Please use this identifier to cite or link to this item:
A Study of Special and Different Treatment Provision in Trade Facilitation Agreement
Trade Facilitation Agreement
Special and Differential Treatment
Technical Assistance and Capacity Building
|Issue Date: ||2021-03-02 14:17:38 (UTC+8)|
|Abstract: ||在世界貿易體系中，為使開發中國家及低度開發國家（Least Developed Countries, LDCs）得以與世界貿易體系接軌，不論GATT亦或是烏拉圭回合中所簽訂之WTO涵括協定，均設有特殊且差別待遇條款（Special and Differential Treatment, S&DT）。然而S&DT卻有其困境及缺陷，如因過渡期過短而無法發揮實際效用、制度無法因國制宜缺乏靈活性、技術援助或能力建構（Technical Assistance and Capacity. Building, TACB）之規範不具有強制性。對此，WTO在2017年生效之貿易便捷化協定（Trade Facilitation Agreement, TFA），制定了一套不同於過往之S&DT條款，本文將針對TFA之S&DT進行分析，探究形成原因、是否解決過往問題及是否衍生出新問題。|
For today’s world trading system, in order to enable developing countries and least developed countries (LDCs) to have the opportunity to integrate with the world trading system, no matter GATT or the WTO coverage agreements signed in the Uruguay Round, special and differential treatment (S&DT). Nevertheless, S&DT would face difficulties and contain shortcomings, such as the inability to exert practical effects due to the short transition period, the lack of flexibility due to the inability of the system to change from country to country, and the technical assistance and capacity building (TACB) specifications are not mandatory. Based on this, the WTO's Trade Facilitation Agreement (TFA) entered into force in 2017, and then formulated a set of S&DT clauses that are different from the past. This research would perform analysis on the S&DT of TFA to further explore the reasons for its formation, whether past problems have been solved, and whether new problems have arisen.
After 20 years of discussion and negotiation, in order for TFA to allow developing countries and LDCs to agree to enter into negotiations, developed countries have first agreed to formulate a set of S&DT that is different from the past and can change from country to country, that is, a category system. According to this system, developing countries and LDCs can classify their obligations as A, B or C after self-assessment when applying the substantive regulations of TFA, and then different transitional periods or TACB regulations would be applied according to different categories. In addition, in order to meet the needs of developing countries and LDCs who expect to be able to use S&DT more flexibly, there would also be a number of regulations to extend the transition period to make the system more usable. As for making developing countries and LDCs agree that TFA is compulsory, there is a grace period specification so that developing countries and LDCs would still apply the grace period after the transition period ends without being immediately resorted to the dispute settlement mechanism. Regarding for TACB, although it is still not as compulsory as the developing countries and LDCs desire, However, TACBs that provide developing countries and LDCs are conditions for fulfilling their commitments. Only when developing countries and LDCs obtain TACB and have the ability to execute, they need to fulfill TFA's commitments.
After the analysis of this research, it is believed that S&DT of TFA may indeed solve the dilemma faced by S&DT. For example, the category system may solve the problem of the integrated application of S&DT in the past. Secondly, the establishment of multiple transitional period extension regulations and grace period can also solve the problem that the transitional period cannot be effective. TACB, which would provide developing countries and LDCs, has to fulfill the promised conditions, and it is possible that developed countries may agree to provide TACB in order to achieve trade facilitation in order to reduce trade costs. However, TFA's S&DT may also create new problems, such as the transition period that can be continuously extended based on the self-assessment of developing countries or LDCs. Or, the setting of the grace period may cause uncertainty in the performance of the contract and uncertainty in the application of the dispute settlement mechanism. In addition, S&DT adapted to national conditions would make the decisions of the Dispute Settlement Panel and the Appellate Body lose the value of precedent, making each case require a case-by-case judgment, causing delays in the dispute settlement mechanism. Knowing that TACB is not compulsory, developed countries may still be unwilling to provide TACB. Besides, if the developed country has already provided TACB, but the developing country or LDCs still refuses to perform the contract because they still do not have the ability to perform, the problem of attribution of responsibility for the failure to perform the contract would also occur.
