ATR, NTRs, Notification Procedures and NTMs Classification in the Context of ATIGA’s Regulatory Transparency Paolo R. Vergano Institutional Strengthening Expert, ARISE Two-Day National Workshop 20 – 21 October 2014 Vientiane, Laos PDR

ARISE’s assistance on NTMs, NTRs and ATR Transparency is a fundamental catalyst for economic development, cross-border investment and trade, and ASEAN integration; This is an area where the EU has considerable expertise and its assistance through the ARISE project is intended to contribute strengthening the overall ASEAN integration process management and build institutional capacity; and Transparency is also a critical tool to avoid ASEAN trade disputes (EDSM) and to foster economic development, ensuring that ASEAN remains an attractive FDI destination and can compete with other regional blocks. 2

ARISE’s assistance on NTMs, NTRs and ATR The ATIGA does not provide for the timeline for the development of the ATR or in relation to the architecture/design of the ATR; Discussions at different levels of the ASEAN-AEC decision making mechanism have indicated that it is imperative to meet the commitments of the ATR in the ATIGA by 2015; and A network of AMSs’ National Trade Repositories (NTRs) is seen as the necessary precursor to the ATR and AMSs have been urged to look into the setting-up of the NTRs to support the eventual setting- up of the ATR at a regional level. 3

ARISE’s assistance on NTMs, NTRs and ATR When the NTRs’ network is fully operational and based on a shared architecture modelled on the basis of the agreed ATR, the ATR will be effectively established and will link all the individual operating NTRs. For the NTRs and ATR to operate efficiently, the integration of government agencies at national levels must be organized and well-implemented; and The cooperation among AMSs (primarily within the Coordinating Committee on the Implementation of the ATIGA - the CCA), the ASEAN Secretariat and the ASEAN sectoral committees responsible for trade, customs, standards and technical regulations must be assisted and enhanced. 4

The ASEAN: transparency, NTMs and NTRs/ATR ASEAN instruments refer to the three concepts of NTBs, NTMs and quantitative restrictions; Both the CEPT (Art. 1.2) and the ATIGA (Art. 2(k)) define NTBs as “measures other than tariffs which effectively prohibit or restrict import or export of products within Member States”; No definition of NTMs is provided, even though NTMs are explicitly mentioned in ATIGA (Articles 40 and 42) and the ATIGA clearly distinguishes between NTMs and NTBs; and AMSs have agreed that NTMs “applied to CEPT products should be transparent and would be considered as a non-tariff barrier only if these have the effect of prohibiting or restricting trade”. 5

The ASEAN: transparency, NTMs and NTRs/ATR NTMs therefore capture all measures other than “ordinary customs duties”, “extra-ordinary duties and charges” (i.e., AD, CVD, etc.) and “other duties and charges”; The ASEAN Trade in Goods Agreements (ATIGA) requires that an ASEAN Trade Repository (ATR) be established; In particular, Article 13 of the ATIGA provides that: “An ASEAN Trade Repository containing trade and customs laws and procedures of all Member States shall be established and made accessible to the public through the internet”... and that... 6

The ASEAN: transparency, NTMs and NTRs/ATR... the ATR must contain the following trade-related information (indicative, non-exhaustive list): i.Tariff nomenclature; ii.MFN tariffs, preferential tariffs offered under the ATIGA and other Agreements of ASEAN with its Dialogue Partners; iii.Rules of origin; iv.Non-tariff measures; v.National trade and customs laws and rules; vi.Procedures and documentary requirements; vii.Administrative rulings; viii.Best practices in trade facilitation applied by each Member State; and ix.List of authorised traders of AMSs. 7

The ASEAN: transparency, NTMs and NTRs/ATR Finally, “The ASEAN Secretariat shall maintain and update the ASEAN Trade Repository based on the notifications submitted by Member States as set out in Article 11”; Relevance of ATIGA Article 11 on “Notification Procedures” and rationale behind the “Standard notification procedures and forms” developed by ARISE; and Linkage with ATIGA Article 40 on “Non-Tariff Measures”: obligation of transparency (Art. 40.2); obligation of notification (Art. 40.3, connected to Art. 11.3, 11.4, 11.5 and 11.6, further linked to Art.13.3); and obligation to develop the NTM database (Art. 40.4) to be included in the ATR (see proposal of NTM database developed by World Bank in cooperation with ARISE). 8

The WTO: overarching obligations and structures GATT disciplines and interpretative guidance on NTMs and transparency; Relevant WTO language in SPS and TBT Agreements calling for measures to be notified when they have a “significant effect on trade”; Difference vis-à-vis ATIGA (Art thereof, which calls for the notification of any action or measure that AMSs intend to take that (a) “may nullify or impair any benefit to other Member States, directly or indirectly” under the ATIGA or (b) “when the action or measure may impede the attainment of any objective” of the ATIGA); and “Presumption of Innocence” vs. “Presumption of Guilt”. 9

The WTO: overarching obligations and structures Art. X of the GATT and Art. 12 of the ATIGA on the “Publication and Administration of Trade Regulations”; Several WTO transparency and notification obligations are already complied with by AMSs, all of which are now WTO Members; and To avoid overlaps, duplication and additional costs relating to largely similar obligations under the WTO and the ATIGA, AMSs should (as much as possible) rely on the same mechanisms and authorities set up for the WTO or at least coordinate their WTO and ATIGA tasks. 10

Recommendations on ATR The ATR must be: Well-structured; Comprehensive; Accessible; Easy-to-search; and Reliable (if not legally-binding); Key factors to be considered: Effective and well-coordinated ‘inter-agency platform’ at AMSs’ level; Internal ‘synergies’ (i.e., WTO notifications, NSWs, ad hoc trade repositories); ‘Architectural symmetry’ between ATR and NTRs’ interfaces; and Definition of key concepts, categories and procedures.

