected — traditional Thai massage — but internationally geographical indications are only used with goods.

Are they always place names?Back to top

Usually the terms used are place names, but sometimes they are other words associated with specific regions.

For example basmati is a long-grain fragrant rice variety and not a geographical name. However, it is associated with the Punjab regions of India and Pakistan, although its status as a geographical indication is debated (the EU doesn’t recognise it) because it is grown elsewhere too.

How do they relate to rules of origin?Back to top

This has absolutely nothing to do with rules of origin, which are about customs procedures — determining whether a product can be called “made in” a certain country and therefore should qualify for duty-free trade or other special treatment under trade agreements.

Geographical indications are a type of intellectual property, a form of “branding”, along with copyright, trademarks and others, because the products’ characteristics are the result of production techniques as well as location.

Why protect them?Back to top

Protection is intended to benefit both consumers and producers. The EU speaks of ensuring a product is “authentic” (for consumers), and providing a marketing tool to give producers “legal protection against imitation or misuse of the product name”.

Under WTO rules, the objective is to avoid misleading the public and unfair competition.

How much protection?Back to top
Sparkling wine: when is it champagne and when not?
Sparkling wine: when is it champagne and when not?

The bottom line for the WTO’s 164 members (including the EU and UK) is what is required in its intellectual property agreement (known as TRIPS or Trade-Related Aspects of Intellectual Property Rights). The agreement only sets minimum standards. It does not deal with individual names. How countries meet the standards and which names they protect is left up to them through their different legal systems.

The section on geographical indications is short. It has three parts, Articles 22, 23 and 24:

  • In general (Article 22), countries have to protect geographical indications to avoid misleading the public and avoid unfair competition. By this criterion, “Californian champagne” should be fine since consumers would be clear that this did not come from the Champagne region of France. But …
  • For wines and spirits (Article 23), protection is taken to a higher level — even if there is no danger of misleading the public or creating unfair competition. So “Californian champagne” is no longer valid. Except that …
  • There are a number of exceptions (in Article 24). These include if a term has become generic — cheddar cheese is clearly one case since it’s been made around the world for decades, if not longer. Also an exception is when the name was registered as a trademark before the WTO’s agreement was negotiated (“grandfathering”) — Parma ham has long been a trademark in Canada, an irritant for Italians who were unable to sell Prosciutto di Parma there until recently. The EU has waged a long-running and still unresolved battle with the US over the use of “Champagne”.

When the EU negotiates for its geographical indications to be protected in other countries, part of the effort is about reclaiming names that have become generic — or more vividly to “clawback” names that have been “usurped”. Feta cheese is one case. This 73-page document is what the EU and US have agreed for wines.

PART 2 POLICYBack to top
Gruyère, Switzerland
Gruyère is in Switzerland. Can France register a Gruyère cheese?

How are geographical indications protected?Back to top

The names are usually the property of groups of producers or regional or national authorities, not individual companies.

How they are protected depends on where, and this matters for the UK’s future relationships, such as how it seeks to have its own names protected abroad.

The European Union probably has the most detailed and sophisticated system. Stricter criteria apply to “protected designation of origin (PDO)” and only some products are eligible. A wider category is “protected geographical indications (PGI)”. A third, “traditional speciality guaranteed (TSG)”, emphasises the production method.

The EU’s database of wines contains over 1,700 EU geographical indications (some still being considered), and just over 1,000 from non-EU countries. Only five are British.

For spirits there are 270 geographical indications including some whose protection is being considered. Only four are non-EU. Two are British: Scotch whisky and Somerset cider brandy. Part-British is Irish whiskey made anywhere on the island of Ireland.

Watercress
British? The UK wants to protect ‘watercress’

For other products, there are almost 1,600 “registered”, “published” or “applied for” geographical indications from both EU and non-EU countries; 79 are British.

(See also this official UK list of names. Among the foods the UK wants to protect is “watercress”.)

At the other extreme used to be Norway. A few years ago, WTO members were asked to fill in a questionnaire with some examples of geographical indications they protected. Norway said it couldn’t be sure because it used consumer protection law rather than a register of names, meaning a term would have to be in a court case to know for certain.

It managed only one possibility. “‘Hardanger’ might be a protected name,” it suggested (page 80 here). Since then, Norway has brought its system much closer to the EU’s.

Some countries use specific geographical indications laws and registers. Some use consumer protection. In the US and many others protection is by trademarks and certification marks. There are even variations of approach within the EU. The UK told the WTO that it uses common law (“tort of passing off”) for some terms and trademark law for others, although fundamentally the UK is applying EU law. (See the annex in this now out-of-date WTO document.)

What does the UK face with the EU?Back to top

In theory, when the UK leaves the EU it will be free to decide how it protects geographical indications and which names to protect, so long as it complies with the WTO principles.

Will the UK move away from the EU’s near-obsession with geographical indications? It might not have too many wines, but it does have Scotch whisky and a lot of food products.

Its hand might also be forced by its future relationship with the EU. Geographical indications have always been a priority for the EU in its free trade negotiations and the EU has already demanded protection to continue in the UK after Brexit.

This is likely to mean the UK setting up its own lists of protected geographical indications with associated legislation.

What does the UK face with other countries?Back to top

Beyond the EU, the world of geographical indications has sometimes been described as a divide between old world countries, with traditional methods and products they want to protect, and the new world whose immigrant populations brought those techniques with them. It’s a bit more complicated than that. For example Taiwan is in the so-called new world group and some US producers now want protection for their own products, from wines to Idaho potatoes. But there is some truth in it.

In negotiations with some countries such as other Europeans, India and so on, the UK will be under pressure to protect their names. With others such as Australia, Canada, New Zealand, the US and some Latin American countries, the UK may be the one making the most demands to protect its names.

If it continues to protect EU geographical indications, Britain may need to tread carefully with the GI-sceptical “Anglosphere” countries. For example in its free trade talks, the UK might be under pressure to allow imports of Australian feta cheese (and it might want to make its own too).

The EU has deals on geographical indications with other countries, either as part of free trade agreements or separately. With Brexit, the UK wants to roll the EU’s free trade agreements over into its own, and may want to do the same with the deals on geographical indications. To do that will require either negotiation with the other countries or confirmation by them.

What does the UK face in the WTO?Back to top

The WTO agreements signed in 1994 included a commitment to set up a multilateral register for geographical indications of wines and spirts. Almost a quarter of a century later, members still have not agreed on how to do this.

The EU and its allies want the register to have some legal effect: if a name is on the register, then that should have some legal implications in all WTO members. The US and its allies see the register as little more than a database of information, which countries would be free take into account (or to ignore) when they decide whether to protect a particular name.

A second issue is whether to give some or all other products the same higher level of protection as is now given to wines and spirits (Article 23), and presumably to include them in the multilateral register. This is often called “extension”: extending the higher-level protection beyond wines and spirits.

Although this has been discussed at length in the WTO, members still have not even agreed whether it is officially a negotiation. A large number of countries support the move, but in some cases for complex bargaining reasons. The US, Australia and so on oppose it on the grounds that it would be too burdensome and restrictive, and that the standard level (Article 22) is good enough.

The UK will have to decide how to approach these questions, and also the WIPO treaties on geographical indications.

Some GI titbitsBack to top
But is it champagne? Darjeeling claims to be the champagne of teas
But is it champagne? Darjeeling claims to be the ‘champagne of teas’

Geographical indications are complicated. Every argument has a counter-argument so they are a perfect playground for intellectual property lawyers, as the endless and bottomless debates in the WTO show. Here are some illustrations.

“-style”? Or “-method”?
If “Bulgarian yoghurt” can only be made in Bulgaria, what about “Bulgarian-style” yoghurt? One view is that this is a useful indication of what the product is, helping rather than confusing consumers.

Against that is the argument that “Bulgarian-style” has no owner and no definition. The term could be abused. The reputation of yoghurt associated with “Bulgaria” would be damaged, hurting both consumers and genuine Bulgarian producers. The poor reputation of parmesan cheese made outside Italy is a real-life example.

After all, one of the features of geographical indications is that they have owners responsible for maintaining the quality and reputation. The loose term “Bulgarian-style” would not have that.

Orange: homonyms and more
Several places could have the same name, or names that sound the same (homonyms). The WTO agreement broadly covers that, but homonyms can still get pretty complicated. In late 2000 Australia entertained WTO delegates with an analysis of “Orange”. It’s a place name on five continents, some with vineyards producing what could be called “Orange wine”. And then there’s wine made from oranges. Orange is also a colour and a phone company’s trademark. It’s linked to words in other languages, including Persian where the fruit is named after Portugal, and so on. (See page 6 of this.)

Wait. What? A white wine from Champagne in Switzerland
Wait. What? Wine from Champagne in Switzerland post-2005

Champagne: Swiss and Indian
A small village in northern Switzerland is called Champagne. It used to produce a still white wine with the name, but not since 2005. Pressure from France put an end to that. Meanwhile, in the WTO debate on “extension”, a US delegate once remarked wryly that Darjeeling tea, a claimed geographical indication, is advertised as “the champagne of teas”.

Gruyère
Gruyère is a region in Switzerland surrounding the medieval village of the same name. The cheese was first made there in 1115. It’s now been produced elsewhere for generations and the name has become generic, sometimes using “Gruyère” or an equivalent in another language.

Gruyère is not in France. Nevertheless, France has managed to register “French Gruyère” produced in a dozen departments as a protected geographical indication in the EU. Despite the stereotype of Swiss cheese, authentic Gruyère has no holes. But the French version does: it “must have holes ranging in size from that of a pea to a cherry”, according to the EU regulation.

In Switzerland, “Le Gruyère” now has a Swiss protected appellation of origin (AOP) covering four whole cantons and parts of a fifth.

