How to Design, Negotiate, and Implement a

Free Trade Agreement in

ASIA

How to Design, Negotiate, and Implement a

Free Trade Agreement in Asia

Office of Regional Economic Integration

April 2008

 Asian Development Bank

All rights reserved. Published April 2008.
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Asian Development Bank.

How to design, negotiate, and implement a free trade agreement in Asia.
Mandaluyong City, Phil.: Asian Development Bank, 2008.
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2. Asia.

I. Asian Development Bank.

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Foreword

he continuing spread of free trade agreements

(FTAs) in the developing worldparticularly
in Asiahas spurred intense debate. Viewed
pragmatically, against the backdrop of slow progress in
global trade talks, FTAs can promote continued trade
liberalization, induce structural reforms in the economies
concerned, and widen market access across a vibrant
economic region, where the demand for greater intraregional trade is rapidly increasing.
On the negative side, the proliferation of bilateral FTAs
can create the so-called noodle bowl effect as multiple
rules of origin arising from overlapping agreements cause
harm particularly to small and medium enterprises with
limited capacity to comply with them. The resulting
market fragmentation would be more costly even for
major multinational companies because of rising
transaction costs and regulatory barriers. The flow of
foreign direct investment and the associated transfer of
technology and knowhow to smaller economies would
also decline.
Nevertheless, FTAs are a growing reality. If we recognize
that and hope to foster regional trade agreements as
building blocks of global trade and investment integration,
we cannot stand idly by and wait for a comprehensive
global resolution. We strongly support the Doha
negotiation process, while recognizing the need to
consolidate and streamline regional and bilateral FTAs
into an eventual Greater Asian FTA.
The recent proliferation of FTAs in Asia and the Pacific
is placing mounting strain on the regions FTA negotiating
capacity and on the knowledge and technical skills of
government officials. The areas of interest now go beyond
conventional trade in goods and services and extend to
intellectual property rights, government procurement, and
labor and environmental issues, among others.

iv | How to design, negotiate, and implement a free trade agreement in asia

The capacity constraints are especially

acute in poorer countries, which also lack
the institutions to train their officials.
This reference book is intended to be
used mainly in present and planned FTA
training courses of the Asian Development
Bank, to increase the knowledge and
capacity of officials who are active in
designing, negotiating, and implementing
FTAs. Building on theories of international
trade economics and the goodpractice
FTA experiences accumulated by both
front-runners and late beginners in this
area, the book explains important facts
and benchmarks to be considered when
preparing, negotiating, and enforcing FTAs.
Rather than going into the details of specific
topics, this reference book covers the overall
FTA process and its main features.

With this reference book, we expect to

help shape common perspectives among
government officials in Asia and the
Pacific on what a desirable FTA should
be, as we look forward to the eventual
harmonization of FTAs in this region. This
comprehensive version is the first step
in that direction. We hope this reference
book will serve the increasing demand for
FTA knowledge in the region.

JONG-WHA LEE
Head
Office of Regional Economic Integration

Acknowledgments

he Office of Regional Economic Integration (OREI)

of the Asian Development Bank (ADB) has
conducted training courses in free trade agreements
(FTAs) for mid-level government officials in Asia since
October 2006. Starting with the second program in July
2007, we expanded participation to all ADB developing
member countries to meet the growing demand for FTA
training in the region. Around 100 government officials
from all over Asia participated in the training.
From the outset, we felt a need for a reference book on
FTA for the training course. Drafting a structured text
material for the courses was the main objective of this
project. But this book serves other purposes as well.
Government officials who are or will be involved in
FTA negotiations can get background knowledge and
guidelines on practical issues from this reference book.
The general public, including the academe and students
who are interested in practical aspects of FTA, can also
benefit from this. It avoids excessively academic or
technical terms and is written in language that is
accessible to everyone with basic, common-sense ideas
about economics, international trade, and FTAs.
Negotiating free trade agreements: a guide, prepared by
the Australian Department of Foreign Affairs and Trade,
was the benchmark for this project. Nevertheless, we have
tried to cover a wider scope of issues ranging from
fundamental theories to actual components and practical
issues related to FTAs.
Jong Woo Kang, Economist, OREI, organized this
project and coordinated the overall production of the
publication. Michael Plummer of Johns Hopkins University
was overall editor of the project.
A group of international experts, ADB professional
staff, and consultants contributed to this reference book.
Michael Plummer of Johns Hopkins University and
Ganeshan Wignaraja, Jong Woo Kang, and Rosechin
Olfindo (staff consultant) of ADB wrote Part I: Economics
of a Free Trade Agreement.