Recommendations on ATR ‘Well-structured’: The ATR must be based on a framework that AMSs consider legally binding; It should be simple, logical, easy to maintain and update and based on the macro-areas of notification indicated in Article 13 of the ATIGA; and The regional architecture agreed for the ATR should then inform the structures of the individual AMSs’ NTRs. 12

Recommendations on ATR ‘Comprehensive’: The ATR must contain all trade-related information on the trade and customs laws and procedures of all AMSs; AMSs must display and apply the political will to systematically identify, collect, classify and ultimately notify all domestic measures that relate to trade; and Disciplines must be agreed and applied by AMSs with active and collective engagement in training and capacity building activities. 13

Recommendations on ATR ‘Accessible’: The ATR must be in English, based on standardised notification forms and equipped with enough information to provide users with sufficient elements to understand the trade-relevance of the measures contained therein; It must be based on efficient and reliable software that can easily connect to the NTRs and retrieve information; and The ATR must be public, non-fee-based and available on the internet. 14

Recommendations on ATR ‘Easy to search’: The ATR must be well organised, based on a shared classification, well cross-referenced with hyperlinks to other AMSs’ internet facilities and existing databases (i.e., NTRs) and be user-friendly; It must be based on efficient and reliable software that can easily connect to the NTRs and retrieve information; and The same structures, style and searchability functions should apply to the ATR and the NTRs of all AMSs. 15

Recommendations on ATR ‘Reliable’: The ATR must be complete, timely updated by AMSs (through their management of the NTRs and their notifications to the ATR) and based on a shared set of ASEAN templates, classification and categories; and Ideally, the SOPs related to the management of the NTRs and the notifications to the ATR should be legally binding, all AMSs should timely notify all of their trade-related measures, and cross- references to AMSs’ official journals, gazettes and national registers be provided. 16

Recommendations on ATR To achieve these objectives the following 5 aspects need to be taken into account: 1)The need that AMSs establish and regularly convene an effective, comprehensive and well-coordinated inter-agency platform. ARISE (alone or in cooperation with other donors) can and will assist these bodies to build the necessary capacity for notifications of NTMs and management of NTRs; 2)The need to establish, to the extent possible, synergies with activities conducted by AMSs vis-à-vis WTO transparency obligations and with respect to pre-existing transparency tools and frameworks; 17

Recommendations on ATR 3)The need to define key concepts found in the ATIGA (i.e., NTMs, trade-relevance) to improve the process of identification, collection and classification of measures to be notified and to frame the list of Article 13 of the ATIGA, which is indicative in nature; 4)The need to ensure correspondence between the architecture of the ATR and that of AMSs’ NTRs. To achieve this, a single classification must be used. The recommendation is made that the 2012 UNCTAD’s NTM classification (eventually fine-tuned) be adopted an used by all AMSs; and 5)The resources (databases and portals) available in AMSs are currently unable to meet all ATR’s requirements. 18

Definition of the ATR’s ‘Shell’ Architecture ATR as a web portal, a single point of access to AMSs’ trade-related information (on their NTRs); Information accessible by ‘topic’ or by ‘country’; ATR’s server ‘parked’ on ASEC’s ASEAN website and maintained by the ASEC; The actual trade-related information of all AMSs will be ‘parked’ in each individual AMS’s NTR; ‘Topic’ structure based on shared classification (i.e., based in part on UNCTAD’s 2012 NTM Classification); Restricted log-in section for AMSs’ notifications under Article 11 of the ATIGA; and Link to ACT system.

Trade-related information by ‘topic’

ATR’s ‘Mock-Up’ Home-Page

ATR’s ‘Mock-Up’ Topics Page

Issuing Ministry Regulation Reference DescriptionSource URL ASEAN Trade Repository URL ReasonNTM CodeNTM NameStart DateEnd DateHS Code Product Description Notification Year Specify: type of measure (law, decree, directive, etc.); title; number and signing date Indicate the relation to trade of the measure Encode specific URL with link to the actual measure (in English if available) Not yet available (it will provide link to the actual notification form submitted to the ASEAN Secretariat) Describe with sufficient detail (2-3 sentences) the measure's objectives, specifying relevant articles Use UNCTAD's NTM classification (Feb 2012), as available in Annex D of the WB's Toolkit on NTMs: nknowledge.worldbank. org/bitstrea m/handle/1 0986/6019/ PUB 0EPI B pdf? sequence=1 Use name correspondi ng to the NTM code Indicate date of entry into force of the measure If the measure is temporary, indicate the end date, otherwise indicate "permanent " Indicate the HS code/s correspondi ng to the products covered by the measure List the product categories correspondi ng to the HS codes Indicate year of notification to ASEAN Secretariat Proposed NTM Classification Template

Thank You ASEAN Regional Integration Support from the EU ASEAN Secretariat Jl. Sisingamangaraja 70A, Jakarta – Indonesia Tel: (+62 21) , ext. 852 Fax: (+62 21)