But is it protected in the EU? The 2011 bilateral agreement between Switzerland and the EU says it is, along with a number of other Swiss products. As an illustration of how complicated these names can be, in the agreement, Switzerland and Greece also promise not to translate “graviera” (γραβιέρα) as “gruyère” and vice versa.

However there seems to be no internal EU law or regulation confirming this — not yet anyway — and nothing Swiss appears in the “DOOR” database of products other than wines or spirits. We can only assume the bilateral agreement holds.

On a much smaller scale than the EU, Switzerland has also been trying to “reclaim” terms that have become generic. In 2013 it secured US registration for “Le Gruyère” as a certification mark (similar to trademark). But a joint application by French and Swiss producers to protect just the word “Gruyère” in the US has been challenged and remains unsettled.

One of the most-debated names: feta
Most-debated: feta cheese

Feta
This is one of the most-debated names in the WTO. The minutes of this meeting contain 14 pages of debate in which “feta” appears 50 times. Similarly for these meetings. Is it eligible for protection? Is it generic? Where exactly is its origin? Greece, Bulgaria, Denmark even? Is the legal situation in the EU contradictory? Should migrants to Australia be allowed to continue to use the name for the cheese that their ancestors made? Is feta actually produced in Australia by immigrants or by large companies?

Still have an appetite?
In 2005, the WTO Secretariat summarised the debates on “extension” in the organisation in a 44-page 21,000-word paper. Heavy going but essential reading for anyone wanting to dig deep into the subject. You can also download this 232-page guide from the International Trade Centre. Either way, keep a good Irish whiskey or Spišská borovička at hand.

FINALLY PART 3 WHAT THE WAITRESS SAIDBack to top

At the top of this article, the waitress refers to 10 types of food and drink (not counting the general “lamb” and “cheese”). Some are geographical indications, some are not:

Geographical indications protected in the EU and therefore the UK — Cornish pasty; Tiroler Bergkäse; Caerphilly; French Gruyère; Amarone della Valpolicella; Armagnac. The EU has agreed to protect Le Gruyère from Switzerland but this does not (yet) appear in the EU’s database.

Names that are generic in the EU/UK — Cheddar (except “West Country Farmhouse Cheddar cheese,” which does include the original Cheddar area in Somerset, and “Orkney Scottish Island Cheddar”, from over 1,000 km away)

Not geographical indications in the EU/UK — New Zealand lamb (although “Scotch lamb” is); Evian (Evian is a place, a lakeside French town at the foot of the Alps, but the name is a trademark for bottled water)


Updates: May 7, 2018 — references to Switzerland’s “Le Gruyère” have been corrected to reflect protection in the EU under the 2011 bilateral agreement and to remove the assertion that the name is not protected because it’s not in the DOOR database. (Thanks to Christian Häberli for pointing me to the bilateral agreement and the US certification mark)

Photocredits:
• Waitress — Steven Cleghorn on Unsplash, CC0 (public domain)
• Wine, cheese and parma ham — Lana Abie on Unsplash CC0
• Champagne — Pexels CC0
• Gruyère; wine from Champagne in Switzerland — Peter Ungphakorn CC BY 4.0
• Watercress and chives on bread — silviarita on pixaby CC0
• Darjeeling tea montage — black tea leaves, photo by Oleg Guijinsky on Unsplash CC0; Darjeeling tea, first flush 2007 Risheehat Estate, photo by David J Fred CC BY-SA 2.5
• Feta — JJ Harrison CC BY-SA 2.5


Grandfathering EU free trade deals for the UK: a look at an actual text

After Brexit, ‘Global Britain’ will want free trade agreements with the rest of the world. But it already has some 37 agreements with over 60 countries through the EU. Rolling them over into the UK’s own agreements will not be automatic. A look at the actual text of the EU-South Korea deal shows why

By Peter Ungphakorn
FEBRUARY 13, 2018 | UPDATED FEBRUARY 15, 2018

Leaving the EU means the British government will either have to convert the EU’s free trade agreements with other countries into UK deals, or risk losing them, when Brexit is supposed to be about to allowing Britain more freedom to enjoy trade agreements with the world outside the EU.

At the very least, the UK should continue with the deals it already has through the EU, with Norway, Iceland, Switzerland, Canada, South Korea, Japan (in the pipeline) and many others. Academics at Sussex University say there are over 60 other countries. The UK government says there are over 100. It depends on what kind of agreement is counted.

Grandfathering: or even great-grandfathering | drawing by bamenny
Grandfathering: or even great-grandfathering | drawing by bamenny

JUMP TO

Transition and long term
Possible to do; impossible to do quickly
Grandfathering: more than CTRL+C, CTRL+V
Photocopier? Or negotiating table?
Safeguards
The dreaded rules of origin

Even then, the “rolled over” free trade agreements could be less valuable to the UK outside the EU than inside, unless talks can be set up with all three parties leading to something called “diagonal cumulation of rules of origin”.

As with much about Brexit what some fancied was a simple task is actually pretty complicated.

Many had thought that the UK could more or less copy and paste the agreements.

Shanker Singham of Legatum Institute told the Commons International Trade Committee that the UK would simply “replicate” them.

Few thought that the other countries involved might want to negotiate this with the UK — until news broke that some might seek just that, even during a transition period.

Much of the complexity is shown in a paper (pdf) by Michael Gasiorek and Peter Holmes of Sussex University and published by the UK Trade Policy Observatory (UKTPO). They say something that few had considered: that what appears to be a set of bilateral talks will turn into a threesome — the EU will be involved too. This is one of their summary points:

“Grandfathering existing EU free trade agreements is unlikely to happen without some engagement or negotiation with the EU. Hence what you might think is a bilateral issue between the UK and a given Free Trade Agreement (FTA) partner, becomes a trilateral issue which also involves the EU.”

“Grandfathering” means continuing with an older arrangement (here the existing EU free trade agreements), which might lapse or be superseded when a new arrangement is introduced (the UK leaving the EU). The Sussex paper is a comprehensive account of the various issues that could be raised in the talks.

There’s also a short video:

And Michael Gasiorek discusses this in a podcast in the Peterson Institute’s “Trade Talks” series of podcasts.

Transition and long termBack to top

The British government too is learning that this is going to take longer than it had first thought.

“I hear people saying ‘oh we won’t have any [free trade agreements] before we leave’. Well believe me we’ll have up to 40 ready for one second after midnight in March 2019,” International Trade Secretary Liam Fox told a fringe meeting at the Conservative Party Conference only last October.

Is grandfathering difficult or impossible? No, for the most part, it shouldn’t be. But there’s a lot to copy, adjust and check. And the number of negotiations the UK will be involved in for Brexit is huge.

Then there are the more complex areas such as “tariff quotas” and agricultural “safeguards” and “rules of origin”. It becomes even more complicated if the other countries want to negotiate additional adjustments.

Then, on February 8, the government admitted for the first time that this will not be possible. It released a position paper (pdf) calling for the EU’s free trade agreements to continue to apply to the UK — as if it were still an EU member — during the proposed two-year transition period after March 2019.

The paper cites article 31 of the Vienna Convention on the Law of Treaties as the legal basis. I’m not a lawyer, so I’m not going to discuss the legal aspect other than to note that the UK says the agreements involved are with over 100 countries.

To keep life simple, this would probably mean EU institutions continuing to handle various aspects of the free trade agreements on Britain’s behalf, such as managing the allocation of tariff quotas among importers (including British companies), confirming that imports into the EU (including Britain) meet EU standards and “rules of origin”, and participating in committees set up under the agreements and in disputes.

What happens after the transition period remains to be seen. The quickest approach would be to convert the EU’s agreements into the UK’s. The alternative would be for the UK to negotiate new agreements from scratch. But since it may want to do that with other countries such as the US, China, Australia, New Zealand and so on, the load on UK trade negotiators would be immense.

Michael Gasiorek’s and Peter Holmes’ paper actually speaks of “great-grandfathering”! But more importantly, it refers to complex supply chains, which are important for a number of reasons:

“Clearly the UK will want to and needs to establish the nature of its relationship with the existing FTA [free trade agreement] partner countries on a long-term basis. However, this will be more difficult to achieve without the partner countries knowing what form of trade agreement the UK has with the EU.

“For many products this is because we are in a world of more complex supply chains and for many FTA countries, their exports to the EU may be indirect via the UK. For some agricultural products where tariff-rate quotas apply, changing access to the UK may impact on their access to EU markets.

“It is therefore likely that both the UK and the partner countries may seek to roll the agreements over on a temporary basis for the duration of the transition. In turn, that means that during the transition period the UK will need to renegotiate these agreements, or at a minimum, renegotiate the grandfathering, hence greatgrandfathering the agreements” (page 5)

Overall, Gasiorek and Holmes suggest renegotiation might be needed because of rules of origin, most-favoured-nation (MFN) or non-discrimination clauses, mutual recognition of standards and regulations, and tariff quotas. I will look at a couple of those issues, but I’m not going to repeat their excellent work. Their paper speaks for itself.

Possible to do; impossible to do quicklyBack to top

What I am going to do here is to dip into the EU-South Korea free trade agreement — and I really mean “dip in” because it’s over 1,400 pages long — to highlight a few issues that attracted my attention. They are intended as examples to illustrate some important points. This is also developed from an older Twitter thread.

The bottom line. Is grandfathering difficult or impossible? No, for the most part, it shouldn’t be. But even where it’s relatively straightforward, the task is time-consuming. There’s a lot to copy, adjust and check. If there were only one agreement to deal with, it could be completed quite quickly. But the number of negotiations the UK will be involved in for Brexit is huge.

Then there are the more complex areas such as “tariff quotas” and agricultural “safeguards” (there aren’t many in the EU-S.Korea agreement but there are a lot more in the agreement with Canada) and “rules of origin”. It becomes even more complicated if the other countries want to negotiate additional adjustments.

