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‘Interim agreements’ under Article XXIV GATT

Published online by Cambridge University Press:  15 April 2009

LORAND BARTELS
LORAND BARTELS*
Affiliation:
Trinity Hall, University of Cambridge
*
*Email: [email protected]
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Abstract

This note looks at the WTO rules and procedures applicable to the implementation period of regional trade agreements on trade in goods. In addition, it highlights some differences between law and practice and explores the implications of these divergences. Where the GATT and subsequent instruments draw a distinction between ‘full’ regional trade agreements and ‘interim’ agreements, in practice all agreements are notified as ‘full’ agreements with an implementation period. It analyses the possibility that this deviation from the law, now sanctioned in the 2006 Transparency Decision, might have some practical implications for the regulation of regional trade agreements in the WTO.

Type
Review Article
Information
World Trade Review , Volume 8 , Issue 2 , April 2009 , pp. 339 - 350
Copyright
Copyright © Lorand Bartels 2009

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References

1 See WTO Committee on Regional Trade Agreements, Synopsis of ‘Systemic’ Issues Related to Regional Trade Agreements – Note by the Secretariat, WT/REG/W/37, 2 March 2000, para. 48 subpara. (c).

2 WTO Appellate Body Report, Turkey – Textiles, WT/DS34/AB/R, adopted 19 November 1999, paras. 360 and 369.

3 General Council, Committee on Regional Trade Agreements, Decision of 6 February 1996, WT/L/127, 7 February 1996.

4 Rule 33, as modified, of the Rules of Procedure for Meetings of the Committee on Regional Trade Agreements adopted by the Committee on Regional Trade Agreements on 2 July 1996, WT/REG/1, 14 August 1996.

5 General Council, Decision on a Transparency Mechanism for Regional Trade Agreements of 16 December 2006, WT/L/671, 18 December 2006. This Decision is applied on a provisional basis until the conclusion of the Doha Round: see para. 22 and para. 23.

6 Ibid., para. 7(a).

7 Ibid., para. 3.

8 Ibid., Annex, para. 2 (emphasis added).

9 Ibid., para. 7(b).

10 Ibid., paras. 11 and 12.

11 A list is available in WTO, Analytical Index (Geneva: WTO, 1995), at 858 ff.

12 Accession of Portugal and Spain to the European Communities – Report of the Working Party adopted on 19–20 October 1988, GATT Doc L/6405, BISD 35S/293-321, June 1989.

13 Ibid., para. 34.

14 According to the WTO's table of regional trade agreements notified since 1995, not a single agreement has been notified as an ‘interim agreement’. See WTO, Regional Trade Agreements Notified to the GATT/WTO and in Force, available at www.wto.org/english/tratop_e/region_e/type_e.xls.

15 The issue is mentioned, though not discussed, in CRTA, Synopsis of ‘Systemic’ Issues Related to Regional Trade Agreements – Note by the Secretariat, above at n. 1, para. 46. An exception (interestingly, given its practice) was an observation by the EC that the distinction between interim and full agreements reflected ‘an important protection for the rights of third parties during the transition period, as the neutrality, or equality of opportunity, should apply to preserve third-party interests’. See CRTA, Note on the Meetings of 27 November and 4–5 December 1997, WT/REG/M/15, 13 January 1998, remarks by EC, para. 36, supported by Argentina, para. 37.

16 See above at n. 5.

17 Ibid., Annex, para. 2(a)(ii) (emphasis added). Formally speaking, this definition of customs union and free trade area is inconsistent with the definition given in Article XXIV:8.

18 CRTA, Free Trade Agreement between the United States and Chile – Notification from the Parties WT/REG160/N/1, S/C/N/262, 19 December 2003.

19 CRTA, Examination of the Free Trade Agreement between the United States and Chile, Goods and Services – Note on the Meeting of 17 February 2005, WT/REG160/M/1, 14 March 2005.

20 CRTA, Examination of the Interim Agreement between the EC and Chile – Note on the Meeting of 28 July 2005, WT/REG164/M/1, 6 October 2005, para. 10.

21 CRTA, Examination of the Free Trade Agreement between Bulgaria and the Former Yugoslav Republic of Macedonia, WT/REG90/M/1, 10 August 2000, para. 7.

22 See above at n. 2, para. 48.

23 CRTA, Free Trade Agreement between the United States and Australia – Questions and Replies, Revision, WT/REG184/5/Rev. 1, September 2007, pp. 2–3.

24 CRTA, Examination of the European Communities–Jordan Euro-Mediterranean Agreement – Note on the Meeting of 29 March 2004, WT/REG141/M/1, 28 April 2004, para. 8.

25 CRTA, Free Trade Agreement between the United States and Chile – Questions and Replies, WT/REG160/5, 1 August 2005, pp. 2–3.

26 CRTA, Free Trade Agreement between the United States and Chile – Questions and Replies, WT/REG160/6, 17 March 2006, p. 2.

27 CRTA, Examination of Free Trade Agreement between the United States and Chile – Goods and Services – Note on the Meeting of 17 February 2005, WT/REG160/M/1, 14 March 2005, para. 9.

28 See CRTA, Factual Presentation – Protocol on Trade in the Southern African Development Community (SADC) – Report by the Secretariat, WT/REG176/4, 12 March 2007, para. 57.

29 Ibid., Table A.2.

30 A comprehensive discussion is provided in Bonapas Onguglo and Taisuke Ito, ‘In Defence of the ACP Submission on Special and Differential Treatment in GATT Article XXIV’, ECDPM Discussion Paper 67 (Maastricht: European Centre for Development Policy Management, 2005), available at www.ecdpm.org/dp67.

31 For a recent argument that dispute settlement on the WTO-legality of regional trade agreements would risk ‘constitutional overstretch’, see Youri Devuyst and Asja Serdarevic, ‘The World Trade Organization and Regional Trade Agreements: Bridging the Constitutional Credibility Gap’ (2007) 18 Duke Journal of Comparative and International Law 1.