1. Selected WTO Legal Aspects of UNECE Report "Regulatory and Procedural Barriers to Trade in Kyrgyzstan: Needs Assessment" Jan Bohanes Senior Counsel, Advisory Centre on WTO Law Geneva, 1 September 2015

2. Overview of selected topics Regulatory and Standardization Policies: Technical Regulations, Standards and Quality Assessment & Sanitary and Phytosanitary Measures Aspects relating to Regional Integration Trade Facilitation Aspects

3. Regulatory and standardization policies (1) Issues highlighted/recommendations by UNECE Report – Use of technical regulations and technical standards: quality control and quality assurance system; capacity shortfalls; need to strengthen (standard setting) expertise; equivalency arrangements; (comprehensive) mutual recognition agreements. Relevant WTO disciplines No unnecessary technical barriers to trade (Article 2.2 TBT Agreement); requirement to base SPS measures on scientific principles and risk assessments (2.2 and 5.1 SPS Agreement) Requirement to use international standards whenever they exist, unless they are ineffective or inappropriate or a higher level of protection is desired (Article 2.4 TBT; 3.1 and 3.3 of the SPS Agreement) The TBT disciplines apply not only to technical regulations, but also to (non-binding) technical standards enacted by standardizing bodies

4. Regulatory and standardization policies (2) Relevant WTO disciplines (cont'd) Mutual recognition (Article 6.1) and MR agreements (Article 6.3) – recognize other Members' conformity assessment procedures; ensure equal treatment of requesting Members – Kyrgystan has 12 MRAs Equivalence (Article 2.7 TBT and 4 SPS) – recognize the content of regulation of another Member as equivalent. Ensure equal treatment of requesting Members – Note: equivalence guidelines by the SPS Committee Information dissemination (enquiry points) (Article 10.1 TBT Agreement, Annex B of the SPS Agreement) Conformity assessment procedures

5. Aspects relating to Regional Integration/GSP+ regime (1) Issues highlighted by UNECE Report – Participation in the EU’s GSP+ regime – Accession to Eurasian Economic Community (EEC) Customs Union Relevant WTO disciplines – The GSP+ regime is a preferential tariff regime covered by the Enabling Clause (although academic commentators sometimes question the WTO-legality of the EU’s criteria). Kyrgyz participation in this regime does not entail any issues of WTO-legality for Kyrgyzstan itself – Accession to EEC Customs Union will require respecting the WTO rules on re-binding (Article XXIV:6 and XXVIII), including any applicable renegotiation and compensation Kyrgyz Republic’s trading regime vs. the CU/Russia

6. Aspects relating to Regional Integration/GSP+ regime (2) Relevant WTO disciplines (cont’d) – Article XXVIII negotiations are conducted with Members who have so-called "initial negotiating rights (INRs)" and "principal supplying interests"; consultations with Members who have a "substantial interest". – Examples from WTO practice concerning accession to CUs certain Central and Eastern European countries’ accession to the EU; Most recently, see also Armenia’s accession to the Eurasian Economic Union. – However, very little publicly available information on these negotiations themselves, because the process is confidential. Results reflected in the CU's schedule.

7. Aspects relating to Regional Integration/GSP+ regime (3) Relevant WTO disciplines (cont’d) – Other aspects (e.g. rise in non-tariff barriers) due to accession must be "necessary" for the accession/formation of a customs union – Discussion of intra-CU technical regulations

8. Trade Facilitation Aspects (1) Issues highlighted/recommendations by UNECE Report & issues to keep in mind going forward – Information dissemination; strengthen market support institutions; inform traders on changes in trade-related regulations; consolidate private sector consultation mechanisms; consolidate risk management system; improve customs valuation; – Report also highlights challenges for traders to obtain necessary import/export documents

9. Trade Facilitation Aspects (2) WTO disciplines – Transparency provisions in the Annex 1A agreements (GATT 1994, TBT, SPS) – New trade facilitation agreement (TFA) amplifies and specifies these obligations, e.g. publication via internet (Article 1.2.1); enquiry points (Article 1.3); advance publication (2.1) – Requirements for obtaining import and export permits/documentation must not constitute import/export restrictions and must not be discretionary (must be automatic)