Milking protection: Dairy products are often excluded | Mihail Macri on Unsplash
Milking protection: Dairy products are often excluded | Mihail Macri on Unsplash

Grandfathering: more than CTRL+C, CTRL+VBack to top

You don’t have to go very far into the text to see that there are references to the EU which will have to be replaced by the UK’s equivalents.

Article 1.2 General definitions

Numerous references to EU procedures and regulations will also have to be changed.

Regulations, market access Article 3

The endless lists of regulations will have to be replaced with UK versions. This is just a small part of a long table of regulations for vehicles.

Technical regulation for cars, extract

All of this is also bound up in how the UK sorts out its own post-Brexit arrangements.

And provisions such as this would have to go:

Ceuta and Melilla

And then there are services. The EU-S.Korea agreement has long lists describing where their services markets are opened up to each other (pages 1165-1250 for the EU’s commitments). Much can be copied for the UK. There are also lots of provisions which don’t apply to the UK and will have to be removed, and a lot that refer to the EU as a whole, which will have to be changed.

This is what the agreement says for mining and quarrying services. It’s complicated, technical stuff, but even if we don’t understand it fully, at the very least “5% of the European Union’s oil or natural gas imports” will have to be changed to “the United Kingdom’s”. You have to be an expert in the field to know if that “5%” will stay unchallenged.

“EU: Unbound for juridical persons controlled […]  by natural or juridical persons of a non-European Union country which accounts for more than 5 % of the European Union’s oil or natural gas imports. Unbound for direct branching (incorporation is required). Unbound for extraction of crude petroleum and natural gas”

Services commitments on mining and quarrying
Click the image to see it full size

Finally there are institutional arrangements, everything from committees and working groups to arbitration procedures, which will have to be set up for the new bilateral relationship

Article 15 creates a “Trade Committee”, which meets annually, plus at least six “specialised” committees and at least seven working groups:

Trade Committee and specialised committees

The agreement includes procedures for settling disputes, including the creation of arbitration panels and references to international law including the Vienna Convention on the Law of Treaties and World Trade Organization dispute rulings. The procedure is similar to the WTO’s and adapting it for the UK would be relatively simple.

Arbitration panel

So, the task has moved beyond copy-paste to search, adjust, adapt, replace or delete. The volume is pretty large, and this is just one of the 37-or-so agreements. Still, what we have looked at so far won’t necessarily need any negotiation, just a lot of work.

Copy or talk? Going beyond copy-paste to search, adjust, adapt, replace, delete and negotiate | Mickey970
Copy or talk? Going beyond copy-paste to search, adjust, adapt, replace, delete and negotiate | Mickey970

Photocopier? Or negotiating table?Back to top

Where negotiations will be needed is on market access, particularly for goods, but only on some parts. (There may be no need to renegotiate services, but the technical detail is beyond me.)

For goods, the EU-S.Korea agreement lists tariffs on around 900 pages. They could be run through the photocopier — except that S.Korea is reported to be one of the countries that might seek unspecified concessions from the UK, according to Politico:

“South Korea has already indicated that it wants to address its trade deficit with the U.K., which was particularly high between 2012 and 2015, before granting Britain continued market access during transition, EU diplomats and business people said.

“‘Exports are South Korea’s credo No. 1, and trade balance is their credo No. 2,” said Christoph Heider, president of the European Chamber of Commerce in Korea, who is in close contact with the government in Seoul. “I expect that Great Britain will have to make concessions if it wants to stay in the trade deal during the transition.’”

In many cases, tariffs are not scrapped from the start: they are phased out over different periods depending on the product, from immediate (most products) to 21 years and in some cases tariffs are never eliminated (“staging category E”). So the UK would be stepping into an appropriate phase of the reductions (unless “rolling over” took more than two decades!)

What most people forget is the EU’s free trade agreements include tariff quotas as well. That’s where limited quantities of imports are allowed in duty-free or at lower than normal rates, also known as tariff-rate quotas or TRQs. And it’s where negotiations will probably be needed.

The EU-S.Korea agreement has a few, mainly on the Korean side. Here’s one for flatfish where the duty-free allowance increases from 800 tonnes in year 1 to duty-free for all imports from year 13.

Flatfish tariff quota
Click the image to see it full size

Here’s another on various types of milk and cream. This time the duty-free allowance remains indefinitely at 1,512 tonnes after year 16 (“staging category E”), meaning quantities outside the quota will be charged import duty, which is 89% or 176% depending on the product. (The tariff rates are on page L127/102 of the EU’s version of the text (pdf).)

Milk tariff quota
Click the image to see it full size

This is not exactly “free trade”. It’s an example of how trade agreements are not necessarily as free as they are made out to be, and a warning to those who argue that the value of the UK’s present access to the EU market can be replaced by trade deals with other countries.

What will the UK’s share of that 1,000–1,512 tonnes be? The answer is likely to come from talks among all three sides: the UK, EU and S.Korea.

Incidentally, The EU’s agreement with Canada (the Comprehensive and Economic Trade Agreement, or CETA) has many more tariff quotas for imports into both sides. The EU has them on some kinds of seafood, wheat, sweetcorn, bison meat, beef and veal, and pork.  Canada has them on cheese.

This is part of the EU’s CETA tariff-quota on one category of beef and veal (there are more details than this):

CETA tariff quota beef and veal (EU)
Click the image to see it full size

And this is Canada’s tariff quota for one category of cheese, again ignoring a lot of additional detail:

CETA tariff quota, cheese (Canada)
Click the image to see it full size

Although Canada is apparently keen to use copy-paste as much as possible, there will almost certainly be renegotiations over the tariff quotas.

Added protection: South Korea retains the right to impose safeguards on apples for 24 years | Don O’Brien
Added protection: South Korea retains the right to impose safeguards on apples for 24 years | Don O’Brien

SafeguardsBack to top

One type of tariff barrier that has received little attention is “safeguards”. These are temporary increases in import duty to protect producers from import surges or falling prices, the kind of raised duty the US recently imposed on washing machines and solar panels.

For agricultural products and in bilateral trade agreements the rules are not quite the same as for industrial goods. Here, S.Korea has secured the right to impose an additional duty on beef imports of up to 40% for the first six years, the ceiling declining to zero after 17 years, if the “trigger level” specified is reached.

SKorea's agricultural safeguard for beef
Click the image to see it full size

S.Korea has the right to use safeguard duties on pork, apples, malt and malting barley, potato starch, ginseng, sugar, alcohol, and dextrins.

For beef the right to impose a safeguard duty expires after 16 years. For pork it’s 11 years, for apples 24 years, and for other products somewhere in between.

The trigger volumes were for the whole of the EU-28. Copying the same trigger level for imports from the UK alone would not make sense for S.Korea. To do so would double the size of the import surge before Seoul could react. That means these volumes would be split between the UK and EU, requiring negotiations between all three sides.

In its agreement with the EU, Canada has dozens of products eligible for additional safeguard duty, but the EU has none.

Made in … where? Rules of origin determine if cars qualify since they can be made from components sourced anywhere
Made in … where? Rules of origin determine if cars qualify since they are assembled in complex supply chains | Bilerandi

The dreaded rules of originBack to top

To qualify for lower duty or duty free access to the EU market, or for recognition of standards under the agreement, a product has to be shown to have been made in S.Korea. The same goes for EU products entering S.Korea, and for UK products under a future UK-S.Korea deal.

Anyone who has looked at these “rules of origin” knows they can be pretty complicated, to the extent that lower tariffs are not always worth the additional red tape. (You can find explainers by the Institute for Government here, and by Sam Lowe here.)

The criteria start with general rules on what qualifies and what proof is needed, covering 8 pages (1346–1354) in the EU-S.Korea agreement. For example, Article 6 lists 17 operations that cannot be cited — “sharpening, simple grinding or cutting” is not enough (item (i)). Nor is it enough if two ingredients from elsewhere are simply mixed together in the EU — they cannot be said to be “made in the EU” (item (m)):

Rules of origin on insufficient working or processing

But that’s just the start. A further 57 pages has tables of excruciating detail — like this on what is required for two types of “woven fabrics of man-made-filament yarn” to qualify with the right origin:

Rules of origin on woven fabrics of man-made filament yarn
Click the image to see it full size

(Note that in that last paragraph, the product can qualify even if the value of the unprinted fabric exceeds 47.5%, so long as the fabric itself is also of local origin.)

Could these rules of origin just be run through the photocopier? Maybe. But remember right now exports from the UK to S.Korea only have to qualify as “made in the EU”, meaning components could be sourced anywhere in the 28 countries. A post-Brexit UK-S.Korea free trade agreement would only deal with products “made in the UK”.

In other words, from the point of view of qualifying products, a future UK-S.Korea agreement will be much less valuable for the UK than the present EU-S.Korea agreement.

Complicated? That’s just the start. Here’s what Gasiorek and Holmes say about duty-free imports involving the UK, EU and S.Korea:

“It is important to note that this could easily mean that, for example, a given intermediate input could be exported directly from Korea to the EU duty free, but if that input is used in the production of a UK good which is then exported to the EU, that input cannot count for UK originating status.

“The same could apply to UK exports of intermediates to the EU which are then used in EU exports to Korea; and EU exports of intermediates to the UK which are then used in UK exports to Korea. Hence bilateral flows between each of the three countries in this example (the UK, Korea and the EU) are likely to be affected.”

They then talk about “diagonal cumulation”, essentially a three-way deal that says if assembly, processing or other form of production in any two (combined) of the three meets the requirement, then the item can be imported duty-free into the third.

And a three-way deal needs a three-way negotiation.

Finally, how well does EU-S.Korea represent other EU free trade agreements? It depends. No two agreements are the same, but they can be similar. The Korean agreement is partly similar to the Canadian one but also has significant differences.