Although there are still related worries in TFA's S&DT, whether these worries and concerns would really cause new conflicts still needs time to answer or prove. If worries and concerns are successfully resolved, TFA's S&DT would become a model for future WTO agreements. However, in any case, the novel S&DT developed by TFA represents that WTO members are willing to devote themselves to solving the problems of developing countries and LDCs, and it is a milestone for the WTO and its members to establish a new pattern for S&DT.
我國參與貿易便捷化協定（Agreement on Trade Facilitation, TFA）相關進展，行政院經貿談判辦公室，104年5月6日，網址：https://www.ey.gov.tw/File/BEC0D872445763F7 （最後瀏覽日：2020年10月22日）。
杜哈發展議程 Doha Development Agenda，中華經濟研究院WTO及RTA中心，網址：https://web.wtocenter.org.tw/Dictionary.aspx?pid=94 （最後瀏覽日期：2020年10月21日）。
BERNARD M. HOEKMAN. & MICHEL M. KOSTECKI, THE POLITICAL ECONOMY OF THE WORLD TRADING SYSTEM: THE WTO AND BEYOND 387 (3d ed. 2009).
HAO WU, TRADE FACILITATION IN THE MULTILATERAL TRADING SYSTEM: GENESIS, COURSE AND ACCORD 90-98 (Hao Wu ed., 1st ed., 2018).
MARTIN KHOR, THE ‘SINGAPORE ISSUES’ IN THE WTO: EVOLUTION AND IMPLICATIONS FOR DEVELOPING COUNTRIES 3, (Khor, Martin ed., 1st ed. 2007).
ROBERT E. HUDEC, DEVELOPING COUNTRIES IN THE GATT LEGAL SYSTEM 69-70 (Roberte. Hudec, 1st ed. 2011).
OECD/WTO, AID FOR TRADE AT A GLANCE 2015: REDUCING TRADE COSTS FOR INCLUSIVE, SUSTAINABLE GROWTH 116-120 (WTO, Geneva/OECD ed., 1st ed., 2015).
T. Ademola Oyejide, 2002: Special and Differential Treatment, in DEVELOPMENT, TRADE AND THE WTO: A HANDBOOK 504 (Bernard Hoekman, Aaditya Mattoo, Philip English eds, 2002).
WTO, WORLD TRADE REPORT 2015: SPEEDING UP TRADE: BENEFITS AND CHALLENGES OF IMPLEMENTING THE WTO TRADE FACILITATION AGREEMENT 40 ( WTO ed., 1st ed. 2015).
Antonia Eliason, The Trade Facilitation Agreement - A New Hope for the World Trade Organization, 14(4) WORLD TRADE REVIEW 643, 661 (2015).
Ben Czapnik, The Unique Features of the Trade Facilitation Agreement: A Revolutionary New Approach to Multilateral Negotiations or the Exception Which Proves the Rule?, 18(4) GLOBAL TRADE AND CUSTOMS JOURNAL 2, 4 (Nov. 20, 2015).
Clare Short, Making the development round a reality, in THE ROLE OF THE WORLD TRADE ORGANIZATION IN GLOBAL GOVERNANCE 73 (Sampson, Gary P., 2001).
Edwini Kessie, Enforceability of the Legal Provisions Relating to Special and Differential Treatment under the WTO Agreements, 3(6) THE JOURNAL OF WORLD INTELLECTUAL PROPERTY 955, 958 (Mar. 7, 2000).
Frank J. Garcia, Beyond special and differential treatment, 27(2) Boston College International and Comparative Law Review 291, 294 (2004).
Nandang Sutrisno, Substantive Justice for Mulated, Implemented, and Enforced as Formal and Procedural Justice_ a Lesson form WTO Special and Differential Treatment Provisions for Developing Counteries, 13(3) JOURNAL OF GENDER, RACE AND JUSTICE 671, 672 (2010).
Shintaro Hamanaka, Comparative Analysis of Technical Assistance Obligations under WTO and FTAs: The Missing Perspective of the Regionalism-Multilateralism Debate, 38 (4) LEGAL ISSUES OF ECONOMIC INTEGRATION 341 (2011).
Appellate Body Report, United States – Import Prohibition of Certain Shrimp and
Shrimp Products, ¶109, WT/DS58/AB/R (adopted Nov. 6, 1998).
