Mission Report Trade Policy Analysis Manual Preparation, Mentoring, and Training. TP STE 8A A Project implemented by in Consortium with: Quality Institute, AGRICONSULTING and SGS Date of Report: 23 February 2012 Reporting Period: August 1, 2011 to February 23, 2012 Author of Report: Ramon L. Clarete – TP STE 8A Mission Report 1 August 2011 - 23 February 2012 This document has been prepared with financial assistance from the Commission of the European Communities. The views expressed herein are those of the Technical Assistance Team of EuropeAid/126687/C/SER/PH and do not represent any official view of the Commission. TP STE8A Component 1 - Capacity building for trade policy and Export Development EuropeAid/126687/C/SER/PH Page 2-14 Mission Report 1 August 2011 - 23 February 2012 CONTENTS 1. GLOSSARY OF TERMS ...................................................................................................... 4 2. Executive Summary ............................................................................................................. 5 Training................................................................................................................................. 5 Training 1: Introduction to Trade Policy Analysis…………………………………………….…5 Training 2: Selected Topics in Trade Policy Formulation……………………………………...6 TPA Manual Preparation and Mentoring .............................................................................. 6 Expert’s Observations and Recommendations .................................................................... 7 3. Background and Context ...................................................................................................... 8 4. Purpose of the Mission ......................................................................................................... 9 5. Description of Mission Activities .........................................................................................11 6. Findings and Recommendations ........................................................................................ 12 LIST OF ANNEXES Annex 1. Annex 2. Terms of Reference. TRADE POLICY ANALYSIS COURSE SERIES II Training Programs 1 and 2 List of Participants. Annex 3. TRADE POLICY MANUAL . TP STE8A Component 1 - Capacity building for trade policy and Export Development EuropeAid/126687/C/SER/PH Page 3-14 Mission Report 1 August 2011 - 23 February 2012 1. GLOSSARY OF TERMS AIM ASEAN BOI BPI CGE DOH DOLE DTI EC EU FTA NEDA OP PRC PTTC TC TBT TPA TRTA 2 UPSE Asian Institute of Management Association of Southeast Asian Nations Board Of Investments Bureau Of Plant Industry Computable general equilibrium Department of Health Department of Labor and Employment Department Of Trade And Industry European Communities European Union Free Trade Area National Economic Development Authority Office of the President Professional Regulatory Commission Philippine Trade Training Center Tariff Commission Technical Barriers to Trade Trade Policy Analysis Trade Related Technical Assistance Phase 2 University of the Philippines School of Economics TP STE8A Component 1 - Capacity building for trade policy and Export Development EuropeAid/126687/C/SER/PH Page 4-14 Mission Report 1 August 2011 - 23 February 2012 2. Executive Summary This Mission was designed to assist the Department of Trade and Industry (DTI) develop, adopt, and implement a coherent and effective international trade strategy in coordination with the other agencies of the Government of the Philippines. An important gap towards realizing this purpose is the low level of capacity of the concerned government officials and employees of these agencies to undertake trade policy analysis and evaluate the net benefit to the Philippine economy of trade policies and agreements. DTI Undersecretary Adrian Cristobal, Jr. requested the TRTA 2 project of the Commission of the European Communities (EC) the services of a short term expert (STE 8A) to assist the government in (a) training government personnel and, if appropriate, members of research and academic institutions, on policy research methods, economic evaluation of FTA agreements; and (c) identifying and selecting policy options, taking account of potential positive and negative impact on different groups with competing interests; and in creating a core group of technical experts and trade lawyers in the concerned government agencies. Besides and in support of its objective to enhance the capacity of government personnel to undertake trade policy analysis and economic valuation of trade agreements, the TP STE 8 A was assigned to prepare a TPA manual, to serve as a reference document for new trade experts across government agencies involved in trade negotiations and one of the reference documents in trade policy analysis training sessions. With the intent to sustain the capacity in light of turnover in the bureaucracy, the DTI also sought from the TP STE 8A recommendations for intra- and inter-agency education and mentoring programs to train future mentors within the relevant agencies and to be implemented beyond TRTA 2. In implementing the assignment, the TP STE 8A received support from Professors and Researchers at the UP School of Economics (UPSE). Training Two training events were planned and conducted in December 2011. One was conducted at the Asian Institute of Management (AIM) from December 5 to 7, 2011. Fifty-five mid-level government personnel from about 11 government agencies went through the training program. Annex 1 shows the respective programs and lists of participants in the two events. Training 1: Introduction to Trade Policy Analysis The first event covered the following training materials. In the first day, the participants took up (a) the concept and measurement of the gains from trade; (b) analysis of tariff and quantitative restrictions to trade; (c) concept and analysis of contingent trade measures; and (d) concept and analysis of preferential trade measures. This phase of the training is the most rudimentary, but the most structured in terms of trade policy analysis. However, the trainees recognize that tariff and quantitative trade measures have gone through a long process of trade liberalization in whatever form (multilateral or TP STE8A Component 1 - Capacity building for trade policy and Export Development EuropeAid/126687/C/SER/PH Page 5-14 Mission Report 1 August 2011 - 23 February 2012 preferential), such that they may no longer be the most important measures affecting trade flows, except in a few sensitive products of politically powerful industries. In the second day, the participants were introduced to the more relevant topic of nontariff measures. Given that tariff restrictions had been reduced through the years either unilaterally or in the context of trade agreements, the administration of non-tariff measures has increasingly demonstrated their potential of becoming trade barriers. Taken up were (a) customs administration, (b) technical barriers to trade (TBTs), and (c) sanitary and phyto-sanitary (SPS) measures. Trade facilitation has gained the ascendancy over tariff reforms. Accordingly trade negotiations have increasingly zeroed in on harmonizing standards and technical regulations, and streamlining of administrative procedures. The last topic taken up in the second day was trade policies and domestic distortions. In this, the participants took away the message that while import restrictions may be convenient measures to use address domestic market failures, they may not be economically efficient. The case in point was attaining rice self-sufficiency for food security. Quantitative restrictions to imported rice have been used to increase incentives for rice farmers to produce more. The participants were trained to understand that alternative measures to meeting higher productivity objectives, such as production support, are more efficient than import restrictions (although such production support measures are by no means without on their own efficiency losses). In the third day, the topics covered were on the economics of services trade, trade-related measures that contributed to the recent food crises in 2007/08, and applied general equilibrium analysis. Training 2: Selected Topics in Trade Policy Formulation The second training event was conducted from December 15 to 16, 2011 at the Holiday Inn Clark, Angeles City in Pampanga. Nearly 50 participants attended the training. The topics were on (a) trade in goods and rules of origin; (b) trade in services; (c) trade remedies; and (d) impact evaluation. As indicated in the Terms of Reference, the second training caters to training requirements of government officials, who have been involved in actual trade policy formulation and /or negotiations. In contrast to the first training event, the second makes use of case studies to illustrate the principles underlying the formulation of trade policies. Not included in the original design of the training program, a lecture on the planned computable general equilibrium (CGE) model of the Philippine economy was given by Dr. Caesar Cororaton. The TRTA 2 project engaged their services to construct and make available to the DTI, and conduct training on the use of the model selected officials and staff from the GOP. TPA Manual Preparation and Mentoring The TP STE 8 A used most of the level of effort allocated to for this assignment in preparing the TPA manual and meeting with selected government officials and staff involved in trade policy formulation/negotiations. In preparing the manual, the TP STE 8 A conducted a collaborative workshop at the DTI International conference room with about 20 government officials and staff from four TP STE8A Component 1 - Capacity building for trade policy and Export Development EuropeAid/126687/C/SER/PH Page 6-14 Mission Report 1 August 2011 - 23 February 2012 government agencies. The participants took up the appropriate topics to be included in the TPA manual. The discussion led to the selection of these topics, namely trade in goods, trade in services, trade remedies, and impact evaluation. In the course of the workshop, the experiences of some of the participants in undertaking their respective work assignments provided the team members ideas for cases to develop in preparing the manual. The other mentoring activities involved individual team members meeting with several government staff and officials, where they exchange information with the latter about specific trade policy work they have been assigned to undertake. These meetings contributed to shaping parts 2 and 3 of the TPA. Annex 3 contains the TPA manual as of the time of this report. The TP STE 8A has continued working to edit the draft TPA manual. This explains why the TP STE 8A has not been on time in submitting his mission report. This work is similar to writing a textbook, which ordinarily requires more time. However, upon indications of the service provider ECA Consortium, the manual is submitted as it is at this point in time. Expert’s Observations and Recommendations 1. There appeared to be greater interest among the participants to learn more about trade in services (professionals, telecommunications, etc.) than about trade in goods. This interest may correlate with the comparative advantage of the Philippines in services trade. For example, the business process outsourcing export activities is among the faster growing industry of the country. In the discussion on preferential trade agreement, e.g. ASEAN economic community, the participants were more active. Issues such as harmonization of standards or mutual recognition of respective national standards and regulations had been a favorite focus. 2. Between multilateral and preferential trade agreements, the participants likewise appeared to be more interested with the latter. This may reflect the disappointment of many about the slow progress of the current Doha round. It may also signal that most of the trade negotiations effort of the Philippines is applied to preferential trade agreements. 3. It was interesting to note that a few participants were thinking of the rules of origin as instruments for slowing down import flows into the economy particularly in these times when tariff restrictions are low and quantitative import restrictions had been dismantled or converted into tariff measures by several agreements. In preferential trade in goods, rules of origin can be restrictive. This thinking may be explained by the pressure brought to bear on Philippine policy makers by domestic industries affected adversely by freer trade rules to provide some form of protection. The discussion therefore on trade facilitation and trade remedies turned out to be useful to policy makers looking for appropriate instruments to use in coping with domestic lobby groups. As for the RoOs, the purpose of entering into preferential trade liberalization is not only to realize market opportunities for the country’s exports, but also to the inputs needed by potentially export-oriented downstream industries. 4. The search for guidance on what products to promote with trade policies and agreements stood out in the discussions at the training or the workshop. The measure of revealed comparative advantage to rank industries for the purpose of TP STE8A Component 1 - Capacity building for trade policy and Export Development EuropeAid/126687/C/SER/PH Page 7-14 Mission Report 1 August 2011 - 23 February 2012 identifying those industries may be useful to discriminate among various goods and services. 5. The engagement of the trainees in actual trade negotiations or in actual trade policy formulation (as for example, them being assigned in trade and related matters work) is important to give them further immersion in trade policy work. 3. Background and Context This mission was conducted under the second phase of the Trade Related Technical Assistance Program (TRTA 2). The TRTA 2 program is a development cooperation initiative by and between the Republic of the Philippines (RP) and the Commission of the European Communities (EC). Its implementation arrangements, including the role of the National Economic and Development Authority (NEDA) as requesting authority and coordinating agency for the project, are prescribed under Financing Agreement DCIASIE/2007/018-950. The overall objective of the program “is to support sustainable poverty reduction in the Philippines through further integration into the international trade system”. The specific purpose “is to enhance the capacity of selected Government agencies and state actors” for deeper integration into the system. It has four components, as follows: 1. Capacity building for trade policy and export development – to support development and implementation of a coherent and effective international trade strategy; and implementation of international commitments including those to be made in the framework of the ongoing EU-ASEAN FTA negotiations; 2. Standards harmonization and SPS conformity – to facilitate adoption of, and compliance with, international standards and regulations for selected product and service exports; 3. Trade facilitation – to enhance competitive, transparent, and efficient movement of traded products within the international and regional trade facilitation systems; 4. Rapid response facility – to enable rapid, efficient and effective response to unforeseen problems and issues in trade related areas through provision of shortterm technical assistance. The project has an operational implementation period of four years – from 23 August 2008 to 22 August 2012 - and an estimated cost of EUR 7,475,000, of which EUR 6,500,000 and EUR 975,000 are to be contributed by EC and RP, respectively. It is to be implemented through “decentralized management” under which NEDA will be the contracting and paying authority for certain expenditures including for training, seminars, workshops and operating costs. For technical assistance, EC remains as the contracting and paying authority and for which ECA has been contracted as Service Provider. The expected period of execution of the ECECA service contract is 46 months and shall not in any case go beyond 22 August 2012. TP STE8A Component 1 - Capacity building for trade policy and Export Development EuropeAid/126687/C/SER/PH Page 8-14 Mission Report 1 August 2011 - 23 February 2012 4. Purpose of the Mission This activity is directed towards the realization of the target result of Component 1 – Trade policy and export development - as reflected in the Logical Framework of the TRTA 2 project, which is as follows: “1.1 A coherent and effective international trade strategy, developed, adopted and being implemented.” To help realize this target result, one of activity (Activity 1.1.1) envisaged in the revised Logical Framework is to provide support to trade policy analysis, including but not limited to expert advice on policy issues, training and mentoring of concerned government staff and, if appropriate, members of research and academic institutions, on (a) policy research methods, (b) benefit-cost analysis of FTAs and comprehensive economic partnership agreements; and (c) identification and selection of policy options, taking account of potential positive and negative impact on different groups with competing interests. In the context of the above activity, the following actions are to be taken in accordance with the approved work plan for 2011 (AWP3): • Action 1.1.1.1. Conduct training for government personnel and, if appropriate, members of research and academic institutions on: (a) policy research methods, (b) benefit-cost analysis of FTAs and comprehensive economic partnership agreements; and (c) identification and selection of policy options, taking account of potential positive and negative impact on different groups with competing interests; and assist DTI in creating a core group of technical experts and trade lawyers in concerned government agencies • Action 1.1.1.2. Prepare a trade policy analysis manual, to serve as (1) reference document for new trade experts across government agencies involved in trade negotiations and (2) one of reference documents in trade policy analysis training sessions. • Action 1.1.1.3. Develop and recommend intra- and inter-agency education and mentoring programs to train future mentors within the relevant agencies and to be implemented beyond TRTA2 for the purposes of sustainability The expert’s scope of work is as follows: 1. In consultation with DTI, prepare a trade policy analysis manual under Action 1.1.1.2. The manual, which will be used as main reference in Trade Policy Analysis training and mentoring sessions, will be revised based on feedback during those sessions. It shall specify application of case studies in the training and mentoring sessions. The case studies shall be developed and completed prior to the conduct of training and mentoring. 2. Conduct mentoring sessions during the course of developing the training manual under Action 1.1.1.3. Mentoring sessions can be more effective when conducted in the context of a specific simulated or actual problem. The training manual envisions the use of trade policy case studies, based on past Philippine trade policy issues. In developing these case studies, the TP STE 8A should interview and interact with those who were actually involved in the specific trade policy being studies (and/or their colleagues, especially if they have since resigned/retired/or been re-assigned). In the course of these interviews and interactions, the TP STE 8A should already mentor the officials on the alternative TP STE8A Component 1 - Capacity building for trade policy and Export Development EuropeAid/126687/C/SER/PH Page 9-14 Mission Report 1 August 2011 - 23 February 2012 ways by which the actual policy issue could have been analyzed and what alternative decisions could have been taken—along with how to study the impact of these decisions. Annex 1 presents a general idea of the mentoring sessions and how these are related to the preparation of the “training manual.” 3. Design training modules and conduct training sessions using the manual as main reference material, under Action 1.1.1.1. 4. Regularly coordinate with the DTI and other STEs assigned in related Actions in Component 1, e.g. Action 1.1.5.1.1. TP STE8A Component 1 - Capacity building for trade policy and Export Development EuropeAid/126687/C/SER/PH Page 10-14 Mission Report 1 August 2011 - 23 February 2012 5. Description of Mission Activities The briefing for this Mission was done on August 1, 2011. The TP STE 8 A used most of the level of effort allocated to for this assignment in preparing the TPA manual and meeting with selected government officials and staff involved in trade policy formulation/negotiations. In implementing the assignment, the TP STE 8 A received support of Professors and Researchers at the UPSE. Although he has received support for the preparation of the manual, mentoring and training. The TP STE 8 A remains solely responsible for the tasks and outputs specified by the Terms of Reference of this Mission. In preparing the manual, the TP STE 8A conducted a collaborative workshop at the DTI International conference room with about 20 government officials and staff from four government agencies. The participants took up the appropriate topics to be included in the TPA manual. The discussion led to the selection of these topics, namely trade in goods, trade in services, trade remedies, and impact evaluation. In the course of the workshop, the experiences of some of the participants in undertaking their respective work assignments provided the team members ideas for cases to develop in preparing the manual. The other mentoring activities involved support of professors and researches from UPSE in meetings with several government staff and officials, on exchanges information about specific trade policy issues. These meetings contributed to shaping parts 2 and 3 of the TPA. Annex 3 contains the draft TPA manual. Using the earlier drafts of the TPA manual, the TP STE 8 A prepared power point presentations for the training activities. Annex 2 presents the programs of the two training events. The first one on the introduction to trade policy analysis was conducted from December 5 to 7, 2012 at the AIM. The second one was done at the Holiday Inn in Clark, Angeles City Pampanga. It was on selected topics for trade policy formulation. After the training, the TP STE 8 A has continued working on editing the draft TPA manual, and even after the end of Mission de-briefing. This explains why the TP STE 8 A has not been on time in submitting his mission report. This work is similar to writing a textbook, which ordinarily requires more time. The following was the realized work plan of the TP STE 8 A. TP STE8A Component 1 - Capacity building for trade policy and Export Development EuropeAid/126687/C/SER/PH Page 11-14 Mission Report 1 August 2011 - 23 February 2012 Work Plan STE on Trade Policy Analysis Manual Preparation, Mentoring, and Training (TP STE8a) Trade Related Technical Assistance 2 Date Activity 1 Aug 2011 13 Oct 2011 Briefing meeting at NEDA Pre-training meeting(s) with selected participants Research, interviews, and drafting of the Training Manual 2 Aug 2011 to 30 Nov 2011 2 Aug 2011 to 30 Nov 2011 Research and drafting of Part I of Training Manual, Introduction to trade policy analysis Research and drafting of Part II (covering all cases), including mentoring and meetings with government officers 1. Trade in Goods and Rules of Origin 2. Trade in Services 3. Trade Remedies 2 Aug 2011 Research and drafting of Part III, ex post assessment of to trade agreements 30 Nov 2011 Conduct of Sessions 1 and 2 of the training Dec. 5 to 7 Conduct of Sessions 1 to 11 of Part 1 of the training at 2011 the AIM Dec. 15 to Conduct of Sessions 1 to 4 of Part 2 of the training at 16 2011 Holiday Inn Hotel at Clark 8 Dec to 31 Revision of the draft output of the manual Dec, 2011 1 January to Integration work 22 February, 2012 1 Aug 2011 Progress reporting meetings / coordination meetings with to 31 Dec other STEs/members of the Trade Policy Research 2011 Network (under Action 1.1.5 of AWP3)/ Report writing February 23, Debriefing at DTI 2012 Total Workdays Number of Workdays 0.5 0.5 15.5 45 18 5 2 15 14.5 8.5 0.5 125 The above differs from the original work plan as stated in the TOR of the TP STE 8a for two reasons. First, the number of workdays was reduced to 125 from 139 days. This was because the STE was only available to work on August 1, 2011 and not on July 15, 2011. Secondly, upon the request of the TRTA 2 Team Leader, Dr. Romeo A. Reyes, and duly concurred by the TRTA 2 Imprest Administrator, Ms. Brenda Mendoza, the end date of the Mission got extended to January 2012. The extension was to allow the STE take the weekends and holidays in December 2011. Due to difficulty in scheduling the de-briefing, the end of Mission de-briefing occurred on February 23, 2012 at the office of DTI Undersecretary Adrian Cristobal, Jr. TP STE8A Component 1 - Capacity building for trade policy and Export Development EuropeAid/126687/C/SER/PH Page 12-14 Mission Report 1 August 2011 - 23 February 2012 6. Findings and Recommendations 1. There appeared to be greater interest among the participants to learn more about trade in services (professionals, telecommunications, etc.) than about trade in goods. This interest may correlate with the comparative advantage of the Philippines in services trade. For example, the business process outsourcing export activities is among the faster growing industry of the country. In the discussion on preferential trade agreement, e.g. ASEAN economic community, the participants were more active. Issues such as harmonization of standards or mutual recognition of respective national standards and regulations had been a favorite focus. 2. Between multilateral and preferential trade agreements, the participants likewise appeared to be more interested with the latter. This may reflect the disappointment of many about the slow progress of the current Doha round. It may also signal that most of the trade negotiations effort of the Philippines is applied to preferential trade agreements. 3. It was interesting to note that a few participants were thinking of the rules of origin as instruments for slowing down import flows into the economy particularly in these times when tariff restrictions are low and quantitative import restrictions had been dismantled or converted into tariff measures by several agreements. In preferential trade in goods, rules of origin can be restrictive. This thinking may be explained by the pressure brought to bear on Philippine policy makers by domestic industries affected adversely by freer trade rules to provide some form of protection. The discussion therefore on trade facilitation and trade remedies turned out to be useful to policy makers looking for appropriate instruments to use in coping with domestic lobby groups. As for the RoOs, the purpose of entering into preferential trade liberalization is not only to realize market opportunities for the country’s exports, but also to the inputs needed by potentially export-oriented downstream industries. 4. The search for guidance on what products to promote with trade policies and agreements stood out in the discussions at the training or the workshop. The measure of revealed comparative advantage to rank industries for the purpose of identifying those industries may be useful to discriminate among various goods and services. 5. The engagement of the trainees in actual trade negotiations or in actual trade policy formulation (as for example, them being assigned in trade and related matters work) is important to give them further immersion in trade policy work. TP STE8A Component 1 - Capacity building for trade policy and Export Development EuropeAid/126687/C/SER/PH Page 13-14 Annexes Annex 1 – Terms of Reference Annex 2 – Trade Policy Analysis Courser Series II Training Programs 1 and 2 List of Participants Annex 3 – Trade Policy Manual. TP STE8a Component 1 - Capacity building for trade policy and Export Development EuropeAid/126687/C/SER/PH Page 14-14 ANNEX 1 TERMS OF REFERENCE EuropeAid/126687/C/SER/PH Implementing Agency: Department of Trade and Industry (DTI) Type of Expert: Short-Term Expert (STE) – Intermittent Title of Expert: STE on Trade Policy Analysis Manual Preparation, Mentoring, and Training (TP STE8a) 1. General Information The Trade Related Technical Assistance Project 2 (TRTA 2) is a development cooperation initiative by and between the Republic of the Philippines (PH) and the Commission of the European Communities (EC). Its implementation arrangements, including the role of the National Economic and Development Authority (NEDA) as requesting authority and coordinating agency for the project, are prescribed under Financing Agreement DCIASIE/2007/018-950. The overall objective “is to support sustainable poverty reduction in the Philippines through further integration into the international trade system”. The specific purpose “is to enhance the capacity of selected Government agencies and state actors” for deeper integration into the system. It has four components, as follows: 1. Capacity building for trade policy and export development – to support development and implementation of a coherent and effective international trade strategy; and implementation of international commitments including those to be made in the framework of the ongoing EU-ASEAN FTA negotiations; 2. Standards harmonization and SPS conformity – to facilitate adoption of, and compliance with, international standards and regulations for selected product and service exports; 3. Trade facilitation – to enhance competitive, transparent, and efficient movement of traded products within the international and regional trade facilitation systems; 4. Rapid response facility – to enable rapid, efficient and effective response to unforeseen problems and issues in trade related areas through provision of short-term technical assistance. The project has an operational implementation period of four years – from 23 August 2008 to 22 August 2012 – and an estimated cost of EUR 7,475,000, of which EUR 6,500,000 and EUR 975,000 are to be contributed by EC and PH, respectively. It is to be implemented through “decentralized management” under which NEDA will be the contracting and paying authority for certain expenditures including for training, seminars, workshops and operating costs. 1 For technical assistance, EC remains as the contracting and paying authority and for which ECA has been contracted as Service Provider. The expected period of execution of the ECECA service contract is 46 months and shall not in any case go beyond 22 August 2012. 2. Justification and Objective The target result of Component 1 – Trade policy and export development - as reflected in the Logical Framework for the project is the following: “1.1 A coherent and effective international trade strategy, developed, adopted and being implemented.” To help realize this target result, one of the activities envisaged in the revised Logical Framework is the following: Activity 1.1.1 Support to trade policy analysis, including but not limited to expert advice on policy issues, training and mentoring of concerned government staff and, if appropriate, members of research and academic institutions, on (a) policy research methods, (b) benefitcost analysis of FTAs and comprehensive economic partnership agreements; and (c) identification and selection of policy options, taking account of potential positive and negative impact on different groups with competing interests. In the context of the above activity, the following actions are to be taken in accordance with the approved work plan for 2011 (AWP3): Action 1.1.1.1 Conduct training for government personnel and, if appropriate, members of research and academic institutions on: (a) policy research methods, (b) benefit-cost analysis of FTAs and comprehensive economic partnership agreements; and (c) identification and selection of policy options, taking account of potential positive and negative impact on different groups with competing interests; and assist DTI in creating a core group of technical experts and trade lawyers in concerned government agencies Action 1.1.1.2 Prepare a trade policy analysis manual, to serve as (1) reference document for new trade experts across government agencies involved in trade negotiations and (2) one of reference documents in trade policy analysis training sessions. Action 1.1.1.3 Develop and recommend intra- and inter-agency education and mentoring programs to train future mentors within the relevant agencies and to be implemented beyond TRTA2 for the purposes of sustainability The STE on Trade Policy Analysis Manual Preparation, Mentoring, and Training (TP STE8a) is to be engaged to assist DTI in the implementation of Actions 1.1.1.1, 1.1.1.2 and 1.1.1.3. 3. Scope of the Work In particular, TP STE8a shall perform the following tasks: 3.1 In consultation with DTI, prepare a trade policy analysis manual under Action 1.1.1.2. Annex 1 presents an indicative definition of a “training manual,” including an indicative general outline. The STE is expected to improve on the definition of the training manual and on the outline. The manual, which will be used as main reference in Trade Policy Analysis training and mentoring sessions, will be revised based on feedback during those sessions. It shall 2 specify application of case studies in the training and mentoring sessions. The case studies shall be developed and completed prior to the conduct of training and mentoring. 3.2 Conduct mentoring sessions during the course of developing the training manual under Action 1.1.1.3. Mentoring sessions can be more effective when conducted in the context of a specific simulated or actual problem. The training manual envisions the use of trade policy case studies, based on past Philippine trade policy issues. In developing these case studies, the STE should interview and interact with those who were actually involved in the specific trade policy being studies (and/or their colleagues, especially if they have since resigned/retired/or been re-assigned). In the course of these interviews and interactions, the STE should already mentor the officials on the alternative ways by which the actual policy issue could have been analyzed and what alternative decisions could have been taken—along with how to study the impact of these decisions. Annex 1 presents a general idea of the mentoring sessions and how these are related to the preparation of the “training manual.” 3.3 Design training modules and conduct training sessions using the manual as main reference material, under Action 1.1.1.1. Annex 2 presents a more detailed explanation of the “training sessions.” 3.4 Regularly coordinate with the DTI and other STEs assigned in related Actions in Component 1, e.g. Action 1.1.5.1.1 4. Expected Outputs/Results 4.1 A training manual submitted by the STE and approved by responsible DTI senior official. The separate submissions related to the development of the manual should include: • A detailed outline of training manual and case study outlines prior to the actual fulldevelopment of the training manual • The draft of the actual training manual. The number of cases to be included in the manual to be mutually agreed upon by the DTI and the STE, depending on the depth of discussion per case as indicated in the proposed outline of the STE. • The final version of the training manual, as revised, based on feedback from the training sessions. 4.2 Selected officials mentored (especially those involved in the trade case studies being developed under this TOR) and the corresponding mentoring report submitted to the DTI,. • Number of mentoring sessions/meetings between the STE and government officers, to be mutually agreed by the DTI, STE, and government officers involved. A single mentoring report can be submitted to summarize the results of mentoring sessions held. 4.3 Two training sessions undertaken, government personnel trained on and able to conduct trade policy analysis, and corresponding training reports submitted to DTI. 4.4 Regular reports submitted to the Technical Assistance Team on the progress of the mission; attendance in meetings of the Trade Policy Research Network, under Action 1.1.5, when required by the DTI. 4.5 Training and Mentoring Report prepared by STE, reviewed and endorsed by KE2, and submitted to DTI. Training manual and modules annexed to the report. 3 5. Qualifications and skills 1. University degree in economics, preferably at the Master’s level or its equivalent; relevant experience in trade and policy research and analysis work, preferably with strong knowledge of and experience in Philippine trade policymaking 2. Thorough knowledge of trade economics and benefit cost analysis 3. Proven ability to work, communicate, and interact with high level officials especially in a multi-disciplinary and multi-cultural setting 4. Excellent command of the English language verbally and in writing (knowledge of the Filipino language would be an advantage) 5. Proficient in Microsoft Office (Word, Excel, Power Point) and relevant internet and email software General professional experience 6. At least five (5) years professional experience in policy work in government, international organization, or reputable research institute / consulting firm Specific professional experience 7. At least three (3) years experience in the design, organization, facilitation and conduct of seminars, workshops, trainings, or conferences in government, international organization, or reputable research institute / consulting firm 6. Timing, Logistics and other Arrangements The selected expert shall be engaged for a maximum of one hundred twenty five (125) workdays to develop the manual (under Action 1.1.1.2), implement the training sessions (under Action 1.1.1.1) and mentoring sessions (under Action 1.1.1.3) . These workdays can be rendered intermittently between 15 July and 31 December 2011. No workdays can be used beyond 31 December 2011. The nature of this engagement is such that the expert can continue to perform other professional, business, consulting and similar endeavours according to the guidelines of the EC pertaining to the services of Short-Term Experts. Also, given the breadth of trade policy topics and cases, the STE may constitute a team, on his own account, to work under his/her supervision in performing the tasks in Section 3. Sole responsibility over the trade policy manual, mentoring and training lies with the STE. TP STE8a shall report to, and seek guidance from, duly designated representatives of DTI in performing the tasks and producing the outputs enumerated in this Terms of Reference. The expert will be based at the DTI office in Makati City with possible consultation meetings at NEDA in Pasig City and at the offices of other Component 1 participating agencies, e.g. DA, DOLE, which are all in Metro Manila. DTI will provide adequate office space and other facilities to enable the expert to comply with this Terms of Reference. Should travel outside Metro Manila be required, the cost shall be charged against the budget for Incidental Expenditures of the EC-ECA contract. The per diem or daily subsistence allowance covering food, lodging and local transport shall be in accordance with the approved and published rate in the EC website. The expert shall bear the cost of travel within Metro 4 Manila to be incurred in the performance of the duties and responsibilities spelled out in this Terms of Reference. A briefing meeting shall be convened by NEDA on the first day of the mission to discuss and ensure common understanding of the objective, tasks, expected outputs, and working arrangements set forth in this Terms of Reference. NEDA shall notify the implementing agencies, the EU Delegation, and other concerned parties on the date, time and venue of the briefing meeting. The detailed schedule of activities and allocation of workdays shall be discussed and preferably agreed upon at the briefing meeting. If not, it shall be prepared and submitted to the Team Leader within five (5) workdays after the meeting, as follows: • For the development of the training manual, it is estimated that 35 workdays are allotted for the Part I; a total of 60 workdays for all the cases to be included in Part II, including mentoring of and discussions with government officers/agencies actually involved in the cases being developed; and 35 workdays are allotted to Part III, including mentoring of selected agencies involved in the review of the PJEPA (i.e. actual use of tools and methodologies for conducting ex-Post review of trade agreements). • For the implementation of the training activities, a total of nine (9) workdays are allotted for the STE. This will include 1 workday for both a pre-training meeting with selected participants (to discuss training outline) and a mission briefing; five (5) workdays for the first training session (covering Parts I and II of the training manual) and two (2) workdays for the second training session (covering Part III of the training manual); and one (1) workday for mission de-briefing and other post-training activities. Date Total Activity Number Workdays Briefing at NEDA 0.5 Pre-training meeting(s) with selected participants 0.5 Development of Part I of Training Manual 36 Development of Part II (covering all cases), 56 including mentoring and meetings with government officers Development of Part III, including mentoring of 35 officers involved in ex-post PJEPA Review Conduct of Sessions 1 and 2 of the training 7 Progress reporting meetings / coordination 3.5 meetings with other STEs/members of the Trade Policy Research Network (under Action 1.1.5 of AWP3) Debriefing at DTI 1 139 of During the said briefing meeting, the schedule will be finalized, with the suggested timetable as a guide: • Submission of detailed outline of Training Manual (including outline of cases) – May (4th week) nd • Pre-training meeting with selected participants (on training outline) – June (2 wk) • Mentoring of and discussion with agencies involved in the four cases (for Part II) – June 5 • • • • • Mentoring of PJEPA agencies (for Part III: methodologies for ex-post analysis of existing agreements) – June (1st session); July (2nd session); August (3rd session) Submission of 1st draft of Manual – September Submission of 2nd draft – October Actual conduct of training sessions – October / November Submission of final version of Manual – December On or before the last day of the mission, the STE shall present her/his substantive findings and recommendations at a debriefing meeting to be convened and notified by DTI. All concerned parties shall have the opportunity to react to the findings and recommendations to be reflected in the expert’s Mission Report at that meeting. The STE shall prepare the Mission Report in accordance with the guiding principles and process specified in the Guidelines for Preparation and Review of TRTA Project 2 Mission Reports. In accordance with ECA standard operating procedure, the expert will accomplish and sign a monthly timesheet for approval and signature of KE2 and a responsible official of DTI, countersignature of the TAT Leader and to be noted by the TRTA 2 Imprest Administrator, reflecting the actual number of workdays rendered, briefly indicating the place where, and the task for which, these were rendered. The following documents are attached to this Terms of Reference for guidance of the expert: 1. 2. 3. 4. 5. Mission Report Template Timesheet Template Guidelines for Preparation and Review of TRTA Project 2 Mission Reports Guidelines for Preparation of Training/Workshop/Seminar Design Guidelines for Funding of Training, Workshop and Seminar Activities 6 ANNEX 2 Annex 2. Trade Policy Analysis Manual Preparation and Trade Policy Analysis Mentoring A. The Training Manual: its purpose and some reference manuals and materials As used in this TOR, a trade policy analysis manual is intended as: - an introduction to trade policy analysis, serving as self-paced reference material for new government officers being trained for trade policy analysis and/or negotiations - it can also be used as either a reference material to prepare participants prior to a training, a handout during training, or a reference material after training A sample training manual which can be used as a guide by the STE(s) is the UNEP Training Manual on Integrated Environment Assessment available at http://www.unep.org/ieacp/iea/training/manual/introduction.aspx, specifically Module 5: Integrated analysis of environmental trends and policies (http://www.unep.org/ieacp/_res/site/File/iea-training-manual/module-5.pdf). These manuals also include proposed powerpoint presentations and training modules. In preparing the manual, the STE is also expected to survey available materials over the internet, including (at the very least) the following: 1. Papers - Piermartini, R. and R. Teh (2005) Demystifying modelling methods for trade policy, WTO Discussion Paper No. 10, available at - http://www.wto.org/english/res_e/booksp_e/discussion_papers10_e.pdf - Abler, D. (2006) Approaches to measuring the effects of trade agreements, CATPRN Paper 2006-1, available at - http://www.uoguelph.ca/~catprn/PDF/Commissioned%20Paper%202006-1.pdf. - Bowen, H.P., A. Hollander and J.-M. Viaene (1998) Applied international trade analysis, University of Michigan Press, available at http://www.uoguelph.ca/~catprn/PDFCP/Commissioned_Paper_2007-2_Evenett.pdf - Taylor, L. and von Arnim, R. (2006) Modelling the Impact of Trade Liberalisation: A Critique of Computable General Equilibrium Models, (New School for Social Research, New York), available at - http://www.oxfam.org.uk/resources/policy/trade/downloads/research_trade_liberalisation.pdf ?m=234&url=http://www.oxfam.org.uk/resources/policy/trade/downloads/bp92_afghanistan.p df 2. Local Capacity-building materials - Philippine Global Trade E-Learning Program (PGTEP) funded by the USAID (training materials now lodged with the Philippine Trade Training Center (PTTC) [this will be facilitated by DTI and the KE2] 3. Foreign Capacity-building/ Instructional materials - applicable E-Learning programs of the World Bank - Modules of the Institute for Commercial Diplomacy and Trade (http://www.commercialdiplomacy.org), specifically the instructional module on “Using Economic Data in Commercial Diplomacy: Making Rule Of Thumb Calculations on the Economic Effects of Trade Policy Decisions” (http://www.commercialdiplomacy.org/pdf/manual/EconDataFinal.pdf) The STE(s) is expected to comply with applicable copyright laws. 1 B. Developing Trade Policy Case Studies and Conduct of Mentoring Sessions To ensure effectiveness, the training manual should include local case studies of actual trade policy analyses or negotiation episodes. In preparing the case studies, the STE should actively interact with government officers who were directly involved in the case studies / or whose agencies served as the lead institutions for these cases. In this interaction between the government officers and the STE, using the specific case study as an example, (a) the STE will mentor the government officers on the alternative analytical tools that may used to analyze the policy issue; while (b) the government officers will ground the STE on the realities of trade policymaking, including the actual issues surrounding the specific case being studied. The mentoring session(s) can focus on discussion of case facts and on alternative ways by which analyses could have been undertaken. C. General Outline of the Training Manual An indicative general outline of the training manual is given below. The STE is expected to improve on this and submit a detailed outline (including of the cases) for approval of the DTI. Part I – Introduction to Trade Policy Analysis - What is Trade Policy? - What are the tools for Trade Policy analysis? - How do you analyse trade policy? What are the alternative approaches, theories and methodologies? (include “rules of thumb” approaches, e.g. from http://www.commercialdiplomacy.org/pdf/manual/EconDataFinal.pdf) - What are the pros and cons of these approaches? What are the data requirements of these approaches? Part II - Case Studies of Trade Policy Analyses in the Philippines (oriented to policymakers) Using actual case studies, this portion will illustrate: (1) for the benefit of government officers, how particular tools can be used to analyze specific trade policy issues; and (2) for the benefit of academic/research institutions, how academic studies can be made more useful for government. The cases should include examples across various contexts: multilateral, regional and bilateral. Given recent trade episodes, it is suggested that the STE consider the following: • Under multilateral agreements, the cases can focus on dispute settlement mechanism or the use of trade remedies. • Under regional agreements, the cases can focus on: o Analysis, implementation, and consequences of using exception windows For example, a good case is the PHL’s invocation of the Protocol on the Implementation of the CEPT Scheme Temporary Exclusion List in order to suspend tariff concessions on petrochemical products. This case will illustrate not only the need to consider consequences of non-implementation of commitments (e.g. compensation) but also the linkage between trade policy with investment and industrial policy. o Development of negotiating position in the services sector (e.g. a particular AFAS package). • Under bilateral agreements, the focus can be on the PJEPA. This is a particularly interesting case given that (a) it is a recent episode, (b) data are relatively available, (c) a set of studies was actually undertaken by academic and research institutions prior to negotiating the agreement, and (d) it illustrates a full-range of trade and economic issues. o As a learning instrument, the PJEPA can clearly illustrate how PIDS (and any other academic/research institutions, if any) analysed issues related to the PJEPA—including use of general equilibrium models, assumptions behind models and their implications on results and recommendations (e.g. dynamic vs. static); use of partial equilibrium models; how government made use of the 2 analyses; what other analytical tools did the government use; what are the other ways of undertaking the analyses. o Specifically, cases can be developed on the following set of PJEPA issues, situated at the time before the agreement was finalized and implemented: Impact of the PJEPA on output, employment, prices, income distribution, key sectors; PJPEPA Chapter on Trade in Goods; how the government decided on Categories of Tariff Elimination/ Reduction/ Exclusion; Impact of exports/imports output and employment, fiscal revenues; ROO-related decisions, specifically on garments; Trade in Services, including setting of level of ambition for negotiations, consistency with local laws, structure of negotiations with respect to commercial presence, and decisions related to movement of natural persons; and Decisions with respect to legal and Constitutional Issues, including text of the Agreement, process of legal scrubbing, Dispute Settlement, reservations on investments, among others. The cases suggested above are only indicative. The expert may recommend other case subjects, depending on the viability of developing the case (e.g. data and information availability) and appropriateness of the example. The actual number of cases to be developed under Part II will be mutually agreed on by DTI and the STE, depending on the depth of discussion per case as indicated in the proposed outline of the STE. Part III - Ex-post analysis of existing trade agreements This portion of the manual will cover the following: • How do you analyze existing trade agreements? How do you measure their impact on output, employment, prices, income distribution, key sectors, etc.? • What are the alternative approaches and methodologies? • What are the pros and cons of these approaches? What are the data requirements of these approaches? • How do you separate implementation issues of the agreements (e.g. effect of the agreement per se vs. operational capacity constraints to take advantage of the agreement)? • How do you account for “soft impacts” of the agreement (e.g. increase in trade and investments owing to increased confidence in PHL as a partner—and not due to specific concessions in the agreement)? - As the government is currently undertaking a review of the PJEPA implementation, it is suggested that a case study be developed in terms of applying the questions above to the PJEPA Review (i.e. use the PJEPA as a clear example in developing Part III). Again, this suggestion is only indicative. - It is expected that the STE will provide mentoring to government agencies involved in the review of the PJEPA (especially those directly involved in the cases being developed); if possible, the STE may also draw inputs from research project on PJEPA review in Action 1.1.5.1.1) Part I of the manual is directed to new recruits (or those with no trade policy background); while Parts II and III should target specialists. 3 The Training Sessions There are two (2) training sessions expected under the TOR, using the Training Manual as basic reference. The STE, in consultation with the KE2 and DTI, will design the actual training calendar; sessions may be integrated or spread across a given period of time. - First session is for five (5) days, to cover theoretical foundations; methodologies and approaches, including “rules of thumb in economic analysis of trade policy; application to case studies of trade policy analyses episodes (i.e. Parts I and II of the Training Manual). - Second session is for two (2) days, to cover methodologies for reviewing existing agreements including, as suggested examples (indicative only): the case of the PJEPA Review, the implementation of agreements related to the ASEAN, and the impact of the WTO on PHL. 4 Work Plan STE on Trade Policy Analysis Manual Preparation, Mentoring, and Training (TP STE8a) - Trade Related Technical Assistance 2 Date 1 Aug 2011 13 Oct 2011 2 Aug 2011 to 30 Nov 2011 2 Aug 2011 to 30 Nov 2011 Activity Briefing meeting at NEDA Pre-training meeting(s) with selected participants Research, interviews, and drafting of the Training Manual Research and drafting of Part I of Training Manual, Introduction to trade policy analysis Research and drafting of Part II (covering all cases), including mentoring and meetings with government officers 1. Trade in Goods and Rules of Origin 2. Trade in Services 3. Trade Remedies 2 Aug 2011 Research and drafting of Part III, ex post assessment of to trade agreements 30 Nov 2011 Conduct of Sessions 1 and 2 of the training Dec. 5 to 7 Conduct of Sessions 1 to 11 of Part 1 of the training at the 2011 AIM Dec. 15 to Conduct of Sessions 1 to 4 of Part 2 of the training at 16 2011 Holiday Inn Hotel at Clark 8 Dec to 31 Revision of the draft output of the manual Dec, 2011 1 January to Integration work 22 February, 2012 1 Aug 2011 Progress reporting meetings / coordination meetings with to 31 Dec other STEs/members of the Trade Policy Research 2011 Network (under Action 1.1.5 of AWP3)/ Report writing February 23, Debriefing at DTI 2012 Total Workdays Number of Workdays 0.5 0.5 15.5 45 18 5 2 15 14.5 8.5 0.5 125 5 TRADE POLICY ANALYSIS COURSE SERIES II Training 1: Introduction to Trade Policy Analysis 5-7 December 2011 – AIM Conference Center, Manila Day 1 - 5 December 2011 TIME ACTIVITY 8:00 – 8:30 am Registration 8:30 – 8:45 am Philippine National Anthem EU Hymn Welcome Remarks 8:45 – 9:00 am Executive Director Efren V. Leaño (TBC) Board of Investments Special Message 9:00 – 9:15 am Director Brenda Joyce R. Mendoza (TBC) TRTA Imprest Administrator NEDA-TIUS 9:15 – 9:30 am AM Snacks 9:30 – 10:30 am Concept and Measurement of Gains from Trade 10:30 – 11:00 am Open Forum 11:00 – 12:00 nn Tax and Quantitative Trade Restrictions 12:00 – 1:00 pm Lunch 1:00 – 1:40 pm Contingent Trade Measures 1:40 – 2:10 pm Open Forum 2:10 – 4:10 pm Preferential Trade Measures 4:10 – 4:30 pm PM Snacks 4:30 – 5:00 pm Open Forum 5:00 pm End of Day 1 6 Day 2 – 6 December 2011 TIME ACTIVITY 8:00 – 8:30 am Registration 8:30 – 10:15 am Customs policies and practices 10:15 – 10:30 am AM Snacks 10:30 – 11:00 am Open Forum 11:00 – 12:00 nn Technical barriers to trade 12:00 – 1:00 pm Lunch 1:00 – 2:00 pm Sanitary and phyto-sanitary measures 2:00 – 2:30 pm Open Forum 2:30 – 4:30 pm Trade policies and domestic distortions 4:30 – 5:00 pm Open Forum 5:00 pm End of Day 2 Day 3 – 7 December 2011 TIME ACTIVITY 8:00 – 8:30 am Registration 8:30 – 10:00 am Trade measures affecting services trade 10:00 – 10:15 am AM Snacks 10:15 – 10:40 am Open Forum 10:40 – 12:00 nn Food trade policies and the 2008 rice crisis 12:00 – 1:00 pm Lunch 1:30 – 2:00 pm Open Forum 2:00 – 4:00 pm 4:00 – 4:30 pm General equilibrium analysis of trade policies Open Forum 4:30 – 4:45 pm PM Snacks Closing Remarks 4:45 – 5:00 pm Director Luis M. Catibayan Bureau of Import Services DTI 5:00 pm End of Training 1 7 TRTA TRADE POLICY ANALYSIS COURSE SERIES II Training 2: Selected Topics in Trade Policy Formulation 15-16 December 2011 – Holiday Inn Clark, Pampanga Day 1 (Thursday, 15 December 2011) ACTIVITY TIME 6:00 am ETD from Manila Meeting Point: DTI International Building (There will be a Shuttle provided by TRTA to transport the participants and resource speakers from DTI International Building to Holiday Inn, Clark, Pampanga.) 8:00 am ETA in Holiday Inn, Clark (Participants are asked to proceed immediately to the designated Function Room to settle down) 8:30 – 9:00 am Registration 9:00 – 9:15 am Philippine National Anthem EU Hymn 9:15 – 9:30 am Welcome Remarks Executive Director Efren V. Leaño Board of Investments 9:30 – 9:45 am Special Message Director Brenda Joyce R. Mendoza TRTA Imprest Administrator AM Snacks 9:45 – 10:00 am 10:00 – 11:30 am Selected Topics on Trade in Goods: Rules of Origin Ms. Elizabeth Tan Expert, UP School of Economics 11:30 – 12:00 nn Open Forum 12:00 nn- 1:00 pm Lunch 1:00 – 2:30 pm 2:30 – 3:00 pm Selected Topics in Trade in Goods: Tariff Calibration Ms. Elizabeth Tan Expert, UP School of Economics Open Forum 3:00 – 3:20 pm PM Snacks 3:20 – 5:00 pm Selected Topics in Trade in Services Dr. Ramon Clarete 8 5:00 – 5:30 pm STE 8a Open Forum 5:30 pm 7:00 pm End of Day 1 / Check-in Dinner Day 2 (Friday, 16 December 2011) ACTIVITY TIME 8:00 – 8:30 am Registration 8:30 am – 10:00 am Selected Topics on Trade Remedies Dr. Ramon Clarete STE 8a 10:00 – 10:20 am AM Snacks Open Forum 10:20 – 10:50 am 10:50 – 12:00 nn Impact Analysis of Trade Agreements Dr. Geoffrey Ducanes Expert, UP School of Economics 12:00 nn – 1:45 pm Lunch Check-out 1:45 – 2:30 pm Impact Analysis of Trade Agreements (Continuation) Dr. Geoffrey Ducanes Expert, UP School of Economics Open Forum 2:30 – 3:00 pm 3:00– 4:00 pm Overview of PHL CGE Modeling Project / Open Forum Dr. Caesar Cororaton Virginia Polytechnic Institute and State University (Virginia Tech) 4:00 – 4:20 pm Closing Remarks Director Luis M. Catibayan Bureau of Import Services, DTI 4:20 – 4:40 pm 5:00 pm PM Snacks Participants’ Departure from Clark 9 ATTENDANCE Component: TRADE POLICY AND EXPORT DEVELOPMENT Activity Number: 1.1.1.1 Activity Title: TRADE POLICY ANALYSIS COURSE SERIES II – SELECTED TOPICS IN TRADE POLICY FORMULATION DATE NUMBER OF DAYS VENUE 15-16 December 2011 2 Holiday Inn, Clark Freeport Zone, Pampanga GENDER NAME # DESIGNATION OFFICE M F CONTACT NUMBERS EMAIL ADDRESS SIGN IN ATTENDANCE 15 Dec 1 Clariza Mae A. Columna X Technical Staff DA 9200925 clarizamae.columna@g mail.com 2 Anna Padua X Planning Officer DA 9267439 [email protected] National Agricultural and Fishery Council, DA 9201788/9203995 [email protected] DA 9201788 [email protected] m Christine de Asst. Chief, Agriculture & Fisheries Modernization Coordination Office Chief, Poultry, Livestock, & Feed Crops Section, National Agricultural & Fishery Council 3 Susana B. Puentebella X 4 Diana M. delos Santos X 5 Garland Cuarteros X Economist III DAR 9268961 [email protected] om 6 Julieta I. Dimalanta X Economist III DAR 9268961 [email protected] 7 Denise Marie Encarnacion X Economist I `DENR 9251183 dmiencarnacion@yahoo. com 8 Nenita R. Zabala X Economist II DENR 9251183 Leila A. I. USB with Handouts Received 16 Dec 10 GENDER # NAME DESIGNATION OFFICE M F CONTACT NUMBERS EMAIL ADDRESS SIGN IN ATTENDANCE 15 Dec 9 Christine Co X 1 0 Raymond Garcia 1 1 Bianca Pearl Sykimte 1 2 Jeremiah C. Reyes 1 3 Arlene P. Ligad 1 4 Madeleine Almazora 1 5 Nestor P. Arcansalin 1 6 Evariste Cagatan 1 7 Elvin M. X X X X Joy X Team Leader, Policy & Network Investment Specialist Trade & Industry Development Specialist Trade & Industry Development Specialist Supervising Trade & Industry Development Specialist DOH 6517800 loc. 4251 [email protected] DTI-BIS 4031417 [email protected] DTI-BITR 8953993 [email protected] om 8978292 [email protected] m [email protected] m [email protected] [email protected] h Legal DTI-BOI Director III DTI-BOI X Director DTI-BOI Madonna N. Clarino X Legal DTI-BOI 1 8 Fe L. del Rosario X Division Chief DTI-BOI 8973082 [email protected] 1 9 Efren V. Leaño Executive Director DTI-BOI 8965167 [email protected] 2 0 Lucita P. Reyes DTI-BOI 8953983/8953978 [email protected] 2 1 Homer A. Bunyi DTI-BTRCP 7510384 loc. 2222 odyssey041278@yahoo. com [email protected] 2 2 Joyce Ria B. Estares DTI-BTRCP 7513233/7510384 loc. 2227 [email protected] h X X X X X Executive Director Senior Trade & Industry Development Specialist Trade & Industry Development 16 Dec [email protected] om DTI-BITR DTI-BITR USB with Handouts Received 8968907 [email protected] [email protected] [email protected] om 11 GENDER NAME # DESIGNATION OFFICE M F CONTACT NUMBERS EMAIL ADDRESS SIGN IN ATTENDANCE 15 Dec USB with Handouts Received 16 Dec Analyst 2 3 Rizza Mae Valenzuela 2 4 Christine dela Cruz X 2 5 Magnolia Uy X 2 6 Patricia M. Abejo X 2 7 Emmy Delfin X 2 8 Jazzie Di S. dela Cruz 2 9 Rommel F. Rome 3 0 Aileen C. Salvador X 3 1 Ma. Josefina Villena X 3 2 David Michael Amparo 3 3 Christian M. Castillo Lou C. X Versoza- X X C. X Trade & Industry development Specialist Trade Service Officer DTI-BTRCP 7510384 loc. 2231 [email protected] m DTI-FTSC 8979659 [email protected] Trade Service Officer DTI-FTSC 8979659 [email protected] m Director III ICTO 4344158 [email protected] ICTO 4344158 [email protected] NEDA 6313739 [email protected] NEDA 6313739 [email protected] NEDA 6313739 [email protected] h NEDA 6313739 [email protected] 7844286 loc. 4251 [email protected] 7844286 loc. 4926 [email protected] Executive Assistant III Economic Development Specialist II Economic Development Specialist I Senior Economic Development Specialist Economic Development Specialist II Technical Assistant Office of the Deputy Executive Secretary Office of the Chief Presidential Legal Counsel X Undersecretary Office of the Presidential Legal Counsel OP 3 4 William M. Varias X Legal Counsel/Assista nt Secretary 3 5 Mark Dennis Y.C. Joven X Technical Assistant 7844286 loc. 4926 wmvarias@malacanang. gov.ph [email protected] m [email protected] m 12 GENDER NAME # DESIGNATION OFFICE M F CONTACT NUMBERS EMAIL ADDRESS SIGN IN ATTENDANCE 15 Dec PRC 3140019 [email protected] [email protected] PRC 3140019 [email protected] TC 9268731 [email protected] Senior Tariff Specialist TC 9268731 [email protected] Supervising Tariff Specialist TC 9268731 [email protected] X Senior Tariff Specialist TC 9268731 [email protected] m X Tariff Specialist II TC 9288419 [email protected] TC 9268731 [email protected] DTI-PTTC 4688967 [email protected] 3 6 Marie Cecille Fernando 3 7 Lord Louis Valera 3 8 Nydia O. Cometa X 3 9 Lynly P. dela Cuesta X 4 0 Gerry P. Gebela 4 1 Elvira C. Ignacio 4 2 Jennifer Ragma 4 3 Ma. Lourdes M. Saluta 4 4 Rolan Ynion X 4 5 Dr. Erwin Corong X Primrose P. X X X C. Professional Regulation Officer I, International Affairs Division Head, International Affairs Division/Chief-ofStaff, Office of the Chairperson Senior Tariff Specialist X Chief Tariff Specialist Trade & Industry Development Specialist USB with Handouts Received 16 Dec 13 ANNEX 3 PART 1. INTRODUCTION TO TRADE POLICY ANALYSIS 1 Mission Report 1 August 2011 - 23 February 2012 1. Gains from trade 1.1 Concept and elements Every day, goods and services cross borders, coming from countries that export them to countries that import them. Trade, commerce or the buying and selling of products across international borders have gone as far back as time. Familiar old pathways of commerce include the Silk Road and the Spice Road that span between Western Europe and Asia, as well as the maritime trade routes as that taken by the Galleon trade between Mexico, the Philippines and the Moluccas. Unlike the largely single commodity trade of the past, today’s trade allow countries to exchange with one another an increasing variety of goods and services such as (a) food, feeds and beverages; (b) industrial supplies and materials; (c) capital goods; (d) finished consumer goods; and (e) Philippine exports grew on average by 9.6 % each year from 1990 to 2010, despite Asian financial crisis in the late 1990s and the global services. economic slowdown in 2008. During the same period, the average annual growth of imports was 7.75 %. In 2010, the country’s exports reached 51.5 bln USD, while the country’s imports were reported to be 58 bln USD, resulting in a trade deficit of 7.0 bln USD in 2010. Countries trade products with one another because they gain from doing so. If a country can buy a good from another country at a lower price than what it pays for the same product it produces, it saves the price difference. The more units of the product it buys, the larger its gain from trade. For trade to occur, both partners must benefit from the exchange. There has to be a product that one country can buy from her trading partner at a relatively lower cost, and different product that the latter can buy less expensively from the former. The gains from trade are independent of the direction of international trade. If the Philippines exports bananas to Japan, and imports from the latter finished vehicles and their parts, both countries will still benefit from their bilateral trade. International price differences set what country will export what product to other countries. Japan in this example is unable to grow bananas there due to the fact that it is in the temperate zone. While it is possible for Japan to grow the fruit by simulating a tropical environment in green houses especially designed for the purpose that raises its cost for producing the bananas that the Philippines can efficiently produce. The Philippines as well will have a cost disadvantage if it produces cars. In recent years, the top traded commodities of the Philippines include (see Tables 1 and 2) the following: electronic integrated circuits and micro-assemblies (HS code 8542), automatic data processing machines and units thereof (HS code 8471) and parts and accessories for use with 2 Mission Report 1 August 2011 - 23 February 2012 machines of heading 84.69 to 84.72 (HS code 8473) (see table 1). These products were exported to her major partners including Japan, USA and Singapore in 2010 (see Fig. 2). Her top 10 imports include electronic integrated circuits and micro-assemblies (HS code 8542), petroleum oils, crude (HS code 2709), parts and accessories for use with machines of heading 84.69 to 84.72 (HS code 8473) and rice (HS 1006) (see table 2). Table 1. Top 10 exported commodities, Philippines, 2008 to 2010 HS Code Value (million US$) 4-digit heading of Harmonized System 2002 All Commodities 2008 2009 2010 49077.5 38435.8 51497.5 8471 Automatic data processing machines and units thereof 13771.1 9607.4 13954.6 8473 Parts and accessories for use with machines of heading 84.69 to 84.72 6852.0 5753.1 8207.0 8541 Diodes, transistors and similar semiconductor devices 2013.4 2346.9 1981.7 8708 Parts and accessories of the motor vehicles of headings 87.01 to 87.05 1801.6 1459.3 2591.7 8504 Electrical transformers, static converters (for example, rectifiers) 2052.0 1422.7 1670.5 1513 Coconut (copra), palm kernel or babassu oil 1254.6 948.2 1248.8 8544 Insulated (including enamelled or anodised) wire, cable 1039.6 594.5 1266.3 7403 Refined copper and copper alloys, unwrought 926.3 771.7 1144.8 4418 Builders' joinery and carpentry of wood 1309.2 688.1 807.0 8542 Electronic integrated circuits and microassemblies 895.0 802.1 1008.9 65.0 63.5 65.8 Top ten exports share (%) Source: UN Comtrade Table 2. Top 10 imported commodities, Philippines, 2008 to 2010 HS Code 4-digit heading of Harmonized System 2002 All Commodities Value (million US$) 2008 2009 2010 60419.7 45877.7 58467.8 8542 Electronic integrated circuits and microassemblies 13702.1 9620.2 12267.4 2709 Petroleum oils, crude 7683.6 3354.6 5541.2 8473 Parts and accessories for use with machines of heading 84.69 to 84.72 4409.8 3644.7 4082 2710 Petroleum oils, other than crude 3875.1 3268.3 3237.2 1006 Rice 1956.8 1048.9 1652.5 8703 Motor cars and other motor vehicles principally designed for the transport 983.2 955.9 1507.1 2603 Copper ores and concentrates 403.1 909.7 1326.2 8479 Machines and mechanical appliances having individual functions 851.2 521.7 917.1 1001 Wheat and meslin 724.4 825.3 547.2 8517 Electrical apparatus for line telephony or line telegraphy 724.8 716.9 593.9 58.4 54.2 54.2 Top ten imports share (%) Source: UN Comtrade 3 Mission Report 1 August 2011 - 23 February 2012 Majority of Philippine exports go to East Asia. Japan has the largest share at 15 % of total exports. The USA and Singapore are near second and third. China and Hong Kong, taken together, account for the largest share, 20 %. Less than 25 % of the country’s exports go to nonAsian destinations. Gains from exchange Gains from trade has two components, gains from exchange and those from specialization. The former comprises savings of one country, say the Home country, by selling to its trading partner, say the Foreign country, what it has relatively more of and buying from the Foreign country what is relatively in scarce supply in the former. The incentive to undertake the exchange is provided by the differences of the respective prices of the products to be exchanged in both countries. Before the exchange happens, the good that the Home country has relatively more of fetches a lower price in the Home country and a higher price in the Foreign country. On the other hand, the other good that is scarce in Home country is relatively valued there higher than its value in the Foreign country. The exchange continues until the prices of the same product in both countries equalize or the incentive is fully exploited by both trading partners. The following numerically illustrates the savings that both countries can enjoy from the mutual exchange of goods. The equalization of respective prices of the two traded goods in both countries is key to realizing the gains from exchange. Moreover, the initial differences of the prices in turn can be explained by the relative abundance one country may have in one good and its relative scarcity of the other. Prices Before Exchange Cars Bananas Savings per unit Prices After Exchange Endowment of Goods (quantity) Home Foreign 100 50 300 -20 500 100 Home Foreign Home Foreign Home Foreign 500 200 300 300 -200 40 100 80 80 40 Total Savings Home Foreign 10,000 28,000 Gains from specialization The equalization of prices of goods has in turn implications on the amounts produced in each country of the two traded goods. The highest profit that can be generated from producing a good is obtained by producing a quantity of it at which the cost of producing the last unit exactly matches its price. When Home country in the example above sees the price of banana doubling, it is not 4 Mission Report 1 August 2011 - 23 February 2012 generating its highest profit by not increasing its production of the good. If the price of banana went up while the Home country continues to produce the same quantity, the higher price exceeds the incremental cost of the last unit. To increase its profit from producing bananas, it has to increase its output of bananas since doing so brings in additional profits to the country. In the case of cars, the Home country’s price goes down from 500 to 300. Producing the same level of cars results in a financial loss to the Home country. It is better off cutting its losses by reducing its production of cars. The same processes driven by the pursuit of higher profits in producing goods are happening with respect to the Foreign country in the case of cars, the local price of which went up from 200 to 300, and bananas whose price declined. Reallocating the country’s productive resources from a production activity that is currently losing to one that is generating profits is the process called specialization. The added revenues to the country from specializing in producing the good that generates more profits and by scaling down its output of the product that is causing it financial losses comprise the gains from specialization. The driver of this change is the pursuit of higher profits by the each of the country’s producers and the changes in the prices of the traded products as a result of trade. This is illustrated numerically below: Prices Before Exchange Cars Bananas Prices After Exchange Output Before Exchange Home Foreign 300 20 450 100 700 50 Home Foreign 300 50 80 500 Home Foreign Home Foreign 500 200 300 40 100 80 Output After Exchange Total Added Revenues Home Foreign 17,000 69,000 The sum of the gains from exchange and specialization indicates the gains from engaging in free trade. These are graphically described in Fig. 3. The production possibilities of the Home economy are described by the graph PPFH. Before trade, the point AH (A for autarchy or no trade), indicates the production and consumption points of the Home economy of the two products, cars and bananas. The slope of the line tangent to AH indicates that cars are relatively more expensive than bananas. After trade and in response to the world prices of the two products as represented by the slope of the line tangent to QH,T, the producers in Home produce more bananas and fewer cars, and consumers use more cars and bananas, as indicated by QH,T and CH,T. Accordingly, Home exports bananas and imports cars. The consumers in Home are better off with trade and this is indicated by the higher collective utility, UH,T in contrast to UH,A. The gain from trade is indicated by the income at world prices required to make consumers as well off as after trade (B3 in terms of units of bananas) less B1 or the income required for consumers to be as well off as before trade. The gain from trade is made up of the gain from exchange, (B2 less B1) and gain from 5 Mission Report 1 August 2011 - 23 February 2012 1.2 Origin and Distribution Sources of comparative advantage That one country tends to be relatively abundant in some goods, and to have relative scarcity in others reflects its production advantage or disadvantage relative to her trading partners. A superior production technology is one obvious source of her edge. If an average worker of one country can produce more units of one good compared to her counterpart in another country, all the things remaining the same, then her country is said to have the absolute advantage over the other in production. It is more useful to assess a country’s comparative advantage considering that she produces several goods. The concept is determined by comparing the productivity of workers in producing one good relative to her labor productivity in another good. If a country has a lower opportunity cost of producing a good than another country, she has the comparative advantage in the product over the latter. Opportunity cost is defined as the units of one good that the country has to give up in order to produce a unit of another good, which in turn is the ratio of the labor productivity of the country in one good divided by her labor productivity in the other product. A country may have absolute advantage in both goods. However, she can have the comparative advantage in only one of the two. Besides the difference in production technology, two other sources of comparative advantage include: (a) Relative difference of the respective productive resources of the two trading partners. If a country has relatively more of a productive input, say labor, that is intensively used in producing a given product, compared to her trading partner, then she can produce the product at a lower cost. In the course of trade, the country is able to specialize in this product, export it to her trading partners, and to import those products that it does not have the comparative advantage. (b) Relative abundance in productive resources that are specific to producing a given product. If the country has more of this productive resource, then she is able to produce this product at a lower cost compared to her trading partners, which may not have this productive factor at a quantity comparable to the former. Philippine mangoes are known for their unique taste and texture, and some of her trading partners tried to grow this variety of the fruit in their respective territories. However they have found that they could not replicate the characteristics of the fruit if it was grown in the Philippines. This illustrates some productive input that is specific to growing the fruit that can only be found in the country. Distribution of the gains from trade Given certain conditions of the economy such as the absence of price distortions, the country is assured of gains from participating in international trade. However, the gains will not be equally distributed among the various stakeholders. This is because the stakeholders vary in terms of their taste preferences or in terms of their ownership of the productive factors. Suppose that the country is presently into autarchy. Without access to goods that she is not able to produce at low cost, the country is compelled to produce them at a higher price. The owners of the productive factors that are intensively used in producing these goods will be compensated relatively well because of the scarcity in the country of these factors. These fetch a relatively high price in the country. 6 Mission Report 1 August 2011 - 23 February 2012 When trade occurs, the Home country is expected to import these goods from her trading partners that are able to produce them at relatively low prices. Thus, the country’s producers of these expensive goods will find themselves unable to compete and will lose entirely or at least part their share of the domestic market of the product concerned. The owners of the productive factors that went into producing the same product will expect a cut of their factor incomes. The companies engaged in the export business are expected to receive a proportionately larger share of the gains from trade. The owners of the productive factors used intensively in producing the country’s exports are expected to benefit as well.. The country’s consumers are the consistent beneficiaries of opening the country to international trade. Although the prices of exported products go up because of international trade, their losses are more than offset by their gains from reduced prices of the locally produced goods, which compete with imports. It follows that free trade will have friends and opponents in a given country. The losers are expected to fight any move towards freer trade, unless they are provided some level of financial compensation. In theory, there are enough gains from trade to fully compensate the losers, i.e. the gains from trade are positive. The government can collect taxes on the gains received by the winners, compensate losers using the tax revenues, and will find some positive net gains going to the winners. In reality, implementing compensation programs to producers that are adversely affected by trade can be costly. However, governments who do so implement such programs in order to mitigate the adverse implications of opening the country to free trade. Measures of Economic Welfare The analyst may wish to track the distribution of the gains from trade in terms of how the trade policies affect the producers, consumers or the government. In the following, the partial equilibrium model is used in order to assess the impact on the economic well being of the above economic agents, as illustrated in Fig. 4. But before this, the following measures need to be defined. When the country sources all its rice consumption locally at the price, PA, higher than the world price of rice at PT, the country forgoes gains from trade. At the equilibrium point E, local production of rice is QA, which is all consumed locally, or the country is selfsufficient. However, if the country imports rice, consumers are able to consume more rice (CT) at the lower price PT at the expense of local farmers who reduce their output to QT. The country imports CTQT units of rice. Consumer surplus increases by area b+c+d., and producers lose b. The country has a net gain of c+d. The total benefit of consumers in monetary terms of consuming a given amount of a good is the area under the demand curve up to the level of consumption of the good. Subtracting the amount of 7 Mission Report 1 August 2011 - 23 February 2012 money the consumers ended up paying the suppliers for the amount of the good they used up results in a consumer surplus, or the area under the demand curve above the level of the price. A related measure applies for the well being of producers. The cost of producing a given level of output is the area under the supply curve up to the output level. If those goods are sold in the market, then the sales revenues are graphically represented by the rectangular area bounded by the price and quantity of the product bought and supplied in the market. The difference between the revenues and the cost is the producer surplus, and this is represented as the area above the supply curve up to the price line. With the two concepts, the analyst tracks the changes in consumer and producer surplus, which reforms of trade policies may induce. A positive net change indicates that the economy is made better off by the policy as illustrated in Fig. 4. In it, the changes in consumer surplus and producer surplus from a situation where the country does not trade at all, and to the alternative scenario where it opens its borders to international trade. 1.3 Alternative approaches to the measurement of gains from trade The measurement of the gains from trade is needed to guide policy makers when they set trade or other policies that directly or indirectly affect the flow of trade into their country. Whether policies are set in order to increase or decrease the flow of trade, their analysis has to do with the measurement of the gains from trade given such policies. Policy makers need information on how trade policies will affect the economy and their various constituents. Two modeling approaches are alternatively used in estimating the gains from trade. These are the partial equilibrium and the general equilibrium models. The following takes up the relative strengths and weaknesses of both frameworks. Partial equilibrium analysis In evaluating the impact of a trade policy such as an import tariff, the analyst uses a representation of the economy or parts of it that are likely to be affected by the policy. The representation is called the economic model, and depending upon how much of the economy it covers, it may be either called a partial or a general equilibrium model of the economy. A partial equilibrium model has a limited representation of the economy, and accordingly is constrained to provide a narrower set of answers compared to a general equilibrium model. A typical model will provide answers on the impact of the policy on prices and quantities purchased and produced in the economy of the products covered by the model. A rather basic version of this model will have to have one market of the economy representing the interaction of domestic buyers and sellers, and if the model is to be used for trade policy analysis it will include as well foreign buyers and producers. The extensive version of this supply and demand model may include several markets, and such a framework does so because these markets are usually interrelated with one another. For example, the markets of hogs, chicken and corn are interrelated. Corn is used as feeds for hogs and chicken, both of which are close substitutes. The model can also be applied in analyzing the impact of trade policies on markets of production inputs, capital and labor markets. 8 Mission Report 1 August 2011 - 23 February 2012 This model is useful in cases where the trade policy being analyzed applies to only one market. The spillover effects of the policy on the rest of the economy are assumed to be negligible and are excluded from the analysis. There may be cases where simultaneous changes of related trade policies such as for example lowering the tariffs on imports of pork, chicken meat and corn, in which case a multi-market partial equilibrium model will be employed. How such simultaneous change of the tariff protection on corn and livestock will affect the rest of the economy is presumed to be small. In addition to analyzing the impact of a trade policy on the price and quantity of the product or input, the partial equilibrium can likewise provide answers to how the policy can change the income of stakeholders, or economic wellbeing. This is discussed pursued further below. One important advantage of the partial equilibrium model is that it lends itself relatively easily to statistical estimation giving the analyst a higher level of confidence on the reliability of the impact estimate. Because there are only few parameters to be estimated, it is likely that the analyst is able to find economic data large enough to allow an appropriate estimation of the underlying supply and demand curves of the model. Another benefit is that it can provide quick answers to questions on the impact of trade policies, especially if the policy maker is only interested in knowing about the direction of change rather than its magnitude. In this Handbook, the partial equilibrium model is used extensively because it is relatively easy to draw a graphical representation of it, compared to a general equilibrium model. General equilibrium analysis General equilibrium models of the economy are used when the analyst has to assess the impact of simultaneous introduction of trade policies in several markets, particularly if the interdependencies of these markets are important to consider in the analysis. When a country enters into a trade agreement, it will have to consider changing many of its import tariff rates. Before policy makers are able to firm up their country’s offer, they need information as to how various configurations of tariff changes will affect the economy and therefore the income of their constituents. The analyst needs a broader representation of the economy than what partial equilibrium models cover -- a requirement met with general equilibrium models. These economy-wide models are designed to fully account for the total spending and incomes in the country, and thus can track the impact of simultaneous changes of policies on a wider set of economic variables than partial equilibrium models. A useful feature of these models is that they allow for the mutual interaction of various markets of products and production inputs and adjust the prices and quantities of output and use of these until general equilibrium is reached. The basic conditions that define general equilibrium comprise the clearing of the respective excess demands of the markets of products and inputs in the model. At the same time, none of the profits in all production activities in the model is positive, otherwise there is incentive still to re-allocating resources towards the activity with the positive profit. The use of the general equilibrium model comes in either form. One, the framework is used as a tool for policy analysis paying attention more on the direction of the changes of the economic variables. In Fig. 1 above for example, the figure compares two general equilibrium situations, one without trade or autarchy, which point A represents, and the other with trade. Two points indicate the 9 Mission Report 1 August 2011 - 23 February 2012 latter, QT and CT . In both situations, the twin conditions of market clearing and zero profit conditions hold. The analyst then tracks the changes of production, consumption, exports, imports, prices, well being of the consumer or utility, the and gross domestic product as a result of opening the country to international trade. The other use of the model is when it represents the economy of a real country such as the Philippine economy. With this use, the model is referred to in the literature as a computable general equilibrium model or CGE model. It is named so because the conditions to attain alternative equilbria are actually solved using mathematical computer programming software such as the General Algebraic Modeling System or GAMs. It can be used in solving for general equilibria given alternative policies. Before the analyst gets to use the CGE model for any simulation of trade policy changes, she will have to calibrate the model with real economic data of the economy in the baseline year. The set of data is set up such that they are consistent with the general equilibrium conditions of the model. Known as the social accounting matrix (SAM), this database comprises various sets of data including the national income accounts, income and expenditure data, and foreign trade data. One wellknown database is the Global Trade Analysis Program (GTAP) database1, which is a worldwide social accounting matrix of the major trading countries in the world. GTAP Center at Purdue University maintains and continuously updates the database. The analyst likewise needs to introduce parameters into the model to define how the consumers and producers may respond to changes in prices. Depending upon the complexity of the CGE model in terms of number of production activities, markets, and trading partners, the set of behavioral parameters can become so large that these cannot be estimated statistically due to lack of an appropriate size of data. The parameters therefore are gathered from unrelated effort of estimating them, and in a few parameters where she has been unable to find any statistical estimates, the analyst is compelled to assume the values. Before the model is actually used in policy simulation, it goes through a replication test. The analyst solves the model given the SAM and the trade policies in the baseline year. A successful replication implies the CGE model is ready now for trade policy reforms analysis. CGE analysis in percentage changes Alternatively, the CGE analysis can be done in terms of percentage changes. Instead of doing the analysis by asking for how the level of the economic variables, say the GDP, will change if trade policies were liberalized, the analyst can calculate for the respective percentage changes of the economic variables using a software package called GEMPACK2 . 1 Hertel, T. Global Trade Analysis: Modeling and Applications. Cambridge: Cambridge University Press, 1997 Harrison, W., and K. Pearson. An Introduction ot GEMPACK. GEMPACK Document No 1 [GPD-1], Sixth Edition. Melbourne: Monash University, 2002, a. 2 10 Mission Report 1 August 2011 - 23 February 2012 2. Tax and Quantitative Restrictions to Trade In this section, the implications of applying tax and quantitative barriers to trade are analyzed using a partial equilibrium model. Governments raise taxes in order to generate revenues, but when they tax trade flows, they also reduce imports or exports of the taxed product, lowering the country’s gains from trade. Quantitative restrictions to trade similarly dampen trade flows. Their analysis and the effects of how these are administered are taken up in this section. 2. 