Norway and Switzerland are important trading partners of the UK. One of the most complicated agreements for the UK to grandfather is the one with Norway, Iceland and Liechtenstein — the European Free Trade Association (EFTA) countries, which form the European Economic Area (EEA) with the EU.

As for Switzerland, its arrangement with the EU is through bilateral agreements. Here, the official list (pdf) — containing only the names of the agreements — runs to 28 pages!


Developed from a Twitter thread from October 25, 2017. On February 15, 2018, I wrote this thread about the response to this article.
Updates
: February 14, 2018 — added a link to Lorand Bartel’s article on various legal implications in Borderlex.
Photos and drawing: Either CC BY 2.0 or CC0


Introducing the WTO elephant and its dodgy health

People’s understanding of the WTO is a bit like the ancient parable of the blind men and the elephant. Even those who have spent their lives working on it stress different aspects

By Peter Ungphakorn
DECEMBER 17, 2017 | ORIGINAL PUBLISHED ON UK TRADE FORUM DECEMBER 16, 2017 | UPDATED DECEMBER 17, 2017

There’s been an elephant in the room ever since the discussion of Brexit and trade began. Gradually, bits of the animal have become visible, but what we’ve seen has not always been accurate. It’s time to complete the picture, and to understand why the beast isn’t in the best of health.

The elephant is the 164-member World Trade Organization (WTO), whose trade ministers have just ended their biennial conference in Buenos Aires, December 10–13, with little achieved substantially.

WTO building_BW cropped_1200pxl
What is this elephant? The WTO’s headquarters, Geneva

JUMP TO

Leg 1: Trade negotiations
Leg 2: Implementing and monitoring
Leg 3: Dispute settlement
Leg 4: Development
Putting it all together

WTO agreements already apply to the United Kingdom’s relationship with the European Union as an EU member.

As the Brexit talks enter their second phase, they will determine what can and cannot be done with the future UK-EU relationship on trade — sometimes explicitly, sometimes quietly behind the scenes. WTO rules will also affect any trade relationship Britain seeks to define with the rest of the world, whether globally, regionally or with individual countries.

How well WTO rules and the terms of Britain’s WTO membership work depends on the nature of the elephant and its health, which cannot be taken for granted.

People’s understanding of the WTO is a bit like the ancient parable of the blind men and the elephant.

IT was six men of Indostan
To learning much inclined,
Who went to see the Elephant
(Though all of them were blind),
That each by observation
Might satisfy his mind.

Blind_men_and_elephant 3_adj_770x340
Is it a wall? Is it a spear? Is it a snake? Is it a tree? Is it a fan? Is it a rope?

Each feels a different part and, according to this version, they observe separately a wall (the body), spear (tusk), snake (trunk), tree (leg), fan (ear), and rope (tail).

And so these men of Indostan
Disputed loud and long,
Each in his own opinion
Exceeding stiff and strong,
Though each was partly in the right,
And all were in the wrong!

The same applies to the WTO. Even people who have spent their lives working on it stress different aspects.

Some lawyers’ eyes magnify WTO dispute settlement and its jurisprudence, the “jewel in the crown”. For some practitioners, what matters are the achievements of WTO committees whose work is partly designed to avoid legal disputes. Many journalists judge the WTO by the success or failure of negotiations. And so on.

So what is this elephant?

The WTO’s own explanation is here. We’ll do it differently, focusing on the elephant’s four legs — bearing in mind that the whole elephant is the WTO’s multilateral trading system. The elephant stands or moves on those legs. All four are important. Right now they are not too steady.

Leg 1: Trade negotiations — where WTO rules come fromBack to top

Japanese_Blind_monks_examining_elephant_383x270

Negotiations are the starting point of everything that happens in the WTO. All “WTO rules” are actually negotiated agreements. Everything the WTO does is based on them.

They include key principles such as non-discrimination and transparency, and aim for a trading system that is stable and predictable.

They have been negotiated and re-negotiated since the end of the Second World War, starting with the 1947 General Agreement on Tariffs and Trade (GATT, which deals with trade in goods), through the addition of services and intellectual property in 1995 (when the WTO was created) and to streamlining border procedures (“trade facilitation”) in 2013.

Negotiations can be by individual subject, or as a package or “round” covering many subjects. Rounds allow trade-offs across subjects, which can help to break deadlock — for example, a country reluctant to reform agriculture might find it easier to do so if other countries open up their financial services markets in return. But because rounds cover many subjects they are also more complex. Single-subject negotiations are simpler but with less scope for trade-offs.

In 2001 WTO members agreed to launch the Doha Round. They hoped to reach agreement in four years, and they failed. Despite immense progress in 2006–2008, the talks fell short of agreement. Since then, they have stagnated. In the meantime a handful of single-subject deals have been struck. Some came from the Doha Round, including the one in 2013 on trade facilitation.

Agreement in the WTO is by “consensus”, which means no one objects. In 2015 some countries such as the US wanted to declare the Doha Round to be over. Others, mainly developing countries, disagreed. Without consensus, the Doha Round could not be declared dead. But it could not continue in that form either. I’ve called it a zombie.

The WTO’s political leaders, ever since Mike Moore was its director-general in 1999, have measured their own success or failure by the fate of negotiations. By that measure, Moore was successful in launching the Doha Round but all his successors have failed to conclude the talks, until recently when single-issue deals have been agreed.

But there’s more to this elephant than that.

Leg 2: Implementing and monitoring — vital, routine WTO workBack to top

Thai_Blind_men_and_elephant_383x439

Someone described the WTO’s negotiations and other headline-hitting work as the “poetry” in its “plumbing”. The plumbing is unglamorous and rarely seen but cannot be ignored.

Signing negotiated agreements is not an end: it’s a beginning.

Most of the WTO’s routine work is about monitoring how well countries keep the promises they made in those agreements and implementing what was agreed.

It involves a huge amount of information-sharing and scrutiny by WTO members — in over 20 “regular” committees, each comprising the full membership. This leg is wobbling because members struggle to keep up-to-date with the information they have to supply once or twice a year, or when they introduce new regulations or policies. That makes monitoring difficult.

Even when countries keep their promises, the way they do it can hamper trade. When these problems are raised in the committees, solutions can be found just by talking, avoiding expensive legal disputes. Some of the most productive work is on product standards and regulations, such as how to ensure food or industrial products are safe.

If there is no news from these committees, then the system is working well. Generally, peer pressure encourages countries to keep the promises they made in the agreements. That in itself should be news but it’s rarely reported.

All of this means most of the $20 trillion global trade in goods and services flows smoothly and almost unnoticed. Some experts even argue that the WTO’s success or failure should be measured primarily by the “plumbing”, not the poetry.

Leg 3: Dispute settlement — adjudicating WTO lawBack to top

Blind_men_and_elephant_2_383x358

Back to the poetry, though. Formal WTO disputes attract much more attention. They help enforce agreements. They also deal with huge amounts of money (such as aircraft subsidies) or other concerns (such as when tuna fishing endangers dolphins).

WTO disputes are always between governments, so “Boeing” versus “Airbus” is actually the US versus the EU.

And they are always about broken promises (violations of WTO agreements, commitments or expected rights). If a government simply dislikes another’s trade policy in general, the solution is to try to negotiate new rules.

Normally, that is also the recourse when a country is dissatisfied with a dispute ruling.

This year, something different has happened. The US is unhappy with rulings against a particular method it used to calculate something called a “dumping margin”. It’s all very technical but powerful commercial interests are involved and the upshot is that the US is blocking the appointment of WTO appeals judges to replace those whose terms expire. By December 11, they had dwindled from seven to just four.

Unless something changes, WTO disputes could eventually come to a halt. The elephant would be toothless.

Leg 4: Development — the WTO’s particular roleBack to top

Blind_men_and_elephant_255x395

The WTO Is not a development agency, but members want it to have a role. It does this in several ways.

Trade itself is supposed to help developing countries. The rules in the trade agreements also include a considerable amount of leeway for them.

The WTO hosts “aid-for-trade” meetings between development agencies and other donors, and developing countries, so that aid matches real needs as much as possible.

And the WTO Secretariat also trains officials from developing countries so they can operate better in the system.

Acknowledging this used to be routine. Not anymore.

The US blocked a draft declaration for the December 10–13, 2017 WTO Ministerial Conference in Buenos Aires. It objected to the  commitments to the WTO’s multilateral trading system and development, both standard in previous declarations.

Putting it all together — and what it means for the UKBack to top

Some have claimed that the threat to the dispute settlement system means the elephant could be on its deathbed. Others have said the same about the failure to conclude a major negotiation. And then there are those who remind us that the routine work is in reasonably good health, even if the information that members notify to the WTO needs to be better and to arrive faster.

As far as Brexit is concerned, a weakened WTO would allow Britain more leeway in how it chooses its trade policies. But it if the UK feels that others’ trade policies are unwelcome, a weakened WTO would also give it less leverage to deal with the problem.

As for the idea that by leaving the EU, Britain can inject new life into the elephant (which some seriously believe), at the very least the UK will need to learn how to ride it first.


Slightly adapted from: “What is the World Trade Organization?” on UK Trade Forum

Updates: None so far

Photocredit: WTO building © WTO

Illustrations: drawings and paintings of the blind men and the elephant, all public domain:
from Charles Maurice Stebbins & Mary H Coolidge,
Golden Treasury Reader (US);
by Itcho Hanabusa (Japan);
from Phra That Phanom chedi temple (Thailand):
from
Holton-Curry Readers (US);
from Augusta Stevenson,
Children’s Classics in Dramatic Form (US)


How to be a trade champion

A guide for busy politicians


By Peter Ungphakorn
NOVEMBER 21, 2017 | UPDATED NOVEMBER 21, 2017

By Abraham Storck - Public Domain, https://commons.wikimedia.org/w/index.php?curid=1147660
Size counts: the more you trade, the bigger your clout in the WTO

International Trade Minister Greg Hands has again proclaimed the UK is a global trade champion only needing to “reclaim our position at heart of global trading system”.