vi | How to design, negotiate, and implement a free trade agreement in asia

Several academics and experts

contributed to Part II: Coverage of a Free
Trade Agreement. Rachel MacCulloch
of Brandeis University wrote on trade in
goods and on environmental and labor
standards; William James of ADB, on rules
of origin; Aik Hoe Lim of Institute for
International Trade, Adelaide University,
on trade in services; Arthur Appleton
of Appleton Luff Inc., on intellectual
property, dispute settlement mechanisms,
sanitary and phytosanitary standards, and
technical barriers to trade; Siow Yue Chia
of the Singapore Institute of International
Affairs, on investment and FTA-plus issues,
including government procurement and
competition policy; and Dorothea Lazaro,
ADB consultant on trade facilitation.

Finally, Part III: Negotiating,

Implementing, and Evaluating Free Trade
Agreements was written by Jong Woo
Kang and Dorothea Lazaro of ADB.
Special thanks go to those who
responded to our FTA questionnaire and
to the resource persons and participants
who gave valuable comments on Part III
during the FTA training courses.

JONG WOO KANG

Project Manager and Economist
Office of Regional Economic Integration

Contents
Tables, Figures, Case Studies, Boxes
Acronyms and Abbreviations

viii
x

ECONOMICS OF A FREE TRADE AGREEMENT

Trade Trends: Regionalization versus Regionalism

Why Enter into a Free Trade Agreement?
Political and Economic Goals
Economics of Consolidation/Harmonization
Summary
Appendix

1
6
18
25
27

COVERAGE OF A FREE TRADE AGREEMENT

Trade in Goods
Rules of Origin
Trade in Services
Investment
FTA-Plus Chapters
Dispute Settlement Mechanism
Appendix

31
49
57
75
83
92
99

NEGOTIATING, IMPLEMENTING, AND EVALUATING

FREE TRADE AGREEMENTS

Introduction
Preparing for FTA Negotiations
Structuring the Negotiating Team
The Negotiation Process
Managing Consultations
Implementing an FTA
Evaluating an FTA
Appendix

References

109
114
120
123
125
127
133
135
139

Tables, Figures,
Case Studies, Boxes
Tables

Table 1.1 Types of Free Trade Agreements (FTAs)

Involving Asia and the Pacific Countries, 2007
Table 2.1 Product OriginWholly Obtained Principle
Table 2.2 Tests for Determining Origin of Processed or
Manufactured Goods

4
51
51

Figures

Figure 1.1 Number of Free Trade Agreements Involving

Asia and the Pacific Countries, 19902007
Figure 1.2 Number of Free Trade Agreements Involving
Asia and the Pacific Subregions, 2007
Figure 2.1 WTO Dispute Settlement Flowchart
Figure 3.1 Model FTA Process
Figure 3.2 Three Levels of FTA Committees
Figure 3.3 Tariff Elimination Modalities
for Negotiating FTAs
Figure 3.4 When Consultation Should Be Conducted
Figure 3.5 New RTA Transparency Mechanism

Case Studies

Case 2.1 Republic of KoreaChile Free Trade Agreement

Case 2.2 Specific Commitments for the Movement of
Natural Persons under the Japan-Philippines
Economic Partnership Agreement

Boxes

Box 1.1

Box 1.2
Box 1.3
Box 1.4
Box 2.1
Box 2.2

A Brief History of Multilateral Governance under

the World Trade OrganizationFrom the GATT
Rounds to Doha
ADBs Free Trade Agreement Database
GATT 1994, Article XXIV
Computable General Equilibrium Models
and Free Trade Agreements
WTO Disciplines in Trade-in-Goods Provisions
Economics of Preferential Rules of Origin

