Topics publications: Trade law and regulation
Trade Reports
Initiation of WTO Trade Disputes by the private sector by SADC/COMESA countries
WTO dispute settlement is inter-governmental in nature since the rules and procedures apply to the settlement of disputes between Members concerning their rights and obligations under the provisions of the WTO Agreement. Only the Members of the WTO are party to the covered agreements and are the primary bearers of the rights and obligations in those agreements. Non-State actors cannot access the dispute settlement mechanism directly, and must go through Member States. In that sense, each WTO Member necessarily acts as a filter of disputes involving its traders and other parties.
However, it would be entirely wrong to consider that the position of individuals is of no relevance to the GATT/WTO legal matrix. Many of the benefits to Members, which are meant to flow as a result of the acceptance of various disciplines under the GATT/WTO, depend on the activity of individual economic operators in the national and global marketplaces. The purpose of many of these disciplines, indeed one of the primary objects of the GATT/WTO as a whole, is to produce certain market conditions which would allow this individual activity to flourish. So although the WTO dispute settlement system is inter-governmental in nature, it remains true that the real players are the individual operators.
This paper draws lessons from the practice in the EU, the US and Australia, and seeks to find ways in which SADC and COMESA countries could put in place effective national systems in terms of which their economic operators can petition their governments to institute dispute settlement proceedings on their behalf when necessary.
Readers are encouraged to quote and reproduce this material for educational, non-profit purposes, provided the source is acknowledged. All views and opinions expressed remain solely those of the authors and do not purport to reflect the views of tralac.
Trade Reports
The ability of select sub-Saharan African countries to utilise TRIPs Flexibilities and Competition Law to ensure a sustainable supply of essential medicines: A study of producing and importing countries
The impact of the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) on access to essential medicines in the developing world is an issue that has gripped stakeholders for years. The landmark Doha Declaration on TRIPs and Public Health, the 30 August Agreement of the WTO General Council (2003), and most recently, the December 2005 Decision of the TRIPs Council to permanently amend Article 31 of TRIPs, have increased the legal certainty on flexibilities available to developing countries. These developments have been criticised as remaining insufficient to address concerns about drug prices, and consequently, increased access to treatment for the poor. Instead of focusing on the debate above, this paper examines the degree to which countries in eastern and southern African have utilised the flexibilities contained in the 30 August Agreement to increase access to treatment in their countries. Three countries were chosen for their diversity in pharmaceutical manufacturing capacity and developmental status: South Africa, Kenya and Zambia.
The paper further examines the use of competition law and policy as a tool for reducing prices and consequently increasing access to essential medicines and points out the advantages to developing countries of using competition law and policy: first, the TRIPs Agreement accords member countries considerable flexibility in implementing competition law and policy most appropriate for its purposes; second, countries have leeway to define what constitutes anti-competitive behaviour; third, competition law and policy is well suited to implementation by an independent competition authority vested with strong investigative powers; and finally, competition law and policy has been successfully employed by South African activists and stakeholders to reduce the prices of essential medicines.
Readers are encouraged to quote and reproduce this material for educational, non-profit purposes, provided the source is acknowledged. All views and opinions expressed remain solely those of the authors and do not purport to reflect the views of tralac.
Trade Briefs
The WTO Trade Policy Review Mechanism: Application and benefit to SACU
If you are trading into a country, you want to know as much as possible about the conditions of trade that exist in that country. Trade policies and practices are valuable sources of information and for this reason must be completely transparent. Transparency will lead to predictability and will be of fundamental importance when conducting future negotiations with your trading partners.
An important tool to achieve transparency in international trade is the Trade Policy Review Mechanism (TPRM) of the World Trade Organisation (WTO). This is a mechanism to review the trade policies of WTO Members. Broadly, the review has a number of advantages. On a global scale the review enables WTO Members to access accurate information on the trade polices and practices of other Members, while also providing them with the opportunity to comment on these developments of the Member under review. On a national scale, Members are afforded the opportunity to assess the results of their own polices and practices and to utilise the comments of other Members to improve their policy formulation.