I have written a longer piece on this. Here are some key points for busy readers. I’m using the WTO as the context since that’s where “the heart of the global trading system” is.

How to be a trade champion
  1. Have a policy
  2. Sort out the UK’s WTO membership terms
  3. Be large(-ish)
  4. Have a position that resonates with others
  5. Either
    a. be constructive so everyone likes you
    or
    b. be stubborn so everyone has to put up with you
  6. Have a good supply of skilled diplomats and trade officials
  7. Accept that you still might not be at the top table

The WTO operates a consensus system, which means a decision is reached when no one objects.

In theory all 164 members should have the same decision-making power. In practice, there is an unofficial power structure, even though consensus is ultimately needed: the power structure influences the consensus outcome.

At the top: these days it’s the G5 — the US, EU, Brazil, China, India.

Next level down: the “Green Room” or equivalent — 20 to 30 members because of their influence or because they represent constituencies. They include the G5 plus Canada, Japan, Switzerland, Australia, Argentina, and others representing various groups of developing and least developed countries.

This is roughly how they got there and what the UK would need to join them

1. Have a policyBack to top

Obviously. But when politicians talk about the UK being a champion of trade, they are also advocating the UK being much more of a free trader than it is now, particularly in agriculture. This has not been debated properly and is certainly not the official policy of any of the main British political parties. In particular, this government has promised to continue to support farmers at present levels, at least for a time. Moving away from that would involve some substantial changes that have barely been discussed.

If the UK ends up in a customs union with the EU, then its trade policy for goods (not services) will be more or less the same as the EU’s. If it doesn’t, it may have a freer hand, but a lot also depends on how it aligns its regulations. Even though a customs union is not government policy, some still advocate it. Other policies are also still up in the air.

2. Sort out the UK’s WTO membership termsBack to top

The UK (and EU) have only just started talking about establishing their separate commitments in the WTO on tariffs, “tariff quotas” (explained here), farm subsidies, and on opening services and public procurement markets. It’s taken months just to prepare data for the tariff quotas and the real negotiations haven’t yet begun.

These commitments will be needed by Brexit day, March 29, 2019, so that the UK’s WTO membership terms are clear, and it’s going to be hard work. There’s no harm in having a long term vision, but for now the focus should be on the more urgent nitty-gritty.

3. Be large(-ish)Back to top

A key reason for being either in the G5 or the Green Room is economic size, particularly the share of world trade. As a rough guide we can look at WTO figures for goods exports.

Among the G5, the EU would be top if counted as a single entity, followed by China and the US. But the WTO ranks EU member states individually (Germany 3rd, the Netherlands 5th, etc) and this puts India 20th and Brazil 25th.

Among countries in the Green Room, with their ranking, are: Japan (4, after Germany), Canada (12 after a number of EU states, Hong Kong and South Korea), Switzerland (15), Australia (23), and so on.

And the UK? Tenth, putting it well inside the Japan, Canada and Switzerland group.

The factors that affect trading size include the size of the economy (population size and per capita income), the value of products (which goes some way to explaining Switzerland’s high ranking), and also having a large port (as with Hong Kong and Singapore, and to some extent the Netherlands).

4. Have a position that resonates with othersBack to top

Size is not the only reason Brazil, China and India are in the G5. They each speak on behalf of different groups of developing countries. Brazil tries to bridge the differences between agricultural free traders (Thailand, Uruguay) and those wanting to protect their poor farmers (India, Indonesia, Kenya). In different ways China and India sometimes speak on behalf of weaker developing countries.

At the next level are coordinators of various coalitions of shared interests. Australia represents agricultural free traders. Switzerland coordinates a group of more advanced but more defensive agricultural producers. Others represent the African Group, the least-developed countries, and so on.

If the UK sticks to its present trade policy, it could find that the EU still best represents its position even after Brexit.

Or will its trade policy change? For now, that’s unclear. To be a leader of any kind, it would have to develop a new separate policy of its own, and one that would resonate with other members. But the field is already crowded. In agriculture, the UK might have to accept the leadership of Australia or Switzerland, depending on which direction it chooses, or be a lone voice with no followers.

5a. Either be constructive so everyone likes youBack to top

One way of winning friends and influencing people in the WTO is to help break a deadlock by proposing a compromise that everyone likes enough to want to work on it. This requires knowledge, skill and subtlety. It means understanding what might and might not be acceptable to others and the creativity and imagination to produce something new.

Countries rarely do this on their own. In the past few weeks, China has produced a new proposal on disciplining fisheries subsidies on its own, but the paper essentially reflects a Chinese concern and will need to be negotiated. By contrast, the EU and Brazil approached the negotiations on curbing farm subsidies from different directions and proposed a draft compromise. Whether that succeeds remains to be seen.

5b. Or be stubborn so everyone has to put up with youBack to top

India has a decades-old reputation in the WTO for being a blocker although it would argue that it is defending the weak and vulnerable. Most recently, it held up a new agreement on streamlining border procedures (“trade facilitation”) in order to push a separate proposal that would free public stockholding of food from WTO subsidy disciplines.

Anyone can be stubborn. From time to time the US and EU have been too, so size counts as well. There’s no doubt that a large and vocal India was difficult to ignore.

An anecdote. In 1986 the US and EU wanted to launch a major new round of negotiations. Some hardline developing countries led by India, Brazil and Argentina opposed the move. Finally two smallish countries, Colombia and Switzerland decided to take matters into their own hands. They produced a joint compromise proposal (appropriately nicknamed “café au lait”). More and more countries signed on, and that eventually became the basis for launching the “Uruguay Round” talks, which created the WTO.

In that example, constructive compromise trumped stubbornness.

6. Have a good supply of skilled diplomats and trade officialsBack to top

If you’ve read this far, the need is obvious. Trade is technical and political. If a country is to operate effectively and credibly it needs skilled officials who can understand both the technicalities and other countries’ concerns.

Right now, the UK is in the early stages of rebuilding its capacity to negotiate trade. Its initial focus will be on sorting out its trading relationship with the EU, then on negotiating or renegotiating bilateral free trade agreements with other countries.

Those deals will be important for the UK, but they are not enough to make it a trade champion on the world stage. For some time to come, they will also draw British resources away from work in the WTO.

7. Accept that you still might not be at the top tableBack to top

In fact there is really little chance that the UK will be in the G5 or whatever evolves next. A proper analysis of how countries fit into the power structure is bound to show that.

There is no shame in this. Constructive middle-level roles in the WTO — such as by Canada, Australia, Argentina, Japan, Switzerland, etc — are vital for the trading system. They are all realistic about what they can achieve and they get on with it.

The UK should do the same. Misguided self-importance will only backfire.


Updates: None so far
Photocredits:
• Harbour scene by Abraham Storck, public domain


What WTO leadership means and where the UK would fit in

People who should know better keep talking about the UK becoming a leader in the World Trade Organization. What exactly does this mean and what are the chances?

By Peter Ungphakorn
NOVEMBER 8, 2017 | UPDATED NOVEMBER 8, 2017

Brexit will allow Britain to lead the World Trade Organization (WTO), the Legatum Institute claims in a new paper published on November 4, 2017.

The paper, “The Brexit Inflection Point: The Pathway to Prosperity”, is new but the claim is not — not entirely.

“Britain stands ready to take a leading role within the WTO,” International Trade Secretary Liam Fox said in a speech at the WTO almost a year earlier on December 1, 2016.

Major General Wellesley (mounted, the future Duke of Wellington) commanding his troops at the Battle of Assaye (J.C. Stadler after W.Heath) Public domain, National Army Museum
No invisible hands here: the British East India Company won monopolies and trading power partly through war such as at the Battle of Assaye in 1803

And further back in September 2016, Fox talked about “corralling coalitions of the willing” in a speech at Manchester Town Hall:

If other nations are hanging back, then the UK will happily lead the charge for global free trade. We will corral coalitions of the willing who share a belief that a more open and free trading world is the one which will provide the brightest economic future for our citizens.

The UK is a full and founding member of the WTO, though we have chosen to be represented by the EU in recent years. As we establish our independent position post-Brexit, we will carry the standard of free and open trade as a badge of honour.

JUMP TO
In Legatum’s extraordinary words
WTO leadership: from Quad to G5
Next level leadership
Liberalising agenda
Why?

SEE ALSO
How to be a trade champion:
a guide for busy politicians

This should be a minor distraction. It isn’t. Although Legatum’s paper deals with a wide range of issues, it makes leadership in the WTO an over-riding objective, determining for example whether the UK should be in a customs union with the EU and what kind of regulatory system it should adopt.

Legatum is forever optimistic — nothing wrong in that so long as the optimism is justified. Its paper covers a wide range of topics including regulations, standards, customs cooperation, options for an interim or transition period for Brexit, and so on.

Much of it has been questioned. That includes a number of Twitter threads, for example by barrister George Peretz, law professor Steve Peers, and commentator Frances Coppola. And then there’s pro-Brexit Richard North, who wrote on his blog that Legatum was confused about regulations, standards, mutual recognition and conformity assessment. And Martin Sandhu in an FT article, who called the paper “a confidence trick”.

Many of the criticism are about the details. More broadly Legatum is also accused of painting a picture of a future that is too rosy and a past that was not as glorious as it claims — certainly not a model for modern trade:

A century ago, Britain was the “free trade nation”, a cause that brought crowds of tens of thousands to the streets in its defence, being vital both to the livelihoods of Britons and to the economic miracle Britain gave the world in the century to 1914. But in the century since, our trade — and the world’s — has been subsumed into a restrictive system that creates poverty. The global economy is essentially stuck (page 5).