1. Trade taxes Import tariff Import tariffs are taxes on imported goods. Governments impose these taxes for a variety of reasons including to raise tax revenues. The more important objective of these taxes is to encourage the production of local products, which generates jobs for the local population. It is a policy measure designed to protect or give some relief to local producers whose outputs may not be as competitive in terms of price and quality as imported products. There used to be a period before that import tariff restrictions were relatively high. However, the average tariff rates worldwide have gone down due to several rounds of trade negotiations under the World Trade Organization, a variety of preferential trade agreements that usually prescribe zero or low preferential tariff rates, and to unilateral reduction of these taxes by governments, which aim to make their countries more internationally competitive. In 2010, about half of global trade flows crosses international borders without any import taxes. However, there continues to be products, and agricultural and food products are an example, that are being imported with relatively high import taxes. A tariff on an imported good raises its price by the amount of the tax. It gives an advantage to local substitute, increasing the share of the latter in the domestic market. The additional share the local 11 Mission Report 1 August 2011 - 23 February 2012 producers get is proportional to the rate of the tax imposed. A very high tax rate has the potential of driving out all imported goods from the market, making the entire country fully self sufficient in the good itself. It is not just the price of the imported good that rises because of the import tariff. The price of the local substitute is expected to go up as well. The higher price of the imported good makes consumers switch to the untaxed and thus cheaper local substitute, which is assumed to be perfectly substitutable with the imported good. The shift to local substitute pushes up its production costs, as more of it needs to be produced to meet the added demand. This process continues until it marches the price of the imported product. The resulting equilibrium increases the output of the local substitute but reduces the consumption of the good itself. Because of these, fewer units of the good is imported. Figure 5 illustrates these changes and the implications of these on the economic well being of local producers, government and consumers. The import tariff favors the local producers, giving them additional share in the market and producer surplus. But this is at the expense of consumers, who facing the higher price of rice have to reduce their consumption and accordingly lose some income or consumer surplus. Some of that loss is what producers receive as their extra income or producer surplus. Another part of what consumers give up represents the revenues from the import tariff, which goes to the government. Both parts, the added income to producers and the tax revenues are merely transfers of income from consumers to producers and the government. However, the remainder after producer surplus and tax revenues goes to nobody in the economy, and is thus wasted. This amount is referred to as the deadweight loss due to the import tariff. One part of it and this is the triangular area c in Figure 5, highlights the inefficiency in production. That is the additional outputs (QT’-QT) are being produced at above the world average cost of rice. The country could have purchased this amount in the world market and save, if not for the import tariff. The other part of the loss, and this is the triangular area a, represents consumption inefficiency. Consumers could have consumed more if rice was valued at its world price. Because of the tariff, they are consuming where their benefit from consuming rice exceeds its world price. Consumers would have been best off if they consumed where the benefit is just equal to the lower world price of rice. In Box 1, the impact of undoing an import tariff is illustrated. The case involves the shoe industry of Marikina. It highlights the adjustment costs involved in exposing a local industry to more import competition. Export taxes Countries use export taxes for a variety of reasons including raising tax revenues. The more important applications of these taxes relate to keeping local prices of important goods such as food affordable to the population and to extract rents from exports of natural resources. When food prices in the world market go up, the incentive to export the commodity is high. Food exporting countries ensure there are adequate stocks of it in the local market and to keep out Box 1. Tariff reforms and the shoe industry of Marikina* 12 Mission Report 1 August 2011 - 23 February 2012 In this illustration, we show how import tariff policies can make or unmake the shoe industry. For a long period of time, import tariffs were set high to support import-substituting industries. These are local industries that produce products in competition with their respective import substitutes in the domestic market. In addition, high tariffs tend to be used to encourage the production of finished consumer goods over intermediate and capital goods. In the 1980s, the Philippines reformed its tariff policies in order to encourage export-oriented industries, wherein lies the comparative advantage of the country. This was so because the protection accorded to import-substituting industries comes at the expense of export-oriented industries. The tariff reforms were set so as to reduce overall trade protection, to narrow the range of tariff rates from 0 to 100% to 050%, and to phase in tariff adjustments in fourteen sectors, which included textiles, garments, leather and leather products. Based on the data from the Tariff Commission, the reforms reduced the weighted average tariff rate to 3.56 % in 2006, which was slightly lower than 3.78 % in 2005. By sectors, the weighted average tariff rate of agricultural products and foodstuffs was 9.22 %, chemical products 4.16 %, textiles, paper and leather 6.84%, mineral products 2.79% and finished industrial products 2.97 %. The average nominal protection rate (NPR), which is the percentage increase of the domestic price of a product from its world price, was reduced from 34.6 % in 1981 to 27.9 % in 1985. How did the change affect the shoe industry of the country? From the 1950s to the 1980s, the Philippine shoe industry experienced a boom due to strong local demand. Many Filipinos wore locally made shoes such as the “Ang Tibay and “Mabuhay brands. The shoe producers in Marikina sold these to local retailers not only in Manila but also in the provinces. Following the lowering of tariff rates on imported shoes in the 1980s, the industry had to compete with imported shoes. The entry of competitively priced imported goods makes it difficult for inefficient local shoe firms to make a profit. Philippine imports of footwear rose from $34.25 million in 1995 to $70.17 million in 1997, but fell to $50.94 million in 2003. Despite the 27 % drop, the market share of imported shoes from China in the domestic market reached 80 % in 2005. Filipino shoemakers compete for the remaining 20% of the market with imports from other countries. Local shoemakers were unable to compete due to high production costs. About 75% of their manufacturing costs came from the sourcing and processing of raw materials such as leather hides, which they had to import since local tanneries were not developed, big enough to meet large-scale demand. About 80% of the materials used to produce leather footwear for export are imported. The adjustment of the industry may be tracked as follows. From 513 registered manufacturers in 1994, only 145 remained in the country's shoe capital. More than 600,000 shoe workers lost their jobs every year and average production has dwindled from 105,000 pairs of shoes a year in 1994 to 42,000 pairs in 2003. The adjustments were relatively more burdensome to small-scale and cottage industries. At least 80 % of registered shoe manufacturers in the country may be regarded other than large. They tended to be family-owned and produced handcrafted shoes using only sewing and trimming machines, which made their products relatively expensive. Thus, they needed high tariff barriers to protect them from competitively priced shoe imports. However with the tariff reforms in the 1980s, the industry became no longer viable, having failed to upgrade to survive its competition with imported shoes. __________________ * Based on Daez, E. (2011), “Tariff reforms and the Marikina Shoe Industry” Unpublished paper. food price inflation in the world market. One tool they use is the export tax. The tax reduces exports and thus secures food stocks for the local population. For example in the 2008 rice crisis, the governments of Vietnam and India regulated exports using minimum export prices, which have a similar effect as imposing an export tax. 13 Mission Report 1 August 2011 - 23 February 2012 With the tax, the price of the taxed exported good in the local market has to fall. This result assumes that the country is a price taker in the world market. Exporters are unable to pass on the tax to their importers in the rest of the world. Hence, the price received by exporters of the exported product has to fall by the amount of the tax. In their attempt to avoid the tax, producers shift their sales towards the untaxed domestic market. Their move creates an excess supply of the good in this market, which causes the local price to fall. It continues to decline until it is equal to the export price less the tax. At this point, producers have no longer the opportunity of avoiding the tax. With reduced prices, producers cut output of the product, but consumers increase their use of it. As a result, the country exports less. Producers lose income because of reduced prices. Their loss is partly the gain of consumers who increase their consumption of the product and the government, which receives the tax revenue. However, not all of the loss of producers are received by anybody in the economy and is therefore wasted as Figure 6 illustrates. This deadweight loss of the tax has two parts. The first part accounts for the inefficiency in consumption. Local use of the product is at a price lower than in the rest of the world. That is, the benefit of local use is less than the opportunity cost of the product in the world market. The country is thus better off if it reduces local use and values the product destined for the local market at the world price. The other part of this loss is due to the fact that the local output is being produced where their cost of production is less than the world price. The country can increase its revenues by increasing output, but the export tax prevents producers from raising production. If the objective of the government was to keep the price of the exported product low and keep out of the country the inflated price in the world market, then the export tax has been effective, albeit with a deadweight loss. 14 Mission Report 1 August 2011 - 23 February 2012 The mechanism of reducing local price of the exported product with an export tax depends upon the assumption that the country is a price taker in the world market. However, if this assumption is then a portion of the tax falls on world importers. This result may apply to natural resources such as minerals that are high in demand in world markets particularly in periods of robust global economic expansion. Importing countries that badly need these materials in production activities are open to paying a premium on the price of these products in world markets. Imposing an export tax enable the exporting country to extract rents from natural resource exports (see Figure 7). Export Subsidy The WTO defines export subsidies as “any payments contingent on exports, producer-financed export subsidies, export marketing subsidies, export-specific transportation subsidies, and subsidies on goods incorporated into exports.3 Current estimates place export subsidies at around $6 billion each year. Countries pay export subsidies in order to dispose of their surplus agricultural production in world markets distorting prices and trade. These payments impose substantial costs on taxpayers in the subsidizing countries and reduce the world prices of several temperate and competing products to the detriment of producers in developing and least developed countries. However, they also benefit consumers in food-importing countries, many of which are developing. Box 2. Use of export tax to industrialize Kenya’s leather industry * In this illustration, the export tax was utilized to attain the competitiveness of the leather industry of Kenya. When the government of Kenya reduced trade protection, among other objectives it aimed to accomplish with tariff reforms was to make its leather industry competitive. However, its program backfired. Imports of finished leather products surged, forcing local tanneries to go out of business. In 3 See Article 9, WTO Agreement on Agriculture. 15 Mission Report 1 August 2011 - 23 February 2012 about 2004, Kenya was exporting rather than processing raw hides and skins. In response, the government raised its export tax on raw hides and skins to 20 percent on June 2006 and doubled it after one year to 40 percent. That was in order to slow down exports of raw hides and skins and to give the local leather industry cheaper supply of their raw material. (Curtis, 2010a). The impact of the export tax was remarkable. One, it boosted the processing of raw hides and skins. As expected from theory, the export tax caused most of the unprocessed, raw hides and skins available for the local leather industry. About 98 per cent of the skins produced in the country were processed to wet blue or finished leather. This used to be 56 per cent in 2004. About 96 per cent of hides were processed to wet blue (Lusaka, 2010 cited in Curtis, 2010a, p. 4). Two, the cost of these materials went down as a result of the tax. Accordingly, the growth of Kenya’s leather exports rose to 54 percent (Wahome, 2008 cited in Curtis, 2010a, p. 4). Production of finished leather had increased by over four-fold during the same period. Accordingly, Kenya produced 20,000 metric tons of leather in 2007, compared to 5,000 in 2003 and 10,000 in 2005 (Muthee, 2008 cited in Curtis, 2010a, p. 4). Another major benefit was increased tax income of the Kenyan government. The total earnings of Kenya’s leather industry rose by Shs 870 million, or by 21 percent in the period from 2005 to 2008. The expansion enlarged the tax base of the government. Curtis cited an expert on the leather sector, who estimated that the tanneries of Kenya increased their tax payments by tenfold, i.e. from around Shs 10 million before, to SHS 100 million after the export tax was increased. Furthermore, the export tax rate had boosted employment in the tanneries, leather goods, and related industries in the supply chain. The number of tanneries increased from 9 in 2005 to 13 in 2009 (Lusaka, 2010 cited in Curtis, 2010a). Moreover, the leather goods and footware industries expanded, which created new job opportunities. Curtis noted that “around 1,000 direct jobs and 6,000 indirect jobs have been created since the introduction of the export duty.” Incomes of the workers in the peripheral industries that benefited from the boost to the leather sector had increased. __________________ * Based on Aure, M. (2011), “Developing Kenya’s Leather Industry”. Unpublished paper. ** Curtis, M., 2010a., Developing the Leather Sector in Kenya through Export Taxes: The Benefits of Defying the EU. [online] Available at:<http://www.curtisresearch. org/pubs.ph p?filter=all> [Accessed 29 September 2011] The export subsidy is a negative export tax, and accordingly does the reverse of what an export tax can do on trade. The subsidy serves as in incentive for exporters to produce more exportable products, which may increase exports. Consider two trading countries, Country H and Country F. Suppose Country H exports milk to Country F and it is a large country with some capability of influencing the world price with its policies. Let the price of milk be Pw before the tax. At this price H will export its excess supply to Country F, which in this case is importing milk from F. In this equilibrium, the amount exported of milk by H is equal to the imports of F of the same product. The subsidy on exports of H initially will shift milk away from domestic market towards the export, where exporters receive the subsidy. This process raises the domestic price of milk in H, and it will settle when the amount of imports of F given the effect of the subsidy is equal to the amount of exports of H. The difference between Pd and PW’ is paid for by the government and is assessed on the volume of milk exports. 16 Mission Report 1 August 2011 - 23 February 2012 Since Country H is a large country, this implementation of an export subsidy will also affect the importer of X, which in this case is Country F. Since Country F now has a larger supply of X, the price of all X sold will fall. This reduction will in turn cause an increase in Country F’s import demand. Figure 8 illustrates the effect on the world market of the export subsidy. 2.2. Quantitative trade restrictions Import Quota and Prohibition Like import tariff, an import quota protects domestic producers from competition with foreign made products. With it, the government fixes the quantity of a particular product that foreign producers may bring into a country over a specific period. Like any protective measure, the measure aims to save local jobs in the protected industry. It raises local prices of the protected product. In the WTO’s trade rules, the use of import quotas and prohibition is disallowed except in specified cases. The organization recognizes the importance of following open and liberal trade policies, and while it permits its members to protect domestic production from foreign competition, it instructs them that such protection is extended only through tariffs, preferably at low levels. To this end, it prohibits countries from using quantitative restrictions. The rule against the use of quantitative restrictions has been strengthened in the Uruguay Round. By restricting the quantity of imports of a given product, a shortage of it develops which then raises the price. In the case of a price taking country, importers desired imports under free trade is the excess demand of the product at its given world price. In order for the restriction to have a binding effect on the market, it has to be at a level lower than the desired free trade imports. World prices fluctuate and in certain levels of it, the restriction itself may be redundant. The desired free trade imports may actually fall because of higher world prices relative to the import quota, making the latter redundant. 17 Mission Report 1 August 2011 - 23 February 2012 Total supply is made up of the local supply and the import quota and the equilibrium price is that which equates it with the domestic demand for the product. This price exceeds its world price, which could have been the local price if not for the import quota. If one takes the proportionate difference between the domestic price and the world price, the resulting rate is the tariff equivalent rate of the quota. A tariff of this rate will have the same effect of allowing imports of the product equal to the quota. Those who import the rice quota get above normal returns or economic rents. The product can be bought in the world market at the lower free trade price and sell the stock in the domestic market at a higher price. It is expected that there will be more demand for permits to import the quota than the available quota. The government has to get the importers applying for permits accredited and given license, ration among these traders the available permits to import the quota, and see to it that such permits are actually are used up and rice is brought into the country. That is, it has to administer the quota. The following are the possible ways of rationing the quota to the licensed traders. One, the government may choose to auction the quota. In this mechanism, the traders make a bid for the permit to import a specified allocation of the import quota, and the permit goes to the trader who bids the highest. In this case, the government is the one to receive the rents associated with the import quota. It is as if the government sold the rights to the quota, and its total revenue from doing so cannot exceed the rents from the quota. A second approach is on a first-come, first-served basis. The government apportions the quota into several discreet parts and announces that it will distribute these permits, for as long as supply of permits last, to those who are first in line. In this instance and assuming that there are no costs associated with queuing, the rents go to the importer. A third mechanism is to apportion the quota based on some allocation rule such as for instance based on import shares of the licensed traders or even producers. The meat quota in the Philippines in the second half of the 1990s was allocated to producers, since there was hardly any importation of 18 Mission Report 1 August 2011 - 23 February 2012 meat before. Allocating the import quota to producers raises the concern that the quota may be underused since imports compete with the products of local producers. The government addressed this concern by penalizing underutilization and giving the unused quota to traders wanting to go into the meat import business. There is still another approach, but it is discretionary. The government regulator has unclear allocation mechanism how the quota will be distributed among the traders. This non-transparent mechanism is vulnerable to conflict of interest and if such a situation leads to payoffs then the allocation of the quota is tainted with corruption. The government and the traders share of the import quota rents. Discretionary licensing and allocation of the quota rights may eliminate the rents from the quota itself through rent seeking. Rent seeking behavior had been observed among traders, who want larger allocation of the import quota. Traders invest resources including their time in order to gain more favor from the regulators. This investment cannot exceed the amount of rents being sought out. If the time and resources used up in lobbying for more quota allocation were at the expense of lower productivity in the respective businesses of these traders concerned, then the rents at the limit will be fully dissipated. The deadweight loss associated with the quota becomes even larger and includes area d itself in Figure 9. Import prohibition is equivalent to a zero import quota (see Figure 10.) The protective effect of an import prohibition is more compared with a positive import quota. Prohibition of imports had been banned by the WTO, except in a few specified cases. One of this is if the imported product fails to meet some sanitary regulations, and importing it may cause health problems to the population or the country’s livestock and plant population. From time to time, one may observe departures from this general rule. For example, the Philippines banned the importation of beef from Australia in the context of a trade friction between the two countries (see Box 3). Box 3. Philippines at �war’ with the Australia * 19 Mission Report 1 August 2011 - 23 February 2012 In this illustration, an import ban was used in an apparent trade war between Australia and the Philippines. In 2000, Philippine mangoes, pineapples and bananas had not been allowed entry into Australia, which claimed that these tropical fruits were contaminated with fruit flies. Fruit flies do not exist in Australia, and from the face of it Australia’s action was simply enforcing a sanitary and phyto-sanitary measure. Australia determined that the Philippines had not come up with effective measures to ensure that these tropical fruits are free of fruit flies. On the other hand, Philippine tropical fruit exporters claimed they have taken these actions, and have been requesting the Australian government to undertake import risk analysis. The latter had not act upon their request, and Philippine exporters determined that the delay was unreasonable. "We want Australia to first proceed with the import risk analysis (IRA) for bananas and pineapples before we can start encouraging our cattle importers to buy 100 percent of their volume," Philippine Agriculture Secretary Ed Angara said in one of his statements on this problem. In that year, then President Estrada approved a recommendation from the Philippine Department of Agriculture to discourage local traders from importing Australian farm products until such time Australia opened its market to Philippine fruit exports. He specifically directed the DA, Department of Foreign Affairs, and Department of Trade and Industry to take action to protect the Philippine fruit industry. In 2000, the DA Secretary directed Bureau of Animal Industry to order cattle importers to reduce the country’s cattle imports by 20 % each year for five years starting that year. The unilateral action of the Philippines to restrict imports of these products drew support in the Philippine Congress and the business organizations. Then House agriculture committee chairman, Rep. Angelito Sarmiento called on Australia to undertake the necessary steps to allow the entry of Philippine tropical fruits. Moreover, the Chamber of Agriculture and Food Inc. (CAFI) and the Philippine Food Processors and Exporters Organization (Philfoodex) joined the uproar for fair trade. Interestingly, the Philippine Association of Meat Processors, Inc. (PAMPI) and the Cattle Feedlot Association of the Philippines (CFAP), adversely affected by the BAI guideline, closed ranks and called on the Australian government to allow the entry of Philippine agricultural products. The Philippine government filed a formal complaint with the World Trade Organization (WTO) against Australia's alleged unfair trade practices. The Philippines and Australia were caught in a �trade war’. At stake was the annual export revenue for Australia of $110 million from its cattle and meat exports to the Philippines. The import reduction imposed a cost as well to the Philippines. It is largely dependent on Australia as source for feeder stock cattle. These are imported, fattened, slaughtered and later sold in wet markets as beef. With the import reduction, of cattle imports, beef consumers would have to pay more for the beef that they eat. Australia first blinked. Australian Trade Minister Mark Vaile, agreed to conduct simultaneous risk assessments for bananas and pineapples. The action was mainly due to the pressure applied by Australia’s cattle producers, who felt the loss of its Philippine market. Vaile said that they had agreed to commence an import risk analysis (IRA) for Philippine bananas, and in a few months time a "generic," or global IRA for pineapples. " The IRA for bananas would take 18 to 24 months, and for pineapples 12 to 18 months. This means both would be completed within a two-year period," he said. Moreover, the issue for mangoes had already been completed and awaited the signature of the Philippine government. Sec. Angara noted that both the Philippines and Australian sides have agreed to work with their respective business communities to enhance trade and narrow the huge trade gap. He added that this would be the first step towards fairer and more effective quarantine procedures by Australia. 20 Mission Report 1 August 2011 - 23 February 2012 _____________________ * Based on Docena, A. (2011), "From Foes to Friends, The Philippine-Australian Trade War in Agriculture Sector and the Better Trade Relationship thereafter". Unpublished paper. Se also Reyes, M. (2000), "RP declares trade war vs. Australia". Philippine Start, February 29, 2000. Tariff quotas Tariff quotas permit the importation of a specified volume or quota at a zero or low import tariffs, and unlimited volume at the higher tariff rate. The measure has been widely applied to agricultural products, which before 1995 when the WTO was founded were subjected to quantitative import restrictions. The Agreement on Agriculture of the WTO prohibited the use of quotas or other forms of quantity restrictions and in their place it ordered the conversion of the protection these measures accorded respective local producers into import tariff measures. Tariff quotas became useful measures to an organization aiming to at least preserve the agricultural trade before 1995. The concern arose from the tariffication procedure for the agricultural quotas, which if taken too far may introduce prohibitively high import tariffs and drain what little agricultural trade that went on before the reforms. Therefore, the agreement required member countries to set aside a quota of agricultural products that are allowed entry into their respective territories at zero or very low import duties. Any amount beyond the quota may come in at a higher tariff rate. Through time, both the quota is expanded and the import tariff rate is reduced. The European Union also uses tariff-quotas to allow limited amounts of a commodity to be imported (sometimes from specific countries) at a rate of duty lower than would otherwise apply. According to their official Notice on Tariff Quotas (375), these quantities may be expressed in units of the product or in value, volume, weight or length, and the period in which the Tariff-Quota is available is specified. Given this nature, most Tariff-Quotas operate on a first come, first served basis in which the consumer of the imports must make a claim to the quota on the customs declaration covering the release of goods to free circulation in the domestic market. However, other Tariff-Quotas in the European Union can be licensed based. This means that access to them is dependent upon the consumer obtaining an import license before importing the goods concerned. The European Union also has a strict means of classifying if a certain good can be traded under the Tariff-Quota policy. In the case of the Philippines, we will be assuming that rice can be traded under a Tariff-Quota for the sake of analysis. The United States also used tariff quotas on their steel imports in March 2002. The tariff rate they imposed was around 30% for quantities of steel imported above the set quotas. The tariff rate was imposed with the goal of reducing steel exports from East Asian countries like Japan and Korea. However, the US also expected the US automobile industry or other industries dependent on steel goods and other related products became expensive. The analysis of the tariff quota is illustrated in Figure 11. Because of the combined import restrictions of the quota and the tariff, the local price of the product goes up, it being determined by the out of quota tariff rate. That is being the case, the tariff rate is the binding import restriction and the importers of the quota enjoy extra profits from purchasing the commodity at the low price in the world market and selling it at the higher local price. The government can tax the extra profits with 21 Mission Report 1 August 2011 - 23 February 2012 an in-quota tariff rate, which has to be lower than the out-quota tariff rate, otherwise the tariff quota collapses into a ordinary import tariff policy regime. If the out-quota tariff is set at a very high level, then it becomes redundant and the tariff quota policy is reduced into an ordinary import quota measure. The administration of the quota as in the ordinary import quota policy is integral step in implementing the tariff quota measure. The government has to provide import licenses to traders who are eligible to acquire import permits for the quota. The import permits can be auctioned, served at a first come, first served basis, or based on some allocation rule as may be determined fit by the government. Discretionary, non-transparent allocation of the quota is possible but may be susceptible to integrity problems. Monitoring of the performance of the licensed traders given an allocation of the import permits is also needed in order to ensure the volumes are brought into the country, and therefore users of the product are spared unnecessary increases in the local price of the product. Box 4. Effects of the tariff quota on Philippine corn industry As a founding member of the World Trade Organization, the Philippines had committed to undertake several policy reforms in agriculture. It undertook legal obligations in the WTO to 1) the remove quantitative import restrictions and convert these measures into tariffs; 2) reduce tariff rates on agricultural products; 3) bind all agricultural tariff rates to no more than the specified ceiling rates; 4) not to introduce additional non-tariff measures and 5) implement a tariff-rate quota system on agricultural products, which in the country is referred to as the Minimum Access Volume (MAV) System. Accordingly, the Philippines currently maintains tariff rate quotas for 14 agricultural products for which quantitative restrictions were lifted, one of which is corn. The size of the quotas for corn reflects the Philippines’ commitments during the Uruguay Round. The outquota tariff rate was initially set at 100 % and following the country’s obligations, this rate slid down to 35 %. The in-quota tariff rate was initially set at 50 % and this declined to 5 % through the years. The Tariffication Act 22 Mission Report 1 August 2011 - 23 February 2012 of 1996 of the Philippine government enabled these commitments. Moreover, the government expanded the quota when corn harvest was low in order to ensure there is adequate feeds for the country’s pigs and chicken populations. The administration of the quota Eligibility for the quota licenses in corn had evolved since its implementation. The larger allocation went to existing importers. The residual is set aside for new entrants. Non-performance, i.e. not bringing in the quota allocation assigned to an importer is a ground for the cancellation of the quota in the following year. If that occurs, the allocation forgone is added to the pool of new entrants. Estimates of corn utilization suggest that in normal production, demand for feed accounts for two-thirds of the corn crop. During the pre-Agreement on Agriculture period (1985-1994), corn output increased at about 1.8% a year. In the period between 1995 and 2000, the Philippines imported 7.8% of corn production to supply livestock and poultry sector needs. With an in-quota tariff rate of 35 % and a Most Favored Nation out-quota tariff rate of 65%, imports have displaced the domestic market for locally produced corn. At respective wholesale markets in the production areas, imported corn was highly competitive at the in-quota and over-quota tariff rates. It was found that domestic corn was barely competitive with imported corn at the in-quota tariff rate specifically in the Manila wholesale market. This could be explained by the high distribution and transportation cost of bringing corn to Manila. However, at the over-quota tariff rates, domestic corn was price-competitive with imported corn and import quantity was large. This implies a greater demand for corn in Manila or there was not enough corn from the high corn-producing provinces. The analysis of the Philippine corn market reveals that the effects of tariff-rate quotas are similar to that of traditional quantitative restrictions. Depending on the regime being allowed, an increase in the import quota or decrease in the out-quota tariff rate would have different effects. With imported corn being more expensive at the out-quota tariff rate, the increase of the in-quota volume when domestic production is low has spared the livestock industry from high costs of feeds and the meat consumers from high costs of meat. An alternative strategy of livestock producers to keep feed costs down has been to substitute feed wheat with yellow corn. Since 2000, importation of feed wheat has grown. __________________ * Based on Pablo, I. (2011), “Tariff rate quotas on Philippine corn”. Unpublished paper. 2. 3. Contingent Trade Measures Even though the members of the WTO have taken longer strides towards freer trade, they nonetheless have agreed to provide a capacity to respond to unusual situations such as a surge in imports, an exporting firm dumping its exports in a country, or another contracting party subsidizing its exports. The members see these as unfair situations, particularly since they potentially cause unnecessary displacements of local businesses and loss of employment. And if the trigger is transient as during an import surge or the result of a business or policy decision abroad, members have agreed on rules how they can avoid adjustment costs with contingent trade measures. There are three types of trade remedies. The first is the anti-dumping duty. A foreign company is said to be �dumping’ its product in a given country, if it exports to that country at a price lower than the price it charges in its home market. The second is the countervailing duty, which is designed to undo the effects of an export subsidy of the government of the exporting country. Thirdly, a safeguard measure is used to restrict imports temporarily given certain conditions like there is a surge of imports of a given commodity, which injure the domestic industry. 23 Mission Report 1 August 2011 - 23 February 2012 With tariffs down after years of trade negotiations and generally the prohibition to impose new quantitative import restrictions, member states see the importance of contingent trade protection measures particularly in dealing with the lobbying usually from local producer groups for new trade barriers. In the Philippines for example, the Supreme Court argued that the WTO provisions of nondiscrimination and freer trade are not in violation of the Filipino first policy enshrined in the Philippine constitution.1 The highest court reasoned that the WTO has provided safety valves against dumping, subsidization and import surges which local industries may avail of. Dumping is defined as the selling by a firm of a product in its home market at one price and in a foreign market at a lower price. The activity reflects a market price setting capability of the firm in the home market, but not in the export market. Figure 13, illustrates how a monopolist in the home market is able to charge a higher price of the product but the competitive price or its actual production cost in the foreign market, where it is a price taker. The application of the anti-dumping duty is contingent upon specified conditions including (a) there is dumping, (b) the domestic industry competing in the domestic market with the dumped product faces material injury; and (c) the injury is due to the dumping action. The anti-dumping duty has the same effect as the import tariff rate. If there is an existing import tariff, then the anti-dumping duty is added on to it. Countervailing duties are designed to protect domestic producers from competition with subsidized exports. Export subsidies, export marketing subsidies, export-specific transportation subsidies, and any other subsidies on goods incorporated into exports are actionable measures. Importing countries facing subsidized exports may opt to take actions against the subsidy. The subsidy artificially lowers the price of the exported product relative to its world market price. Given certain conditions that the export is being subsidized and the subsidy has caused injury to the domestic industry, the importing country may apply countervailing duties following prescribed procedures on the subsidized exports. The duty is added on to the import duty, if there is any, on the same imports. 24 Mission Report 1 August 2011 - 23 February 2012 The safeguard duty is used to give local producers relief in the face of a surge of imports, which has caused injury or adjustments to the affected local industry. While the duty is in place, producers are given time to adjust their business and effectively compete with imports. Like an import duty, the safeguard duty increases the price of both the imported and locally produced product, giving local producers added income to make the needed adjustments. Import surges are difficult to identify. Loosely defined, an import surge is said to occur when the quantity or value of imports suddenly exceeds a normal level. To make the definition more precise, there has to be added definition of what “normal’ is, how much “excess” has to be realized, and how “sudden” the increase is. One methodology is to use statistical trends, such as a 3-year moving average of imports. A 30 % deviation of actual imports from this trend is considered to be an import surge. Import surges may be caused collapse of a market somewhere in the world, which causes a movement of stocks of a commodity elsewhere in the world. They could be policy induced such as the lifting of an export restriction such as what India did in 2002 in the case of rice. Whatever the cause, the next important hurdle is to determine the surge has caused serious injury on the domestic industry. Injury is indicated by a substantial, rapid loss of the share in the domestic market of the local industry. Finally, there is the causality that needs to be established: the surge caused the injury. The use of trade remedies has to be compliant with the agreements under the WTO prescribing for their use. The rules governing their application are needed in order to prevent abuse, which may adversely affect global trade and growth. The WTO agreements on the use of trade remedies are the Anti-dumping Agreement (ADA); the Agreement on Subsidies and Countervailing Measures (ASCM); and, the Agreement on Safeguards (ASG). These agreements provide WTO members with guidelines on how to conduct the investigation before a trade remedy is imposed. They outline the designation of a local body that administers the investigation; the kinds of evidence sought; the level and duration of the remedy; and, the exceptions to the imposition of a trade remedy. There are three stages of the investigation: initiation, preliminary stage and formal investigation stage. The agreements provide specific periods for each stage so as to avoid investigations that take too long. The WTO agreements also provide mechanisms to minimize nuisance cases. There are three rules to be observed: the like/competitive-product rule, the domestic industry rule and the de minimis/negligible rule. Under the first rule, the product must be alike or directly competitive to the contested imported product. Under the second, the local industry must account for a major proportion of the total domestic production of the product. Under the third rule, the investigation must be terminated if the injury is negligible. Sufficient evidence of a petition must first be determined to justify the initiation of an investigation. Once sufficient evidence is established, an initial investigation is conducted and on its basis the authority makes a preliminary determination whether delaying the trade remedy causes damage and thus a provisional measure is needed immediately. Finally, a formal investigation is conducted to justify the imposition of a definitive trade remedy. At every stage of the investigation, it must be proven through due process that one, there is evidence of unfair trade practice (i.e. dumping or subsidization) or there is a surge of imports; two, there is evidence of a serious injury or threat of it to the local industry; and, three, there is a causal link between the unfair trade practice or the import surge and the serious injury or threat to the industry. 25 Mission Report 1 August 2011 - 23 February 2012 For dumped imports or subsidized imports, the anti-dumping duty targets the exports of a particular firm or producers found to be dumping its product while the countervailing duty applies to the exports of the country found to have subsidized exports. In contrast, the agreement of safeguards allows the temporary use of the safeguard duty to all imports regardless of origin. The WTO agreements limit the imposition period of the provisional and definitive duties. Definitive anti-dumping and countervailing measures should not continue after five years. In the case of safeguard measures, the duration is four years, extendable for another four years. The definitive duties should remain in force only as long as and to the extent necessary to counter the injury. Before any extension can be made, the investigating authorities have to conduct sunset reviews. They may also self-initiate an interim review upon petition of any interested party to determine the validity of the grounds and amount of the imposition. Finally, parties not satisfied with the findings of the investigation can file a petition for review with the appropriate authorities. Box 5. Trade remedy cases in the Philippines: some trends * The following Table gives a profile on the application of trade remedies in the Philippines: before 1995 1995 – 1999 2000 – present AD 14 21 6 Initiated CV n.a. 0 0 SG 0 0 9 AD 7 6 0 Affirmative findings SG CV 0 3 0 0 7 0 Legend: AD – Anti-dumping; CV – Countervailing; SG - Safeguard Anti-dumping appears popular among petitioners before the WTO-consistent RP law on anti-dumping took effect, that is, during the years before 1995-1999. This may suggest that the procedure necessary for dumping protection is relatively easier then. Local producers have the incentive to file anti-dumping cases because as shown in the table there is a relatively high success rate of obtaining protection, as the ratio of affirmative findings to the initiated cases is 13:35. By its very nature, an anti-dumping investigation even if unsuccessful is a significant threat to foreign competitors and so imports are likely to decrease. Second, countervailing cases are hardly used. a countervailing duty was used. There had only been three cases since1969. The products involved were: (1) wheat flour from France and Germany, (2) spanners and wrenches from India and (3) transmission and conveyor belts from India. One plausible reason is that it is not easy for a complainant to prove that the foreign government subsidizes its export. At risk is the relationship between the two governments. There’s a possibility that the foreign government would impose retaliatory countermeasures. Another reason for the dearth in countervailing cases is that by 2003 the WTO has required its members to eliminate all export subsidies. Third, in the current regime (2000-present) a petition for a safeguard measure is the most likely to succeed among the three with the success ratio of 7:9. That’s because, unlike in dumping and subsidization, the evidence that must be proven for a safeguard measure involves a determination of a serious injury, rather than a material injury. In other words, it is much easier to prove a sudden surge in imports than to prove dumping or subsidization. 26 Mission Report 1 August 2011 - 23 February 2012 Finally, compared to the global average use, it may be said that the local producers in the Philippines seldom avail of the protection by trade remedies. This may indicate that the discipline governing the application of trade remedies works in the Philippines. However, this result may also mean that the Philippines face difficulties in conducting the investigation and/or applying the trade remedies. _________________ Based on Prado, A. (2011) “The WTO and Trade Remedies in the Philippines.” Unpublished paper. Agriculture Special Safeguards A special safeguard duty was introduced by the Agreement on Agriculture. It applies only to agricultural products for which the country has declared at the start of the implementation of the agreement its intention to use the special safeguards. These products are confined however to those, which previously had quantitative import restrictions. The application of the special safeguard duty is faster compared to the general safeguard duty, but it is automatically lifted in the same year it is put into effect. Rules governing the use of the special safeguards include two tests to determine if their use is warranted. The first is the volume test and the other is the price test. Benchmark volumes of imports and prices had been prescribed in the agreement, against which actual import volumes or prices paid are compared. Like the general safeguard duty, the special safeguard duty is applied on the affected imported product regardless of origin. Box 6. Philippine onions farmers avail of the special safeguard duties * Onions are among the major crops grown in the Philippines, mainly in Ilocos Norte, Ilocos Sur, La Union and Nueva Ecija provinces. Onion farmers plant the crop from October to February and harvest it from March to April. It is estimated that about half a million farmers and laborers depend on the industry. As early as 2000, farmers of local onions products had complained about the increase of imported onions. They claimed that their income levels were adversely affected by what they determined as a surge of imported onions. Local prices of onions fell substantially reducing farmers’ incomes. China is the main source of imported onions. Chinese onions are brought into the country legally, but farmers’ groups alleged that because the onions available in the local market exceeded the official quantity of imports, many of the onions in the local market from China must have entered illegally. in the country), which lowered the prices of local onions. On the average, onion imports constituted roughly eight (8) percent of total domestic consumption over the period from 1999 to 2004. Using import’s share of domestic consumption as a gauge of import surge, it can be noted from that onion importation surged in 2001 and in 1999. During these two years, onion imports comprised 12 percent of domestic consumption, four percentage points higher than the mean share and three times as much as the smallest. In all the remaining years particularly from 2002-2004, import’s share of consumption was significantly lower. For every one thousand kilos of onions produced domestically, there was on the average importation of 136 kilos onions, or roughly a ratio of 14 percent. Relative to local production, onions imports comprised a bigger portion in 2001 and in 1999. In addition, the quantity of onion imports fluctuated and that yearly onion imports peaked in 2001. Moreover, sharp increases in the volume of imported onions were posted in 2001 (from 2000) and 2003 (from 2002). Importers had denied allegations of increasing importations of onions. They stated that there was a actually a decline of importation particularly in the year 2003 and 2004 due to “restricted issuance of import permits” by the Bureau of Plant Industry (BPI). Furthermore, importers asserted that imports never coincided with peak harvest of March to May (onions from Netherland are imported from October 27 Mission Report 1 August 2011 - 23 February 2012 to February while those coming from China enters the country from June to December). Claims that most of the onions entering the local market are of different kind from those that are being produced domestically. The onion farmers applied for the agricultural special safeguards (SSG). SSG are granted to petitions if prices of the said goods fell below its trigger price (Php 74.21). The first SSG on onions lasted for 1.5 months (from November 15 2002 to December 31 2002). It was immediately lifted, as there was an expected shortfall in the local supply of onions. The second SSG was imposed from December 18, 2004 to January 20, 2005. Onion farmers have requested SSG re-imposition though at present, no SSG duty has been imposed. SSGs are easier to invoke compared to the regular safeguards. However, their drawback in so far as the farmers are concerned, is that they can only be applied for the calendar year that the government imposed them. ___________________ * Based on Francisco, J. (2011) “Impact of Import Surges in the Philippines. The case of onions and tobaccos”. Unpublished paper. Box 7. Safeguard duty on imported steel angle bars * In 2008, three companies, Cathay Metal Corporation, Dragon Asia Rolling Mills Inc., and Lunar Steel Corporation, requested the Department of Trade and Industry to impose safeguard duty on imported steel angle bars. They alleged that a surge of imports occurred from 2003 to 2007, which caused serious injury to their industry. The complainants also claimed that the imported steel bars were sold at a lower price than the price of the locally made steel bars, which forced the local companies to lower their prices as well with the expense of their sales and profits. In the formal investigation, the Tariff Commission determined whether the product is a like or competitive product, whether imports were imported into the country in increasing volumes, whether there is injury to the domestic industry, and whether the increased volume of imports caused the injury. In order to determine whether steel angle bars are like or competitive products, the locally made steel angle bars and their imported counterparts should be compared. Under RA 8800, a “like product” is defined as a product, which is, in all aspects, similar to the imported product in question. Meanwhile, a “competitive product” is one, which is locally produced and substitutable. After examining and comparing the characteristics of the steel angle bars, their chemical composition, their use and their process of manufacturing, the commission concluded that the locally made steel angle bars are like products of the imported ones. Year 2003 2004 2005 2006 2007 2008 Average (20032007) Imports of Steel Angle Bars (MT) 154 338 1,551 15,193 38,767 19,099 Growth Rate of Imports (%) 119 359 880 155 -51 Local Output (MT) 88,240 83,195 86,900 71,030 20,740 37,730 Imports to Output Share (%) 0.17 0.41 1.78 21.39 186.92 50.62 378 Another essential part of the investigation is to provide evidences of increased volumes of imported steel angle bars. The above table shows the data presented during the formal investigation with regards 28 Mission Report 1 August 2011 - 23 February 2012 to the surge in imports. Imports of steel angle bars had been rising from 2004 to 2006. The rate of growth of the imports reached the highest in 2006, when imports were 15,193 metric tons. However, the greatest number of imports was in 2007 with 38,767 metric tons. Imports only decreased in 2008 because of the enactment of PNS 657, which regulated the standards in manufacturing steel angle bars. Meanwhile, Table B depicts the share of the imports to the total production. As can be seen, the share of imports had a sudden increase during 2006 and 2007. Consequently, the share of the domestic production decreased. From the two tables, the number of imports, the rate of growth of the imports and the share of imports all increased at the same time. In the end, the commission concluded that the steel angle bars were imported in increasing volumes. After determining that a surge of imports occurred in the country, the next task is to show that the local industry is seriously injured. First, the Commission determined whether the market share of the domestic industry was affected. Indeed, they were able to prove that the domestic industry lost its leadership in the market for steel angle bars exactly at the time when imports increased. It was only during 2008, at the time when PNS 657 was implemented, that the domestic industry was able to recover. And so, as a result of the decrease in the market share, the complainants cut their production of the said product, which further caused sales to decrease. More effects were realized from 2006 to 2007, when the companies incurred losses. This followed the lowering of steel prices in order to be competitive with the imports. As shown earlier, 2006 and 2007 were the two periods when imports were at their peaks. With due investigation, the Commission finally concluded that the domestic industry was injured, as shown in their financial performance. Safeguard measures cannot be implemented without showing that the increased volume of imports of steel angle bars caused the injury to the local industry. Therefore, after proving that there was surge in imports and damage to the industry, the commission must now prove causation. In the end, the commission concluded that there was causality: the increased volume in the importation of steel angle bars resulted to the decrease in the market share of the domestic industry. This decrease had the domino effect on the other injuries, as discussed earlier. After thoroughly considering all the qualifications needed in the implementation of safeguard measures, the Commission recommended a definitive safeguard duty to be applied. In the end, a safeguard duty of Php 7,700.00 per metric ton was applied on all imports of the steel angle bars. Sales Cost of Sales Gross Profit (Loss) Operating Expenses Income/(Loss) from Operation Other Income/(Expenses) Net Interest Expenses IncomeLoss Before Income Tax Provision for Income Tax Net Income(loss0) 2003 1,913,645 1,770,170 143,475 49,625 2004 2,066,100 1,951,585 114,515 54,560 2005 2,257,310 2,109,405 147,905 56,325 2006 2,031,380 1,929,100 102,280 57,805 2007 1,030,470 947,020 83,450 45,890 2008 1,261,655 1,192,485 69,170 40,580 93,850 50,055 91,580 44,475 37,560 28,590 340 81,860 175 54,510 (2,275) 83,690 (1,350) 84,485 315 67,085 (930) 54,830 12,330 3,945 8,385 5,620 4,005 1,615 5,615 2,505 3,110 (41,360) 150 (41,510) (29,210) 10 (29,220) (27,170) 0 (27,170) ___________________ * Based on Cabildo, (2011) “Steel Angle Bars: A Case Example on Safeguard Measures in the Philippines”. Unpublished paper. 29 Mission Report 1 August 2011 - 23 February 2012 3. Trade Facilitation 3.1 What is trade facilitation Trade costs generate friction in the supply chain, which slows down the flow of the products through it. In their broader meaning, these costs relate not only to the time and resources businesses give up in order to comply with laws or executive issuances, but also to the added logistics costs above what are necessary to move these products through the chain efficiently. Illegal payments extracted by authorities from businesses are part of trade costs. Trade facilitation refers to activities and policies designed to reduce these costs with the aim of easing the movement of goods or intermediate inputs from where they are produced to where they are used. The WTO refers to trade facilitation to be “the simplification and harmonization of international trade procedures, including the activities, practices and formalities involved in collecting, presenting, communicating and processing data and other information required for the movement of goods in international trade.” It focuses on the streamlining of administrative procedures so that businesses can efficiently comply with non-tariff measures, which include the product standards and technical regulations, customs laws, or related issuances applicable to traded goods and services as they cross international borders. The UNCTAD has classified NTMs into 16 chapters (denoted by alphabetical letters), each comprising of "sub-branches" (1-digit), "twigs" (2-digits) and "leafs" (3 digits). Figure 13 illustrates the classification scheme of NTMs. It starts with the broadest classification into import and export measures. Two sub-categories are listed under the import measures including technical and nontechnical measures. The technical measures include the sanitary and phyto-sanitary (SPS) regulations/standards and technical barriers to trade (TBT) in the case of non-agricultural products and food items for concerns other than safety. The remaining 14 chapters include pre-shipment inspection and customs formalities; price control measures; administration of licenses, quotas, prohibition and other quantity control measures; charges, taxes, and other para-tariff measures; finance measures; anti-competitive measures; anti-competitive measures; trade-related investment measures; distribution restrictions; ex-post sales restrictions; subsidies (except export subsidies); government procurement restrictions; intellectual property regulations; and rules of origin. Non-tariff measures (NTMs) are needed in order to address legitimate public concerns, such as for example the risk to public health brought about by imported products not meeting their product standards. They impose a cost not only to importers or exporters but also to the government agency implementing it. If the cost is what is normally expended in order to implement the NTM, then the measure is not regarded to be a trade barrier. However, if they are administered in a way that increases unnecessarily compliance costs of businesses involved in international trade, then these measures become non-tariff barriers (NTBs) to trade. Despite rapid growth in international trade in the past decades, trade-processing operations have generally remained “complex” worldwide4. For every trade-transaction, an estimated “40 business and government actors” are involved, working on “commercial, transport, and regulatory and financial procedures”. Grainger cited the findings of a UN study, which discovered a total of “200 4 Grainger, A. (2007) in his working paper: Trade Facilitation: A Review. http://www.tradefacilitation.co.uk/papers/AGrainger_TradeFacilitation_Review(2007).pdf 30 Mission Report 1 August 2011 - 23 February 2012 data elements” being requested in every trade-transaction. Hummels computed the forgone income due to such delays. This study claimed that for manufactured goods “each day saved in travel is worth an average of 0.8 % of its value.”5 International organizations have recognized the adverse effects of red tape on international trade. The WTO at its first Singapore Ministerial Conference in 1996 had called for an agreement on trade facilitation. The WTO has already established measures to simplify cargo clearance procedures at the border, as stipulated in GATT Articles V, VIII and X – which mostly deal with customs valuation and administration of trade regulations. However, WTO has not yet adopted specific provisions on customs procedures, documentation, and transparency, and lacks the all-encompassing legal framework to tackle red tape in its various aspects. Currently, trade-facilitation and removal of red tape is a highly discussed agenda in the Doha Development Round. Unlike other controversial points of the DDR agenda, trade-facilitation has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received significant consensus approval from the WTO members and some countries have already aggressively adopted trade facilitation programs on their own, e.g. Singapore, Korea, New Zealand and Australia. A study supported by APEC determined that trade facilitation programs would generate gains of about 0.26 % of real GDP – an expected amount that can surpass gains from tariff liberalization.6 Grainger (2007) notes that the European Commission in 2006 estimates a total of 300 Billion euros in annual savings worldwide, if the cost of bureaucratic procedures were cut in half. The cost to comply with the various regulations is high enough such that many small and medium enterprises end up not participation in international trade. 5 Hummels, D. (2001). “Time as a Trade Barrier”, Purdue University, West Lafayette. APEC. (2006). "Committee on Trade and Investment." Retrieved 6 October, 2006, from http://www.apec.org/apec/apec_groups/committees/committee_on_trade.html. 6 31 Mission Report 1 August 2011 - 23 February 2012 The World Customs Organization (WCO) came up with the Revised Kyoto Convention in 1999 for the simplification and modernization of cargo clearance procedures. The organization “maintains, supports and promotes international instruments for the harmonization and uniform application of simplified and effective customs systems and procedures”. The RKC agreed emphasizes trade facilitation rather than other concerns such as revenue generation, compared to its earlier version in the 1974. It requires all members to commit themselves to faster trade-processing, standardized regulations, and the use of information technology. The Philippines ratified the RKC on March 16, 2009, with the forthcoming Senate approval (Resolution No. 220) on February 1, 2010. The Philippines is legally bound to comply with the agreement’s trade facilitation provisions. As contracting party, the Philippines is required to comply with the stipulations of the General Annex, and partly with the Specific Annexes. Leeway for full compliance upon accession is 36 months for implementation of the standards of the General Annex, and 60 months for “transitional standards”, as per Philippine Customs. This means that all improvements in Customs should be in place come 2013. Currently, all APEC and Association of Southeast Asian Nation countries are bound by the RKC. 3.2. Sanitary and phytosanitary measures An important category of NTMs is the SPS measures. These include prohibitions or restrictions of products or substances for SPS purposes; tolerance limits for residues and restricted use of substances; labeling, marking and packaging requirements; hygienic requirements; treatment for elimination of plant and animal pests and disease-causing organisms in the final product; other requirements on production or post-production processes; regulation of foods or feeds derived from or produced using genetically modified organisms; and conformity assessment related to SPS. Further sub-divisions of each of these are provided for in Table 3.2. While the use of sanitary and phyto-sanitary measures is necessary to protect the human, plant and animal populations, the administrative procedures followed in implementing SPS measures can significantly raise trade costs and thus reduce trade flows. Administered inefficiently, these SPS measures can become virtual trade barriers. In the case of exports, both the origin and destination countries contribute to the level of compliance cost. First the importing country prescribes its own SPS measures on farm or farm-based products, which the originating country implements before the exports are shipped. Box 11 below describes the activities, which Philippine SPS agencies have to do before agricultural exports are cleared for shipment. Box 9 gives an interesting account of how Philippine mangos are not able to widen its share in the US market because of the way SPS measure in the US is being implemented. In the account, compliance cost to SPS in the US is a virtual export tax on Philippine mango exports. However, Philippine SPS measures and how Philippine authorities implement these likewise have the potential of inadvertently raising the cost of imported farm products covered by the SPS measures. In Box 11, there are various activities of enforcement that can possibly lengthen the Table 3.2 SPS related measures A100 Prohibitions or restriction of products or substances because of SPS reasons A110 Temporary geographic prohibition for SPS reasons A120 Geographical restrictions on eligibility 32 Mission Report 1 August 2011 - 23 February 2012 A130 Systems Approach A140 Special Authorization for SPS reasons A150 Registration requirements for importers A190 Prohibitions or restrictions of products or substances because of SPS reasons n.e.s. A200 Tolerance limits for residues and restricted use of substances A210 Tolerance limits for residues of or contamination by certain substances A220 Restricted use of certain substances in foods and feeds A300 Labelling, Marking and Packaging requirements A310 Labelling requirements A320 Marking requirements A330 Packaging requirements A400 Hygienic requirements A410 Microbiological criteria on the final product A420 Hygienic practices during production A490 Hygienic requirements n.e.s. A500 Treatment for elimination of plant and animal pests and disease-causing organisms in the final product (e.g. Post-harvest treatment) A510 Cold/heat treatment A520 Irradiation A530 Fumigation A590 Treatment for elimination of plant and animal pests and disease-causing organisms in the final product, n.e.s. A600 Other requirements on production or post-production processes A610 Plant growth processes A620 Animal raising or catching processes A630 Food and feed processing A640 Storage and transport conditions A690 Other requirements on production or post-production processes, n.e.s A700 Regulation of foods or feeds derived from, or produced using genetically modified organisms (GMO) A800 Conformity assessment related to SPS A810 Product registration requirement A820 Testing requirement A830 Certification requirement A840 Inspection requirement A850 Traceability information requirements A851 Origin of materials and parts A852 Processing history A853 Distribution and location of products after delivery A859 Traceability requirements, n.e.s. A860 Quarantine requirement A890 Conformity assessment related to SPS n.e.s. A900 SPS measures n.e.s. Source: UNCTAD time of getting the imported products cleared at the border, cause partial deterioration of the quality and quantity of the imported stocks, resulting in higher import cost of the product. In this instance, the SPS measure act like an added import tax, which importers have to shoulder, particularly if they are simply price takers in the world market. 33 Mission Report 1 August 2011 - 23 February 2012 Box 8. How much of Philippine agricultural trade is subject to SPS Measures A matching of the SPS measures enforced by the Bureau of Animal Industry (BAI), National Meat Inspection Service (NMIS), the Bureau of Plant Industry (BPI) and the Bureau of Agriculture and food Product Standards (BAFPS) for animals and animal products and plant and plant products with commodity codes of agricultural imports was done in 2005. The NMIS regulates meat imports; the BAI enforces SPS measures on animals, meats, and plant products used for feeds, while the BPI focuses on plant imports. Thus, meat imports normally go through both BAI and NMIS while imports of feed materials go through BAI and BPI. The BAFPS is a relatively newer agency and its mandate is to set the product standards. About 702 commodity codes were subject to at least one SPS measure by any of the above stated agencies of the Department of Agriculture. The import value of these commodities from 1995 to 2004 amounted to 21,366 million dollars or 66% of the total value of agricultural imports in that period. The remaining 34 % either do not have SPS measures or are not plant nor animal products. The BAI and NMIS had SPS measures on 296 commodities, with a total value of 9,632 million dollars from 1995 to 2004. The BPI had SPS measures on 432 commodities, the imports of which amounted to 15,009 million dollars during the same period. SPS measures on agricultural exports of plant, animal, and processed food products are implemented through the BAI, NMIS, BPI, BAFPS and FDC. The matching of these SPS measures with commodity codes of exported agricultural products was also done in 205. A total of 765 exported commodities were subject to at least one SPS measure by any of the above agencies. These commodities had total exports worth 16,435 million dollars from 1995 to 2004 or 75% of agricultural exports. Box 9. SPS hurdle of Philippine mangoes into the US At the beginning of the Philippine-US mango trade, the Philippine government had difficulty assisting domestic exporters to comply with the SPS measures imposed by the US because the measures are quite expensive and the country still lacks administrative and technical capabilities that would have enabled them to meet exhaustive data collection, certification requirements and building of testing facilities that normally would have taken years to complete. Examples of initial setbacks experienced were temporary trade stoppages due to delay in bankrolling the USDA cost supposedly for use by the agency to carry out quarantine procedures in the Philippines and to enable the country to get clearance to export its fruit. According to the Center for International Development at Harvard University, the reason why developing countries like Philippines have trouble complying with SPS agreement is that they make intensive use of multilaterally established standards that are determined by a process that is both politically and economically skewed. Standard-setting has until recently been the exclusive domain of rich and developed countries. To counter the problem surrounding SPS agreements, the WTO initiated a program in August 2002 to enhance the capacity of developing countries to participate in negotiations and implement standards, and they are likewise ensuring that standards do not become de facto barriers to trade or hide protectionist policies. In the Philippines, however, there is clearly a need for domestic capacity-building to assist the compliance of exporters with the regulations. Aware of this, the Philippine government has been giving support to exporters in, for example, expansion of mango plantations which has helped harvest area for mango grew significantly at 7.06 percent annually with 92,900 ha in 1998, up from only 53,200 ha in 1990 (Pabuayon, 2000). In addition, the Department of Agriculture has been committed to providing support programs such as the establishment and rehabilitation of nurseries and foundation scion grove, 34 Mission Report 1 August 2011 - 23 February 2012 household and village processing assistance, grants to help exporters defray the costs of USDA inspection fees, and crop improvement especially for climate change adaptability. The local government of Guimaras as well started pushing for an ordinance last 2010 that will require all local mango growers to register with their barangays as a way to document the volume of mangoes being produced in the province and to prevent unscrupulous people from destroying the industry. Likewise the Guimaras province has already purchased equipment that will monitor and test the quality of its mango products. However, given that such support programs are still in their development and early implementation, there is still a weak coordination between the different standard setting and regulatory bodies concerning SPS; and the Philippine government is not yet that strong in terms of administrative, technical and other capacities to comply with more stringent regulations. Because of this, they would need to ensure the sustainability of their programs and develop capacity-building efforts geared towards enhancing risk analysis practices, regulatory verification, industry compliance, traceability and information management, and improving the functioning of SPS/TBT enquiry points as exporters will certainly directly benefit from improved capability to respond to requirements of trading partners. When the importation of fresh mangoes from the Philippines (Guimaras only yet) to the US began in 2001, the marginal increase in exports was largely diminishing since exporters immediately experience increase in costs as well. As proof, Peter Sgro, chairman of the Pacific Rim Brokers that is a major importer of Philippine mangoes on Guam, accounted that: “In our first two years, we easily sold 1,000 cases or one 20-foot container a week on Guam alone. (In 2005), that dropped to about 500 cases a week since the cost for us in just two years has increased by about 57 percent. Shipping also creates some issues since there are no direct ships to Guam from Manila. Air freight is not an option anymore since the cost of the mango alone now will not justify even the lowest of margins by a retailer and for us as a wholesaler, It also makes no sense to add the cost of air freight.” Because of this, Philippine exports are uncompetitive with those coming from Mexico and Latin American countries, which benefit from economies of scale and close proximity to US. In addition, the high cost to comply with SPS measures has increased the price of mangoes. The SPS measures are in effect an export tax and delimit the market potential. Under the current situation, Philippine dried mango exports have an advantage over fresh mangoes in the US market. Of the total 1,497 tons of mango exported to the US in 2003, 1,280 tons were dried with a value of $5.5 million. The rest were fresh mangoes valued at $243 thousand. In view of this, the Philippine government is initiating programs such as grant to exporters to hopefully ease and defray the high cost of exporting to US. Box 10. Assessing the trade impact of red-tape at the border in the Philippines: case of fruit exports To measure red-tape intensity in the Philippines, proxies in the form of (1) days to export and (2) days to import for each exporter and importer respectively were used. These two measures are meant to represent in a very broad manner any form of non-transit, behind-the-border barrier that increases tradetransaction-time. Data on these measures are taken from www.doingbusiness.org, a World Bank project that ranks 180+ countries in terms of their ease-of-doing-business. This database is what is used in other behind-the-border studies such as Hernandez and Taningco (2010). The Philippines is actually of above-average rank in terms of speed of trade-processing. This is a result of the Customs automation reform from 1995-2000, which per Clarete (2004), reduced importing time and improved transparency. This implies that if ever the WTO mandates its members to comply with world-averages of export/import days as the DOHA round concludes, the Philippines can confidently 35 Mission Report 1 August 2011 - 23 February 2012 meet the requirement. Nonetheless, Philippine performance still falls behind first-world standards, e.g. US, Singapore, and Germany by a factor of 10 days. Moreover, compared to Thailand, which drastically cut down its export-time from 2006 to 2011 by 10 days and garnering rank #57 in 2011, Philippine performance remained almost stagnant, improving by only 2 days from 2006 to 2011 in terms of days-to-export. The comparative-static exercise simulates what may happen to Philippine trade if this same 10-day improvement were to occur in the Philippines. To empirically measure the significance of red-tape effects, an augmented gravity model is used, following the BV-OLS (Bonus Vetus OLS) specification of Baier and Bergstrand (2009). The gravity model has long been the workhorse of econometric trade tests. Its origins date way back to the 1960’s with Tinbergen (1962). Theoretical foundations for the model however had to wait for some years until laid-out by Anderson (1979) and Bergstrand (1985). Anderson and Van Wincoop (2003) clarified that traditional gravity models are biased given their failure to account for “multilateral” prices that affects bilateral variables. Per Feenstra (2004), these “multilateral” barriers can be consistently accounted for by incorporating fixed effects via dummy variables per exporter and importer. The fixed effects method however has shortcomings as pointed out by Baier and Bergstrand (2009), since it renders measuring country specific effects invalid since they are “subsumed” in the fixed effect variables. Baier and Bergstrand (2009) proposed another solution by specifying a Taylor-series expansion on bilateral variables to cover for “multilateral” prices. This generates consistent estimates while allowing for country-specific variables to remain valid for comparative-statics . This method is what is used in this paper as red-tape barriers are seen to be country-specific. Previous literatures have already been written about the effect of red-tape on trade using augmented gravity models, such as Hernandez and Taningco (2010), which evaluated the negative effect of import days averaged between exporter and importer on ASEAN commodity trade, together with other conditions such as credit-standing, port-infrastructures, etc. This study is more limited than Hernandez’s since it specifically evaluates only the fruit-commodity against one behind-the-border barrier – red tape. However, it encompasses fruit trade in a global scale, and dissects average days of import into export-days and import-days to attain a separate view of the two effects. Other literatures that used the gravity-model for red-tape evaluation is that of Wilson et al. (2003), which looked into the trade-effects of port efficiency, customs and business environment and e-business usage. Among these factors, Wilson et al. recognized that port-infrastructure and customs quality exert positive elasticity to trade, and that too much regulations impair trade. These findings were simulated to calculate what happens if below-average APEC members improve trade-performance to average-APECstandards. Results predict that around USD 254 billion can be raised through these improvements, increasing average APEC GDP by 4.3%, and specifically Philippine GDP per capita by 11%. Vis-à -vis these studies, Grainger (2007) however notes that in the academic world, “very little substantiated research” has been done to quantify trade-transaction costs other than “indirectly measuring it” by means of gravity models. In fact, Wilson et. al (2003) themselves acknowledged that existing papers on trade-costs are quite limited – that is, despite widespread multilateral monetary support to promote trade-facilitation initiatives.\ The results of the gravity model estimation (not shown) indicate that red-tape variables are both statistically negative at the 5% significance level, with economically significant coefficients of -0.113 and 0.256 respectively, thereby implying that higher intensity of red-tape does create a trade-deterrent impact on fruits – in accordance with the findings of Hummels (2001) and Wilson et al. (2003). Moreover, limpdays, or the number of days-to-import has a larger deterrent-effect on trade compared to lexpdays or the number of days to export. Using these estimates of the effect of red-tape on agricultural fruit trade, a simulation was done 36 Mission Report 1 August 2011 - 23 February 2012 to measure the potential additional trade if such red-tape was reduced. Philippine exports in 2009 total USD 1,959,744,484 in terms of c.o.f. value. 2009 days-to-export total 16 days. An improvement of 10 days from this level brings down days-to-export to 6 days, which is comparable to the amount of days-toexport of the USA in 2009. A 10-day improvement in 2009 Philippine days-to-export leads to an estimated 11.68% increase in Philippine fruit exports, in accordance with the empirically-calculated coefficient for lexpdays. This amounts to an additional USD 228 million worth of c.o.f. export values or PHP 9.1 billion in terms of current USD:PHP exchange rates, amounting to 0.12% of 2010 GDP. As of 2011 however, Philippine daysto-export improved by only 2 days to 14 days-to-export, still twice that of the USA or Germany. Box 11. Philippine SPS Process The SPS process has three main components, namely, SPS Development, SPS Enforcement, and SPS Information Dissemination. The figure below is a high-level diagram of the SPS process showing a continuous flow of information to and from each component. The four regulatory agencies that are the subjects of this study, namely, the BAI, BAFPS, BPI, and NMIS, each perform these main components of the SPS process, although in various degrees. The current work of the BPI and BAI are tilted more on SPS enforcement. The work of the BAFPS, on the other hand, tends to focus more on SPS ! development but also involves enforcement and enforcement monitoring. The NMIS, meanwhile, gives almost equal attention to development and enforcement. All four agencies are involved in SPS information dissemination. The delineation of SPS functions at the DA is largely based on commodity groups and SPS objectives. The BAI’s focus is on animal health, while that of the BPI is on plant health and food safety. The NMIS and BAFPS focus on food safety as well as product quality. ! "! #"$%&' ((#) *%+ # Although the BPI has food safety as an SPS objective, in practice, there is no DA agency responsible for the enforcement of SPS measures relating to food safety for plant and plant products. While the importation of all plant-based products passes through the BPI Plant Quarantine Service (PQS), its mandate is explicit only on protecting plants against pests and diseases. The National Pesticide Analysis Laboratory (NPAL), meanwhile, only performs food safety monitoring for pesticide residue levels and has no enforcement mandate. This gives rise to the situation where imported peanuts are not tested for aflatoxin but dessicated coconut and animal feeds are tested for aflatoxin by the Philippine Coconut Authority (PCA) and BAI, respectively. SPS Development 37 Mission Report 1 August 2011 - 23 February 2012 SPS Development involves activities by which the DA evaluates, formulates, recommends, harmonizes, and monitors science-based international and regional standards, risk assessments, and industry and market conditions using a team of technical experts to come up with science-based national standards, issuances, and risk management plans. The Figure to the left shows the overall process flow ! for SPS development. SPS development includes standards development and Risk Analysis (RA). One important type of RA is Import Risk Analysis (IRA), which is required to define regulations on what products can be brought into the Philippines from where and under what conditions. With the creation of the BAFPS and the recent reorganization of the NMIS, standards development is fast becoming an established process in SPS development. However, the standards developed by both agencies go beyond ensuring product safety, an SPS objective, and include promoting product quality, which is not an SPS concern and is, by nature, voluntary. Thus, the agencies tasked with SPS enforcement are unable to use these standards to impose mandatory product safety compliance. On the other hand, the practice of RA, while done across all agencies, is spotty. The RA process is supposed to be structured, science-based, guided by a risk analysis handbook, undertaken by a panel of experts (if required), and uses both quantitative and qualitative methods of analysis. The BPI and BAI admit to an “informal” process; i.e., with no norms, handbook, or outside experts and little quantitative analysis and documentation. Thus, these agencies expressed concern that their systems are not at par with those of the international community. The NMIS, on the other hand, is confident in its use of HACCP in managing risk associated with the post-production and processing components of the food supply chain. The BAFPS, meanwhile, has developed the standards for Good Agricultural Practices (GAP) but the quality of the RA that underpins these standards is not clear. All agencies expressed the need for improving the RA process, especially in quantitative analysis, and for developing handbooks for pest risk analysis and insect risk ! analysis. SPS Enforcement The SPS enforcement process can be viewed as a continuum of activities that can be classified in terms of where, in relation to the international border, these take place. In other words, activities can be classified into pre-border, border and post-border activities. 38 Mission Report 1 August 2011 - 23 February 2012 Domestic activities are post-border for imports but become pre-border for exports. The figure below shows the process flow for SPS enforcement in the context of global trade. Border quarantine activities include inspection, interception, seizure, and remedial action. These also include confinement on arrival, checking during confinement, and subsequent action as appropriate. All three enforcement agencies, namely, the BPI, BAI, and NMIS, have border activities. The BPI and the BAI are present at the border points of entry to inspect products for plant/animal health purposes before these are allowed in. Additionally after entry, imported meat is directed to accredited cold storage facilities where the NMIS inspects the same for food safety before these are released for processing or sale. Imported livestock are sent to the importers' farms where the same are quarantined and observed for a month. The BPI requires imported seed to be quarantined at the nurseries. While the BAI and BPI are present in the international ports and airports to inspect commercial cargo, courier mail, and passenger baggage, the BAI does not inspect international postal mail, while the BPI does so but not consistently. Also, unlike in other countries, there is no surveillance at the wharfs and depots, which as points of backdoor entry could allow the entry of unwanted and unsafe products. A significant component of borer quarantine is the interface between the BOC and the DA. Under the current system, the BOC is notified by cargo shipping lines and airlines of shipment arrivals. It then performs its inspection, and based on its inspection, determines whether or not DA inspection is required. The BAI and BPI Quarantine officers expressed concern about how poorly this system works. Since they have no access to the BOC cargo clearance system and do not receive any copy of the inward foreign manifest from the shipping and airlines, they are totally dependent on the Customs officer. Some experienced quarantine officers are able to obtain arrival information by making direct inquiries or photocopying BOC documents but admit that this is inadequate. The BAI, BPI and NMIS also undertake export quarantine activities to ensure that Philippine exports comply with import requirements of trading partners. Depending on the requirements of the importing country, some kind of product inspection or product treatment inspection is done on the goods to be exported. The inspection is done prior to the issuance of certificates that are generally required by the importing countries. Traceability and operational risk management are principles that lend efficiency to the SPS enforcement process. Traceability is the capability to identify the origins of a particular product. It is important for stemming the spread of pests, diseases, and unsafe food. Operational risk management, on the other hand, is about understanding and appropriately treating varying risks, for example between points of entry, origins, or establishments. Of the agencies under study, the NMIS observes the principle of traceability in its quarantine activities for imported, exported, and domestically traded products. The BAI quarantine activities allow traceability only for exported products from commercial farms, while the BPI allows traceability only for exported mangoes. Operational risk management is hardly observed by all agencies. The individual inspectors from these agencies are able to profile risks through experience and, more often than not, do so in the conduct of inspection activities. This, however, is not data-based and not formally shared with other inspectors. The data on breaches and leakages in quarantine is spotty, making formal risk profiling difficult. Nonetheless, the NMIS is planning to database the performance of their accredited establishments in order to shorten the processing period for accreditation renewals for the good performers. 39 Mission Report 1 August 2011 - 23 February 2012 ! SPS Information Dissemination The SPS information dissemination involves activities where the DA promotes, markets, tracks and informs the government, industry stakeholders, and the community of SPS measures, issuances, documentations, lists, inventories, alerts, notices, reports, publications, and procedures developed and enforced by the DA. Information is disseminated through the media, publications, electronic repositories, and meetings or town hall sessions. 3.3 Technical barriers to trade Technical barriers to trade (TBT) are measures designed to ensure that technical regulations, standards, testing, and certification procedures do not create unnecessary obstacles to trade. In an important way, SPS measures are TBTs for specific sanitary and safety concerns with respect to the importation of agricultural products and food. Table 4 The WTO agreement on TBT encourages its members to implement their legitimate technical requirements in a way so as not to limit trade, as opposed to technical requirements. Table 3. TBT measures B100 Prohibitions or restrictions of products or substances because of TBT reasons (e.g. environment, security) B110 Prohibition for TBT reasons B140 Authorization requirement for TBT reasons B150 Registration requirement for importers for TBT reasons B190 Prohibitions or restrictions of products or substances because of TBT reasons, n.e.s. B200 Tolerance limits for residues and restricted use of substances B210 Tolerance limits for residues of or contamination by certain substances B220 Restricted use of certain substances B300 Labelling, Marking and Packaging requirements B310 Labelling requirements B320 Marking requirements B330 Packaging requirements B400 Production or Post-Production requirements B410 TBT regulations on production processes B420 TBT regulations on transport and storage B490 Production or Post-Production requirements n.e.s. B500 Regulation on genetically modified organisms-GMO (for reasons other than food safety) and other foreign species B600 Product identity requirement B700 Product quality or performance requirement B800 Conformity assessment related to TBT B810 Product registration requirement B820 Testing requirement B830 Certification requirement B840 Inspection requirement B850 Traceability information requirements B851 Origin of materials and parts 40 Mission Report 1 August 2011 - 23 February 2012 B852 Processing history B853 Distribution and location of products after delivery B859 Traceability requirements, n.e.s. B890 Conformity assessment related to TBT n.e.s. B900 TBT Measures n.e.s. Given the range of technical regulations a country may maintain, several agencies of governments or trade regulators are involved in the implementation of TBTs. For example, most of the SPS are implemented by the Ministries of Agriculture. Those regulations having to do with national security are likely implemented by defense or policy authorities, while those intended to protect the environment by Ministries of Environment. Box 12 gives a profile of what agencies implement TBTs in the Philippines, while Box 13 describes how they regulate trade. Box 12. Why and who regulate trade in the Philippines The reasons for regulating trade include the following: a) consumer protection, b) plant and animal protection; c) environmental health, d) revenue collection, e) industry protection, and f) enforcement of other laws/regulations. Consumer protection focuses on the health and safety of the consumer. The Philippine Food and Drugs Administration, for example, regulates the entry of processed food items, medicines and the ingredients for making them, as well as cosmetic products. The following Table lists the agencies that are presently have legal mandates to regulate trade, and these are the agencies initially identified to be integrated in the country’s national single window system. List of Philippine Trade Regulatory Agencies Agency/Department Agency/Department Department of Agriculture Bureau Of Animal Industry (BAI) 1 Bureau Of Fisheries & Aquatic Resources 2 (BFAR) Bureau Of Plant Industry (BPI) 3 Fertilizer And Pesticide Authority (FPA) 4 Fiber Industry Development Authority (FIDA) 5 Minimum Access Volume Secretariat (MAVSec) 6 National Food Authority (NFA) 7 National Meat Inspection Service (NMIS) 8 Philippine Coconut Authority (PCA) 9 Department Of Trade And Industry 22 Board Of Investments (BOI) 23 Bureau Of Import Service (BIS) 24 Bureau Of Product Standards (BPS) 25 Clark Development Authority (CDA) 26 Philippine Economic Zone Authority (PEZA) 27 Philippine Shippers’ Bureau (PSB) 28 Subic Bay Metropolitan Authority (SBMA) 29 Bureau of Export Trade Promotion (BETP) Department Of Transportation And Communication 10 Policy Research Service (PRS) 30 11 Sugar Regulatory Administration (SRA) 31 Civil Aviation Authority Of The Philippines (CAAP) Land Transportation Office (LTO) 12 Sugar Regulatory Administration (SRA) 32 Maritime Industry Authority (MARINA) Department Of Environment and Natural Resources 33 13 Environmental Management Bureau (EMB) National Telecommunications (NTC) Other Departments/Agencies Commission 14 Forest Management Bureau (FMB) 34 Bangko Sentral Ng Pilipinas (BSP) 15 Protected Areas And Wildlife Bureau (PAWB) 35 Philippine Nuclear Research Institute (PNRI) 36 Bureau of Immigration (BI) 16 Bureau Of Internal Revenue (BIR) 37 Firearms and Explosives Division, PNP (FED) 17 One Stop Shop (OSS) Office Of The President 18 Insurance Commission (IC) 38 Optical Media Board (OMB) 19 Bureau of Customs (BOC) 39 Philippine Drugs Enforcement Administration (PDEA) Department Of Finance Department Of Health 41 Mission Report 1 August 2011 - 23 February 2012 20 Bureau of Quarantine (BQ) 21 Phl Food and Drugs Administration (PFDA) Eight of the agencies under the Department of Agriculture enforce the SPS standards and technical regulations. The Bureau of Animal Industry, one of the older trade regulators, as well as the Bureau of Plant Industry ensure that imported animals, plants and product thereof do not inadvertently introduce plant and animal diseases into the country. The agencies under the DENR focus their regulatory activities to enforcing the country's laws and regulations designed to protect the environment. Besides these, the PNRI and the Fertilizer and Pest Authority likewise regulate imported products to safeguard the environment. Revenue collection is a major goal of the government, and the agencies under the DOF are tasked that country's Tariff and Customs Code as well as the Internal Revenue Code are adequately implemented. Because of fiscal incentives, there are agencies outside of DOF that regulate the trade likewise to ensure the proper collection of taxes. For example, the BAI of the DA certifies any importation of feed wheat, which fetches a lower tariff than that on food wheat. Similarly, the BOI, BETP and BIS under the DTI regulate the importation of fiscal incentives eligible products. The MAVSec is implementing the tariff quota system, under it a limited volume of eligible agricultural imports may come into the country at lower tariffs than out-quota importation. Altogether there may be about 12 agencies in this list that are focused (in the case of the BOC and the BIR) or helping out in the government's revenue collection. A few agencies continue to exercise their mandates on regulating trade to protect domestic industries. The NFA is the only importer of rice in the Philippines, but it has delegated about 200,000 metric tons of what it imports annually for the private sector. This policy is meant to protect the local rice farmers from imported rice. The MAVsec of the DA administers the country's tariff quota system for a few agricultural imports, whose quantitative import restrictions had been converted into tariff barriers by the WTO. The SRA regulates imports for the purpose of enforcing its program of ensuring a viable local sugar industry and to make sugar affordable to consumers. The BOI and BIS likewise exercise their mandates to ensure the continued growth of industrial programs such as on motor vehicle development program. About six agencies in the list regulate trade for purposes, which may just be referred to as enforcing other laws and regulations. The OMB regulates trade in order to enforce intellectual property rights, particularly on creative works that are electronically stored in CDs and DVDs. Overall enforcement of laws against the use of illegal drugs and control of the use of firearms and explosives are the respective motivations for regulating imports by PDEA and FED, respectively. The NTC regulates likewise the importation of radios and broadcasting instruments as well as telecommunication products and related equipment to ensure the proper business environment for the continued growth of the infrastructure and services needed for the productive and affordable use of information and communication technology in the country. The Bangko Sentral ng Pilipinas regulate the trade on the Philippine currency to ensure financial stability in the economy. Putting all these in perspective, this analysis places twelve agencies regulating for consumer protection; three for the protection of plant and animal health; five for environmental protection; another twelve agencies for revenue collection; six for industry protection; and five agencies for the enforcement of other laws and regulations. The count exceeds the list of 35 trade regulatory agencies, indicating that a few of them have multiple reasons for regulating trade. The BOC is a key agency in the overall implementation of technical regulations for the following reasons. One of its primary tasks is collecting the import duties and taxes at the border as provided for in the Tariff and Customs Code. Secondly, many of the other TRAs have partially delegated their respective regulatory functions to the BOC. This is under the agency’s broad mandate of ensuring that the imported or exported cargoes comply with the various laws and regulations of the Philippine government. 