CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ

FROM TURKEY – TEXTILES

TO PERU – ADDITIONAL DUTY …

The CRTA, which is the specialized body with the major activities on RTAs’ evaluation, was set up in 1996 by theWTOGeneral Council, and adopts its decision by consensus. 13 It has “to carry out the examination of agreements in accordance with the procedures and terms of reference adopted by the Council for Trade in Goods, the Council for Trade in Services or the Committee on Trade and Development, as the case may be, and thereafter present its report to the relevant body for appropriate action”; 14 and it has “to consider the systemic implications of such agreements and regional initiatives for the multilateral trading system.” 15 The CRTA role was strengthened with the adoption, in December 2006, of the Transparency Mechanism for Regional Trade Agreements (the “RTA Transparency Mechanism”), 16 which clarifies and articulates the transparency obligations of WTO Members under Article XXIV:7(a) of the GATT 1994 17 and Article V:7(a) of the GATS. 18 Under the RTA Transparency Mechanism, the General Council tried to give a more precise content to the very generic indication of the recalled WTO obligations, requiring that WTO Members “promptly notify” the WTO membership with RTAs texts. Pursuant to the 2006 Decision, WTO Members are hence called to notify their participation to negotiations of new RTAs, the documents of such treaties once RTAs are signed, and the full text of a RTA “no later than directly following the parties’ ratification of the RTA or any party’s decision on application of the relevant parts of an agreement, and before the application of preferential treatment between the parties.” 19 Within the CRTA, all those notifications are considered and discussed, so that the minutes of CRTA meetings, together with the notified documents, are particularly important to assess new trends in trade regionalism. In principle, the CRTA should adopt a report on the WTO consistency of a notified RTA. However, the ever increasing scope of the new regional agreements, the very generic expressions used by the above recalled WTO provisions on RTAs’ exceptions, and the positive consensus rule at the basis of the CRTA’s decision making, are a series of concurring circumstances which reinforces the political sensitiveness of the definition of legitimacy for regionalism within the multilateral trade system. And such a series of circumstances makes difficult reaching a consensus for the CRTA reports on the WTO/RTAs relations. The result is that the political pillar does not produce decisions on the WTO consistency of RTAs, nor does it clarify the very generic expressions -like, for instance “substantially all trade”, or “substantially the same” (Article XXIV:8 of the GATT 1994)- of the WTO 13 WTO Doc. WT/L/127, Committee on Regional Trade Agreements , Decision of the WTO General Council of 6 February 1996. 14 WTO Doc. WT/L/127, cit., para. 1(a). 15 WTO Doc. WT/L/127, cit., para. 1(d). 16 WTO Doc. WT/L671, Transparency Mechanism for Regional Trade Agreements , Decision of the WTO General Council of 14 December 2006. 17 Pursuant to which “[a]ny contracting party deciding to enter into a customs union or free-trade area, or an interim agreement leading to the formation of such a union or area, shall promptly notify the CONTRACTING PARTIES and shall make available to them such information regarding the proposed union or area as will enable them to make such reports and recommendations to contracting parties as they may deem appropriate.” 18 According to such provision, “Members which are parties to any agreement referred to in paragraph 1 shall promptly notify any such agreement and any enlargement or any significant modification of that agreement to the Council for Trade in Services. They shall also make available to the Council such relevant information as may be requested by it. The Council may establish a working party to examine such an agreement or enlargement or modification of that agreement and to report to the Council on its consistency with this Article.” 19 WTO Doc. WT/L671, cit., section B, para. 3.

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