Appellate Body Report, Japan – Taxes on Alcoholic Beverages, at 107–108, WT/DS8/AB/R (adopted Oct. 4, 1996).
Council for Trade in Goods, Minutes of the Meeting - Held in the Centre William Rappard on 1, 4, 5 and 6 November 1996, ¶¶ 5.1-5.3, WTO Doc. G/C/M/15, (Nov. 28, 1996).
Council for Trade in Goods, Trade Facilitation - Assessment of the Scope for WTO Rules in the Field of Import, Export and Customs Procedures - Communication by the European Community, WTO Doc. G/C/W/122 (Sep. 22, 1998).
Council for Trade in Goods, Trade Facilitation Background Note, WTO Doc. G/C/W/132 (Dec. 2, 1998)
Council for Trade in Goods, Trade Facilitation Relating to the Physical Movement of Consignments (Transport and Transit) & Payment, Insurance and Other Financial Questions Affecting Cross-border Trade in Goods, WTO Doc. G/C/W/133 (Dec. 3, 1998).
Council for Trade in Goods, Trade Facilitation Draft Status report by the Council for Trade in Goods, ¶55, WTO Doc. WT/G/C/W/156 (June 30, 1999).
Council for Trade in Goods, Trade Facilitation- Presentation by the Permanent Representative of Paraguay in Geneva, Ambassador Luis María Ramírez Boettner, Concerning Landlocked Countries, as Part of the WTO Study on Trade Facilitation, ¶ 22, WTO Doc. WT/G/C/W/237 (Oct. 24, 2000).
Council for Trade in Goods, Minutes of Meeting - Held in the Centre William Rappard on 22 and 27 March 2002, WTO Doc. WT/G/C/M/59 (Apr. 22, 2002).
Council for Trade in Goods, Minutes of Meeting - Held in the Centre William Rappard - 23 and 24 May 2002, WTO Doc. WT/G/C/M/61 (July 9, 2002).
Council for Trade in Goods, Minutes of the Meeting of the Council for Trade in Goods - 22, 23 and 30 July 2002, WTO Doc. G/C/M/64 (Oct. 1, 2002).
Council for Trade in Goods, Minutes of the Meeting of the Council for Trade in Goods - 1 - 2 October 2002, WTO Doc. WT/G/C/M/65 (Nov. 22, 2002).
Council for Trade in Goods, Report (2003) of Council for Trade in Goods, at 6, WTO Doc. WT/G/L/665 (Dec. 4, 2003).
Council for Trade in Goods, Preparation for the Fourth Session of the Ministerial Conference Issues and Proposals for the Fourth WTO Ministerial Conference, WTO Doc. WT/G/C/W/451 (Oct. 11, 2011).
Differential and More Favourable Treatment, Reciprocity, and Fuller Participation of Developing Countries Decision of 28 November 1979, GATT Doc. L/4903 (Nov. 28, 1979).
General Council, Minute of Meeting Held in the Centre William Rappard on 24 April 1998, WTO Doc. WT/GC/M/28 (May 8, 1998).
General Council, Minutes of Meeting Held in the Centre William Rappardon 17-18 May 2004, at 48 ,WTO Doc. WT/GC/M/86 (June 30, 2004).
General Council, Doha Work Programme Draft General Council Decision of [...] July 2004, 1, Annex D, WTO Doc. JOB(04)/96 (July 16, 2004).
General Council, Preparations for the Fifth Session of the Ministerial Conference - Draft Cancún Ministerial Text, Annex G, WTO Doc. JOB(03)/150 (July 18, 2003).
General Council, Informal Meeting at level of Heads of Delegation 19-20 July 2004 General Council Chairman and Director-General - Opening Remarks, WTO Doc. JOB(04)/99 (July 20, 2004).
General Council, Preparation for the 1999 Ministerial Conference: Accessions to the WTO, WTO Doc. G/C/W/153 (Mar. 8, 1999).
General Council, Preparations for the Fifth Session of the Ministerial Conference - Draft Cancún Ministerial Text, WTO Doc. JOB(03)/150 (July 18, 2003).
General Council, Preparations for the Fifth Session of the Ministerial Conference Draft Cancún Ministerial Text, WTO Doc. WT/JOB(03)/150/Rev. 1 (Aug. 24, 2003).