42 Mission Report 1 August 2011 - 23 February 2012 Box 12. How TBTs are regulated in the Philippines at the border in the Philippines Three milestones or events in this process may be identified, namely pre-border, first border and second border activities. Border is loosely used to refer to the customs area at the port of entry or exit of the traded cargoes. In the pre-border event, the primary activity is the application for the required authority to import or export a regulated product by the trader or his/her broker. A successful completion of this pre-border process is marked by the action taken by the regulator on the application. The trader gets the pre-border clearance to import or export the product. Pre-border event Pre-border requirements vary across the range of agencies. At one end, a trader may just write a letter to the head of the agency asking for the authority to import or export. There are agencies, which have application forms for the permit to import or export, without any further requirements. These forms are provided to the trader at nominal cost. A rather more complicated procedure requires the trader to produce supporting documents such as the bill of lading and commercial invoices. These are usually required in getting sanitary and phyto-sanitary clearances from the DA agencies. The most complicated of all is that if in addition to getting an SPS clearance, the trader is seeking as well to avail of any tax incentives, if any. For example, the importation of plants that are covered by tariff rate quotas, may require not only the SPS clearance from the BPI but also the MAV certificate from the MAVsec. In turn, the MAVsec requires additional documents. The pre-border trade clearance or permit in turn is called under various names, reflecting as well the kind of documentary requirement at the application stage of the process. The authority to import or export may come in a form a simple letter from the head of agency to the trader allowing the latter to import or export. Alternatively, a formal document may be issued on pre-printed forms duly signed by the head of agency for the SPS clearance, import permit, import clearance, or in the case of exports export permit. In the case of importers who applied to avail of tax incentives, this clearance may come in the form of a certification saying that the importer is eligible for the tax incentive. Stretching the concept further, the use of pre-border trade clearance may also include the issuance by the One Stop Shop of the DOF a certification that the importer who is paying part of his or her tax assessments with tax credits is doing so with valid and unused tax credits. All these names or forms are simply folded under their generic name of a pre-border import or export clearance. Assuming that the importer is given the authority to import, the pre-border trade clearance is provided to the importer. With it, the trader proceeds to shipping the products its company imported from the rest of the world to the Philippines. Upon arrival of the vessel, the importer initiates the process of getting the cargo inspected, assessed and released by the BOC. This triggers the first-border formalities in the cargo-clearance process. First border formalities The filing of the import entry or export exit document with the BOC triggers the first-border formalities in this cargo-clearance process. In the case of imported cargoes, shipments are grouped by the selectivity system of e2m as either green, yellow or red lane shipments. All regulated imports are selected either as yellow or red lane shipments. Under the former, the BOC checks if the shipment contains all the appropriate and valid pre-border import clearance documents, and if this is the case it proceeds to do an assessment of the duties and taxes. Upon the payment of the assessed duties and taxes, the cargo is released to its importer. The importer shows the BOC official the copies of the preborder import clearance and upon the satisfaction of the official, the cargo clearance process proceeds without inspecting the cargo to assessing the duties and taxes, payment, and release of the imported cargo to the importer. 43 Mission Report 1 August 2011 - 23 February 2012 In the case of red lane shipments or those, which require physical inspection, the cargoes are jointly inspected by the representative of the trade regulator and the BOC at designated inspection areas within the BOC premises. The container is stripped and a physical inspection of a sample of the cargo is undertaken in front of the importer or his/her representative. It is at this point of the first-border activities that the trade regulator issues the first border import or export clearance after completing the examination, provided the shipment is compliant with the conditions stipulated in the import permit. The regulator stamps and signs on the import entry document for the inspected shipment, indicating the same passed the examination. The release of the first border import clearance closes these formalities and BOC proceeds to assessing the duties and taxes and the importer paying for the same to get the goods released. In the special case where the importers want to pay the assessed duties and taxes with tax credits, the BOC particularly its cash division has to check the validity of the tax credits presented. For this process, the BOC official concerned validates the tax credits presented by the importer with the certifications issued by the One Stop Shop at the DOF. Indeed the same set up will be undertaken by the BOC in the case of other pre-border import clearances: it validates such documents with the regulator. Second border formalities for selected products There is a subset of regulated products that require further examinations, which need to be undertaken outside of the BOC’s premises. These examinations comprise the activities undertaken within the second-border event of the cargo-clearance process. Plants or animals, which may require quarantine procedures to check on their safety, are brought out of the BOC to the designated farms by the BPI or BAI. Imported meats likewise are examined by the NMIS at their laboratory facilities outside of the BOC. In the case of non-agricultural products, the BPS requires these products to be brought to their designated warehouses where they physically check if these meet the safety standards and technical regulations of the Philippines. The BOC involves itself in only a subset of these products. In the case of quarantine examinations at the second border of BAI or BPI, the BOC has determined that the cargo clearance process has been completed upon its release of the animals or plants. If the BAI or BAI finds adverse findings in the shipment, then the agency knows how to dispose of the same. However in the case of imported meats, BOC and NMIS have a standing agreement that the products brought out for laboratory examination are not released yet by the BOC. Thus, if the examination comes up with an adverse finding the BOC is still liable for disposing of the same. Otherwise, it releases the imported meats to their importer. The BPS likewise sends a clearance to the BOC if after its examination in its warehouses it found the shipment compliant with the country’s standards and regulations. Only then does the BOC fully release the product to the importer. Therefore in the case of BPS or NMIS, there are second-border import clearances that the regulator sends to the BOC to complete the cargo clearance process. It is difficult to explain why the treatment by BOC of examinations outside of customs premises such as those by BAI or BPI on one hand, differs from its treatment of those undertaken by the NMIS or BPS. One possible explanation is that the BOC may have locked itself into agreements with these agencies at various points in time without a clear policy of how it should handle second border examinations, i.e. the practice has evolved through time. 44 Mission Report 1 August 2011 - 23 February 2012 In the case of exported products, the BOC verifies the authenticity of any pre-border export clearances presented by the exporter and if required may conduct a physical check at the border before loading the shipment on the ship. There are no second-border events for regulated exported products. Alternative process models The below additional table provides documentation of the steps within each event depicted by the Figure. At the same time, it presents the alternative variations of the generic cargo clearance process of regulated traded products. Six variations or models are identified. Model A has all three events and the BOC is involved at the second border event. Model B has all three events, but the BOC is not involved with any second border processes, and thus releases the cargoes to the importer/regulator. There are more than one trade regulators involved at the pre-border or 1st border events. The implication is that several import permits flow to the BOC, one for every trade regulator involved. This is clearly a case of overlapping mandates without any coordination among the regulators concerned. Model C is like Model B, except that there is only one regulator involved in all three events. Model D involves only the pre-border and 1st border events. Model’s E and F are the simplest of all. In E, only the pre-border formalities are covered, while only the second-border event, which involves BOC, falls under Model F. The events are lightly shaded to distinguish them from those steps that all traders have to do anyway, such as the filing of the import entry or export exit documents, or the payment of duties and taxes in the case of imported cargoes. It is important to note here that the Table does not provide all the steps for the cargo clearance process. It only highlights the way traded cargoes are treated in the overall cargo clearance process. From the information that Table I.2 provides, the BOC may have a better idea about the document flow it may expect from the regulators as it sets up the NSW system. Alternative Variations of the Cargo Clearance Process for Regulated Traded Products Models Events Pre-border Upon arrival of vessel Steps 1. Trader applies for import/export permit with supporting documents if required 2. Regulator processes application, resulting in: a. Issuance of permit to trader. Proceed to 3. b. Rejection of application. Process ends. 3. Trader files import entry or export exit document with BOC to secure the shipments upon its arrival. 4. BOC processes import entry and export exit documents by: F A B C D E x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x 45 Mission Report 1 August 2011 - 23 February 2012 First Border Payment of Duties/ Taxes and Release of cargoes 2nd border a. Verifying authenticity of import/export permit/certification, resulting in: i. Clearance of documents. If shipment is tagged as yellow lane. Proceed to 5. If tagged as red lane, proceed to 4b. In case of exports, clearance of shipment to be loaded to vessel and clearance process ends. Or: ii. Processing suspended. Process continues upon satisfaction of conditions to lift suspension. Go back to 4.a.i. Or clearance not granted with finality and process ends. b. Joint physical inspection by regulator and BOC of the shipment at the designated areas of customs premises, resulting in either: i) grant of clearance by regulator; or suspension of processing. Process continues upon satisfaction of conditions to lift suspension until clearance is granted. Proceed to 5. Or ii) clearance not granted with finality. Process ends. 5. Routing of documents to cash division for assessment/payment of duties/taxes, Processing continues like green lane shipments if not paying with tax credits. Proceed to 7. Otherwise proceed to 6. 6. Verifying authenticity of tax credits against certifications from regulator, resulting in either: a) BOC acceptance of tax credits; or b) Processing suspended until conditions for suspension are satisfied. After 6a or 6b, processing of documents proceeds like ordinary green lane shipments. Proceed to 7. 7. a) If shipment does not require any 2nd border inspection, BOC releases the shipment to the importer. Or b) If shipment requires 2nd border inspection and BOC is not involved in it, BOC releases the shipment to the importer/regulator. Proceed to 8. Or c) if shipment requires 2nd border inspection and BOC is involved in it, proceed to 9. 8. Regulator conducts examination/testing/quarantine, resulting in a) clearance of shipment and regulator releases shipment to importer; or b) rejection of shipment, which is then destroyed by the regulator in case of plants/animals, or not given clearance for sale in the domestic market. Process ends. 9. BOC conditionally releases the shipment to importer/regulator to be brought to the area designated by the regulator for quarantine, laboratory examination or inspection. x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x 10. Regulator conducts examination/testing/quarantine, resulting in a) clearance of shipment. Regulator sends clearance to BOC, which x finally releases the cargoes to importer. Or b) Rejection of x shipment, and BOC and regulator disposes of the shipment. Process ends. * B differs from C in that B involves several regulators in pre-border and 1st border, while C involves only one. Box 13. Dealing with melamine contamination in Chinese milk On September 22, 2008, then Philippine Bureau of Food and Drugs (BFAD) banned the importation and sale of Chinese dairy products in light of the melamine scandal. Melamine is a nitrogen-rich industrial chemical widely used in plastics. The chemical was used to increase the protein content readings of watered-down milk. In the middle of this controversy was the state-owned Sanlu Group, 43 % of which is owned by the New Zealand-based Fonterra Inc., who alerted the Chinese authorities about the incident in August 2008. BFAD’s Director Leticia Barbara Gutierrez said in her advisory “...in the interest of protecting 46 Mission Report 1 August 2011 - 23 February 2012 public health and welfare, directing all licensed importers and/or distributors of registered milk products sourced from China to immediately stop temporarily from further importing distributing, selling and offering for sale the aforesaid products. The ban stays “until further notice from BFAD. Under the Department of Health, BFAD, and now named Philippine Food and Drugs Administration (PFDA), is responsible to ensure the country’s safety regulations on food and drugs are enforced. BFAD selected a random sample of dairy products labeled “Made in China.” The collected samples were tested to determine any melamine contamination. Tests were also conducted on dairy products not manufactured in China because the possibility of containing ingredients from China. The DTI’s field offices along with the Department of Health ensured that consumers would not be sold melaminetainted dairy products. At the same time, local government units were asked to assist the agency in its endeavor by monitoring illegal importation of Chinese dairy products. BFAD directed all licensed importers and/or distributors of registered milk products sourced from China to immediately stop from further importing, distributing, selling and offering for sale these products. DTI Undersecretary Zenaida C. Maglaya asked supermarkets to pull out Chinese dairy products. The recall and temporary ban of imported dairy products from China have caused revenue loss to some distributors. MARS, Inc., Philippine distributor of the Snickers chocolates lost 30 million pesos when the melamine scare unfolded. Nestle Taiwan also faced a similar problem when six of its Chinaproduced products were removed from the shelves. The company estimated a loss of $31.15 million because of the Taiwan government’s decision. While the Sanlu Group, the center of the melamine scandal received a bankruptcy order in December 2008. The Philippines has a weak dairy industry. In fact, according to USDA, Foreign Agricultural Services (FAS) 2008 Annual Report, the country roughly produces a mere 1 percent of the total dairy requirements with the gap filled by imports. In fact, dairy products are the country’s second largest agricultural import after wheat. So, any dent on foreign dairy imports would greatly affect the Philippine market. According to the 2008 Philippine Dairy Update, the Philippine local milk production increased, as milk imports declined. The milk supply stood at 229.36 million kg and was 13 percent lower than the previous year’s supply of 264.82 million kg. Local production and exports grew by 2.83% and 6.22% respectively, while imports declined by 11.66 percent. Box 13. EU slaps stricter TBT rules on carrageenan Imposing stricter technical barriers to trade measures causes financial losses to both the exporting and the importing countries, with greater loss falling on exporting countries. Such was the case of the carrageenan exports of the Philippines to the European Union. The EU, the largest export market for carrageenan products imposed stricter regulations on such products. The new measures are to protect their citizens and resources of acquiring diseases that may be carried into EU by imported Carrageenan products. With this, Philippine exporters had difficulty complying with these stricter regulations since this would mean additional operating costs. Seaweed farming is currently the largest and most productive form of livelihood among the coastal population of the Philippines. Seaweed processing was recognized as an industry in 1996 when the unprecedented commercial exploitation of the fast growing Euchema seaweeds boosted the Philippines’ exports. Carrageenan products – “traditionally extracted carrageenan” or “refined carrageenan” and “semi-refined carrageenan” or “Philippines Natural Grade Carrageenan” are exported globally. The Philippines was the main producer of these products until 2003, when China started producing the seaweeds. Nearly 80 percent of global production comes from the Philippines. 47 Mission Report 1 August 2011 - 23 February 2012 The figure above represents the overall technical infrastructure of conformity assessment. This explains the procedures that the imported Carrageenan products are likely to be faced with while entering the export market – the EU. If the imported Carrageenan products would not pass this conformity assessment, the products would not be distributed to the local EU markets that mean that the Philippine-exporting companies would not be able to collect profits from the EU. The new trade rules on Carrageenan are TBT measures, and it is EU’s legal right to impose these. Having imposed a stricter set of regulations, the EU will not let products inside their territory if the products have not complied with prevailing technical regulations. The Philippine export products will then have a hard time entering the European Union territory, raising costs of business to the Philippineexporting companies. The Philippine-exporting companies and their importers in EU are penalized by the issuance of these stricter regulations. The EU companies that use Carrageenan products as raw materials had to temporarily close operations for lack of materials. Since the Philippines is the top producer of Carrageenan, having 80% share in global production, it had to incur bigger operating costs. They would rather lose a percent of their profit rather than stop exporting the Carrageenan products to the EU. 3.4 Customs Measures Customs authorities are responsible for the enforcement of the country’s laws and regulations at the border. The country’s customs capacity and policies are critical in facilitating trade. The implementation of all technical barriers to trade, regardless of whether the measures have been imposed and enforced by customs or not, involves customs authorities. This is so because the primary responsibility for the clearance of traded merchandise lies with customs. Trade regulatory agencies, other than customs, delegate completely or partially the enforcement of their respective TBTs to customs authorities. When customs duties have gone down to insignificant levels after several rounds of tariff negotiations, the key role of this public agency has been to facilitate trade. Focus is game is how much time is needed in order to clear one’s imports or exports through customs. One important dimension of customs’ contribution to trade facilitation is whether or not its cargo clearance procedures are streamlined, useful but simple, keeping compliance cost low for the importers and traders. The Revised Kyoto Convention (RKC) that entered into force in 1999 has incorporated important modern concepts, including the application of new technology (particularly the use of IT for electronic transactions), the implementation of new philosophies on Customs control (such as risk 48 Mission Report 1 August 2011 - 23 February 2012 management and post-transaction audit) and new cooperative arrangements with private sector partners. The agreement best practice in key operational fields including risk management; audit based controls; pre-arrival information; information technology; coordinated interventions; consultation with trade; information on Customs laws, rules and regulations; system of appeals in Customs matters. Central to the new governing principles of the revised Convention is the commitment by Customs agencies to provide transparency and predictability for all those involved in aspects of international trade. A second important customs related policy issue is the valuation of goods by customs. Since the 1950s, many countries assessed customs duties on the basis of the Brussels Definition of Value (BVD), which is "the price that a good would fetch in an open market between a buyer and seller independent of each other”, or a notional price instead of what the importer had paid for the good. Traders particularly disliked this method because customs authorities adjusted these notional values less frequently than actual market price movements. Moreover, the method failed to consider changes in the relative competitiveness of firms and the prices of new and unusual products. In 1995, the Uruguay Round Final Act included an Agreement on the Interpretation of Article VII, which among other provisions mandated all its members to adopt the transaction valuation procedure by 2000 at the latest for developing countries. The interpretative agreement provided as well various legally binding rules and procedures for the proper implementation of Article VII. The report discusses the challenges faced by the Philippine government and its responses when it legally enabled this agreement. Revised Kyoto Convention The Revised Kyoto Convention is regarded as the blueprint for modern and efficient customs procedures in the 21st century. Once implemented widely, it will provide international commerce with the predictability and efficiency that modern trade requires. The agreement has three parts, namely the body, general and the specific annexes. The management of the Convention, including its scope, ratification, application, dispute settlement and amendment are contained in the body of the agreement. The General Annex has 10 chapters of principles covering a wide area of customs concerns. These principles reflect the overall thrust of the RKC to make customs procedures efficient and simple. In chapter 3 on the clearance of goods, information needed for assessing and collecting duties or the application of customs law are limited to what is needed for the task. If physical examinations are to be undertaken, the samples to be drawn have to be ss small as possible. Customs declarant is responsible for the accuracy of the information stated in the customs declaration. Table 4. General annex provisions of the Revised Kyoto Convention Chapter 1: General Provisions · Implementation of provisions in Annex is to be specified in national legislation and is to be as simple as possible. · Customs administrations are to work with the trade community to increase cooperation. Chapter 2: Definitions · Definitions provided from “appeal” to “third party.” Chapter 3: Clearance of Goods · Goods declarations to only contain information necessary for assessment of duties and taxes, 49 Mission Report 1 August 2011 - 23 February 2012 statistical collection, and application of Customs law. · Declarant will be held responsible to Customs for the accuracy of information in the Goods declaration and the payment of duties and taxes. · Samples to be drawn as small as possible. · Customs to not impose substantial penalties for inadvertent errors and errors without evidence of fraud or gross negligence. · Customs administrations to coordinate operations at common border crossings (transitional standard). · Customs administrations and other government agencies to coordinate inspections (transitional standard). Chapter 4: Duties and Taxes (Assessment, Collection and Payment; Deferred Payment; Repayment) · National legislation to specify methods of duty and tax payment. · When national legislation specifies that payment due date may be after release of the goods, that date shall be at least ten days after release. No interest charged between date of release and due date. · Period for deferred payment of duties to be at least 14 days. · Repayment to be granted for defective goods or goods not in accordance with specifications at time of importation/exportation and are returned to supplier, if goods have not been worked, repaired or used. · Repayment decisions to be made without “undue delay.” Chapter 5: Security · Customs administrations to determine the level of security required. · If security is required, amount of security to be “as low as possible,” and, in respect of payment of duties and taxes, is not to exceed the amount potentially chargeable. Chapter 6: Customs Control and Risk Management · All goods entering or leaving Customs territory are under Customs control. · In application of Customs control, Customs Administrations to use risk analysis to determine who and what should be examined and the extent of examination. · Customs administrations to adopt a compliance measurement strategy to support risk management. · Customs control systems to include audit-based controls. · Customs administrations to seek to cooperate with the trade and to conclude Memorandum of Understandings to enhance Customs control. · Customs administrations to use information technology and e-commerce to enhance Customs control (transitional standard). Chapter 7: Use of Information Technology · New/revised national legislation to provide for: e-commerce alternatives to paper-based documentation requirements; electronic as well as paper-based authentication methods; the right of Customs administrations to retain information and share it with other Customs administrations through e-commerce. · Customs administrations to develop information technology in consultation with all relevant parties. · Customs administrations to apply info technology to support operations, when cost-effective and efficient for Customs and the trade. Chapter 8: Relationship Between Customs and Third Parties · Persons/entities are to have option of doing business with Customs directly or through a third party. · Third parties to have same rights as parties on whose behalf they act. · National legislation to set out rules/conditions for third parties – should not be different than rules 50 Mission Report 1 August 2011 - 23 February 2012 for persons/entities doing business directly with Customs. Chapter 9: Customs Information, Decisions and Rulings · Customs law information to be readily available. · Customs administrations to provide “as quickly and as accurately as possible” specific information requested by an interested party. · Adverse Customs decisions to provide reasons and to advise of right of appeal. · Customs administrations to issue binding rulings upon request. Chapter 10: Appeals in Customs Matters · National legislation to provide for a right of appeal in Customs matters. · Time limit to apply to requesting an appeal, and Customs administration to respond as soon as possible. · Customs appeals decisions to be in effect as soon as possible. In Chapter 4 on duties and taxes, it recognizes the right of a contracting party to spiffy the method of the payment of duties and taxes through a national legislation. It however made more stringent standards in favor of the importer. Payment due dates after goods release, if this is provided in the national legislation, has to be at least 10 days. Deferred payment timeline has to be at least 14 days from release. There are reimbursement provisions on defective goods or goods not in accordance with specifications and returned to supplier or if the goods have been worked, repaired or used. Any reimbursement has tob promptly made. If any security is required, the amount shall not exceed the amount potentially chargeable. The provisions in Chapter 6 have the potential of improving substantially customs procedures through an efficient risk management strategy. Customs control is applied following a risk analysis. The lane system in many customs areas in the world illustrates this principle. By doing risk analysis on cargoes entering the customs territory, customs authorities are able to determine the low from the high-risk cargoes, attaching color codes on them based on the cargo’s risk profile. The low risk go through the green lane system with hardly any control, while the latter undergoes either a document check (yellow lane) or document check with physical examination (red lane). In this way, the low risk cargoes are not necessarily subjected to unnecessary customs control. Another important innovation is the use of audit-based controls. Customs procedures before this have front loaded control procedures before releasing the merchandise, which increases the time of clearing cargoes. Post-release audits are encouraged in order to cut down clearance time. Lastly, working with the private trade is likewise promoted in order for customs authorities to understand better the risk involved, and to devise customs control procedures that may not unduly raise compliance costs. Automated and paperless customs procedures, as well as the use of e-commerce are the hallmark of the RKC. Automated customs procedures not only reduce cargo clearance time, they also facilitate risk analysis for improved customs control. The use of the national single window is an important innovation, which cuts down the use of paper-based transactions and time for validating the authenticity of documents supporting a customs declaration. The right of the importer to use third party to clear imported or exported cargoes is recognized. Third parties have the same rights as their principal. 51 Mission Report 1 August 2011 - 23 February 2012 Customs information needs to be easily accessible to parties concerned. Any request for relevant customs information or rulings needs to be provided promptly. Customs authorities have to provide reasons for any adverse rulings and advise the concerned traders of their right to appeal. A law has to enable the appeals procedures, and the appeals process has to have clear timelines from initiation to implementation of appeals decisions. Specific annexes The Specific Annexes contain standards and recommended practices. Contracting parties have the option to adopt the specific annexes or specific chapters under it. The specific annexes are divided into ten Chapters and have detailed guidelines for their implementation. If a contracting party decides to accede to a Specific Annex or a Chapter of a Specific Annex, it is bound to implement any Standards. 3.4.2 Customs valuation reform The WTO requires all members to use transaction value as the legal basis in assessing the dutiable value of imported merchandise. This is the price that importers actually paid or legally bound to pay for the goods they bring in to the country. Transaction values incorporate as well the other expenses necessary in making, exporting and bringing the merchandise into the territory of the importing country, which are not included yet in the price. Such expenses may include commissions and brokerage fees; cost of containers; and the cost of packing, whether for labor or materials; the cost of transport of the imported goods from the port of exportation to the port of entry in the Philippines; loading, unloading and handling charges associated with the transport of the imported goods from the country of exportation to the port of entry in the Philippines; and the cost of insurance. These other components of transaction values that normally are not observed at the point of importation may include the value of materials, components, parts and items incorporated in the imported goods; tools, dies, moulds and similar items used in the production of the imported goods; materials consumed in the production of imported goods; and engineering, development, artwork, design work, and plans and sketches undertaken elsewhere than in the country of importation and necessary for the production of imported goods. These cost items may also cover the amount of royalties and license fees that the buyer must pay, either directly or indirectly, in connection with the goods being valued, as a condition of sale of the goods to the buyer and the value of any part of the proceeds of any subsequent resale, disposal or use of the imported goods that accrues directly or indirectly to the seller. The WTO agreement prescribes a hierarchy of six (6) methods that customs authorities need to apply sequentially and conditionally in computing transaction values. Under method 1, the transaction value is the invoice value of the merchandise, as may possibly be adjusted for necessary expenses such as those described above. This method is inapplicable if: (a) the buyer and seller are related to each other and the relationship had an effect on the price of the imported merchandise; (b) there are restrictions as to the disposition of the imported merchandise where such restrictions influenced the price; (c) there are considerations that influenced the value of the merchandise such as if the transaction in question is tied to another between the two parties concerned; and (d) part of the proceeds obtained in the disposal and use of the merchandise by buyer would accrue to the seller of the good. 52 Mission Report 1 August 2011 - 23 February 2012 Customs authorities apply Method 1, if it is applicable to do so. Otherwise, they need to use Method 2, which is the transaction value of an identical good. If Method 2 could not be used because there is no identical good to calculate the value of, WTO members need to apply Method 3, and this is the transaction value of a similar good. The sequence goes on to Method 4 (Deductive value), Method 5 (Computed Value), and Method 6 (Fallback Value). Under method 6, if this is ever used at all, customs authorities are obliged to disclose how the fallback value was calculated. The agreement defines a clear process of computing transaction values. The likelihood is high the transaction value of an imported merchandise is obtainable under any of the first three methods. In laying down a clear process and enjoining all its members to abide by these rules, the WTO agreement reduces discretion, improves transparency and makes customs valuation procedure all over the world increasingly predictable. Accordingly, the agreement facilitates trade. Post entry audits are the primary tools of back end customs supervision and complement transaction valuation reform in reducing transaction cost. Customs supervision before this law entailed substantial transactions costs on the part of importers. Goods are held at the border until customs officials would have determined that the relevant laws and regulations had been complied with. Automation helped reduce these costs by streamlining import clearance procedure. However, the underlying philosophy of customs management then comprised the use of official minimum values. The gain for trade facilitation of automation was not enhanced because of valuation related differences between importers and customs authorities. While their thrust is to facilitate voluntary compliance, post entry audits serve as well to deter tax evasion and violations of customs and other regulations. In an audit, tax payment discrepancies may be discovered and the importer will be asked to settle his remaining obligations to customs authorities. Unless fraud is established, customs authorities regard these discrepancies as unintended mistakes and help importers to comply with the regulations. Post entry audits are a best-practice tool in today’s customs administration all over the world. The key result areas of this vision cover reduced transaction costs, increased compliance through voluntary disclosures, lower incidence of customs fraud, revenue assurance, and improved skills of customs personnel. The situation before the reform is limiting trade expansion in the sense that customs resources are overly focused on border enforcement with its consequent high transaction cost. Personnel have inadequate skills in gathering accurate commercial intelligence and managing risks, an outcome of out-sourcing these services to a pre-shipment inspection service provider. The costs of keeping the Bureau personnel continued to be expended even as the government paid for the services of the pre-shipment inspection company. With post-entry audits and the related modernization of customs administration using information technology, the agency’s personnel improve their skills and customs administration becomes more cost-effective, sensitive to client needs, as well highly adaptive to continuous change. In the present situation, the Bureau is faced with competing demands. On one hand, it is tasked to increased revenues to help reduce the fiscal deficit. But on the other hand, pressure is rising for trade facilitation. With post entry audits, the agency is better able to manage competing demands. Before audits were authorized, resources of the bureau were targeted at the border. Goods are kept within the customs zone until compliance with taxes and regulations is assured. This approach to customs supervision is inconsistent with the demand for higher trade facilitation. With post-entry audits and transaction valuation, resources of the agency are shifted to back-end control and ensure the accomplishment of revenue assurance and compliance with customs regulations. Importers 53 Mission Report 1 August 2011 - 23 February 2012 benefit from this shift through quicker release of their goods. Post-entry audits form a preventive net by undertaking a verification exercise to check the degree of compliance of the Bureau’s clients. There are at least four items of a transaction value that require a preventive net through post entry audits. In general, the following items of transaction values are difficult to determine at the border, as these ordinarily may not be reflected in the invoice. One item includes selling commissions, which are ordinarily paid after the goods would have been released from the customs zone. These costs are payable and thus are part of the transaction value of the imported merchandise. A second item comprises assists such as payment for the use of moulds owned by a third party and used in manufacturing the imported product. The assists are also integral to the transaction value of the good, but since typically the manufacturer/exporter is not paying for the assist but rather the importer, the payment is not reflected in the invoice and accordingly is a potential source of a revenue loss. Lastly, royalty payments and management fees are integral costs to producing the merchandise, but are ordinarily excluded in the invoice of the manufacturer/exporter. The purpose of a customs audit is to assess accuracy of valuation and tariff classification, ensure internal controls within company are sufficient for customs requirement, and gather commercial intelligence. Post entry audit is a systems-based type validation procedure aimed at helping importers or their brokers comply with customs laws and regulations. The compliance check is not about a particular import transaction but about the importer’s business processes in so far as these relate to complying with the customs rules and procedures. These processes include the order processing flow; the receipts and inventory control flow; and the payment flow. Auditors verify if the importers have adequate controls over their respective business processes of relevance to the importation of goods, and how consistent these are with customs regulations. Box 14. Trade facilitation and administrative cost effects of transactions valuation reform, Philippines Transaction valuation reform is regarded as a trade facilitation reform. By harmonizing valuation procedures across the world, the WTO, which spearheads the reform globally, sought to reduce uncertainty and prevent the erosion of market access through customs valuation procedures. In this section, the effect of the reform on importers’ transaction cost as measured by the time it takes to process imports through the Philippine Bureau of Customs and on the cost of customs administration procedures is evaluated. a) Effect on Import Processing Time A study was conducted for the Bureau of Customs with assistance from the Japan International Cooperation Agency (JICA) to measure the average time taken from arrival to release of cargo and identifying constraints affecting the implementation of these procedures (UPECON, 2003). The time required on the part of importers to their imported shipment cleared by the Bureau of Customs covers the duration from the time the vessel or aircraft carrying the import cargo arrives to the time it is leaves the customs zone. The framework of the study is pattered after the time measurement on the release of goods issued by the World Customs Organization in 2000. The sample comprised 16,770 randomly selected import entries in 3 ports, POM, MICP and NAIA, which were assessed and released from March 1 to 29, 2002, representing 4 percent of the total entries in 2002. Because the data obtained in this study reflects the post-transaction valuation reform, it is useful in estimating the effect of the reform on import processing time. Needed to complete the estimation is an estimate of the import processing time before the reform. A significant amount of time was required to get imported cargoes processed by the Bureau of Customs. The Table below shows the average time that lapsed from the arrival of goods to their release, 54 Mission Report 1 August 2011 - 23 February 2012 tracing the effect on the time interval of transaction valuation reform. The post-reform information of the Table is taken from UPECON’s benchmark time measurement study. The lapse time applies to all formal import entry shipments arriving at the Port of Manila, Manila International Container Port, and the Ninoy Aquino International Port. The import entries reviewed by the authors of the study were for year 2002. As for pre-transaction valuation reform, the interval of time is basically the same except for the duration between the arrival of the vessel and the lodgment. Under the pre-reform rules, lodgment could not take place until the CRF was available. Medalla et al. (1993) estimated that the delay from the time the vessel docked or the aircraft landed to when the import entry declaration is lodged ranged from a minimum of one day to a maximum of five days. Since the authors did not provide information about the frequency distribution of the delay, the information is provided as a range of estimates in the Table. The total lapse time from the arrival to release of goods ranged from 6.43 to 11.43 days before the transaction valuation reform and when Bureau required pre-shipment inspection. The interval dropped to 5.43 days when the customs valuation reform was implemented. The time saved ranged from 1 to 5 days, representing the delay in the arrival of the CRF from the time the goods had arrived in the country. Interval time from arrival to release of imported goods (in no. of days) Transaction valuation reform Pre--reform PostMaximum Minimum 9.31 4.31 3.31 Arrival of goods to lodgment Lodgment to assessment 1.01 1.01 1.01 Assessment to cargo clearancecargo clearance to payment Payment of arrastre fees to release Arrival of goods to release Pre- vs. Post-reform (time saved) 0.23 0.23 0.23 0.5 5.43 0.5 6.43 1 0.5 11.43 5 b) Administrative Cost Savings The Bureau of Customs terminated its pre-shipment inspection contract with SGS in March 2000. While there may have been other reasons for not renewing the contract, the decision was nonetheless consistent with the shift to transaction valuation in 2000. Even under R.A. 8181, the use of pre-shipment inspection, which was dedicated to setting the dutiable value of imported merchandise, was inconsistent with R.A. 8181 and R.A. 9135. If the decision had not been made, the Bureau of Customs was on shaky legal ground under a transaction valuation law. It is for this reason that one may view the decision to cancel the pre-shipment inspection as an integral component of the transaction valuation reform, and for which savings in administrative cost are substantial. The Bureau of Customs had saved the average of about US$ 68 per trade declaration. The savings came mainly from terminating pre-shipment inspection. Pre-shipment inspection focused on valuation issues, although used by many developing countries, is inconsistent with the provisions in the transaction valuation agreement. Thus the substantial savings in administrative cost can be attributed to the transaction valuation reform. 55 Mission Report 1 August 2011 - 23 February 2012 PART II. SELECTED CASE STUDIES 56 Mission Report 1 August 2011 - 23 February 2012 4. Trade in Goods and Rules of Origin Trade in goods has been the object of any trade liberalization effort, multilateral or preferential. Since 1947, the General Agreement on Tariffs and Trade (GATT) and its successor the World Trade Organization (WTO) have been working towards the lowering and/or removal of barriers primarily to trade in goods. After 8 rounds of negotiations, the GATT contracting parties had substantially reduced tariffs primarily on goods. It was only in the Uruguay Round (UR) that the GATT had brought trade in agriculture, textile and clothing under the disciplines of GATT/WTO. The Doha Development round (DDR) continues to address issues of tariff peaks, tariff escalation, unbound tariffs and high applied tariffs. The relatively slow and difficult multilateral trade negotiations, such as under the DDR, have motivated individual member countries to advance their trade liberalization agenda using preferential trade agreements. In East Asia, the surge of free trade agreements or FTAs, which began in the late 1990s, became part of a post financial crisis recovery agenda and of a push towards economic cooperation. A decade after, concluding FTAs have become a trade reform policy tool as well as a mechanism to improve and enhance market access. This section takes up the major principles, concepts and special agreements in goods trade; analyzes selected key issues in trade in goods and rules of origin; and concludes with three case studies. Definition of Terms7 Applied tariffs – the actual tariff that is levied on imports. Bound tariff – the highest tariff that a WTO member can legally impose on an imported good. It is documented in the WTO member’s schedule of commitments. Comparative Advantage (CA) – the capacity of a country to produce goods at lower relative cost compared to that of its trading partners. It may stem from higher labor productivity and/or relative abundance of primary factors used intensively in producing the goods in the country. Change in tariff classification (CTC) – a model for determining transformation in preferential rules of origin (RoO). A good acquires origin if the non-originating materials used undergo transformation as shown by changes in its harmonized system (HS) tariff classification: (i) change in chapter (CC) materials used are outside of the chapter under which a good is classified; (ii) change in heading (CTH) –outside of the heading; and (iii) change in subheading (CTS) – outside of the subheading. Effective Protection – the proportionate increase of domestic value-added, i.e. the value of primary inputs in producing a good, due to trade protection relative to its level in the absence of protection. Free Trade Areas - a group of at least two countries (or customs territories) that have agreed to eliminate trade taxes and other restrictive regulations of commerce on substantially all the trade between the constituent parties in products originating in such territories, except, where necessary, those measures allowed under Articles XI, XII, XIII, XIV, XV, and XX 8. 7 This part draws mainly from information materials, notes and papers of the WTO. Non-WTO sources are acknowledged individually. 8 Article XI- General Elimination on Quantitative Restrictions; Article XII –Restrictions to Safeguard Balance of Payments; Article XIII-Non-discriminatory Administration of Quantitative Restrictions; Article XIV – Exceptions to the rule of Non-discrimination; Article XV- Exchange Arrangements; Article XX- General Exceptions. 57 Mission Report 1 August 2011 - 23 February 2012 Free Trade Agreements (FTA) - a trade agreement that eliminates or at least reduces down to zero trade barriers on substantially all trade in products originating among members relative to non-member(s). There is no standard FTA; so members are free to negotiate and achieve scope in terms of more areas of liberalization and/or depth in terms of more commitments in one area of liberalization. The GATT - provided for the rules on world trade from 1947 to 1994 and presided over 8 rounds of trade negotiations. The first 7 focused mainly on reducing tariffs; the 8th-the UR, aside from reducing tariffs further, created the WTO, brought agriculture, textiles & clothing under the disciplines of GATT and secured agreements on services and trade-related aspects of intellectual property rights (TRIPS). See Appendix 1 for details on all rounds and their respective outcomes. The Harmonized Commodity Description and Coding System (HS)-an international nomenclature system for traded-goods for the purpose of standardization and comparison of tariffs, trade data and information across trading countries. The HS, developed and managed by the World Customs Organization (WCO), entered into force on 1 January 1988 and was amended 4 times, in 1992, 1996, 2002 and 2007. 5000 commodity groups are organized into 97 chapters using a 6 digit code: first 2 digit refers to a chapter; first 4 digit, a heading; and 6 digit, a subheading that is harmonized worldwide. The ASEAN Harmonized Tariff Nomenclature (AHTN),based on the HS, harmonizes ASEAN member countries HS up to 8 digits for better alignment in implementing AFTA’s preferential tariffs. Inter-industry trade-trade is an exchange of goods between industries driven by comparative advantage. e.g. Indonesia exports labor-intensive garments to Japan in exchange for capital-intensive tractors. Intra-industry trade (IIT) is an exchange of goods within an industry. Germany exports Mercedes Benz to Italy in exchange for Ferraris. This type of IIT is horizontal: two countries with similar factor endowments produce differentiated goods; trade is driven by economies of scale (supply side) and the love of variety (demand side). Most favored nation (MFN) tariff - the tariff applied by a WTO member country to all imports from all WTO members and is based on the principle of non-discrimination. Non-tariff measures (NTMs) - import restrictions other than import tariffs such as quantitative import limits, import licensing systems, sanitary regulations, prohibitions, etc. Appendix 2 reproduces a compendium by GATT/WTO. Many non-tariff measures are based on a legitimate goal (such as the protection of human health) and can be applied in a WTO consistent manner. Agreements such as the sanitary and phytosanitary (SPS) and technical barrier to trade (TBT) aim at allowing governments to take due care of these legitimate goals while minimizing the impact on trade and avoiding the temptation to use them as disguised protectionism. Non-tariff barriers (NTBs ) - refers to any non-tariff measure which is applied in a manner that protects the domestic industry from import competition. Preferential tariff-tariff, lower than the MFN, granted to members only of a preferential trade agreement such as customs union and FTAs. Margin of preference (MOP) – the difference between the MFN and preferential tariff. Revealed comparative advantage (RCA)9 – share of a country’s export of a given product x to its total exports in proportion to the total export of the world of the same product to total world exports. If the RCA exceeds one, the country is said to have a CA in the production of product x. Rules of origin (RoO) - a body of criteria and rules used to determine origin of a product. There are two types, namely non-preferential and preferential. The former is used in multilateral trade such as granting quotas, imposing anti-dumping and countervailing duties, safeguard measures, etc.; the latter is to determine whether or not a good qualifies for tariff preferences under preferential trade agreements (PTAs). 9 Ng, Francis and Alexander Yeats (2003) “Major Trend in East Asia: What are their Implications for Regional Cooperation and Growth : World Bank Policy Research Working Paper 3084. 58 Mission Report 1 August 2011 - 23 February 2012 Tariff - a tax or duty applied by customs authorities on imported goods. It may be specified as (i) a percentage of the value of an imported good or ad valorem; or (ii) specific, i.e. a fixed amount per unit, by weight or by piece. Tariffication – process of converting the protection accorded by a non-tariff measure into its equivalent tariff protection. Tariff binding – a legal obligation of a country not to set its tariff rate on a given imported product higher than a specified tariff or customs duty rate. Tariff escalation – a pattern of tariff rate protection where the tariff rates on imported products increase according to their respective degrees of processing, i.e. raw materials are accorded lower tariff protection than semi-processed products, which in turn are given lower protection compared to finished products. Tariff peaks - relatively high tariffs, at least 15 %, applied usually on politically sensitive products, when the rest of the tariff rates are Tariff quota/tariff rate quota - when quantities inside a quota are charged lower import duty rates relative to those outside. Technical barriers to trade (TBTs) -Technical regulations and standards prescribing specific characteristics of a product such as its size, shape, design, functions and performance, or the way it is labeled or packaged before it is put on sale. The difference between a standard and a technical regulation lies in compliance. Trade deflection - when a product of a non-FTA member is shipped through a low-tariff FTA partner to a high-tariff partner Traded-good – a good that is imported or exported. Tradable good - a good that can be imported or exported regardless of the trade regime or other prohibitive costs. e.g. live fish is a tradable good but due to its high perishability and transport cost, it is not traded or traded volumes are very limited. Value-added (VA) approach - a model in preferential RoO to determine substantial transformation. It is specified as value-content (VC) in FTAs: a good acquires origin if the total amount of originating materials or non-originating materials meets a certain threshold, usually defined as the difference between the FOB price and the value of non-originating materials expressed as a ratio of price. Vertical IIT (VIIT) - developing countries with relatively abundant labor using low-technology production, export the cheaper products in the global production chain. Developed countries with abundant capital and technology produced the more capital-intensive and/or technology-intensive products. 4.1. Principles, concepts and special agreements How did trade in goods get to become increasingly freer? After a long debate on the topic that started some 200 years ago, the theory of comparative advantage has become widely accepted to be the basis for expanding trade in goods. However, it was only in 1947 that GATT crafted the rules of the multilateral trading system. Armed with these rules as subsequently amended, improved and interpreted through the years, the GATT and now the WTO has governed and managed the multilateral trading system. This section takes up the most important principles, concepts and agreements applicable to the trade in goods. The principle of non-discrimination is provided in two articles of the GATT 199410: 10 GATT 1994 is the agreement under the WTO that governs the trade in goods. 59 Mission Report 1 August 2011 - 23 February 2012 (i) GATT Article I, the General MFN Treatment, provides that if a concession has been granted to any member, it must be granted to all WTO members, unconditionally and immediately. To all WTO members, the MFN treatment is obligatory; between a member and non-member(s), it is discretionary, i.e. a member may or may not grant MFN treatment to a non-member. (ii) GATT Article III, National Treatment (NT) on Internal Taxation and Regulation provides that when an imported good enters the customs territory of a WTO member, it must be slapped the same internal taxes and regulations as its locally produced substitute. The application of internal taxes and other internal charges, and laws, regulations and requirements affecting the internal sale, offering for sale, purchase, transportation, distribution or use of products, and internal quantitative regulations requiring the mixture, processing or use of products in specified amounts or proportions, should not be applied to imported or domestic products in a manner as to afford protection to domestic production. GATT Article II, Schedule of Tariff Concessions, refers to the specific tariff concessions and other obligations that members have agreed to implement. These respective schedules of trade concessions are either annexed to the Marrakesh Protocol or to Protocols of Accession in the case of non-founding members of the WTO. A schedule may be adjusted over time due to technical modifications, e.g. amendments on the Harmonized System (HS) of tariff nomenclature and/or withdrawal of concessions. Article XXVIII, Modification of Schedules11, describes the protocol for renegotiating previous tariff concessions. Modification or withdrawal of concessions is allowed but affected members should be compensated with concessions on other products. There are 3 types of members: (i) member with which the concession was initially negotiated; (ii) a member with the principal supplying interest; and (iii) members with substantial interest in such concessions. Negotiations should be held with members in (i) or in (ii) as the case may be and consultations are required with members in (iii). If an agreement is not reached, the affected members have the right to withdraw substantially equivalent concessions initially negotiated with the member modifying or withdrawing concessions. Article XXVIII bis Tariff Negotiations Negotiations may be conducted on a selective product-byproduct or those under multilateral procedures directed at substantial reduction of general level of tariffs. The following are considered concessions: (i) reduction in tariffs; (ii) binding of tariffs at existing levels or commitment not to increase beyond specified levels; (iii) binding against increase of low duties or duty-free treatment are concessions equivalent in value to reduction of high duties. GATT Article XXIV Territorial Application Frontier Traffic Customs Unions and Free Trade Areas allows the formation of preferential trading agreements (PTA) among country members given certain conditions. These include (i) the elimination and/or reduction of tariffs and NTBs on substantially all trade among the contracting parties of the PTA within a reasonable length of time; and (ii) not raising trade barriers against non-members after the formation of PTAs. Following the Interpretation and Understanding of Article XXIV issued by the WTO, the reduction and/or elimination of duties will be assessed by tariff line (in value and quantities) and by the overall 11 Hoda, Anwarul (2002) Tariff Negotiations and Renegotiations under the GATT and the WTO: Procedures and Practices. The source is also good reference material on the evolution over several GATT rounds of negotiations of the concept of initial negotiating rights. 60 Mission Report 1 August 2011 - 23 February 2012 assessment as indicated by the weighted average tariff rate and of customs duties collected. For trade barriers that are difficult to quantify and aggregate, the examination of individual measures, regulations, products and trade flows may be required. While the interpretation is silent on what is “substantially all trade”, the consensus among the members is that at least 90 % of trade is substantial12. The meaning of “reasonable length of time” in paragraph 5 (c) is interpreted as 10 years and should only exceed 10 in exceptional cases. Special and Differential Treatment (SDT) 13 confers special rights and leniency for DCs and LDCs, in effect, providing conditions for the exceptions to MFN principles and disciplines. There are about 145 SDT provisions in WTO agreements, interpretations and understanding on rules as well as in ministerial decisions, around 75 % of which were adopted at the end of the Uruguay Round. The various manifestations of SDT include: (i) Provisions aimed at increasing relative trade opportunities of DC members; (ii) members safeguarding the interests of DC members through actions taken or avoided; (iii) flexibility of commitments, actions and use of policy instruments, e.g. actions DCs may take through exemptions from disciplines and commitments applicable to members in general or reduced level of commitments DCs may choose to undertake relative to members in general; (iv) time bound exemptions from disciplines; (v) technical assistance; and (vi) provisions relating only to LDC members. SDT provisions permeate WTO agreements. The Agreement on Agriculture (AoA) together with decisions on net-food importing developing countries tops the list with 19 SDT provisions. Those on technical barriers to trade (TBTs) and subsidies and countervailing measures (SCM) tie up in the second place of agreements with 16 SDT provisions (see Appendix 3). An important SDT came out in November 1979 known as the “enabling clause” through a decision by the GATT entitled the “Differential and more favourable treatment reciprocity and fuller participation of developing countries”. The enabling clause is the legal basis for the Generalized System of Preferences (GSP), which has allowed developed countries to grant on a non-reciprocal basis special and more favorable treatment to DCs and LDCs. At the discretion of the country granting the tariff preferences, duties on specific imported goods coming from beneficiary DCs and LDCs are subject to zero or low tariff rates subject RoO and other conditions. The clause is also the basis for DCs to form FTAs among themselves and for the Global System of Trade Preferences (GSTP). The latter allows developing countries to exchange trade concessions among themselves. The Generalized System of Preferences (GSP) was adopted at United Nation Conference on Trade and Development (UNCTAD) in New Delhi in 1968. In 1971, the GATT contracting parties approved a waiver to Article I of the General Agreement for 10 years for the implementation of the GSP scheme. The scheme essentially contravenes Article 1 of the GATT 1994 on the most favored national treatment. The waiver to the MFN obligation was made permanent by the 1979 Enabling Clause, which allowed preference-giving countries to grant preferential tariff treatment to DCs and LDCs. Under GSP schemes of preference-giving counties, selected products originating in developing countries are granted reduced or zero tariff rates over the MFN rates. The least developed countries (LDCs) receive special and preferential treatment for a wider coverage of products and deeper tariff cuts. There are currently 13 national GSP schemes notified to the UNCTAD secretariat. The following countries grant GSP preferences: Australia, Belarus, Bulgaria, Canada, Estonia, the European Union, 12 Department of Foreign Affairs and Trade, Australian Government. Negotiating free trade agreements: a guide. WTO Document WT/COMTD/W/77/ Implementation of Special and Differential Treatment Provisions in WTO Agreements and Decisions. 13 61 Mission Report 1 August 2011 - 23 February 2012 Japan, New Zealand, Norway, the Russian Federation, Switzerland, Turkey and the United States of America. Following the AoA, which was a key outcome of the UR, the trade of agricultural products was placed under GATT disciplines to improve market access and reduce distortions. Prior to the UR, quantitative restrictions (QRs) and trade distorting subsidies were allowed on farm products. The AoA prohibits the use of NTBs (with a few exceptions), reduces tariff levels, converted NTBs to tariffs, and introduces disciplines trade-distorting domestic and export subsidies. It also set an agenda for continuing the reform of the world’s agricultural trading system. The Agreement on Textile and Clothing (ATC), another key outcome of the UR, had likewise placed the textile and garments sector under GATT disciplines. It abolished the network of export quotas in the sector that the Multifiber Arrangement (MFA) allowed. The ATC phased out the MFA in ten years ending in 2004. Information Technology Agreement (ITA 1) entered into force with the first staged reduction in tariffs occurring on 1 July 1997. The agreement provided for the elimination of tariff protection on all IT products covered and bound the tariff rates at zero. Existing NTBs on information technology (IT) trade were excluded in ITA 1, but are part of an on going trade negotiation under ITA 2. Participants need to satisfy 3 conditions to become a contracting party to the ITA. These are (i) all products listed in the Declaration must be covered, (ii) tariff protection on all IT products in the Declaration must be reduced to zero; and (iii) all other duties and charges (ODCs) must be bound at zero. 4.2 Issues in Trade in Goods and Rules of Origin When countries liberalize trade, reducing and/or eliminating tariffs is the first order of reform. It is contentious because changes in tariff protection reallocate gains and losses among producers, consumers and the government. In a small open economy, partial equilibrium analysis shows that imposing a tariff results in overall welfare loss, i.e. the gains to producers and government from tariff protection does not outweigh the losses of consumers. The residual loss, called the deadweight loss of the tariff measure, arises from the inefficiencies in both production and consumption arising from price distortions. Reducing and/or eliminating tariff protection removes these distortions and eliminates these inefficiencies. In FTA, tariff rates on the imports originating from any of the constituent members are reduced to very low levels and/or eliminated. However, each FTA member retains its set of MFN tariffs on their respective imports coming from non-members. The welfare gains to FTA members depend on the relative magnitudes of trade creation, i.e. high cost local production that is replaced by low-cost imports within the FTA and trade diversion, defined as lower cost imports from non-members that is substituted by higher cost imports from a member. There is downside. The rules of origin (RoO) are needed to balance the objective of preventing trade deflection and encouraging the utilization of preferences. If the RoO are too cumbersome, trade deflection is prevented but will result in low utilization of preferences. Moreover, RoO compliance increases transactions and implementation costs of producers and the government, respectively. 62 Mission Report 1 August 2011 - 23 February 2012 Tariff elimination modalities 14 In several rounds of trade negotiations under the GATT, tariff negotiations were conducted on a tariff line by tariff line. This changed in the Tokyo Round in the 1980s when the formula approach, subject to exceptions in favor of some members, was adopted. These exceptions had created the problem on tariff peaks in current Doha Development Round (DDR) negotiations. Both bound and applied rates continue to be high. The DDR’s new mandate is to reduce tariffs, and it includes the reduction of tariff peaks and tariff escalation as well as of NTBs in particular on products of export interest to developing countries. Product coverage is comprehensive and without a priori exclusions. More importantly however, the SDT principle in GATT Part IV, Article XXVIII bis - less than full reciprocity in reduction commitments and the 1979 Enabling Clause and all relevant principle still apply. Multilateral tariff negotiations use a “formula” approach for efficiency purposes due to the large number of members. Calibrating the cuts tariff line by tariff line bilaterally15 requires a long, tedious process of request and offer, which is disadvantageous to DCs with less bargaining power; moreover, the use of formula is more transparent since the tariff after the formula has been applied is known to all. The results using a formula are assessed using indicators such as (i) the average tariff; (ii) standard deviation (SD) of tariff rates, or the average deviation of the tariff profile from its mean; (iii) the coefficient of variation, defined as the ratio the SD and the average/mean, expressed in percentage; (iv) ratio of post-round to pre-round tariff per line; and (v) the escalation ratio - ratio of 2 tariff lines in the upper and lower spectrum of the tariff profile. The desired result is some lower the number in all indicators. A tariff-reducing formula can be linear or non-linear. Equation (1) illustrates a linear formula; it proposes to reduce tariff rates in fixed fraction, c, regardless of the initial rate. t0j is the initial tariff rate on a given import j, which could be the applied MFN rate, bound rate or any designated base rate on the imported product j; and t1j is the proposed tariff rate to be applied on the said product. Equation (2) generalizes the linear reduction formula. The parameter, a, is added to equation (1) to influence the level of percentage reductions. If it is positive, larger percentage reductions in higher tariff rates are observed, but depending on the value of the parameter, a, lower initial tariff may rise, which is an unexpected outcome of the tariff reduction process sponsored by the WTO. The formula nonetheless will reduce the variation of a country’s set of tariffs. Equation (3) illustrates the Swiss Formula, which is non-linear and was used for the first time during the Tokyo Round in the late 1970s and early 1980s. The reduction in the tariff on imported product j depends on a parameter a, which is a ceiling tariff rate, and the initial tariff, t0j. 14 Discussion on tariff elimination formula draws from WTO TN/MA/S/3/rev.2 April 2003, “Formula Approaches to Tariff Negotiations”, and Francois, Joseph and Will Martin (2002) “ Formula Approaches for Market Access Negotiations” Tinbergen Institute Discussion Paper. Both papers are suggested for further reading. The WTO paper contains different country proposals on the formula approach. 15 Prior to the Kennedy Round (see Annex 1), cuts in tariffs were negotiated line-by-line and bilaterally. 63 Mission Report 1 August 2011 - 23 February 2012 The formula is effective in reducing tariff peaks and can reduce higher tariff rates more in absolute and relative terms than lower rates. The proportional cuts in higher tariff will be larger relative to lower tariff - average tariff will decrease and so will the dispersal and tariff escalation ratio. Another significance of the formula is for countries with lower tariff rates to commit to further reductions. To implement the formula, countries negotiate over the values of a, and the base tariff rate, bound or applied. Once they agree on these parameters, members decide the period over which these cuts are spread to reach t1j. Tariff reduction in FTAs In FTAs, trade negotiations are more flexible relative to the WTO rounds because consensus building is easier in a smaller group. The best practices in Article XXIV is specific only about not raising trade barriers against third parties, and the time period, usually 10 years, within which tariffs should be eliminated. However, Article XXIV and its interpretation are silent on what constitute “substantially all trade”. While countries have some degrees of freedom to decide coverage, it is generally suggested that it should be as comprehensive as possible to minimize trade diversion while exemptions should be kept to a minimum to prevent the risk of increasing protection rates (Box1). What type of tariffs is used as base rates in trade negotiations? In FTA negotiations, the base rate used is the applied MFN rate but in WTO rounds, they are the bound rates. If bound rates are used, there are two problems, namely (i) a large percentage of DCs tariffs is unbound; and (ii) given that bound rates maybe larger than applied, their use as base rates will mean that some countries may not have to make any reductions at all in products with lower applied rates. DCs also argue that if applied rates are used as base rates in multilateral negotiations, it would be tantamount to penalizing them by compelling them to unilaterally reduce their tariff rates in their trade reform programs. But DCs should bear in mind that as bound rates are reduced, the policy space created between bound and applied rates will be less effective to pursue price stabilization and/or preventing inflationary pressures in the domestic economy. In calibrating tariff elimination in FTAs, the standard of unit used is the HS 6 digit. If substantially all trade is construed as 90% of total trade, how should 90% of trade be measured? Would that be (i) by tariff lines; (ii) by trade value, and if so, ex ante or ex post FTA value; (iii) by average applied tariffs; or (iv) by some combination of the above criteria? If it is by trade value, should the computation of (ii) be trade weighted? Box 1. Protection is relative and is never without real cost Effective protection indicates how the import tariff policies on output and inputs promote or penalize the value added of a given production activity, say exported processed fruits. Its formula is The tariff on sugar is 50 percent. Aside from increasing the cost of sugar to millions of consumers and other users, how does this level of tariff on sugar imports affect processed food (pf) exports? Processed fruits are exportable and the import tariff on the output is zero. The most important inputs are imported; their respective tariff protection rates and 64 Mission Report 1 August 2011 - 23 February 2012 percentage shares in the cost of processing fruits, ai,pf , are the following: Tariff rate (%) Percent of cost Sugar (s) 50 20 Paperboard (p) 1 5 Plastic packaging materials (ppm) 10 10 Weighted average tariff of inputs 11 If the tariff protection on fruit exports is zero, and the weighted average tariff on inputs is 11 %, regardless of the level of domestic or free trade value-added, effective protection, Ej, is less than 0, which indicates that the fruit export industry is being penalized at the expense of protecting the sugar industry. Countries may also use a positive list, whereby goods in it are up for cuts, while a negative list enumerates goods that are exempted from the tariff reduction process. Tariffs are reduced and/or eliminated using alternative modalities (Boxes 2a, 2b)16. The common practice in all ASEAN+1 FTAs with the exception of ASEAN-Japan Comprehensive Economic Program (AJCEP) is to eliminate/reduce tariff using a normal, sensitive and highly sensitive tracks, or even finer categories and their differences are mainly in the length of time over which cuts are implemented. A designated number of lines are excluded from the tariff reduction/elimination process, which is at the discretion of members. A transparent modality involves a positive as well as a negative list such as modality X in Box 2b. In FTAs with Japan, goods are grouped into more precise elimination modalities. The modality A in Box 2b, the elimination is upon entry into force. This is common to all Japan’s FTAs, since about 45 % of Japan’s MFN tariffs are already 0. However, most of the lines for phased elimination of up to 15 years are mostly in the agricultural and food sectors (Modality Bn). In negotiating FTAs, countries must offer concessions when it is requesting for access to a trading partner’s market due to reciprocity. If two countries have complementary trade structures, negotiations are easier since the CA of trading partners will lie in different industries and trade is inter-industry or between industries. If trade structures are competitive, a large portion of bilateral trade will tend to be in the same industries and both countries will be more hesitant to grant reciprocal market access. However, there are several types of IIT. In the mid-80s, production networks relocated from Japan, Korea and Taiwan to middle-income Southeast Asian (SEA) countries and China and as a result, a type of vertical intra-industry trade (VIIT)17 grew very rapidly (Box 3). Global competition has resulted in increasingly smaller slices of the global chain, from low-technology labor-intensive production, to high-tech skill-intensive design, and technology and capital-intensive production. IT products, electronics and telecommunications equipment are produced in these fragmented production networks around the world. Although this type of trade is within an industry, it is still be analyzed as an extension of the CA theory, i.e., countries that are labor-abundant and scarce in technology produce the labor-intensive parts while 16 N.B. The provisions in tariff elimination modalities are only similar in different FTAs. The normal track in ASEAN-Korea FTA (AKFTA) or other Japan FTAs may contain elimination modalities different from the one defined in Boxes 2a and 2b. 17 Ando, Mitsuyo (2006). The IIT figures in Box 3 is the Grubel and Lloyd Index and does not use the method suggested by Rahman (1991) to distinguish horizontal from vertical IIT; that it is the vertical type and not horizontal is inferred by its classification as parts both in SITC 759 and 764. 65 Mission Report 1 August 2011 - 23 February 2012 capital- abundant countries produce the technology-intensive and/or capital intensive tasks of the production process. It is highly likely that these products are covered in the ITA 1 where applied tariff are reduced and bound at zero; NTBs are taken up by an on-going negotiation on IT trade at the WTO. So, for these products, applied or preferential tariffs can’t be the source of advantage in market access and as trade approaches free trade conditions, trade will be driven by differences in costs. Box 2a. Normal track program of ASEAN 6 and China* 201 200 200 2005* 0 9 7 Box 2b. Selected tariff elimination modalities in Japan's FTAs immediate elimination A t > 20% 20 12 5 0 Bn 15% < t < 20% 15 8 5 0 C 10% < t < 15% 10 8 5 0 Q 5% < t < 10% 5 Stand still 5 0 0 R phased-elimination from base rate over n years tariff is fixed to a base rate increasing the quotas according to a schedule phased-reduction to a floor rate 0 0 X excluded from tariff cuts t < 5% Source: Annex 1, ACFTA t- MFN applied tariff Source: Legal Text of JPEPA, AJCEP and JVEPA Bn – elimination is in equal n installments ASEAN 6 – Indonesia, Malaysia, Philippines Thailand, Singapore and Brunei Ranking products for tariff elimination The group of commodities or sectors likely to be affected by tariff elimination/reduction comprises the import-substitution and import-competing industries. Past import substitution policy uses high tariffs, among other things, to protect new/infant local industries. It is argued that CA will be acquired after a learning period; thereafter, these industries will be ready to compete locally with imports and/or globally through exports, sans protection. CA, a condition where the relative price of a good is lower in one country in the absence of trade, is the basis for production specialization. Stated differently, the differences in pre-trade relative prices, driven by differences in costs in two countries for two goods is the basis for trade. To test the CA theory, pre-trade prices are needed but it is not observable; therefore, CA can’t be quantified directly. The Balassa revealed CA (RCA) goes around the problem by estimating CA as performance rather than as a measure of prices. It is intuitively appealing as it says a country’s CA is revealed through its exports rather than in price differentials. The data for estimating the index is also available in several international databases, one of which is the UN COMTRADE. Box 3. Intra-Industry Trade* (%) of ASEAN 4 with China SITC 759. Parts, nes of and accessories for machines of headings 751 or 752 SITC 764 Telecommunication equipment, nes; parts and accessories, nes 1987-1993 1993-2000 2001-2007 38 56 86 67 71 78 Source: Tan, E.S. ( 2009); SITC- Standard International Trade Classification * If IIT < 50% - it is considered inter-industry trade; if greater than 50%, is it IIT. SITC 751 Office machines; 752 Automatic data processing machines and units, thereof. 66 Mission Report 1 August 2011 - 23 February 2012 China’s IIT with ASEAN 4 – Indonesia, Malaysia, Philippines and Thailand - in SITC 759 and 764 increased from 56% and 71% to 86% and 78%, respectively from 1993-2007. China sources labor-intensive parts from SEA countries, capitalintensive and/or technology-intensive components from Japan and Korea, assembles them and exports the finished products to US and Europe. The indicator can help point out which products, sector(s) can or can’t compete, is “ready” or not, and/or should be excluded. Goods that are excluded from tariff cuts are generally termed sensitive, the definition of which may differ from country to country. The common considerations are products which affect domestic production, employment and incomes. In WTO, exemptions are granted using non-trade concerns such as food security. For sensitive goods, additional information or indicators are obviously needed. An extension of the Ricardian model consisting of n goods arranges CA in a decreasing order. In similar fashion, RCAs may be grouped into several categories: (i) RCA greater than 1 and increasing; (ii) RCA greater than 1 but decreasing; (iii) RCA <1 but increasing; (iv) RCA <1 but decreasing. It would appear that if the RCA is greater than one and increasing, the commodity or group of commodity belonging to one sector has CA indicates readiness to compete against imports or globally and vice versa, those with RCA<1 and decreasing should either received longer phased reduction and/or elimination or excluded from tariff cuts. Theory is powerful but has its limitations in real life. To bring the RCA closer to reality in the domestic and export markets, a further step and simple validation can be done by computing the market shares of the commodity in question in both markets. It’s possible that an increasing RCA does not translate into gains in market shares because a product, even with a high and/or increasing RCA, may have been edged out of in both markets partly or completely by other countries exporting similar products. The RCA’s source of appeal is also its source of weakness: the index is static and therefore, it does not convey information on changing conditions in trade and markets. The usual caveat remains - since RCA uses performance, the CA is revealed ex post not ex ante. In other words, it is a tautology; there is CA because the country was able to export. Since there are other policy concerns and effects in granting tariff cuts, additional data and information should be used together with the suggested indicator. Jan Tinbergen18 offers a timehonored credo in policy making: “If there are n objectives, there should be n tools”. An extension of the rule is suggested here - if there are n objectives without n tools, there should be at least n indicators to show the trade-off between n objectives. 4.3 Restrictiveness of CTC RoO19 Since the rules of origin (RoO) are known ex ante, their restrictiveness can be assessed based on the rules20 . The change in tariff classification (CTC) model of RoO confers origin if a good’s tariff classification changes either at the chapter, heading or subheading level. A CC (change in chapter) is more restrictive than a CTH (change in tariff heading) which in turn is more restrictive than a CTS (change in tariff sub-heading), hereafter, CC>CTH>CTS. The restrictiveness ranking is due to the number of production stages/processes needed to transform an input, with the change at the 18 The first Nobel Laureate in economics, 1969. Source: Tan , E.S. (2011) “ Comparative Market Access in Japan’s Bilateral FTAs (unpublished) Research Paper submitted to East Asian Development Network. 20 The argument detracts from ex post restrictiveness analysis, which requires cost and production data. 19 67 Mission Report 1 August 2011 - 23 February 2012 chapter level requiring the greatest transformation, lesser at the heading level and least at the subheading level. The logic of the CTC argument rests upon one assumption: all HS chapters are constructed uniformly, i.e., a final good and its immediate raw materials/inputs are in the same chapter. Hence, a CC is more restrictive than CTH because the raw materials that are already in the same chapter will be automatically excluded. Extending the logic, a CTH is always more restrictive than a CTS if all headings are uniformly designed, i.e. that is if a final good and all its possible raw materials/inputs are in the same subheading. If the condition is uniformly true in chapter, heading and subheading, then the restrictiveness ranking CC>CTH>CTS is true across all chapters of the HS. The uniformity condition is unlikely to be satisfied for two reasons. (i) Some products are simpler and some are more complicated to produce; while it may possible for the simpler goods to have all their input in one chapter, it would not possible for the more complicated goods. (ii) Some HS chapters contain a finish product and most of its raw materials: e.g. chapter 24, Tobacco; Chapter 50, Silk; Chapter 51, Wool; and Chapter 52, Cotton. Some HS chapters are devoted entirely to differentiated finished goods: e.g. Chapters 61-63 Clothing and garments; Chapter 57, Carpets. An example of a situation where CC>CTH involves the following. If a CC is imposed on cigars (HS 24.02), it would require a producer to use an input outside of Chapter 24, that is Chapter 6 (Live trees and other plants) and or Chapter 12 (Oil seeds and oleaginous fruits; miscellaneous grains, seeds and fruits; industrial or medicinal plants; straw and fodder). A CTH is less restrictive because the producer can just import or buy the leaves, dried and cured (HS 24.01) which is within the same chapter, then, blends and rolls them into cigars (HS 24.02). CC is more restrictive due to the greater transformation needed if the raw materials were to come from Chapters 12 and 24 rather than from HS 24.01. An example of a situation where both CC and CTH are equally difficult to comply, hereafter CC=CTH, is HS 0901.22 Roasted coffee, not decaffeinated. Why? All raw materials that may be used for HS 0901.22 are classified in only one heading HS 0901. So requiring HS 0901.22 to change heading and to change chapter means the same thing, that the raw materials should be wholly obtained or produced. If the argument is extended, in this particular situation, the CC, CTH and the wholly obtained RoO are equally restrictive. The difficulty of comparing restrictiveness of RoO, let alone ranking them, renders the comparison of multiple preferential market options difficult Case Studies on RoO Case A. Comparative Market Access under Different Trading Regimes Prior to the conclusion of regional and bilateral FTAs, SEA countries have only two market access options for Japan’s market, that is, through WTO membership and Japan’s GSP scheme21. From early to late 2000, more options became available after the conclusion of several FTAs. The objective of this illustration is (i) to analyze the different market access conditions provided by different trading regimes; (ii) to demonstrate the difficulty of comparing, ex ante, the restrictiveness of RoO among 21 Japan originally established its GSP on August 1971 and since then there has been 4 decennial schemes: (i) August 1971 to March 1981; (ii) April 1981 to March 1991; (iii) April 1991 to March 2001; (iv) April 2001 to March 2011; and (v) the current scheme which is effective until 31 March 2021. Beneficiaries are broadly grouped into developing and least developing countries. 68 Mission Report 1 August 2011 - 23 February 2012 and within models; and (iii) market access gained from FTAs do not necessarily translate to actual market shares. Some background information and assumptions are provided to ensure a focused analysis: (i) As a result of the FTAs, two key factors that affect market access are analyzed: the tariff elimination modality, the MOP, and the RoO that accompany preferences; an ex ante analysis is possible because information on factors are given and known in advance. (ii) A lower preferential rate or higher MOP improves market access while a more difficult or more restrictive RoO reduces market access. (iii) All other factors that affect market access are held constant. (iv) There is no reason to argue that behind the border measures such as SPS and TBTs have become more difficult to comply as a result of FTAs. If ever these factors come into play, it will only be known ex post, i.e., during the implementation phase. (v) Indonesia, Malaysia, Philippines, Thailand and Vietnam are all developing country beneficiaries of Japan’s GSP and all were WTO members since 1995 except Vietnam which became a member in 200722. The commodity for this illustration is HS 0901.22 Roasted Coffee, decaffeinated. Prior to 2008, Indonesia, Malaysia, the Philippines and Vietnam can export the said good through the MFN tariff 12% or the GSP rate, 10% with the RoO CTH (Table 4.1). The CTH actually means raw materials used must be produced in the exporting country, wholly produced or obtained. Why? All raw materials for coffee and its finished products are classified and grouped into one heading, HS 0901 only. Therefore, it is not possible for the raw materials of coffee to change heading within Chapter 9. The only way to comply with the CTH is to grow coffee in the country. Singapore and Brunei are not GSP beneficiaries, their only option is to export under the MFN rate but they need not comply with the CTH 23. Table 4.1. Comparative Market Access Conditions in Japan Under Different Trading Regimes, HS 0901.22.000 (Roasted Coffee, decaffeinated) MFN MFN Tariff 20072011 Implementation Date 1/ Tariff Elimination Modality Product specific rule (PSR) Base Rate Preferential Rate 2007 2008 JapanSwitze rland EPA GSP JPEPA AJCEP JVEPA JMEPA JTEPA JIEPA JapanMexico EPA 2011 2008 2008 2009 2006 2007 2007 2005 2009 B7 Rt B15 R R R B4 B3 CC RVC 40 CC CC CTS 10 12 10 10 12 8.75 11.8 na 5 2.5 12 CTH 2/ 10 10 22 The illustration excludes Cambodia, Lao PDR and Myanmar to simplify the analysis. Myanmar is a founding member of the GATT. Cambodia is a recent WTO member, while Lao PDR is completing its accession process to the WTO. All three have different GSP status from the other ASEAN member countries. 