Many have commented that much of the UK’s trade dominance was actually acquired by force and empire-building. As for the future, “free trade is not an unalloyed good, and we do have to consider the costs as well as the benefits” said Frances Coppola in an exchange on her Twitter thread.

She echoed a more general assessment by Friends of the Earth’s Sam Lowe, who tweeted in May 2017 that Legatum’s papers are “all upside, little acknowledgement of the down. The remotely possible portrayed as plausible.”

I’m not saying the paper is all wrong. Far from it. But I’ll leave it to others to debate the rights and wrongs of other details. Many of these are either beyond my expertise or are based on debatable assumptions about the future, about how the EU and others will react to particular positions.

What follows here is about that over-riding objective in the paper, leadership in the WTO, developed from my own Twitter thread.

In Legatum’s extraordinary wordsBack to top

There is a subtle difference between taking “the lead” in the WTO (Legatum) and “a leading role” (Fox). What did Legatum mean, and what other leading roles might be available to the UK?

These are some extracts from Legatum’s paper. It calls for much more than simply “a leading role”. In fact, what it proposes is pretty extraordinary.

It says that one of the UK government’s immediate actions should be:

Taking the lead in World Trade Organisation (WTO) membership and explaining why the UK and WTO members now share a trade liberalising agenda. (Page 4, and similar on page 10, my emphasis here and in other quotes).

Suddenly, it seems, according to Legatum, the UK can be at the peak of the WTO’s power structure. (Who is currently there? We’ll look at power politics in the WTO in a moment.)

But more than that, the UK will “explain” why all of a sudden Britain and all other WTO members “now share a trade liberalising agenda”.

Legatum does not clarify how, simply because the UK is leaving the EU, this remarkable change can take place. It could not possibly do so. After all, “WTO members” includes the EU and its member states (for now including the UK) as well as the 135 non-EU, non-UK WTO members. Brexit doesn’t change that.

There’s no earthly reason why the diverse agendas of all the 164 members (including the EU’s) should suddenly align once the UK has left the EU and “explained” the need for a different direction.

The idea of UK leadership is repeated through the paper, for example this on a customs union and the European Free Trade Association (EFTA):

Interim proposals are now being floated to remain in the Customs Union, part of it, or join EFTA and accede to the EEA Agreement. This is very dangerous: the EU will use such uncertainty to maximise its leverage, while other trading partners will re-focus their energies on the EU. The UK will lose its opportunity for trade leadership at the WTO, and the consequences will be serious. (Page 7)

And this on regulations:

The UK must therefore be able to regulate differently from the EU in areas like standards and regulatory issues. If it is locked into the EU regulatory model, it will not be able to make the adjustments necessary in order to sign comprehensive free trade deals with other countries, nor will it be able to lead in the WTO and other multilateral fora. (Page 21, and similar on page 23)

And this on tariff commitments and again a customs union:

Without control over tariff schedules [ie, lists of commitments in the WTO], time in the Customs Union prevents UK leadership within the WTO. (Page 29)

Also repeated is the notion that the UK’s role in the WTO is to “explain” what the world should do:

Beginning at the WTO, the UK needs to frame its case by explaining that making the global economy more prosperous over the long-term requires the urgent liberalisation of world trade. (Page 9)

Before Fox considers “corralling coalitions of the willing” in the WTO — or taking up Legatum’s fantasy of the UK leading and explaining — he might like to look at the many coalitions that already exist and how power is structured in reality in the organisation.

WTO leadership: from Quad to G5Back to top

Once upon a time, there was the “Quad”, occupying the summit of the power pyramid. They were the US, EU (including the UK), Canada and Japan, at that time the four largest traders.

Roughly speaking, nothing would be agreed if it couldn’t pass the Quad. But more importantly, if they could negotiate a breakthrough among themselves then the rest of the membership could be covered, provided some flexibility or opt-outs were included for smaller countries.

One historical breakthrough in November 1992 was bilateral, between the US and EU (the so-called Blair House accord on agriculture). Not even Canada and Japan were involved. Even in that structure, the UK on its own would hardly be the leader. But that structure no longer exists anyway.

The Quad dominated throughout the Uruguay Round — the 1986–94 negotiation that created the WTO in 1995 — and into the WTO’s early years. Then, as the century turned, trade was changing. By 2015, Canada and Japan had been jettisoned. In came Brazil, China and India.

At the peak, the Quad has been replaced by the “G5”, which was responsible for the breakthrough at the WTO Ministerial Conference in Nairobi in December 2015, when members agreed to scrap agricultural export subsidies.

Ironically, the UK was represented in that G5 — by EU commissioners Cecilia Malmström (trade) and Phil Hogan (agriculture). After Brexit, it’ll be on its own.

Next level leadershipBack to top

At a pinch the UK might have been able to get a seat in the old Quad beside Canada and Japan, but not now. In the WTO, the UK will be in the second or third tier of the power structure.

There’s nothing wrong with that. Many countries at that level play constructive roles and have won the respect of fellow-members.

However, none of them did it by marching in and proclaiming “I’m a leader now, let me explain.” Not even the US can get away with that.

Nor did they have to be major traders. New Zealand has supplied a succession of chairs in the crucial agricultural talks, its trade diplomats having acquired a reputation as professional, skilled, honest brokers.

(One of them, Crawford Falconer, is now a senior official in Fox’s department. He is also on Legatum’s Special Trade Commission, a move that did raise eyebrows.)

A more effective way of being heard in the WTO is to join an alliance. WTO alliances already have coordinators, so in another sense, the WTO already has lots of leaders.

Australia coordinates the Cairns Group campaigning to liberalise agriculture. Switzerland (an EFTA member) does it for the G–10, which is more defensive on agricultural trade. Brazil set up the G–20 group of developing countries. Taiwan (officially “Chinese Taipei”) coordinates a group of countries that recently joined the WTO. And so on. The WTO website has a long list of alliances in its trade negotiations.

What should the UK do? Take agriculture. If it really is keen on liberalising agriculture, it could join the Cairns Group, but not as its leader. Australia and the others would not appreciate that.

If on the other hand it wants to keep the more defensive policy it now applies as an EU member, it could join the G–10, but Switzerland, Norway and Japan would also not accept it as a leader.

Or, it could go it alone. Only the US and some countries with a minor interest in agriculture have done that, for example Singapore, Hong Kong and some Middle Eastern states. The UK would have a voice, but not a very loud one.

Coalitions in the WTO agriculture negotiations
Where would the UK fit in? The graphic is slightly out of date but it still shows how complex WTO power is, in just one subject (Click the image to see it full size)

But before it embarks on any of this, Britain will have to sort out what kind of trade policy it wants. Take agriculture again. What should the policy be?

Low import duties and low subsidies? Broadly speaking, consumers would gain, many farmers would lose (some would gain) and subsidies for protecting the environment might also be lost.

Continuing with present high duties and some subsidies? Food would remain fairly expensive but farmers would stay in business and British production would be sustained (although Brexit itself might affect that too).

Or something else? The discussion has barely begun.

The UK might face another struggle if it wants to be influential in the WTO. Several non-UK officials have remarked that the UK used to be respected as a sound, pragmatic player in trade and other issues. Brexit, they say, means the UK is now seen as confused, floundering and ineffective.

If that reputation can be repaired, then the UK could find itself among over a dozen second-tier “leaders” in the WTO. It would not have a seat at the summit, but it could be invited to unofficial meetings of 20–30 members (sometimes called “Green Room” meetings) alongside the “G5”, Canada, Japan, Australia, Switzerland, Norway, Argentina, South Africa and whoever chairs various groups of developing countries.

To be clear, for a country of the UK’s size and clout, there would be no disgrace in joining that group. It would also be more realistic than talking of leadership.

Nairobi delegates scrutinise final declaration 19.12.2015
Is Doha dead? Is it alive? Delegates at the WTO’s Nairobi Ministerial Conference scrutinise the final declaration, December 19, 2015
Liberalising agendaBack to top

Tied in with idea of leadership is the notion that Britain outside the EU can launch its independent WTO membership by “explaining that making the global economy more prosperous over the long-term requires the urgent liberalisation of world trade.”

The truth is that in the WTO a call to liberalise trade is a meaningless cliché. The UK can “explain” as much as it likes but the real difficulty is that there is little agreement on how and what to liberalise, what the downsides are for a widely divergent membership, and how urgent the need is.

In 2001, sixteen years ago, the start of a new set of negotiations was agreed. They are unofficially known as the Doha Round or the Doha Development Agenda (DDA). Launching the talks, WTO trade ministers declared:

We are determined, particularly in the light of the global economic slowdown, to maintain the process of reform and liberalization of trade policies, thus ensuring that the system plays its full part in promoting recovery, growth and development.

Sixteen years later, WTO members have failed to agree on how to achieve that, except in a limited number of issues such as cutting red tape at the border (“trade facilitation”) and scrapping agricultural export subsidies (whose use is now dwindling).

Worse, WTO members cannot even agree on whether the Doha Round is over or not. This is what their ministers declared at their last biennial conference in Nairobi in December 2015:

30. We recognize that many Members reaffirm the Doha Development Agenda, and the Declarations and Decisions adopted at Doha and at the Ministerial Conferences held since then, and reaffirm their full commitment to conclude the DDA on that basis.  Other Members do not reaffirm the Doha mandates, as they believe new approaches are necessary to achieve meaningful outcomes in multilateral negotiations. Members have different views on how to address the negotiations. We acknowledge the strong legal structure of this Organization.

Given how diverse opinions and interests are among WTO members, the notion that they will take heed when the UK “explains” is bizarre.