General Council, Minutes of Meeting Held in the Centre William Rappard on 27 July and 1 August 2004, ¶93, WTO Doc. WT/GC/M/87 (Oct. 4, 2004).
General Council, General Council Annual Report (2006), at 4, WTO Doc. WT/GC/110 (Dec. 22, 2006).
General Council, Minutes of the Meeting Held in the Center William Rappard on 14 March 2014, 31, WTO doc. WT/GC/M/150 (Apr. 24, 2014).
Negotiating Group on Trade Facilitation, Summary minutes of the meeting on 2-3 May 2004, ¶47 ,WTO Doc. TN/TF/M/5 (June 10, 2005).
Negotiating Group on Trade Facilitation, Communication from the Africa Group-Operationalizing Technical Assistance and Capacity Building in Trade Facilitation, ¶¶1, 9, WTO Doc. TN/TF/W/56 (July 22, 2005).
Negotiating Group on Trade Facilitation, Communication from the European Communities- Technical assistance and support for capacity building, WTO Doc. TN/TF/W/37(Apr. 29, 2005)
Negotiating Group on Trade Facilitation, Implementation mechanism of trade facilitation commitments including key elements for technical assistance ,WTO Doc. TN/TF/W/137 (July 21, 2006).
Negotiating Group on Trade Facilitation, Summary minutes of the meeting Held in the Centre William Rappard on 7-8 June 2007, WTO Doc. TN/TF/M/18 (July 2, 2007).
Negotiating Group on Trade Facilitation, Implementation mechanism, linkage between the implementation of obligations and technical assistance and capacity building, WTO Doc. TN/TF/W/147 (July 18, 2007).
Negotiating Group on Trade Facilitation, Communication from the ACP Group Special & Differential Treatment and Technical Assistance and Capacity Building in the Trade Facilitation Negotiations , at 7, WTO Doc. TN/TF/W/161 (Oct. 29, 2009).
Negotiating Group on Trade Facilitation, Draft Consolidated Negotiating Text, WTO Doc. TN/TF/W/165 (Dec. 14, 2009).
Negotiating Group on Trade Facilitation, Communication by El Salvador Guatemala and Honduras Proposal on Legal Language for Special and Different Treatment, at 3, WTO Doc. TN/TF/W/172 (June 1, 2010).
Negotiating Group on Trade Facilitation, Textual proposals on section II of the draft consolidated negotiating text on trade facilitation - Communication from the ACP group, ¶9, WTO Doc. TN/TF/W/189 (Apr. 15, 2013).
Nora Neufeld, The long and winding road: How WTO members finally reached a trade facilitation agreement 3, WTO, https://www.wto.org/english/res_e/reser_e/ersd201406_e.pdf (last visited Oct. 19, 2020).
Panel Report, United States — Anti-Dumping and Countervailing Measures on Steel Plate from India, ¶¶ 7.110, 7114, WTO Doc. WT/DS206/9 (adopted Feb. 19, 2003).
Panel Report, European Communities — Anti-Dumping Duties on Imports of Cotton-type Bed Linen from India, ¶¶ 6.233-6.238, WTO Doc. WT/DS141/19 (adopted Apr. 29, 2003).
WTO Secretariat, “Developing Countries and the Multilateral Trading System: Past and Present,” High Level Symposium on Trade and Development, Geneva, 17-18 March 1999.
WTO, Ministerial Declaration on Trade in Information Technology Products, ¶21, WTO Doc. WT/MIN(96)/16 (Dec. 13, 1996).
WTO, Ministerial Declaration Adopted on 14 November 2001, ¶¶45-51, WTO Doc. WT/MIN(01)/DEC/1, (Nov. 20, 2001).
WTO, Ministerial Declaration Adopted on 14 November 2001, ¶27, WTO Doc. WT/MIN(01)/DEC/1, 41 ILM 746 (2002).
WTO, Ministerial Conference - Fifth Session - Cancún, 10 - 14 September 2003 - ACP Declaration on the Fifth Ministerial Conference of the WTO, ¶¶6,7,39,40, WTO Doc. WT/MIN(03)/4 (Aug. 21, 2003)
WTO, Doha Work Programme Ministerial Declaration Adopted on 18 December 2005, Annex E ¶4, WTO Doc. WT/MIN(05)/DEC (Dec.22, 2005).