23 Non-preferential RoO in WTO establishes a good’s origin for purposes of imposing countervailing duties but is not an additional condition that accompanies the MFN tariff. 69 Mission Report 1 August 2011 - 23 February 2012 2009 2011 2012 2015 2018 2024 10 10 7.5 5.0 3.8 0 11.6 11.3 11.1 10.6 10 9.4 8.1 7.5 5.6 3.8 0 0 0 3/ 9 3 0 Source: Tan (2011) and additional author's compilation and computation; All information as of 30 October 2011. AJCEP - ASEAN Japan Comprehensive Economic Partnership; GSP - Generalized System of Preferences JPEPA - Japan Philippines Economic Partnership Agreement; JMEPA - Japan Malaysia Economic Partnership Agreement JIEPA - Japan Indonesia Economic Partnership Agreement; JTEPA - Japan Thailand Economic Partnership Agreement JVEPA - Japan Vietnam Economic Partnership Agreement; B7 - tariff is reduced in equal installments until zero from base rate; B15 - tariffs is reduced in 16 equal installments from base rate to zero. R (t) Duty is reduced in 11 equal installments from base rate to 10% ; 1/The current GSP scheme started April 2011 but the first decennial started in 1971. In AJCEP, for Japan and Vietnam-December 2008; For Japan and Malaysia – January 2009; For Japan and Thailand - June 2009; for Japan and the Philippines, July 2010; For Japan and Indonesia - not yet in force. 2/ Source: Tokyo Customs. Since Chapter 9 was excluded in the list of processed product for which the condition foreign country acknowledgement is specified, the general rule of CTH applies. 3/ R: JTEPA - parties will negotiate in the 5th year on improving market access conditions R: JIEPA - parties shall negotiate improving market access conditions on the occasion of the general review R: JMEPA - parties shall negotiate improving market access conditions Towards the early to mid 2000, Japan concluded 7 bilateral Economic Partnership Agreement (EPA), with Brunei (JBEPA), Malaysia (JMEPA), Indonesia (JIEPA), Thailand (JTEPA), Philippines (JPEPA), Singapore (JSEPA) and Vietnam (JVEPA), and a regional FTA with ASEAN, ASEAN-Japan Comprehensive Economic Partnership (AJCEP), adding two preferential market access options. An EPA with Mexico and Switzerland were also concluded in 2005 and 2009, respectively. For the Philippines, conditions changed in 2008. In JPEPA, the elimination modality for HS 0901.22 is B7, duty is reduced in 8 equal installments until it reaches 0; in AJCEP, it is R(t) – the base rate is reduced in 11 equal installments until it reaches the 10% floor rate. In 2011, the Philippines is confronted with 3 preferential market access options: (i) JPEPA-5% and CC; (ii) AJCEP-11.3% and RVC40; and (iii) GSP 10% and CTH (Table 4.1). Since JPEPA offers the lowest preferential rate, is the RoO-CC equally restrictive with CTH and RVC40? Generally, CC is more difficult to comply relative to CTH which in turn is more difficult relative to CTS, but not in this case. Why? Raw materials for roasted coffee, decaffeinated are all in one heading 0901; a CTH and a CC means the same thing, that is, the raw materials must be wholly produced or obtained. Hence, JPEPA clearly provides better market access relative to the GSP: a lower preferential rate with RoO that are equally restrictive. AJCEP defines RVC as the difference between FOB price and the value of non-originating materials (VNM) is expressed as a ratio of FOB. From equation (4), RVC 40 is attainable if VNM is reduced to its minimum or as much originating materials are used. Diagonal cumulation in AJCEP allows the importation of HS 0901.11, the major raw material for HS 0901.22 by an ASEAN country from any ASEAN country and is treated as an originating good. By processing HS 0901.11 with as little VNM, RVC 40 will be attainable. It is difficult to compare the CTC approach with the RVC model: both CC and CTH are generally associated with 70 Mission Report 1 August 2011 - 23 February 2012 transformation qualitatively but RVC is directly associated with the use of more originating materials rather than transformation. In this particular case, both CC and CTH requires greater transformation: after coffee (HS0901) has been purchased from a farmer/trader, the producer must roast and decaffeinate for the finished product to be classified as 0901.22. In RVC40, the producer may import HS 09011 coffee, not roasted or HS 09012 coffee roasted to comply with RVC40. There is no guarantee that the RVC40 will require greater transformation relative to CC or CTH in this case. So a Philippine exporter of coffee will most likely choose JPEPA’s options since it has the best preferential rate relative to the GSP and AJCEP. Moreover, the preferential rate will be zero by 2015, substantially higher relative to AJCEP. But this is not all there is to it to market access: preferences in other bilateral FTAs are relevant because Indonesia, Malaysia, Thailand and Vietnam all produce coffee and all are Philippine’s competitors in Japan’s market. In JMEPA and JIEPA, the modality is Rfor further negotiations; in JTEPA, the modality R stipulates a negotiation on market access 5 years after the entry into force of JTEPA, that is 2012. In JVEPA, modality is B15, that is the tariff will be reduced in 16 equal installments from base rate until 0. The preferential rate under JVEPA will only be equal to that of JPEPA by 2024. JPEPA has the best market access options among SEA in 2011. Do market access options translate to actual market shares in Japan’s market? Table 4.2 depicts a different situation. From 2006 to 2010, Switzerland had the largest market share for HS 0901.22, before and after the conclusion of its bilateral EPA with Japan. In 2011, Mexico’s preferential rate is the best -free, followed by Switzerland- 3% and then Philippines-5%. However, the RoO CTS applied on Switzerland’s exports is the least restrictive-the easiest relative to CC and CTH. Why? It only calls for a change in a subheading instead of a CTH or CC: this means Switzerland, which does not grow coffee, can import coffee HS 0901.11 coffee, not roasted, not decaffeinated from any country, process it and export it under HS 0901.22. It can comply with the RoO of CTS because the non-originating raw material has changed subheading, from 0901.11 to 0901.22 Does Switzerland’s market access in Japan’s improve? Yes, through a lower price of HS 0901.22 since the duty is increasingly lowered from 9% in 2009 to free in 2012. Other exporters gain market access either through MFN and/or GSP. Table 4.2. World Market Shares in Japan's Imports of Roasted Coffee, Decaffeinated Trading Regimes/Preferential Tariff and RoO Total Imports (US$ M) World (% ) 2006 2007 2008 2009 2010 0.6 2.7 3.1 2.7 2.9 100 100 100 100 100 51.6 74.8 78.8 71.0 74.7 15.6 7.2 1.2 18.7 17.5 DC GSP-10%/CTH 5.6 5.7 3.6 5.3 6.9 DC GSP-10%/CTH 26.6 - 0.9 1.7 - 7.5 8.0 1.0 0.1 - 0.1 0.9 - - 0.6 0.7 0.3 0.1 0.2 0.4 - 0.3 0.1 - 0.4 Switzerland Bilateral FTA/3%-CTS 1/ US MFN Brazil Papua New Guinea Italy MFN Guatemala DC GSP-10%/CTH Ethiopia LDC/GSP/free Indonesia JIEPA/AJCEP/GSP10% /CTH Mexico Bilateral FTA /free-CC 1/ 1/ - Kenya DC GSP-10%/CTH - Colombia DC GSP-10%/CTH 0.1 United Kingdom MFN 0.5 6.6 4.5 Source: Author's compilation and computation Trade Data - UN COMTRADE; 1/ Details in Table 2.1.1. 71 Mission Report 1 August 2011 - 23 February 2012 DC- developing countries; LDC- least developed countries The illustration ends with some questions for further analysis. Why was the Philippines, with the 3rd best MOP that will eventually increase to 10% in 2015 and by then, at par with Switzerland, not able to export HS 0901.22 to Japan? What are the export constraints? Why were the preferences not offered to or not requested by Indonesia and Malaysia? Case B: Rules of Origin (RoO) for Garments in ACFTA and AKFTA 24 The objective of this case is to show (i) an identical RoO for the same product across two FTAs do not have the same restrictiveness for the same producer; (ii) a product with an alternative RoO will ease the difficulty and does not depend on whether or not the alternatives are equally restrictive. One of the most commonly used RoO in ASEAN regional and bilateral FTAs is the regional value content (RVC) 40. The ease or difficulty in complying with VC rules depend largely on whether or not the raw materials structure of a producer uses more originating or non-originating goods and is partly eased by the leniency provisions of bilateral or diagonal cumulation, as the case may be. The case uses secondary data from the Philippine Bureau of Customs (BOC). Details were either altered or omitted to protect the identity of the producer. Local materials are assumed to be nonoriginating, since there was no additional information to determine their source, i.e., if they were locally produced or locally purchased imported raw materials. Table 4.3 shows the unit production cost of a Philippine garment producer. Table 4.3. Unit Production Cost of Philippine Garment Producer HS 6106.10/Description Women's/girls blouses and shirts, of cotton, knitted Concise explanation of the process Cutting, Sewing, Embroidery, sometimes washing of fabrics Breakdown of Ex Factory Cost/Price Ex Factory Price (FOB) Ex Factory Cost Materials Imported Yarns- China Fabric – Japan Fabric – China Buttons – US Zipper- US Local* Labor Overhead Total Factory Cost 10 5.02 0.8 2.5 1 0.3 0.42 1.14 0.79 1.15 8.1 Source: Philippine Bureau of Customs 24 Source: Tan, E. S. (2008). 72 Mission Report 1 August 2011 - 23 February 2012 If the garment producer wants to export HS 6106.1000 to China to avail of the preferences under the 25 ACFTA, he must pass the RVC40 or the PSR. The formula for RVC40, also defined as ACFTA content is The total value of non-originating materials (VNM) is 4.36, materials from US, and Japan and 1.14 local materials. Since there are no additional information on raw materials from China, there is an implicit assumption that yarns and fabric from China, a total of 1.8 are originating goods. Applying the above equation (2), the ACFTA content of the Philippine exporter is 56.4%, greater than the 40% required, with a comfortable lead of 16.4%. The PSR of ACFTA is inconsequential because he has passed one of the alternative rules. See Table 4.4. Table 4.4. Simulation Results on Garments, ACFTA General RoO Product Specific Rule (PSR) RVC40% Manufacture through the processes of cutting and assembly of parts into a complete article (for apparel and tents) and incorporating embroidery or embellishment or printing (for made-up articles) from: raw or unbleached fabric; finished fabric VNM Fabric – Japan Buttons – US Zipper- US Local Total VNM VOM Yarns- China Fabric – China Total VOM VNM in ACFTA ACFTA Content (%) = (1(VNM/FOB))*100% 2.5 0.3 0.42 1.14 4.36 0.8 1 1.8 4.36 56.4 Source: Tan, E. S. (2008) PSR is from the first package. If the same producer wants to enjoy the preferences granted in AKFTA, he has to comply with the PSR, which is a CC plus some process or RVC40 (See Table 4.5). Rule 4 of Annex 3 in AKFTA allows for two methods to arrive at RVC40. The illustration chooses the build-down method to make it comparable with equation (1). The RVC formula in AKFTA is shown in equation (4) and must be at least 40% to qualify for preferences. All imported raw materials are non-originating under AKFTA: yarns and fabrics from China and Japan are considered non-originating as well as the rest of the raw materials. Total VNM is 6.16 and RVC is 25 Rule 4, Annex 3, Rules of Origin for the ACFTA. 73 Mission Report 1 August 2011 - 23 February 2012 38.4% - less than the required 40%. To meet the RVC40%, the producer must limit his VNM obviously to 6 or increase his use of originating good by .16. He can switch the source of zipper – from the US to any member of AKFTA. But this requires searching for a new supplier just to comply and or pass the RVC40% of AKFTA and involves search and transactions costs; the circumstances can be aggravated if the new supplier within AKFTA has a higher cost. Then, trade diversion, not deflection, is compounded by additional compliance cost and higher raw materials cost. What are other options does the producer have? The de minimis rule does not apply to the VC method but to CTC only. However, in AKFTA, there is an alternative RoO other than RVC40, which is CC plus the good is both cut and sewn in the territory of any Party. The fabric and yarn used are classified in Chapter 50, and after the additional process of cutting and sewing in the Philippines, the finished product for export – garments - is now classified in chapter 61. So he passes the alternative RoO provided in AKFTA. The simple simulation demonstrates very clearly that identical RoO of RVC40 - in two FTAs is not equally restrictive relative to one producer of one product. Two, diagonal cumulation using the RVC rule may allow the same exporter to pass the RVC rule but may entail an increase in compliance and raw materials costs. Three, the provision of an alternative RoO in AKFTA allows the same producer to gain access to Korea’s market without changing his raw materials structure. His only compliance cost is to secure another CO to certify that he has passed the alternative RoO by meeting the specific process rule. Table 4.5. Simulation Results on Garments, AKFTA RoO: CC+ or RVC40 Cumulation De minimis Change to Heading 61.06 from any other Chapter, provided that the good is both cut and sewn in the territory of any Party; or A regional value content of not less than 40 percent of the FOB value of the good Diagonal For Chapters 50-63, the weight of all non-originating materials used in its production that do not undergo the required CTC does not exceed 10% of the total weight of the good. VNM Yarns- China Fabric - Japan Fabric – China Buttons – US Zipper- US Local* 0.8 2.5 1 0.3 0.42 1.14 Total VNM 6.16 RVC (%) in AKFTA = (1-(VNM/FOB))*100% 38.4 Source: Tan, E. S. (2008) Case C: Special and Differential Treatment (SDT) for Philippine Rice in WTO Case C illustrates (i) that while a developing country can avail of SDT, any changes in its schedule of commitment must be accompanied by compensatory concessions as provided in GATT’s Article XXVIII and XXVIII bis; and (ii) and how commodities used for compensatory concessions are decided upon. 74 Mission Report 1 August 2011 - 23 February 2012 The WTO AoA, concluded in 1995, required all agricultural QRs to be converted to tariffs and/or tariff rate quotas (TRQs), albeit with exceptions. When the Philippines acceded to the WTO in 1995, it committed to eliminate all agricultural QRs and import restrictions, except rice: the government’s request for exemption is based on special treatment on market access for predominant stapes provided in Annex 5 of the AoA. Nevertheless, the condition for the exemption is that minimum access volumes (MAVs) have to be provided equivalent to 1% of domestic consumption with average of 1986-1989 as base period and such MAVs will be increased to 4% of domestic consumption over in the final year of implementation. Table 4.6 shows the details of Philippines’ commitment on rice. In 2005, the Philippine government submits a modification of its schedule for the purpose of extending the SDT on rice as provided for in Paragraph 9 of Annex 5, AoA. The request was for an extension of the SDT status of rice up to June 2012. As a result, negotiations with interested WTO member countries were initiated. On 15 June 2007, the Philippines reduced the MFN rates on mechanically deboned meats from 40% to 5% as compensatory concessions to WTO member for the requested 7-year extension of the special treatment on rice (Table 4.7). At present the Philippine government is requesting a second extension of the SDT status on rice for another 3 years. Table 4.6. Philippine Commitments on Rice (Section 1 B - Tariff Rate Quotas) (1) Description Rice In the husk (paddy or rough) Husked (brown) rice (4) Final Quota Quantity and In-quota tariff rate Implementation Period 1006.10.00 (3) Initial quota quantity and in-quota tariff rate 59, 730 MT 119,460 MT 1995 / 1999 NFA * * ST –Annex 5 50% 50% 1006.20.00 119,460 MT 238,940 MT 2000 /June 2005 NFA* * ST –Annex 5 1006.30.00 50% 238,940 MT 50% 350,000 MT July 2005/2012 NFA* * ST –Annex 5 1006.40.00 50% 40% (2) HS Other Terms and Conditions Semi-milled or wholly milled rice, whether or not polished or glazed Broken Rice ** * ST –Annex 5 Source: WTO Document (G/MA/TAR/RS/99) 08 July 2005 * National Food Authority (NFA) has the first right to import minimum market access (MMA) volumes in accordance with the food security policies of the Philippines. ** Please note that columns (3) and (4) cover all products described in columns (1) and (2). *** No country was stated with Initial negotiating rights (INR). Table 4.7. Tariffs Rates on Mechanically Deboned Meat (E.O. 627) AHTN DESCRIPTION Before EO 627 AHTN DESCRIPTIO N EO 627 (2007) Present 2011 75 Mission Report 1 August 2011 - 23 February 2012 Table 4.7. Tariffs Rates on Mechanically Deboned Meat (E.O. 627) AHTN 02.07 Before EO 627 DESCRIPTION Meat and edible offal, of the poultry of heading 01.05, fresh, chilled or frozen. AHTN 02.07 - Of fowls of the species Gallus domesticus: 0207.14.90 0207.14.90A 0207.14.90B - - - Other: 0207.14.90 - - - - Other, In-Quota - - - - Other, OutQuota 40 0207.14.90 A 0207.14.90 B 40 0207.14.90C - Of turkeys: 0207.27.90 0207.27.90A 0207.27.90B DESCRIPTIO N Meat and edible offal, of the poultry of heading 01.05, fresh, chilled or frozen. - Of fowls of the species Gallus domesticus: - - - Other: ---Mechanically deboned or separated meat - - - - Other, In-Quota - - - - Other, Out-Quota EO 627 (2007) Present 2011 5 5 40 40 40 40 5 5 30 40 40 40 - Of turkeys: - - - Other: 0207.27.90 - - - - Other, In-Quota - - - - Other, OutQuota 0207.27.90 A 0207.27.90 B 0207.27.90 C 30 40 - - - Other: ---Mechanically deboned or separated meat - - - - Other, In-Quota - - - - Other, Out-Quota Source: Tariff Commission Two related questions are posed: (i) Should the MFN rates on mechanically deboned meat revert back to its levels before E.O. 607 in case the Philippines does not get the SDT extension in 2012? (ii) If it should stay at its post E.O. 607 levels, does it mean the three-year extension on the SDT status of rice can be had without any additional compensatory concessions? Appendix 4.1. GATT/WTO Rounds Name of round Geneva Annecy Torquay Period/number of parties 1947 23 countries 1949 33 countries 1950 34 countries Subjects and modalities Outcome Tariffs: item-by-item offerrequest negotiations Concessions on 15,000 tariff lines Tariffs: item-by-item offerrequest negotiations 5,000 tariff concessions; 9 accessions Tariffs: item-by-item offerrequest negotiations 8,700 tariff concessions; 4 accessions 76 Mission Report 1 August 2011 - 23 February 2012 Geneva Dillon Round 1956 22 countries 1960-1 45 countries Kennedy Round 1963-1967 48 countries Tokyo Round 1973-1979 99 countries Uruguay Round 1986-1994 103 countries in 1986 117 as of end1993 Doha Round 2001-? 150 countries as of beginning 2007 Tariffs: item-by-item offerrequest negotiations Modest reductions Tariffs: item-by-item offerrequest negotiations, motivated in part by need to rebalance concessions following creation of the EEC. 4,400 concessions exchanged; EEC proposal for a 20 percent linear cut in manufactures tariffs rejected Tariffs: formula approach (linear cut) and item-by-item talks. Nontariff measures: antidumping, customs valuation. Average tariffs reduced by 35 percent; some33,000 tariff lines bound; agreements on customs valuation and antidumping Tariffs: formula approach with exceptions. Non-tariff measures: antidumping customs valuation, subsidies and countervail, government procurement, import licensing, product standards, safeguards, special and differential treatment of developing countries. Average tariffs reduced by one third to six percent for OECD manufactures imports; voluntary codes of conduct agreed for all non-tariff issues except safeguards. guards. Tariffs: formula approach and item-by-item negotiations. Nontariff measures: all Tokyo issues, plus services, intellectual property, pre-shipment inspection, rules of origin, traderelated investment measures, dispute settlement, transparency and surveillance of trade policies. Average tariffs again reduced by one third on average. Agriculture and textiles and clothing subjected to rules; creation of WTO; new agreements on services and TRIPs; majority of Tokyo Round codes extended to all WTO members. Tariffs: formula approach and item-by-item negotiations. Nontariff measures: trade facilitation, rules, services, environment, Source: Hoekman and Kostecki (2001) Appendix 4.2. WTO/GATT Inventory of Non-Tariff Measures Parts and Section Part I A B C D E Part II A B C Description Government Participation in Trade and Restrictive Practices Tolerated by Governments Government aid Countervailing duties Government procurement Restrictive practices tolerated by governments State trading, government monopoly practices, etc. Customs and Administrative Entry Procedures Anti-dumping duties Valuation Customs classification 77 Mission Report 1 August 2011 - 23 February 2012 D E F G Part III A B C Part IV A B C D E F G H I J K L Part V A B C D E F Consular formalities and documentation Samples Rules of origin Customs formalities Technical Barriers to Trade General Technical regulations and standards Testing and certification arrangements Specific Limitations Quantitative restrictions and import licensing Embargoes and other restrictions of similar effect Screen-time quotas and other mixing regulations Exchange control Discrimination resulting from bilateral agreements Discriminatory sourcing Export restraints Measures to regulate domestic prices Tariff quotas Export taxes Requirements concerning marking, labelling, packaging, etc. Others Charges on Imports Prior import deposits Surcharges, port taxes, statistical taxes, etc. Discriminatory film taxes, use taxes, etc. Discriminatory credit restrictions Border tax adjustments Emergency action Source: WTO Document TN/MA/S5, 11 September 2002 78 Mission Report 1 August 2011 - 23 February 2012 Appendix 4.3. SDT Provisions, by Agreements and Types Agreement (i) Provisions aimed at increasing the trade opportunities of DC Members (ii) Provisions that require WTO Members to safeguard the interests of DC Members (iii) Flexibility of commitments, of action, and use of policy instruments (iv) Transitional time periods 9 1 (v) Technical assistance (vi) Provisions relating to measures to assist LDC members Agriculture and Decision on NFIDCs Application of SPS Measures Textiles and Clothing Technical Barriers to Trade TRIMS Implementation of Article VI of GATT 1994 Implementation of Article VII of GATT 1994 and Decision on Texts Relating to Minimum Values and Imports by Sole Agents, Sole Distributors and Sole Concessionaires Import Licensing Procedures SCM 14 1 4 2 1 TRIPS Understanding on Rules and Procedures Governing the Settlement of Disputes. GATT 1994 Art XVIII GATT 1994 Art XXXVI GATT 1994 Art XXXVII GATT 1994 Art XXXVIII Enabling Clause 2 3 1 5 1 5 3 6 1 1 1 2 7 2 6 1 16 1 4 1 1 1 8 2 4 1 2 2 3 2 Safeguards GATS Total 8 1 1 1 2 2 7 1 1 4 6 16 1 2 2 1 7 1 3 6 1 2 11 3 3 1 8 4 3 2 6 8 2 5 7 1 2 1 4 79 Mission Report 1 August 2011 - 23 February 2012 Appendix 4.3. SDT Provisions, by Agreements and Types Agreement Decision on Measures in Favor of LDCs Waiver preferential tariff treatment of LDCs Total (i) Provisions aimed at increasing the trade opportunities of DC Members 12 (ii) Provisions that require WTO Members to safeguard the interests of DC Members 49 (iii) Flexibility of commitments, of action, and use of policy instruments 30 (iv) Transitional time periods 18 (v) Technical assistance 14 (vi) Provisions relating to measures to assist LDC members Total 7 7 1 1 22 145 Source: WTO (2000) NFIDCs - net food importing developing countries SPS- Sanitary and Phytosanitary; TRIMs - trade related investment measures GATS - General Agreement on Trade Services SCM - Subsidies and countervailing measures TRIPS- trade related aspects of intellectual property rights There are no SDT provisions on pre-shipment inspection and RoO Article VI Anti-Dumping and Countervailing Duties Article XVIII -Government Assistance to Economic Development Article XXXVI - Part IV Principles and Article XXXVII -Commitments; XXXVIII - Joint Action Objectives 80 Mission Report 1 August 2011 - 23 February 2012 References Ando, Mitsuyo (2006). Fragmentation and Vertical Intra-Industry Trade in East Asia. The North American Journal of Economics and Finance, Volume 17 No.3 Francois, Joseph and Will Martin (2002) “ Formula Approaches for Market Access Negotiations” Tinbergen Institute Discussion Paper. How to Design, Negotiate, and Implement a Free Trade Agreement in Asia. ADB 2008. Ng, Francis and Alexander Yeats (2003) “ Major Trend in East Asia: What are their Implications for Regional Cooperation and Growth : World Bank Policy Research Working Paper 3084. Negotiating free-trade agreements: a guide. Department of Foreign Affairs, Australian Government. Tan, Elizabeth S. (2008) “RoO Regimes of (LSR) June 2008. Two ASEAN + 1 FTAs. Loyola School Review Tan, Elizabeth S. (2007) “Rules of Origin in Philippine Free Trade Agreements” Project Paper submitted to PACT (Partnership and Advocacy for Competitiveness and Trade). unpublished. Tan, Elizabeth S. (2011) “Japan’s Bilateral and Regional FTAs: Comparative Market Access by Southeast Asian Countries” Research Paper submitted to East Asian Development Network (unpublished). WTO Document “Implementation of Special and Differential Treatment Provisions in WTO Agreements and Decisions. WT/COMTD/W/77. 25 October 2000. WTO Document “ Formula Approaches to Tariff Negotiations” TN/MA/S/3/Rev2 11 April 20003. WTO Document TN/MA/S5, 11 September 2002. WTO Document (G/MA/TAR/RS/99) 08 July 2005 81 Mission Report 1 August 2011 - 23 February 2012 5. Trade in Services Services have become an important part of today’s global trade, and in fact have grown the fastest compared to that of the trade in goods or that of the global economy. In the Philippines, remittances by Filipino overseas professionals and workers and the vibrant growth of its business process outsourcing industries have left an indelible mark of the importance of services trade to its economy. The country continues to look for new market opportunities for its services industries, and to take advantage of current multilateral and preferential trade negotiations to attain this objective. Realizing their importance to the economy, the government has not lacked in the effort of crafting and implementing innovative approaches to attract foreign direct investments (FDIs) into the its territory. In the following, the nature and measurement of services, as well as the principles, disciplines and rules governing the trade in services are taken up. With the underlying focus to provide technical assistance towards cultivating a more productive participation in multilateral of preferential trade negotiations, this paper looks at the procedure followed in services trade negotiations, and assesses the issues arising in such negotiations. 5.1. Introduction The Nature of Services Service is “the action of helping or doing work for someone”26. Being a process or activity, services are intangible, in contrast to goods, which are tangible. Services are as varied as the needs they satisfy as well as the creativity of humans that provide them. Most services have to be consumed and produced at the same time. This simultaneity requires the proximity of user and provider, which implies that either the user must be at the point of provision or the provider is at the point of final consumption. Some services facilitate the exchange of goods and are embedded in them. Other services are specific to or customized for the client. Noting the difficulty of encapsulating services within a simple definition, the Manual of Statistics on International Trade in Services (MSITS) 2010 uses the System of National Accounts’ (SNA)27 definition that services are the “result of a production activity that changes the conditions of the consuming units, or facilitates the exchange of products or financial assets”. (SNA 2008, paragraph 6.17) The former are transformation services, and the latter, margin services. Transformation services are outputs produced to order, while margin services occur when the 26 Oxford English Dictionary. Wikipedia captures the various aspects of services in its “generic… concise… definition” of service as a “set of one time consumable and perishable benefits • delivered from the accountable service provider,…., • effectuated by ...distinct activities of individuals, ….., • commissioned …by the service customer….., • rendered individually to an authorized service consumer….., • and finally, consumed and utilized by the triggering service consumer... 27 The MSITS is the internationally-agreed conceptual framework for countries to structure their statistics on international services trade. The SNA is the international statistical standard for the national accounts adopted by the United Nations Statistical Commission and is also a conceptual framework. MSITS is described in the section on Measurement. 82 Mission Report 1 August 2011 - 23 February 2012 supplier facilitates the change of ownership of products, services, or assets between two other entities. The outputs are not separate entities over which ownership can be established, cannot be traded separately from their production, and must have been provided to the consumer by the time their delivery is completed. (SNA 2008, paragraph 6.21) Services have assumed increasing importance in all economies, as shown in their substantial contribution to Gross Domestic Product, e.g., 73% in high-income, 54% in middle-income, and 47% in low-income countries in 2009 (WTO 2010). Services tend to be subjected to intense regulation, for reasons specific to the nature of the activity. One particular aspect being addressed is market failure, that is, when the allocation by a free market is not efficient. There are 4 cases where this usually arises: in a natural monopoly, for a public good, where there are externalities, or if information is asymmetric28. A natural monopoly is formed when the costs of establishing the service are such that it is most efficient for provision to be concentrated in one supplier. This is due to sizeable capital requirements or a high ratio of fixed to variable costs, creating substantial economies of scale relative to the size of the market. Prime examples are water or electric utilities, railways, or pipeline distribution. A public good29 is a term used in economics to denote that which may be consumed simultaneously by multiple individuals without diminishing its value to each individual (nonrivalry) and where it is not possible to exclude any individual from enjoying the service whether s/he pays for it or not (non-excludability). Since non-excludability leads to free-riding, if everyone free-rides, no one will pay for the good to be produced, leading to a loss in social welfare where everyone is worse off. With non-rivalrous consumption, no single beneficiary obtains benefits sufficient to cover costs, resulting in underinvestment. Free markets thus under-supply public goods and provision is usually done by government. Examples are law enforcement, national defense, flood control systems, highways, street lights, public parks, sanitation. An externality is another economic term for the spill-over effect to third parties of the production or consumption of a good or service, which is not monetized. Positive externalities increase the utility of third parties at no cost to them, while negative externalities lower the utility of third parties involuntarily. The outcomes are not optimal from the viewpoint of society as a whole, i.e., they create a divergence between private and social costs of production. Since parties to the transaction may either not bear all the costs or reap all the benefits, too much or too little of the service is provided relative to the overall costs and benefits to society, resulting in market failure or no incentive to prevent the inefficiency. Examples of positive externalities come from infectious disease control, education, research, public safety, or clean-up initiatives; negative externalities are pollution, congestion, or systemic risk in banking. Network externalities occur when an additional user of a service affects its value or benefit to others; it is positive when more users make the service more useful, and negative if the benefits decrease as the number of users increases. (Network effects are economies of scale on the 28 See N. Gregory Mankiw, Principles of Economics (6th ed., 2011) for full explanations of these. A public good is not the same as a public service, which is defined as government-provided service. Not all public services are public goods, as it is possible to exclude users. Public goods are also not necessarily provided by government only. 29 83 Mission Report 1 August 2011 - 23 February 2012 demand side in contrast to classical economies of scale, which are on the supply side.) The most familiar examples of positive network externalities are found in telecommunications such as telephone systems, software, or social networking websites. Information asymmetries occur when one party to the transaction has an information advantage over the other. This imbalance can cause market failure. Either of two behaviours is possible. For adverse selection, a high-risk party takes advantage of the asymmetry because the disadvantaged party is unable to screen him out, e.g. purchase of medical insurance. For moral hazard, risky behaviour takes place because the disadvantaged party is unable to monitor or retaliate, e.g. recklessness after insurance is obtained. Regulations are also imposed on services in order to ensure quality, and equity of access. This is particularly the case for health, education, and other social services. Transport and telecommunications services are also subjected to universal service obligations. Trade in services is expanding and deepening. The share in total world trade of commercial services, i.e. excluding government services, was recently estimated to be 21% (WTO 2010). This is expected to grow with the movement of goods, information, capital and other resources, as technology changes, and as processes become more specialized in this increasingly complex and interconnected world. Further Readings: • Copeland, B. and A. Mattoo, “The Basic Economics of Services Trade”, in Mattoo et al. eds., A Handbook of International Trade in Services, World Bank, 2008 • Mattoo, A. and R. Stern, “Overview”, in Mattoo et al. eds., A Handbook of International Trade in Services, World Bank, 2008 The General Agreement on Trade in Services (GATS) International trade in services became subject to multilateral, legally-enforceable rules under the General Agreement on Trade in Services (GATS) in 1995, in response to the growth of services over the previous three decades and the potential for even more trade resulting from developments in communication. The GATS is a comprehensive yet flexible instrument that provides a rules-based framework to ensure predictability, transparency, and progressive liberalization. It has become the reference point for negotiating regional, plurilateral, or bilateral trade agreements, as it requires such agreements to have substantial sectoral coverage and eliminate substantially all discrimination in those sectors, that is, observe the “GATS plus” principle. The GATS defines trade in services as the supply of a service • from the territory of one Member into that of another (Mode 1 or cross-border supply) • in the territory of one Member to the service consumer of another (Mode 2 or consumption abroad) • by the service supplier of one Member through commercial presence in the territory of another (Mode 3 or commercial presence) 84 Mission Report 1 August 2011 - 23 February 2012 • by the service supplier of one Member through the presence of natural persons in the territory of another (Mode 4 or movement of natural persons). Supply of a service includes production, distribution, marketing, sale, and delivery of a service. The GATS applies to measures of Members affecting trade in services. A measure may be a law, regulation, rule, procedure, decision, administrative action, or any other form, imposed by central, regional, or local governments and authorities, and by non-governmental bodies in the exercise of powers delegated to them by the former. A measure may be in respect of (i) the purchase, payment, or use of a service; (ii) access to and use of services which are required by those Members to be offered to the public generally; (iii) the presence, including commercial presence, of persons of a Member in the territory of another Member. Excluded by the GATS from coverage are services supplied in the exercise of governmental authority, that is, supplied neither on a commercial basis, nor in competition with other service suppliers. On the condition that their manner of application does not discriminate or disguisedly restrict trade, measures are allowed that protect public morals, maintain public order; safeguard human, animal, or plant life or health; secure compliance with laws including the prevention of deception and fraud, protection of privacy of personal and confidential data, or promotion of safety; protect national security; or are temporarily needed when there is a serious balance of payments difficulty. A sector-specific exception to the GATS is specified under the Annex on Air Transport Services, namely air traffic rights and directly related services. This exception is subject to periodic review. Otherwise the GATS applies to aircraft repair and maintenance, marketing of air transport, and computer-reservation services. The Council for Trade in Services oversees the implementation of the GATS and reports to the General Council. State of play The GATS mandates that Members enter periodic negotiations in order to achieve progressively greater liberalization. For each round, negotiating guidelines and procedures are first established. The process of progressive liberalization is then advanced in each round through bilateral, plurilateral, or multilateral negotiations, thereby increasing the general level of specific commitments under the GATS itself. Commitments are bound. The latest round began in 2000. In 2001 the Guidelines and Procedures for the Negotiations on Trade in Services were adopted; services negotiations also became part of the “single undertaking” under the Doha Development Agenda (DDA), that is, all subjects under negotiation were to be concluded at the same time. A March 2003 deadline was set for receiving initial offers. In 2004 the July Package revived negotiations and reset the deadline to May 2005. The Hong Kong Ministerial Conference in December 2005 reaffirmed the key principles of negotiations, but the Doha negotiations were suspended in July 2006. Negotiations resumed in January 2007. A Services Signalling Conference was held as part of the July 2008 package, for Members to indicate what they would be willing to include in their revised offers. Negotiations slowed down in 2009 however, due to the failure to conclude agriculture and non-agriculture market access 85 Mission Report 1 August 2011 - 23 February 2012 (NAMA) modalities, which were part of the July 2008 package. In 2010 the General Council called for the intensification of DDA negotiations across all areas. (www.wto.org) The April 2011 report of the Chairman of the Council for Trade in Services noted the following achievements and remaining gaps in the four main areas of services negotiations: (a) for market access, progress has been limited since July 2008; (b) for domestic regulation, intensified negotiations produced notable progress, even if disagreement lingers on basic issues; (c) for GATS rules on emergency safeguard measures, government procurement and subsidies, technical work continues but there seems to be no convergence on the expected outcome; and (d) for implementation of LDC modalities, Members support a waiver permitting preferential treatment for LDCs but there are disagreements on the scope of the waiver and rules of origin for services and service suppliers. (www.wto.org) Further Readings: • Background information, documents, analyses, sectoral studies, and developments in the • • • • • • GATS are available at www.wto.org. Asian Development Bank, How to Design, Negotiate, and Implement a Free Trade Agreement in Asia, 2008 Fink, C. and M. Molinuevo, East Asian Free Trade Agreements in Services: Roaring Tigers or Timid Pandas?, World Bank, 2007 Mattoo, A., R. Stern, and G. Zanini, eds., A Handbook of International Trade in Services, World Bank, 2008 – a compilation of detailed discussions of the GATS, economics of services trade, measurement, services sectors, and negotiations. WTO, “The General Agreement on Trade in Services: An Introduction,” March 2006 WTO, GATS - Fact and Fiction WTO, “Services Negotiations Under the GATS: Background and Current State of Play,” Trade in Services Division, Oct 2009 Regional and Bilateral Agreements on Trade in Services Aside from the GATS, which is a multilateral agreement signed upon the country’s accession to the WTO, the Philippines is party to a regional trade agreement, the ASEAN Framework Agreement on Services (AFAS), several agreements between ASEAN and Australia and New Zealand, People’s Republic of China, Republic of Korea, Japan, and India, as well a bilateral agreement, the Philippine-Japan Economic Partnership Agreement (PJEPA). Signed in 1995, the ASEAN Framework Agreement on Services is the enabling legal framework for ASEAN Members to eliminate substantially restrictions to trade in ASEAN services and expand the depth and scope of liberalization beyond those undertaken under the GATS (i.e. to be GATS-Plus), with the objectives of improving the efficiency and competitiveness of ASEAN services, diversifying capacity, and realizing a free trade area in services. The AFAS is consistent with the GATS and refers to the GATS provisions when necessary. An “ASEAN Minus x” formula in the implementation of commitments was adopted in 2003, in which countries could liberalize a sector without having to extend the concessions to non-participating countries. (www.asean.org) In 2003, ASEAN declared economic integration to be its goal through the establishment of the ASEAN Economic Community (AEC) by 2020. The AEC Blueprint was adopted in 2007 to 86 Mission Report 1 August 2011 - 23 February 2012 strengthen the institutional framework and achieve a unified legal identity through a rules-based system; the deadline was also reset to 2015. Priority integration sectors were identified, 5 of which are in services, i.e. healthcare, air travel, tourism, e-ASEAN, and logistics. (www.asean.org) Similarly to the GATS, the AFAS requires Members to negotiate on measures affecting trade in specific service sectors, the results of which are reflected in schedules of commitments. There have been several rounds of negotiations already, yielding 8 packages of AFAS commitments. The ASEAN has also signed a number of trade or economic partnership agreements with other countries that cover services as well. 1. 2. 3. 4. 5. Agreement on Trade in Services of the Framework Agreement on Comprehensive Economic Cooperation between ASEAN and the People’s Republic of China, signed in January 2007. There is a separate agreement on investment. A First Package of Commitments was signed and a Second Package is ready. Agreement on Trade in Services under the Framework Agreement on Comprehensive Economic Cooperation among the Governments of the Member Countries of ASEAN and the Republic of Korea, signed in November 2007, with an additional annex on financial services. There is a separate agreement on investment. A first package of commitments is available. Agreement Establishing the ASEAN-Australia-New Zealand Free Trade Area (AANZFTA), signed in February 2009. There are chapters on trade in services, movement of natural persons, electronic commerce, investment, and annexes on financial services and telecommunications. There is a schedule of commitments on specific services, and one on the movement of natural persons. Agreement on Comprehensive Economic Partnership among Member States of the ASEAN and Japan (known as AJCEP), signed in April 2008. Trade in services is covered in Chapter 6 and Article 50, while investment provisions are found in Chapter 7 and Article 51. Framework Agreement on Comprehensive Economic Cooperation between the Republic of India and ASEAN was signed in October 2003. An Agreement on Trade in Goods was signed in August 2009. Negotiations on services and investment began in 2008 and were targeted for completion in 2010. The Philippine-Japan Economic Partnership Agreement (PJEPA) aims to facilitate the free flow of goods, persons, services, and capital between the Philippines and Japan and strengthen existing economic relations. It was signed in September 2009. Concessions under this bilateral agreement are to be annexed to and not re-negotiated under the AJCEP Agreement, since the latter was to be negotiated as a whole. Trade in services is covered in Chapter 7, Investment in Chapter 8, and Movement of Natural Persons in Chapter 9. Annex 5 on Financial Services, Annex 6 is the Schedule of Specific Commitments and MFN Exemptions, Annex 8 gives the Specific Commitments for the Movement of Natural Persons. PJEPA provides standstill obligations or liberalization in such services sectors as air transport, maritime transport, health-related and social services, banking, telecommunications, tourism and travel-related services, and outsourcing (design, architecture, motion picture production, etc). For investment, PJEPA guarantees national treatment, most-favored-nation treatment, prohibition of performance requirements, and transparency through the specification of exceptions to these. PJEPA allows 87 Mission Report 1 August 2011 - 23 February 2012 the Movement of Natural Persons for short-term business, professionals, skilled workers, qualified nurses and caregivers. Entry is made easier through language training, guidelines on the exercise of profession, streamlined processing of applications, and possible extension to other professions. Mutual recognition of education, experience, licenses and certificates, may be done through harmonization or granted unilaterally. (ASec 2011) Further Readings: • Focus on the Global South, “The Road to JPEPA: How the Philippine Government Negotiated the Controversial Trade Deal with Japan”, www.focusweb.org, 29 Sept 2008 • Mattoo, A., and P. Sauve, “Regionalism in Services Trade”, in Mattoo, A. et al., eds., A Handbook of International Trade in Services, World Bank, 2008 • Stephenson, Sherry M., “Regional versus Multilateral Liberalization of Services,” World Trade Review, Vol. 1 Issue 2, 2002. Classification of Services Sectors Although countries are allowed to use any classification system when they submit their schedules of commitments, two systems are commonly used: the Services Sectoral Classification List (MTN.GNS/W/120) and the Central Product Classification (CPC). The CPC was developed by the United Nations Statistics Division in the mid-1970s to provide a framework for the international comparison of statistics dealing with goods, services, and assets. It is based on the physical characteristics of goods or the nature of the services rendered, and is an exhaustive and mutually exclusive system of categories for all products and services that can be the object of a transaction or entered into stocks. It is the first international classification of services to cover the whole spectrum of outputs of service industries. (UN 1991) The CPC consists of sections (first digit), divisions (first 2 digits), groups (first 3 digits), classes (first 4 digits), subclasses (all 5 digits). The first version of the CPC was approved in 1989 and Version 2 was completed in 2008. (http://unstats.un.org/unsd) The Services Sectoral Classification List (hereinafter referred to as W/120) was prepared by the WTO Secretariat in 1991. It is a comprehensive list of sectors and sub-sectors covered by the GATS, and was meant to facilitate Uruguay Round negotiations by allowing comparability of sectors across Members and consistency. W/120 consists of 12 core service sectors that are further subdivided into 160 sub-sectors: 1. 2. 3. 4. 5. 6. 7. Business – Professional, Computer and related, Research and development, Real estate, Rental/leasing without operators, Other Communications – Postal, Courier, Telecommunications, Audiovisual, Other Construction and Related Engineering – General construction work for buildings, General construction work for civil engineering, Installation and assembly work, Building completion and finishing work, Other Distribution – Commission agents, Wholesale trade, Retailing, Franchising, Other Educational – Primary education, Secondary education, Higher education, Adult education, Other Environmental – Sewage, Refuse disposal, Sanitation and similar, Other Financial – All insurance and insurance-related, Banking and other financial, Other 88 Mission Report 1 August 2011 - 23 February 2012 8. Health Related and Social – Hospital, Other human health, Social, Other 9. Tourism and Travel-Related – Hotels and restaurants, Travel agencies and tour operators, Tourist guides, Other 10. Recreational, Cultural, Sporting – Entertainment, News agency, Libraries, archives, museums, other cultural, Sporting and other recreational, Other 11. Transport – Maritime, Internal waterways, Air, Space, Rail, Road, Pipeline, Services auxiliary to all modes, Other 12. Other Services Not Included Elsewhere These core sectors are more aggregated than that of the CPC. Further Readings: South Centre, “Classification in Services: An Overview of the Main Issues for Developing Countries,” Analytical Note SC/TADP/AN/SV/11, Jan 2005 UN, Central Product Classification version 2, http://unstats.un.org UN, “Provisional Central Product Classification,” Department of International Economic and Social Affairs, Statistical Paper Series M No. 77, 1991 WTO, “Services Sectoral Classification List,” Note by the Secretariat, MTN.GNS/W/120, 10 July 1991 5.2 Principles Used in the Conduct of Trade in Services GATS Disciplines The GATS recognizes the growing importance of trade in services in economic development, and seeks to establish a multilateral framework of principles and rules to expand trade through transparency and liberalization on a mutually advantageous basis that balances Members’ obligations with their rights to regulate and meet national policy objectives. The GATS takes particular account of the level of development of Members and seeks to strengthen the domestic services capacity, efficiency, and competitiveness of less developed Members. The basic principles are listed as follows. General obligations, which apply automatically to all Members and services sectors, consist of MFN treatment, transparency, administrative review and appeals procedures, and the operation of monopolies and exclusive suppliers. The rest are obligations in specific designated sectors. 1. Most-Favored-Nation Treatment (Article II) requires that Members extend the same access conditions equally to services and service suppliers of all Members, and these must be the most advantageous possible, as the term “most favoured” emphasizes. This applies to any measure in any sector whether or not specific commitments have been made. MFN exemptions are those allowed when the GATS came into force and were to last for 10 years, as well as economic integration agreements that apply the “GATS Plus” principle. 2. Transparency (Article III) requires Members to publish promptly, or make publicly available, all relevant measures of general application that affect trade in services. Each Member must notify the Council for Trade in Services about new or changes to existing 89 Mission Report 1 August 2011 - 23 February 2012 3. 4. 5. 6. 7. 8. 9. 10. measures where commitments have been made, establish enquiry points and respond to requests of any other Member for specific information. Domestic regulations (Article VI) must be administered in a reasonable, objective, and impartial manner. Disciplines are to be developed to ensure that measures relating to qualification and licensing requirements and procedures or technical standards do not constitute unnecessary barriers to trade, i.e. (a) they are based on objective and transparent criteria, (b) they are not more burdensome than necessary to ensure quality, (c) licensing procedures are not in themselves a restriction on supply. Disciplines on domestic regulations in the accountancy sector will be integrated into the GATS at the end of the Doha Round. Members are negotiating a set of disciplines on domestic regulation that will apply to all measures. Members must maintain tribunals or procedures (Article VI.2) that provide for an objective review of, and appropriate remedies for, administrative decisions affecting trade in services. Members may recognize (Article VII) education, experience, requirements met, or licenses or certifications granted by other Members. This may be achieved through harmonization or arrangement, or accorded autonomously, and based on multilaterally agreed criteria wherever appropriate. Members shall ensure that monopoly and exclusive services suppliers (Article VIII) do not act inconsistently with MFN obligations and specific commitments. Upon request, Members must consult with each other on business practices in order to eliminate those that restrict trade (Article IX). Members shall develop disciplines to avoid trade-distortive effects of subsidies (Article XV). Where market access commitments are made, the following restrictive measures may not be adopted (Article XVI), unless specified in a Member’s schedule: limitations on the (a) number of service suppliers, (b) total value of service transactions or assets, (c) total number of service operations or quantity of service output, (d) total number of natural persons that may be employed in a service sector or by a service supplier, (e) types of legal entity or joint venture, (f) participation of foreign capital. National Treatment (Article XVII) requires that each Member treat the services and service suppliers of all other Members in the same way it does its nationals, in the sectors in its schedule of commitments and subject to the specified conditions. Members shall enter into successive rounds of negotiations to liberalize and expand market access progressively (Article XIX). Each shall define its own schedule of specific commitments that forms an integral part of the Agreement (Article XX). Members may modify or withdraw any commitment after 3 years from the date it entered into force; at the request of an affected Member, negotiations shall be conducted on compensatory adjustment (Article XXI). The compensation consists of more liberal bindings in other sectors. Schedules of Commitments Under the GATS, each Member designates those sectors in which it assumes obligations with respect to the 4 modes of supply, specifying the (a) terms, limitation and conditions on market access, (b) conditions and qualifications on national treatment, (c) undertakings relating to additional commitments. Also given are the time frame for implementation, where appropriate, and the date of entry into force of such commitments. Such commitments are minimum levels of 90 Mission Report 1 August 2011 - 23 February 2012 treatment. In addition, Members may make commitments on the use of standards, qualifications or licenses. Table 5.1 illustrates a sample schedule of commitments. The schedule contains 8 entries per sector, i.e. commitments to market access and national treatment for each mode of supply. In the example below, the first column gives the designated sector or sub-sector, the second gives the limitations on market access based on Article XVI.2, the third contains limitations on national treatment. Horizontal commitments apply across all sectors or subsectors that are named in the schedule. (WTO 2006) A schedule must contain only descriptions of bound commitments, in view of its legal nature. The levels of commitment are: (a) full commitment, which means no limitations and is entered as “none”, but horizontal commitments apply, (b) commitment with limitations means the binding of either an existing situation (“standstill”) or a more liberal situation where some measures inconsistent with Art. XVI or XVII will be removed (“rollback”), the entry for which must describe the particular inconsistent elements of the measure; or partial binding of measures affecting certain categories only and is entered as “unbound except for….”, (c) no commitment means inconsistent measures may be introduced or maintained and is entered as “unbound”, (d) no commitment technically feasible is entered as “unbound*” which is footnoted as “unbound due to lack of technical feasibility”, (e) special cases where there is an advantage to describing a requirement instead of entering “unbound”. (WTO S/L/92) TABLE 5.1. Sample Schedule of Commitments Modes of supply: (1) Cross-border supply; (2) Consumption supply; (3) Commercial presence; (4) Presence of natural persons Sector or sub-sector Limitations on market access I. HORIZONTAL COMMITMENTS ALL SECTORS (4) Unbound, other than for INCLUDED (a) temporary presence, as intraIN THIS SCHEDULE corporate transferees, of essential senior executives and specialists and Limitations on national treatment Additional commitments (3) Authorization is required for acquisition of land by foreigners. (b) presence for up to 90 days of representatives of a service provider to negotiate sales of services. II. SECTOR-SPECIFIC COMMITMENTS 4. DISTRIBUTION (1) Unbound (except for mail order: SERVICES none). C. Retailing services (1) Unbound (except for mail order: none). (2) None. (2) None. (3) Foreign equity participation limited to 51 per cent. (3) Investment grants are available only to companies controlled by nationals. (CPC 631, 632) (4) Unbound, except as indicated in horizontal section. (4) Unbound. Source: GATS 2006 91 Mission Report 1 August 2011 - 23 February 2012 The contents are confined to measures that are incompatible with the GATS provisions on market access (Article XVI) or national treatment (Article XVII) and to additional commitments (Article XVIII). Measures inconsistent with other GATS Articles are not covered such as MFN (Article II), or characteristics of domestic regulations (Article VI). Each Member also provides a table of MFN Exemptions describing, for each sector or subsector, the measures indicating its inconsistency with Article II, countries to which the measure applies, the intended duration, and conditions creating the need for the exemption. MFN Exemptions usually come from bilateral agreements on services trade, national laws requiring reciprocal treatment or extending special preferences, or economic agreements that do not meet the conditions of Article V. GATS allows for flexibility in many ways: • Members may choose the sectors to commit, and exclude a sector or parts of it from their commitments, define the sector as they wish or refer to the W/120 or CPC • Members may exclude some modes of supply, or apply special conditions to particular • • • • • modes of supply across all sectors in their schedules Members may place limits on the market access they offer, provided they list them in their schedule Members may discriminate against foreign providers, provided that they list such measures in their schedule Members may discriminate among foreign suppliers if they have an MFN exemption for the relevant service, or if they are party to a regional trade agreement notified under Article V Members may commit to providing less access than they currently provide in their market Members may commit to liberalizing at a chosen future date Under the AFAS, Members are to specify in a schedule commitments that go beyond their respective GATS commitments, and bestow preferential treatment to each other on an MFN basis (Article IV). The other ASEAN agreements with Australia and New Zealand, Korea, and China have similar schedules of commitments. The AFAS also provides for Mutual Recognition (Article V). As of this year, two Mutual Recognition Framework Agreement and five Mutual Recognition Arrangements (MRArs) have been signed for Engineering, Nursing, Architectural services, Surveying, Accountancy, Medical and Dental Practitioners. (ASec 2011) The concerned government agencies are in the process of working out the requisites for Mutual Recognition Agreements to be signed. In addition to the schedule of specific commitments, the AANZFTA requires Members to set out commitments under Movements of Natural Persons (Annex 4), for the temporary entry and stay in its territory of natural persons of another Member. The schedules specify the conditions and limitations, including length of stay, for each category of natural persons covered. For PJEPA, both the Philippines and Japan specified their schedules of commitments in Annex 6. Unbound also means that measures may be introduced or maintained that are inconsistent with market access or national treatment in the affected sector and mode of supply. Unbound* means unbound for lack for technical feasibility. Annex 8 gives the specific commitments on the movement of natural persons, i.e. the terms and conditions for a natural person’s entry and temporary stay in either country. 92 Mission Report 1 August 2011 - 23 February 2012 Approaches to Liberalization The Council of Trade adopted the “Guidelines for the Scheduling of Specific Commitments under the GATS” in 2001 to assist Members in the preparation of offers, requests, and schedules of commitments. (WTO S/L/92) Commitments may be scheduled as a positive or negative list. A negative list considers services liberalized unless otherwise indicated through reservations. This is deemed more transparent since it reflects status quo policies. Binding such non-conforming measures raises the credibility of commitments, informs businesses about the openness of the market, and may also provide incentives for removing unwarranted restrictions. A positive list specifies sectors and modes that enjoy market access and national treatment subject to the stated limitations. It provides space for governments that do not have the capacity to take an inventory of all non-conforming measures or want the flexibility to suit commitments to accommodate regulatory concerns. Nevertheless the scope and nature of scheduled limitations may be more crucial than the scheduling approach. (Fink and Molinuevo, 2007) In the GATS, the positive list or “bottom-up” approach to liberalization, which consists of a voluntary positive choice of sectors and/or modes in which binding commitments are made, is used together with a negative list of non-conforming measures to be made in scheduled areas, hence it is a hybrid. Countries agree to undertake commitments specifying the nature of treatment or access offered to foreign service suppliers, through reservations in scheduled areas. Under this, they have the right to undertake no commitments, in which case they are not obliged to supply information on the nature of domestic regulations. (Mattoo and Sauve in WB 2008) Negotiation strategies may be (a) outward looking or aimed at the liberalization of barriers to trade and competition, (b) defensive and make the fewest possible commitments, or (c) a combination of both. For the first, mercantilist strategy is the most traditional and common; this seeks to maximize exports through a reduction of trade barriers and minimize increases in imports, and is usually driven by domestic policies. A domestic reform strategy uses negotiations to achieve reforms in domestic regulations. A grand bargain stance makes far reaching requests while a hard-to-get stance makes few requests and resists foreign demands as long as possible. For the second, a country exercises the right to say no to foreign requests, or asks for commitments it knows the other country cannot make, or articulates a principle that makes the foreign request illegitimate. (Feketekuty in WB 2008) Studies show that domestic regulations should be effective before key sectors are opened up. That is, liberalization must be carefully sequenced and preceded by the appropriate regulatory capacity. (EU FTA Manual 2008) Liberalization measures taken unilaterally by WTO Members are given credit based on modalities agreed upon in March 2003. An “autonomous liberalization measure” is defined and criteria for assessing its value are suggested. The liberalizing Member notifies its trading partner and specifies the credit being sought. The trading partner assesses it and both negotiate. (www.wto.org) Negotiation Process The country’s negotiating position has been the responsibility of the Trade and Related Matters (TRM) Committee, which was organized under EO 230 of 1987 as a NEDA Inter-Agency 93 Mission Report 1 August 2011 - 23 February 2012 Committee, to advise the President and NEDA Board on tariff and related matters, coordinate agencies, and recommend national positions for international economic negotiations. There are 3 levels: (i) Committee Proper (Cabinet-level), chaired by DTI and co-chaired by NEDA, (ii) Technical Committee (Undersecretaries and Directors), and (iii) 4 Sub-Committees. The Secretariat is from the NEDA-TIUS. The special Technical Committee on WTO Matters (TCWM) recommends Philippine positions and strategies on issues of direct relevance to the country’s WTO commitments. The TCWM is supported by the DTI-BITR WTO desk. It has 4 subcommittees, i.e. agriculture (chaired by DA), services (chaired by NEDA), industrial goods (chaired by DTI-BOI), and other rules (chaired by DTI). Up until September 2011, other separate bodies took charge of regional and bilateral matters. ASEAN and APEC matters fell under the Philippine Council on ASEAN and APEC Cooperation (PCAAC), which also had a Cabinet committee level with NEDA as Secretariat. PJEPA was under the Philippine Coordinating Committee, created by an EO in 2003, with a Secretariat at the DTIBITR. PCAAC first started as the Committee on ASEAN Economic Cooperation in 1976, a Cabinet-level committee on economic matters pertaining to ASEAN. It was superseded in 1986 by the Philippine Council on ASEAN Cooperation, with a Technical Board for Economic Cooperation (TBEC) and a Technical Board for Functional Cooperation. In 1994 it was renamed to PCAAC to cover APEC and EARC, and expanded in 1996 to include Asia-Europe Meeting (ASEM) matters. NEDA was chair while DFA was vice-chair of the PCAAC. The Technical Secretariat of PCAAC-TBEC was from NEDA-TIUS. The consultation process for trade in services is not centralized, although NEDA as the chair of TCWM subcommittee is the main coordinator. Line agencies handle trade issues in their respective industries. (Pasadilla and Liao, in Pasadilla, ed. 2006) In September 2011, the PCAAC was reorganized into the Philippine Council for Regional Cooperation (PCRC) to facilitate inter-agency coordination in the formulation and implementation of policy on matters relating to the ASEAN, APEC, ASEM, Forum for East AsiaLatin America Cooperation (FEALAC) and similar regional initiatives, with the DFA as the focal point. There is a Cabinet-level PCRC under which are 4 Technical Boards, i.e. ASEAN Matters Technical Board (AMTB), Technical Board on APEC Matters (TBAM), Technical Board on ASEM Concerns (TBAC), and Technical Board on FEALAC Matters (TBFM). The AMTB members are organized into 3 Committees, of which the Committee for ASEAN Economic Community (CAEC), chaired by the DTI, takes charge of economic and financial cooperation. They are to meet regularly to discuss national concerns and positions in regional and inter-regional organizations, and provide direction and support. They shall also consult with all sectors on important and strategic issues when necessary. The process of negotiation under the GATS generally consists of: 1. Request by trade partner in areas with good supply and export capacity, removal of sector-specific barriers 2. Analysis of the request received in consultation with local stakeholders, benefits of allowing a foreign services provider into a sector 94 Mission Report 1 August 2011 - 23 February 2012 3. Preparation of an offer that provides the maximum market access to all other members 4. Sector-by-sector determination, then mode-by-mode for each sector 5. Determination of national treatment and market access limitations Feketekuty (in WB 2008) describes the negotiation process in detail, the main points of which are summarized in the paragraphs below. The GATS request-and-offer process is initiated through the bilateral submission of requests by each member to every other member that is a potential export market for its services. Then countries schedule bilateral consultations during which the country that receives the requests asks clarifying questions. An exchange of offers follows, then another round of bilateral consultations that are the basis for the second round of more precise requests, and subsequent rounds. Ultimately the WTO Secretariat compiles the consolidated list of offers that becomes the basis for the final round of negotiations. Requests can be (i) for national treatment, (ii) for elimination of all market access barriers in particular sectors, (iii) by mode of supply, or (iv) for the modification of specific restrictive regulatory provisions. Ideally the requests should follow the format in the country’s schedule of commitments. In keeping the initial request general, the country may obtain more information about what the other considers to be reasonable. The feedback enables more precise targeting of the regulatory changes in subsequent rounds. Furthermore, the request may cover all or some sectors, modes, and horizontal measures in which the country has an export interest. This depends on the perceived moves of other countries that have greater leverage. A country with weak leverage can focus on those sectors, modes, or measures that are important for it and unlikely to be requested by other countries. In general it is best to concentrate on services, modes, or measures in which the country has a high interest. A defensive strategy for countries that are reluctant to undertake major regulatory reforms, is to request regulatory changes that it’s trading partners will find impossible to meet, to deter the latter from making difficult requests. Countries unable to liberalize do not make numerous requests to evade pressure to liberalize sensitive sectors. Countries must put forth its true interests to increase the possibility of getting favorable offers. The role of solid research and analysis is crucial. Thus aside from negotiation skills, a good outcome requires extensive analyses of the (a) commercial issues at stake for all sides, (b) macroeconomic impact on countries, (c) trade-related domestic policy issues, (d) laws and international rules that apply, and (e) views and political influence of the stakeholders. Preparations for the negotiation follow these steps: (1) identify and consult with domestic stakeholders, (2) compile information on the country’s trade in services, domestic industry’s strengths and weaknesses, foreign barriers to national exports, and regulatory issues, (3) understand the negotiating partner’s interests, e.g. strengths and weaknesses of their services industries, stakeholders, difficulties in meeting requests for liberalization of services, and their likely requests, (4) analyse the information to identify competitive services, weak services in which commitments should be precluded, foreign regulatory barriers to target, then frame requests or offers so as not to undermine social objectives, and develop negotiating strategies and proposals that are supported, (5) develop negotiating objectives, which should be part of a 95 Mission Report 1 August 2011 - 23 February 2012 broader economic development strategy, (6) develop a negotiating strategy, i.e. a plan for building support for the desired negotiating outcome, (7) develop negotiating proposals, i.e, the opening position to engage negotiators in a dialogue and evoke responses that will help frame the negotiations. Aside from commitments, negotiations also cover the development of rules that might be added to the GATS and the provisions of sectoral agreements. First, the issues are reviewed, then analytical studies are undertaken. Members submit negotiating proposals that include the proposed language and underlying rationale. These are then reviewed by the Negotiating Committee. Basic Guiding Principles in Negotiations The government is guided by the following principles in determining national commitments (NEDA Trade in Services, submitted to the Senate, n.d.): 1. 2. 3. 4. 5. Constitutional provisions on (a) acquisition of land, (b) limitations on foreign equity participation in certain activities, and (c) practice of profession The power to legislate is vested in Congress, hence no commitment is made to amend existing laws Local government units are mandated to enact ordinances subject to the limitations of national law Small- and medium-scale domestic-oriented enterprises need support and time to develop, and are reserved to Philippine nationals; foreign capital is to be allowed if they involve advanced technology or have 50 direct employees The agreement is used as an opportunity to attract investments, e.g. energy, tourism, computer and related services The relevant sections in the 1987 Constitution are: • Article 12, Section 2 – All lands of public domain are owned by the State. • Article 12, Section 10 – Certain areas of investment are reserved for citizens or entities with • • • • • at least 60% Filipino ownership. Article 12, Section 11 – Public utilities shall be operated by citizens or entities with at least 60% Filipino ownership. Article 12, Section 14 – The practice of profession shall be limited to citizens. Article 12, Section 19 - The State shall regulate or prohibit monopolies. Article 14 Section 4 – Educational institutions other than those established by religious groups shall be solely owned by citizens or entities with at least 60% Filipino ownership; administration shall be by citizens. Article 16, Section 11 - Ownership and management of mass media shall be limited to citizens or entities wholly owned and managed by citizens. Congress shall regulate or prohibit monopolies in commercial mass media. Only Filipino citizens or entities with at least 70% Filipino ownership shall be allowed to engage in the advertising industry. The Foreign Investment Act (RA 7042 of 1991, amended by RA 8179 of 1996) liberalized the entry of foreign investments. Foreigners may own up to 100% of domestic market enterprises unless foreign ownership therein is prohibited or limited by the Constitution and existing law or the 96 Mission Report 1 August 2011 - 23 February 2012 Foreign Investment Negative List. The general rule of ownership of a domestic market enterprise is 60% Filipino and 40% foreign. More than 40% is allowed if the paid-in capital is at least $200000; or less than $100000 if there are at least 50 direct employees or advanced technology is used. For retail trade enterprises, 100% foreign ownership is allowed if paid-up capital is at least $2.5 million provided investments for establishing a store are at least $830,000, or it specializes in high-end or luxury products provided the paid-up capital per store is at least $250,000. Two negative lists show sectors where foreign ownership is limited by law. • • In Negative List A (activities reserved to citizens by mandate of the Constitution and laws) are services sectors with no foreign equity (mass media except recording, practice of professions, retail trade with paid-up capital of not less than $2.5 million, private security agencies, operation of cockpits), up to 20% (private radio network), up to 25% (recruitment agencies, construction of locally funded public works and defense-related structures), up to 30% (advertising), up to 40% (exploration and utilization of natural resources, ownership of private lands, operation of public utilities, ownership and administration of educational institutions, operation of a project requiring a public utilities franchise, adjustment of companies), up to 60% (financing companies and investment houses, unless there are reciprocal arrangements). Negative List B (activities regulated by law) limits foreign ownership to 40% for reasons of security, public health and morals (e.g. gambling, saunas, massage clinics), and to protect small and medium-scale enterprises (those with paid-in capital of less than $200000, or involve advanced technology or 50 direct employees with less than $100000) A positive list approach was used in the GATS, AFAS, and PJEPA. Hence only those sectors/subsectors where commitments were made appear in the schedules. Total reservations, i.e. current and future, were made on those sectors/subsectors that do not appear in the schedule, which means that the country has no obligations on them. Further Readings: Durano, M., “Trade in Services: An Initial Assessment of the Regulatory System and Directions for Negotiations,” USAID-AGILE, 2000 Feketekuty, G., “A Guide to Services Negotiations”, Appendix in Mattoo, A. et al., eds., A Handbook of International Trade in Services, World Bank 2008 Manduna, M., “The WTO Services Negotiations: An Analysis of the GATS and Issues of Interest for Least Developed Countries”, Trade-Related Agenda, Development, and Equity (T.R.A.D.E.) Working Paper 23, South Centre, 2004 Mashayekhi, M. and E. Tuerk, “The WTO Services Negotiations: Some Strategic Considerations,” T.R.A.D.E. Working Paper 14, South Centre, 2003 Saez, Sebastian, ed., Trade in Services Negotiations: A Guide for Developing Countries, World Bank, 2010. World Bank, Negotiating Trade in Services: A Practical Guide for Developing Countries, International Trade Department, 2009 WTO, “Guidelines and Procedures for the Negotiations on Trade in Services,” S/L/93, 29 March 2001 WTO, “Guidelines for the Scheduling of Specific Commitments under the GATS,” S/L/92, 28 Mar 2001 97 Mission Report 1 August 2011 - 23 February 2012 5.3 Matters to Consider in Determining Negotiation Positions The GATS is flexible. There is no requirement to allow market access or provide national treatment, and exceptions may be scheduled on a sector-specific basis. It sealed in policies that were already being implemented on a unilateral basis by Members. At the same time, commitments may not necessarily provide a full picture of applied policies, since they only relate to sectors that were scheduled. (Hoekman and Mattoo 2011). Furthermore, governments engage in trade negotiations (a) to reduce the impact of trade restrictions and gain market access, (b) to implement reforms to enhance market contestability30 in areas opposed by vested interests, or (c) as a commitment mechanism to bind policies and make domestic reform programs credible. However the impetus has been weaker for services relative to goods, for many reasons: (i) reduced need for traditional reciprocity-driven market access negotiations, since inefficient service sectors lead to costs for downstream industries that generates pressure for unilateral reforms, (ii) contrasting conditions of access faced by services exporters, so that markets are either already open or irremediably closed, hence domestic opposition to reform by incumbents cannot be counterbalanced by export interests, (c) less powerful reciprocity in services because a policy reform requested by one trading partner will benefit all others, (d) need to complement liberalization with effective regulatory standards and implementing bodies, (e) disengagement of the business community because of their diminished incentives and low expectations (Hoekman and Mattoo 2011) Nevertheless, participation in trade agreements must be used to a country’s advantage. Preparations for such participation would benefit from the following: • A national development strategy for services specifying the role of trade and trade agreements • Assessment of the requisites for our effective and beneficial participation in trade agreements such as the readiness of domestic services sectors • Assessment of the requirements of liberalization such as an inventory of the measures affecting trade in services and the basis for determining their adequacy or need for change • Criteria for choosing the measures, modes of supply, and the sectors to commit in the negotiations Domestic Regulation Regulatory autonomy is among the most substantive and complex issues in the GATS, as most measures affecting trade in services are found not at the border but behind it, and are imposed for non-trade and public interest reasons. In general, regulations are meant to: (1) enhance competition or the contestability of markets; (2) ensure effective regulation to deal with market failures, i.e. efficiency, and (3) meet social or noneconomic objectives i.e. equity (Hoekman and Mattoo 2011). While the GATS promotes progressive liberalization, it recognizes the right of Members to utilize regulations to attain 30 Characterized as having no barriers to entry or exit, where all have access to the same production technology, where there is perfect information on prices available to all consumers and firms, and entrants can enter and exit before incumbents can adjust prices. (OECD Statistics Portal) 98 Mission Report 1 August 2011 - 23 February 2012 national policy objectives, even in sectors where they have indicated full commitments on market access and national treatment. Examples of actual objectives are: equity of access to a given service, consumer protection including through information, job creation in depressed regions, control of pollution and other environmental externalities, promotion of competition, prevention of fraud (WTO 2006); also ensuring financial sector stability (Chaitoo 2008). Consumer protection covers regulations on quality of the service, professional competence, and integrity of the profession (Delimatsis, 2008). TABLE 5.2. Rationale for Regulatory Interventions Market Failure monopoly/ oligopoly asymmetric information Sector network services: telecoms, transport, environment, energy intermediation and knowledgebased: finance, professional externalities transport, tourism social objectives: health, education, transport, universal service telecoms, finance Source: Mattoo and Sauve, 2004 Possible national policy response Develop pro-competitive regulation to protect consumers where competitive market structures do not exist Strengthen domestic regulation to remedy market failure in an economically efficient manner Devise economically efficient means of achieving social objectives in competitive markets In pursuing a policy objective, regulations may severely restrict trade due to excessive, inequitable, or inefficient intervention. Article VI.4 therefore mandated the formulation of disciplines to ensure that domestic regulations (i) are based on objective and transparent criteria, such as the ability to supply the service, (ii) are not more burdensome than necessary to ensure the quality of the service, and (iii) in the case of licensing procedures, not a restriction on supply. Aside from the implications on domestic policy autonomy, Article VI.4 is aimed at measures that are non-discriminatory, are of a qualitative nature since they seek to ensure quality, and mainly entail minimum requirements. The Working Party on Domestic Regulation (WPDR) was established by the Council for Trade in Services to develop the disciplines, and in particular ensure that licensing and qualification requirements and procedures and technical standards do not undermine commitments. The disciplines are to be integrated into the GATS at the end of each round of negotiations. The first set was approved in 1998 for the Accountancy Sector, and applies to Members that scheduled specific commitments in the sector. They focus on non-discriminatory regulations that are not subject to scheduling under Articles XVI and XVII. (WTO 2006) Principles considered by the WPDR for the disciplines consist of (a) necessity - a clear statement of purpose to enable measurement of the effectiveness of a regulation, (b) transparency information on regulatory principles and processes must be accessible in advance, publicly available, specify reasonable time to respond to applications, reason for rejection, and allow review of administrative decisions, (c) equivalence – consider qualifications and experience obtained abroad, (d) international standards. Others are (e) impartial application, (f) proportionality, (g) regular review, (h) minimization of administrative burden, (i) objective criteria. (WTO 2006) The 2011 draft “Disciplines on Domestic Regulation Pursuant to GATS Article VI.4” contains the following provisions: 99 Mission Report 1 August 2011 - 23 February 2012 i. ii. iii. iv. v. vi. vii. viii. ix. x. xi. xii. xiii. xiv. xv. xvi. xvii. xviii. xix. xx. xxi. xxii. Objectives – to ensure that measures (licensing requirements and procedures, qualification requirements and procedures, and technical standards) are based on objective and transparent criteria such as competence and the ability to supply the service, and do not constitute disguised restrictions on trade in services. Recognition of the right to regulate – to meet national policy objectives, and that the disciplines do not prescribe particular regulatory approaches or provisions Recognition of the difficulties of developing country members, i.e. difficulties relating to level of development, size of the economy, and regulatory and institutional capacity Scope of application – measures affecting trade in services where specific commitments are undertaken, and not to those that constitute limitations subject to scheduling under Article XVI or XVII General obligations – that measures shall be pre-established, based on objective and transparent criteria, and relevant to the supply of the services to which they apply Right to use of universal service policies is recognized Publication of and prior comment is encouraged Residency requirements for licensing – where not scheduled, less restrictive means should be employed; those other than subject to scheduling shall not be a prerequisite for assessing the competence of a service supplier Simplicity and licensing and qualification procedures – should not constitute a restriction on the supply of services Impartiality of procedures and independence of regulators Single window/one authority for applications Submission of applications at any time except when limited, reasonable period, process without delay, and electronic format where possible Timeframe for processing must be reasonable Allow the supply of service after fulfilment of requirements without undue delay Reasonable fees Verification and assessment of qualifications is possible Identification of deficiencies of qualifications, and ability to fulfil these in any jurisdiction Examinations at reasonably frequent intervals Transparency of processes for developing and applying standards by non-governmental bodies International standards to be taken into account where effective or appropriate for national policy objectives Transition period for applying the disciplines Technical assistance In principle a necessity test could promote the adoption of economically efficient policy choices to deal with market failure and pursue non-economic objectives. (Sauve and Mattoo 2004) It is thought that a horizontal necessity test is crucial for effective and operationally useful disciplines, as it draws the line between legitimate intervention and protectionist restriction; however it is controversial since it has implications on regulatory sovereignty. Elements of an effective, enforceable, and operationally useful necessity test have been suggested: (a) burden of proof – the complaining party bears the initial burden of proving a violation and once established, the responding party must refute the charge; (b) justiciability of instruments/level of protection/legitimate objectives – it is the Member’s choice of means that is examined, not the 100 Mission Report 1 August 2011 - 23 February 2012 objectives; this requires a clarification of “quality of service”, which Article VI.4 identifies as the only legitimate objective; (c) less trade restrictiveness/ reasonable availability, and comparison of alternatives/’third aspect’ of necessity; (d) proportionality/ balancing/means-ends test; (e) burdensomeness versus trade-restrictiveness (Delimatsis 2008). The South Centre assessed the 2009 draft of the Disciplines in terms of its implications for developing countries, which have a generally weaker regulatory capacity and use regulations for development purposes. The first key discipline, necessity test, can restrain the right to regulate and be applied in unpredictable ways in dispute settlement. Other provisions could operate as necessity tests, e.g. (a) avoiding disguised restrictions on trade, (b) that measures be relevant to the supply of services to which they apply, where “relevant” is not defined, (c) that licensing and qualification procedures be as simple as possible. On the right to regulate, “Members’ regulatory ….sovereignty ends when the rights of other Members under the GATS are impaired”. The draft prescribes particular regulatory approaches and provisions, e.g. (a) to base measures on objective and transparent criteria, but regulatory discretion is sometimes needed to ensure that critical objectives are met; also, objective can mean not arbitrary, not biased, relevant to the ability to perform or supply the service, not subjective, or least trade-restrictive, which conflict with developing country regulations; (b) that measures be pre-established, which is not defined and conflicts with the right to introduce new regulations, (c) that applicants need only approach one competent authority, (d) to take existing international standards into account in formulating technical standards, (e) transparency and prior comment, giving details on 20 types of information. It is noted that the Disciplines’ right to regulate for national policy objectives does not extend to local government regulations. (South Centre 2011) Further Readings: • Chaitoo, R., “Services Liberalization and Domestic Regulation: Why Is It Important?”, • • • • • • • • CUTS/FICCI Conference on Global Partnership for Development: Where do we stand and where to go?, Aug 2008 Delimatsis, P., “Determining the Necessity of Domestic Regulations in Services”, European Journal of International Law, Vol. 19 No.2, 2008 Hoekman, B. and A. Mattoo, “Services Trade Liberalization and Regulatory Reform,” Policy Research Working Paper 5517, World Bank, Jan 2011 Karmakar, S., “GATS: Domestic Regulations versus Market Access,” ICRIER, WTO Research Series No. 7, May 2007 Mattoo, A., and P. Sauve, “Domestic Regulation and Trade in Services: Looking Ahead”, in Mattoo, A. and P. Sauve, eds., Domestic Regulation and Service Trade Liberalization, World Bank, 2003 South Centre, “The Draft GATS Domestic Regulation Disciplines – Potential Conflicts with Developing Country Regulations,” Analytical Note SC/AN/TDP/SV/12, Oct 2009 South Centre, “Domestic Regulation of Services Sectors: Analysis of the Draft Negotiation Texts,” Analytical Note SC/TDP/AN/SV/13, April 2011 Stumberg, R., “GATS Negotiations on Domestic Regulation,” Forum on Democracy and Trade and Heinrich Boll Stiftung, draft of 19 May 2010 WTO, “Disciplines on Domestic Regulation Pursuant to GATS Article VI:4”, Chairman’s Progress Report, S/W/PDR/W/45, 14 Apr 2011 101 Mission Report 1 August 2011 - 23 February 2012 Determining “Like” Services In Article II of the GATS, Members must accord to services or service suppliers of other Members treatment “no less favourable than that accorded to like services and service suppliers of any other country”. The GATS does not provide criteria for determining “likeness”, and the concept is more difficult to establish for services than for goods, owing to the intangibility of services, the blurring between product and production, the four modes of supply, and the lack of a detailed nomenclature. Cossy (2006) examined the concept of “likeness” in the context of the national treatment obligation or Article XVII. GATS differs significantly from GATT in the national treatment obligation, which explicitly applies to both products (services) and producers (service suppliers). Cossy discusses the extent to which criteria developed by GATT case-law (physical properties, classification, end-use and consumer tastes) can be used to establish likeness of services, and finds that other parameters may be relevant, such as the regulatory context or an “aim and effect” type approach. Further Reading: Cossy, M., “Determining “Likeness” under the GATS: Squaring the Circle?”, WTO Economic Research and Statistics Division, Staff Working Paper ERSD 2006-08, Sep 2006 Public Services and Public Utility Article 1.3 confines the GATS to services in any sector except those “supplied in the exercise of governmental authority”, that is, they are (i) not supplied on a commercial basis and (ii) not supplied in competition with one or more service suppliers. Government services are thus explicitly excluded from the GATS, to allow the provision of publicly-funded services in core areas of government responsibility. The coverage of GATS in relation to government services still depends on the interpretation of the two conditions. Some suggest that services provided not for profit should be included in the first condition, so that additional criteria would determine whether supply at a price just covering the costs of the provider would be considered commercial. For the second condition, an approach could consist of determining if two or more service suppliers provide the same or comparable service, then establishing if it substitutes or complements the other. In this case, the size of the market is crucial. (Cassim and Steuart 2005) Moreover, certain public services that are provided on a commercial basis, are not covered by Article 1.3, such as (i) traditional public monopolies in infrastructure-related sectors like postal, telecommunications, or rail transport where no other providers are allowed, (ii) natural monopolies, (iii) open