This discussion paper will present an analysis of the TPRM, including the structure of the review and the bodies involved in the process. The 2003 review of the Southern African Customs Union (SACU) will be discussed with reference to the challenges and encouragements in the review documentation. The paper will also evaluate SACU's progress since the 2003 review in developing trade related policies. The paper will further consider common policies and institutions envisaged for the region and the potential impact it can have on integration. Finally, the paper will conclude by asking whether preparations for the forthcoming 2007 SACU review allow for greater progress to be made in such policy.
Readers are encouraged to quote and reproduce this material for educational, non-profit purposes, provided the source is acknowledged. All views and opinions expressed remain solely those of the authors and do not purport to reflect the views of tralac.
Trade Reports
The WTO ten years on: Trade and Development
Development issues have long been a component of the multilateral trading system and it is widely recognised that there is a strong link between trade and development. The nature of the link, however, has not always been the subject of consensus. Over time the trade and development paradigm has shifted and this is reflected in changes in the debate in the General Agreement on Tariffs and Trade (GATT) and subsequently in the World Trade Organization (WTO). This debate has been of much importance in both organisations – so much so that a Committee on Trade and Development has been addressing these issues specifically for over forty years after its establishment in 1964. This paper looks at trade and development with a specific focus on the first ten years of the WTO.
Through greater participation in the global economy, the value of developing country exports has increased over time. However, the developing countries’ share of world trade was at its highest just after the establishment of the GATT. There is also a growing divergence between developing countries with trade dominated by only a few. This has resulted in the marginalisation of many others, including most African countries. The benefits of trade have therefore not been equally shared among the countries of the world. The United Nations Development Programme (UNDP, 2005) claims that the ‘rules of the game’ are at the heart of this problem and contends that ‘hypocrisy and double standards are not strong foundations for a rules-based multilateral system geared towards human development’.
It is in this context that this paper seeks to explore the trade and development debate in the WTO over the past ten years – discussing the issues that have been on the agenda as well as some of the key events from a development perspective. Coalitions and groupings among developing countries are considered with a particular focus on the role of the African members of the WTO. With development placed at the centre of the Doha Round, specific consideration is given to the prospects of these negotiations making progress for developing countries. The paper concludes with consideration of the future of trade and development issues in the WTO following the Hong Kong Ministerial.
Readers are encouraged to quote and reproduce this material for educational, non-profit purposes, provided the source is acknowledged. All views and opinions expressed remain solely those of the authors and do not purport to reflect the views of tralac.
Trade Reports
The Multifibre Agreement – WTO Agreement on Textiles and Clothing
Quantitative restrictions to limit international trade in certain goods have existed for a long time already, but in no sector have they been as common and broadly applied as in the textile and clothing industries. Likewise, no other sector has seen such a rigid institutionalisation of quantitative restrictions, which in turn have had very wide-reaching intended and unintended consequences. In fact, quotas in this sector have been the common denominator that has shaped the development path of this industry, and – many would argue – have been the single most important factor contributing to its worldwide diffusion in recent decades.
This paper tracks developments from the early beginnings of quantitative restrictions in the textile and clothing sector, through its institutionalisation leading to the Multifibre Agreement and eventual phasing out under the World Trade Organization (WTO) Agreement on textiles and clothing. Trade developments under the quota regime, and post-quota developments, emphasise the impact that these trade restrictions have had and how once again some countries are beginning to make use of measures to counter the threat of surging imports.
Readers are encouraged to quote and reproduce this material for educational, non-profit purposes, provided the source is acknowledged. All views and opinions expressed remain solely those of the authors and do not purport to reflect the views of tralac.