Why?Back to top

There are a number of other questionable assertions about the UK and the WTO in Legatum’s paper.

They include a claim that other WTO members will want a say in a future UK-EU trade agreement (there’s no precedent for this because WTO disciplines on free trade agreements are weak, except for blatant violations).

And Legatum says the UK should talk to other WTO members alone, without the EU, when setting up Britain’s WTO commitments on tariff quotas (difficult to achieve since processes for the UK and EU are intertwined, and British officials are far less experienced than the EU’s in negotiating tariff quotas). In any case the two are already working together.

One of the problems with Legatum’s obsession with WTO leadership is that it diverts attention away from the real issues it should be considering.

For example, the question of whether the UK should be in a customs union with the EU is really about a trade-off. The benefit is smoother trade (in goods) between the two. The downside is that the UK would not be free to set its own tariff rates and negotiating free trade agreements with other countries would be almost impossible.

And the argument in favour of having a customs union temporarily during a transition period is to give business more time to adjust to the final UK-EU relationship.

Legatum ignores all of those arguments on the grounds that the UK needs to grab WTO leadership and to do so fast. It does not say what the benefit of leadership will be other than the questionable claim that it is needed so other countries can take the UK seriously. And of course that it will bring pride and the futile hope that the world will be spurred into creating a free trade paradise.

If this were just about a paper from an ill-informed institute, it would not matter much. The problem is that misguided jingoism is common in the debates about Brexit. Legatum’s line feeds straight into Fox’s preoccupations, for example.

There are real trade-offs and real dilemmas that have to be tackled. Talk of UK leadership in trade is unrealistic, unhelpful and a distraction.


Updates: None so far

Photocredits:
• Major General Wellesley (mounted, the future Duke of Wellington) commanding his troops at the Battle of Assaye (J.C. Stadler after W.Heath). Public domain, National Army Museum

• Delegates at the 2015 Ministerial Conference, in Nairobi, © WTO. Courtesy of Admedia Communication


UK, EU & WTO — a presentation

A look at the UK, EU and WTO with an eye on Brexit. Includes a brief explanation of the WTO system, a taste of how negotiations work in the WTO, and the implications for the UK (and EU) as they prepare for Brexit and beyond

By Peter Ungphakorn
POSTED MAY 25, 2017 | UPDATED MAY 25, 2017

This page contains a link to download a handout on the UK, EU and WTO as Brexit approaches. It is slightly modified from a presentation given on May 20, 2017.

It was part of a series of lectures on “Policy in Practice”, under the London School of Economics’ Executive Master in Public Administration programme.

Champions of free trade

Presentation cover The presentation can be downloaded as a handout here (pdf).

It is intended as a taster. It does contain a lot of detail, which can be explored further. But the main purpose is to provide a feel for how the detail and the bigger picture relate.

This is what the presentation contains, in three parts on the WTO, WTO negotiations and Brexit:

The WTO - basics

1. The WTO: BasicsBack to top

Negotiations as the starting point. Rights and obligations (reciprocal and non-reciprocal). Space for sound policy-making. Rules and commitments.

WTO negotiations - a taster

2. WTO negotiations: A tasterBack to top

Consensus. Member-driven. The Doha Round. Negotiating coalitions (in agriculture). Concentric circles — when it’s impossible to negotiate properly in a large crowd. More than just an affair between governments: there are also negotiations at home.

Brexit and the WTO - before during and after

3. Brexit and the WTO: Before, during and afterBack to top

UK and EU “schedules” of commitments. What schedules are. How to establish the UK’s and EU’s schedules post-Brexit. The EU’s complex tariff profile. Tariffs (shoes and oranges). Tariff quotas (lamb, mutton). Domestic support for agriculture (trade-distorting). Agricultural export subsidies. Services. The cliff-edge and worse: what if there are no acceptable schedules by Brexit day?

Free trade agreements: UK-EU; UK-other WTO members. WTO rules on free trade agreements. Shallow to deep arrangements.

UK as champions of free trade. Policy choice from liberal to protectionist. Impact on bilateral free trade negotiations. UK positioning in WTO — current policy on agriculture puts it closer to the more protectionist group; handling the WTO agendas on regular work and negotiations.


Recommended reading: Oliver Ilott, Ines Stelk, Jill Rutter: Taking back control of trade policy. Institute for Government, May 17, 2017

Download the presentation as a handout here (pdf).


Updates: None
Photocredits
: See presentation


Hard work lies ahead now that the WTO Trade Facilitation Agreement has been activated in 112 countries

Reaching agreement was one test of multilateralism. Making it work will be another

By Peter Ungphakorn
POSTED FEBRUARY 25, 2017 | UPDATED FEBRUARY 28, 2017

It’s always tempting, when a tough negotiation has concluded, to breathe a sigh of relief and proclaim “job done”. But with trade agreements, the job is rarely done. For the World Trade Organization’s shiny new Trade Facilitation Agreement, seriously hard work lies ahead if it is to achieve its potential.

Port_of_Cape_Town bySkyPixels ShareAlike CC SA 4.0
Cape Town: South Africa is one of 51 countries that have not yet ratified the agreement

On February 22, 2017, the WTO proclaimed that its new deal on slashing red tape at the border had “entered into force”, the “first multilateral deal” concluded in its 21 year history. This was a truly major achievement. But as the celebrations die down, it’s time to look at what it really means and the challenges that lie ahead.

Azevêdo press conference 22.2.2017
“The real work is just beginning”

“This is not the end of the road,” said WTO Director-General Roberto Azevêdo.

“The real work is just beginning. This is the biggest reform of global trade in a generation. It can make a big difference for growth and development around the world. Now, working together, we have the responsibility to implement the agreement to make those benefits a reality.”

Trade facilitation is about cutting red tape and streamlining customs and other procedures as goods cross borders. That includes goods in transit to and from land-locked countries.

More specifically, the procedures covered in the agreement include governments providing information and allowing consultation on laws and regulations, how rulings and appeal are handled, impartiality and non-discrimination, fees, release and clearance of goods, cooperation between border agencies and between customs authorities, various formalities, and freedom of transit.

Here are some points to ponder:

  1. Achievement: it’s taken 20 rough years
  2. Achievement: it will have a real impact
  3. But it has not entered into force everywhere
  4. The numbers should not be taken literally
  5. A lot of work lies ahead by both rich and poor nations
  6. Oh, and by the way, is it really the first?

1. Achievement: it’s taken 20 rough yearsBack to top

The ink was barely dry. The agreements of the 1986–94 Uruguay Round had been signed in April 1994. They took effect the following January, bringing into existence the World Trade Organization. The round was the largest and most complex trade negotiation ever to be concluded, and was supposed to be the one to end all trade rounds.

Then at the first WTO Ministerial Conference in Singapore in December 1996, the EU and others proposed trade facilitation as a new negotiation topic. It was packaged with three much more controversial issues — investment, competition policy and transparency in government procurement.

Opposition, particularly from developing countries meant these four “Singapore issues” were kicked into the long grass in the shape of discussion groups.

The resistance continued. When in 2001 the Doha Round was launched, the Singapore issues were only included as subject headings that would not turn into negotiations without “explicit consensus”.

It was not until 2004 — when the EU finally agreed to unbundle the four issues and a compromise could be struck — that the more palatable trade facilitation formally became a Doha Round negotiating topic. The three other issues fell by the wayside.

Work on trade facilitation continued — even after the Doha Round ground to a halt in 2008, principally over agriculture. A text was eventually agreed in the run up to the Bali ministerial conference in 2013.

Azevêdo, who had recently become director-general, introduced a new way of negotiating. Instead of working on the text in a small group of core countries and then taking it to the rest of the WTO, ambassadors from the entire membership (each with one assistant) sat through lengthy sessions as they worked line by line through the draft displayed on a screen.

Hailed at the time as a breakthrough technique to make negotiations totally inclusive (and avoid resentment at being left out), the method only worked once. Since then, the core groups have returned.

The draft agreed in Bali still had to be revised to make it legally correct. Even this was delayed until November 2014 as India held up approval while it sought changes to a decision on agriculture that it had originally agreed in Bali.

Two and a half years later, 112 countries had ratified (or “accepted”) the deal, which counts as an amendment to the WTO’s agreements. They crossed the threshold of 110, two thirds of the membership, which was needed for the agreement to take effect.

Importantly, that also means 51 countries had not (yet) ratified. More on this below. (How the ratifications are counted is discussed here).

The four instruments of acceptance that took the total to 112, and the TFA protocol. From left: Amb François Xavier Ngarambe (Rwanda), Ambr Malloum Bamanga Abbas (Chad), Roberto Azevêdo (WTO), Amb Saja Majali (Jordan), Abdulla Nasser Musallam Al Rahbi (Oman)
NOW WE ARE 112: four new acceptances and a protocol. From left: Amb François Xavier Ngarambe (Rwanda), Amb Malloum Bamanga Abbas (Chad), WTO DG Roberto Azevêdo (holding protocol), Amb Saja Majali (Jordan), Amb Abdulla Nasser Musallam Al Rahbi (Oman)
2. Achievement: it will have a real impactBack to top

Although a latecomer to the Doha Round, trade facilitation became a priority for business associations. Import duties are now often low (apart from agriculture and some other sensitive products), meaning border processes have emerged as a significant part of trading costs.

Calculations suggest the benefits will be large. By how much depends on the assumptions and the type of economic model.

The WTO’s in-depth analysis is in its 2015 World Trade Report, with estimates for reductions in trading cost of up to 14.3%, global export expansion from $750bn to $3.6 trillion — the most frequently cited is the neat $1 trillion — and up to half a per cent per year added to world gross domestic product.

A brief survey by Cathleen Cimino-Isaacs of the Peterson Institute for International Economics think-tank cites other studies that also show “sizable potential gains”.