competition where government participates for public service purposes. Overlaps are common. (Adlung 2005) The prime concern about the GATS from the start has been its impact on the government’s sustained provision of social services such as health and education. Some argue that it is not immediately clear whether the definitional coverage of the GATS affects governments’ scope of action. While concepts such as MFN, market access, and national treatment extend to investment, production and employment, there is flexibility to suit a country’s obligations to its circumstances. (Adlung 2005) 102 Mission Report 1 August 2011 - 23 February 2012 The GATS does not use the term “public services”, and its definition of governmental services is subject to uncertainty. Nevertheless similar public services may be provided in different jurisdictions in diverse settings, and the scope of such services is bound to vary over time. Common elements of public service are universality, continuity, quality, affordability, user and consumer protection. What matters are the legal and institutional arrangements governing the provision of a non-excluded service at a particular time. (Adlung 2005) A public utility is also a government-supplied service that may not necessarily meet either condition in Article I.3 of being supplied on a non-commercial basis or in non-competition with other suppliers. There is no official definition of public utility. Article 12, Section 11 of the 1987 Constitution merely provides that its operation and management shall be limited to citizens or corporations and associations with at least 60% Filipino ownership. Commonwealth Act 146 of 1936 or the Public Service Law defines public service by enumerating the kinds of services covered, in Section 13(b): “The term “public service” includes every person that now or hereafter may own, operate, manage, or control in the Philippines, for hire or compensation, with general or limited clientele, whether permanent, occasional or accidental, and done for general business purposes, any common carrier, railroad, street railway, traction railway, sub-way motor vehicle, either for freight or passenger, or both with or without fixed route and whether may be its classification, freight or carrier service of any class, express service, steamboat or steamship line, pontines, ferries, and water craft, engaged in the transportation of passengers or freight or both, shipyard, marine railways, marine repair shop, [warehouse] wharf or dock, ice plant, ice-refrigeration plant, canal, irrigation system, gas, electric light, heat and power water supply and power, petroleum, sewerage system, wire or wireless communications system, wire or wireless broadcasting stations and other similar public services.” The same law requires such public services to obtain a valid and subsisting “certificate of public convenience and necessity” that their operation will promote the public interest. A public utility is characterized as providing a vital service or everyday necessity to a large population, the unavailability of which would adversely affect public welfare. It is usually supplied through an extensive distribution network, and may be owned and operated by the government or private sector. Some may have the characteristics of a public good as well. Electricity, gas, water, communications, transport, garbage collection, sewage treatment, are common examples of a public utility. Massive capital requirements, also due to the need to have a wide reach, mean that they tend to be natural monopolies. Government regulation of privately owned utilities is meant to ensure a reasonable level and quality of service at a fair price, through a public service obligation and franchising. The Joint Foreign Chambers of the Philippines in a 19 July 2011 position paper, extracted a working definition of public utility from Philippine jurisprudence, i.e., that it is a business engaged in regularly supplying the public with some service of public consequence such as electricity, gas, water, transport, telephone. Certain sectors are not considered public utilities by virtue of particular laws, such as power generation and the supply of electricity to the contestable market, shipyards, or refining of imported crude oil. The Chambers contend that the Constitution imposes the franchise requirement on the operation but not the ownership of public utilities. Further Readings: 103 Mission Report 1 August 2011 - 23 February 2012 • Adlung, R., “Public Services and the GATS”, Journal of International Economic Law, Vol. 9 No. 2, 2006 • Adlung, R., “Public Services and the GATS”, WTO Economic Research and Statistics Division, Working Paper 2005-03, July 2005 • Cassim, R. and I. Steuart, “Public Services and the GATS”, ICTSD Policy Paper on Trade in Services, Feb 2005 Rules of Origin Rules of origin (ROO) are pertinent to plurilateral or bilateral trade agreements, as they determine the applicability of preferences to parties vis-à -vis non-parties to the agreement. The two types of ROO in the GATS are general ROO as described in each mode of supply, and specific ROO which apply to particular circumstances, e.g. in Article XXVII (Denial of Benefits), Article V (Economic Integration). The GATS disciplines on ROO found in Article V.6 apply to juridical persons only: a service supplier from outside the free trade agreement that is a juridical person shall be entitled to preferential treatment under the agreement if it engages in substantive business operations in the territory of the parties to the agreement. However under Article V.3b, if the agreement involves developing countries only, preferential treatment may be limited to companies owned or controlled by natural persons of the signatory parties. Since services are embodied in suppliers, ROO arise in three different contexts: (i) origin of services, (ii) origin of service suppliers in the form of juridical persons, (iii) origin of service suppliers in the form of natural persons. For the first context, free trade agreements have used the concept of “service of another party”, i.e. as long as it originates from the territory of another party, which corresponds to Modes 1 and 2. The GATS does not have ROOs for services supplied through Mode 3 or 4. Free trade agreements usually extend the benefits to juridical persons from non-parties that are commercially established under the laws of a party to the agreement, regardless of ownership or control. Benefits are also extended to natural persons of signatory parties, provided nationality or residency conditions are met. (Fink and Molinuevo 2007) There are no prescribed criteria for identifying origin, but some types tend to be used in free trade agreements: nationality, residency, value-added test, ownership test, intellectual input control test, and mixed tests. Most use residency or ownership and control of the service provider or of the essential input without which the service cannot be provided. (ADB 2008) In five ASEAN countries, ROO is defined along the following criteria for juridical persons or companies: incorporation, substantive business operations, domestic ownership and control, domestic employment; for natural persons it is nationality, residency, and center of economic interest. The case studies suggest that the most restrictive criterion for a ROO is domestic ownership and control. (Fink and Nikomborirak 2007) Paragraph 17 of the “Rules of Origin and Services: Conceptual Issues” (MTN.GNS/W/140) summarized the usual ROO as follows: “The origin of producers (corporations) is usually decided on the basis of one or more of the following criteria: (1) place of incorporation, (2) nationality of control, (3) nationality of ownership, (4) principal place of business, (5) location of headquarters or center of management/decision making, (6) origin of value added, and (7) origin of material and/or intangible inputs. The first five of these are related in that the focus is on the nationality of 104 Mission Report 1 August 2011 - 23 February 2012 the producer/firm as reflected in the geographic location of assets or activity. The last two criteria focus on the product that is produced/sold and are frequently based on product content.” ROO for services received attention only lately because the concepts of intermediate inputs and domestic value added are not as developed as they are for trade in goods. ROO in trade agreements have also focused on the origin of the service supplier. The choice of ROO depends on the objectives of the free trade agreement. A liberal ROO reduces discrimination and attracts investments from outside the agreement thereby promoting economic efficiency, but it can undermine learning-by-doing externalities of the agreement. Moreover a liberal ROO may weaken the bargaining advantages of regional relative to multilateral negotiations. The relevance of a ROO depends on the pattern of remaining market access restrictions that parties maintain against non-parties. Assuming that ROO are binding, their restrictiveness depends on the costs they impose on service suppliers from non-parties, e.g. tax obligations, business transactions costs. (Fink and Nikomborirak 2007) Further Readings: Fink, C. and D. Nikomborirak, “Rules of Origin in Services: A Case Study of Five ASEAN Countries,” World Bank Policy Research Working Paper 4130, Feb 2007 Wang, H. “WTO Origin Rules for Services and the Defects: Substantial Input Test as One Way Out?, Journal of World Trade, vol. 44, no. 5, 2010 WTO, “Rules of Origin and Services: Conceptual Issues,” Note by the Secretariat, MTN.GNS/W/140, 15 Oct 1991 E. Classification Issues There are several classification systems for trade in services at the national, regional, and international levels. These are categorized as transaction-based (e.g. IMF Balance of Payments statistics), activity-based (e.g. International Standard Industrial Classification of All Economic Activities or ISIC), production-based (e.g. North American Industry Classification System or NAICS), and product-based (e.g. W/120, CPC) (South Center 2005). Although Members are not compelled to use the W/120 or CPC, the “Guidelines for the Scheduling of Specific Commitments under the GATS” states that “in general the classification of sectors and sub-sectors should be based on the Secretariat’s Services Sectoral Classification List” i.e., W/120. Where a Member prefers to use its own classification, this should be in concordance with the CPC, although there is scope for a Member’s own definitions. Commitments assume a legal status once made. Most Members use the CPC, which is a detailed version of the W/120. Inadequacies were found, however, in certain sections, e.g. double listing, overlaps, inconsistency, ambiguities and blurred distinctions, use of national or various definitions, exclusions, lack of comprehensive category to reflect structure of sector, convergence of sectors. (South Center 2005) Examples of classification concerns (WTO 1991) are listed below. Generally the nomenclature is not always clear, and the W/120 leaves out many activities, e.g. tourism. • Computer and related services - software creation as a product or service; computer services overlaps with telecoms; no uniform definition of IT industry; basic telecoms provides real time transmission of customer-supplied information while value-added 105 Mission Report 1 August 2011 - 23 February 2012 • • • • • • • • • telecoms is not real time and transforms the form or content; blurred distinctions due to new technology for transmission; ability to integrate; and suppliers distinguished according to market segments; rapid changes render classifications out of date Engineering service - overlap of architecture and engineering with construction and business services Accountancy - wide-ranging and defined differently by countries Air transport services - new forms of distribution in air travel due to technological changes, precise identification of ground services; Distribution services - blurred distinctions between categories of distributors Energy services - not listed separately Environmental services - varies across countries, overlaps with business services, construction (need to preserve mutually exclusive nature of classification but liberalization based on a narrow definition is unfavourable versus a broader definition in terms of creating incentives to adopt cleaner technology and manage resources WTO 2001) Financial services - blurred distinction in financial services e.g. hybrid products, or between provision and transfer of financial information as a financial or other information service Maritime transport - river traffic is difficult to schedule since schedules are based on vessel type Postal and courier services - scope of “mail” is undefined by CPC; courier services excludes transport of mail by air Classification was taken up in the Committee on Specific Commitments due to the need for improved technical accuracy and clarity of schedules, but selective departures from existing classification systems and unilateral re-classification have taken place. This raised two concerns, i.e., the difficulty of assessing the full value and implications of initial offers and requests due to the use of various classifications, and pressure on developing countries from bilateral rather than multilateral discussions. Proposals on classification were either to cluster, which does not distinguish between core and non-core and places services in a broad category, or disaggregate, which breaks down the elements of sectors and sub-sectors. Developing countries may consider the following in their approach to classification issues: (i) distinguish between offensive and defensive market access interests; assess clarity, legal status, and certainty on the scope and coverage; identify commonalities and differences; assess the effect on existing commitments; address classification issues before undertaking market access commitments; (ii) ensure that discussion on classification issues is inclusive, transparent, and multilateral; (iii) take adequate steps when proposing reclassification to allow for proper assessment of the scope of existing commitments under proposed changes. (South Center 2005) GATS Mode 3 and TRIMS Schedules of commitments specify which sectors, and under what conditions, the basic GATS principles apply to within a Member’s territory. The market access and national treatment commitments and limitations and MFN exemptions are with respect to the 4 modes of supply. Mode 3 describes the conditions under which foreign services suppliers may establish, operate, or expand a commercial presence, such as a branch, agency, or wholly owned subsidiary, in the Member’s territory. For trade in goods, the Trade-Related Investment Measures (TRIMS) Agreement provides that Members shall not apply any “trade-related investment measure” that is inconsistent with 106 Mission Report 1 August 2011 - 23 February 2012 GATT Articles III (national treatment), and XI (prohibition of quantitative restrictions). Although “trade-related investment measure” is not defined, an illustrative list of measures agreed to be inconsistent is part of the agreement, and includes measures such as local content requirements (i.e. require particular levels of local procurement by an enterprise) or trade-balancing requirements (i.e. limit the volume or value of imports that an enterprise can purchase or use to an amount related to its level of exports). The disciplines under the TRIMS Agreement focus on discriminatory treatment of imported and exported products and do not govern the issue of entry and treatment of foreign investment. (See www.wto.org) In contrast, the GATS principles apply to the entry and operation of foreign service suppliers in a Member’s territory, or Mode 3, although each Member specifies the sectors covered and conditions to be applied. GATS Mode 4 and Factor Mobility Mode 4 pertains to the temporary movement of natural persons, although the GATS does not define “temporary”. Mode 4 covers (i) independent or self-employed service suppliers, or (ii) those employed by a service supplier and sent abroad to supply a service, either as an intracorporate transferee (employed by the same company that has commercial presence in another Member’s territory) or a contractual service supplier (to the consumer in the territory of another Member). The GATS does not cover natural persons seeking access to the labor market, nor measures regarding citizenship, residence or employment on a permanent basis. Governments may regulate entry and temporary stay, provided these do not impair commitments. Mode 4 is not limited to those directly rendering a service but also those whose presence abroad is instrumental to the provision of the service. However it is difficult to delineate coverage under Mode 4, e.g. (a) the difference between a service contract and employment contract are difficult to establish, particularly for independent service suppliers, (b) it is not easy to determine what constitutes a service, e.g. fruit-pickers may be temporary agricultural laborers hence outside of Mode 4, or as suppliers of fruit-picking services, (c) although Mode 4 applies to suppliers whatever their skill level, the focus of commitments is on highly-skilled workers. (WTO 2010) Mode 4 issues that have been discussed include (a) categories of natural persons used in the GATS schedules of commitments and their consistency with domestic measures, (b) complementarity of horizontal and sectoral commitments on Mode 4, (c) need to improve the transparency of Mode 4 commitments and domestic regulatory frameworks, (d) recognition of qualifications, and (e) administrative procedures relating to visa and work permits. Differential visa requirements are not considered as nullifying or impairing commitments. (Mamdouh 2004) TABLE 5.3. Coverage of Mode 4 Duration of stay Purpose of stay Included Temporary presence, non-specified period of stay Presence of natural persons for the supply of Excluded Permanent migration Persons seeking to access the 107 Mission Report 1 August 2011 - 23 February 2012 commercial services Skill level Main categories of natural persons All Self-employed service suppliers Employees of service suppliers sent abroad to supply a service Employees of foreign service suppliers established in host country (Intra-corporate transferees and directly-recruited foreign staff) Service sellers/persons setting up commercial presence employment market For the production of goods Services supplied under governmental authority None is excluded Foreign employees of domestically owned juridical persons Source: MSITS 2010 Further Readings: • Durano, M., “Three Perspectives on Institutions and the Trade in Services,” Ph.D. thesis, University of Manchester, 2005. • Mamdouh, H., “Movement of Natural Persons under the GATS”, presentation during IOM/WB/WTO Seminar on Trade and Migration, 4 Oct 2004 • Winters, L.A., “The Temporary Movement of Workers to Provide Services”, in Mattoo, A. et al., eds., A Handbook of International Trade in Services, WB 2008 Sectoral Considerations Efficient allocation of resources is encouraged when markets are open and competitive. In turn, market-based policies improve the institutional framework for private decision-making. WTO 2001 suggests that initiatives for trade in services include the following, depending on the actual situation in each sector: 1. pro-competitive policy to abolish traditional exclusivity rights and access barriers, etc. 2. external market opening to confront domestic industries with best international practice 3. information requirements, and prudential rules to protect public interest 4. institutional reforms providing for independent regulatory supervision 5. measures to incorporate social costs, attributable to environmental impacts and other externalities, in production and investment decisions Sectors have distinctive issues due to the nature of the service, structure or organization and how they evolved, and government intervention. These are tabulated below. TABLE 5.4. Sectoral Characteristics and Domestic Regulation SECTOR PECULIARITY/ISSUES Accountancy Qualifications and licensing of individuals, conditions of ownership, and control of firms Advertising An ancillary service hence affected by regulations covering goods or media Air transport A public utility, with 40% foreign equity limits; OBJECTIVES OF REGULATION Ensure liability and prevent conflicts of interest Consumer protection; national security Quality and public safety; 108 Mission Report 1 August 2011 - 23 February 2012 Architecture engineering and Audiovisual Computerservices Construction Distribution Education Energy Environment Financial related auxiliary services are privately provided; high cost of entry; Liberalization occurred through “open skies”, increasing capacity or frequency due to market demand; regulations on reservation services have been determined by the property rights of airlines; bilateral agreements that control capacities and frequencies and require fare approval by parties erode government control; need to clarify coverage of services not directly related to traffic rights Overlaps with construction and business; control of professional standards is through object-related regulations and standards; RA 9366 (Philippine Architectural Law) requires foreign architects to secure permit and professional liability insurance Social and cultural content implies large government role; subsidized to stimulate content creation; digitalization means content creation is outsourced; IPRs in music and video; increased convergence requires competition policy Overlaps with telecoms since services are supplied online; industry structure is cross-cutting, as they sell to and through one another and have corporate marketing alliances; computer-based multimedia raises concerns Supplied through the establishment of the supplier on site Stringent requirements on establishment and ongoing operations; RA 8762 or Retail Trade Liberalization Act of 2000 allowed foreign retailers in, subject to a capitalization threshold Non-recognition of degrees granted by foreign providers affects market access; labor market test and reciprocity; detailed regulation is being replaced by “framework laws” that specify goals but allow institutions to determine their own ways to achieve them A strategic industry with scarce supply of inputs; sovereignty over natural resource issues; distribution is a quasi-natural monopoly though public monopolies were dismantled, vertically integrated utilities were unbundled Government is both supplier and regulator; determine the extent of waste disposal that is government service or procurement Complex regulatory framework; liberalized in the 1990s, no evidence of monopoly or collusion; banking arrangements are more liberal than GATS commitments; prudential regulations, which are allowed by GATS, apply to foreign and domestic, except for bank capital requirements; licensing requirements may qualify as prudential though they may constitute trade barriers; ability of both Franchise is issued by Congress or a Certificate of Public Convenience and Necessity is issued by the Civil Aeronautics Board; cabotage is prohibited Quality and public safety Content regulation e.g. domestic programming quotas; promote domestic industry Online supply of services implies such issues as contract enforcement, authentication, privacy, etc. Safety, environment standards; local land use plans Remedy market imperfections or for economic objectives of health, safety, environment, urban planning, pricing, vertical restraints, zoning, scale of outlets, shop hours A public good; guarantee access through public provision; control of curriculum content Health and safety, environment, ensure universal service, consumer protection A public good and natural monopoly; regulated to remedy market imperfections, ensure no overcharging or price discrimination, quality A public good and essential to development; prone to market failure due to asymmetric information, moral hazard from policies aimed at preventing systemic risk Prudential measures are meant to ensure integrity and stability, as it affects the whole economy, and 109 Mission Report 1 August 2011 - 23 February 2012 Health and social services Legal Maritime Postal/courier Road transport Telecommu- regulated and unregulated entities to unbundle, repackage, and trade financial risks makes it difficult to identify the distribution of financial risks across institutions Consumer and provider cannot contract on an equal basis, in full knowledge, nor with financial responsibility for the results; exclusion of professional services in the nomenclature disregards the complementarities with hospital services; Recognition of foreign qualifications determines the economic value of GATS commitments, affects insurance portability, or the possibility of professionals working abroad The main obstacle to trade is the national character of the law and legal education; Treatment of multidisciplinary practices is controversial Only nationals or local entities authorized to engage in overseas shipping and with a maximum of 40% foreign equity may register a vessel; must be manned by Filipino crew except for non-crew functions requiring foreigner for 6 months; Government cargo is reserved to Philippine flagged vessels; Ports are public utilities, with 40% foreign equity limits; private operators are under long-term concessions; PPA functions as regulator and port developer/ operator as it issues permits to construct ports, and has joint ventures with private sector; Shipping rates and routes were deregulated in 2000, though MARINA issues licenses based on traffic volumes; operators may set their own rates provided there is effective competition and the public interest is served; Cargo and passenger shipping is still relatively expensive and concentrated, and competition is ineffective in major routes; No foreign equity limits on shipbuilding and ship repair; all Philippine vessels must be repaired at domestic shipyards except for emergency; Imports of vessels will be restricted after 2014 if substitutes can be built here Government is both regulator and competitor; liberalization must draw the line between reserved and non-reserved sectors; courier services are affected by customs, postal, transport regulations, etc. Diverse subsectors that compete with each other; mixed or public service, poor scale economies, low access costs, subsidized, unprofitable A network industry, i.e., where inequality of protect clients Public health objectives are equity, quality; publicly provided; need regulations to encourage efficient resource use Measures have discriminatory side effects: (a) licensing and qualification requirements to ascertain quality, (b) restrictions on the range of services professionals and hospitals are allowed to provide, (c) controls to ensure adequate provision to all areas or groups, (d) direct provision of minimum services to economically disadvantaged groups Public welfare Public safety and security; shipping is defined as a public utility Cabotage is prohibited, and national shipping is limited to Philippine flagged and owned vessels engaged in domestic trade; In shipping, MARINA intervenes where competition is ineffective and practices restrain trade; operators must be financially capable of providing safe, reliable, and adequate service and in the public interest Consumer protection against anticompetitive practices through tariff setting, cross-subsidization, universal service obligations, standards Assure safety and solvency, access Regulations must complement the 110 Mission Report 1 August 2011 - 23 February 2012 nications market shares and high profitability does not imply anti-competitive behaviour (Economides); Has a dual role as a distinct sector of economic activity and as the means of supplying other economic activities; A public utility, with foreign equity limited to 40%, and broadcasting and media reserved for nationals by the Constitution; foreigners cannot be executives or managers; Deregulation in 1990s opened the market; privately held, with government role confined to issuing licenses and managing competition; government provides services in unserved or underserved areas; Market forces are transforming structure and the way services are traded; once-marginal technologies and practices are now mainstream and deregulated; Convergence complicates regulatory considerations, as the different components come from different market structures and regulatory environments Tourism Dependent on infrastructure (transport, ports, roads, telecoms, utilities, food and lodging), immigration regulations; implies economies of scope since different sectors must be involved, hence policies must focus on its vertical nature; No foreign investment restrictions on ownership of tourism infrastructure Sources: WTO 2001; TPR 2005; www.wto.org competitive environment i.e. public service obligations, obligations to specific areas, quality of service targets, tariff controls, treatment of customers, competitive behaviour, obligations to publish Entities must provide reasonable and non-discriminatory services and not impede competition; Franchise is granted after proof of viability, efficiency, and being in the public interest; rates are regulated; Non-discriminatory interconnection to network facilities is mandatory; interconnection charges are negotiated between parties or by NTC; Cross-ownership is not allowed Safety and security, environmental impact, financial responsibility, develop local economy; relatively free from discriminatory practices Further Readings: • Alampay, E. A., �Telecom Regulatory and Policy Environment in the Philippines: Results and Analysis of the 2008 TRE Survey”, IDRC • Padojinog, W. “The Philippine Information and Communication Technology Sector: • • • • • Evolving Structure and Emerging Policy Issues”, PIDS DP 2005-29, 2005 Pasadilla, G.O. ed., The Global Challenge in Services Trade: A Look at Philippine Competitiveness, PIDS and GTZ, 2006 Roque, H.S. Jr., “Globalization of Legal Services: Challenges and Possibilities in the Philippine Setting”, 8th ASEAN Law Association General Assembly Workshop Papers, 2003 Tullao, T.S. Jr. ed., Education and Globalization, Philippine APEC Study Center Network and PIDS, 2003 Urata, S. and M. Okabe, Towards a Competitive ASEAN Single Market: Sectoral Analysis”, ERIA Research Project Report No. 3, Mar 2011 WTO, Guide to the GATS: An Overview of Issues for Further Liberalization of Trade in Services, 2001 111 Mission Report 1 August 2011 - 23 February 2012 Special Access and Flexibilities for Developing Countries Article IV requires members to facilitate the increased participation of developing country members through negotiated specific commitments in (a) strengthening their domestic services capacity and efficiency through access to technology on a commercial basis, (b) improving their access to distribution channels and information networks, and (c) liberalizing market access in sectors and modes of supply of export interest to them. Article V allows flexibility to developing countries that are parties to a trade agreement, with respect to the elimination of existing discriminatory measures and/or prohibiting new or more discriminatory measures, in accordance with their level of development. Article XIX ensures that liberalization takes place with due respect for national policy objectives and the level of development of Members, with flexibility for developing country Members such as opening fewer sectors or fewer types of transactions, progressively extending market access, and attaching conditions to market access that they extend in order to achieve the objectives in Article IV. WTO does not have a definition of “developing country”. Members are to make that decision, and others can challenge the decision of a Member to make use of the provisions for developing countries. For least developed countries (LDCs), WTO uses the designation of the United Nations. “Modalities for the Special Treatment for LDC Members in the Negotiations in Trade in Services” (WTO TN/S/13) were adopted in 2003 to provide mechanisms and procedures for ensuring LDCs’ maximum flexibility in negotiations. It requests other Members to exercise restraint in seeking commitments from LDCs and the removal of conditions as long as these are GATS-compatible. It allows LDCs to make commitments compatible with their development needs and that are limited in sectors, modes, or scope. It also requests credit for autonomous liberalization, recognition of Mode 4 as a most important means of supply for LDCs, technical assistance, and a review mechanism. Still it requires Members to develop an appropriate mechanism for implementing Article IV. Manduna (2004) provides a detailed description of trade in services and GATS from the perspective of an LDC. Based on the Modalities and Article IV, special treatment may be interpreted as: (i) facilitation of exports through enhanced and non-reciprocal market access, and (ii) flexibility for LDCs to pursue development objectives. The first requires strengthening of domestic services capacities, in turn necessitating an assessment of services sectors and of the implementation of practical mechanisms prescribed by the Guidelines. These must give policy and negotiating options, be forward looking and anticipate technological changes. The Hong Kong Ministerial Declaration of 2005 agreed to develop methods for the implementation of the Modalities by July 2006, including mechanisms for according special priority to sectors and modes of export interest to LDCs. This deadline was missed due to the overall suspension of the Doha round. In 2006 the LDC Group proposed a mechanism to operationalize this special treatment, addressing the absence of provisions that allow countries to accord special priority to LDCs without contravening the MFN principle. The proposal was to accord “non-reciprocal special priority …only to LDCs” in areas of export interest to them. The mechanism is permanent and binding, protects against MFN contravention, is mandatory for developed and voluntary for developing countries, and is only for market access-enhancing purposes; the concessions must be placed in the schedules of commitments. This elicited mixed reactions and a counter-proposal 112 Mission Report 1 August 2011 - 23 February 2012 that Members report the extent to which their offers take LDC interests into account, circulate these to LDCs for collective assessment, and identify best practice that Members could use for their final schedules of commitments. However reporting still does not help LDCs access markets on a priority basis, as it requires a legal carve out to the MFN. (South Centre 2006) Implementation of Article IV is delegated to Members collectively and individually, and there has been more focus on developed countries measures. Developing countries themselves must facilitate its implementation through the use of conditions that Article XIX allows them to place on liberalization commitments to fulfil national policies. Examples are strengthening programs to promote investment in LDCs to build their capacity, reinforcing trade promotion programs, promoting the development of LDC infrastructure through training, technology transfer, firmlevel schemes, intergovernmental cooperation, financial resources, or improving access of LDCs services to distribution channels and information networks. (Borrero 2005) Further Readings: • Borrero, E., “GATS Conditions to Achieve Developing Country Policy Objectives,” T.R.A.D.E. • • • • • • Occasional Paper 13, South Centre, 2005 Chanda, R., “GATS and Its Implications for Developing Countries: Key Issues and Concerns,” UN Department of Economic and Social Affairs, Discussion Paper No. 25, 2002 EU FTA Manual, The EU’s Approach to FTAs: Services, Feb 2008 South Centre, “Increasing LDC Participation in Services through Special Priority Market Access in the WTO,” Policy Brief No. 5, Sep 2006 South Centre, “The State of Play in the GATS Negotiations: Are Developing Countries Benefiting?”, Policy Brief No. 20, Nov 2009 South Centre, “Negotiating Services Free Trade Agreements with the European Union: Some Issues for Developing Countries to Consider,” Analytical Note SC/AN/TDP/EPA/21, June 2009 WTO, “Modalities for the Special Treatment of Least Developed Country Members in the Negotiations on Trade in Services,” TN/S/13, 5 Sep 2003 5.4 Measurement The Manual on Statistics of International Trade in Services (MSITS) provides the conceptual framework for the compilation and reporting of statistics on international trade in services. This was first developed in 2002 and revised in 2010 by the Interagency Task Force on Statistics of International Trade in Services31. MSITS conforms with the System of National Accounts (SNA) and the IMF Balance of Payments and International Investments Position Manual (BPM). It covers the four modes of supply by considering the location of the supplier and consumer of the traded service, includes Foreign Affiliates Statistics (FATS), and provides a statistical approach for measuring the value of the international supply of services through the presence of natural persons. MSITS recommended phased implementation, and although some areas still require 31 The Task Force consists of 7 organizations: the United Nations Statistics Division (UNSD), Statistical Office of the European Union (Eurostat), International Monetary Fund (IMF), Organisation for Economic Cooperation and Development (OECD), United Nations Conference on Trade and Development (UNCTAD), World Trade Organization (WTO), and World Tourism Organization. 113 Mission Report 1 August 2011 - 23 February 2012 clarification, countries have basically adopted the MSITS framework in compiling data. (MSITS 2010) The BPM framework includes the definition, valuation, classification, and recording of residentnon-resident trade in services. Transactions are recorded on the principles of residence, valuation, and time of recording. The residence concept is based on the transactor’s center of predominant economic interest during a one-year period, and considers the economic territory the geographical area. Valuation is based on market price, and transactions are recorded at the time they are rendered. Thus, balance of payments statistics provide much of the data for measuring a country’s transactions with the rest of the world. MSITS 2010 builds on the BPM framework and uses the Extended Balance of Payments Services Classification (EBOPS) for a greater level of detail. The relationships between EBOPS and CPC Version 2 and W/120 are given in correspondence tables. MSITS consists of 12 main components: 1. Manufacturing services on physical inputs owned by others 2. Maintenance and repair services not included elsewhere 3. Transport – 9 modes (sea, air, space, rail, road, internal waterway, pipeline, electricity transmission, auxiliary); covers post and courier services 4. Travel – covers expenses for goods and services during a one-year visit; excludes students and patients 5. Construction – construction abroad or in the compiling economy 6. Insurance and pension services – direct insurance, reinsurance, auxiliary insurance, pension and standardized guarantee 7. Financial – also covers financial intermediation service charges indirectly measured 8. Charges for the use of intellectual property not included elsewhere – franchises and trademarks licensing fees for the use of outcomes of research and development, or for reproduction/distribution of computer software or audiovisual and related products 9. Telecommunications, computer, and information services –telecommunications, computer (includes software), news agency (provision of news, photographs, feature articles to media), and other information (database services, web search portals) 10. Other business services – research and development; professional and management consulting (legal; accounting, auditing; business and management consulting, public relations, advertising); technical, trade-related and other business services (architectural, engineering, waste treatment and de-pollution, agriculture, mining; operational leasing; trade-related services) 11. Personal, cultural, and recreational services – audiovisual and related services (motion pictures, radio and television programs, musical recordings; artistic related services); other personal, cultural, and recreational services (education, health, heritage and recreational, other personal services) 12. Government goods and services not included elsewhere – all government and international organizations’ transactions not contained in the other items, i.e., embassies and consulates, military units and agencies, others FATS allows the measurement of transactions of foreign-controlled affiliates, which are otherwise not recorded in the BOP, being resident entities in their host countries. The concept of control is in terms of the majority ownership of voting power. This includes domestic enterprises 114 Mission Report 1 August 2011 - 23 February 2012 controlled by foreign investors (inward FATS) and affiliates abroad controlled by residents (outward FATS). This provides indicators for Mode 3, and complement statistics on foreign direct investments. (WTO 2010) FATS is still at an early stage of use. For FDI data, the main collectors and disseminators are Eurostat, IMF Balance of Payments Statistics, OECD International Direct Investment Statistics, and UNCTAD Foreign Direct Investment Database. IMF is conducting the Coordinated Direct Investment Survey. Mode 4 covers foreign natural persons entering the host economy to: a) fulfill directly service contracts (contractual service suppliers) –the self-employed or employees of a foreign service supplier b) work in a foreign affiliate that delivers services (intra-corporate transfer or direct recruit by the affiliate) c) negotiate a service contract (service seller), or set up a service establishment or market a service (person responsible for setting up commercial presence) By international statistical standards, the distinction between temporary and permanent presence is determined by the one-year rule. MSITS 2010 notes this difference from the GATS, but information on residents for more than one year may contain elements related to temporary presence in the GATS sense. (WTO 2010) Some classifications relevant to the measurement of Mode 4 are CPC Version 2, ILO International Standard Classification of Occupations, ISIC Rev. 4, and the International Classification of Status in Employment. (WTO 2010) The value of Mode 4 trade is almost fully captured within the services components of BOP that cover transactions relating to international service contracts. The BOP items that include significant elements of Mode 4 are: telecommunications, computer and information services, other business services, personal, cultural, and recreational services, and construction. The number of persons moving under Mode 4 may be found in tourism and migration statistics, which could become more accurate if duration of stay is included. (WTO 2010) TABLE 5. 5. Published BOP Trade in Services Data Publication IMF Balance of Payments Statistics Database Eurostat Database OECD Statistics on International Trade in Services UNCTAD Handbook of Statistics UN ServiceTrade database WTO International Trade Statistics Source: WTO 2010 Country coverage IMF members EU members, candidate countries OECD members, HongKong, China, Russian Federation ~200 economies ~200 economies All economies Type of service BPM5 and EBOPS EBOPS EBOPS and additional detail BPM5 main items EBOPS Summary data and analysis The UN ServiceTrade is the online database compiled in accordance with the MSITS, including trade by service category and partner country. 115 Mission Report 1 August 2011 - 23 February 2012 Philippine statistics on trade in services are found in the following (Durano 2001): • Mode 1 and 2: Data come from the balance of payments, which uses the IMF BPM and the MSITS. For direction of trade, foreign exchange transactions data from bank reports that are submitted to BSP may be used. Memorandum items are included, which are earnings and expenditures that are related to the flow of services but do not directly reflect the value of services delivered. Remittances are a memorandum item since it is not possible to identify the service sector of origin • Mode 3: National Statistical Coordination Board (NSCB) Foreign Investments Information System, also using the BPM. Covers inward FDI only, i.e. FDI in Philippine corporations, partnerships or single proprietorships. The value of services that accompanies the investments is also not known. • Mode 4: There are numerous statistics on the number of persons entering or leaving the country, but it is also difficult to estimate the value of services accompanying this movement. The MSITS suggests that the data should reflect the movements of natural persons who are (a) independent service providers abroad, and (b) employed abroad by foreign service companies i.e. either established in the host country or providing services under contract in the host country. These can come from travel data in the BOP, arrival and departure cards from the Department of Tourism (DOT), visas granted from the Department of Foreign Affairs (DFA), endorsement from BOI of managers and personnel of joint ventures and FDI projects, alien employment permits from the Department of Labor and Employment (DOLE), registered professionals from the Professional Regulation Commission (PRC), and deployment of OFWs from the Philippine Overseas Employment Association (POEA). Indications of values come from POEA data on wages and salaries of OFWs based on their employment contracts. Further Readings: • Deardorff, A.V and R.M. Stern, “Empirical Analysis of Barriers to International Services Transactions and the Consequences of Liberalization”, in Mattoo et al., eds., A Handbook of International Trade in Services, World Bank, 2008 • Manual on Statistics of International Trade in Services 2010, jointly published by IMF, UN, OECD, WTO, UNCTAD, Eurostat, UNWTO, 2011 • Maurer, A. et al., “Measuring Trade in Services”, in Mattoo et al., eds., A Handbook of International Trade in Services, World Bank, 2008 • WTO, Measuring Trade in Services, a training module, Nov 2010 6.5 Selected Issues Labor Market Test A major constraint to market access is the economic needs test, or labor market test, or labor certification test. In Article XVI, the requirements of an economic needs test are considered as a form of limitation which are proscribed where market access commitments are undertaken, unless otherwise specified in a Member’s schedule. The Scheduling Guidelines stipulate that Members who schedule an economic needs test should describe the criteria in the market access column. However the absence of a definition of economic needs test in the GATS has resulted in 116 Mission Report 1 August 2011 - 23 February 2012 scheduling inconsistencies and a lack of transparency in their operation. (WTO 2001, quoted in Chaitoo 2008) Under the GATS, the Philippines committed to review Article 40 of the Labor Code on the labor market test, and under the AEC Blueprint the commitment is to remove restrictions by 2015. The Department of Labor and Employment (DOLE), which participates in negotiations, was to draft position papers on the movement of natural persons and other labor market issues. For this purpose, Stahl (2011) conducted a cross-country study to obtain implications for the Philippines. Among Stahl’s findings: (a) Labor market test (LMT) and economic needs test (ENT) are terms used interchangeably. The GATS does not define ENT, however, hence the lack of criteria for their application. A solution to the lack of transparency and scheduling inconsistencies is to use a positive list of sectors to which LMT or ENT does not apply. (b) Countries vary considerably in managing the inflow of foreign workers. Entry regulations have become more complex and go beyond the LMT procedure of searching from the local labor market. Two measures are used, (i) compilation of a detailed list of skill shortages by occupation (“positive list”), and (ii) ensuring a market rate of pay as opposed to a minimum salary level, and providing work entitlements similar to what a resident worker in the same occupation receives. The positive list approach ensures that foreign workers contribute to the economy by relieving labor shortages, and sends signals to educational institutions that specific occupations are in short supply. (c) A country’s GATS/AFAS obligations not to use LMTs or other methods to regulate the inflow of skilled labor apply only to certain categories of service suppliers. LMTs apply to a broader range of sectors and occupations than those of GATS/AFAS. (d) The use of LMTs and other measures affecting inflows are not inconsistent with Philippine commitments to GATS/AFAS. Since the free flow of labor is unlikely to take place by 2015, the objective should be to clarify the use of ENTs and other measures through clear and detailed criteria for their application. For Mode 4, ASEAN must agree on a common list of natural persons supplying services within the region, to produce such criteria. (e) AFAS must have a positive list of occupations open to free mobility. For the Philippines, DOLE’s current methodology of identifying skill shortages (positive list) for controlling foreign worker inflow can be enhanced with other measures. For instance, comparable wage and working conditions for foreign workers would encourage local rather than foreign hiring because it is easier. Also the degree foreign workers should be bound to their sponsoring employer would give them latitude for rejecting an unfair arrangement. According to the DOLE-BLE, there were proposed amendments to the Labor Code but the bill has not been taken up at Congress. To comply with our 2015 commitments under the AEC, a Positive List of occupations has also been drawn; however this also requires legislative action. Further Readings: • Stahl, C., “A Cross-Country Study of Labour Market Tests and Similar Regulatory Measures: Implications for Labour Market Test Policy in the Philippines,” prepared for DOLE under EUTRTA2, April 2011 Mutual Recognition Arrangements Aside from the Constitution, there are 47 laws governing the practice of professions, of which 42 contain reciprocity provisions. Those with no reciprocity cover criminology (RA6506), 117 Mission Report 1 August 2011 - 23 February 2012 environmental planning (PD 1308), forestry (RA 6239), pharmacy (RA 5921), and radio x-ray technology (RA 7431), while Supreme Court Rule 138 limits the practice of law to nationals. Negative List A of the Foreign Investment Act lists 22 major professions. RA 8182 requires preference for citizens in the hiring of consultants and other professionals necessary for the implementation of foreign-assisted projects. PRC Resolution 90-547 of 1998: Exceptions to Article XII Section 14 of the Constitution: Allow practice through reciprocity; for consultation or for specific assignments whose services are limited; for employment as professors, technical officers or consultants in specialized branches of the profession; attached to international bodies assigned to perform definite work here; under contract with the government as consultants; internationally known specialist whose services are urgently necessary to promote the advancement of the profession or local experts are lacking. Also those employed by foreign investors, and under agreements which allow foreign professionals to practice here. Under RA 8981 (PRC Modernization Act of 2000), the Professional Regulation Commission approves the registration and issues a certificate of registration/ license, with or without examination, upon recommendation of the Professional Regulatory Board, to a foreigner with a valid certificate of registration from his country, provided that the requirements in his country are substantially the same as the Philippines’ and allow Philippine citizens to practice the profession on the same basis. PRC also issues a certificate of registration/license or a special temporary permit to foreign professionals to practice here under reciprocity and other agreements, consultants in joint venture or foreign assisted projects of the government, employees of Philippine or foreign private institutions, or health professionals engaged in humanitarian mission for a limited time. Ra 5181: prescribes at least 3 years permanent residency and reciprocity as qualifications for any examination or registration for the practice of profession. Lists foreign professionals allowed to take license examinations and/or practice their professions in the Philippines. Seven Mutual Recognition Arrangements (MRArs) have been signed under AFAS, two of which are framework agreements and five are arrangements; none are agreements as of yet. • Framework Arrangement for the MR of Surveying Qualifications (Nov 2007) – establishes • • • • the basis and procedures for negotiating MRAs MRAr on Architectural Services (Nov 2007)– a generic model MRAr Framework on Accountancy (by May 2009) – provides a structure for the conclusion of MRAs MRAr on Medical Practitioners (by Jan 2010), on Dental Practitioners (by Jan 2010), Nursing (by Jan 2010) MRAr on Engineering Services (Dec 2005) – a generic model The MRAr Framework lays down the principles and framework for negotiations, which may be done bilaterally or multilaterally. The principal elements for recognition are education, licenses, demonstration of competencies and experience. The professional regulatory authority grants recognition of compliance with requirements, and monitors the practice of professions. The use of standards and guidelines of the WTO and international bodies is encouraged. MRArs shall not prejudice Member’s authority to set domestic regulations. 118 Mission Report 1 August 2011 - 23 February 2012 MRAr in the medical, dental, and nursing fields already provide for the recognition and eligibility of foreign practitioners in accordance with domestic regulations and subject to the following conditions: possess qualification, possess valid professional registration/ license and current certificate to practice at origin country, in active continuous practice in origin country (5 years for medical and dental, 3 years for nursing), complies with Continuous Professional Development policy at origin country, certified as not having violated any local or international standards and has no pending investigation. The professional regulatory authority may have supplementary requirements or competency assessment. Those allowed to practice shall be subject to domestic regulations including codes of conduct in host country, insurance liability, culture and religion. The MRAr does not prejudice the authority to regulate but this should not create unnecessary barriers to the practice of the profession. ASEAN Joint Coordinating Committees for each shall encourage Members to adopt mechanisms and facilitate the implementation of the MRA. For engineering services, one must be an ASEAN Chartered Professional Engineer (ACPE), after he completed or has the equivalent of an accredited engineering degree recognized by the professional regulatory authority whether in the origin or host country, has a current and valid professional registration or licensing certificate to practice in the origin country issued by the professional regulatory authority or Monitoring Committee, 7 years experience of which 2 years is in responsible charge of significant work, complied with Continuing Professional Development policy of origin country, and is certified as not having violated local or international standards. He must comply with Guidelines on Criteria and Procedures and satisfy the Assessment Statement, and may practice only in the specified discipline. An ACPE must then be a Registered Foreign Professional Engineer (RFPE) in the host country, with a sworn undertaking to abide by the codes of conduct, laws and regulations, and to work with local professional engineers in the host country, within his area of competency. A Monitoring Committee in each country shall maintain an ACPE Register, and also certify qualifications of professional engineers. An ACPE Coordinating Committee is the oversight body that will have the authority to confer and withdraw the title of ACPE; it reports to the ASEAN Coordinating Committee on Services. After the MRA enters into force, any Member that wishes to participate shall notify ASEAN of its effective date of participation; those who wish to cease participation shall notify ASEAN 12 months prior. The process is similar for architects, except that they register to be an ASEAN Architect (AA) with the ASEAN Architect Council (AAC), education is not less than 5 years on a full time basis, experience is at least 10 continuous years of which 5 are after registration and 2 are in responsible charge of significant works. An AA must be a Registered Foreign Architect (RFA) at the host country to work either in independent practice or with local licensed architects. The Monitoring Committee shall maintain a national ASEAN Architect Register and issue certificates of AA registration. The AAC is the oversight body that confers and withdraws the title of AA. The Professional Regulation Commission (PRC) is currently in the process of identifying competencies and other elements specific to each profession for the purpose of determining commonalities within ASEAN. Country regulations and structures vary, and professional associations participate in regulatory boards that formulate core competencies. Specific rules will be rallied in committee meetings and side undertakings are encouraged to facilitate agreements. To establish national standards and levels of outcomes of education and training, skills and competencies, a National Qualifications Framework (NQF) was developed under the TESDA. NQF is “an instrument for the classification of qualifications according to a set of criteria for levels of 119 Mission Report 1 August 2011 - 23 February 2012 learning outcomes achieved.” They establish the basis for improving the quality, accessibility, linkages, and public or labor market recognition of qualifications within a country and internationally. (TESDA Philippine National Qualification Framework ppt) Work is being done to align Members NQFs across ASEAN. The following reasons for the lack of progress with respect to MRAs emerged during DOLE workshops: (a) protectionism of professional bodies and their non-involvement in negotiations, (b) absence of international standards, (c) lower quality of training, (d) numerous regulations, (e) few government initiatives to encourage the movement of natural persons. (Iredale 2011) The DOH echoed the reluctance to engage in MRAs, non-familiarity, inconsistent domestic regulations, lack of budgetary support and collaboration with the private sector. (APEC 2010) Further Readings: Iredale, R. “Capacity Building for Philippine Tripartite Partners on Movement of Natural Persons and Mutual Recognition Arrangements,” EU-TRTA2, March 2011 Transport The Department of Transportation and Communications (DOTC) is the agency in charge of transport infrastructure and services. Generally, the process of developing a negotiating position consists of defining the sector/subsector to include, and conducting consultations with the private sector and other government agencies. The main considerations in determining a final position are the existing laws and regulations, the willingness and readiness of stakeholders to compete, and our current infrastructural capabilities. The scheduled commitments under the GATS are the point of departure for determining offers under other regional and bilateral trade agreements. DOTC expressed the need to know the hierarchy, if any, of priorities between multilateral, regional, and bilateral trade negotiations. In view of the legal basis for the horizontal commitments, it is difficult to improve on them, since that requires a change in the laws, e.g. foreign equity limits. Domestic regulations are generally applied on an MFN basis, but LGU regulations must be consistent with commitments. In addition, there is a need to clarify whether ancillary services are considered part of basic services since this has implications for the applicability of limitations, e.g. for freight forwarding, more than 40% foreign equity participation is allowed by the Philippine Shippers Bureau. In addition to the horizontal commitments on foreign equity limitations, acquisition of land, and entry and temporary stay of natural persons supplying services, specific commitments in transport include: operation of public utilities is limited to nationals or corporations with up to 40% foreign capital; limits on the stay of foreign employees; repairs of Philippine-registered vessels must be done at domestic shipyards; certificate of public convenience is required for passenger and freight road transport, with new entrants subjected to an economic needs test for unserved or developmental routes and a route measure capacity32 to determine the number of vehicles. 32 To verify how many public transport units are needed, Route Measure Capacity is based on the formula passenger demand/ (utilization ratio x viable load factor x average seating capacity x number of round 120 Mission Report 1 August 2011 - 23 February 2012 Among the most challenging commitments under the AFAS are the foreign equity participation threshold targets. The AEC Blueprint requires all Members to “Allow for foreign (ASEAN) equity participation of not less than 51% by 2008, and 70% by 2010 for the 4 priority services sectors; not less than 49% by 2008, 51% by 2010, and 70% by 2013 for logistics services; and not less than 49% by 2008, 51% by 2010, and 70% by 2015 for other services sectors”. The 2010 target completion of the 8th AFAS Package was extended to 2011. (ASec June 2011) The coverage of “public utility” is a recurring issue when determining the subsectors to include, in view of the foreign equity limits on the ownership and management of public utilities. In particular, using the W/120, public utilities would appear to cover “Services auxiliary to all modes of transport”, e.g. cargo handling, storage and warehousing, container yard and depot, freight forwarding, catering, refuelling, pilotage, etc. Current classification schemes are not able to accommodate certain services such as express delivery, or ship classification societies. Cabotage is excluded from the schedule of commitments. It refers to the transport of goods or passengers within national territory by a foreign vessel or aircraft, and is restricted in many countries for national security reasons. Specifically, Section 1009 of the Tariff and Customs Code provides that passengers or goods on foreign vessels may be carried through any port of entry to their port of destination in the Philippines, and passengers or goods departing may be carried in a foreign vessel through a Philippine port. However foreign vessels may not transport passengers or cargo between Philippine ports, i.e. transhipment, as coastwise trade is a national activity reserved to vessels of Philippine registry. (Lorenzo 1998) The Maritime Industry Authority (MARINA) provides exemptions to the cabotage provision by allowing ships to go to ports for unloading but not for picking up passengers or cargo. The lack of regulations for the logistics sector is perceived by the DOTC to be putting the country at a disadvantage compared to other countries that are purposefully developing the sector. The parameters for offers in AFAS are based on the AEC Blueprint. Some subsectors are offered though not liberalized (?), while some areas are already liberalized but not offered, e.g. retail trade. ASEAN is unable to bargain as a block in ASEAN Plus negotiations, since Members do not have the same offers. The DOTC has also expressed uncertainty over the coverage of seafarers under the GATS. The POEA33 defines seafarers as persons employed on board a seagoing vessel that navigates the foreign seas, excluding government ships used for military or non-commercial purposes, and including fishermen, cruise ship personnel, and those serving on foreign mobile offshore and drilling units. Such maritime employment is under a government-approved standard employment contract, through a licensed manning agency that recruits and deploys seafarers for a foreign principal. Mode 4 clearly applies to seafarers since they are natural persons supplying services abroad under contract of a local agency. trips) (AIM RVR Center for Corporate Responsibility-EMERGE, Land Transport Franchising: #4 of 6 reports for an Integrated System of Motor Vehicle Registration, Land Public Transport Franchising, Insurance, and Taxation, March 2007) 33 See POEA Rules and Regulations governing the recruitment and employment of seafarers, May 2003. 121 Mission Report 1 August 2011 - 23 February 2012 The country is a signatory to the International Maritime Organization (IMO) Code of Standards on Training Certification and Watchkeeping (STCW). This requires all professional mariner certificates (level of mariner certification and capacity and limitations) to be STCW-compliant. Part A of the Code is mandatory while Part B is recommended. The STCW seeks to establish a baseline standard for the training and education of seafarers throughout the world, as well as a structure for the required standard to be met, through quality control and competence-based training. A mariner’s school must be recognized by the country issuing the license and the flag state of the vessel must accept licenses or certificates of competency (COC) issued by that country. Each country must incorporate a statement of compliance with the STCW Code into their COC. A White List identifies countries that are fully compliant with the STCW Code. A vessel that is flagged by a non-White List country that desires to enter a White List port can be denied entry, detained, or inspected. If a mariner has a COC from a non-White List country, he will be denied a Certificate of Equivalency, rejected for White List flagged vessels, and his sea time and training may be scrutinized or not accepted. (www.stcw.org) The Maritime Training Council, PRC, Philippine Coast Guard, Maritime Industry Authority are the agencies involved in complying with the STCW; TESDA and CHEd are also responsible for training institutes. Recently the European Maritime Safety Agency gave the Philippines until August 2011 to address the deficiencies or face STCW de-recognition from the EC, “in the areas of functioning of the maritime administration, insufficient quality procedures, insufficient monitoring of schools, inaccurate approval and review of courses, level and quality of training, poor quality of inspection of maritime education and training institutes, and insufficient qualifications of instructors and assessors.” (Manu’s scripts, 9June2011) Stakeholders are urging the government to designate one agency to implement the STCW. (www.moimconsulting.com, 29 July 2011) Further Readings: • Findlay, C., “Transport Services”, in Mattoo, A. et al., eds., A Handbook of International Trade in Services, WB 2008 D. Telecommunications The National Telecommunications Commission (NTC), an agency under the Office of the President, is in charge of communications infrastructure. Content or value-added services (noninfrastructure) are under the jurisdiction of the Information and Communication Technology Office of the Department of Science and Technology, which replaced the Commission on Information and Communications Technology (CICT) under EO 47 of June 2011. The WTO Agreement on Basic Telecommunications Services is annexed to the Fourth Protocol of the GATS. Basic telecommunication services are provided through Modes 2 and 3, and cover voice telephony, data transmission, telex, telegraph, facsimile, private leased circuit services, and other (fixed and mobile telephony, mobile data, paging, personal communications, satellite based mobile, fixed satellite, VSAT, gateway earthstation, teleconferencing, video transport, trunked radio system). Unless otherwise specified, commitments cover local, long-distance, international, wire-based, radio-based, resale or non-facilities-based, facilities-based supply, public use, nonpublic use. Value-added services are telecommunications for which suppliers add value to the customer’s information by enhancing its form or content or by providing for storage and retrieval. Examples are online data processing, database storage and retrieval, electronic data interchange, email, voice mail. (www.wto.org) 122 Mission Report 1 August 2011 - 23 February 2012 The Philippine Reference Paper on Regulatory Principles in Telecommunication Services adapts the WTO principles: (1) competitive safeguard, (2) interconnection, (3) universal service, (4) public availability of licensing criteria, (5) independent regulators, (6) allocation and use of scarce resources. NTC follows the same general process in developing a negotiation position, i.e., determine sectors based on the CPC and specific requests of trade partners, then examine national laws and regulations to know what is allowed and what is not. If there are no existing guidelines, consultations are held with stakeholders. To produce an offer list, the limitations in the current schedule of commitments are worked out, particularly the “subject to” conditions. NTC regulations are revised as deemed necessary, in line with commitments, but there is no attempt to advocate for changes in national law. Currently the pressure under AFAS is to increase the foreign equity share. The CPC does not always provide sufficient detail, and requests are usually highly specific or based on technological advances. In other cases, countries differ in definitions of subsectors, making it difficult to reach agreement on the acceptability of an offer, e.g. prepaid service is considered as a marketing tool rather than a subsector unlike in other countries. Certain valueadded services are also too broadly defined or not in the CPC, as technology advances rapidly. There is a need to have an internationally accepted definition. Entry into the telecommunications industry requires a congressional franchise that lasts up to 50 years, and foreign ownership is limited by the Constitution to 40%. Furthermore, a Certificate of Public Convenience and Necessity (CPCN) from the NTC is required for the type of service to be offered, through which the NTC assigns the area of operation, determines the allowable rate to be charged, and manages the allocation of the radio spectrum or frequency. Value added and cable TV services do not require a franchise but only a Certificate of Authority from NTC to operate, under EO 205 of 1987. In 1993 EO 59 made interconnection compulsory among public telecoms carriers, while EO 109 required international gateway operators to provide local exchange services in unserved and underserved areas. RA 7925 or the Telecommunications Law of 1995 formalized policy for competition and deregulation. In 1997 EO 436 considered the operation of cable TV systems as a subscriber service undertaking with a unique technology, to be separate and distinct from telecommunications or broadcast television. Rapid and revolutionary changes in technology such as microelectronics, digital technology, optical fiber, satellite communications, facsimile cable TV, electronic mail, and internet telephony have meant a natural convergence of telecommunications, mass media, electronic commerce, and data processing. Segments of the information and content industries are thus progressively integrating into a single economic market based on distributed digital technology.34 Convergence has in turn made interactive multi-media services possible. Interconnection is a complex issue whose intricacies cannot be defined, and problems associated with it are usually of a business nature, but it does not require exclusive legislation. However RA7925 lacks ground rules for interconnection, incentives for interconnection, and sanctions for 34 H.B. 3940, An Act to Promote the Efficient and Effective Delivery of Converging Communications Services, 12th Congress 123 Mission Report 1 August 2011 - 23 February 2012 failure to do so. It does not cover cable TV and internet service. Other issues are rate re-balancing, cross-subsidy, and the privatization of government telecommunication facilities. Legislation is also needed to provide rules for rationalizing and optimizing the impact of convergence on the existing communications sector. Other areas are fraud prevention, security of communications, and updating of generic laws on the practice of electronics and communications engineering. (DOTC 1998) While telecommunications companies are moving toward convergence by transmitting voice, data, and cable through a common medium, common regulations for internet, broadcasting, telecommunications, and cable, may not be possible due to differences in foreign ownership allowed in each subsector.35 The Constitution limits the ownership and management of mass media to Filipinos or entities wholly owned or managed by Filipinos. Foreign ownership is thus prohibited in broadcast as well as cable TV, which is considered distinct but supplementary to the former. RA 7925 prohibits an entity from engaging in both telecommunications and broadcasting either by airwaves or cable. Content services such as TV programs can thus be opened up but broadcast media cannot be liberalized because there is no convergence law. Further Readings: • Cowley, P.F. and J.D. Aronson, “Trade in Services Telecommunications”, in Mattoo, A. et al., eds., A Handbook of International Trade in Services, World Bank, 2008 • Department of Transportation and Communication, Philippine Information Infrastructure Policy Study (PIIPS) Project, Oct 1998 • Molnar, M., “Different Regulations, Different Impacts – What Regulations Affect Trade in Telecommunications Services?”, OECD Experts Meeting on Telecommunication Services, Dec 2008 Health Services The health services sector illustrates several important issues in trade in services. Health is a main priority of governments, being a basic human right that is essential to welfare and enhances the productivity of citizens. Services necessary to sustain health are mainly rival and excludable, but there are aspects of health services that have a public good character aside from large externalities, such as the prevention of communicable disease. Moreover, the need to prepare for uncertain but costly treatments has given rise to health insurance services, which is characterized by information asymmetry and requires measures to prevent fraud and abuse. As one of the core responsibilities of government, basic health services are publicly-provided to ensure access especially for the poor. Governments ensure equity of access and quality of care through (a) licensing and qualification requirements, (b) controls/incentives to enable adequate provision to all regions and population groups, and (c) direct provision of minimum services to economically disadvantaged groups, which have discriminatory side effects. (Smith et al. 2008). Previously considered non-tradeable and usually publicly-provided, technological changes enabling the electronic transmission of information and increased market orientation have led to changes in the organization of health services and enhanced their tradeability. International 35 M.A.L. Reyes, “Proposed convergence law faces problems”, Phil. Star, 18 Aug 2001 124 Mission Report 1 August 2011 - 23 February 2012 movements of health professionals, private domestic and foreign investments in health facilities, medical travel, and business process outsourcing of medical records, are indicative trends. The country made no commitments on health services under the GATS. The opportunities for trade in health services have encouraged an examination of national capabilities and constraints in pursuing them, in the context of the country’s public health objectives of ensuring access to quality health care. The DOH thus commissioned a study (Rodolfo 2010) to determine a request and offer schedule, taking account of the (a) linkages between trade in health services and the country’s health care system, (b) consistency with national health policies, (c) position of relevant stakeholders, and (d) consistency across multilateral, regional, and bilateral agreements. National health policy aims for universal access to quality health services. At present, this is being pursued through the 2-tiered public-private system that is characterized by resource and quality differentials. Public provision of health services is not covered by the GATS. Domestic regulations currently affecting trade in health services are: Mode 1 – recognition of medical services provided by internet/post, recognition of licenses and standards, liability concerns Mode 2 – portability of health insurance, accreditation and licensing Mode 3 – foreign equity rules, discriminatory tax, quantitative limits Mode 4 – Constitutional limit and laws on professions, e.g. economic needs test, accreditation and licensing, residency Aside from the existing regulations or infrastructural and capacity constraints, the absence of regulatory frameworks in such areas as malpractice liability, privacy and security of information, or insurance portability36, as well as existing regulations governing telecommunications, insurance, or finance, have an impact. (Rodolfo 2010) Using the WHO Diagnostic Tool on Trade and Health, Rodolfo assesses the country’s trade in health services for each mode of supply in terms of current level and form of trade, main strengths and weaknesses, health implications of trade policy and trade implications of health policy, and existing regulatory framework and key flanking policies under consideration. For Mode 1, the possibilities are e-health or the use of ICT for clinical, educational, and administrative purposes, under which telehealth provides diagnosis and treatment (telemedicine), or organization and management services between 2 or more locations. Since it is a non-core medical service, it has limited implications on the health sector and is less affected by health policies than by business and electronic commerce regulations (Rodolfo 2010) such as connectivity, lack of standards, data privacy policies and third party storage (APEC 2010). 36 This refers to the ability to claim reimbursements for health services provided in countries other where the insurance policy was purchased, rather than the continuity of coverage when changing jobs. This requires common standards of care, litigation, and diagnosis-related group system. 125 Mission Report 1 August 2011 - 23 February 2012 For Mode 2, medical tourism37 is being promoted, concentrating on 4 segments, i.e. hospitalbased services, specialty clinics, health and wellness, and retirement. Cross-cutting issues are tabulated based on an earlier study. Competitiveness rests on a country’s attractiveness as a tourist destination and reputation for cost-effective quality medical treatments. Medical tourism enables providers to generate earnings that can be used to improve capacities, but there are potential negative effects, such as aggravating the dual market structure (i.e. where a better organized private hospital system coexists with an underfunded public health system), crowding out the local population, diverting resources to foreign service providers and patients, and internal brain drain and cost escalation due to high technology investments. (Rodolfo 2010) For Mode 3, foreign investments are allowed in health services with a minimum $200,000 set for those targeting local residents; incentives are also in medical tourism ecozones although these apply only to those operations serving foreign patients. The operation of health facilities is regulated by the DOH. Issues affecting business generally affect health sector investments. (Rodolfo 2010) For Mode 4, the country is a recognized source of health service providers, while the Constitutional provision limiting the practice of professions to nationals has limited the inflow of foreign workers. Overall policy on worker deployment is market-driven owing to the remittances generated, although public resources used in training health workers are not recouped when they move. Imbalances caused by the outflow of workers could be temporary or permanent, while a high turnover rate could affect the quality of domestic health care. Because of the negative impact of out-migration, the country is adopting a “managed migration” approach based on the WHO Global Code of Practice on the International Recruitment of Health Personnel, through bilateral cooperation agreements with recruiting countries. (Rodolfo 2010) Rodolfo then identifies the risks and opportunities of trade in health services. While trade in health services can provide additional resources into the country’s health system, the benefits accrue mainly to the private health system and divert resources away from the public health system. Risks are concentrated in the public health system, whose mandate is to address public health needs particularly of the poor. Hence the challenge lies in directing the flow to the public health system, i.e., trade in health services must contribute to the availability of quality health care for all. Regulations are a non-market mechanism that can be used to maximize the benefits from trade in health services while improving the public health system. A regulatory strategy would consider (a) whether the public health system should have a passive or active role in trade in health services, (b) whether the government should stop or allow the outflow of resources from the public health system, including the role of regulation, (c) whether market forces or government action should maximize the inflow of resources into the public health system. TABLE 5.6. Classification of Health Services in W/120 and CPC W/120 1. Business services A. Professional services CPC version 2 37 Commitments refer to foreign service providers’ ability to access local markets. Local market refers to local patients who go abroad for health services. Hence medical tourism requires that foreign countries allow their nationals to travel here and apply their health insurance coverage to services received here. Health education for foreign students is yet another area. 126 Mission Report 1 August 2011 - 23 February 2012 h. medical and dental services j. services provided by midwives, nurses, physiotherapists, and paramedical personnel 8. Health related and social services A. Hospital services B. Other human health services 9312 Medical and dental services 93121 General medical services 93122 Specialized medical services 93123 Dental services 93191 Childbirth and related services 93192 Nursing services 93193 Physiotherapeutic services 93 Health and social services 931 Human health services 9311 Inpatient services 93111 Surgical services 93112 Gynaecological and obstetrical 93113 Psychiatric services 93119 Other services 9319 Other human health services 93194 Ambulance services 93195 Medical laboratory services 93196 Diagnostic-imaging services 93197 Blood, sperm and organ bank 93199 Other human health services n.e.c. The study thus suggests that the negotiation position should be based on the following principles (Rodolfo 2010): 1. for content, recognition of the primacy of domestic health goals and consistency with domestic laws and regulations 2. for process, a structured system of stakeholder consultations and ultimate decision by the government through DOH 3. for strategy, consistency of positions across multilateral, regional, or bilateral discussions, and preserving policy flexibility while ensuring the effectiveness of commitments The AEC Blueprint provided for substantial removal of restrictions, i.e. 70% foreign equity, in priority sectors that includes healthcare by 2010. To see how ASEAN Members have been complying with their targets, ERIA conducted a survey of current regulations affecting health services. TABLE 5.7. Regulations Affecting Health Services Mode 1 Mode 2 Mode 3 Entry Form of establishment; joint venture with local partner Scope of service Hospitals, medical laboratories No restrictions No restrictions No restrictions Professional services Firm may be foreign owned if service providers are nationals. Constitutional limits on the practice of profession preclude foreign- owned partnerships and single proprietorships. No restrictions Restrictions depend on category of hospital, not ownership 127 Mission Report 1 August 2011 - 23 February 2012 Number and type of clients Private ownership Foreign ownership Conditions for licensing Coverage of requirements Restrictions on operations No restrictions, except those in special EZs must have 60% foreign clients Allowed, up to 100% Allowed, up to 100%; but individual service supplier must be nationals Professional qualifications of key staff, conformity with quality assurance systems, service capability Requirements apply to nationals and foreigners Advertising Fees Participation in government contracts Universal service obligation Access to subsidies Mode 4 Employment of nationals in foreign invested firms Labor market test Qualifications of management Domicile of management No restrictions Allot 10% of bed capacity for free, to get license Restricted; must be PEZA- or Philhealth-accredited Required. BoD must also be proportional to the equity share of nationals Non-professional investors are allowed up to 100% equity in corporations For locals, professional exam, internship; for foreigners, assessment of license and qualifications Professional associations may reserve certain activities for members; PhilHealth reserves some activities for medical professionals Prohibit testimonials on drugs, food products, instruments or objects related to practice in public media Code of Ethics proscribes exorbitant fees Foreign owned professional service firms cannot be engaged in government projects None required Benefits may be claimed only if the foreign service firm is PhilHealth-accredited No minimum citizenship requirements for managers in foreign-owned corporations. 100% national for partnerships and sole proprietorships whose managers are also the professionals. Yes. BoD with voting rights are exempted Must have local professional license For 100% foreign owned, the majority of BoD must be residents Entry of professionals Residency requirement Restrictions on exit Source: ERIA, Competitive ASEAN Single Market 2010 Constitution reserves the practice of profession to nationals. Foreigners may be given temporary permits to practice, or admitted under reciprocity agreements. Permanent residency of > 12 months Exit permit required for selected sub-specialties TABLE 5.8. Horizontal Commitments under the GATS, AFAS, and PJEPA Limitations on Market Access Limitations on National Treatment Horizontal Commitments for All Services under the GATS, AFAS, PJEPA Mode 3: Mode 3 In activities reserved to citizens or entities with limited Access to domestic credit – A foreign firm in nonforeign equity participation – the participation of foreigners manufacturing and availing itself of peso borrowings, in the governing body is limited to their proportionate share shall observe the 50-50 debt-to-equity ratio. Foreign 128 Mission Report 1 August 2011 - 23 February 2012 of foreign capital. Managers must be citizens. firms covered are (a) partnerships, with 40% foreign On acquisition of land – All lands of the public domain are capital, (b) corporations, with more than 40% foreign owned by the State. Only citizens or entities with at least subscribed capital stock. (This does not apply to 60% Filipino ownership may own land and acquire public banks and non-bank financial intermediaries.) lands through lease. Foreign investors may lease only private-owned lands. Mode 4: Entry and temporary stay of natural persons - Non-resident aliens may supply a service if no person who is competent, able, willing to perform the service is available. Additional Horizontal Commitments for All Services under PJEPA Modes 1,2,3,4: LGU measures are unbound Modes 1,2,3,4: LGU measures are unbound Mode 3: Mode 3: In activities with 40% or less foreign equity in capital stock Banks are prohibited from extending peso loans to outstanding and entitled to vote – the percentage of non-residents. membership in the board of directors is limited to their proportionate share In activities with more than 40% foreign equity (a) the majority of directors must be residents and board secretary must be a citizen and resident, and (b) paid-in equity must be at least $200000 for domestic market enterprises, or at least $100000 if with advanced technology and 50 direct employees, or exports at least 60% of its output Mode 4: Practice of professions is limited to citizens except in cases prescribed by law Horizontal Commitments for Professional Services under AFAS and PJEPA Mode 4: PRC may, upon recommendation of Professional Regulatory Board, approve the registration and issue a certificate of registration/license and professional identification card, with or without examination, to a foreigner who has a certificate of registration from his country that has not been suspended, provided that: (a) the requirements for registration/licensing in his country are substantially the same as those required/contemplated by Philippine laws and allow Philippine citizens to practice the profession on the same basis and grant the same privileges; (b) PRC may authorize the issuance of a certification/ license or special temporary permit to: (i) foreign professionals who desire to practice their profession here under reciprocity and other international agreements; (ii) consultants in foreign funded, joint-venture or foreign assisted projects of the government; or (iii)employees of Philippine/foreign private firms/institutions pursuant to law, or health professionals engaged in humanitarian mission for a limited period of time (c) agencies/organisations/ individuals whether public or private, who secure the services of a foreign professional authorized by law to practice in the Philippines for the above shall be responsible for securing a special permit from the PRC and DOLE pursuant to their rules. TABLE 5.9. Commitments under AFAS for Professional Services Sector or subsector Limitations on Market Access All Subsectors Hospital services (9311) Other human health services n.e.c. Laboratory services (9319) (1) Unbound* (2) None (3) Up to 100% foreign equity is allowed, provided paid-in equity capital is (i) is least $200000 or (ii) not less than $100000 for domestic market enterprises with at least 50 direct Limitations on National Treatment Specific service outputs shall be recognized only if the foreign professional is registered with the PRC (1) Unbound* (2) None (3) None, except as indicated in the horizontal section 129 Mission Report 1 August 2011 - 23 February 2012 Services related to ergotherapy, speech therapy, homeopathy, acupuncture provided by paramedical personnel (93191**) employees; otherwise only up to 40% foreign equity is allowed (4) Employment of foreign professionals: as indicated in the horizontal section (1) None (1) None (2) None (2) None (3) Unbound, except that up to 50% (3) Unbound, except as indicated in foreign equity is allowed when paid-in horizontal section capital is: (a) not less than $200000 for domestic market enterprises, (b) not less than $100000 for domestic market enterprises with at least 50 direct employees, (c) not less than $100000 for domestic market enterprises involving advanced technology, or (d) service provider exports 60% or more of its output. (4) Unbound, except as indicated in the horizontal section for professional services NOTE: ** indicates that the specific commitment for the code does not extend to the total range of services covered under that code TABLE 5.10. Specific Commitments under PJEPA on Health Services SECTOR Hospital Services (9311) SS MODE 1 M Unbound* A MODE 2 None N Unbound* T None Health Professionals Medicine (9312**) M None, except services SS A outputs cannot be Nurses (93191**) recognized by the SS Philippine government N None, except services T outputs cannot be recognized by the Philippine government Dentistry (9312**) SS Optometry Midwifery (93191**) SS Medical Technology Physical and Occupational M Unbound* A N Unbound* T None None MODE 3 Up to 100% foreign equity is allowed, provided paid-in equity capital is (a) at least $200000, (b) not less than $100000 for domestic market enterprises with at least 50 direct employees; Otherwise only up to 40% foreign equity is allowed None, except as indicated in the horizontal section MODE 4 As indicated in the horizontal section None Corporate practice not allowed Doctors and Nurses: Foreigners may take exam under reciprocity arrangement Nurses: Provided the requirements for registration and licensing are substantially the same as those in the Philippine Nursing Act (RA 9173); Certificate of registration/ professional license may be issued without exam to foreign registered nurses, provided the requirements are the same, and reciprocity is followed; Special permit may be issued to a foreign licensed nurse who is an international expert, on free medical mission, or employed as exchange professor Corporate practice is not allowed Dentists: Certificate of registration is not required of commissioned foreign military dental officers, and dentists/oral surgeons invited for consultation or demonstration, provided authority was granted by the Board of Dentistry Optometrists: Foreigners may take exam under reciprocity including recognition of prerequisite degrees, or without 130 Mission Report 1 August 2011 - 23 February 2012 Therapy (93191**) SS Radiologic Technology restriction; Special permit granted if international expert or his services will promote professional advancement here, whether or not reciprocity exists with his country Midwives: Rights/privileges under Midwifery Act (RA 7392) granted under reciprocity, provided requirements for admission and graduation are substantially the same Medical technologists: Foreigners may take exam, be given Certificate of Registration, or granted rights/privileges under Medical Technology Act (RA 5527) under reciprocity Physical and Occupational Therapists: Foreigners may take exam under reciprocity; Registered foreigners may practice without taking exam if the requirements for their registration and licensing are substantially the same as the Physical and Occupational Therapy Law (RA 5680), & under reciprocity Radiologists: Exam is not required of foreigners invited to lecture/consult or as exchange professors, provided they are licensed to practice, they secure a special permit from the Board of Radiologic Technology, and follow reciprocity NOTE: SS indicates that the Philippines is not prevented from maintaining or adopting any measure with respect to the modes where “Unbound* is entered. RA 5181 prescribes reciprocity as a qualification for the examination or registration of aliens for the practice of professions, where it is not limited by law to citizens TABLE 5.11. Specific Commitments under PJEPA on Movement of Natural Persons (Article 110) Section and Type General: Natural Persons of Japan Sec. 1 Short-term Business Visitors Period of Stay Purpose Entry and temporary stay Requirements Visa prior to entry 59 days initial, may be extended every 2 months for a total of 1 year 1 year, may be extended Participate in business contracts, will not acquire remuneration from the Philippines nor supply services Manager, executive, or person with special knowledge or technology employed by a service supplier or investor in Japan who is being transferred to a branch or joint venture partner in the Philippines Exempt from the AEP or Alien Employment Permit from DOLE (Art. 40 of the Labor Code) Sec. 3 Investors 1 year, may be extended Sec. 4 Natural Persons of Japan who Engage in Professional Services Sec. 5 Natural Persons of Japan who Supply Services that require Advanced Technology or Knowledge or 1 year, may be extended Those who engage in investment and management of such or other business on behalf of another investor, or conduct business in which other foreigners have invested Engineers who have a contract with public or private organizations in the Philippines Sec. 2 Intra-Corporate Transferees 1 year, may be extended Technical, advisory or supervisory persons on contract with a public or private organization in the Philippines. (This does not include skilled (a) Special permit to practice from PRC (RA 8981) if his position constitutes the practice of a regulated profession, and an AEP from DOLE; (b) AEP from DOLE, if his position does not constitute the practice of a regulated profession (a) AEP from DOLE; (b) if the position constitutes the practice of a regulated profession, special permit to practice from PRC Special permit to practice the regulated profession from PRC, an AEP from DOLE AEP from DOLE 131 Mission Report 1 August 2011 - 23 February 2012 Special Skills in a particular field Sec. 6 Natural Persons of Japan who Supply Services as Nurses or Certified Careworkers or related activities labor nor the practice of regulated profession) 6 months for language training, may be extended for 6 months to 1 year for experience to take Philippine proficiency exam Qualified Japanese nurse is licensed under Japan law, graduate of a nursing course equivalent to a Bachelor’s Degree in Nursing in the Philippines, with 3 years work experience; Those who pass the proficiency exam may work only in hospitals identified by the DOH Language training in English and Filipino, culture orientation and related experience prior to proficiency exam, with exemptions from language training possible; exam may be taken up to 3 times during the 1 year stay; Those who pass may enter and stay for a period co-terminus with contract with a public or private organization, provided that a special permit to practice from PRC and AEP from DOLE are secured The importance of careful study prior to committing is highlighted by the inability of Filipino nurses to take advantage of the liberalized Japanese market because of the language proficiency problem. DOH supports trade in health services pursued in the context of public health objectives of equity, quality or patient safety, and accessibility to the disadvantaged. A medical tourism program is to be adopted that meets these objectives while enhancing the competitiveness of health care institutions. BOX 2.1.1. Issues to consider in developing negotiating positions for health services Horizontal measures 1. Do any measures directly or indirectly discriminate against foreign providers or impose market access limitations on foreign providers? 