3
3
93
110
120
124
127
131

33

73

2
3
5
10
32
50

Tables, Figures, Case Studies, Boxes | ix

Box 2.3
Box 2.4
Box 2.5
Box 2.6
Box 2.7
Box 2.8
Box 2.9
Box 2.10
Box 2.11
Box 2.12
Box 2.13
Box 3.1
Box 3.2
Box 3.3
Box 3.4
Box 3.5
Box 3.6
Box 3.7
Box 3.8
Box 3.9
Box 3.10
Box 3.11
Box 3.12
Box 3.13
Box 3.14
Box 3.15

NAFTA Product-Specific Rules of Origin

Textiles and Apparel
How Services Are TradedThe Four
Modes of Supply in the GATS
Meeting the Requirements of GATS Article V
A Traditional GATS-Style Positive List
A Simplified Positive List
An Annex 1 Reservation List
An Annex 2 Reservation on Future Measures
Typical Features of Financial Services
Provisions of FTAs
Typical Features of Telecommunications
Services Provisions of FTAs
Movement of Natural PersonsProvisions
on Business Visitors
Bilateral Investment Treaties
How the US Negotiates a Trade Agreement
US Trade Strategy
Japans FTA Strategy
Useful Information and Sources for Negotiators
Typical Composition of Working Groups in
the Negotiating Team
ASEAN Approaches to Negotiation
Negotiation Approach under the GATS
US Interagency Structure
Interagency Coordination Mechanism in
the Republic of Korea
Negotiating Skills and Good Negotiating Habits
Examples of Consultation Mechanisms
Australias Treaty Approval Process
Legal Changes Made in Singapore
Examples of FTA Websites
US Monitoring and Enforcement System

57
58
60
65
66
67
67
70
71
72
78
112
114
116
118
121
123
123
125
125
126
128
130
132
132
134

Acronyms and
Abbreviations
AD
ADB
AFTA
AIA
APEC
ARIC
ASEAN
BIT
BTA
CER
COO
CTH
CTSH
DSU
EC
EFTA
EU
FDI
FOB
FTA
GATS
GATT
GPA
GSP
HS
IP
IPR
JCT
JMEPA
JPEPA
JSEPA
JSG
LDC
MAI
MEA

antidumping duty
Asian Development Bank
ASEAN Free Trade Agreement
ASEAN Investment Area
Asia Pacific Economic Cooperation
Asia Regional Integration Center
Association of Southeast Asian Nations
bilateral investment treaty
bilateral trade agreement
Closer Economic Relations (AustraliaNew Zealand
free trade agreement)
certificate of origin
change in tariff heading
change in tariff subheading
Dispute Settlement Understanding
European Community
European Free Trade Agreement
European Union
foreign direct investment
free on board
free trade agreement
General Agreement on Trade in Services
General Agreement on Tariffs and Trade
Government Procurement Agreement
Generalized System of Preferences
Harmonized System
intellectual property
intellectual property rights
joint coordinating team
Japan-Malaysia Economic Partnership Agreement
Japan-Philippines Economic Partnership Agreement
Japan-Singapore Economic Partnership Agreement
joint study group
least-developed country
multilateral agreement on investment
multilateral environmental agreement

Acronyms and Abbreviations | xi

MFN
MNC
MRA
NAFTA
NGO
NTB
OECD
PRC
ROOs
RTA
SAFTA
SEOM
SOE
SP
SPS
TBT
TPRG
TPSC
TRIMS
TRIPS
USTR
WCO
WIPO
WTO

most-favored nation
multinational corporation
mutual recognition agreement
North American Free Trade Agreement
nongovernment organization
nontariff barrier
Organisation for Economic Co-operation and
Development
Peoples Republic of China
rules of origin
regional trade agreement
Singapore-Australia Free Trade Agreement
Senior Economic Officials Meeting
state-owned enterprise
specified process
sanitary and phytosanitary standard
technical barriers to trade
Trade Policy Review Group
Trade Policy Staff Committee
(Agreement on) Trade-Related Investment Measures
(Agreement on) Trade-Related Aspects of Intellectual
Property Rights
United States Trade Representative
World Customs Organization
World Intellectual Property Organization
World Trade Organization

Part I:

Economics of a Free
Trade Agreement
Trade Trends: Regionalization
versus Regionalism

egionalism, which we will define generally here to

include any formal preferential trading arrangement
between two or more countries, came late to Asia.
Before the turn of the 21st century, there were few
regional trading agreements in existence. While successful
Asian economies by and large exploited the international
marketplace effectively, they did so in the context of the
General Agreement on Tariffs and Trade (GATT)/World
Trade Organization (WTO) framework (see Box 1.1 for
an overview of the evolution of the multilateral system).
However, regionalization, which we will define as a
market-led process of increasing economic interaction, has
been building up momentum in Asia for decades, spurred
by unilateral liberalization, market-oriented reforms, and
successful economic growth in Asia consistently above
the global average (with the exception of the Asian Crisis
years, 19971998). Hence, formal preferential trading
arrangements in the region, particularly in the form of
free trade areas (FTAs), are being developed as a means
of enhancing regionalism (the flag following trade)
rather than the other way around, as was true of such
agreements as colonial preferences or even the early
years of European economic integration. In most of Asia,
regionalism is being used as part of the overall process of
economic reform, to buttress the outward-oriented
development strategies of the regions economies.


Unless specified otherwise, Asia throughout the reference book is taken to

include the Asian Development Banks (ADB) 47 regional member countries
(see list in http://aric.adb.org/technotes.htm#countrygroupings).

 | How to design, negotiate, and implement a free trade agreement in asia

Box 1.1: A Brief History of Multilateral Governance

under the World Trade Organization
From the GATT Rounds to Doha
The General Agreement on Tariffs and Trade (GATT)
was signed in 1944, with the immediate objective of
preventing future trade wars and the inconsistent
commercial policies that had plagued international
trade in the 1930s. It was originally intended to be a
temporary body; the International Trade Organization
(ITO) was supposed to replace it as a permanent
body with international legal status, on a par with the
other Bretton Woods Institutionsthe International
Monetary Fund and the World Bank. The ITO was
never ratified; however, the GATT came into effect on 1
January 1948 as an ad hoc organization that would take
a permanent, legal form only in 1994, with the creation
of the World Trade Organization (WTO).
The GATT was designed to reduce international
barriers to trade on a nondiscriminatory, or mostfavored nation (MFN), basis. This would be achieved
through concerted, multilateral negotiations called
rounds. Since the creation of the GATT, there have
been eight rounds, i.e.: Geneva, 19471948; Annecy,
France, 1949; Torquay, England, 19501951; Geneva,
1956; the Dillon Round, 19601962; the Kennedy
Round, 19631967; the Tokyo Round, 19731979; and
the Uruguay Round, 19861993. The current WTO
negotiations have been dubbed the Doha Development
Agenda, to underscore the importance of developing
countries in this series of talks. Earlier GATT rounds
were successful in reducing tariffs on manufactured
goods. The Uruguay Round began to address more
complicated issues, from quantitative restrictions in
sensitive areas like agriculture and textiles and clothing
to trade-related areas such as investment measures and
intellectual property protection. The Doha Development
Agenda was initiated to go further down the road of
deep integration. The process has been difficult, given
the political sensitivity of many of the key areas being
addressed. In fact, the 2003 Ministerial Meeting in
Cancun, Mexico ended without any agreement.
The Hong Kong Ministerial Meeting in December 2005
was successful in keeping the Doha negotiations alive.
The WTO members agreed to undertake liberalization
negotiations generally under four pillars: NonAgricultural Market Access (NAMA), Agriculture, Services,
and Rules (including those pertaining to administrative
actions, e.g., antidumping and countervailing duties,
and regional trading agreements). The primacy of the
development dimension of the talks was reemphasized.
The leaders at the meeting set April 2006 as the deadline
for the Doha package. However, no agreement has yet
been forthcoming.

As we will see throughout this reference

book, regionalism has both positive and
negative elements. After all, FTAs all have
discriminatory features and, therefore,
are second best. There are in fact no
guarantees that a free trade area will be
a movement in the direction of free trade,
its name notwithstanding. It depends very
much on the agreement. We will argue in
this book that the current FTA movement
in Asia is outward-oriented, and that the
intentions of economies engaged in
these agreements are pro-market and
consistent with multilateral rules.
However, to be certain that regionalism
will support efficient regionalization and
competitiveness, policy makers must
understand the complicated nature of
these agreements and learn to embrace
the positive elements while minimizing
the potentially negative ones. Part I was
written with this in mind.