Books
Monitoring Regional Integration in Southern Africa Yearbook 2005
Regional integration is generally accepted as an important step towards a wider global involvement. This is particularly true in Southern Africa, where we can find many countries with rather small economies. This has been realized very early: SACU, SADC and COMESA can be considered as vehicles for integration both economically and probably also politically. The European example has shown that integration can work, both economically and politically. Even if the countries participating have very different economic and political histories and backgrounds.
Today there are many studies and publications about regional integration, looking at various aspects of economic, social and political integration. The rationale of the “Monitoring Regional Integration Yearbook” is not so much to reflect the present status of integration, but rather to portray the development of the process of integration in the region. This process is complex and progress can only be demonstrated if there is an ongoing analysis available. The objective of the yearbook is to provide facts, opinions and suggestions and to analyse the progress.
This book, the fifth yearbook (for 2005), is based on the contributions to the 8th Workshop on Monitoring the Process of Regional Integration in SADC, held in Windhoek on 11-12 June 2005. The book has 12 chapters that address economic, political and institutional issues, and a conclusion drawing together the threads of the contributions.
The articles on the economic dimension of integration analyse foreign direct investment (FDI) in SADC, the rules of origin and regional integration, and report on the experiences of South African firms doing business in the region.
© 2005 Namibian Economic Policy Research Unit and the Konrad-Adenauer-Stiftung
Publication of this book was made possible by the support of the Namibian Economic Policy Research Unit (NEPRU) and the Konrad Adenauer Foundation. The views expressed by the authors are not necessarily the view of any of these institutions.
Readers are encouraged to quote and reproduce the material contained in these books for educational, non-profit purposes, provided the source is acknowledged. Please contact us to obtain authorisation for reproducing this material.
Trade Reports
Rules of Origin under EPAs: Key Issues and New Directions
Rules of origin form a critical component of any trade agreement or preferential trade area, and thus an important role in the implementation of trade policy. They are used as a tool for determining the ‘economic nationality’ of a product, rather than merely deeming the last geographic location from which a product is shipped as its nationality. As a result, the terms and conditions contained in ROO are some of the most important determinants of market access.
This paper provides a conceptual outline of rules of origin and the core methodologies that are used in the majority of origin regimes, with a special focus on the rules in the ACP-EU Cotonou Agreement. This is followed by an overview of recent initiatives by the European Commission to revise the conceptual basis used by it in the determination of origin, beginning with the Green Paper of 2003 and ending with the Commission’s April 2004 Working Paper where it provides supporting arguments for its preferred choice of methodological basis for determining origin. The paper further identifies some of the key rules of origin related issues with reference to recent EC proposals and developments, as well as a number of specific areas of interest from the perspective of ACP countries both under the current Cotonou regime as well as proposed Economic Partnership Agreements.
Readers are encouraged to quote and reproduce this material for educational, non-profit purposes, provided the source is acknowledged. All views and opinions expressed remain solely those of the authors and do not purport to reflect the views of tralac.
Trade Briefs
Trade and competitiveness in African fish exports: Impacts of WTO and EU negotiations and regulation
Exports of inland and marine capture fish and fishery products (thereafter ‘fish’) are of integral importance to government revenues and income and employment generation in Sub-Saharan Africa (thereafter ‘Africa’). African countries face complex negotiations at the WTO-level on tariffs and fishery subsidies, and bilateral and regional negotiations with the EU in the formulation of Economic Partnership Agreements (EPAs) and Fisheries Partnership Agreements (FPAs). In addition, they need to comply with increased food safety standards. The outcomes of WTO negotiations under the Doha ‘Development Round’ and changing EU regulations are likely to place new hurdles on African fish exporting countries. In this Trade Brief, we analyse how these countries can respond to these challenges.
Fish trade between Africa and the rest of the world is regulated via a complex overlap of multilateral and bilateral trade agreements. We focus here on aspects that affect market access and competitiveness of African fisheries exports to the EU, their main end-market.
Readers are encouraged to quote and reproduce this material for educational, non-profit purposes, provided the source is acknowledged. All views and opinions expressed remain solely those of the authors and do not purport to reflect the views of tralac.