2. What is the nature of the government involvement in the sector: regulator, provider, or a combination? 3. Do domestic and foreign providers receive state support? Measures affecting cross- border supply (Mode 1) 1. Can nonresidents supply health services from across the borders? 2. Are specific activities restricted (including because they are considered technically unfeasible) in terms of crossborder supply? 3. Are there legal restrictions on the electronic submission of information documentation (for example, for reasons of data protection or other reasons)? 4. Where and how clearly are restrictions spelled out? 5. What are the policy reasons behind the restrictions? 6. Are there less trade restrictive means of achieving the same objectives? 7. Do any measures support enhanced applications of information and communication technology so as to allow improved cross-border supply? Measures affecting commercial presence (Mode 3) 1. Are foreign suppliers of services allowed to establish a commercial presence? Are they required to establish through particular legal procedures? If so, which ones? What is the prescribed legal procedure for a joint undertaking? 2. Are there any nationality requirements regarding management, the number of workers, or boards of directors? 3. Are there any prior residency requirements? 132 Mission Report 1 August 2011 - 23 February 2012 4. Are there any foreign equity limitations? 5. Are there any restrictions on the movement of professional, management, or technical personnel? 6. Are there any requirements for the transfer of technology, expertise, management skills? 7. Are there restrictions on the use of the names of international foreign firms? 8. Are established foreign firms subject to specific performance requirements, including local content and manufacturing requirements, and remittance and foreign exchange restrictions? 9. Where and how clearly are restrictions spelled out? 10. What are the policy reasons behind the restrictions? 11. Are there less trade restrictive means of achieving the same objectives? Measures affecting the movement of natural persons (Mode 4) 1. Are there limitations on the number of persons that may be transferred as intracorporate transferees? 2. Are there limitations on the number of persons delinked from Mode 3, such as doctors or nurses? 3. Are there specific requirements for providers (educational, qualification, licensing)? 4. Are there prior experience or post-qualification experience requirements attached to the issuance of visas or work permits? 5. How are entry permits and work permits obtained? 6. Are there time limitations on the presence of foreign providers of services (for example, duration of stay)? 7. Do measures limit the participation of foreign providers in the public sector? 8. Is the entry of foreign providers of services subject to economic needs tests? Measures relating to domestic regulations 1. Is there an adequate legal framework supportive of the trade in health services? 2. Are there provisions in domestic law that protect service providers from corruption, theft, and accidents? 3. Are there any qualification or licensing requirements or procedures or technical standards that affect (the trade in) health services? Issues relating to technical and security standards, professional qualifications, etc. 1. Are technical, industry, and security standards implemented? 2. Are these standards transparent and nondiscriminatory? 3. Is there an independent body monitoring the implementation of these standards? 4. Is there widespread data security in the country? 5. What conditions must foreign providers of services fulfill to meet the requirements of existing mutual recognition agreements to which the host country is a party? 6. Must foreign providers of services be locally established to participate in mutual recognition agreements? Universal access 1. What universal service regulations apply? 2. May the government impose obligations relating to universal access on service providers? 3. What measures or mechanisms are in place for the achievement of public service obligations? 4. Are these measures objective and transparent? 5. Are foreign suppliers of services subject to different conditions relative to domestic suppliers in relation to public service obligations? Issues relating to adequate technology, equipment, and so on 1. Are there any restrictions on the temporary admission of the equipment necessary to provide services? Competition issues 1. Are there sectoral exemptions to competition law that affect the conditions of competition? What is the role of professional bodies in determining the conditions of competition? 2. Are there limitations on competition between domestic service providers and foreigners? 3. Do any licenses grant exclusive rights? Preferential liberalization measures, most favored nation obligation 1. Do any preferential agreements, including in the regional context, affect the supply of any health services? 2. Do these preferential arrangements apply to the movement of natural persons? 3. Do any preferential access measures favor developing countries? Source: Saez and Lanoszka, Chapter 4 (WB 2010) 133 Mission Report 1 August 2011 - 23 February 2012 Further Readings: • Rodolfo, C., “Development of a Request and Offer Schedule for Trade in Health Services”, submitted to DOH-BIHC, Nov 2010 • Smith, R., et al., “Trade in Health Services and the GATS”, in Mattoo, A. et al., eds., A Handbook of International Trade in Services, WB 2008 • Vieira, C. ed., Trade in Health Services: Global, Regional, and Country Perspectives, Pan American Health Organization, 2002 134 Mission Report 1 August 2011 - 23 February 2012 6. Trade Remedies This chapter reviews the economics and disciplines in the use of trade remedies, as established in the WTO agreements and case law. Trade agreements contain provisions that allow contracting parties to temporarily suspend or modify their obligations under certain conditions. These actions are supposed to be taken only to mitigate unforeseen harm that a country incurred because of its participation in trade. But trade remedies are not only contingency measures; they are also seen as “safety valves” or “escape clauses” that permit a country to revert to protectionism when it deems expedient. Trade remedies take several forms – some are openly sanctioned, while others are implicitly allowed for lack of expressed prohibition or because they fall outside the scope of existing agreements. The commonly used measures are the anti-dumping duty (AD), countervailing duty (CVD) and safeguards38, all of which have well-defined rules for application. The first two measures are intended to offset the injury to domestic industry caused by unfair trading conditions due to dumping (price undercutting) of foreign producers and subsidization by foreign government of its own producers, respectively. Safeguards, on the other hand, are not prompted by anticompetitive condition or behavior of a trading partner, but by unexpected surge in imports that inflicted, or threaten to inflict, serious harm to the domestic industry. These popularly used remedies are governed by separate agreements that all came into force in 1995 following the Uruguay Round, namely: the Anti-Dumping Agreement (ADA), Agreement on Subsidies and Countervailing Measures (ASCM), and Agreement on Safeguards (ASG). There are other trade remedies built into the WTO agreement, such as renegotiation of concessions39, adjustments in applied tariff rates, imposition of export taxes, balance of payments restrictions, and Article XX general exceptions. These measures though have been availed sparingly and only by few members because of their stringent requirements. While all trade remedies reduce or block trade, each has its own set of trigger conditions that also provide rationale for its application. The nature and degree of domestic injury being redressed is also different for each of these remedies. Accordingly, the agreements provide for specific requirements, duration and procedures for application. Therefore, strictly speaking, these remedies are not alternatives to each other in the sense that a country may choose which to use. Rather, the circumstances dictate the trade remedy that may be applied. The rest of the chapter is organized as follows. The first section presents contrasting views on the role of contingency measures in trade agreements, the trade remedies allowed by the WTO agreements, and the utilization of these remedies since 1995. Whether one views trade remedies as necessary flexibility to elicit deeper commitments, or derogation of existing commitments, the fact remains that they are present in almost all trade agreements. Provisions allowing the use of trade remedies existed in 1947 GATT, were carried over in the 1994 agreement, and have been adopted since in almost all preferential trade agreements. Clearly, trade remedies are still considered indispensable in the present trading system, and will likely remain so in the near future. For this reason, the rules for their application have to be tightened to prevent abuse. 38 39 In addition, the Agreement on Agriculture provides for a special safeguard. See Article XXVIII, GATT 1994, and Article XXI, GATS. 135 Mission Report 1 August 2011 - 23 February 2012 Already, the 1994 GATT managed to plug many loopholes that riddle past application of remedies. But there still remain some ambiguities in the rules that can be exploited to serve protectionist ends. The second, third and fourth sections review respectively the key provisions and contentious issues in the ADA, ASCM and ASG, with the end view of identifying these ambiguities. The final section pulls together the ambiguities common in the three agreements allowing the use of remedies for other purposes besides addressing the specific conditions that justify their use. 6.1. Rationale for and Extent of Use of Trade Remedies The Case for and Against Trade Remedies There is nearly general acceptance now on the value of trade remedies in trade agreements. An apparent minority, however, still opposes trade remedies because they create opportunities for backsliding in commitments. The issue is whether trade remedies undermine or reinforce the credibility of the agreement. The balance of arguments seems to weigh in favor of the latter. Yet the case against trade remedies is simple. A trade agreement reduces a government’s discretionary power in setting tariffs and returning to trade protection unilaterally. The bind of a trade agreement shields the government from pressure by protection-seeking domestic groups. But the availability of trade remedies renders the government vulnerable to pressure from these groups. So long as it can be shown that domestic producers suffer injury as a result of trade, a government can exercise its discretion whether to raise duties on imports. This gives producers a signal that they can compel their government to revert to protection. That perception weakens the discipline of market competition brought onto them by trade. As a result, the political and economic value of binding a country to a trade agreement is deemed diminished by trade remedies. Since the application of trade remedy is a unilateral action, it is also considered incompatible with collective action which is the norm in a multilateral system.40 Trade remedies give individual members license to depart from the set of rules agreed upon by all participants in the trading system. Consequently, they undermine the credibility of the multilateral agreement. Proponents of trade flexibilities use the very concerns of the opposing side to bolster their position. The main idea is that instead of undermining the agreement, the discretion to renege facilitates the forging of the agreement, and encourages countries to make deeper commitments. The reasons are as follow. First, giving national governments discretion dispels false perception that a country loses its domestic policy-making power when it signs into a multilateral agreement. This makes the agreement more acceptable to domestic constituencies, and thus lowers the political costs of signing the agreement. Second, trade remedies convey some kind of assurance that commitments are good only under “normal” conditions, and therefore, concessions can be taken back when unforeseen conditions make it too costly to continue adhering to the agreement.41 Without such assurance, a country has to make allowance for too many unforeseen events, and would tend to be cautious in its commitment. Third, the 40 Ethier (2002). Related to this point, Sykes (2006) calls it an “efficient breach” of the trade agreement whenever a country backslides because the cost of observing the agreement exceeds the benefits for its trading partners. 41 136 Mission Report 1 August 2011 - 23 February 2012 right to use contingency measure can be seen as compensation for committing to pursue a faster pace of liberalization.42 If an accelerated pace of tariff reduction causes imports to surge, and thus harm to domestic producers, a contingency measure can be taken to give time to domestic producers to adjust.43 Thus, the right to withhold commitments emboldens a country make more liberal commitments. Trade remedies serve other purposes as well. They prevent an agreement from breaking apart when some parties need to renege on their commitments temporarily. In this sense, trade remedies lend credibility to the sustainability of an agreement because parties have fallback measure when conditions become difficult to keep up with the intent of the agreement. They also function as “safety-valve” to dampen fluctuations in trade volumes which can destabilize incomes and provoke protectionist policies.44 And although trade remedies are supposed to be temporary measures that must be removed when the conditions that trigger their imposition no longer exist, they can be employed as tool for domestic industry promotion. This is particularly relevant when domestic producers are falling behind their foreign counterparts or recovering from economic difficulties. When a remedy is retaliation against unfair policy or practice by a trading partner, it could deter future “undesirable” behavior or policies that are inconsistent with the terms of the agreement such as subsidy to domestic producers. Finally, a trade agreement, like most others, is necessarily an incomplete contract because it cannot possibly anticipate and provide for all events affecting trade flows. Trade flexibilities address this deficiency. Since not all events bearing on the agreement can be anticipated, it makes sense to combine discretionary policy with rigid and specific commitments. While the foregoing theoretical arguments are persuasive, the empirical literature does not provide conclusive support either for or against trade remedies. There is no conclusive evidence that trade remedies encourage countries to deepen their commitments. Nor is there demonstration on the effectiveness of trade remedies as contingency measures, i.e., helping domestic producers cope with gyrations in trade. For example, when the US used safeguards on steel, it was found that domestic producers were helped more by other economic factors such as improved macroeconomic conditions and increased demand than by trade remedy.45 Likewise, the findings of one study on the impact of an anti-dumping action on productivity of domestic producers are not particularly encouraging to those contemplating to use trade remedies for industrial promotion. Specifically, producers that have high productivity prior to the measure incur productivity losses, while others experienced some productivity increases but not enough for technological catch-up.46 Yet there is also no sufficient evidence to conclude that remedies are being used to derogate commitments. At best, the trend in anti-dumping action seems to follow the business cycle and real exchange rate movement, and is affected by industry-level factors.47 Despite the absence of positive evidence that remedies are trade-facilitating, they certainly affect trade flow one way or another. One study in the US finds that foreign producers tend to adjust 42 Ethier (2002). Jackson (1997). 44 Bagwell and Staiger (1990). 45 Liebman (2006). 46 Konings and Vandenbussche (2008). 47 WTO(2009), p. 156. 43 137 Mission Report 1 August 2011 - 23 February 2012 their prices to avoid anti-dumping duties.48 Another confirms that mere filing of anti-dumping case can have a chilling effect on trade, i.e., imports decline while domestic production increases. This happens also when national authorities declare that dumping exists even before a duty is imposed.49 Domestic production is bolstered more when foreign producers relocate their production facility in the economy or invest in domestic producers to evade anti-dumping duty. This so called tariff-jumping foreign direct investment (FDI) benefits consumers, but is a bane for domestic producers. It has been suggested that the impact on domestic producers of tariffjumping FDI is worse than dumped imports.50 Evidence of tariff-jumping FDI was found to apply to Japanese investments in the US, and more recently, to investments from other sources as well. The data also suggest, quite surprisingly, that foreign investments tend to respond more to threat of safeguards than to threat of anti-dumping measures.51 Trade remedies are also feared to have the trade diverting effects of a protective tariff. This arises when imports from countries targeted by trade remedy are replaced by imports from other countries. Since the former are often more efficient producers than the latter, there is loss of efficiency associated with trade diversion. The empirical evidence on trade diversion is not however conclusive. Studies in the US market show trade diversion is more significant in the manufacturing sector than in agriculture.52 However, trade diversion due to EU anti-dumping measures was found low. This was attributed to: (i) lower market concentration in the EU compared to US markets; (ii) use of injury margin in EU, instead of dumping margin in US, as basis for anti-dumping duty; and (iii) uncertainty in the level of actual protection afforded by EU regulators to their producers.53 Theory suggests that trade remedies, like any other protectionist measure, pit the interest of domestic producers against those of domestic consumers. Testing this hypothesis requires the use general equilibrium analysis, of which there are few. One study in the US finds that even when applied to a small volume of imports, a trade remedy measure can exact huge cost to the economy.54 Another study, based also on US experience shows that when the protected product is an intermediate good, while domestic producers are clearly benefited by an anti-dumping measure, the impact on customers of the protected product is not clear-cut. But in the semiconductor industry, where technological spillovers between producers and customers are significant, trade remedy applied in an upstream sector clearly benefits the users in the downstream sector.55 Menu of Trade Remedies Under the WTO disciplines, members may temporarily suspend their commitments under a set of specific conditions, or modify them through some protocols. These conditions include unexpected and sudden increase in competition, unfair trade, external economic imbalance, 48 Herander and Schwartz (1984). Staiger et al. (1994). 50 WTO (2009), pp. 154-155. 51 Blonigen and Feenstra (1997). 52 For manufacturing sector, see Prusa (1997), while for agriculture, see Carter and Gunning-Trant (2007). 53 Konings, et al. (2001), cited in WTO (2009), p. 154. 54 The pertinent study is by Gallaway et al. (1999) that estimated the net economic welfare cost of antidumping and countervailing measures in 1993 to be about US$4 billion dollars. 55 Hughes et al. (1997). 49 138 Mission Report 1 August 2011 - 23 February 2012 development imperative and threat to public interest. permitted. • • • • • • The following trade remedies are In case of an import surge that causes or threaten to cause serious injury to domestic producers of like or directly competitive products, Article XIX of GATT and ASG sanction the application of safeguards. When an exporter dumps (i.e., sets price below the normal value of the good) causing or threatening to cause material injury to domestic producers of like products, the country can take anti-dumping action, as stipulated in Article VI of the GATT and ADA. The grant of subsidies by a foreign government to its producers supplies basis for an importing country to impose countervailing duties on the subsidized good under the terms of ASCM. Faced with imminent balance of payment (BOP) crisis, a developing country may impose restrictions on imports under Articles XII and XVIII, Sec. B of GATT and Article XII of GATS. Developing countries are also allowed to provide temporary protection to an infant industry, as set forth in Article XVIII, Sections A and C of GATT. The protection may entail removal of tariff concessions and introduction of quotas and other forms of non-tariff restrictions. Finally, trade restrictions may be justified by the need to protect “essential security interests” (Art. XXI of GATT); to protect public morals, human, animal, plant life or health and to secure compliance with laws and regulations that are WTO –consistent (Art. XX of GATT and Art. XIV of GATS); and to preserve natural resources, protect national treasures and prevent exports of goods in short supply (Art. XX of GATT). In practice, the BOP measures have become irrelevant because of the general movement towards flexible exchange rate system, and the new legal framework that subjects the measures to stringent surveillance by a WTO Committee.56 Yet the surveillance and approval procedures are even more restrictive for infant industry measures, such that developing countries would rather apply BOP measures to promote an infant industry.57 As a result, the only accessible remedies for most countries are anti-dumping, countervailing and safeguards. But in the absence of specific conditions that justify the use of anti-dumping, countervailing or safeguard measure, a country may seek to modify its commitments by means of waiver or renegotiation. The rules governing both measures are however sufficiently stiff to discourage their use except under really exceptional cases. Concretely, a country may be given a waiver in any of its obligation only temporarily, and only through a consensus by the Ministerial Conference. (By comparison, most decisions by the WTO body require only a vote of threefourths of the members.) On the other hand, only tariffs in the GATT (Article XXVIII) and commitments in the GATS (Article XXI) can be renegotiated. If renegotiation and waiver are not available to a country, two options remain: adjustment in tariffs up to bound levels and imposing restrictions on exports. Both options are accessible to more countries than a waiver or renegotiation. But of course tariff adjustment is only feasible if there is a wedge between applied and bound tariffs, as is true for many agricultural products. Export restrictions, on the other hand, are not bound by any discipline. But since they amount to negative protection to domestic producers, any government imposing such measure would need 56 57 WTO (2004a). WTO (2009), p. 38. 139 Mission Report 1 August 2011 - 23 February 2012 a compelling reason to defend its action to its constituencies adversely affected by the measure. Possible justifications for imposing export tax include controlling inflation, raising government revenue, supporting an infant or declining downstream industry, and protecting the environment.58 Use of Trade Remedies Since 1995, there has been a noticeable increase in the number of investigations (initiations) as well as actual applications of anti-dumping measures. Is this an indication that while more countries have improved on their commitments to bring down trade restrictions, more have also resorted to trade remedies to maintain the status quo level of protection? If this were the case, then countries apply make trade concessions only to offset them by applying trade remedies, which suggests simply that decades of multilateral work have been all for naught. Fortunately, this is not the case. Part of the reason for the increase in the use of anti-dumping measures is that until the late 1950s, countries relied more on quantitative restrictions, licensing requirements and foreign exchange controls to cope with trade fluctuations. These measures are no longer sanctioned by existing rules, hence the shift to anti-dumping measures, and to some extent to countervailing measures and safeguards. More frequent use of trade remedies is also a natural consequence of greater trade. But more important, the more recent anti-dumping measures are less trade restrictive than before. Case in point: the average anti-dumping duty imposed by the US, which accounts for the most number of initiations and application of antidumping measures, was 41.4% during 1980-1995, but only 5.2% during 1996-2007. EC’s average anti-dumping duties for the same periods also declined from 17.6% to 6.4%, while China’s, from 21.4% to 13.8%.59 Clearly, the duties are substantially lower now. Anti-dumping measures are much more frequently utilized than other forms of trade remedies as shown in the table below. At least a third of the initiations (investigations) do not lead to actual application of the measure. And less than one-third of WTO membership (total of 153 members) used any of the measures since 1995. Table 6.1 Initiations and Application of Anti-dumping, Countervailing and Safeguard Measures, 1995-2010 Initiation Final Measures All members Anti-dumping measure 3, 854 (46 countries) 2,543 (40 countries) Countervailing duties 254 (20 countries) 163 (19 countries) Safeguards 216 (45 countries) 101 (29 countries) Philippines Anti-dumping measure 12 7 Countervailing duties 0 0 Safeguards 9 6 Source: Based on WTO Integrated Database. Like most other members, the Philippines availed of the remedies sparingly over the 16-year period. It initiated only 12 anti-dumping investigations, on which it found sufficient basis for applying the measure on only 7 cases. On the other hand, anti-dumping investigations were 58 These are the reasons used by governments that imposed export taxes, gathered from WTO Trade Policy Reviews from 1995 to 2008 (cited in World Trade Report 2009, pp . 111-112.) 59 WTO (2009), p130. 140 Mission Report 1 August 2011 - 23 February 2012 initiated against Philippine exports 18 times during the same period; duties were applied in 11 cases.60 As the statistics do not suggest that WTO members abuse their right to use remedies, the concern has now focused on the adoption by an increasing number of preferential trade agreements (PTAs) of their own trade remedy rules that are tighter than those in WTO agreements. The implication of stricter, PTA-specific rules is that more trade remedies may be applied against non-members than members of PTAs. This will increase discrimination in trade and lead to more serious problem of trade diversion. A study by Teh et al., (2009) found that PTA-specific rules have higher de minimis volume and dumping margin requirements, and shorter duration for applying anti-dumping duties than those provided for in ADA. In addition, some regional bodies are involved in the investigation and final determination of anti-dumping measure, whereas the national authorities alone conduct the investigation and final determination under WTO rules. PTA-specific rules on safeguards are likewise more restrictive than those provided in ASG; the measure can be applied only during the transition period, for a shorter duration, and conditional on compensation to affected trading partners. Nonetheless, the study found that PTAs that disallow the use of trade remedies are rare. Out of 74 PTAs examined, only 9 disallow anti-dumping measure; 5 dispense with countervailing measure; and 5 prohibit the use of safeguards. Only the European Communities disallow the use of any form of trade remedy. And for this exceptional PTA, the level of integration is so deep as to expect the same from other PTAs. This is an indication that trade remedies are needed in most trade agreements.61 6.2. Key Provisions and Issues in the Application of Anti-Dumping Measures As tariffs fall, a country’s right to take action against dumped imports that is causing injury to its domestic industry becomes even more important. This probably explains why in most rounds of trade negotiations since GATT 1947, the rules on anti-dumping action were the subject of discussion and negotiation. During the Dillon Round (1960-61), a Group of Experts agreed on a common understanding of some of the terms in Article VI of GATT. But it was in the Kennedy Round of 1964-67 that anti-dumping became a significant GATT issue. Signed by 17 countries, an Anti-Dumping Code came into force. In the Tokyo Round (1964-67), this Code was revised and subscribed to by 25 countries (counting the European Community as one). And as a result of the Uruguay Round (1986-94), the ADA was forged and made integral to GATT 1994. Article VI of GATT 1947 was carried over to GATT 1994, which now reads as follow: The contracting parties recognize that dumping, by which products of one country are introduced into the commerce of another country at less than the normal value of the products, is to be condemned if it causes or threatens material injury to an established industry in the territory of a contracting or materially retards the establishment of a domestic industry (para. 1). 60 Anti-dumping duties against Philippines exports were imposed by Korea, Malaysia (2), Hong Kong (1), Indonesia (1), Russia (2), Taipei, China (1), Germany (1) and China (2). 61 The ASEAN Free Trade Area (AFTA) has no specific provisions for anti-dumping and countervailing measures, but allow their use against members. It has, however, specific provisions for safeguards. 141 Mission Report 1 August 2011 - 23 February 2012 The need for a separate agreement focused on anti-dumping is succinctly expressed in Article 1 of ADA: An anti-dumping measure shall be applied only under the circumstances provided for in Article VI of GATT 1994 and pursuant to investigations initiated and conducted in accordance with the provisions of this Agreement. ADA therefore lays down the rules and requirements for applying anti-dumping action, the purpose of which is to make them more transparent and consistent across countries which have their own national laws on anti-dumping. This section expounds on the substantive rules of ADA and still unresolved issues in the application of anti-dumping measure. A major concern is that despite the fact that an antidumping measure may only be applied after adhering to a strict set of transparent procedures, the sheer threat of anti-dumping action is sufficient to curb imports and achieve its protectionist goal. Economic Rationale Even as anti-dumping action is legitimized by various international agreements and national legislations, the negative sentiments toward the use of anti-dumping remain. Finger (1991) articulates the cynicism well: Antidumping is not [a] public policy, it is [a] private policy. It is a [policy of] harnessing of state power to serve a private interest: a means by which one competitor can use the power of the state to gain an edge over another competitor …Antidumping is the fox put in charge of the henhouse: trade restrictions certified by GATT. The fox is clever enough not only to eat the hens, but also to convince the farmer that it is the way things ought to be. Antidumping is ordinary protection with a grand public relations program (pp. 41-42, underscoring author). This cynicism has its basis in the history, theory and practice of anti-dumping. According to Viner (1923), early proponents of anti-dumping enforcement were arguing for import protection, which was why most dumping charges were hurled against England (the first to undergo Industrial Revolution) by countries that were then lagging behind England.62 By characterizing dumping as a form of price discrimination and an exercise of monopoly power by a foreign firm, an action against it becomes more politically acceptable than ordinary protection, since it is in response to an “unfair” trade behavior. This is especially so if dumping is viewed as a purely predatory strategy by a foreign producer, aimed at driving out domestic producers to establish a monopoly. Yet even Viner (1923) recognized that predation is only one of possible motivations for dumping. A firm may engage in what is construed as dumping to dispose of a surplus, or create goodwill in a new market, or take advantage of economies of scale by expanding output and sales, or retaliate against dumping by a foreign firm. None of these other motivations can be deemed as unfair or anticompetitive to justify antidumping action by the importing country. More recent explanations on why firms dump do not also ascribe anticompetitive intent. Ethier (1982), for instance, argues that dumping is a result of firms having difficulty in adjusting their 62 Finger (1991), pp. 1-3. 142 Mission Report 1 August 2011 - 23 February 2012 costs as fast as prices. Cost adjustment is more difficult because firms cannot easily lay off workers or reduce their capital stock, especially if there is uncertainty whether the observed downturn in demand is temporary or otherwise. Clarida (1993), on the other hand, rationalizes dumping as a means by which firms are able to scale down the learning curve (and take advantage of learning-by-doing effects). This means that by producing more, they become more technically efficient, but as a result, they have to dump their excess production. One inference that may be drawn from this theory is that an antidumping action has more insidious effects on producers in developing countries, than on their counterparts from developed countries, as the former are prevented from moving down faster on the learning curve. But even if predation were the supposed motive for dumping, several issues may be raised as to whether it is at all feasible. The prerequisites for successful predation are often lacking, namely, sufficient market power to drive out all competitors in the market (both domestic and other foreign producers), and high entry barriers so that losses incurred during predation could be made up for after competitors leave the market. The later condition is often most difficult to guarantee because a high price during recoupment invites entry of new firms or reentry of old competitors unless barriers to entry are difficult to overcome. Absent of an opportunity to recoup, incurring losses even in transition is not sensible. If this is the case, then predation is difficult to achieve and should therefore be eliminated among possible motivations for the pricing strategy. Newer theories attempt to explain the viability of predatory dumping in case domestic producers have incomplete information or if credit markets are imperfect. In the former, a high-cost foreign firm is able to “trick” domestic firms in believing that it is more efficient than them by pricing its product below cost. In the latter, creditors do not have sufficient information to discern that the financial losses incurred by domestic producers is not due to their inefficiencies, but it is actually an “artificial” or temporary situation due to the dumping behavior of a foreign firm.63 The problem with both theories is that neither addresses the issue of recoupment. That is, even if domestic producers could be driven out of the market because of incomplete market information or imperfect credit market, they could not be prevented from reentering the market when the predator foreign firm attempts to recover losses, if entry barriers are not high enough. If dumping is not predatory but induced by some other factors, then it is not necessarily an unfair practice that may justify retaliatory action in the form of antidumping duty. In fact, it bears asking if consumer welfare is promoted by antidumping measure. Economic theory suggests otherwise. When dumping is other than predatory, preventing it deprives consumers of the benefits of enjoying lower import prices. Anti-dumping duty is similar to a protectionist tariff that favors domestic producers, generates tax revenue for the government, but raises prices of goods for domestic consumers. The gains of domestic producers and government are less than consumers’ losses, resulting in overall efficiency losses. In addition, consumers’ losses may be magnified when they are not only able to reap the benefits of lower prices now, but also in the future in case dumping was in fact motivated by learning economies. Whereas the benefits of anti-dumping measure are ambiguous at best, the risks are palpable. First, since anti-dumping duty is not applied to imports from all sources but rather to a targeted 63 These theories are due to Hartigan (1994) and Hartigan (1996), cited in the World Trade Report 2009, p. 67. 143 Mission Report 1 August 2011 - 23 February 2012 source, it may cause diversion of trade to less efficient sources. Second, just like tariff protection, anti-dumping duty may induce foreign firms to set up domestic production in order to evade application of anti-dumping duty. Domestic producers may find this a less desirable outcome since foreign direct investment (FDI) is a tougher competition than imports. Third, dumping protection applied to a specific sector will disadvantage another sector that uses the protected output as intermediate inputs. This may then compel the government to apply the antidumping measure to both upstream and downstream industries.64 Fourth, mere presence of anti-dumping law may facilitate collusion between domestic and foreign firms, thereby keeping prices of domestic and imported goods high. This happens when domestic firms are able to use the threat of anti-dumping initiation against foreign producers if the latter do not keep their prices in line.65 In sum, there is enough skepticism on whether anti-dumping measure is different from other instruments of protection. While the measure is depicted as a necessary action of the government to offset the supposed anticompetitive behavior of a foreign producer, there are more plausible explanations, besides predation, on why firms may engage in dumping. These alternative explanations appear to be “normal” behavior of firms operating in a competitive environment. If dumping is not predatory or anticompetitive, then a measure to counteract it amounts to unwarranted intervention in the market. Conditions justifying anti-dumping measure Despite the foregoing, anti-dumping measure has gained “legitimacy”, not least in the WTO. The numerous negotiations concerning anti-dumping measure had not changed its substance – they have only added clarity to its intent and made the application procedures more transparent. The apparent intent, which is preserved in the evolution of text in laws and agreements on dumping, is to afford protection to domestic producers up to the extent of keeping prices of imported goods to a level that would cover production costs plus a reasonable level of profits. Any price below this level is deemed “unfair” and prompts a country to take action, if it can be shown that such pricing caused or threaten to cause material injury to domestic producers. This principle is well reflected in the complex process of determining the presence of dumping and calculation of dumping margin, which are discussed in the next sections. For purposes of Article 2 of ADA, the “determination of dumping” involves comparison of export price and normal value. Yet it is clear in Article VI of GATT that a demonstration of domestic injury related to export price is integral to the final determination of whether anti-dumping measure can be imposed. The process of determining injury is dealt separately in Article 3. There are reasons for drawing distinction between dumping and injury determination. First, it highlights the fact that not all instances of dumping merit the application of anti-dumping measure; only those where domestic injury is also found. Second, some terms commonly used in both determinations actually refer to different things. For example, “like product” in dumping determination refers to products sold in exporting country that are “identical” (i.e., alike in all respects) to the allegedly dumped product. On the other hand, “like product” in injury determination refers to products sold by the domestic industry that are identical to the allegedly dumped product. Third, the investigation periods for dumping and injury determination are also 64 65 Hoekman and Leidy (1992). Prusa (1992). 144 Mission Report 1 August 2011 - 23 February 2012 different; the former is shorter (about 6 to 12 months), while the longer period in the latter (at least 3 years) is necessary to distinguish “trends” from fluke. Dumping Determination It should be made clear at the onset that the act of dumping is with reference to a particular product from a particular producer or exporter. Loosely speaking, if a producer or exporter sells a product to another country at a price below the usual commercial value of such product, it is considered to have dumped that product. Article 2.1 of ADA refines the concept as follow: … a product is to be considered as being dumped, i.e., introduced into the commerce of another country at less than its normal value, if the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country (underscoring author). Dumping is determined therefore by comparing export price and so called normal value of a like product. Since nothing in this definition alludes to the intention of the exporter; it may be inferred that the reasons for dumping (or conditions that trigger dumping) are irrelevant in the determination. However, it is implied in the above definition that dumping applies only to “products” (i.e., goods), not services. To be methodical, dumping determination involves four steps: (i) identification of like product; (ii) determination of export price; (iii) calculation of normal value; and (iii) comparison of export price and normal value. Like Product The starting point is identifying “like product” or product that is alike the allegedly dumped good. The price of like product in the home market of the exporter would then be compared with the export price of the good at issue. Article 2.6 of ADA defines “like product” for purposes of the agreement as: … a product which is identical, i.e., alike in all respects to the product under consideration, or in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the product under consideration. To implement this definition, investigating authorities (tasked to determine the presence of dumping) uses the following criteria: physical characteristics, uses, interchangeablity (substitutability) of products, channels of distribution, customer or producer perception, manufacturing facilities and production employees, and production processes.66 A product that shares with the product at issue the same physical characteristics, uses, channels of distribution, etc., is considered “like” for purposes of this agreement. In practice, products are considered like when they share the same product code classification. Where necessary, product codes can be developed to account for very detailed characteristics. For example, in one anti-dumping investigation conducted by the 66 ADB (2009), p. 12. 145 Mission Report 1 August 2011 - 23 February 2012 European Commission, it distinguished subgroups of product under the heading of “Atlantic salmon”, based on the quality of fish (superior, ordinary, or other quality fish), whether fresh or frozen, cut of the fish (i.e., whole, gutted, with head on or off, trimmings, etc.) and size of the cut. Without data to support a detailed classification, however, the like product should at least belong to the same 6-digit HS code as the allegedly dumped product. Export Price The determination of export price is more straightforward. It refers to the transaction value reflected in the commercial invoice, bill of lading and letter of credit. If there is no such price or if the quoted price is unreliable due to transfer pricing (i.e., when the seller and buyer are related), Article 2.3 of ADA stipulates that the export price may be constructed on the basis of the price at which the imported product is first resold to an independent buyer within the importing country, adjusting the same for the costs, duties and taxes incurred in, and profits accruing to, reselling the product. These adjustments, left to the discretion of the investigation authorities, can be contentious as they could lower the constructed export price and therefore raise the likelihood of finding a dumping. Normal value Once the like product is identified, the next task is to establish its “normal value” or its price “in the ordinary course of trade.” Normal value is preferably based on the domestic price of the like product in the home market of the exporter. ADA does not define “ordinary course of trade” but in practice, sales below cost is treated as not being “in the ordinary course of trade” when they are made: (i) (ii) (iii) within an “extended period” (i.e., 6 to about 12 months); or in substantial quantities (i.e., at least 20% of the volume sold); or at prices that do not allow recovery of all costs within a reasonable period of time. The following examples demonstrate these principles.67 Suppose the domestic prices of a product that is regarded “like” the export product at issue are as follow: Date August 1 August 10 August 15 August 20 Quantity 10 10 10 10 Domestic price 40 100 150 200 Export price 50 100 150 200 From the foregoing, the price on August 1 must be excluded from the consideration of normal value because it is considered “sales below cost” in substantial quantities (comprising 25% of the total volume sold). This raises the “normal value” to 150, which is the weighted average of all domestic prices after August 1, while the “export price” is 125, the weighted average of export 67 ADB (2009), p. 97. 146 Mission Report 1 August 2011 - 23 February 2012 prices for the same period. Since the export price is below normal value, a finding of dumping is supported. Ignoring the 20% rule would have led to an opposite finding, since the weighted average “normal value” and “export price” would have been 122.5 and 125, respectively. Now suppose that at any time, the same product is sold by the producer-exporter to different consumer groups in its home market at different prices. Product A A A A A Quantity 50 650 100 150 50 Domestic price 95 105 95 105 100 Cost of production 100 100 100 100 100 For 20% of total volume sold in the home market, selling price is not above the cost of production. This is considered “sales below cost” in substantial quantities. Put differently, the weighted average of domestic prices, 103.5, while above cost of production, cannot be taken as “normal value in the ordinary course of trade.” In the preceding example, therefore, domestic price cannot be fairly compared with export price. It is also not a fair basis of normal value when sales of like product in the home market of the exporter is too low in that it constitutes less than 5% of total sales. Under these circumstances, Article 2.2 of ADA requires the normal value to be based on either the export price to a third country or a constructed value. The first is rarely used in practice, for good reasons. If a product is dumped in one market, it is likely to be dumped also into a third country market.68 As a result, normal value is usually constructed using the exporter’s production and sales data. In constructing normal value, the purpose is to approximate as closely as possible the price of the exported product if it were sold in the domestic market of the exporter. Such price is deemed equal to the cost of production of the exported product plus a “reasonable amount” for selling, general and administrative (SGA) costs and for profits, to be deduced from the actual production and sales data submitted by the exporter or producer under investigation. However, if the normal value cannot be determined on this basis, then Article 2.2.2 suggests the use of any of the following: (i) (ii) (iii) 68 the actual amounts incurred and realized by the exporter or producer in question in respect of production and sales in the domestic market of the country of origin of the same general category of products; the weighted average of the actual amounts incurred and realized by other exporters or producers subject to investigation in respect of production and sales of the like product in the domestic market of the country of origin; and any other reasonable method, provided that the amount for profit so established shall not exceed the profit normally realized by other exporters or producers on sales of products of the same general category in the domestic market of the country of origin. ADB (2009), p. 19. 147 Mission Report 1 August 2011 - 23 February 2012 When the country of export is only a point of transshipment, or the exporter-producer does not sell in its home market, normal value can be based instead on the domestic price of a like product in the country of origin (Article 2.5 of ADA). Finally, an importing country may reject the price and costs data submitted by exporters from nonmarket economies (NMEs) in calculating normal value; instead, it may resort to prices and costs in a third-country market economy. The use of surrogate country data in lieu of those supplied by NME exporters is observed to have led to significantly more findings of dumping, which is not surprising since producers in the surrogate country are likely to be competitors of those from NMEs.69 China and Vietnam are treated as NMEs until 2016 and 2019, respectively, based on the terms of their respective Protocols of Accession. Significantly, about 24% (590 of 2,495 cases) of anti-dumping measures from 1995 to 2010 were applied against exports from China. Comparison of Export Price and Normal Value Since the essence of dumping determination is finding a difference between export price and normal value, due care should be taken first, to ensure that the two values are comparable and second, that the method of comparison is appropriate. Article 2.4 describes the necessary adjustments on export price and normal value to bring them to ex-factory level on which basis, the two can be compared. A fair comparison shall be made between the export price and the normal value. This comparison shall be made at the same level of trade, normally at the ex-factory level, and in respect of sales made at as nearly as possible the same time. Due allowance shall be made in each case, on its merits, for differences which affect price comparability, including differences in conditions and terms of sale, taxation, levels of trade, quantities, physical characteristics, and any other differences which are also demonstrated to affect price comparability. … [In case the export price is constructed on the basis of the price at which the imported products are first resold to an independent buyer,] allowances for costs, including duties and taxes, incurred between importation and resale, and for profits accruing, should also be made…(underscoring author). The following hypothetical examples reveal the existence of dumping only after appropriate adjustments are made on normal value and export price. The first case shows the adjustments in domestic and export prices when the importer is unrelated to the exporter; the second case, when the two are related parties. Case 1: Importer is unrelated to exporter70 Normal value Sales price Less: Duty drawback Discounts Packaging Inland freight 69 70 100 5 2 1 1 Export price Sales price Less: Physical differences Discounts Packaging Inland freight 100 5 2 1 1 Ibid, p. 23. Ibid, p. 99. 148 Mission Report 1 August 2011 - 23 February 2012 Credit Guarantees Commission Ex-factory normal value Ocean freight/insurance Credit Guarantees Commission Ex-factory export price 3 2 2 84 6 3 2 2 78 Case 2: Importer and exporter are related parties71 Normal value Sales price 150 Less: Duty drawback Discounts Packaging Inland freight 3 3 1 1 Credit Guarantees Level of trade (20%)72 6 2 30 Ex-factory normal value 103 Export price Sales price to related importer Sales price to unrelated importer Less: Physical difference Discounts Packaging Inland freight Ocean freight/insurance Credit Guarantees Other SGA Reasonable profit Customs duties Ex-factory export price 110 150 1 9 2 2 5 3 3 18 12 5 88 Without adjustment, domestic and export prices are equal in both cases. But both cases show dumping at ex-factory values. Some of the adjustments that are applied to export and domestic prices can be contentious as there may be no definitive evidence that could support them, and because they are left to the discretion of the investigating authority. This refers to values ascribed to “physical differences”, “level of trade”, and “reasonable profits.” In Case 2, for instance, an adjustment for “level of trade” is made on normal value since the producer is deemed to act as distributor and retailer in its home market, whereas the “unrelated importer” acts as retailer for the exporter in the other market. The distributor-retailer margin, estimated here at 12%, adjusted the normal value, while the assumed exporterdistributor’s margin of 8% reduced the export price. Using the adjusted values, the dumping margin is then computed as follow: Dumping Margin = Normal value - export price × 100 CIF value of imports 71 Ibid, pp. 33-34. This refers to the margin of the producer selling directly to customer. In case the exporter sells to “unrelated importer”, the producer adds only a distributor margin, on which the “unrelated importer” adds further a retailer margin. 72 149 Mission Report 1 August 2011 - 23 February 2012 The dumping margins are 6% and 15% in Cases 1 and 2, respectively. A single transaction of export price falling below normal value is however not sufficient to establish dumping. Rather, dumping determination requires comparison of normal value and export prices over a particular period of time, referred to as the period of investigation (POI). The Committee on Anti-Dumping Practices suggested that the POI “should normally be 12 months, and in any case no less than 6 months, ending as close to the date of initiation of the investigation as is practicable.”73 Once export prices and comparable normal values have been established, Article 2.4.2 prescribes methods of comparing these prices: either on a weighted average-to-weighted average basis or on a transaction-to-transaction basis. The former uses sales quantity as weights, and compares weighted average normal value with weighted average of prices of all comparable export transactions during the POI. When the comparison is made on a transaction-to-transaction basis, the difference between normal value and export price may be positive for some transactions, zero or negative for others. The sum-difference is the basis of final determination if dumping occurs. In some cases, however, neither method is appropriate. Article 2.4.2 refers to the circumstance where weighted average-to-transaction method is recommended. …A normal value established on a weighted average basis may be compared to prices of individual export transactions if the authorities find a pattern of export prices which differ significantly among different purchasers, regions, or time periods, and if an explanation is provided as to why such differences cannot be taken into account appropriately by the use of a weighted average-to-weighted average or transaction-to-transaction comparison. This kind of departure from the two preferred methods is the only variation explicitly permitted in the ADA, despite the fact that even before the agreement came into force, some authorities had been using another method of calculating dumping known as zeroing. More significantly, the Appellate Body, on a number of dispute cases, had consistently rejected zeroing procedures on ground that it is inconsistent with the requirement to make a “fair comparison” between export price and normal value. Zeroing is the practice of replacing negative dumping margins (excess of export price over normal value) with a value of zero before the sum of dumping margins is calculated. This has the effect of overstating the dumping amount since negative dumping margins are nullified and prevented from offsetting positive margins. Below is a hypothetical example illustrating zeroing procedure74: Date 1 January 8 January Normal value 50 100 Export Price 25 100 Transaction-totransaction 25 0 Transaction-totransaction Zeroing 25 0 73 World Trade Organization Committee on Anti-Dumping Practices, 2000, “Recommendation Concerning the Periods of Data Collection for Anti-Dumping Investigations, G/ADP/6, cited in ADB (2009), p. 11. 74 ADB (2009), p. 29. 150 Mission Report 1 August 2011 - 23 February 2012 15 January 21 January Dumping amount 150 200 150 225 0 -25 0 0 0 25 Assuming that all of the above transactions involve the same quantity of exports, both weighted average-to-weighted average and transaction-to-transaction comparisons show no evidence of dumping. By contrast, zeroing results in a positive finding of dumping. A variant of this practice is known as model zeroing, where the value of zero is applied on negative dumping margin calculated for a specific product model, instead on the dumping margin calculated on a transaction basis. The Appellate Body found both forms of zeroing inconsistent with the ADA – simple zeroing in US-Softwood Lumber V and US-Zeroing (Japan); and model zeroing in EC-Bed Linen, US-Zeroing (EC) and US-Softwood Lumber V. It also ruled against the application of zeroing not only in dumping determination during POI, but also in subsequent procedures after dumping action has been initiated, such as periodic reviews, new shipper reviews, and sunset reviews.75 Still, the Appellate Body has not rendered a definitive opinion on the permissibility of zeroing in cases where the “pattern of export prices … differs significantly among different purchasers, regions or time periods”, i.e., the exceptional case contemplated in Article 2.4.2 of ADA. The US argued that in those exceptional cases, weighted average-to-transaction comparison would just yield the same finding as weighted average-to-weighted average comparison. Application of zeroing procedure, by contrast, could unmask dumping. This is illustrated below based on the same set of normal values and export prices in the preceding table. The weighted average-totransaction comparison shows no dumping, which is belied by the method that used zeroing. Based on this, the US argued that the “mathematical equivalence” of weighted average-totransaction and weighted average-to-weighted average methods renders the former “inutile”, i.e., there would not have been a need for an “exception” from the general methods if zeroing were allowed. Date 1 January 8 January 15 January 21 January Dumping amount Weighted average normal value 125 125 125 125 Export Price 25 100 150 225 Weighted average-totransaction 100 25 -25 -100 0 Transaction-totransaction Zeroing 25 0 0 0 25 Without rejecting the fact that dumping is unmasked by zeroing in the above case, whereas the weighted average-to-transaction method did not, the Appellate Body in US-Softwood Lumber V argued, however, that: 75 Appellate Body Report, US-Zeroing (Japan), para. 190. 151 Mission Report 1 August 2011 - 23 February 2012 [o]ne part of a provision setting forth in a methodology is not rendered inutile simply because, in a specific set of circumstances, its application would produce results that are equivalent to those obtained from the application of a comparison methodology set out in another part of that provision. In US-Zeroing (Japan), the Appellate Body suggested the use of weighted average-to-transaction method in times when the pattern of export prices is as described in Article 2.4.2, and general methods in other times. This is seen as an indirect prohibition on zeroing even during periods when export prices are erratic. Yet despite repeated indictments against zeroing, the European Communities and US are adamant and still insist in using zeroing in certain cases.76 Injury Determination It is not sufficient to establish that imports are dumped based on the criteria set forth in Article 2 of ADA and discussed in the preceding section. Whether an action against dumped imports is warranted hinges on the conditions and significance of the injury caused by imports to the domestic industry. Article 3.1 states that the injury determination must be …based on positive evidence and involve an objective examination of both (a) the volume of dumped imports and the effect of the dumped imports on prices in the domestic market for like products, and (b) the consequent impact of these imports on domestic producers of such product (underscoring author). The rules and principles implied in the foregoing are much more complex and stringent than those involved in dumping determination. For one, the term “positive” describing evidence “must be of an affirmative, objective and verifiable character and that it must be credible,” while “objective investigation” requires unbiased assessment of injury, i.e., it does not favor any party or group.77 For another, the period of evaluating injury should go further beyond the occurrence of dumping, presumably to avoid identification, as symptom of injury, events that are merely temporary and accidental in nature, and recognizing that the effects of imports on domestic injury may manifest belatedly. It is therefore recommended that the injury determination period be at least 3 years, including the entire period of data collection for the dumping investigation.78 Moreover, the above provision should be read in conjunction with Article 3.5 which requires a demonstration that the dumped imports is the cause of injury to the domestic industry. Like Product and Domestic Industry In injury determination, the terms “like product” and “domestic industry” are interpreted in a different context from those in dumping determination. Like product refers to the product in the home market of the importing country, as opposed to that of the exporting country. Accordingly, the domestic industry in injury determination refers to the one in the importing country, not the industry in the exporting country for dumping determination. As in dumping determination, however, “likeness” means “identical” or close resemblance to the allegedly dumped product. Injury determination is made in reference to the like product if there 76 ADB (2009), p. 32. Appellate Body Report, US-Hot Rolled Steel, para. 192. 78 World Trade Organization Committee on Anti-Dumping Practices, 2000, “Recommendation Concerning the Periods of Data Collection for Anti-Dumping Investigations, G/ADP/6, cited in ADB (2009), p. 36. 77 152 Mission Report 1 August 2011 - 23 February 2012 is available data on its production process, producers’ sales and profits. If such data is too microlevel and hence not available, Article 3.6 provides that “the effects of the dumped imports must be assessed by the examination of the production of the narrowest group or range of products, which includes the like product for which the necessary information can be provided.” Like product delineates the scope of the domestic industry, but Article 4 qualifies that the “domestic industry”, for purposes of injury determination, does not have to be comprised of all domestic producers of the like product. Instead, it may refer only to a segment of that industry accounting for “a major proportion of the total domestic production of those products.” While the term “a major proportion” is not defined in ADA, the panel in Argentina-Poultry notes that the agreement uses an indefinite article “a”, instead of a definite article “the”. The panel reckoned that 46% of total domestic production is sufficient to satisfy the requirement of “a major proportion.” Had the article been “the” instead of “a”, more than 50% of domestic production would be needed to meet the requirement. As a general rule, if a domestic producer of a like product offers to participate in the injury investigation, the investigating authority should include such producer. Article 4, however, allows the investigating authority to exclude producers who, although producing like product and providing information in a timely manner, satisfy either of the two cases specified. First, if the producers are “related to the exporter or importer or are themselves importers of the allegedly dumped product”79, their inclusion may distort the injury analysis. The term “related” is clarified further in the agreement as follow80: …producers shall be deemed to be related to exporters or importers only if (a) one of them directly or indirectly controls the other; or (b) both of them are directly or indirectly controlled by a third person; or (c) together they directly or indirectly control a third person, provided that there are grounds for believing or suspecting that the effect of the relationship is such as to cause the producer concerned to behave differently from nonrelated producers. For the purpose of this paragraph, one shall be deemed to control another when the former is legally or operationally in a position to exercise restraint or direction over the latter. The second exception relates to the existence of market segments. In this case, the injury caused by dumped imports may be limited to producers of like product belonging to specific market segment; hence, the investigation can exclude other producers of like product belonging to a different market segment. Article 4.1(ii) explains: In exceptional circumstances the territory of a Member may, for the production in question, be divided into two or more competitive markets and the producers within each market may be regarded as a separate industry if (a) the producers with such market sell all or almost all their production of the product in question in that market, and the (b) the demand in that market is not to any substantial degree supplied by producers of the product in question located elsewhere in the territory. In such circumstances, injury may be found to exist even where a major portion of the total domestic industry is not injured, produced there is a concentration of dumped imports into such an isolated market and 79 80 Article 4.1(i) of ADA. Footnote 11 of ADA. 153 Mission Report 1 August 2011 - 23 February 2012 provided further that the dumped imports are causing injury to the producers of all or almost all of the production within such market. When only a specific market segment is injured, Article 4.2 stipulates that anti-dumping duties should be levied only to the imports consigned to that segment. But if such discriminatory levying of duties is not allowed by the constitutional law of the importing country, then the duties may be levied uniformly across market segments only after exporters are given opportunity to make an undertaking or to cease exporting at dumped prices to the injured market segment. Material Injury The agreement is not concerned with de minimis dumping. This means that a country’s right to take action against dumping by another country’s producers arises only when export prices have fallen below normal values to such degree as to cause material injury to domestic industry. The agreement does not specify a dumping margin below which dumping may be considered de minimis. Instead it stipulates that the materiality of injury is to be assessed in terms of the (i) volume of dumped imports; (ii) effect of dumped imports on prices; and (iii) impact of dumped imports on domestic producers. And the volume of dumped imports should be assessed “either in absolute terms or relative to production or consumption in the importing member” (Article 3.2). Although the finding of dumping is made with reference to a particular exporter or producer, importing countries usually examine the volume of imports from more than one exporter and more than one country cumulatively for the purpose of determining if the increase in dumped imports is significant. Article 3.3 allows cumulation but requires that (i) the dumping margins are more than de minimis; (ii) the volume of imports from each country is not negligible; and (iii) the imported products compete with each other and with the like domestic product. A 2% dumping margin is considered de minimis, while less than 3% share of total imports is considered negligible.81 Concerning the effect of dumped imports on prices, the ADA provides here a more specific guideline. In particular, the investigating authority is expected to examine whether dumped imports (i) price undercut domestic like products; or (ii) depress domestic prices or (iii) suppress the increase in domestic prices.82 …the investigating authorities shall consider whether there has been a significant price undercutting by the dumped imports as compared with the prices of a like product of the importing Member, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which otherwise would have occurred, to a significant degree. No one or several of these factors can give decisive guidance. The last statement in the preceding provision underscores that a finding concerning movement in prices, i.e., price undercutting, depression or suppression, does not establish the impact of dumped imports on the domestic industry, which must be sorted out based on the specific factors enumerated in Article 3.4. The panels and Appellate Body have consistently ruled that an 81 Article 5.8 of ADA gives details on what are considered de minimis dumping margin and negligible volume of imports. 82 Article 3.2 of ADA. 154 Mission Report 1 August 2011 - 23 February 2012 impact analysis of dumped imports should involve all 15 factors in Article 3.4, also referred to as injury factors, namely: …actual and potential decline in sales, profits, output, market share, productivity, return on investments, or utilization of capacity; factors affecting domestic prices; the magnitude of the margin of dumping; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not considered exhaustive, which means that the investigating authority is expected to consider other factors relevant to the case on hand. In addition, not all are relevant in all cases, so the investigating authority has to exercise judgment on which factors it would base its injury determination. The Panel in Korea-Certain Paper (para 7.268), nonetheless, refers to this list as “checklist obligation” that an investigating authority must address. But the same Panel cautioned against mechanical compliance of compiling and presenting data on them. It stressed that:83 …Article 3.4 requires the IA to carry out reasoned analysis of the state of the industry. This analysis cannot be limited to a mere identification of the “relevance or irrelevance” of each factor, but rather must be based on a thorough evaluation of the state of the industry. The analysis must explain in a satisfactory way why the evaluation of the injury factors set out under Article 3.4 lead to the determination of material injury, including an explanation of why factors which would seem to lead in the other direction do not, overall, undermine the conclusion of material injury. Threat of Injury and Material Retardation The injury envisaged in ADA is not limited to actual or realized harm on the domestic industry; rather, prospective injury, and even retardation of the establishment of a domestic industry are considered legitimate causes of action. Since the determination of future injury is inevitably conjectural, the agreement defines specific parameters in conducting such type of analysis to ensure that it is still based on “positive evidence” and “objective examination.” For this purpose, Article 3.7 sets out three rules. First, the determination of a threat of material injury must be “based on facts and not merely on allegation, conjecture or remote possibility.” This is taken by the panel in Mexico-Corn Syrup to mean that the injury factors listed in Article 3.4 should also be considered in assessing the threat.84 Second, the threat of injury should be foreseeable and imminent. The panel in EgyptSteel Rebar interprets this requirement to mean that the threat should be analyzed in the context of the current industry situation. The panel opined: …it would be necessary, in order to assess the likelihood that a particular change in circumstances would cause an industry to begin experiencing present material injury, to know about the condition of the domestic industry at the outset. For example, if an industry is increasing its production, sales, employment, etc., and is earning a record level of profits, even if dumped imports are increasing rapidly, presumably it would be more difficult for an investigating authority to conclude that it is threatened with imminent injury than if its production, sales, employment, profits and other indicators are low and/or declining. 83 84 Cited in ADB (2009), p.p. 43-44. See Panel Report, Mexico-Corn Syrup, para, 7.131. 155 Mission Report 1 August 2011 - 23 February 2012 Finally, the agreement enumerates specific factors (in addition to injury factors in Article 3.4) that an investigating authority should consider in assessing threat of injury, namely: (i) (ii) (iii) (iv) a significant rate of increase of dumped imports into the domestic market indicating the likelihood of substantially increased importation; sufficient freely disposable, or an imminent substantial increase in capacity of the exporter indicating the likelihood of substantially increased dumped exports to the importing Member’s market, taking into account the availability of other export markets to absorb any additional exports; whether imports are entering at prices that will have a significant depressing or suppressing effect on domestic prices, and would likely increase demand for further imports; and inventories of the product being investigated. Compared to determining the existence of threat of injury, more speculation is probably required to establish that an importing country is prevented from nurturing its own domestic industry which can produce like product to the dumped imports. Unfortunately, the agreement mentions “material retardation of the establishment of an industry” only in the footnote clarifying the kinds of injury envisaged in the agreement.85 There is also no panel or Appellate Body report that addresses the issue to date. Causation Demonstrating the causal link between dumped imports and injury to the domestic industry, provided for in Article 3.5 of ADA, is yet a separate, albeit related, activity to investigating the effects of dumped imports on prices (Article 3.2) and assessing the impact of dumped imports on the domestic industry (Article 3.4). But establishing causation is not an exact science, and therefore it is not surprising that the agreement does not set nor recommend any specific method or approach. From a legal standpoint, however, this puts burden on the investigating authority (and later to the importing country brought into dispute) to discern which method to employ. Article 3.5, nonetheless, provides broad guidelines. First, the causation investigation should be based on “an examination of all relevant evidence before the authorities.” Second, the investigating authority should examine “any known factors other than the dumped imports, and the injuries caused by these other factors." The purpose of expanding the scope of investigation is for injuries caused by these other factors not to be attributed to dumped imports. This so called non-attribution test is critical in the calculation of injury margin. Third, it has been suggested that the investigating authority may consider the following, among others, in undertaking the non-attribution test: …the volume and prices of imports not sold at dumping prices, contraction in demand or changes in the patterns of consumption, trade restrictive practices of and competition between the foreign and domestic producers, developments in technology and the export performance and productivity of the domestic industry. 85 See footnote 9 of ADA. 156 Mission Report 1 August 2011 - 23 February 2012 The foregoing factors, unlike the injury factors in Article 3.4, are not mandatory for the investigating authority to evaluate. In fact, when Poland accused Thailand of not examining all “known” factors before imposing anti-dumping duty, the panel in Thailand-H-Beams ruled the following:86 Article 3.5 refers to "known" factors other than the dumped imports which at the same time are injuring the domestic industry but does not make clear how factors are "known" or are to become "known" to the investigating authorities. We consider that other "known" factors would include those causal factors that are clearly raised before the investigating authorities by interested parties in the course of an AD investigation. We are of the view that there is no express requirement in Article 3.5 AD that investigating authorities seek out and examine in each case on their own initiative the effects of all possible factors other than imports that may be causing injury to the domestic industry under investigation. Of course, they would certainly not be precluded from doing so if they chose to (underscoring author). Injury Margin The general principle is to impose anti-dumping duty just sufficient to offset the injury to the domestic industry. This is the rationale for the non-attribution test, so that the extent of injury caused by dumped imports can be properly identified. However, the ADA leaves it to the prerogative of the importing country to impose the full margin of dumping or less. Specifically, the importing country may levy imports based on the dumping margin, or the lower between dumping and injury margins. The so-called “lesser duty rule” obviously requires a calculation of injury margin, to which the ADA does not give any guidance. Two methods have evolved in calculating injury margins.87 The first is applied when dumped imports undercut the price of domestic producers in the importing country. In this case, the injury margin is the difference between the prices of domestic producer and of the exporter, expressed as a percentage of the exporter’s price. The second method is appropriate in case the domestic producer undersells. This happens when the exporter charges a price that is lower than that which would allow the domestic producer to cover more than its cost of production. Because of competition from imports, the domestic producer is constrained to set the price at just about the level that would cover its cost of production. The injury margin is the difference between the domestic producer’s hypothetical price, if it is not constrained by imports and hence able to cover the cost of production plus “reasonable profit”, and the exporter’s price, expressed as a percentage of the latter. Application of Anti-Dumping Duty Nine of 18 articles of ADA are devoted to procedures in conducting investigation, evaluating evidence, imposing and collecting anti-dumping duties, designing remedies, reviewing duties and price undertakings and notifying the public about the anti-dumping measures taken. The detailed rules contained in these articles are testament to the motivations of the negotiators of the agreement. Apart from clarifying the intent of Article VI of GATT, the agreement purports to 86 87 Panel Report, Thailand-H-Beams, para. 7.273. See ADB (2009), pp. 47-48 for illustration. 157 Mission Report 1 August 2011 - 23 February 2012 ensure transparency in the application of anti-dumping duties and give due process to “interested parties”. This section discusses some of the salient principles embodied in these procedures. They are not all distinct to ADA, as some are also found in ASCM and ASG. Initiation The term “initiation” in ADA refers to formal commencement of investigation88 to determine the existence, degree and effect of alleged dumping. This is considered “day 1” in a time-bound proceedings to apply anti-dumping measure. The last stage in the proceedings, the imposition of definitive measures, should be within 12 months and in no case more than 18 months after initiation.89 The process may be started by a member country motu proprio, but in the usual case, the designated investigating authority receives “a written application by or on behalf of the domestic industry” (Article 5.1). Prior to initiation, the investigating authority is obliged to observe certain procedures stipulated in the agreement. First, upon receipt of the application, the investigating authority determines if it is “complete” in terms of supplying evidence of dumping, injury and causal link between dumped imports and alleged injury. To the extent reasonably available to the applicant, the application must contain information that will allow the investigating authority to undertake dumping and injury determination. Thus Article 5.2 enumerates the following information expected from the applicant: (i) Identity of the applicant and description of volume and value of the applicant’s domestic production of like product; (ii) Complete description of allegedly dumped products, including the names of the country or countries of origin or export in question, the identity of each known exporter or foreign producer and a list of known persons importing the product in question; (iii) Information on prices at which the product in question is sold when destined for consumption in the domestic markets of the country or countries of origin or export (or, when appropriate, information on the prices at which the product is sold from the country or countries of origin or export to a third country or countries, or on the constructed value of the product) and information on export prices or, where appropriate, on the prices at which the product is first resold to an independent buyers in the territory of the importing Member; and (iv) Information on evolution of the volume of the allegedly dumped imports, the effect of these imports on prices of the like product in the domestic market and consequent impact of the imports on the domestic industry, as demonstrated by relevant factors and indices having a bearing on the state of the domestic industry. Next, the investigating authority reviews “the accuracy and adequacy of the evidence in the application to determine whether there is sufficient evidence to justify the initiation of an investigation.” There is nothing in Article 5.3 that could help an investigating authority discern what would amount as “sufficient evidence”, hence much is left to its discretion. This probably explains why some observers have commented that the initiation standard in some countries is too low, i.e., initiation is started too quickly.90 On the other hand, the panel in Mexico-Steel Pipes and Tubes stated that the evidence submitted by the applicant do not have to be “irrefutable 88 Footnote 1 of ADA. Articles 9.3.1 and 9.3.2 of ADA . 90 Horlick and Vermulst (2005), p. 69. 89 158 Mission Report 1 August 2011 - 23 February 2012 proof of dumping or injury” in order to initiate the anti-dumping investigation. This panel explains:91 …anti-dumping investigation is a process where certainty on the existence of all of the elements necessary in order to adopt a measure is reached gradually as the investigation moves forward. Nonetheless, the panel in Guatamela-Cement II expects the investigating authority to detect if the domestic and export prices have been appropriately adjusted (or sufficient information is supplied to make necessary adjustments) so that the prices can be fairly compared.92 Apart from assessing the accuracy and adequacy of evidence, the investigating authority must also establish that the application was made “by or on behalf of the domestic industry” – a process known as standing determination. What makes an application “by or on behalf of the domestic industry”? Here, the agreement is more helpful. In particular, Article 5.4 stipulates two specific requirements. …The application shall be considered to have been made “by or on behalf of the domestic industry” if it is supported by those domestic producers whose collective output constitutes more than 50 per cent of the total production of the like product produced by that portion of the domestic industry expressing either support for or opposition to the application. However, no investigation shall be initiated when domestic producers expressly supporting the application account for less than 25 per cent of total production of the like product produced by the domestic industry. To be clear, the first requirement, “more than 50 per cent…”, is reckoned only in terms of that segment of domestic industry comprised by producers who submitted the application, expressed support to the application (whether or not involved in the submission of application), and expressed opposition to the application. On the other hand, the second requirement, “less than 25 per cent…”, refers to the whole domestic industry of like product. Also prior to initiation, the investigating authority is obliged to notify the government of the exporting country that an application for the initiation of an anti-dumping investigation has been received. It should be stressed that under Article 5.5, the investigating authorities are restrained from publicizing the application, until they have made a decision whether to accept or reject it. Such strict rule on keeping the application confidential stems from the nature anti-dumping measure, i.e., it is producer-specific. Once importers learn that an anti-dumping investigation may be initiated against a particular exporter, they may divert their business to other exporters since they may be later asked to pay anti-dumping duties in case the investigation found sufficient grounds for imposing the trade remedy. When the foregoing pre-initiation activities are met, the investigating authority can decide either to reject the application, or to give public notice concerning the initiation of the investigation. 91 92 Panel Report, Mexico-Steel Pipes and Tubes, para. 7.22. Panel Report, Guatemala-Cement II, para. 8.40. 159 Mission Report 1 August 2011 - 23 February 2012 The rejection can be due to: (i) insufficient evidence of either dumping or injury, or; (ii) the margin of dumping is de minimis, i.e., less than 2% of export price, or; (iii) the volume of dumped imports, actual or potential, or the injury, is negligible, i.e., less than 3% of imports of the like product, unless countries which individually have less than 3% share collectively account for more than 7% of imports of like product. Due Process As can be inferred from the agreement, it must have been high in the priority of negotiators to reduce disputes that can arise from the members’ exercise of their rights to apply trade remedies. One measure to avoid disputes is to enable parties, who may later have incentive to bring dispute¸ participate in the process. These parties, according to Article 6.11, include exporters, foreign producers, importers, trade or business associations (whose members are majority producers, exporters or importers of the product at issue); the government of the exporting member; and producers of like product in the importing country, and their trade or business associations. The foregoing is not an exhaustive list; other foreign and domestic groups may be considered interested parties. In fact, most members have considered industrial users and representative consumer organizations as interested parties. As soon as the investigation is initiated, the investigating authority shall transmit the full text of the written application to known exporters and to the authorities of the exporting member. The same shall be made available to other interested parties upon request. Besides the right to information concerning the investigation, other due process rights of interested parties are contained in Articles 6 and 12. The most important is the right to present written evidence that they consider relevant to the investigation (Article 6.1). When asked by the investigating authority to supply specific information, interested parties are entitled to reasonable period to respond. In case of exporters or foreign producers, however, a 30-day limit is specified in Article 6.1.1. However, this 30-day period is reckoned from the receipt of questionnaire, which is deemed to be one week from the date on which it was sent to the respondent or diplomatic representative of the exporting country. An interested party has right to access the evidence presented in writing by another interested party, except when the evidence is classified confidential (Article 6.1.2). This right to access information supplied by others relates to Article 6.4 which gives interested parties the right to “see all information that is relevant to the presentation of their cases.” But it takes a back seat to the right of a party disclosing confidential information to have such information treated accordingly (Article 6.5). Any information supplied by an interested party may by nature confidential, or treated as one upon request of the submitting party. This is because the information could provide competitive advantage to a competitor or adversely affect the person disclosing it. Thus, to balance transparency and fair play, the agreement provides that in case of confidential information, a non-confidential version of such evidence should also be submitted. The confidential version is accessible only to the investigating authority, while the nonconfidential version is available to all interested parties. It is deemed incumbent of the investigating authority to provide interested parties an avenue to defend their interests and refute arguments offered by others with opposing positions (Article 6.2). Interested parties have also the right to be informed of essential facts under consideration 160 Mission Report 1 August 2011 - 23 February 2012 by the investigating authority before the latter renders decision to apply definitive measures (Article 6.9). On the other hand, if an interested party refuses to provide necessary information within a reasonable period, the investigating authority is free to make a determination based on the best information available (Article 6.8 and Annex II). Finally, interested parties have generally the right to individual determination of dumping. But if the number of exporters, producers, importers or types of products involved is so large such that individual determination is infeasible or impractical, the investigating authority may limit its examination to a statistically valid sample of exporters, producers, importers or types of products, or to the largest percentage of export volume from the country in question (Article 6.10). Provisional Measures No sooner than 60 days but no later than 9 months from date of initiation, the investigating authority may impose provisional anti-dumping duty if preliminary investigation yields positive findings on dumping and injury, and the measure is deemed necessary to prevent further injury to domestic industry. 