Rise of Free Trade Agreements

in Asia and the Pacific
The rapid spread of regionalism has
become one of the most important
recent developments in the global trade
system. The proliferation of bilateral and
plurilateral FTAs is fundamentally altering
the world trade landscape. Trade between
FTA partners now makes up nearly 40%
of global trade, and new agreements
increasingly address issues beyond trade.
Asia is a latecomer in the move toward
FTAs compared with Europe, the Americas,
and Africa, but has seen an unprecedented
increase in total FTA activity since the
1990s. By Asian Development Bank (ADB)
estimates, at least one Asian country is


Source: Updated from ADB (2006).



World Bank (2005). However, the amount of trade

that is actually preferential is smaller because of the
costs of compliance with free trade agreements (FTAs),
particularly those associated with the rules-of-origin
requirement.
Asia in the ADB FTA database refers to Asia and the
Pacific.

part I: Economics of a free trade agreement | 

involved in 204 FTAs in various stages

of implementation: 95 concluded, 60
under official negotiation, and 49 being
proposed (see Box 1.2 for information on
ADBs FTA Database, which gives up-todate information and analysis regarding
emerging and existing FTAs). This is a
dramatic increase from the fewer than 10
FTAs involving Asian countries in the early
1990s (see Figure 1.1).
The rise in the number of FTA
initiatives in Asia is driven by a number
of factors including: (i) a defensive
response to the proliferation of trading
blocs and FTAs in other major regions;
(ii) uncertainty over progress in global
trade talks under the WTO framework;
(iii) the need to improve productivity in
the face of the heightened competitive
pressure from the economic emergence of
the Peoples Republic of China (PRC) and
India, in particular with respect to
economies of scale through market
integration; (iv) the perceived need for
deeper integration with trading partners,
due in part to the demonstration effect
of successful regional integration accords
elsewhere; and (v) the promotion of
beyond the border structural reforms as
part of a competitiveness strategy (e.g.,

investment liberalization, promotion of

domestic competition, harmonization of
standards, and upgrading of technology
development). The recent increase in
FTAs has also been driven by the richest
and largest economies in the region such
as the PRC, Japan, Republic of Korea,
Singapore, and, Thailand, suggesting a
link between FTA growth and economic
prosperity, although the exact causation
still needs to be explored further.
Box 1.2: ADBs Free Trade Agreement Database
Launched in October 2006 by ADB and managed by
its Office of Regional Economic Integration, the Free
Trade Agreement (FTA) Database in the Asia Regional
Information Center (ARIC) website (www.aric.adb.org)
tracks FTAs of 47 regional members of ADB and provides
three types of information: (i) FTA trends (statistical tables
on the status and various categories of FTAs in Asia and
the Pacific); (ii) available resources on each FTA (i.e., legal
documents, official summary, studies and researches,
news, opinions and editorials, FTA membership, and
an external link to the UNESCAP database); and (iii)
a comparative FTA toolkitan innovative feature
of the FTA databasewhich allows side-by-side
comparison of around 80 chapters/provisions of more
than 40 concluded FTAs. The list of FTAs on the ARIC
website is based on official sources (joint statements,
declarations, press releases, and government websites).
The information about them is also from official sources,
research sites, and online news items.
Source: ADB.