Understandably, the biggest gains will go to the countries that currently have the most cumbersome border procedures. If goods entering and leaving a country spend weeks at the port waiting for clearance, then the costs to that country’s trade, production and consumption are going to be high.

The 2015 World Trade Report says (page 7):

“The range of trade cost reduction will be between 9.6% and 23.1%. African countries and [least developed counties] are expected to see the biggest average reduction in trade costs (in excess of 16%) from full implementation of the TFA [Trade Facilitation Agreement]. Full implementation will reduce trade costs of manufactured goods by 18% and of agricultural goods by 10.4%.

“Full implementation of the TFA also has the ability to reduce time to import by over a day and a half (a 47% reduction over the current average) and time to export by almost two days (a 91% reduction over the current average).”

The Trade Facilitation Agreement allows developing countries to set a condition on implementing some of the reforms — receiving assistance to help them cover the costs and introduce new technology — a first in WTO agreements. The onus is therefore as much on the donors as on the reformers.

061209-N-8148A-067 - Camp Patriot, Kuwait (Dec. 9, 2006) - A customs border clearance agent assigned to Navy Customs Battalion Romeo keeps record of each inspection. Navy Customs Battalion Romeo, comprised of more than 450 Reservists, was mobilized, trained, equipped and deployed by the Navy Expeditionary Logistics Support Group and is an operational force under the Navy Expeditionary Combat Command. U.S. Navy Photo by Mass Communication Specialist 2nd Class Kitt Amaritnant. UNCLASS (APPROVED FOR PUBLIC RELEASE) Cleared for public release by USARCENT PAO, MAJ Renee Russo. For additional information, contact MCC Anthony C. Casullo at anthony.casullo@me.navy.mil or DSN 318-439-6250 or COM 011-973-1785-6250
3. But it has not entered into force everywhereBack to top

Drowned out by the fanfare is the actual meaning of “entered into force”.

Strictly speaking, the agreement has only been activated in the ratifying countries although they will apply their streamlined processes to trade with all other WTO members equally, including those that have not ratified.

WTO rules say once the two-thirds of the membership has been reached, an amendment does enter into force, but only in ratifying countries. Therefore, the Trade Facilitation Agreement has not yet entered into force in the 51 countries that — at the time of writing — have not ratified it. They are:

Angola, Antigua and Barbuda, Argentina, Armenia, Barbados, Benin, Bolivia, Burkina Faso, Burundi, Cabo Verde, Cameroon, Central African Republic, Colombia, Congo, Costa Rica, Cuba, Congo (Democratic Republic), Djibouti, Dominican Republic, Ecuador, Egypt, Fiji, the Gambia, Guatemala, Guinea, Guinea-Bissau, Haiti, Indonesia, Israel, Kuwait, Liberia, Malawi, Maldives, Mauritania, Morocco, Namibia, Papua New Guinea, Qatar, Sierra Leone, Solomon Islands, South Africa, Suriname, Tajikistan, Tanzania, Tonga, Tunisia, Uganda, Vanuatu, Venezuela, Yemen, and Zimbabwe.

Among them are some significant traders such as Argentina, Indonesia and South Africa. Among the rest are many that would benefit most from streamlining their border procedures, particularly if they receive aid to do so.

Many countries that have not ratified may do so soon. Some have already submitted “Category A notifications” (listing measures they will implement immediately), even though they have not ratified (including Egypt and Indonesia). Many are actively preparing the details of what they will phase in, with and without assistance (C and B notifications).

(The rules on amending WTO agreements actually include a clause allowing the membership to expel countries that do not ratify in time. Of course, the word “expel” is not used. Instead: the country “shall be free to withdraw from the WTO or to remain a Member with the consent of the Ministerial Conference”. Incidentally, this provision seems to be the only way to kick a country out of the WTO. However, it is unlikely to be invoked here.)

4. The numbers should not be taken literallyBack to top

It’s tempting to use simple figures to describe how important the Trade Facilitation Agreement is: “it will cut trading costs by 14.3%”, “it will increase trade by a trillion dollars”, and so on. At least Azevêdo uses “could” and “up to”.

Just as with any economic analysis this depends on the assumptions, the model and the data.

  • The assumptions: almost all calculations assume that the agreement is “fully” implemented, and they say so. The 2015 World Trade Report discusses this in some detail, including an assumed length of time for full implementation. But the report is 158 pages long and pretty technical. Few will even open it.

The truth is, we are a long way away from full implementation. For a start, those 51 countries that have not yet ratified will need to do so. Then, some countries will phase in some provisions over time, and some will require aid in order to do so — promised in principle but not legally committed.

According to the Trade Facilitation Agreement database, less than half of the agreement’s coverage has been notified for implementation by developing countries, whether for immediate implementation (Category A), delayed (B) or delayed and requiring technical assistance (C). A large number of Category A notifications (93) have been submitted but they do not cover all the provisions of the agreement.

Cape Town Port by skypixels CC SA 4.0 with data from TFAD
Click the image to see it full size

Because developing countries are still compiling their needs, more notifications in Categories B (currently 9 countries notifying) and C (currently 8) can be expected, even from countries that have notified what they will implement immediately (A).

As Cimino-Isaacs wrote:

“Of course, fully implementing the TFA will be key to realizing the gains. The agreement specifies different tiers of obligations for developed and developing countries. For developing countries, the obligations are broken down between those implemented upon entry into force, those subject to a transition period, and those to follow with additional technical assistance. This built-in flexibility is important, but also serves as a reminder that the gains will take time to materialize. Making reforms will entail costs, and measures like investment in information technology and transport infrastructure, while not prerequisites, are important complements to trade facilitation reforms. Once the agreement is ratified, the challenge for the WTO will be monitoring progress towards implementation and ensuring political commitment to deliver the reforms.”

  • The model and the data: even more technical is the discussion in the 2015 World Trade Report about the methods used. (For the technically minded, computable general equilibrium (CGE) and gravity models produce considerably different estimates: see below.)

As for the data, some countries had implemented provisions that would be in the agreement. The analysis included creating index numbers from how much they had implemented and extrapolating these statistically to different categories of countries in the rest of the world.

Clearly calculations with this amount of construction are not meant to be predictions. They are estimates. However, the various estimates are consistent enough for us to conclude that the gains will be “pretty big” — if and when it’s all implemented.

Some expected benefits are much more difficult to model. One that is frequently cited is the transparency and predictability of bringing policies into the WTO system even if they would be implemented unilaterally anyway. This is what the 2015 World Trade Report says (pages 6–7):

“Given the widespread benefits from trade facilitation, every country should have an incentive to undertake reform on its own. The signing of the TFA, however, suggests that incorporating trade facilitation in a multilateral agreement creates additional benefits compared to what can be achieved unilaterally.

“It provides greater legal certainty to the changes in trade procedures. It helps in the adoption of common approaches to customs and related matters, which should increase the gains from trade facilitation by harmonizing customs procedures worldwide. By foreseeing that richer members will provide assistance and support for capacity building to developing and [least developed country] members to help them implement the TFA, the agreement helps to match the supply of capacity building with the demand for it. The TFA could also help governments address a credibility problem by integrating their trade facilitation commitments into an institution with an effective enforcement mechanism.”

5. A lot of work lies ahead for rich and poor nations alikeBack to top

WTO members will now create a Trade Facilitation Committee of the full membership, including countries that have not yet ratified. Its job will be to receive notifications describing what various members will implement and when, monitor how the agreement is being implemented and discuss related issues.

Two immediate tasks are to encourage the remaining members to ratify the agreement, and for all developing countries to complete their notifications of what they are implementing, whether immediately (A) or delayed (B) or delayed-requiring-assistance (C).

A third is to ensure the requests for technical assistance can be met. This requires well-designed assessments of needs from the developing countries concerned, and a real commitment to provide the assistance by developed countries and donor institutions.

In short, reaching agreement was one test of multilateralism. Making it work will be another.

6. Oh, and by the way, is it really the first?Back to top

Don’t shout this out too loud, but there are those who say trade facilitation is not the first multilateral trade deal since the WTO was created. They point to WTO deals in services on finance (twice), movement of natural persons and basic telecommunications.

But those agreements date back to 1995–97, soon after the WTO was born (and when trade facilitation was still a twinkle in the EU’s eye). That was an awfully long time ago.


Useful resources:

The various databases and other resources available are rather confusing. You can access one, follow some links, and find yourself in another. However, the amount of available information is useful.


THE ESTIMATES: The 2015 World Trade Report says this (page 134):

“Full implementation of the TFA has the potential to reduce trade costs by an average of 14.3 per cent. The computable general equilibrium (CGE) estimates see the TFA increasing global exports by between US$750 billion and US$1 trillion, depending on the speed and extent of implementation. The faster and more extensive the implementation, the greater the gains. TFA implementation has ramifications for the future trajectory of the global economy as well. This report estimates that over the 2015-30 horizon, implementation of the TFA could add up to 2.7 per cent a year to world export growth, and more than half a per cent a year to world GDP growth.

“The simulations using the gravity model provide higher estimates of the potential global export expansion arising from TFA implementation. They range from US$ 1.1 trillion to US$ 3.6 trillion depending on the extent to which the provisions of the TFA are implemented. Like the CGE simulation results, they show that the more fully the TFA is implemented, the greater are the gains for members.”


DISCLAIMER: This was written with the help of sources who asked not to be identified. It could not have been written without them. Consider it “Fake News” if you are so inclined


Updates: February 28, 2017 — removed reference to 2017 deadline for accepting the agreement (applies to another WTO amendment, on intellectual property, not this one)

Photo credits:
• Cape Town Port by SkyPixels CC SA 4.0
• Azevêdo + Four acceptances and a protocol: WTO
• Customs clearance: public domain CC0