93 The right to apply provisional measures is also available to authorities in the ASCM and ASG. Before imposing the provisional measure, however, the investigating authority is required to notify the public and give interested parties an opportunity to submit information and comment on the decision. By its very nature, a provisional measure may be applied only for a period of 4 to 6 months, and must not be greater than the estimated dumping margin. However, when the provisional measure is set lower than the dumping margin, it may be applied for a longer duration, i.e., 6 to 9 months (Article 7.4). A provisional measure may take the form of a provisional duty, but preferably a security – cash deposit or bond – equal to the amount of anti-dumping duty provisionally estimated. If the final determination does not support the application of a definitive measure, Article 11.5 requires that the cash deposit be refunded or the bond be released immediately. In case the definitive antidumping duty is higher than the provisional duty paid or payable, or the amount of security, the difference shall not be collected. On the other hand, if the definitive duty is lower, the difference shall be reimbursed or the duty recalculated (Article 10.3). Alternatively, withholding the appraisement of allegedly dumped imports is an acceptable form of provisional measure, but the normal duty and estimated amount of anti-dumping duty should be indicated. Price Undertaking An exporter may cause the termination or suspension of investigation by offering to revise its prices or to stop exporting to the area allegedly dumped, in case of regional dumping (Article 8.1). This provision is distinct in ADA, as there is no similar provision in ASCM or ASG. 93 Article 7.1 of ADA. 161 Mission Report 1 August 2011 - 23 February 2012 The investigating authority is not obliged to accept a price undertaking (Article 8.2), nor can an exporter be compelled to enter into one (Article 8.5). If the undertaking involves revising prices, the adjustment should not be higher than necessary to eliminate the dumping margin. The agreement states that it is preferable if the price adjustment is limited to such amount that will eliminate the injurious effect of dumping. But even if the price adjustment is considered adequate to remove injury, the importing country may still reject the undertaking if there are too many actual or potential exporters, or as a matter of policy. However, Article 8.3 requires the investigating authority to provide the exporter with explanation for non-acceptance of the undertaking, as well as opportunity to comment on the decision. Acceptance of the undertaking does not preclude the authorities from continuing on its investigation, if it so decides, or if requested by the exporter. Now if the investigation yields negative findings on dumping and injury, the undertaking is deemed to automatically lapse, unless the negative findings were due to the undertaking. If, on the other hand, the investigation resulted in positive determination of dumping and injury, the undertaking will continue (Article 8.4). An exporter from whom an undertaking is accepted may be required by authorities of the importing country to provide pertinent information that would allow the latter to check on its compliance. When it is determined that the exporter violated its undertaking, the importing country has the right to immediately apply provisional measures using best information available. It may also levy definitive duties retroactively, except that such duties can only be levied on imports that entered the country within 90 days before the application of provisional measure, but not before the violation of the undertaking (Article 8.6). Definitive Measures Notwithstanding positive findings of dumping and injury, the decision to apply definitive measures is left to the discretion of the importing country. Some WTO members, the Philippines included, have a public interest clause in their national anti-dumping law which allows them to set aside a finding of injurious dumping under certain circumstances. Definitive measures usually take the form of anti-dumping duty. When a decision to impose antidumping duty is made, the agreement nudges the WTO member to apply the lesser duty rule, i.e., imposing a duty equal to the lower between dumping and injury margins (Article 9.1). The member, however, has discretion not to follow this rule, but the applied duty cannot be more than the full dumping margin. Such duty shall be collected on a nondiscriminatory basis on imports from sources found to have engaged in injurious dumping (Article 9.2). The anti-dumping duty may be assessed on a retrospective basis (Article 9.3.1), or on a prospective basis (Article 9.3.2). The former is followed by the US; the latter is observed by the European Communities and other countries, including the Philippines. Under the retrospective system, the actual anti-dumping duties are determined from annual reviews covering the import transactions during the preceding one-year period. By contrast, under the prospective system, anti-dumping duties are based on the determination from the original investigation 162 Mission Report 1 August 2011 - 23 February 2012 Clearly, the retrospective system is fairer since the duties levied are based on actual dumping and injury margins incurred on imports during the year, whereas the duties imposed under the prospective system are based on dumping and injury margins on imports during the period of investigation. As a result, reimbursements for duties paid in excess of actual dumping margin are more likely under the prospective system. But the retrospective system requires the conduct of annual reviews, and is therefore more costly and time-consuming for the importing country. In principle, an anti-dumping duty may be levied continuously “as long as and to the extent necessary to counteract dumping which is causing injury” (Article 11.1). But any interested party has the right to request the authorities of the importing country to undertake a review of the measure to determine if continuous application is warranted (Article 11.2). Such review may also be initiated by the importing country on its own. If a prospective and counterfactual analysis shows that dumping and injury are unlikely to recur if the duty were removed, the measure should be immediately terminated.94 If no interim review is requested by an interested party or undertaken on own cognizance by the importing country, Article 11.3 provides, nonetheless, that the definitive measure should be terminated no later than 5 years from its imposition. An extension beyond the 5-year limit is allowed if a review initiated before the end of the time limit reveals that dumping and injury will likely recur if the measure is terminated. Anti-dumping duties are remedial, not punitive measures. Therefore, the general principle is that they can only be applied to imports that enter the country after a final determination of dumping causing injury to domestic industry has been made. However, Article 10 permits retroactive application of anti-dumping measure in two cases. First, in case provisional measure was applied and it was later found that in the absence of such measure, dumped imports would have caused injury to the domestic industry, anti-dumping duties may be levied retroactively on imports that entered the country during the application of the provisional measure (Article 10.2). However, the final determination should explicitly state such finding (i.e., that dumped imports would have led to a determination of injury in the absence of provisional measure). In the Mexico-Corn Syrup case, the panel found Mexico in violation of the agreement when it applied definitive anti-dumping duty retroactively although there is no explicit statement of such finding in the final determination. Second, Article 10.6 provides for levying definitive anti-dumping duty on imports that entered the country no more than 90 days before the application of provisional measure if it was determined that: (i) the exporter or producer has a history of dumping which caused injury; and (ii) the injury caused by massive dumped imports to such extent as to nullify the remedial effect of the definitive anti-dumping duty, provided that the importers concerned are given opportunity to comment. 94 ADA envisages three types of reviews: newcomer, interim and expiry. Article 9.5 provides basis for newcomer reviews which are applied to producers or exporters that did not export during the original investigation period. Articles 11.2 and 11.3 make reference to interim and expiry reviews, respectively. It is worth noting that the importing country is not obliged to undertake any of these reviews unless requested by an interested party. 163 Mission Report 1 August 2011 - 23 February 2012 Finally, Article 15 prods investigating authorities from developed countries to consider constructive remedies before imposing definitive anti-dumping measure on exports of developing countries. The panels in EC-Bed Linen and EC-Pipe Fittings ruled that the kind of constructive remedies envisaged by ADA are price undertakings and application of lesser duty rule. The panel in EC-Pipe Fittings clarified further that other forms of undertakings beside price are not envisaged in the ADA.95 Both panels ruled that Article 15 does not impose an obligation on developed countries to propose or accept any constructive remedy. As long as there is evidence that constructive remedies were “explored” before applying anti-dumping duties that would affect the interest of developing country members, this is already deemed compliance to Article 15. In the EC-Bed Linen case, the panel sided with Brazil when it charged the European Communities of violation of Article 15 because there was no evidence of such “exploration” by the defendant.96 Philippine Anti-Dumping Law Article 18.4 of ADA obligates all WTO members to bring their laws, regulations and administrative procedures in conformity with the terms of the agreement before it came into force. To comply, the Philippine Congress enacted on 25 July 1994, Republic Act No. 7848, also known as the “AntiDumping Act of 1995.” The law amends specific provisions in the Tariff and Customs Code of the Philippines (TCCP) concerning the application of special duties on dumped imports. Five years hence, the Philippine Congress passed yet another law, Republic Act No. 8752, also known as the “Anti-Dumping Act of 1999.” This law, like the earlier one, amends specific provisions in the TCCP relating to imposition of anti-dumping duties. As is evident in the discussion that follow, the second amendment was necessary to bring the national law in conformity with the ADA. Indeed, with only few exceptions, the provisions in the 1999 law replicate those in the agreement. This section reviews some of the salient provisions in the 1995 and 1999 anti-dumping laws, noting the inconsistencies of the earlier version with the ADA, and highlighting the current governance structure contained in the later version. Anti-Dumping Law of 1995 The 1995 law designated the Tariff Commission as the investigating authority and created a Special Committee on Anti-Dumping purportedly to serve as the “judicial, arbitral or administrative tribunal” as provided for in Article 13 of ADA. The Special Committee is composed of 3 members: the Secretary of Finance as chair, the Secretary of Trade and Industry, and either the Secretary of Agriculture, if the product at issue is agricultural, or the Secretary of Labor, when the product is non-agricultural. The trigger to an anti-dumping action is described in Sec. 301 of the TCCP as follow: Whenever the Secretary of Finance or the Secretary of Trade and Industry (hereinafter called the "Secretary") receives an anti-dumping petition from the domestic industry or the Secretary has reason to believe, from any invoice or other document or newspaper, 95 96 ADB (2009), pp. 71-72. Panel Report, EC-Bed Linen, para. 6.238, cited in ADB (2009), p. 72. 164 Mission Report 1 August 2011 - 23 February 2012 magazine or information or translation thereof by any reputable language translator made available by any government agency or interested party, that a specific kind or class of foreign article is being imported into, or sold or is likely to be sold in the Philippines, at a price less than its normal value, the importation or sale of which might injure, or retard the establishment of, or is likely to injure an industry producing like articles in the Philippines, the Secretary shall, within twenty (20) days from receipt of such petition or information, determine a prima facie case of dumping. Within five (5) days from such receipt, he shall notify the protestee-importer and require him to submit within ten (10) days from such notice evidence from the producer of the imported article duly authenticated by the Philippine consular or trade office to support the normal value of such product. If no such evidence is submitted within the prescribed period, the Secretary shall base his decision on the available pertinent data. On advice from the Secretary of Finance who has determined that there is a prima facie evidence of dumping, the Tariff Commission is tasked to conduct an investigation to: (a) “verify if the kind or class of article in question is being imported into, or sold or is likely to be sold in the Philippines at a price less than its normal value”; (b) “ascertain the difference, if any, between the export price and the normal value of the article”; and (c) “determine if, as a result thereof, a domestic industry producing like articles in the Philippines suffers, or will be threatened with, injury, or will suffer a material retardation of the establishment of a domestic industry in the Philippines”. In the course of investigation, the Tariff Commission is responsible for identifying all interested parties and requiring them to submit their respective positions within fifteen (15) days from notice. The Commission conducts public hearings “where the owner, importer, consignee or agent, of the imported article, the local producers or manufacturers of like article, other parties directly affected, and such other parties as in the judgement of the Commission are entitled to appear, are given opportunity to be heard and to present evidence”. The investigation has to completed within 90 days, and the Commission is required tol submit its findings to the Special Committee on AntiDumping within 60 days from the termination of the investigation. Part of the Commission’s mandate is to “conduct quarterly examination and/or verification of the normal value to determine the necessity of adjustment” of the anti-dumping duty imposed. Upon petition from any interested party or on its own motion, the Commission shall conduct interim review to determine if the conditions found during the original investigation still exist. And on advice by the Special Committee, the Commission shall conduct an expiry or sunset review “at least six (6) months before the expiration of the 5-year time limit for the application of anti-dumping duty.97 Nothing in the foregoing mandate of the Tariff Commission is inconsistent with the terms of the ADA on the functions of the investigating authority. What is at odds with ADA is the role of the Special Committee. At the very least, the Special Committee does not have the independence expected of a judicial tribunal, foremost because it makes the final determination if the antidumping duty is to be imposed. 97 The Commission must submit the results of the expiry or sunset review to the Special Committee 3 months before the expiration date, but no more than 1 month from receipt of advice from the Committee to conduct such review. The application of anti-dumping duty may be extended for no more than 2 years. 165 Mission Report 1 August 2011 - 23 February 2012 The Special Committee shall, within fifteen (15) days after receipt of the report of the Commission, decide whether the article in question is being imported in violation of this section and shall give due notice of such decision. And yet, it is the only body to which an interested party can seek recourse. Any interested party of record who is dissatisfied with a decision in a dumping protest may file a motion for reconsideration with the Special Committee within thirty (30) days from notice of such decision: Provided, that no motion for extension of time to file a motion for reconsideration under this sub-section shall be allowed. An aggrieved party can also file an appeal to the Court of Tax Appeals but only for the amount of the duty. Said Court cannot reverse the “findings of fact in a dumping case.” That the investigating authority acts on the instruction of the Secretary of Finance who also heads the Special Committee, and the Committee makes final determination and acts as judicial tribunal at the same time, are clearly inconsistent with Article 13 of ADA which reads: …Such tribunals or procedures shall be independent of the authorities responsible for the determination or review in question. Despite the foregoing, there are some provisions in the 1995 law that are useful to the investigating authority since they provide more detailed criteria than those found in the ADA. Concretely, the law prescribes that in determining injury, the following should be considered: (i) (ii) Whether or not the imported articles under consideration are identical or alike in all respect to articles produced by the domestic industry or substantially of the same material or although of different composition or material serves the same or similar purpose such as a substitute as the articles produced in the Philippines in quantities sufficient to supply at least ten per cent (10%) of local consumption (arrived at by taking the sum of the average local production and average importation and subtracting therefrom average exportation) for the immediately preceding three (3) months prior to the filing of the dumping protest; The volume of dumped imports and their effects on prices in the domestic market for the like articles: Provided, that the Commission shall determine the consequent impact of these imports on domestic producers by considering relevant economic factors and indices such as: (a) Five per cent (5%) decline in sales volume or decline in sales prices of at least two per cent (2%) as compared to the average monthly sales for the immediately preceding three (3) months; or (b) Five per cent (5%) decline in the volume of production as compared to the average monthly volume of production for the immediately preceding three (3) months; or (c) Actual and potential negative effects on employment and inventories of the subject articles. This provision helps in identifying domestic like products, and consequently the domestic industry. Domestic like products can be distinguished as those that serve the same or similar purpose as imported product, and are able to satisfy at least 10% of local consumption. In 166 Mission Report 1 August 2011 - 23 February 2012 determining the potential effects of dumped imports on domestic industry, the threshold indices in the changes in sales volume, prices and production are likewise useful as they reduce, to some degree, the discretion that the authorities would have otherwise exercised. Anti-Dumping Law of 1999 In view of the apparent inconsistencies of the 1995 law with the ADA, major changes in the administration of anti-dumping cases were introduced in 1999. The Anti-Dumping Law of 1999 is part of the current TCCP. A major change is the significant reduction in the the role of the Secretary of Finance in antidumping proceedings. Whereas in the 1995 law, the Tariff Commission acts upon instruction of the Secretary of Finance, and the Special Committee, chaired by the Secretary of Finance, makes the final determination on the imposition of anti-dumping duty, the role of the Secretary of Finance in the 1999 law is almost symbolic. The only provision in the law involving the Finance Secretary concerns the obligation imposed on the Secretary of Departments of Trade and Industry and Agriculture to “notify” the Finance Secretary about petitions for application of antidumping measure, on which basis, it instructs the Commissioner of the Bureau of Customs to gather information concerning the allegedly dumped imports. Unlike in the 1995 law, the Finance Secretary can no longer initiate an anti-dumping investigation motu proprio, while such right is still retained by the Secretary of Trade and Industry, in case of non-agricultural products, and by the Secretary of Agriculture, in case of agricultural products. However, the Finance Secretary is still a member of the inter-agency committee that promulgates rules and regulations to implement the anti-dumping law, but no longer heads this committee.98 The final determination on the imposition of anti-dumping duty is now the prerogative of the Tariff Commission, which may decide against imposing the duty despite affirmative finding of dumping. Section 301 (a), Part 2, Title II of TCCP now reads: …Even when all the requirements for the imposition have been fulfilled, the decision on whether or not to impose a definitive anti-dumping duty remains the prerogative of the [Tariff] Commission. It may consider, among others, the effect of imposing an antidumping duty on the welfare of consumers and/ or the general public, and other related local industries. The Commission has also the power to initiate, conclude or suspend investigation, make preliminary determination, conduct interim and expiry reviews motu proprio, make a decision to accept or terminate an undertaking, and terminate a definitive anti-dumping duty. Despite the greater responsibilities bestowed to the Commission, some roles are still reserved to the Secretaries of Trade and Industry and Agriculture. Apart from initiating investigation motu proprio, the Secretaries can receive petitions from any interested party for application of antidumping measure and conduct of interim review, and direct the Commission to terminate investigation or conduct reviews. They can also make a preliminary determination, which findings they have to transmit to the Commission so the latter can proceed with the formal investigation. It is important to note that an affirmative preliminary finding automatically shifts the burden of proof to the importer respondent, and requires it to deposit a cash bond with Customs for the 98 The inter-agency committee is composed by Secretary of the Departments of Finance, Trade and Industry, and Agriculture, and Commissioners of Bureau of Customs and Tariff Commission. 167 Mission Report 1 August 2011 - 23 February 2012 amount of the provisionally estimated anti-dumping duty. Any final determination on imposition of anti-dumping duty as well as termination of a definitive measure is issued as a Department Order by either Secretary. Recognizing the need for an independent adjudication body, the 1999 law designated the Court of Tax Appeals as the judicial tribunal for the purpose of Article 13 of ADA. As in the 1995 law, petitions from parties opposing the dumping determination can only be heard within 30 days from official publication of the ruling. Another new provision in the 1999 law is the setting up of Trade Remedies Fund from the collected anti-dumping duties. The fund is earmarked to the Tariff Commission and Departments of Trade and Industry and Agriculture, purportedly to improve their institutional capabilities. Apart from these nuances on the administrative structure and the defined time-limits for certain procedures (e.g., completion of investigation by the Commission within 120 days from receipt of case information), the provisions in the 1999 law are exact replication of the provisions in the ADA. This avoids inconsistency of the national legislation with the multilateral agreement, but it also limits the usefulness of the law in providing guidance to authorities and private sector stakeholders. For example, the definition of domestic like product in the 1995 law is more instructive than the abstract definition in the ADA, which is replicated in the 1999 law. The injury threshold indices in the 1995 law were also removed in the current version. To be sure, these indices are arbitrary and could not be applicable to all industries all the time. There is no reason to write them into law except to prevent abuse by the granting authority, which, on the other hand, may be expedient when the governance structure is weak. Similarly, the extension in the application of anti-dumping duty was limited to 24 months in the 1995 law, but not in the current version, nor in the ADA. Thus, removing the time limit seems appropriate. But then the transitional character of the measure conveyed by the time-limit is practical to dispel any expectation that it can be used as a policy tool for protecting domestic industries. 6.3. Key Provisions and Issues in the Application of Countervailing Duties Mainly because of the difficulty in defining subsidies and distinguishing policy measures that are designed more to “protect” than “promote” domestic industries, work on trade agreement on subsidies and countervailing measures (SCM) had been considerably more protracted and arduous than in the case of anti-dumping and safeguards. GATT 1947, Article XVI, while considered too loose to curb protectionist tendencies of contracting parties, is a useful starting point. Section A of Article XVI read:99 If any contracting party grants or maintains any subsidy, including any form of income or price support, which operates directly or indirectly to increase exports of any product from, or to reduce imports of any product into, its territory, it shall notify the CONTRACTING PARTIES in writing of the extent and nature of the subsidization, of the estimated effect of the subsidization on the quantity of the affected product or products imported into or exported from its territory and of the circumstances making the 99 In the so-called Havana Charter (agreed upon during the 1948 UN Conference on Trade and Employment), the terms “contracting party” and “contracting parties” were replaced by “Member” and “Organization” (referring to International Trade Organization), respectively. However, the Charter never came into force, but GATT 1947 was implemented, albeit on provisional basis. 168 Mission Report 1 August 2011 - 23 February 2012 subsidization necessary. In any case in which it is determined that serious prejudice to the interests of any other contracting party is caused or threatened by any such subsidization, the contracting party granting the subsidy shall, upon request, discuss with the other contracting party or parties concerned, or with the CONTRACTING PARTIES, the possibility of limiting the subsidization. The deficiencies of Article XVI were quite ostensible. Foremost, it did not provide a definition of “subsidy”, but alludes to “any form of income and price support”, and measure “which operates directly or indirectly to increase exports or of any product from, or to reduce imports of any product into, its territory” as subsidy. This was considered too broad to be useful for purposes of the agreement. Second, the provision did not prohibit any form of subsidy. It merely imposed obligations on the contracting party: (i) to “notify” other contracting parities concerning the measure; and (ii) in case the measure is against the interests of the other contracting parties, to engage the concerned parties to a discussion for possible limiting of the amount of subsidy. Third, the ad note to Article XVI stated that the exemption of an exported product from duties and taxes that would have been paid had it been sold to the domestic market shall not be considered a subsidy. The exemption of an exported product from duties or taxes borne by the like product when destined for domestic consumption, or the remission of such duties or taxes in amounts not in excess of those which have accrued, shall not be deemed to be a subsidy. It should be noted that this kind of exemption is listed among prohibited subsidies in the ASCM. Further, Article III of GATT 1947 provided yet another loophole. It stated that as long as “internal” (domestic) taxes are applied on imported and domestic goods proportionately “so as not to afford protection” on the latter, then subsidies paid out of internal tax collection to domestic producers should be allowed. Concretely, Article III 8(b) stipulated: The provisions of this Article shall not prevent the payment of subsidies exclusively to domestic producers, including payments to domestic producers derived from the proceeds of internal taxes or charges applied consistently with the provisions of this Article and subsidies effected through governmental purchases of domestic products. Despite the foregoing, GATT 1947 laid down key principles on countervailing duties that were carried over to GATT 1994. First, a countervailing duty (CVD) is defined as “a special duty levied for the purpose of offsetting any bounty or subsidy bestowed, directly, or indirectly, upon the manufacture, production or export of any merchandise” (Article VI.3). Second, the duty should not be “in excess of an amount equal to the estimated bounty or subsidy determined to have been granted, directly or indirectly, on the manufacture, production or export of such product in the country of origin or exportation, including any special subsidy to the transportation of a particular product” (ibid). Third, no product can be subject to both anti-dumping and countervailing duties “by reason of the exemption of such product from duties or taxes borne by the like product when destined for consumption in the country of origin or exportation, or by reason of the refund of such duties or taxes” (Article VI.4). More importantly, no countervailing (or anti-dumping) duty may be imposed unless the subsidization (or dumping) causes or threaten 169 Mission Report 1 August 2011 - 23 February 2012 to cause material injury to an existing domestic industry, or materially retards the development of a domestic industry. No doubt that then contracting parties of GATT 1947 realized that the terms of the agreement concerning SCM were too ambiguous, which explains the final provision of Article XVI: The CONTRACTING PARTIES shall review the operation of the provisions of this Article from time to time with a view to examining its effectiveness, in the light of actual experience, in promoting the objectives of this Agreement and avoiding subsidization seriously prejudicial to the trade or interests of contracting parties. Negotiations on SCM continued in earnest even before the Uruguay Round. In 1950, a working party recognized that the exception in Article III.8(b) on the use of domestic taxes to subsidize domestic producers is not innocuous. Such subsidy is not just a simple flow back to domestic producers of taxes that they paid. Rather, the working party deemed the measure to nullify or impair the benefits associated with tariff concessions. But since the measure is explicitly provided for in the agreement, it could not be considered a breach. Nonetheless, other contracting parties harmed by the measure have recourse to Article XXIII which allows for suspension or withdrawal of concessions, after due consultations with the subsidizing party, and after giving the latter an opportunity to make adjustments in its measure. Between 1954 and 1955, special provisions on export subsidies were added to Article XVI, with the view of reducing the use of subsidies. In case of “primary products”, the amendments seek to limit the amount of subsidy so it would not stimulate production as much as to displace the exports of other parties. For other products, the intention was to eliminate all subsidies that result in dumping (i.e., export price for the product that is lower than its domestic price). But these amendments were not adopted by all signatories to GATT 1947. xxx 3. Accordingly, contracting parties should seek to avoid the use of subsidies on the export of primary products. If, however, a contracting party grants directly or indirectly any form of subsidy which operates to increase the export of any primary product from its territory, such subsidy shall not be applied in a manner which results in that contracting party having more than an equitable share of world export trade in that product, account being taken of the shares of the contracting parties in such trade in the product during a previous representative period, and any special factors which may have affected or may be affecting such trade in the product. 4. Further, as from 1 January 1958 or the earliest practicable date thereafter, contracting parties shall cease to grant either directly or indirectly any form of subsidy on the export of any product other than a primary product which subsidy results in the sale of such product for export at a price lower than the comparable price charged for the like product to buyers in the domestic market. Until 31 December 1957, no contracting party shall extend the scope of any such subsidization beyond that existing on 1 January 1955 by the introduction of new, or the extension of existing, subsidies. Yet by 1961, the GATT membership adopted an “illustrative list” of practices that were considered “prohibited” forms of subsidy because they result in export price for the product that is lower than its domestic price. Subsidies of these types, when applied on primary products, were still exempted. 170 Mission Report 1 August 2011 - 23 February 2012 During the Tokyo Round, GATT members successfully negotiated on the Subsidies Code, also known as the Plurilateral Agreement on Subsidies and Countervailing Measures. This is considered the precursor to ASCM. The Code tightened the restrictions on the use of export subsidies; provided more detailed procedures on the use of CVD; and enumerated criteria to be used when examining whether imports were causing or threatening material injury. The Uruguay Round produced the ASCM, but because of the political sensitivity of agricultural products, the so-called “Peace clause” was inserted in the Agreement on Agriculture (AoA). Specifically, Article 13 of AoA exempted certain agricultural subsidies from the disciplines of ASCM up to end of 2003. ASCM is considered a landmark achievement in the long years of intense negotiations on subsidies, primarily because it has pinned down the definition of subsidy and made certain forms of subsidy subject to multilateral disciplines. The next sections expound on the key provisions of the agreement and the progress achieved to date in restraining countries from the use of subsidy. Economic Rationale of Subsidies and CVD It is quite ironic that for a long time, countries were obstinately holding on to the right to use subsidy even when they acknowledge that it controverts the objectives of the multilateral agreement. This recognition is quite plain in Article XVI of GATT 1947: The contracting parties recognize that the granting by a contracting party of a subsidy on the export of any product may have harmful effects for other contracting parties, both importing and exporting, may cause undue disturbance to their normal commercial interests, and may hinder the achievement of the objectives of this Agreement. A rich and growing body of theoretical literature is attempting to explain why exporting countries use subsidies and importing countries countervail them. The theories suggest that when perfect competition in all markets is assumed, granting a subsidy to one’s producers is irrational, but imposing a countervailing duty on subsidized imports makes sense under certain conditions. By contrast, a departure from the assumption of perfect competition illuminates the strategic reasons behind granting subsidies but raises questions on the appropriateness of using CVD to negate the market advantage that a subsidizing country would otherwise gain. Subsidies and CVD under Perfect Market Conditions Perfect competition is a market condition that exists only in the realm of theory. All pertinent market information are known to all; there is no scale economies, i.e., cost advantage from producing more than others, nor externalities, i.e., benefits to other sectors realizable from the growth of one sector. Under these conditions, an export subsidy could benefit the importing country, but reduce the welfare of the subsidizing country. The global welfare is lower as a result, since the gains of the importing country are less than the losses of the subsidizing country. This conclusion that makes it absurd for any country to subsidize its producers is amply explained in any trade economics textbook. The apparent appeal of a subsidy is that it 171 Mission Report 1 August 2011 - 23 February 2012 allows the subsidized producers to export more and subsequently realize more profits. But the subsidized producers have to be “large” in the sense of being able to influence world market price. 100 If the subsidy is given to “small” producers, world market price is unaffected and the export subsidy results only in a transfer from government to its producers, without creating benefit for, nor harm to, any other sector. Hence, the only case of interest is one involving a subsidy to large producers. When an export subsidy is given to large producers, the subsidy itself creates a distortion since it is an intervention in the market whose function is to allocate resources so the economy can produce the optimal amount of output. The subsidy diverts resources to less efficient producers,101 but nonetheless stimulates production. But despite producing more, producers are enticed to export more than to sell in the domestic market. Fewer outputs available in the domestic market raises domestic price, which harms domestic consumers. Moreover, as more goods are exported, world market price for such good falls, which then lowers the terms-of-trade102 of the subsidizing country. The exporting country’s welfare is reduced by the terms-of-trade loss and efficiency losses103 due to the distortion in resource allocation.104 For the importing country, the subsidy improves its overall welfare. This is despite the obvious losses to domestic producers whose outputs may be displaced by cheaper, subsidized imports. However, domestic consumers gain due to lower prices of imported products, and the importing country’s terms-of-trade improves following the fall in import prices. So if importing countries would actually gain from an export subsidy of another country, why countervail a subsidy? A CVD is, after all, an import tariff that in itself distorts the allocation of resources, and therefore generates efficiency losses. Moreover, by increasing the price of imports, CVD nullifies the gains that domestic consumers would have realized, although, it also mitigates the losses of import-competing domestic producers. There are two possible motivations for countervailing other than to protect domestic producers. First, by countervailing, the importing country’s demand for the subsidized 100 In economic textbooks, the term “large” is used to describe a country, rather than a producer. Strictly speaking, it is not the behavior of a country itself that influences world market price, rather it is that of the producer’s. Therefore, it is more appropriate to refer to the producer, rather than to the country, as large or small in trade. In addition, most trade models in textbooks simplify by assuming one country, one producer; in this case, it does not matter if one refers to a country as large or small. 101 This assumes that efficient producers do not need a subsidy. 102 Terms-of-trade is the price of exports relative to price of imports. It serves as an index of the benefit that a country derives from trade as it indicates how much imported goods a country can buy (consume) using revenues from exports. An increase in a country’s terms-of-trade represents a welfare improvement for such country. 103 This refers to losses incurred because production resources are diverted from more to less efficient producers. 104 A production subsidy would have similar effects to those of an export subsidy in so far as both measures reduce the economic welfare of the exporting country. The difference however is that the domestic price of the subsidized product falls with the world market price, hence both consumers and producers of the subsidizing country benefit from the measure. Yet the cost of the subsidy borne by taxpayers is larger than the gains of domestic consumers and producers combined. 172 Mission Report 1 August 2011 - 23 February 2012 product falls. If the importing country’s consumption of that product is large enough, world market price of the subsidized product may be depressed further, which would enhance the terms-of-trade gain of the importing country. That fall in price could also weaken the incentives of subsidized producers to divert their production from domestic market to exports. Domestic prices may be restored at pre-subsidy levels in both exporting and importing countries. And all distortions created by the subsidy may be eliminated. The subsidy then becomes a mere transfer of resources in the subsidizing country to the government of the importing country. The sheer possibility that a subsidy to one’s producers will amount to a transfer of resources to a trading partner should be enough to deter any government from giving subsidy. However, the ability of a countervailing country to trigger the chain of causes and effects described in the preceding paragraph clearly depends on its size. A small country runs the risk of being worse off when its countervailing measure does not cause further decline in the world market price of the subsidized product. Still, another incentive to countervail arises when producers of the importing country are competing against subsidized exporters either in a third country or in the subsidizing country market. If the CVD deters the grant of subsidy, it will help producers of the countervailing country in exporting to other markets. If a CVD is not expected to result in terms-of-trade gain significant enough to offset the losses due to tariff distortion, or if the possibility of CVD does not deter governments from subsidizing their producers, then an importing country is better off keeping trade unrestricted. Subsidies and CVD under Imperfect Market Conditions It appears that the threat of CVD alone cannot discourage governments from subsidizing because there are more compelling reasons for subsidizing, which become evident only when the assumption of perfect market competition is abandoned. Thus, governments grant subsidy to stimulate research and development or promote environment-sustaining activities because of their positive externalities to society. Subsidy to so-called infant industry is rationalized by either the presence of learning-by-doing effects or imperfection in the capital market. If learning-by-doing is important, start-ups do not stand a chance against experienced producers. As a result, the government may find it expedient to subsidize its domestic producers until they earn sufficient production experience. In addition, recognizing that the capital market may not be able to extend needed resources to newcomers because of lack of information about their potentials, the government may be compelled to provide subsidy for their capital requirements. Newer trade theories offer strategic motives for granting subsidy. Perhaps the most naked motivation for subsidizing is to enable a national producer prey on its competitor, by price undercutting or dumping. The objective of predation is to force competitors out of business by selling at price below cost (alternatively, by dumping to force price down), gain dominant position, and once successful in driving competitors out, establish a monopoly price to recover losses incurred during predation.105 This argument for 105 See discussion on predatory dumping in B.1. 173 Mission Report 1 August 2011 - 23 February 2012 subsidizing is considered more plausible in theory than in practice. If at all predatory pricing is feasible, it could not be recurrent, mainly because of the difficulty of recouping losses incurred during predation. It is much less conceivable for a government to finance predatory pricing by its producers as a matter of policy. A more plausible strategic motivation for subsidizing is aimed at raising national welfare by enabling national producers capture a larger share of oligopoly rents. Where market competition is imperfect, firms compete for a share of market rents (i.e., above-normal profits). A subsidy affords cost advantage to producers so they could appropriate rents that would otherwise accrue to their competitors.106 When the production function is characterized by increasing returns to scale, a subsidy allows a firm to produce more and, in the process, reduce its costs of production, and gain a larger share of industry profits. Accordingly, the strategic motive for granting subsidy is to shift profit from foreign to home firms. While this profit-shifting argument has been widely invoked as motivation for providing subsidy, it is not completely persuasive. First, it is not robust; changing the assumption of the model, which supports the grant of subsidy, reverses its conclusion. In particular, if one assumes that the basis of competition among firms is prices, instead of market share, the conclusion would have been that the government should impose an export tax on its producers, instead of giving them subsidy. Second, if one government recognizes the value of subsidizing its firms, so should the government of competing firms. If all governments subsidize their own firms, no one gains advantage over another, in which case, the subsidies are all for naught. 107 Notwithstanding, governments may still find value in subsidizing if they perceive that retaliation by a competing government is slow at coming. For some industries, governments may find it worthwhile to raise employees’ productivity or efficiency above the rest of the sectors by subsidizing their employers so wages could be raised above competitive level. Also, a subsidy may spawn first-mover advantage for its recipient that is difficult to reverse despite belated subsidy of another government. If the motivation for the subsidy is any of the reasons discussed, there are sufficient justifications to countervail. Concretely, if the subsidy is meant to allow predation, an importing country must countervail to prevent monopolization of its domestic market by foreign producers. If it were intended to shift oligopoly profits or rents, CVD can be used to “claw” back profits from foreign producers.108 In addition, when producers of the importing and subsidizing countries are also competing in a third country market, CVD may be used less as a tool for import protection than for export promotion. That is, the threat of CVD is aimed at discouraging subsidy that would put the importing country’s producers at a disadvantage when they compete against subsidized producers in a third country market.109 Finally, in case a subsidy is designed to raise employees’ wages above competitive level, the subsidy brings no benefit to consumers of the importing country in the first place, thus a CVD can be used to negate the harm to domestic producers. 106 Brander and Spencer (1984). Eaton and Grossman (1986). 108 Dixit (1984). 109 Krugman (1984). 107 174 Mission Report 1 August 2011 - 23 February 2012 However, the issue is not whether a CVD can be justified, but whether it is enough to offset domestic injury. One argument is that the maximum duty allowed by ASCM is not sufficient to offset a direct export subsidy especially if the latter involves a subsidy for the purchase of capital equipment.110 And even if the subsidy were given only for a short period of time but sufficient to cause domestic consumers of the importing country to switch to subsidized imports, a CVD may still not enable domestic producers win back consumers if switching cost is significant.111 Moreover, if the importing country has a cost advantage over imports despite the subsidy, a prohibitive tariff (not just a tariff level that will negate domestic injury) plus a domestic subsidy to eliminate domestic distortion is needed.112 As a deterrent to subsidization, CVD imposed by one or several countries may not be enough because the exporting subsidizing country can divert its trade to another that does not countervail. Indeed, statistics show that CVDs have not been frequently used and only a small number of countries have availed of it. One reason for this is ASCM’s requirement that domestic injury test must first be satisfied before a CVD can be used. Another is that in practice, detection of subsidy and its impact on the domestic market takes time, hence either the application of CVD is delayed or not taken up at all. Consequently, since the decision to countervail is to be taken by members individually, the unilateral and uncoordinated responses to subsidy may only cause trade diversion to markets where no countervailing action is taken, but not limits its use. For this reason, bringing a subsidizing country to WTO dispute may be a more effective deterrent. Subsidies ASCM does not cover all forms of subsidy but at least those that ostensibly contradict the essence of GATT. Subsidy, for the purpose of the agreement, is thought of as having three elements: (i) financial contribution; (ii) by a government or public body within the territory of a member; (iii) which confers a benefit. Financial contribution The term “financial contribution” in the definition of subsidy is used rather broadly. Article 1.1 of ASCM enumerates measures that are deemed to constitute financial contribution, namely: (i) (ii) (iii) (iv) direct transfers of funds such as grants, loans, and equity infusions as well as potential transfers of funds or liabilities such as loan guarantees; foregone or uncollected government revenue, such as tax credit; goods or services (other than general infrastructure) provided by government or the purchase of goods; and any form of income or price support, which directly or indirectly to increase exports, or reduce imports, of the product. 110 Spencer (1988). Hartigan (1996). 112 Dixit (1984), 111 175 Mission Report 1 August 2011 - 23 February 2012 The foregoing is considered a closed list by the panel in the US-Export Restraint.113 Thus other forms of transfers or government measures that also confer benefits fall outside the scope of ASCM. For example, if a producer is exempted from making mandatory investment in a pollution device, the measure is not among the measures contemplated in Article 1.1, hence it is not a financial contribution governed by the agreement. Government For a financial contribution to be a subsidy, it must be made “by a government or any public body within the territory of a member”. The last phrase invites several interpretations that were clarified by the panel in Korea-Commercial Vessels. First, a “public body” is any entity controlled by the government, such as an export credit agency. Second, a financial contribution made by a private entity at the direction of a government or public body is within the scope of the agreement. Or when functions identified as constituting financial contribution are entrusted by the government to a private entity, such action is likewise considered to have been made by the government for purposes of the agreement. As a result, if a private NGO gives technical and financial assistance to farmers, the assistance is considered to be made by government if it engaged the NGO to extend such assistance. Benefit It is not sufficient that the measure is considered a financial contribution, and that it is made by or at the direction of government or public body; some benefit must also accrue to the recipient as a result of the measure. What constitutes a “benefit” for the purpose of the agreement has not been fully resolved. There are some guidance, however, from the agreement itself, which was affirmed in a case law. In Canada-Aircraft, the Appellate Body ruled that a benefit is conferred only if the recipient receives more than what it could have received in the marketplace. This is consistent with Article 14 of ASCM which lists down circumstances that should not be considered as conferring benefit. Specifically, the following are not deemed to confer benefit: (i) (ii) (iii) (iv) a government provision of equity capital based on an investment decision that a private investor would have made; a government loan extended on same terms as a commercial loan; a government loan guarantee that does not alter what a recipient would pay on a comparable commercial loan sans government guarantee; and goods or services provided by government for less than adequate remuneration, or purchased by government for more than adequate remuneration, where the adequacy of remuneration is based on the terms that the goods or services could be acquired from the market. Comparing the value that an alleged recipient of subsidy would have to pay or return with market prices is not without problems. For one, domestic market prices in the country providing subsidy may be distorted if the government is a dominant supplier of the good or service in question. In which case, one may not find substantial difference between government and private sector prices because the latter has been influenced by the former. It could then lead to a false 113 Panel Report, US-Export Restraints, para. 8.73, cited in ADB (2009), p. 171. 176 Mission Report 1 August 2011 - 23 February 2012 conclusion that no benefit was conferred by the government’s provisioning of good or service. This was the basis of the Appellate Body’s decision to reverse the finding of the panel in USSoftwood Lumber IV. If, on the other hand, prices in a different market are used as benchmark, they may not relate to the same good or service as those in question. This problem underscores the difficulty of distinguishing a subsidy from a normal provisioning. Specificity Although a measure may be considered a subsidy according to the terms of the agreement, it could only be subject to multilateral remedies or countervailing measures if it is specific, as defined in Article 2 of the agreement. The concern for specificity stems from the basis of objection to the use of subsidy, i.e., it causes distortion in the allocation of resources. If a subsidy is widely accessible, hence non-targeted or not specific, then it could not distort the allocation of resources. Four types of specificity are distinguished: (i) enterprise-specific, in case the target of the subsidy is a particular company or companies; (ii) industry-specific, if the target is a particular sector or sectors; (iii) regional-specific, if the target is in identified parts of the member’s territory; and (iv) prohibited subsidies, if the target is an export good or a good using domestic inputs (i.e., importsubstituting).114 The last type is specific by its very nature. What makes a subsidy non-specific? Article 2.1(b) stipulates that a measure is made non-specific by the granting authority establishing objective (i.e., neutral and economically sensible) criteria or conditions in choosing recipients in a law, regulation or other official document. In addition, anyone who satisfies the specified criteria or conditions must be automatically eligible to receive the subsidy. However, the specificity of a subsidy could not be disguised by mere publication of objective criteria or conditions. Article 2.1(c) provides that certain conditions could indicate that a subsidy is de facto specific or targeted, even when the requirements of Article 2.1(b) are satisfied. The specificity may be inferred from the following: (i) (ii) (iii) (iv) limited number of enterprises using or availing of the subsidy; certain enterprise or enterprises dominating the use of subsidy; disproportionately large amount of subsidy granted to certain enterprise or enterprises; and actual pattern of granting subsidy reveals erratic exercise of discretion by the granting authority. When ascertaining if the subsidy is de facto specific, Article 2.1(c) notes that due regard should be given to the extent of diversification of economic activities in the jurisdiction and length of time the subsidy program has been in operation. Types of Subsidy The agreement distinguishes two types of subsidy: prohibited and actionable. The former refers to subsidy contingent upon export performance or on use of domestic over imported goods. The 114 WTO (2004b), p. 14.4. 177 Mission Report 1 August 2011 - 23 February 2012 latter covers all other specific subsidies that do not meet the definition of prohibited subsidies, but cause adverse effects to the interests of other members. Prohibited Subsidies Part II of ASCM elaborates on two types of subsidies that are not permissible in all cases. The first is an export subsidy, or one that is contingent, solely or as one of several conditions, upon export performance. The other is an import substitution subsidy, or one that is dependent, wholly or as one of the conditions, on the use of domestic goods instead of imported (also known as local content requirement). These subsidies may be de jure, i.e., expressed in a law, regulation or other legal instrument, or de facto, i.e., their nature can only be inferred from facts constituting or surrounding their grant and application. Judging a measure if it constitutes de facto subsidy is not straightforward. It is therefore helpful that Annex I to the agreement provides an illustrative list of 12 common measures that may represent export subsidies. The list includes: currency retention schemes; export-related exemption, remission or deferral of direct or indirect taxes; export credit guarantee or insurance programs against increases in cost of production or exchange risk; provision of internal transport and freight charges on export shipments on terms more favorable than for domestic shipments; provision of goods or services for use in production of exported goods on terms more favorable than for use in the production of goods for domestic consumption; and remission or drawback of import charges in excess of those levied on imported inputs that are consumed in the production of exported product. When the remission or drawback of duties is exactly equal to, not in excess of, those levied on imported inputs used in the production of exported goods, the measure is not construed as export subsidy. Almost all countries, the Philippines included, maintain this kind of scheme. As a result, Annexes II (Guidelines on the Consumption of Inputs in the Production Process) and III (Guidelines in the Determination of Substitution Drawback Systems as Export Subsidies) are particularly relevant to avoid application of measures that may be deemed to constitute export subsidy. However, an export subsidy applied to agricultural products is not subject to the disciplines in the ASCM, but is instead covered by the provisions of the Agreement on Agriculture. They can be countervailed, nonetheless. Actionable Subsidies When a measure satisfies the elements of a subsidy and specificity, but do not constitute export or import-substitution subsidy, it is considered actionable subsidy. To be clear, actionable subsidy may be sanctioned when it cannot be shown that it causes adverse effects to the interests of other members. Article 5 clarifies that adverse effects refer to the impact of the subsidy on other members, besides the subsidizing country. They pertain to: (i) (ii) injury to the domestic industry of the importing country; nullification or impairment of tariff concessions accruing directly or indirectly to other GATT 1994 members; and 178 Mission Report 1 August 2011 - 23 February 2012 (iii) serious prejudice to the interests of another member (i.e., besides the complaining party). The first, “injury to the domestic industry”, refers to the same injury that is the basis for antidumping duty in ADA. It is also the sole basis for levying CVD. This means that an actionable subsidy can be countervailed only if it causes material injury to the domestic industry. Such injury may be actual or mere threat, so long as it is “material”, and includes “material retardation of the establishment of an industry” – just like in anti-dumping measure.115 The second adverse effect, nullification or impairment of benefits, is usually invoked in a “nonviolation complaint.” The course of action arises when the subsidy is not directly in conflict with the provisions of the agreement, but the complaining party deems that the measure has impaired or nullified the benefits that it could have enjoyed from the tariff concession given by the subsidizing country. For example, the defending country may lower its bound tariffs, which potentially improve the access to its market by other members, yet at the same time imposes an import-substituting subsidy. GATT Article XXIII prescribes procedures for dealing with cases involving nullification or impairment of benefits. It requires the complaining party to first seek consultation with the Member concerned, with the view of persuading the latter to make adjustments in its measure. If no agreement is reached and the impact of the measure is considered serious, the complainant may suspend or withdraw its tariff concession toward the concerned member. Serious prejudice, like injury, may be actual or mere threat. Unlike injury, however, it refers to the impact of the measure on another member, not the complaining one. Article 6.3 enumerates situations that constitute serious prejudice to the interests of other members: (i) (ii) (iii) (iv) when imports of a like product of another member is displaced, or its entry impeded, in the market of the subsidizing member; when exports of a like product of another member is displaced, or its entry impeded, in a third-country market; when the subsidized product significantly undercuts the price of like product of another member “in the same market” or causes price suppression, price depression or lost sales “in the same market”; when the world market share of the subsidized product increased as compared to its average share during the previous three-year period, and this increase follows a consistent trend during the period when the subsidy is being given. The term “in the same market” in (iii) above could refer to some national market or the world market, according to the panel in Korea-Commercial Vessels.116 It is worth noting that the requirements to establish serious prejudice are less stringent in Article 6.1 which states that in the following cases, serious prejudice is deemed to exist: (i) (ii) 115 116 when total ad valorem subsidy of a product exceeds 5 percent (based on calculation prescribed in Annex IV to the agreement); when subsidies cover operating losses sustained by an industry; See B.3.3 and B.3.4. ADB (2009), p. 179. 179 Mission Report 1 August 2011 - 23 February 2012 (iii) when subsidies cover operating losses sustained by an enterprise, except when the subsidy is a one-time measure and given only to provide time for the development of long-term solutions and to avoid acute social problems; or (iv) when government forgives the debt of the recipient or gives a grant to cover debt repayment . Article 6.2 provides, however, that a subsidizing member may be able to defend itself against claims of serious prejudice by showing that the subsidy does not result in any of the situations envisaged in Article 6.3. Articles 6.1 and 6.2 were provisional for a five-year period until 31 December 1999. The SCM Committee did not vote to extend their application, hence these provisions are no longer in force. Non-actionable Subsidies Both prohibited and actionable subsidies can be challenged through the WTO dispute settlement mechanism, or the importing country may impose countervailing measure if the subsidy causes injury to the domestic industry. A third type of subsidy, labeled “non-actionable”, was included in the ASCM when it first came into force. Although specific, these measures cannot be brought into dispute nor countervailed. Subject to detailed conditions outlined in Article 8.2, these measures are: (i) (ii) (iii) assistance for research activities conducted by firms, higher education or research establishments on a contract basis; assistance to disadvantaged regions within the territory of a Member in the context of regional development; and assistance to promote adaptation of existing facilities to new environmental requirements imposed by law or regulation. However, the exemption of these measures from any form of WTO discipline was meant to be provisional for five years ending 31 December 1999, unless the SCM Committee voted by consensus to extend it. But no such consensus was reached, hence these subsidies have now become actionable. The next sections discuss the WTO disciplines that may be applied to prohibited and actionable subsidies. Remedies ASCM provides for two tracks of applying disciplines to subsidies: multilateral and unilateral. The first refers to the use of dispute settlement mechanism, which may result in the withdrawal of the subsidy or removal of its adverse effects in any export market; the latter pertains to the application of countervailing measure by affected members. The provisions in Article 4 in Part II and Article 7 in Part III pertain to multilateral remedies for prohibited and actionable subsidies, respectively, while Part V contains rules concerning use of unilateral remedy. Both tracks are subject to special and differentiated treatment for developing countries. This two-track remedy is unique to subsidies. Dumping cannot be challenged in a WTO dispute; the only remedy available to a member is to impose an anti-dumping duty. A dispute can be 180 Mission Report 1 August 2011 - 23 February 2012 brought against a member’s safeguard measure, but it cannot be countervailed. By contrast, multilateral and domestic proceedings may be initiated against subsidies. A WTO member may bring another member’s subsidy to the WTO dispute settlement system, while also initiating a countervailing investigation on its own. Footnote 35 of the agreement states that both tracks may be pursued simultaneously, but “only one form of relief (either a countervailing duty, if the requirements of Part V are met, or a countermeasure under Articles 4 or 7) shall be available” to the affected member. Are the two tracks necessary? One view is that the two tracks are complementary. The multilateral remedy is broader since it may cause the withdrawal of the subsidy or removal of its adverse effects which benefit all members; the unilateral track addresses the injury only to an individual member, but the proceedings are faster and therefore the effects of the subsidy can be more quickly neutralized. Some observers consider the threat of multilateral action more effective than an individual country’s countermeasure in disciplining members from using subsidies. In this sense, a unilateral track is redundant, especially because if both tracks are pursued simultaneously, a member that initiated a countervailing investigation cannot expect to receive separate compensation for the resources spent on its own proceedings. On the other hand, even while the dispute settlement mechanism follows a strict time frame, it usually takes more than a year to complete the process including the pre-initiation activities. And yet bringing a dispute is not only time-consuming, but also costly and unpredictable. Meanwhile, the injury to the domestic industry could become irreversible if the subsidy were allowed to continue longer. From political economy standpoint, a unilateral track has several advantages. Foremost, freerider problem can be expected of any multilateral action, i.e., a member country would hesitate to bear the costs of bringing dispute against another member when the expected outcome can benefit all members, including those who did not share in the costs of the proceedings. Second, a countervailing investigation (just like an anti-dumping investigation) is usually initiated by the private sector, whereas the filing of dispute is seen as a government initiative. Considering that the impact of another member’s subsidy depends on whether a domestic industry buys the subsidized product or sells a like (or competing) product, a national government would not want to be seen favoring one of its domestic sectors over another by initiating a multilateral action. Third, if there is strong domestic pressure to take action against the subsidy of another country, it is easier for a government to placate its domestic groups through the unilateral track because it has better handle of its own laws and institutions. In addition, a provisional CVD (just like an antidumping duty) may be imposed 60 days after date of initiation of the investigation. Nonetheless, a trade remedy obtained through multilateral action will always have more legitimacy and weight, and to that extent, it could more effectively deter any member from using subsidies. Multilateral Remedies A subsidy that is prohibited (coded �red”) or actionable (coded “yellow”) within the context of the agreement can be referred by any WTO member to the Dispute Settlement Body (DSB). The dispute settlement proceedings for prohibited subsidy are the same as those for actionable subsidy, except for time-frames. But in both proceedings, the deadlines are rigidly observed, and 181 Mission Report 1 August 2011 - 23 February 2012 decisions strictly enforceable. The table below juxtaposes the proceedings for prohibited subsidy (contained in Article 4) with those for actionable subsidy (Article 7). Table 6.2 Multilateral Remedies for Prohibited and Actionable Subsidies Prohibited Subsidies Actionable Subsidies 1 Request for consultations, including statement of available evidence regarding the existence and nature of subsidy. 2 Consultations as quickly as possible 3 If no solution within 30 days, referral to DSB for immediate establishment of panel. 4 Panel may request assistance from Permanent Group of Experts for binding advice on whether it is a prohibited subsidy. Circulation of panel report within 90 days of date of composition of panel and establishment of terms of reference. If the subsidy is prohibited, panel recommends that the member withdraw it without delay and specifies the time period for withdrawal. Thus far, panels have generally given 90 days. Within 30 days of circulation, report to be adopted by the DSB, unless appealed. Appellate Body must normally issue decision within 30 days from notice of intention to appeal, in no event more than 60 days. 5 6 7 8 9 10 If DSB recommendation is not followed within time period specified by panel (which commences from date of adoption of the panel or Appellate Body report), DSB grants authorization to complaining member to take appropriate proportionate countermeasures. 11 Applicable DSU time-periods for conduct of such disputes shall be half (except for time periods specifically prescribed in Article 4). Source: ADB (2009), pp. 180-181. Request for consultations, including statement of available evidence regarding existence and nature of subsidy and injury caused to domestic industry (nullification or impairment, or serious prejudice) Consultations as quickly as possible If no solution within 60 days, referral to DSB for establishment of panel; composition of panel and terms of reference within 15 days. Circulation of panel report within 120 days of date of composition of panel and establishment of terms of reference. Within 30 days of circulation, report to be adopted by the DSB, unless appealed. Appellate Body must normally issue decision within 60 days from notice of intention to appeal, in no event more than 90 days. After adoption of panel of Appellate Body report that finds adverse effects, subsidizing member must take appropriate steps to remove the adverse effects or withdraw the subsidy. If member does not take steps within 6 months from date of DSB’s adoption of panel or Appellate Body report, DSB authorizes complaining member to take appropriate countermeasures commensurate to the degree and nature of adverse effects. Apart from differences in deadlines that are evident in the preceding table, there are also substantive differences in the proceedings. For one, the evidentiary requirements in actionable subsidy are understandably more than in prohibited subsidy, since adverse effects need to be demonstrated in the former, but not in the latter. It is sufficient in prohibited subsidy to show that the measure satisfies the definition of export or import-substitution subsidy. The panel may rely on the opinion of the Permanent Group of Experts for such determination. By contrast, the panel’s terms of reference in actionable remedy is more involved as it entails examining evidence of adverse effects and verifying the existence of causal link between the subsidy and adverse effects. This explains why the panel is given 120 days in actionable subsidy, but only 90 days in prohibited subsidy. 182 Mission Report 1 August 2011 - 23 February 2012 In principle, prohibited subsidy is never permissible; thus the panel can only either recommend its withdrawal or sustain the member. By contrast, even if the panel find in favor of the complainant, in case of actionable subsidy, it may not require the member to withdraw the subsidy, but only to eliminate its adverse effects. Recognizing however the distortive effects of subsidies on trade, the proceedings for both prohibited and actionable subsidies are expedited compared to other WTO dispute settlement proceedings.117 …[In case of prohibited subsidies,] the time periods are half of those in usual dispute cases. The panel report must be circulated to all Members within 90 days of its composition and establishment of its terms of reference, rather than the usual 6 months. Further, the defending Member has no opportunity to delay establishment until the second meeting of the DSB; rather, the panel must be established immediately. A panel established under Article 4 may request the assistance of the Permanent Group of Experts, whose conclusion on whether or not a subsidy is prohibited must be accepted by a panel without modification. A panel under Article 4 which finds the existence of a prohibited subsidy shall recommend that the Member withdraw the subsidy without delay, and shall specify the time-period within which it must be withdrawn. Should the Member fail to implement the recommendation within the time allowed, the DSB must authorize the complaining Member to take "appropriate countermeasures". …[In case of actionable subsidies,] a panel must circulate its report to all Members within 120 days of its composition and establishment of its terms of reference. Where the complainant alleges serious prejudice, Annex V to the SCM Agreement sets forth specific and detailed procedures to facilitate information gathering. In the event a panel finds that a subsidy has caused adverse effects, it must recommend that the subsidizing Member take appropriate steps to remove the adverse effects or that it withdraw the subsidy. If the subsidizing Member fails to implement the recommendation within six months of the date that the DSB adopts the panel or Appellate Body report, the DSB must authorize the complaining Member to take countermeasures commensurate with the degree and nature of the adverse effects found to exist. Notwithstanding that the dispute settlement proceedings are well defined, the rulings of the panel and Appellate Body have not always been straightforward. For example, the panel in Australia-Automotive Leather reckoned that when a member is asked to withdraw the subsidy, the recipient of the subsidy must, in turn, be asked by its government to repay. However, the panels and Appellate Body in Canada-Aircraft and Brazil-Aircraft asked for withdrawal of subsidy without requiring repayment from recipients. Finally, in gathering information to ascertain if serious prejudice exists, Annex V to the agreement stipulates that failure of a subsidizing or third-country member to cooperate in the investigation, i.e., to supply the required information, gives the panel the right to draw adverse inferences. The Appellate Body in Canada-Aircraft ruled that such right of the panel extends in case of prohibited subsidies, even when serious prejudice is relevant only to actionable subsidy.118 Subsequently, failure to cooperate by a member in any subsidy case is deemed to give right to the panel to draw adverse inferences. 117 118 WTO (2004b), pp. 14.11-14.12. ADB (2009), p. 234. 183 Mission Report 1 August 2011 - 23 February 2012 Countervailing Duty The substantive and procedural rules on the use of both CVD and anti-dumping duty are based on the principles articulated in Article VI of GATT 1994. Thus, Article 1 of ADA that set the scope of that agreement reads the same as Article 10 of ASCM which states: Members shall take all necessary steps to ensure that the imposition of a countervailing duty on any product of the territory of any Member imported into the territory any Member imported into the territory another Member is in accordance with the provisions of Article VI of GATT 1994 and the terms of this Agreement. Countervailing duties may only be imposed pursuant to investigation initiated and conducted in accordance with the provisions of this Agreement and the Agreement on Agriculture. As in the case of dumping, a CVD may be levied only when the: (i) imported products are subsidized (dumped); (ii) domestic industry suffers injury; and (iii) subsidized (dumped) imports caused the injury. The concept of injury in ASCM is the same “material injury” in ADA; in fact Article 15 (Determination of Injury) has exactly the same provisions as Article 3 of ADA which bears the same title. Also, domestic industry in ASCM, as defined in Article 16, has the same scope as that found in Article 4 of ADA. A countervailing proceeding, just like an anti-dumping proceeding, is started off by an investigation, which may be initiated by the authority itself based on sufficient evidence of subsidy, injury to domestic industry and causal link between subsidy and injury, or by an application for CVD made by or on behalf of the domestic industry. And similarly as in antidumping, the application is only considered to be made “by or on behalf of the domestic industry” when (i) it is supported by domestic producers whose collective output constitutes more than 50 percent of total production of like product produced by the portion of the domestic industry expressing opinion (in support or against) to the application; and (ii) producers who expressed supporting opinion must account for at least 25 percent of total production of like product produced by the domestic industry. The basis for rejecting an application is also the same in CVD as in anti-dumping duty: (i) the amount of subsidy (dumping) is de minimis or (ii) the volume of subsidized (dumped) imports, actual or potential, or the injury is negligible. There are minor differences in details, however. In subsidy, the de minimis threshold is 1 percent (instead of 2 percent in anti-dumping) of the value of the good. The ASCM does not stipulate the threshold for negligibility of import volume, but in terminating an investigation of subsidy by a developing country, Article 27.10 of ASCM requires that the volume of subsidized imports represents less than 4 percent (instead of 3 percent in antidumping) of total import of like product in the importing country. The exception to this rule is however the same in ADA and ASCM, namely, when this group of exporting members collectively account for more than 9 percent of total imports of like product in the importing member. Like anti-dumping duty, CVD is not applied on all imports; only those subsidized and causing injury to domestic industry. The level of CVD is likewise capped by Article VI.3 of the GATT 1994, specifically, no more than the estimated subsidy determined to have been granted directly or indirectly for the manufacture, production or export of such product. This principle is reflected in Article 19.4 of ASCM which stipulates that the amount of subsidy should be calculated in terms of subsidization per unit of the subsidized and exported product. 184 Mission Report 1 August 2011 - 23 February 2012 CVD is also like anti-dumping duty that can only be maintained as long as and to the extent necessary to counteract the injury caused by subsidy (dumping). The duties are to be terminated within five years from date of imposition unless the authorities determine, through a review, that that their removal would lead to continuation or recurrence of subsidization (dumping) and injury to domestic industry. Such review may be initiated by authorities or upon request by any interested party. The procedural provisions of ASCM replicate those of ADA. The countervailing investigation is also about 12 to 18 months. Due process rights of the subsidizing member and other interested parties are observed; so is confidentiality of information. There is also no difference in the rules on imposition of provisional measures, acceptance of price undertakings and retroactive application of duties. The authorities have discretion to determine the amount of CVD as they have for anti-dumping duty, but both agreements express preference for lesser duty rule – in the case of ASCM, the lower between subsidy and injury margins, but no more than subsidy margin Since both CVD and anti-dumping duty are responses to “unfair” trade practices – subsidy and dumping, respectively, it is not surprising that the provisions in the two agreements with respect to these measures are consistent with each other. It stands to reason that the WTO panels and Appellate Body usually cross-check their interpretations of provisions in ADA with related rulings in subsidy disputes, and vice-versa for ASCM provisions. As a result, the rulings in ASCM and ADA disputes are also substantially consistent.119 Special and Differential Treatment Some provisions of ASCM are meant to be applied on a different timeframe for certain groups of members in recognition of their economic status and the fact that subsidies are common in many development agenda of these economies. At least four groups are accorded special and differential treatment in ASCM. Three of these groups are collectively called “developing countries”, two of which are identified in Annex VII to the agreement. The fourth group is composed of so-called Transition Economies, i.e., members in the process of transformation from a centrally-planned to a market, freeenterprise economy. The term “developing countries” in ASCM refers to three groups of member countries. First, Annex VII to the agreement enumerates the developing country members exempted from Article 3.1(a), prohibiting the use of export subsidies, namely: • • least-developed countries designated as such by the United Nations; and countries with GNP per capita of less than US$1,000 based on most recent data from the World Bank at the date the agreement can into force, namely: Bolivia, Cameroon, Congo, Cote d’Ivoire, Dominican Republic, Egypt, Ghana, Guatemala, Guyana, India, Indonesia, Kenya, Morocco, Nicaragua, Nigeria, Pakistan, Philippines, Senegal, Sri Lanka and Zimbabwe. They are referred to as Annex VII(a) and Annex VII(b) developing countries, respectively. Developing countries not named in Annex VII are referred to as “other developing 119 WTO (2009), p. 99. 185 Mission Report 1 August 2011 - 23 February 2012 countries”, which comprise the third group. The agreement provides that Annex VII(b) developing countries are reclassified as “other developing countries” once their per capita incomes reach US$1,000 per annum. Thus, the application of rules on use of subsidies and remedies depends on the economic group of a WTO member, and the date of entry into force of the agreement for that member. Table 6.3 Differentiated Application of Article 3.1(a) of ASCM Export Subsidies Developed Must be eliminated within 3 years countries from date of entry Annex VII(a) Allowed developing countries Annex VII(b) Allowed developing countries Other Allowed up to 8 years from date developing of entry countries Transition Must be eliminated within 7 years economies from date of entry Import-substitution Subsidies Must be eliminated within 3 years from date of entry Allowed up to 8 years from date of entry Allowed up to 5 years from date of entry Allowed up to 5 years from date of entry Must be eliminated within 7 years from date of entry Although other developing countries are permitted to maintain their export subsidies up to 8 years, the agreement also provides that they cannot increase the level of those subsidies, and they should in fact endeavor to remove them before the expiry of the 8year period, when their use are no longer consistent with their development needs.120 Moreover those subsidies remain actionable.121 Article 27.4 also provided possibility for extending beyond the 8-year period (which should have ended 31 December 2002), subject to consultations with the Committee on Subsidies and Countervailing Measures (Subsidies Committee) one year before the end of that period. The Subsidies Committee laid down the criteria and procedures for granting extension in document G/SCM/39, stipulating that the following programs are eligible for extension:122 (i) (ii) (iii) an export subsidy program in the form of full or partial exemptions from import duties and internal taxes; in existence no later than 1 September 2001; and provided by developing country members whose share of world merchandise export trade was not greater than 10%, whose total gross national income for the year 2000 as published by the World Bank was at or below $20 billion, and who are otherwise eligible for an extension under Article 27.4. 120 Article 27.4 of ASCM. WTO (2004b), p. 14.6. 122 ADB (2009), p. 200. 121 186 Mission Report 1 August 2011 - 23 February 2012 When an extension is granted, it needs to be reviewed and renewed annually. As of 2007, about 19 members received approval for extending their subsidies up to 2007.123 When disapproved, the subsidy must be removed within 2 years. A developing country that attains export competitiveness on the product it is subsidizing is also required to eliminate such subsidy. For other developing countries, the phase-out period is 2 years, while Annex VII(a) and (b) developing countries have 8 years. Export competitiveness is deemed to have been attained when a country’s share of world trade for that product is at least 3.25 percent for two consecutive calendar years. 124 With respect to application of remedies, certain special provisions also apply to developing countries and transition economies. First, Article 27.7 provides that a multilateral action against a developing country, in case of export subsidy, shall be governed by Article 7 instead of Article 4. This implies that an export subsidy applied by a developing country is not considered “prohibited” but rather “actionable”. As a result, the complainant must prove adverse effect, which would not be necessary if the subsidy were considered prohibited. And the developing country would only have to remove the adverse effect, instead of withdrawing the measure. Second, serious prejudice claims cannot be invoked against a developing country or a transition economy. Consequently, for a non-prohibited subsidy to be considered actionable and be brought into dispute, the complainant must prove injury or nullification and impairment of GATT benefits. The panel in Indonesia-Autos affirmed this when it ruled that125: …[a] Member may only bring a claim that benefits under GATT have been nullified or impaired by a developing country Member’s subsidies or that subsidized imports into the complaining Member have caused injury to a domestic industry. Third, Article 27.13 exempts from multilateral claims a subsidy administered by a developing country or transition economy when such measure is related to a privatization program. It would have been considered an actionable subsidy if administered by a developed country. The provisions of Part III shall not apply to direct forgiveness of debts, subsidies to cover social costs, in whatever form, including relinquishment of government revenue and other transfer of liabilities when such subsidies are granted within and directly linked to a privatization programme of a developing country Member, provided that both such programme and the subsidies involved are granted for a limited period and notified to the Committee and that the programme results in eventual privatization of the enterprise concerned. Finally, special provisions also apply to developing countries in application of countervailing measures. Specifically, Article 27.10 applies a different de minimis and negligible import volume thresholds when the subsidized product originates from a developing country. 123 The Philippines is not among them. Article 27.6 of ASCM. 125 Panel Report, Indonesia-Autos, para. 14.156. 124 187 Mission Report 1 August 2011 - 23 February 2012 6.4. Key Provisions and Issues in the Application of Safeguards Measures Safeguards are described as “extraordinary remedies to be taken only in emergency situations.”126 It permits a country to renege on its commitment even without any wrongdoing by other parties, unlike in dumping and subsidization. The rationale for a contracting party to be allowed to temporarily defect from its obligations was laid out in Art. XIX, para. 1(a) of GATT 1947, which was carried over to GATT 1994: If, as a result of unforeseen developments and of the effect of the obligations incurred by a contracting party under this Agreement, including tariff concessions, any product is being imported into the territory of that contracting party in such increased quantities and under such conditions as to cause or threaten serious injury to domestic producers in that territory of like or directly competitive products, the contracting party shall be free, in respect of such product, and to the extent and for such time as may be necessary to prevent or remedy such injury, to suspend the obligation in whole or in part or to withdraw or modify the concession (underscoring by author). Despite the leeway given to a country by the foregoing provision, it was observed that most parties to GATT 1947 preferred to work outside the parameters of Art. XIX, and used so called grey-area or nontransparent measures (like voluntary export restraints or orderly marketing arrangements) in the face of an import surge. This led GATT parties to negotiate on ASG which, among others, explicitly prohibit the use of grey-area measures, clarify the intent of Art. XIX, and tighten the regulation on the application of safeguard measures. This section reviews the economics of safeguards, the legal conditions, requirements and procedures for its application, and finally its applicability to the services sector. Economic Rationale In the span of 16 years (1995-2010), safeguard proceedings were initiated only 218 times but the measure was applied in only 111 cases. This can be taken as an indication that the ASG is effective in deterring members from abusing the flexibility provided for in the agreement.127 But in addition, the Appellate Body had also been strict in observing the standards of the ASG. Notably, none of the 38 safeguard measures challenged to date was decided in favor of the country that applied them. Still, some analysts believe that the existence of safeguard provisions weakens the existing disciplines in trade agreements. Objections to safeguards are both conceptual and practical. Suppose there is a significant technological change that caused substantial improvement in the productivity of foreign producers and a spike in imports in one country. If domestic producers of the importing country cannot adapt quickly to the new competition, they may seek protection from the government. It may be argued that temporary protection is needed to allow domestic producers catch up with its foreign competitors and to save employment that would be lost if the domestic industry fails. The government may be pressured to yield to the lobby of domestic producers and workers, especially if the import-competing industry is large or strategic to the economy. But does temporary protection afforded by safeguard mechanism improve the welfare of the importing country? 126 127 Appellate Bond Report, US-Line Pipe, para. 80 Appellate Body Report, Argentina-Footwear (EC), para. 93. 188 Mission Report 1 August 2011 - 23 February 2012 Safeguard critics believe otherwise. First, the measure is made to address problems that are not trade in origin, namely, lethargy of domestic producers in adapting to technological change and of labor in transferring out of a faltering sector. The appropriate response is to address the problem at its source and not to create unnecessary distortion in a perfectly functioning market. In this case, industrial and labor market policies are needed to assist domestic producers in catching up technologically and workers in searching for jobs in other sectors. At this point, it is useful to draw a distinction between safeguards on one side, and anti-dumping and countervailing duties on the other. Where there is dumping by and subsidy to foreign producers, the market ceases to function “perfectly” because of the distortion created by the behavior of foreign producers and government, respectively. Trade remedies, i.e., anti-dumping measure and countervailing duties, purport to “correct” the distortion. In contrast, safeguards create the distortion in an otherwise perfectly functioning market by stemming the flow of imports. On the other hand, if the social cost arising from the contraction of domestic production is too large, safeguards may be justified as “second-best” policy. Creating a distortion in one market to address market failure in another is a well accepted policy strategy.128 In this case, since safeguards create an opportunity for domestic production and labor market to adjust to the new environment, temporary distortion in the market may be less costly than the displacement of the domestic industry if it is not given temporary relief.129 It may happen, however, that the safeguard could not avert the decline of the domestic industry, i.e., that it will nonetheless fold up once the measure is lifted. Even in this situation, safeguards can still be sensible if it could prevent the abrupt demise of an industry and allow smoother social adjustments and reallocation of resources.130 Yet another objection to use of safeguards relates to the moral hazard problem of granting protection. Once protection is accorded, domestic producers may procrastinate in upgrading their technology, particularly if the government lacks credibility of not succumbing to lobbying for extended protection. Meanwhile consumers are deprived of the benefits of unfettered trade. Here is where government’s commitment to remove the measure after a specified period of time is crucial. If producers perceive the measure as permanent, they may be lulled(?) into complacency. Notwithstanding this risk, proponents maintain that if the parameters set by the ASG are strictly observed, particularly of phasing out the measure after a specified period and of applying the measure only under extraordinary conditions, the rationale for safeguard measures is essentially the same as those of other trade remedies, i.e., that a member country needs the flexibility of having a fallback when the social costs of its participation in international trade become untenable. 