Figure 1.1: Number of Free Trade Agreements

Involving Asia and the Pacific Countries,
19902007
250

Figure 1.2: Number of Free Trade Agreements

Involving Asia and the Pacific
Subregions, 2007
120
100

200
Proposed

80

Under Negotiation
150

Concluded
60

100

40
20

50

0
1990

1997

2000

Source: ADB FTA Database. Available: www.aric.adb.org

2007

East Asia

Central Asia

South Asia

Source: ADB FTA Database. Available: www.aric.adb.org

Pacific

 | How to design, negotiate, and implement a free trade agreement in asia

Among the Asian subregions, East Asia

is the most active in forming FTAs: at least
one East Asian economy is involved in
any of 112 FTAs, almost twice the number
of FTAs involving Central or South Asian
countries (see Figure 1.2). The Pacific is
the least involved in FTA formation among
the four Asian subregions. Given the rise
in the market-based regionalization of
East Asian economies over the past 20
years, that is, the increase in the regional
shares of trade and investment due to
market-driven activity, the deepening of
regional economic interdependence is the
most fundamental rationale behind the
recent economic regionalism in East
Asiaan example of the flag following
trade. Since the Asian Crisis of
19971998, East Asian economies have
embarked on various initiatives under the
general rubric of economic regionalism
in trade/investment and money/finance.
The crisis prompted the subregions
economies to realize the importance of
economic cooperation and to make efforts
to institutionalize such interdependence.
An important feature of the rise in the
number of FTAs in Asia is the growing
number of overlapping agreements and
the so-called Asian noodle bowl, that
has emerged from the proliferation of
bilateral and plurilateral FTAs in the
region. Each FTA can be quite different
in coverage, depth of liberalization, and
the specific regulations that make the
accord function (e.g., rules of origin).
According to ADB estimates, Asian
countries are involved in 156 bilateral
and 48 plurilateral FTAs in various
stages of implementation. Many of these
agreementsespecially the new ones,






Unless specified otherwise, East Asia in this reference

book refers to the 10 Association of Southeast Asian
Nations (ASEAN) countries plus the Peoples Republic
of China (PRC); Hong Kong, China; the Republic of
Korea; Mongolia; Taipei,China; and Japan.
See Kawai and Wignaraja (2007).
See Kawai (2005).
The terms noodle bowl and spaghetti bowl are
used interchangeably throughout this book.

are with countries outside the region

(see Table 1.1). The fact that many FTAs
extend beyond the Asian region itself
underscores the importance of external
markets particularly for the export of
final products. The formation of crossregional agreements is driven by several
factors including energy security, access to
minerals and other natural resources, and
efforts by countries to lock in reforms
by making them part of a formal trade
treaty with a major developed country or
region.

Table 1.1: Types of Free Trade Agreements (FTAs)

Involving Asia and the Pacific
Countries, 2007
Regional
Coverage

Bilateral
FTAs

Plurilateral
FTAs

Total
FTAs

Within Asia-Pacific

73

25

98

Outside Asia-Pacific

83

23

106

156

48

204

Total FTAs

Source: ADB FTA Database. Available: www.aric.adb.org

Around half of the established FTAs

involving at least one Asian country have
not been notified to the WTO. A large
portion of the WTO-notified FTAs involve
East Asian economies, indicating significant
adherence in East Asia to WTO rules and
procedures for FTAs. However, many of the
provisions of recent agreements formed
by East Asian economies extend beyond
the WTO regulatory framework (WTOplus agreements) to include provisions
related to a host of deep issues such as
trade facilitation, investment, government
procurement, competition, intellectual
property, and environment and labor rules.
Such provisions are often included in FTAs
between developed and developing
countries, no doubt reflecting the emphasis
that developed economies give to these
issues.


See ADB (2006).

part I: Economics of a free trade agreement | 

Box 1.3: GATT 1994, Article XXIV

Free trade agreements (FTAs) represent a departure
from the General Agreement on Tariffs and Trade
(GATT)/ World Trade Organization (WTO) guiding
principle of nondiscriminatory trade, i.e., mostfvored nation (MFN) treatment, among signatories.
Article XXIV of GATT 1994 and the Uruguay Round
Understanding on the Interpretation of Article XXIV
of the General Agreement on Tariffs and Trade provide
the rules governing free trade in goods. Article V of the
General Agreement on Trade in Services (GATS) gives
the corresponding rules for free trade in services.
Article XXIV recognizes the desirability of
increasing trade through voluntary agreements
between two or more members, but it also cautions
countries that such an agreement should be to
facilitate trade among the members and not raise
barriers to trade with non-partner countries. This
provision clearly restricts the common external
tariffs imposed by the members of a customs union.
However, the preferential margin created by a free
trade area in effect raises barriers to trade with nonpartner countries, resulting in trade diversion, i.e.,
the substitution of partner imports for lower-cost
imports from non-partners. Some economists have
suggested that countries forming free trade areas
should be required to reduce MFN tariff rates to
offset this tendency.
As defined in Article XXIV, a free trade area is a
group of two or more countries (customs territories)
in which duties and other regulations of commerce
are eliminated on substantially all the trade between
them in products originating in the member countries.
Article XXIV distinguishes between a free trade area,
where trade barriers have been removed, and an
agreement that will eventually lead to the formation
of a free trade area. However, key concepts in this
definition are left undefined. How much trade is
substantially all trade? Should the amount of trade
covered be measured in value terms or according
to the percentage of product categories included?
Other than tariffs, which regulations of commerce,
e.g., trade barriers, must also be eliminated? Exactly
which goods are considered to have originated in the
member countries? Here the agreement must spell
out rules of origin for any good produced in the area
but incorporating intermediates imported from nonmembers. Finally, how long a period is permissible
between the signing of an agreement to form an FTA
and the elimination of barriers on substantially all
trade? Almost all FTAs are phased in over time, often
allowing more than 10 years for some tariffs to
be eliminated.
The 1994 Understanding on the Interpretation of
Article XXIV was intended to reduce the ambiguity
concerning the coverage and timing of free trade
agreements. It begins by recognizing the importance
Source: WTO website. Available: www.wto.org