World Trade Organization, Ministerial Declaration of 20 September 1986, WTO Doc. MIN. DEC (Sep. 23, 2003).
WTO, Ministerial Statement Adopted on 14 September 2003, WTO Doc. WT/MIN(03)/20 (Sep. 23, 2003).
WTO, Doha Work Programme Decision Adopted by the General Council on 1 August 2004, Annex D, WTO Doc. WT/L/579 (Aug. 2, 2004).
WTO, Bail Ministerial Declaration Adopted on 7 December 2013, WTO Doc. WT/MIN(13)/DEC (Oct. 23, 2013).
WTO, Agreement on Trade Facilitation - Ministerial decision of 7 December 2013, ¶3, WTO Doc. WT/MIN(13)/36 (Dec. 11, 2013).
WTO, General Council - Protocol Amending the Marrakesh Agreement Establishing the World Trade Organization - Decision of 27 November 2014, WTO Doc. WT/L/940 (Nov. 28, 2014).
Andras Lakatos, Challenges for Implementing the Trade Facilitation Agreement, INTERNATIONAL TRADE AND ECONOMICS SERIES, 4-5, https://www.tradeeconomics.com/wp-content/uploads/2019/07/Challenges-for-implementing-the-trade-facilitation-agreement-min.pdf (last visited Dec. 25, 2020).
Communication from the Commission to the Council and the European Parliament: The EU Approach to the Millennium Round, 12-13, COM (1999) 331 final (Aug. 7, 1999).
Evdokia Moïsé, Special and Differential Treatment in the Area of Trade Facilitation 4, OECD TRADE POLICY PAPERS, No. 32, http://dx.doi.org/10.1787/877434146062 (2006).
J. M. Finger & Philip Schuler, Implementation of Uruguay Round Commitments: The Development Challenge, WORLD BANK, http://policydialogue.org/files/publications/Implementing_Uruguay_Round_Finger.pdf (last visited Oct. 19, 2020).
Kele Onyejekwe, International Law of Trade Preferences: Emanations from the European Union and the United States, 26 ST. MARY'S L.J. 425, 454 (1995).
Kiichiro Fukasaku, Special and Differential Treatment for Developing Countries : Does It Help Those Who Help Themselves?, UNITED NATIONS UNIVERSITY, No. 197, https://www.wider.unu.edu/sites/default/files/wp197.pdf (last visited Oct. 19, 2020).
Lisa Gregorsson, A Legal Analysis of the New WTO Agreement on Trade Facilitation–With a focus on developing countries, at 16-17,STOCKHOLM UNIVERSITY, www.diva-portal.org/smash/get/diva2:797997/FULLTEXT01.pdf (last visited May 15, 2018 ).
Manuela Tortora, Special and Differential Treatment and Development Issues in the Multilateral Trade Negotiations: The Skeleon in the Closet 8, UNCTAD, http://atdforum.org/IMG/doc/S_Dmt-Feb03.doc (last visited Oct. 19, 2020).
OECD Annual Report 2005, OECD 137 (July 1, 2009).
Peter Kleen and Sheila Page, Special and Differential Treatment of Developing Countries in the World Trade Organization, SWEDEN MINISTRY FOR FOREIGN AFFAIRS (Feb. 2005), https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/3320.pdf (last visited Oct. 19, 2020).
Reflections on a Future Trade Facilitation Agreement: Implementation of WTO Obligations - A Comparison of Existing WTO Provisions, UNCTAD,14-15 (Feb. 2010), http://unctad.org/en/PublicationsLibrary/dtltlb20102_en.pdf (last visited Oct. 19, 2020).
Shintaro Hamanaka, World Trade Organization Agreement on Trade Facilitation: Assessing the Level of Ambition and Likely Impacts 13-14, ASIAN DEVELOPMENT BANK WORKING PAPER SERIES ON REGIONAL ECONOMIC INTEGRATION , NO. 138, https://www.adb.org/sites/default/files/publication/82631/reiwp-138-wto-agreement-trade-facilitation.pdf (Sep. 2014).