128 This is known as “theory of the second-best”….. say something about the theory in one sentence for the unfamiliar reader with reference. 129 See for example, Crowley (2006), Miyagiwa and Ohno (1999) and Davidson and Matutsz (2004), reviewed in the World Trade Report 2009 (pp. 47-49). 130 This is the gist of the papers of Hillman (1982), Brainard and Verdier (1997) and Magee (2002), cited in the World Trade Report 2009, which all dwell on the political economy of according import protection to a declining industry. 189 Mission Report 1 August 2011 - 23 February 2012 Conditions justifying the use of safeguards While the Appellate Body considers the application of safeguards a right of a WTO member, it was also emphatic that such right may be applied only under circumstances envisaged in the ASG.131 There are three prerequisites to justify the application of safeguards: (i) an increase in imports; (ii) a determination that such an increase is caused by unforeseen developments and obligations incurred by the member country in the agreement; and (iii) evidence showing that the increase in imports caused or threaten to cause serious injury to the domestic industry that produces like or directly competitive products. The Appelate Body interprets these conditions in several dispute cases, albeit a number of issues still linger, notably on the conduct of causation analysis. Increased imports Article 2.1 of ASG stipulates that imports must be found to have increased in “quantities”, i.e., volume, not value, reckoned in absolute terms or relative to domestic production to warrant the application of safeguard. In practice, however, the investigating authority132 examining the conditions of safeguards would look at the amount and rate of increase in imports in absolute terms and as a percentage of domestic production. It is worth noting that the relevant benchmark here is domestic production, whereas it is domestic production or consumption in anti-dumping and countervailing cases. While neither the agreement nor case law specified a threshold for safeguard application, the Appellate Body in Argentina-Footwear emphasized that the increase in imports “cannot be just any increase”; rather “the increase in imports must have been recent enough, sudden enough, sharp enough, and significant enough, both quantitatively and qualitatively, to cause or threaten to cause serious injury.”133 The Appellate Body also underscored the importance of “examining trends over a period of time,” not just changes in import volume measured at two or several points in time. The concern here is that date points might be selected to dramatize the change, even when the volume is relatively stable for most part of the period. In Argentina-Footwear, for example, the application of safeguards was justified by Argentina based on the increase in the absolute volume of footwear imports and ratio of imports to domestic production in 1993 compared to 1991 levels. Yet imports actually declined thereafter. And if a different base year were used, there was no significant in increase that would support the application of safeguards. Thus the Appellate Body rejected Argentina’s evidence in support of its application of safeguard because it was based on end point-to-end point analysis, i.e., a change in imports calculated only on the volumes at the beginning and end of the period under investigation.134 Since what matters is the trend, not values at specific points in time, the Appellate Body clarified that imports need not be increasing consistently during the period when the surge was supposed 131 Appellate Body Report, US-Line Pipe, para. 84. Before a safeguard measure is applied, the ASG requires that an investigation by a competent authority be conducted to determine if the conditions warrant the application of safeguards. 133 Appellate Body Report, Argentina-Footwear, para. 131. 134 Appellate Body Report, Argentina-Footwear (EC). It was also noted that the absolute volume and ratio of imports to domestic production were shown to have increased only in 1993 (compared to 1991 levels), but they declined continuously thereafter. Moreover if the base year were changed, the imports trend was w 132 190 Mission Report 1 August 2011 - 23 February 2012 to have occurred. Even if imports declined for some part of the investigation period, if it were increasing for most part, a finding of increased imports is not precluded. Unforeseen developments and obligations incurred For increased imports to trigger safeguard application, it is necessary to show that such an increase was a result of “unforeseen developments” and “the effect of the obligations incurred” by the member country. There must be a logical connection between the increase in imports, unforeseen developments and member country’s obligations. But the link between increased imports and “unforeseen developments” appears to be the more critical element in satisfying this prerequisite. The question arises on what constitutes “unforeseen development”. The Appellate Body clarified that “unforeseen” is “unexpected” rather than “unpredictable”135, and that the circumstances should be “unforeseen” or unexpected at the time when the concession was negotiated, i.e., during the Uruguay Round. An example of “unforeseen development” is the Russian and South-east Asian financial crisis, which the US government cited in its application of safeguards on steel in the late 1990s. However, surges in imports because of government policy, mismanagement or oversight, or those caused by reduced domestic production or increase in demand are not considered “unforeseen” circumstances that justify the use of safeguards.136 There is no required or recommended approach to prove the link between unforeseen development and increased imports. The onus, however, is on the importing country to demonstrate that the relationship between the two can be reasonably concluded from the facts on hand. Thus in US-Steel Safeguards, the Appellate Body opined: Article 3.1 of the Agreement on Safeguards requires that the competent authority set out “reasoned conclusions” on all pertinent issues of facts and law. One of those “issues of law” is the requirement to demonstrate the existence of “unforeseen developments” that have resulted in increased imports causing serious injury. (underscoring author)137 And if the safeguards were to be applied to imports of several products, the connection between unforeseen developments and increased imports must be demonstrated in each of these products. Safeguards can only be justifiably applied to the specific product whose imports have increased directly as a result of the unforeseen circumstance. The application on other products, although they may be considered like or directly competitive to the concerned product, is unwarranted if the imports of these products did not increase or the increase did not result from the unforeseen developments.138 In the same report, the Appellate Body reminded also the country applying safeguards of their obligation “to publish a report setting forth their findings and reasoned conclusions reached on all pertinent issues of fact and law.”139 On the relationship between import changes and member country’s obligations, there is not much guidance from case law to determine the degree of causality that an importing country 135 Appellate Body Report, para. 84 and 86. See Horn and Mavroidis (2003). 137 Appellate Body Report, US-Steel Safeguards, para. 326. 138 Appellate Body Report, US-Steel Safeguards, para. 319. 139 Appellate Body Report, US-Steel Safeguards, para. 326. 136 191 Mission Report 1 August 2011 - 23 February 2012 must find to justify the use of safeguards. It appears sufficient from the Argentina-Footwear and Korea-Dairy to establish that the importing country incurred obligations, including tariff concessions, under GATT 1994.140 With respect to the phrase “of the effect of the obligations incurred by a Member under this Agreement, including tariff concessions…,” we believe that this phrase simply means that it must be demonstrated as a matter of fact, that the importing Member has incurred obligations under the GATT 1994, including tariff concessions.141 Serious injury to domestic industry This third prerequisite is the most complex as it has several elements aimed at precluding the application of safeguards out of sheer desire to protect domestic producers. Safeguards may be applied only where the increased imports caused or threaten to cause serious injury to the domestic industry that produces the like or directly competitive products. Thus, a determination of injury and causation is required. Such a determination is not different for dumping or subsidization in that the process involves four stages, namely: (i) identifying like or directly competitive product to the subject imports; (ii) determining the scope and boundary of the domestic industry; (iii) assessing the injury or threat thereof; and (iv) establishing the causal link between increased imports and injury. Like or Directly Competitive Product Identifying which products are like or directly competitive to imports is the first crucial determination and also the most contentious. Subsequent determination hinges on the validity of the products that have been identified to be competitively related to the concerned imports. Since the ASG does not define “like” and “directly competitive”, these terms are understood to have the same meaning as those intended in the national treatment provision (Article III) and throughout GATT 1994. Like products are understood to be “a subset of directly competitive or substitutable product.” As such, “all like products are, by definition, directly competitive or substitutable, whereas not all directly competitive or substitutable products are like.”142 The foregoing interpretation, while helpful, is not definitive; nor does it intend to be. The Appellate Body, in fact, maintains that the determination of likeness and direct competition has to be made on a case-to-case basis. There is no single approach of determination that may be considered appropriate in all cases. But disputes involving violations of national treatment, such as the Japan-Alcoholic Beverages and Korea-Alcoholic Beverages, use a set of factors to determine likeness, namely: product’s end-uses, consumers’ tastes and habits, physical characteristics of the product, and tariff classification. For “directly competitive”, the factors considered include “the nature of the compared products, the competitive conditions in the relevant market, physical characteristics of the imported and domestic products, common end uses, and tariff classifications.”143 140 ADB (2009), p. 316. Appellate Body Report, Argentina-Footwear (EC), para. 91. 142 Appellate Body Report, Korea-Alcoholoic Beverages, para. 118. 143 ADB (2009), p. 318. 141 192 Mission Report 1 August 2011 - 23 February 2012 None of these criteria is individually determinative; nor is this set of criteria a closed-list. The final determination would require value judgment on how each of these criteria is to be considered. Domestic Industry For purposes of determining injury, Article 4.1(c) of the ASG defines a “domestic industry” as a group of “producers…of the like or directly competitive products operating within the territory of a Member, or those whose collective output of the like or directly competitive products constitutes a major proportion of the total domestic production of those products.” This definition of domestic industry that includes producers of both like and directly competitive products is broader than envisaged in ADM and ASCM where it is limited to producers of like products. A further elucidation on the delimitation of the domestic industry arose from the US-Lamb case. The US defined the domestic industry of lamb meat to include growers and feeders of live lamb, in addition to lamb breakers and packers. While imported lamb meat was at issue, the US nonetheless argued that “the four producers comprise the �producers as a whole’ of the like product, because they constituted a continuous line of production and as such had a substantial coincidence of economic interests.”144 Not surprisingly, such an expansive definition of the domestic industry was rejected by both the panel and the Appellate Body. It also prompted the latter to clarify “that the definition of the domestic industry was not intended to encompass the whole manufacturing process; rather, only those producers of products that are like or directly competitive to the concerned imports. Serious injury Article 4.1(a) and (b) of the ASG defines “serious injury” as “significant overall impairment in the position of a domestic industry” and “threat of serious injury” as “serious injury that is clearly imminent.” Such a threat, while inevitably abstract, must “be based on facts and not merely on allegation, conjecture or remote possibility.”145 Since safeguards are not a response to unfair trade, the ASG understandably sets a higher standard for injury compared with that required to justify anti-dumping measures and countervailing duties. Thus in US-Lamb, the Appellate Body emphasized that “serious injury” is not the same as the “material injury” in the ADM and ASCM. More significantly, the ASG in Article 4.2(a) sets out a list of factors that should each be objectively evaluated (i.e., quantified) and assessed as to the extent they support the finding of an injury. This include “the rate and amount of the increase in imports of the product concerned in absolute and relative terms, the share of the domestic market taken by increased imports, changes in the level of sales, production, productivity, capacity utilization, profits and losses, and employment.” The enumerated factors are not meant to be exhaustive. Indeed, the Appellate Body regarded them as the “minimum” list to consider. A country applying safeguards is obliged to seek out evidence of other relevant factors. And since serious injury is taken to mean “overall 144 145 World Trade Report 2009, pp. 53-54. Article 4.1(b) of ASG. 193 Mission Report 1 August 2011 - 23 February 2012 impairment”, the determination should be based on the evaluation of all pertinent factors. Although some of these factors may not show serious injury, an overall assessment of serious injury is still possible. However, the evaluation should be based on data representative of the domestic industry. In USLamb, the admission by the US that the data it used for injury determination was not representative of the domestic industry was a basis for the Appellate Body’s finding of breach. Given the stringent requirement to evaluate all relevant factors for serious injury determination, it seems ironic that a mere threat of serious injury can be considered sufficient basis to exercise the right to apply safeguards. The Appellate Body in US-Line Pipe regarded the “threat of serious injury” a lower threshold for establishing the basis to apply safeguards. Yet the ASG, unlike the ADA and ASCM, does not provide a specific list of factors to evaluate so that the threat can be objectively assessed. Nonetheless, it is understood that the determination that a serious injury is “clearly imminent” should at least include an evaluation of Article 4.2(a) factors. Moreover, in US-Lamb the Appellate Body recognized that most recent past data are the most relevant and reliable basis for determining future injury, but they have to be analyzed in the context of overall data for the period under investigation. Otherwise, short-term trends may distort the view of longer term prospects. For instance, a recent decline in the domestic industry may be just part of a normal cycle and is not any indication of its future prospects. 146 Causal Link It is not sufficient to establish that the domestic industry has suffered serious injury or is under threat thereof. Rather, such injury must be shown to have been caused by increased imports. Specifically, Article 4.2(b) reads: The determination [of whether increased imports have caused or are threatening to cause serious injury to a domestic industry] … shall not be made unless this investigation demonstrates, on the basis of objective evidence, the existence of the causal link between increased imports of the product concerned and serious injury or threat thereof…(underscoring by author) The Appellate Body has interpreted the term “causal link” as “a relationship of cause and effect such that increased imports contribute to bringing about, producing or inducing the serious injury,”147 but it did not prescribe or recommend any method to establish such relationship. Absent specific guideline from the agreement or the Appellate Body, previous safeguard investigations have only gone to the extent of correlating movement of imports (volume and market share) and injury factors (i.e., those listed under Article 4.2(a) such as declining sales, productivity, employment and profits). Clearly, mere statistical correlation does not establish causation, but the panels and Appellate Body have not required the use of more rigorous analytical tools to establish causation. Nonetheless, the panel in Argentina-Footwear noted the need to examine the correlation between increased imports and injury factors in the context of conditions of competition. A 146 147 ADB (2009), p. 321-322. Appellate Body Report, US-Wheat Gluten, para. 67. 194 Mission Report 1 August 2011 - 23 February 2012 statistical correlation might turn out to be spurious if those were considered.148 Concretely, if imported and domestic products are not in competition in the market, and still a high correlation is found, no causation should be imputed since the high correlation is a merely statistical artifact. Moreover, the pattern of movement of imports and injury factors need not be consistent at all times during the period being investigated, i.e., the correlation does not have to be perfect. In US-Wheat Gluten case, for example, domestic industry’s capacity utilization and sales increased towards the latter part of the investigation period (1996-1997). Despite this, the panel still concurred with the US finding that the trend during the investigation period (1993-1997) showed an overall deterioration in these factors. There could also be time lag between the actual import surge and when the injury becomes apparent. When this happens, such as in the US-Steel Safeguards, a more sophisticated quantification technique is necessary to conduct a proper causation.149 In sum, a strong correlation between imports and injury factors is deemed necessary but not sufficient for causation. If the correlation is too low or not high enough, a country applying safeguards is expected to have compelling evidence to deduce that imports caused the injury despite the weak or lack of coincidence. Non-attribution To determine if the causation analysis performed by a country applying safeguards is adequate, the Appellate Body has outlined a three-part non-attribution test. This test is an articulation of Article 4.2(b) that states: …When factors other than increased imports are causing injury to the domestic industry at the same time, such injury shall not be attributed to increased imports. Thus, the first step is to distinguish the effects of increased imports from those of other factors. The investigating authority must then determine which, or to what degree, the injury can be attributed to increased imports, on the one hand, and to other factors, on the other. The third and final step is to ascertain if a causal link between increased imports and serious injury exists, and whether the causal link involves a genuine and substantial relationship of cause and effect between the two.150 Failure to dissect the factors behind the injury may result in ascribing all to imports the injury incurred by the domestic industry, even as other factors have contributed to the situation. This clearly has implications on the size of safeguard measure to be imposed, which according to the agreement, should be limited to the extent of the serious injury caused by imports. 148 In including competitive conditions in the equation, the panel in Argentina-Footwear explained that Article 2.1 of ASG requires that the increase in imports be “under such conditions” as to cause or threaten to cause injury. To this panel, the phrase “under such conditions” refers to conditions of competition. 149 The US-Steel case is perhaps one of the few cases where the panel found merit for quantitative evidence, which the defending party resisted. In most cases, the adjudicating body does not consider it necessary to have quantitative analysis, especially with respect to de jure breaches, while the parties, both defending and complaining, would submit quantitative evidence nonetheless. 150 Appellate Body Report, US-Wheat Gluten, para. 69, cited in World Trade Report 2005, p. 202. 195 Mission Report 1 August 2011 - 23 February 2012 The non-attribution test recognizes other factors, apart from increased imports, that contribute to causing the serious injury to the domestic industry. From the perspective of the Appellate Body, it does not matter if the other factors are equally or even more important contributors to the injury as long their effects are properly identified and not attributed to increased imports.151 In cases where the country failed to make the proper attribution of injury based on the three-part non-attribution test, the adjudicating body had always favored the complainant. A useful illustration is the US-Line Pipe where the defendant did not consider the impact of the contraction in the oil and gas industry, which is a major market for line pipes. As a result, the decline in the demand for domestic pipes was all ascribed to increased imports, which consequently magnified the size of the safeguard measure. Similarly, in the US-Wheat Gluten, the Appellate Body found the defendant remiss in taking into account the capacity expansion undertaken by domestic producers. If capacities were not expanded, it surmised that capacity utilization and profits of domestic producers would not have declined substantially; it might have been even possible for them to operate profitably despite the increased in imports. On the other hand, if imports did not increase as much, capacity utilization could still have fallen. Clearly, there were other factors besides the increase in imports that caused lower capacity utilization and operating losses of domestic producers. Since the US did not provide explanation for the other factors nor separated their effects on claimed injury, it was found at fault for not undertaking the causation analysis as provided for in the agreement. Notwithstanding the fact that the non-attribution test is just a systematic articulation of the pertinent provisions in ASG, it has invited a number of criticisms – not surprisingly, among economists. One objection is that the test is “significantly difficult and complicated, if not completely impossible.”152 In reality, the complex interaction of variables prevents a neat separation of the effects of increased imports from the effects of other factors at work. This probably explains why, in almost all dispute cases, the defect in the application of safeguards had been traced in the way causation analysis was conducted. To be sure, the investigating national authorities have the discretion to select the analytical tool that will satisfy the non-attribution test. But as already noted, most countries rely on simple correlation, supplemented by qualitative analysis, to prove causation. Some have employed more nuanced tools such as shift-share, variance analysis and Granger-causality test.153 Yet to be able to do a proper attribution, there may be a need to employ even more advanced tools such as simultaneous equations modeling.154 The problem here, however, is probably less in convincing national authorities on the need for more rigorous analysis than on having sufficient data to run complex analytical tools. In practice, more complex statistical tools require much more and better quality data than simple techniques such as correlation. These data, which are mostly micro-level, do not come easily. 151 World Trade Report 2009, p. 57. Lee, 2005, p. 81, cited in World Trade Report 2009, p. 57. 153 See World Trade Report 2005, pp. 200-201. 154 World Trade Report 2009 (pp. 58) cited Irwin (2003) and Kelly (1988), Prusa and Sharp (2001), Grossman (1986), and Pindyck and Rotember (1987) among those that proposed the use of more advanced techniques. 152 196 Mission Report 1 August 2011 - 23 February 2012 Yet a more fundamental objection to the non-attribution test deals with the relationship between imports and injury. In many instances, imports, domestic production, profitability and employment are responding to some other factors affecting demand and supply. A correlation between increased imports and injury may emerge even as there is no causal link. Put differently, the observation of simultaneity of increased imports and injury may lead to the conclusion that the former caused the other, when in fact they are both being influenced by some other events. The challenge then is to distinguish which instances are imports and injury correlated and causally linked, and which ones they are correlated but not causally related. The World Trade Report 2005 (p.203) provides illuminating examples of these cases based on the work of Irwin (2003): …(Suppose there is) an increase in the cost of inputs to domestic production…(which) lead(s) to both increased imports and lowered profitability and employment. … (W)hile there is a correlation between imports and injury, there is no causal connection, because, by assumption, the cause of the injury was a negative supply shock…(I)mports can be a cause of injury when there is increased competition from foreign suppliers…Imports can also be a cause of injury if there is a reduction in tariffs, or in general, a relaxation of import barriers arising from a programme of trade liberalization…(T)he task of causation analysis is to distinguish conceptually the latter case from those other instances when imports and injury are correlated but not causally linked. If, as is expected of real-world situation, various factors affecting domestic demand and supply may change simultaneously with imports, how can the impact of imports be distinguished from others? Using basic demand-supply framework, Irwin (2003) compares the changes in price and other market variables as a result of autonomous changes in domestic demand and supply with those of import surge. What distinguishes the effects of an import surge from those of demandsupply origin are price and domestic production fall as domestic consumption and imports rise. That is, the surge depresses price, stimulates consumption and displaces sales of domestic output in the market. In contrast, when demand increases autonomously (caused by growth in incomes, for example), consumption and imports rise, leaving price and domestic production unaffected. Although imports also increased, this latter case should not trigger a safeguard application. Table 6.4. Impact on Market Variables of Changes in Demand, Supply and Imports Source of Change Price Production Consumption Domestic demand increases No change No change Increase Domestic supply reduction No change Decrease No change More import competition Decrease Decrease Increase Source: Table 3, World Trade Report 2005, p. 205. Imports Increase Increase Increase Application of Safeguard Measures The previous section underscores the conditions that circumscribe the right of a country to take emergency action on imports, namely: that, as a result of unforeseen developments and the effect of obligations incurred by the country, imports increased in such quantities as to have caused or threaten to cause serious injury to the domestic industry. In addition, the ASG also sets 197 Mission Report 1 August 2011 - 23 February 2012 parameters on the form, scope and content of safeguard measures to ensure that the application is not excessive, neutral and time-bound. Of interest are the following: (i) which type of measure is less trade-restrictive; (ii) what MFN exemptions in the application of safeguard measures are allowed; (iii) how much compensation to countries affected by the measure is prescribed in the agreement; and (iv) what guarantees the temporariness of the measure. These issues are tackled below. Form and Size of Safeguard Measures Without an expressed provision in the agreement as to the specific form of the safeguard measure, it is understood that a country is free to choose between a tariff, quota or tariff-rate quota (TRQ). Article 5.1, however, sets limit on the size of the measure, i.e., it must be “only to the extent necessary to prevent or remedy serious injury and to facilitate adjustment.” It also requires that the measure does not discriminate on the source of imports. The Appellate Body in US-Line Pipe adds that, consistent with the non-attribute clause, the application of the measure should be to offset injury caused by increased imports only, and not injury due to other factors.155 Tariff appears to be the choice instrument of protection. Two-thirds of the safeguard measures notified to the WTO between 1995 and 2009 took the form of tariff; a minority (10%) used quota; the remainder applied TRQ. 156 This is not surprising and a desirable outcome from a purely economic standpoint. Foremost, tariffs are more transparent and administratively convenient compared to other instruments. Second, the revenue generated by a tariff redounds to the government, whereas the scarcity premium (rents) created by a quota may be captured by exporters, importers or government, depending on the method employed to allocate quota shares. Third, a quota creates more market distortion than a tariff since it intervenes on the supply schedule by artificially limiting the amount of imports. A tariff, on the other hand, merely creates a wedge between prices of domestic and imported outputs, but otherwise allows the price system to function. Theoretically, a quota can be set equivalent to a tariff-induced import level so that the market price and quantities are the same under the two regimes. However, the difference between the two instruments emerges when domestic demand expands. Since a tariff does not restrict the quantities of imports, the additional demand can be filled in by either domestic goods or imports. In case of a quota, having set an absolute limit on the volume of imports, only domestic output can satisfy the excess demand. As a result, the market price settles at a higher level in a quota compared to a tariff regime. The distortions are even greater in case of a combined tariff and quota. TRQ permits a set of imports at the normal duty rate (also known as tariff-in quota) and imposes a higher tariff rate on all imports in excess of the set amount (tariff-out quota). Even if the tariff-in quota is pegged at the same level as the volume of imports under pure tariff, the resulting market price is higher compared to a pure quota or pure tariff regime, in case the actual import volume hits or exceeds the tariff-in quota. 155 Appellate Body Report, US-Line Pipe, para. 99. WTO Trade Report 2009 (p. 59) cites the following: “Of the 89 safeguard measures notified to the WTO between 1 January 1995 and 19 February 2009, nine took the form of quotas or quantitative restrictions, 21 took the form of tariff rate quotas, and the remaining measures took the form of tariffs, either specific (27), ad valorem (27), variable (4), or a combination thereof (1). 156 198 Mission Report 1 August 2011 - 23 February 2012 From a political economy perspective, however, quotas seem to serve the intention of safeguard measure better. Since the objective is to provide domestic industry time to adjust to import competition, a fixed limit on imports provides more guarantee to domestic producers. On one hand, if the assumed demand elasticity on which the tariff rate is based turns out to be higher than actual,157 then the import surge may not be stemmed enough by merely raising the effective price of imports. A quota, however, ensures that imports are maintained at the set limit. There could also be preference for quota in case more production experience allows domestic producers to catch up faster to foreign competition. If marginal cost of production decreases with cumulative production because of learning effect, then quota is preferable because it allows domestic production to increase at the expense of imports; more so, when domestic demand increases. Quotas are also easier to handle politically because under the ASG, quota shares are to be distributed on the basis of historical market shares (albeit with some exemptions). This gives a semblance that the safeguard measure is only restoring the status quo previous to the surge, which is likely to be more acceptable to foreign producers, and hence less vulnerable to dispute. Still, tariff is seen as a better disciplining device than quota. The incentives to reduce cost in order to compete against imports are more under a tariff than a quota regime. It follows from the logic that once domestic producers are able to match the costs of foreign producers, they can enjoy higher profits based on higher market price set by tariff. They are thus pushed to reduce costs faster while the high price remains.158 Moreover, if foreign cost of production continues to fall, so does the effective protection afforded by the tariff. This puts pressure on domestic producers to work continuously in reducing their costs. In case of a quota, by contrast, there is less incentive on domestic producers to lower costs further once they have matched the costs of their foreign competitors, because the effective costs of foreign producers in selling to the domestic are not changed; only the volume of what they could sell is restricted.159 Also, if foreign producers continue to innovate, there is less incentive for domestic producers to keep pace with them because the import volume cannot exceed the set limits anyway. Despite the foregoing, if a country is more concerned about avoiding disputes, a quota renders it less vulnerable to dispute than a tariff, only because the ASG defines the allowable quota level, while there is no such guideline for tariff. Article 5.1 reads: …If a quantitative restriction is used, such a measure shall not reduce the quantity of imports below the level of a recent period which shall be the average of imports in the last three representative years for which statistics are available, unless clear justification is given that a different level is necessary to prevent or remedy serious injury. If this provision is observed, a safeguard-applying country is not obliged to provide justification for the size of the measure.160 On the hand, any tariff rate must be demonstrated by the country to be set at the level necessary to prevent or remedy serious injury due to increased imports, which brings the quality of the country’s causation analysis into focus. 157 If import demand is thought to be more sensitive to price than it really is, then a higher tax will not curb imports as much as intended. 158 Miyagiwa and Ohno (1999), cited in World Trade Report 2009, p. 59. 159 Ibid. 160 Appellate Body Report, Korea-Dairy, para. 99. 199 Mission Report 1 August 2011 - 23 February 2012 Scope of Safeguard Measure One important principle in the application of the measure, regardless of form, is nondiscrimination, i.e., it must be applied to all imports irrespective of source (Article 2.2). This means that the tariff should be applied on a MFN basis. In case of a quota, the rules for allocation are stipulated in Article 5.2(a) and (b). The applying country must first seek agreement with “all Members having a substantial interest in the supplying the product.” Where such an agreement is not practical or feasible, the allocation will be based on historical market shares, reckoned over a representative time period. Departures from the MFN rule, i.e., targeted application of the measure, are permitted in two instances. One is targeting imports from some sources if these have increased disproportionately relative to imports from other sources161 Another is exempting imports from developing countries whose individual shares in total imports are each less than 3 percent, provided that all imports from developing countries with less than 3 percent share do not account collectively for more than 9 percent of total imports. The rationale for nondiscriminatory application is to prevent trade diversion, i.e., a more efficient foreign source is replaced by less efficient one. It is also to protect smaller countries which are less able to retaliate when targeted by the measure. An issue that remains unresolved is whether exemption can be extended to PTA partners. The panel in US-Pipe Line opined favorably for exclusion, but this ruling was neither affirmed nor rejected by the Appellate Body.162 Content of Safeguard Measures An important provision in safeguard application, not found in ADA and ASCM, is the obligation of the applying country to compensate members affected by the measure. The compensation aims to restore the level of concessions and other obligations existing under GATT 1994 between the safeguard-applying country and exporting countries affected by the measure (Article 8.1). If no agreement concerning compensation is reached within 30 days in the consultations, aggrieved exporting country may retaliate by suspending the application of “substantially equivalent concessions or other obligations under GATT 1994 to the trade of safeguard-applying country (Article 8.2). The retaliation should be undertaken within 90 days from the time the measure is applied (Article 8.2). However, no retaliation can be taken within the first three years of the measure if it is triggered by an absolute (not just relative) increase in imports (Article 8.3). Partly because of Article 8.3 and the fact that the average duration of safeguards is about two years, there are few instances when retaliation was actually implemented. In fact, of the 11 161 Article 5.2(b) states that departure from MFN application requires the applying country to hold consultations under the auspices of the Committee on Safeguards. 162 The ruling on exclusion of PTA partners was set aside by the Appellate Body not on the basis of MFN principle, but because the US failed to comply with the “parallelism” requirement. Parallelism refers to the condition that the set of imports that was used as basis for determining the appropriateness of safeguards should also be the same set of imports on which the measure is applied. In the said case, US included the imports from its PTA partners when analyzing the conditions for safeguard, but later excluded them from the application of the measure. The Appellate Body found the US in breach of the agreement because it failed to show that the prerequisites for safeguard application, i.e,, conditions of serious injury and causation, would still be satisfied even if the imports from its PTA partners were excluded, 200 Mission Report 1 August 2011 - 23 February 2012 notices of suspension of concessions (retaliation) received by the WTO from 1998 to 2005, only three suspensions were actually implemented.163 Equally rare are notifications of compensation received by the WTO, which indicates that actual compensation is also less frequent. This is probably because the affected parties find difficulty in agreeing on a common compensation scheme. Notwithstanding, the prospect of providing compensation has probably disciplined the use of safeguards, as the cost of the compensation may just nullify the benefits of protection. Duration and Provisional Measures To underscore that safeguards are intended as “temporary relief”, the ASG outlines time limits for application and review of the measure. The key principle is that the application should not exceed the time “necessary to prevent or remedy serious injury and to facilitate adjustment”, which “period shall not exceed four years” (Article 7.1). Extension is possible, but the cumulative period should not exceed eight years. More significantly, the agreement provides that if the application of the measure is more than one year, a schedule of progressive liberalization at regular intervals is required. A midterm review should also be part of this schedule if the intended period of application exceeds three years. And if the application period is to be extended, the measure should not be more restrictive that it was at the end of the initial application. It is also possible to re-impose a measure on the same product, but the second period of application has to be shorter than the first. Moreover, there should be at least a two-year nongap between the initial and next application (Article 7.5). A shorter holiday, i.e., one year, is required if the initial application is less than 180 days (Article 7.6). The time limits are even shorter in case of provisional safeguard measures. Safeguards may be applied even after preliminary determination that the increased imports have caused or are threatening to cause serious injury, but only under “critical circumstances” where delay in the application of remedy would cause irreversible damage to domestic industry (Article 6). Provisional measure cannot be applied for more than 200 days, during which period, the investigating authorities are expected to make final determination if the requisite conditions for the application of definitive measure are met.164 Detailed and fixed time limits are intended to make credible the strictly temporary character of the measure. The set limits may be too long or too short to permit adjustment by domestic producers. Either case is problematic: the former because of obvious efficiency losses; the latter because the measure is not allowed to achieve its intended goal.165 Yet this kind of stringency may be necessary to prevent circumvention of intent of the agreement to limit the use of safeguards as temporary relief in extraordinary circumstances. 163 World Trade Report 2009, p. 64. Provisional safeguards must be in the form of tariff to facilitate refund to affected exporters in case subsequent investigation yields a finding that does not support the application of definitive measure. 165 Crowley (2007), cited in World Trade Report 2009, p. 65. 164 201 Mission Report 1 August 2011 - 23 February 2012 Safeguard Measures in Agriculture and Services The foregoing rules govern the application of so-called “normal” safeguards, as opposed to “special safeguards” (SSG) for agricultural products and “emergency measures” (EMS) for services. SSG, also referred to as “automatic” safeguards, have limited scope but could be triggered much easier than normal safeguards, whereas the application of EMS is beleaguered by several conceptual problems. These issues are briefly discussed below. Article 5 of the Agreement on Agriculture stipulates the right of some WTO Member countries to deal with falling prices or import surges in order to provide temporary support for their famers. SSG may be invoked only by members who converted nontariff restrictions to tariffs (a process known as tariffication) at the end of the Uruguay Round. To date, only 38 members reserve the right to use SSG. It can only be applied on products that were subject of tariffication, but not imports subject to tariff quotas. SSG can be triggered by either a fall in import price or by an increase in import volume, when certain price or volume thresholds are breached. Unlike normal safeguards, there is no obligation on the applying country to demonstrate that serious injury is being caused to the domestic industry, much less to establish a causal link between imports and serious injury. Price-triggered SSG is applied on a shipment-by-shipment basis, i.e., when the CIF (cost, insurance and freight) import price falls below a specified reference price. The size of the measure depends on the difference between the CIF import and reference prices: the larger the difference, the greater is the size of the measure. By contrast, volume-triggered SSG is applied on multiple shipments and maintained over a period of time. It cannot exceed one-third of current tariff applied on the product. Considering the limited scope for SSG, the current Doha round of negotiations on agriculture has taken up the proposal of developing countries for so-called special safeguard mechanism (SSM). The latter is to be distinguished from the former in that it is meant to be available to all developing countries, for application to any agricultural product. As proposed, SSM can be triggered by a fall in price or surge in import volume. The volume threshold is a rolling average of imports in the preceding three years, whereas the price threshold is 85 percent of average monthly MFN-sourced price for most recent three-year period. Unlike SSG, however, the proposed SSM has incorporated a “cross-check” mechanism that precludes its application if the import surge is not accompanied by price decline. The thinking here is that imports could not harm farmers’ welfare if prices are still buoyant, in which case SSM is not warranted. Proponents of SSM have yet to persuade those who believe that a more stringent mechanism is needed to avoid its being used for trade protection. But it has gone further than EMS which has been the object of negotiations for more than a decade now. Just like normal safeguards in goods, EMS involves temporary suspension of concessions and obligations. For services, these refer to market access, national treatment and any additional commitment that members have assumed in individual sectors. A safeguard clause might be 202 Mission Report 1 August 2011 - 23 February 2012 used to ease adjustment pressures caused by a sudden increase in competition from foreign suppliers. The main stumbling block in the application of EMS is the compatibility of safeguards with the different modes of supply. In the case of mode 3 (commercial presence, i.e., foreign supplier establishing itself in another country), one issue is who would be protected by a safeguard, and from whom. Should it be all service suppliers with domestic presence against new foreign entrants, or only domestically-owned suppliers against new foreign entrants? For modes 1 (crossborder supply) and 2 (consumption abroad), subsidies on domestic service suppliers at the expense of cross-border imports and consumption abroad are permitted under GATS. Thus, what role does safeguard have when there are already existing flexibilities? Finally, in the case of mode 4, virtually all existing schedules of commitments already contain too many restrictions on movement of natural persons, which renders the possibility of import surge almost inconceivable. Proponents of safeguards in services are justifying the measure on the same grounds as safeguards in goods, i.e., that the availability of emergency measures in the event of unforeseeable market disruption would encourage more liberal commitments. Nonetheless, they have yet to convince skeptics on the need for safeguards specific to services, in light of the general perception that the scheduling of commitments in GATS are already much more flexible than those in GATT. 6.5. Concluding Section There is now general acceptance on the facilitating role of remedies in trade agreements. Trade remedies reduce the political costs of making commitment to a liberal trade regime and prevent the agreement from breaking down when some parties renege on their obligations. They also help manage concerns about conceding national sovereignty when a country allows itself to be subjected to multilateral disciplines. Recent agreements on trade remedies, particularly ADA, ASCM and ASG, have made significant headways in terms of clarifying the purpose and substance of the measures, and of laying down transparent, time-bound and detailed procedures for their application. These advances though have been more useful in preventing countries from whimsically invoking their rights to use remedies than in curtailing unfair practices that these measures seek to redress. Thus for example, ADA restrains countries from imposing anti-dumping duty merely to protect domestic producers, but is less effective in deterring dumping. But even as countries are more cautious in applying remedies, there are still discernible ambiguities in the agreement that create opportunities to turn these measures into instruments of protection. Some provisions related to duration of the measure, discrimination in application, and causation analysis of trade and domestic injury may allow application longer than necessary, against trading partners that may not have contributed to the condition that triggered the application of the measure, and under flimsy evidence that trade caused domestic injury. Duration of the Measure As a general rule, trade remedies are contingency measures that must be removed once the conditions that justify its imposition, e.g., dumping or subsidization, vanish. (The exemption to 203 Mission Report 1 August 2011 - 23 February 2012 this rule is a tariff renegotiation: once successful and necessary compensation is provided to affected parties, the renegotiated tariff rates can persist unless adjusted again downwards.) The temporary nature of the remedy prevents it from being used as an industrial policy instrument – to promote a domestic industry by reducing import competition. Therefore, there should be no ambiguity on the permissible timeframe for using the measure. It must be definite and strictly enforced. Otherwise, any opportunity to prolong the implementation of the measure is likely to be exploited. In anti-dumping and countervailing, the statutory time limit – five years – may be waived if a sunset review shows that the dumping or subsidization has not ceased or is likely to recur. The agreements (ADA and ASCM) do not provide limits on the length of extension, thus it is possible, at least theoretically, to prolong the application as long as is needed by the domestic industry. There is also no restriction on re-imposing the measure, which makes it feasible to apply the measure continuously. By contrast, the four-year limit in safeguard is more stringent. It may be re-imposed but the cumulative period should not exceed eight years, and a minimum time break of two years between applications is observed. However, there is still no empirical evidence showing that the apparent leniency in extending and re-imposing anti-dumping and countervailing duties is being exploited, rendering these measures as industrial policy tools in disguise. One study found that while productivity increases are often observed following an anti-dumping action, the increases are less than enough to close preexisting technological gaps.166 Such finding suggests that trade remedies are not effective industrial policy tools, but it does not disprove that they may be used for protectionist ends. Discriminatory Application The rationale for stipulating that anti-dumping and countervailing duties may be applied only to specific producers or countries whose governments engaged in subsidy is to prevent these remedies from being used to eliminate import competition from all sources. However, the respective agreements are silent about simultaneous petitions against different trading partners that may result in the application of the measure against all major (or relevant) trading partners. When this happens, a country imposing the remedy is able to effectively eliminate all import competition that matters. While this loophole opens up opportunity for de facto across-the-board application of remedies, there is no evidence yet that remedies are being generally applied. On the contrary, antidumping measures appear to be directed against large trading countries such as China, European Union, Japan, South Korea and US. One advantage of country-specific or discriminatory over MFN-based application is that it reduces risks of retaliation by countries affected by the measure, and of having to compensate many countries. Nonetheless, it is reasonable to assume that the possibility for multi-country application of anti-dumping and countervailing duties must have been exploited to some degree because of the greater benefits to domestic producers of nondiscriminatory application. Causation analysis 166 Konings and Vandenbussche (2008). 204 Mission Report 1 August 2011 - 23 February 2012 All three agreements require a showing that imports caused domestic injury before a country can impose a measure that would restrict imports. Conceptually, this is the most difficult substantive requirement to satisfy. Objective evidences are usually available to ascertain if a foreign producer is selling below cost, i.e., dumping, while data would show whether or not domestic industry’s sales and profits are plummeting. But establishing the causal link between the behavior of foreign producer and market performance of domestic producers is not as straightforward; it has to be inferred analytically from evidences on hand. And yet none of the agreements set a standard that would determine if the critical requirement of causation is met. In the absence of rigorous standard, the bar for proving causation is often too low. Strong correlation between variables of interest is often deemed sufficient to trigger application of trade remedy.167 There are at least three factors explaining why causation analysis is unsatisfactory in most applications of trade remedy. First, injury is not defined in any of the agreements. At best, the agreements identify factors that may indicate injury. But ADA cautioned that the 15 injury factors enumerated is not exhaustive, and a panel in a dispute stressed that some other factors not in the list may turn out to be more relevant in a particular case. If pinning down factors to determine the existence of injury is problematic, more so judging the quality of injury. In theory, the injury that would trigger safeguard measure should be graver than that for other remedies responding to unfair trade practices, such as dumping or subsidization. The distinction between “serious” and “material” injury that can be deduced from the agreements is too fuzzy and has not benefitted from interpretation by any panel or Appellate Body. The second issue perpetuates the first. It relates to the fact that in anti-dumping, countervailing and safeguards, it is the relevant national authorities that conduct the investigation and make the determination on whether dumping, subsidy or import surge occurred and caused injury to domestic industry.168 And in WTO dispute settlements, panels and the Appellate Body are not expected to conduct de novo examination of evidence at hand; rather, they are expected to resolve whether a national authority observed the WTO rules. The panels and Appellate Body usually do not pass judgment on the national authority’s appreciation of evidences and conclusion derived from them. It is sufficient, for their purpose, that: (i) the national authority appears to have considered all relevant factors; (ii) the investigation was unbiased; (iii) there is adequate explanation for the determination; (iv) the facts do not contravene the conclusion; and (v) non-attribution test was performed. Since it is difficult to challenge the qualitative judgment exercised by the national authorities in weighing facts and drawing inferences, most trade remedy disputes involve claims of violations of procedural requirements. As a result, the panels and Appellate Body evade rendering opinion on substantive issues, such as whether the injury is “serious” or “material” enough to consider using trade remedy, and if the injury can be adequately attributed to imports. 167 For example, Baldwin and Steagall (1994) examine the incidences of trade remedy application by the US from 1980 to 1990 for anti-dumping and countervailing measures and from 1974 to 1988 for safeguards. They found that decisions with respect to anti-dumping and countervailing are triggered by findings on four factors, namely: an increase in import penetration, changes in capacity utilization, recent increases in dumped or subsidized imports, and whether the product has been the subject of previous anti-dumping or CVD investigation. Safeguard decisions, on the other hand, are associated with declines in profits and employment and short-term fall in real GNP. 168 This is not the case for other trade remedies. For example, the WTO Committee on Balance-of-Payments Restrictions makes the determination on whether trade measures are warranted. 205 Mission Report 1 August 2011 - 23 February 2012 The third issue relates to the analytical techniques used in establishing the causal link between imports and domestic injury. It is highly unlikely that any legal text could provide sufficient guidance in this area, foremost because establishing causation is not a cut-and-dried process. There is no one technique applicable in all cases; it involves the use of statistics and economic reasoning. To be sure, a correlation analysis, which is a mere examination of trends, would not suffice – not even to detect spurious association, much less to establish causal link. A proper conduct of causation analysis requires the use of quantitative economic analysis. But this is often too much to handle for many national investigating authorities. In addition, there are also limitations on available data – the more advanced the quantitative technique, the more rigorous and exacting its data requirements. There are often not enough micro-level data required for this kind of analysis. Then there is also intricacy involved in choosing the appropriate technique for a given case, since there are numerous competing approaches that all appear valid but yield different results. Because of these, expediency must have often dictated reliance on simple techniques that are easy to implement and interpret, such as correlation analysis. But this makes it easier to put up trade restrictions even when available evidence of causation is less than convincing. In light of the foregoing loopholes, it is difficult to completely dismiss concerns that trade remedies can be used to disguise protection. Already, there are evidences that anti-dumping and safeguard measures can result in trade diversion and tariff-jumping foreign direct investment. These are the very same consequences of protectionist measures that trade agreements seek to eliminate. The inevitable harm on consumers due to higher domestic prices should be sufficient motivation for the multilateral body to vigilantly guard against their use for protectionist ends. 206 Mission Report 1 August 2011 - 23 February 2012 References Asian Development Bank and International Institute for Trade and Development (2009), Trade Remedies: A Tool Kit. Mandaluyong City, Philippines: Asian Development Bank. Bagwell, K. and Staiger, R. (1990), “A Theory of Managed Trade”, American Economic Review, 89(1): 215-248. Baldwin, R. E. and Steagall, J. W. (1994), “An Analysis of ITC Decisions in Antidumping, Countervailing Duty and Safeguard Cases”, Review of World Economics/Weltwirtschaftliches Archiv, 130(2): 290-308. Blonigen, B. A. and Feenstra, R. C. (1997), “Protectionist Threats and Foreign Direct Investment”, in Feenstra, R. C. (ed.), The Effects of US Trade Protection and Promotion Policies. Chicago: University of Chicago Press, 55-80. Brainard, L. S. and Verdier, T. (1997), “The Political Economy of Declining Industries: Senescent Industry Collapse Revisited”, Journal of International Economics, 42(1-2): 221-237. Brander, J. and Spencer, B. J. (1985), “Tariff Protection and Imperfect Competition”, in Kierzkowski, H. (ed.), Monopolistic Competition and International Trade. Oxford: Clarendon Press, 194-206. Crowley, M. A. (2006), “Do Safeguard Tariffs and Antidumping Duties Open or Close Technology Gaps?” Journal of International Economics, 68(2): 469-484. Crowley, M. A. (2007), “Why are Safeguards Needed in a Trade Agreement?”, Federal Reserve Bank of Chicago Working Paper No. 2006-06. Davidson, C. and Matusz, S. (2004), “An Overlapping Generations Model of Escape Clause Protection”, Review of International Economics, 12(5): 749-768. Dixit, A. (1984), “International Trade Policy for Oligopolistic Industries”, Economic Journal, 94: 116. Eaton, J. and Grossman, G. M. (1986), “Optimal Trade and Industrial Policy Under Oligopoly”, The Quarterly Journal of Economics, 101(2): 383-406. Ethier, W. J. (1982), “Dumping”, Journal of Political Economy, 90(3), 487-506. Finger, J. M. (1991), “The Origins and Evolution of Antidumping Regulation”, World Bank Policy Research Working Paper No. 783. Finger, J. M. (1998), “GATT Experience with Safeguards”, World Bank Policy Research Working Paper No. 2000. Gallaway, M. P., Blonigen, B. A. and Flynn, J. E. (1999), “Welfare Costs of the U.S. Antidumping and Countervailing Duty Laws”, Journal of International Economics, 49(2): 211-244. Grossman, G. M. (1986), “Imports as a Cause of Injury: The Case of the U.S. Steel Industry”, Journal of International Economics 20(3-4): 201-223. Hartigan, J. C. (1994), “Dumping and Signaling”, Journal of Economic Behavior and Organization, 23: 69-81. Hartigan, J. C. (1996), “Predatory Dumping”, Canadian Journal of Economics I Revue canadienne d’Economique, 29(1): 228-239. Herander, M. G. and Schwartz, J. B. (1984), “An Empirical Test of the Impact of the Threat of U.S. Trade Policy: The Case of Antidumping Duties”, Southern Economic Journal 51(1): 59-79. Hillman, A. L. (1982), “Declining Industries and Political-Support Protectionist Motives”, American Economic Review, 72(5): 1180-1187. Hoekman, B. and Kostecki, M. (2001), The Political Economy of the World Trading System: The WTO and Beyond. Oxford: Oxford University Press. 207 Mission Report 1 August 2011 - 23 February 2012 Hoekman, B. and Leidy, M. P. (1992), “Cascading Contingent Protection”, European Economic Review, 36(4): 883-892. Horlick, G. and Vermulst, E. (2005), “The 10 Major Problems With the Anti-Dumping Instrument: An Attempt at Synthesis”, Journal of World Trade, 39(1): 67-73. Hughes, J.S. Lenway, S. and Rayburn, J. (1997), “Stock Price Effects of U.S. Trade Policy Responses to Japanese Trading Practices in Semi-Conductors”, Canadian Journal of Economics / Revue canadienne d’economique 30(4): 922-942. Irwin, D. A. (2003), “Causing Problems? The WTO Review of Causations and Injury Attribution in Section 201 Cases”, World Trade Review, 2(3): 297-325. Jackson, J. (1997), The World Trading System: Law and Policy of International Economic Relations, 2nd ed. Cambridge, MA: The MIT Press. Kelly, K. H. (1988), “The Analysis of Causality in Escape Clause Cases”, Journal of International Economics, 37(2): 187-207. Konings, J., Vandenbussche, H. and Springael, L. (2001), “Import Diversion Under European Antidumping Policy”, Journal of Industry, Competition and Trade 1(3): 283-299. Konings, J. and Vandenbussche, H. (2005), “Antidumping Protection and Markups of Domestic Firms”, Journal of International Economics, 65(1): 151-165. Krugman, P. (1984), “Import Protection as Export Promotion: International Competition in the Presence of Oligopoly and Economies of Scale”, in Monopolistic Competition in International Trade, edited by H. Kierzkoushi. Oxford University Press. Lee, Y. S. (2005), Safeguard Measures in World Trade: The Legal Analysis. The Hague: Kluwer Law International, 2nd ed. Liebman, B. H. (2006), “Safeguards, China and the Price of Steel”, Review of World Economics/Weltwirtschaftliches Archiv 140(3): 446-475. Magee, C. (2002), “Declining Industries and Persistent Tariff”, Review of International Economics, 10(4): 749-762. Miyagiwa, K. and Ohno, K. (1995), “Closing the Technology Gap Under Protection”, American Economic Review, 85(4): 755-770. Pindyck, R. S. and Rotemberg, J. J. (1987), “Are Imports to Blame? Attribution of Injury Under the 1974 Trade Act”, Journal of Law and Economics, 30(1): 101-122. Prusa, T. (1992), “Why Are So Many Antidumping Petitions Withdrawn?” Jourrnal of International Economics, 33(1): 1-20. Prusa, T. and Sharp, D. C. (2001), “Simultaneous Equations in Antidumping Investigations”, Journal of Forensic Economics, 14(1): 63-78. Spencer, B. J. (1988), “Capital Subsidies and Countervailing Duties in Oligopolistic Industries”, Journal of International Economics, 25(1-2): 45-69. Staiger, R.W. (1999), “Do GATT Rules Help Governments Make Domestic Commitments?” Economic and Politics 11(2): 109-144. Sykes, A. O. (2006), The WTO Agreement on Safeguards. Oxford: Oxford University Press. Teh, R., Prusa, T. and Buderta, M. (2009), “Trade Remedy Provisions in Regional Trade Agreements”, in Estevadeordal, A., Suominen, K., and Teh, R. (eds.) Regional Rules in the Global Trading System. Cambridge, UK: Cambridge University Press. Viner, J. (1923), Dumping: A Problem in International Trade. Chicago: University of Chicago Press. World Trade Organization (2005), “Quantitative Economics in WTO Dispute Settlement,” in WTO (ed.), World Trade Report 2005, Geneva: World Trade Organization, 171-211. World Trade Organization (2004a), “AntiDumping”, Background Material, Chapter 10. 208 Mission Report 1 August 2011 - 23 February 2012 World Trade Organization (2004b), “Subsidies and Countervailing Measures”, Background Material, Chapter 14. World Trade Organization (2009), World Trade Report 2009: Trade Policy Commitments and Contingency Measures. Geneva: WTO. Appellate Body Reports Argentina – Safeguard Measures on Imports of Footwear (Argentina – Footwear (EC)), WT/DS121/AB/R, adopted 12 January 2000. Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products (Korea-Dairy), WT/DS98/AB/R, adopted 12 January 2000. Korea – Taxes on Alcoholic Beverages (Korea – Alcoholic Beverages), WT/DS75/AB/R, WT/DS98/AB/R, adopted 12 January 2000. United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan (US – HotRolled Steel) WT/DS184/AB/R, adopted 23 August 2001. United States – Definitive Safeguard Measures on Imports of Certain Steel Products (US – Steel Safeguards), WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, AT/DS252/AB/R, WT/DS253/AB/R, WT/DS258/AB/R, WT/DS259/AB/R, adopted 10 December 2003. United States – Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea (US – Line Pipe), WT/DS202/AB/R, adopted 8 March 2002. United States – Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities (US – Wheat Gluten), WT/DS166/AB/R, adopted 19 January 2001. United States – Measures Relating Zeroing and Sunset Reviews (US-Zeroing (Japan)), WT/DS322/AB/R, adopted 23 January 2007. Panel Reports European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India (EC – Bed Linen), WT/DS141/R, adopted 12 March 2001, modified by Appellate Body Report, WT/DS141/AB/R. Guatemala-Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico (Guatemala – Cement II), WT/DS156/R, adopted 17 November 2000. Indonesia – Certain Measures Affecting the Automobile Industry (Indonesia-Autos), WT/DS54/R and Corr. 1,2,3,4, WT/DS55/R and Corr. 1,2,3,4, WT/DS59/R and Corr. 1,2,3,4, WT/DS64/R and Corr. 1,2,3,4, adopted 23 July 1998. Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States – Recourse to Article 21.5 of the DSU by the United States (Mexico-Corn Syrup) (Article 21.5US), WT/DS132/RW, adopted 21 November 2001, upheld by Appellate Body Report, WT/DS132/AB/RW. Mexico-Anti-Dumping Duties on Steel Pipes and Tubes from Guatemala (Mexico-Steel Pipes and Tubes), WT/DS331/R. adopted 24 July 2007. Thailand Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland (Thailand H-Beams), WT/ds122/r, adopted 5 April 2001, modified by Appellate Body Report, WT/DS122/AB/R. United States – Measures Treating Export Restraints as Subsidies (US-Export Restraints), WT/DS194/R and Corr2, adopted 23 August 2001. 209 Mission Report 1 August 2011 - 23 February 2012 PART III. EX POST EVALUATION OF TRADE POLICIES 210 Mission Report 1 August 2011 - 23 February 2012 7. Ex post assessment of trade agreements 7.1. Introduction Countries enter into trade agreements instrumentally to increase trade but ultimately to increase national welfare. The most natural questions to ask then after a free trade agreement (FTA) has come to effect and some time has elapsed are: • • Is trade with the partner countries increased as a result of the FTA? By how much? Is national welfare increased as a result of the FTA? By how much? It is important to bear in mind the causal relationship suggested in the questions. The interest is in the change in trade and welfare that can be attributed to the FTA, and not simply any change that occurred. For instance, the questions could have been: • • Did trade with the partner countries increase after the FTA? Did national welfare increase after the FTA? The problem with these questions is that trade and welfare levels change for a variety of reasons and not just because of FTAs. For instance, a country’s trade with another may decline because of a general weakness in the global economy, or some other development that is unrelated to the FTA. If an FTA came into effect right before the global crisis, for example, it will likely have been followed by a decline in trade. To infer then that an FTA is ineffective simply because it is followed by a trade decline is to commit the well-known post hoc fallacy, which is to attribute cause to one thing simply because it precedes another. It works the other way around of course, just because increased trade follows an FTA it does not mean the FTA caused it. The main challenge in the ex post evaluation of trade agreements then is pinning down the effect that is truly due to the FTA. But how to do this? Or, more realistically, how to come closer to doing this? To proceed we first require the following tools: • • • an understanding of the factors that affect trade the data sets available on trade and the factors that affect trade some statistical tools, specifically regression analysis We discuss each in the next section. 7.2 Factors affecting Trade, Data Sources, and Statistical Tools Factors affecting Trade The most common method used to evaluate FTAs is a method called the Gravity Model, or more precisely the Augmented Gravity Model. Here we describe the factors hypothesized to affect trade implicit in the Augmented Gravity Model. [But note that actual trade theory is more complicated and theorists do not always agree about the expected effect of a factor.] Despite its forbidding name, which of course derives from the Law of Gravity in Physics [�the force of attraction between two bodies is directly proportional to the product of their masses and inversely proportional to the square of their distance’], the idea underlying the Gravity Model 211 Mission Report 1 August 2011 - 23 February 2012 is very simple: Trade between two countries will be higher the bigger their individual sizes (as measured say by Gross Domestic Product or GDP, Population, Land area); and trade between two countries will be smaller the farther away from each other they are (because of transportation and other trade costs for one). What makes an Augmented Gravity Model augmented is that aside from their sizes and the distance between them, other factors are hypothesized to affect trade. These other factors include geographical factors such as whether the two countries are adjacent or contiguous, and whether either is landlocked, an island, or bordered by the sea if not an island. Distance is expected to be a less important factor in trade for island countries and those bordered by the sea compared to landlocked countries because of the sea route. The other factors also include cultural factors including whether the two countries share a common language, and whether they were ever in a colonial relationship, including if they had a common colonizer. A shared culture is hypothesized to increase trade because it reduces trade costs. In addition, other factors considered include (but are not limited to) whether the countries share a common currency (positive hypothesized effect), and whether they are at war (negative hypothesized effect). The Augmented Gravity Model also sometimes uses GDP per capita instead of GDP on the argument that, after controlling for population, what matters to trade is the level of income rather than just the size. Data Sources Bilateral trade data (imports and exports) is available from the United Nations Conference on Trade and Development website (www.unctad.org) and also from the International Monetary Fund’s Direction of Trade Statistics (DOTS), which is also available online (http://elibrarydata.imf.org) but by subscription. The UNCTAD data has the advantage that it is more detailed and allows for disaggregation of trade data by product. Data on GDP and population can be freely sourced from the World Bank’s World Development Indicators (http://data.worldbank.org/data-catalog/world-development-indicators). The other variables will ordinarily be difficult to construct but, fortunately, other people have already done it and made their data sets publicly available. Note that these other variables either do not change over time or change slowly over time (e.g. contiguous, landlocked, island, common language, common currency, etc.). One such possible source is the Centre d'Etudes Prospectives et d'Informations Internationales (CEPII) gravity data set (http://www.cepii.fr/anglaisgraph/bdd/gravity.htm). Table 7.1 below, which was extracted from the CEPII data set, shows a sample of what a typical gravity model database will look like. In this example, what is shown is the bilateral trade between the Philippines and some ASEAN neighbors (and also Thailand and Malaysia against some ASEAN neighbors) for one year (2006), as well as some of the variables that go into the gravity model. The first column – the numbering is on the topmost row – lists the origin country of the trade flow (or the exporting country) while the second column shows the destination country of the trade flow (or the importing country). Column 3 of the data set shows the year the information in the row (at least the trade, GDP, and population information) refers to. Column 4 is the size of the trade flow from the origin country to the destination country in million US dollars. Thus, for instance, the exports of the Philippines to Thailand in 2006 was US$2.143 billion (row 4) while the exports of Thailand to the Philippines was US$2.847 billion (row 8) 212 Mission Report 1 August 2011 - 23 February 2012 Column 5 is the nominal GDP of the origin country in million US dollars while column 6 is the estimated population of the origin country in millions. Column 7 is the nominal GDP of the destination country in million US dollars and column 8 is the population of the destination country in millions. Column 9 shows a measure of the distance between the origin and the destination countries in kilometers. Column 10 is an indicator variable for contiguity. [An indicator variable is a variable that takes on the value of 1 if the variable heading is true and 0 otherwise.] Note that the variable indicates that Malaysia and Thailand are contiguous with each other and that, furthermore, Malaysia is contiguous with Singapore. Column 11 indicates whether the origin and destination countries share an official language. In the example that is true for the Philippines and Singapore (English) and for Singapore and Malaysia (Malay). The last column is an indicator variable for a common currency. Note that it indicates that Malaysia and Singapore share a common currency. That was true at one point but not anymore, so we simply assume that what is meant by the variable is that the two countries shared a common currency at some point in their recent history. This extracted data is obviously only a very small part of the entire data set. Because there are more than a hundred countries, and each country will have more than a hundred trading partners, and that, moreover, often the interest is to look at the pattern of trade over several decades, the gravity model data set used sometimes run to more than a million rows. Correlation and Regression The word correlation in ordinary usage simply means association or link. The statistical term correlation signifies the same idea. It is a measure of the association between two variables, that is, whether they move together (such as income and expenditure), in which case they are positively correlated, or move in opposite directions (such as consumption and savings), in which case they are negatively correlated. The problem with simple correlation is that it can only handle two variables at a time, whereas often our interest is in the more complex case of getting the association between multiple variables, or at least of one variable with several variables at the same time. Take the case of trade flows and the gravity model. According to the (augmented) gravity model, trade flows should be positively related (or correlated) with the sizes of the trading economies, the distance between them, and geographical and cultural factors, among others. But so many questions arise. Which factors are most important for trade? Is it enough to just include GDP as size measure and not population, since countries with large populations tend to have large economies anyway? In other words, does population have an effect independent of GDP? How do we know when the relationship between two variables is strong and when it is weak? Regression analysis provides us answers to such questions. It allows us to relate one variable of interest (often called the dependent variable) with many variables (often called dependent or explanatory variables) at the same time and to tease out the independent effect of each variable. [This will lead us closer later to getting to the true effect of an FTA on trade flows.] We would not go through the technical details of how to compute for regression coefficients. Regression estimation is easily done through any of many statistical softwares (Stata, SAS, SPSS, 213 Mission Report 1 August 2011 - 23 February 2012 and even Excel). We would, however, learn how to interpret regression results such as the one in Table 7.2. 214 Mission Report 1 August 2011 - 23 February 2012 Table 7.1. Sample Gravity Data Set Origin Destination Year (4) Trade flows (1) PHL IDN 2006 400 116931 85 (2) PHL MYS 2006 2901 116931 85 2277 26 148940 0 0 0 (3) PHL SGP 2006 5650 116931 85 2406 4 132159 0 1 0 (4) PHL THA 2006 2143 116931 85 2307 65 206247 0 0 0 (5) PHL VNM 2006 390 116931 85 1708 84 60884 0 0 0 (6) THA IDN 2006 3670 206247 65 2306 223 364459 0 0 0 (7) THA MYS 2006 7322 206247 65 1283 26 148940 1 0 0 (8) THA PHL 2006 2847 206247 65 2307 85 116931 0 0 0 (9) THA SGP 2006 9252 206247 65 1436 4 132159 0 0 0 (10) THA VNM 2006 3403 206247 65 853 84 60884 0 0 0 (11) MYS IDN 2006 4481 148940 26 1307 223 364459 1 0 0 (12) MYS PHL 2006 2391 148940 26 2277 85 116931 0 0 0 (13) MYS SGP 2006 31157 148940 26 506 4 132159 1 1 1 (14) MYS THA 2006 9352 148940 26 1283 65 206247 1 0 0 MYS VNM Source: CEPII Gravity Data Set 2006 1934 148940 26 1361 84 60884 0 0 0 (15) (1) (2) (3) (5) (6) (7) (8) (9) (10) Contiguous (11) Common language (12) Common currency GDP_o Popn_o GDP_d Popn_d Distance 2609 223 364459 0 0 0 215 Mission Report 1 August 2011 - 23 February 2012 Regression results are presented in different ways in different studies. Table 2 is typically how regression results will appear when directly copied from the statistical software that generated it (in this case Stata). The important parts of Table 2 are enclosed in rectangles. The leftmost rectangle simply gives us the model that was estimated, which in this case was the dependent variable trade flows (lnflow) against the explanatory variables populations in origin and destination countries (lnpop_o and lnpop_d), income per capita in origin and destination countries (lngdpc_o and lngdpc_d), and distance between countries (lndist). The ln in front of the variable names simply indicates that the variables were transformed to their natural logarithms and that the coefficients can be interpreted as elasticities. Elasticity is a measure of the responsiveness of one variable with respect to another. It often defined as the percent change in one variable associated with a one percent change in another variable. We will go to coefficients next. The second rectangle from the left encloses the estimated coefficients, which are the estimated relationships between the dependent variable (lnflow) and each of the explanatory variables, holding all the other explanatory variables fixed. We said the coefficients are in terms of elasticity. Looking at the table, this means that the coefficient of lngdp_o (GDP of the origin country), which is 0.73, indicates that a one percent change in the GDP of the origin country is linked with a 0.73 percent change in trade flows, holding all the other variables fixed. [The phrase “holding all other variables fixed” only means that the effect estimated already nets out of the effect that is common with the other explanatory variables.] The coefficient on lndist indicates that a one percent change in the distance between two countries is linked with a 1.5 percent decline in trade flows. The third rectangle from the left encloses the t-values and the p-values (P>|t|). They contain the same information: they measure whether the relationship between the dependent variable and the explanatory variable as embodied in the coefficient estimate is likely a real relationship rather than just a spurious one. When a t-value is high (say above 2) or when a p-value is low (say below 0.05), then the estimated relationship is more likely to be a real one. We also say that the coefficient is significant. Otherwise the observed relationship is deemed just accidental. In Table 2, all the explanatory variables have very low p-values. The horizontal rectangle at the top right of the table encloses the p-value for the test of the hypothesis (F-test) that all the estimated coefficients are simultaneously zero. As in the p-value for the t-test described above, a low value leads to a rejection of the hypothesis. From the example, the value is so low that no nonzero digit appears, which means that at least one of the explanatory variables really matter. Finally, the lower rectangle at the top right of the table encloses a statistic called R-squared. Rsquared is a measure of how well the included explanatory variables explain the dependent variable. It ranges in value from zero to one, where one indicates the model is able to explain all the variation in the dependent variable, and a value of zero means the explanatory variables explain none at all of the variation in the dependent variable. In the example, the R-squared of 0.67 indicates that the GDP of the origin country, the GDP of the destination country, and the distance between them [plus indicator or dummy variables for exporting country, importing 216 Mission Report 1 August 2011 - 23 February 2012 country, and year which were too many too show in the table], were able to explain 67 percent of the variation in trade flows. Table 7.2. Sample Regression Results . reg lnflow lngdp_o lngdp_d lndist exporter* importer* yeard*, robust Linear regression Number of obs = 624145 F(449,623695) = 3317.37 Prob > F = 0.0000 R-squared Root MSE = = 0.6701 2.0008 -----------------------------------------------------------------------------| Robust lnflow | Coef. Std. Err. t P>|t| [95% Conf. Interval] -------------+---------------------------------------------------------------lngdp_o | .7315413 .0072864 100.40 0.000 .7172601 .7458225 lngdp_d | .5966139 .0069266 86.13 0.000 .583038 .6101898 lndist | -1.484919 .0036394 -408.01 0.000 -1.492052 -1.477786 _cons | -5.283256 .6504105 -8.12 0.000 -6.55804 -4.008472 ------------------------------------------------------------------------------ 7.3 The gravity model in practice Now that we have familiarized ourselves with the necessary tools we examine how FTA evaluation is actually done in practice using Gravity Models. A standard Augmented Gravity Model estimating the impact of an FTA agreement is as follows (just bear with the notation): LnX ijt = α 0 + α 1LnYi t + α 2LnY jt + α 3LnPi t + α 4LnPjt + α 5LnDij + α 6 LANGij + α 7 BORDij + α 8 ISLANDi + α 9 LANDLOCK i + α 10 ISLAND j + α 11 LANDLOCK j + α 12 FTAij + α 13 FTAi + α 14 FTA j Where, as before, the symbol Ln before a variable denotes the variable is used in natural logarithm, and for the rest: X ijt = Export flows from country i to country j at time t Yi t = GDP of country i at time t Y jt = GDP of country j at time t Pi t = Population of country i at time t 217 Mission Report 1 August 2011 - 23 February 2012 Pjt = Population of country j at time t Dijt = Distance between country i and country j LANGijt = Indicator for whether country i and country j share a common official language BORDijt = Indicator for whether country i and country j share a border ISLANDit = Indicator for whether country i is an island LANDLOCK it = Indicator for whether country i is landlocked ISLAND tj = Indicator for whether country j is an island LANDLOCK tj = Indicator for whether country j is landlocked FTAijt = Indicator for when country i and country j are both in the FTA of interest FTAit = Indicator for when country i is in the FTA but not country j FTA tj = Indicator for when country j is in the FTA but not country i Essentially, this formulation says that trade flows between countries can be explained by the variables commonly postulated in gravity models, and in addition by the FTA entered into by countries. The crucial point is that the FTA must explain variation in trade flows that cannot already be explained by all the other factors included as explanatory variables. As in the earlier example, for instance, if the FTA accidentally coincided with the economic growth of the economies involved in the trade (especially relative to economies not in the FTA), and this economic growth resulted in greater trade flows between the two, then this would be a problem if you estimate the effect of the FTA by making a simple comparison using the growth of trade flows by membership in the FTA. You will be misattributing the impact to the FTA. But this would not be a problem when you estimate the effect of the FTA using the Augmented Gravity Model with FTA, because you are already controlling for the growth of the economies (as well as a host of other variables) – that is, the GDPs of the trading economies are already among the explanatory variables. What you are getting is simply the additional impact on trade flows contributed by the FTA, which is really your interest. Why 3 FTA variables (FTAij, FTAi, FTAj) then? A new FTA has the potential to change both the trade volume and the trade pattern of a country involved in the FTA, and it can do so in several ways: • Increase trade flows to and from the FTA partners without negatively affecting trade flows to and from non-FTA countries, and thus increase overall trade flows. This is called trade creation because the FTA essentially created new trade among the FTA countries. • Increase trade flows to and from the FTA partners but with an offsetting negative effect on trade flows to and from non-FTA countries. The net effect on overall trade may be positive or negative. The negative effect on trade flows to and from non-FTA countries is called a trade diversion effect, because effectively the FTA simply diverted already existing trade (from non-FTA to FTA countries). A special case is when the amount of 218 Mission Report 1 August 2011 - 23 February 2012 trade diversion exactly offsets the amount of trade creation, so that the net effect of the FTA is zero. • Not affect trade flows at all, or even negatively affect the trade flows between FTA partners. There are 3 FTA variables in our standard Augmented Gravity Model with FTA because they are measuring both trade creation and trade diversion effects. In particular, FTAij, which is an indicator variable for when the two countries in the bilateral trade are FTA countries, is there to gauge trade creation. On the other hand, FTAi and FTAj, which are indicator variables for when only one of the countries is part of the FTA, are there to test whether there is trade diversion. It will be useful to see what the data with the FTA indicators looks like. Table 7.3 gives an example assuming that the FTA of interest is the ASEAN-China Free Trade Area (ACFTA), which came into force in 2005. Four countries (Philippines, Canada, Thailand, and China) are shown in the table with values for some variables we already encountered earlier plus the FTA variables, for the years 2004 and 2006. The year 2004 was chosen because it was prior to the ACFTA, and 2006 was chosen because it was when the ACFTA was already in effect. The first shaded column gives the values for the variable FTAij for the years 2004 and 2006. As could be seen, it has the value zero for all rows for the year 2004 because the FTA did not exist yet at that time. In the 2006 rows, FTAij takes on the value of 1 whenever the origin and destination countries are both members of ACFTA (in this case any combination of the Philippines, China, and Thailand). The second shaded column gives the values for the variable FTAi. It also takes on the value zero for all rows for the year 2004, again because the FTA did not exist yet at that time. In the 2006 rows, FTAi takes on the value of 1 whenever the origin country is a member of the ACFTA (any of Philippines, China, and Thailand) but the destination country is not (Canada). The third shaded column gives the values for the variable FTAj. It is similar to FTAi but instead takes on the value of 1 whenever the origin country is not a member of the ACFTA but the destination country is a member. Table 7.3. Sample Gravity Model Data with FTA variables Origin PHL PHL PHL CAN CAN CAN THA THA THA CHN CHN CHN PHL PHL Destination CAN CHN THA CHN PHL THA CAN CHN PHL CAN PHL THA CAN CHN Year 2004 2004 2004 2004 2004 2004 2004 2004 2004 2004 2004 2004 2006 2006 Trade flows 808 9059 1548 7354 353 500 1712 11542 2012 20433 4696 8183 961 17676 GDP_E 86703 86703 86703 976756 976756 976756 161349 161349 161349 1931710 1931710 1931710 116931 116931 GDP_I 976756 1931710 161349 1931710 86703 161349 976756 1931710 86703 976756 86703 161349 1251463 2668071 Common language 1 0 0 0 1 0 0 0 0 0 0 0 1 0 FTAij/ Trade Creation 0 0 0 0 0 0 0 0 0 0 0 0 0 1 FTAi/ Trade Diversion 0 0 0 0 0 0 0 0 0 0 0 0 1 0 219 FTAj/ Trade Diversion 0 0 0 0 0 0 0 0 0 0 0 0 0 0 Mission Report 1 August 2011 - 23 February 2012 PHL THA 2006 CAN CHN 2006 CAN PHL 2006 CAN THA 2006 THA CAN 2006 THA CHN 2006 THA PHL 2006 CHN CAN 2006 CHN PHL 2006 CHN THA 2006 Source: CEPII Gravity Data Set 2143 7667 391 526 2185 17962 2847 33478 6312 13801 116931 1251463 1251463 1251463 206247 206247 206247 2668071 2668071 2668071 206247 2668071 116931 206247 1251463 2668071 116931 1251463 116931 206247 0 0 1 0 0 0 0 0 0 0 1 0 0 0 0 1 1 0 1 1 0 0 0 0 1 0 0 1 0 0 Say now that the data is there and properly constructed, and that the Augmented Gravity Model with FTA was estimated properly using regression analysis. How to interpret the results? Let us go back to our original questions first. • • Is trade with the partner countries increased as a result of the FTA? By how much? Is national welfare increased as a result of the FTA? By how much? To answer these questions, what we need to look at are the last 3 terms in our estimated Augmented Gravity Model, more specifically: α 12 FTAij + α 13 FTAi + α 14 FTA j The answer to the question as to whether trade with partner countries was increased with the FTA is answered by the sign of the parameter α 12 . If the sign of the parameter is positive and significant, then the answer is Yes; if the sign is positive but insignificant or nonpositive (either zero or negative) then the answer is No. In fact, a significant negative coefficient would denote the highly irregular result that the FTA reduced trade among partner countries. By how much did the FTA increase trade among partner countries? To estimate this, we need to compute for the value of eα − 1 , 12 e is the well-known mathematical constant otherwise known as Euler’s number α (approximately equal to 2.71828). The value of e − 1 gives us the proportionate growth in where 12 trade flows among partner countries coinciding with the FTA. [Note: This method is also how to estimate the effect of any other indicator variable in the Augmented Gravity Model, such as BORD , ISLAND , and LANDLOCK .] The question of whether the FTA has increased welfare is a more complex one. The general idea is that an FTA increases welfare if it increases overall trade – the key term is overall. This means it is not enough that the FTA increases trade with partner countries, but also that this increase should not be fully offset by reduced trade with non-partner countries. Or, in the language of our earlier discussions, the trade creation effect of the FTA should not be exceeded by its trade diversion effect. 220 0 1 1 1 0 0 0 0 0 0 Mission Report 1 August 2011 - 23 February 2012 Whether the FTA results in at least some trade diversion can be seen by looking at the coefficients α 13 and α 14 . If either is negative and significant, that means that there is at least some trade diversion effect of the FTA. The question of how much trade diversion is being caused is computed the same way we computed trade creation, that is we compute e α − 1 and 13 e α − 1 , where the former gives the proportionate decline (or increase) in the exports of FTA 14 countries to non-FTA countries and the latter gives the proportionate decline (or increase) in the imports of FTA countries from non-FTA countries. Operationally, then, the net effect of the FTA on the amount of trade, and thus on welfare, is the weighted sum of the trade creation and trade diversion effects, where the weights applied are simply the corresponding pre-FTA volumes of trade. 221
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