of comprehensive coverage, i.e., the contribution

to the expansion of world trade is increased if the
elimination of duties and other restrictive regulations
of commerce extends to all trade, and diminished if
any major sector of trade is excluded. Free trade
areas that exempt significant areas, such as
agricultural trade or a major manufacturing sector
via highly restrictive rules of origin, appear to violate
this coverage guideline. With respect to the time
allowed for a new agreement to be phased in, the
Understanding specifies that the reasonable length
of time of Article XXIV should exceed 10 years only
in exceptional cases and that where parties to
an interim agreement believe that 10 years would
be insufficient they shall provide a full explanation
to the Council for Trade in Goods of the need for a
longer period.
However, the Tokyo Round agreements, signed in
1979, contained more lenient rules on preferential
trading accords between developing countries.
These include the Decision on Differential and
More Favourable Treatment, Reciprocity and Fuller
Participation of Developing Countries, known as the
Enabling Clause. Under its terms, developing countries
are subject to less scrutiny in complying with Article
XXIV. Thus, developing countries can potentially agree
to reduce but not eliminate tariffs and other trade
barriers or be more selective in sectoral coverage.
In practice, however, no FTAs among GATT or WTO
members, whether developed or developing, have
been challenged successfully by other members. This
laissez-faire attitude could change in the future, given
the increasing concern among WTO members about
the effects of proliferating FTAs and their implications
for progress in multilateral trade liberalization. The
Doha Development Agenda includes negotiations
aimed at clarifying and improving disciplines and
procedures under the existing WTO provisions
applying to regional trade agreements. As an initial
result of the effort, a transparency mechanism
announced in 2006 provides for early announcement
and notification to the WTO of any new FTA, with an
eye to prompt review of its compliance with WTO
rules. But whether prompt notification can affect the
provisions of new FTAs remains to be determined. By
mid-2006, when the transparency mechanism was
announced, the process of assessing the consistency
of FTAs with WTO rules had already created a growing
backlog of cases awaiting evaluation.
Regardless of WTO scrutiny, countries planning to
negotiate a free trade agreement should be aware of
the potentially adverse economic and political effects,
both on themselves and on their excluded trading
partners, of arrangements that cover some but not
all goods, specify an unduly long phase-in period, or
divert trade from lower-cost sources.

 | How to design, negotiate, and implement a free trade agreement in asia

This burgeoning number of agreements

in the region has raised concern in the
light of its potential to add greatly to the
complexity of international trade and to
the administrative costs of trade. The web
of differing trade arrangements can tangle
administrative procedurese.g., customs
procedures, technical standards, rules of
originand thereby raise the cost for both
enterprises and governments. To mitigate
such adverse effects, some have called
for the creation of a region-wide FTA
with harmonized rules of origin among
other business-friendly provisions. In this
regard, the Association of Southeast Asian
Nations (ASEAN) could form a natural
hub for East Asia and for Asia in general.
Given their complicated and inherently
discriminatory nature, many of these
subregional and regional initiatives would
be more efficiently handled at the global
level. After all, Article XXIV of the GATT/
WTO was intended to be an exception
to the MFN rule (see Box 1.3). But what
happens when the exception becomes the
rule? We address this and related issues in
the rest of this section.