Thomas Fritz, Special and Differential Treatment for Developing Countries, GERMANWATCH AND THE HEINRICH BÖLL FOUNDATION, https://thomas-fritz.org/file_download/16/Special-and-Differential-Treatment-Thomas-Fritz.pdf (last visited Oct. 19, 2020).
UNCTAD, Least Developed Country Status: Effective Benefits and the Perspective of Graduation, ¶26,TD/B/49/7 (Aug. 1, 2002).
UN/CEFACT, United Nations Centre for Trade Facilitation and Bodies- Trade Facilitation Recommendation No. 4, ¶14, ECE/TRADE/242 (October, 2001).
Who are the developing countries in the WTO?, World Trade Organization(WTO), https://www.wto.org/english/tratop_e/devel_e/d1who_e.htm (last visited Oct. 19, 2020).
Least-developed countries, WTO, https://www.wto.org/english/thewto_e/whatis_e/tif_e/org7_e.htm (last visited Oct. 19, 2020).
Fiftieth anniversary of the multilateral trading system, WTO, https://www.wto.org/english/theWTO_e/minist_e/min96_e/chrono.htm (last visited Oct. 19, 2020).
Trade and development, WTO, https://www.wto.org/english/tratop_e/devel_e/devel_e.htm (last visited Oct. 19, 2020).
Understanding The WTO: Developing Countries, WTO, https://www.wto.org/english/thewto_e/whatis_e/tif_e/dev1_e.htm (last visited Oct. 19, 2020).
Members and Observers, WTO, https://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm (last visited Oct. 19, 2020).
Youssef, Hesham, Special and Differential Treatment for Developing Countries in the WTO, SOUTH CENTRE, https://www.iatp.org/sites/default/files/Special_and_Differential_Treatment_for_Deve_2.htm (last visited Oct. 19, 2020).
Examples of provisions for differential and more favourable treatment of developing countries, WTO, https://www.wto.org/english/tratop_e/devel_e/teccop_e/s_and_d_eg_e.htm (last visited Oct. 19, 2020).
Cancun Collapse: Where There's No Will There's No Way, ICTSD, Sep. 15, 2003.9.15, available at https://www.africa.upenn.edu/Urgent_Action/apic091703.html (last visited Oct. 19, 2020).
Azevêdo: “Members want a deal. Well, now it’s time to deliver”, WTO (Dec. 3, 2013), https://www.wto.org/english/news_e/spra_e/spra14_e.htm (last visited Oct. 23,2020).
Fact Sheet: U.S.-India Agreement on Trade Facilitation, USTR (Nov. 2014) , https://ustr.gov/about-us/policy-offices/press-office/fact-sheets/2014/November/US-India-Agreement-oo-Trade-Facilitation (last visited Oct. 23,2020).
Ratifications list, WTO Trade Facilitation Agreement Facility, https://www.tfafacility.org/ratifications (last visited Nov. 30, 2020).
Timeline of ratifications received to date, WTO Trade Facilitation Agreement Facility, https://tfadatabase.org/ratifications/over-time (last visited Nov. 30, 2020).
Peter Mandelson, EU Trade European Commission Press Speech, SPEECH/05/333, Commissioner DDA: “The Round for Africa” Statement to the Third African Union Conference of Ministers of Trade Cairo (June 8, 2005).
WTO, Share of Cat. A, B and C, https://tfadatabase.org/notifications/by-measure (last vistited Dec. 31, 2020).
WTO, Timeline of Implementation Commitments, https://tfadatabase.org/notifications/by-measure (last vistited Dec. 31, 2020)
WTO, Requests for category shifting and extension of time, https://tfadatabase.org/notifications/shift-and-extensions?type=extension_b (last vistited Dec. 31, 2020).
WTO, Requests for category shifting and extension of time, https://tfadatabase.org/notifications/shift-and-extensions?type=extension_c (last vistited Dec. 31, 2020).
WTO, Requests for category shifting and extension of time, https://tfadatabase.org/notifications/shift-and-extensions?type=extension_c (last vistited Dec. 31, 2020).
|Source URI: ||http://thesis.lib.nccu.edu.tw/record/#G0106351042|
|Data Type: ||thesis|
|Appears in Collections:||[國際經營與貿易學系 ] 學位論文|
Files in This Item:
All items in 政大典藏 are protected by copyright, with all rights reserved.