Why Enter into a Free Trade

Agreement?Political
and Economic Goals
As noted above, the major surge in
FTAs is fundamentally changing the
international commercial landscape, with
Asian economies being an important
part of this process. This trend did not
develop by accident. In this section, we
consider some of the general economic
and political goals behind the formation
of FTAs.
To begin with, we should stress that,
while economics may be an important
motivation in setting up an FTA, political


See Kuroda (2007).

circumstances generally dominate. In fact,

while one can list a number of accords
with a dubious economic rationale but
strong political motivations, no major
accord made good economic sense but
was politically untenable. Hence, while
this book emphasizes the economics
of regional trading arrangements, the
important political dimensions of each
agreement should also be respected.

Gains from Trade

The gains from trade argument,
first developed by the famous British
economist David Riccardo, has been
used to promote the need for trade
liberalization over the past two centuries.
In short, as a country specializes in the
products that it produces most efficiently,
compared with other countries, and then
trades the goods in surplus, it is able to
improve its standard of living. On the
supply side, efficient structural adjustment
takes place: the country uses its resources
in the most productive way. On the
demand side, firms are able to source the
most cost-effective inputs and consumers
are able to purchase imports at the lowest
price. When all countries specialize in
their comparative advantage products,
the entire world is better off and global
prosperity is maximized.
As Nobel Laureate Paul Samuelson
has noted, the principle of comparative
advantage might be the only proposition
in the social sciences that is both true and
nontrivial. It is also counterintuitive to
many. For example, in the debates over
the North American Free Trade Agreement
(NAFTA) between Canada, Mexico, and
the United States (US), opponents of the
agreement in Mexico argued that there
was no way Mexico could compete with
a technological superpower like the US,
and in the US those that opposed NAFTA
insisted that the US could not compete
with Mexicans, whose wages were only

part I: Economics of a free trade agreement |

a fraction of those at home. Riccardo

demonstrated more than a century earlier
that both were wrong. With free trade,
the US and Mexico would produce the
products in which they had inherent
comparative advantage, and both would
benefit. In a hospital, a medical doctor
can perform all the roles of a nurse and
much more specialized tasks. But there
still is a role for the nurse, who can
specialize in more routine, less specialized
activities, leaving the doctor to specialize
in more advanced tasks. In accepting this
division of labor, each will prosper and
the hospital will be more efficient.
This does not mean that the doctor
and the nurse will be paid equally. The
former will be more productive in the
area requiring a high degree of expertise
than the latter and, hence, will receive
a higher salary. Likewise, countries with
higher productivity will have a higher
standard of living than lower-productivity
countries. In addition, under a regime of
free trade, countries do not decide what
they will produce. Economics, rather than
politics, dictates comparative advantage.
But as the Hungarian economist Bela
Balassa has noted, comparative advantage
is man-made; policy matters. Japan, for
instance, began after World War II as
one of the worlds most labor-abundant
countries, and exported low-cost, laborintensive products for decades. But its
evolution over time, driven by forwardlooking government policy, allowed it to
shift its comparative advantage into
high-tech, capital-intensive exports. Many
other Asian countries are also moving up
the development ladder.
Further, as economies evolve over
time from low-skilled production, of
agricultural and labor-intensive goods
for example, into more sophisticated
products, their comparative advantage
tends to merge. Economic integration
changes from inter-industry trade
(say, oil for computer chips) to intra-

industry trade (say, automobiles for

automobiles). Recent trends in East Asia
underscore this process. At first, trade
was inter-industryand, hence, there
was not much of it. But particularly
since the Asian Crisis, East Asian
countries have been engaging much
more in intra-industry trade, a process
that is responsible in part for the rising
intra-regional trade share and greater
economic symmetry (Rana 2006). In
fact, most of the worlds trade takes place
between developed countries (with the
same economic characteristics) and is of
the intra-industry variety.
This leads us to the distinction between
horizontal and vertical specializations
in production. Horizontal specialization
relates to production according to
comparative advantage in the traditional
sense discussed above; vertical
specialization focuses on the many parts
and processes that make up the
production of a final good, i.e., the value
chain. While efficient division of labor
will always dictate specialization in what
the country does best relative to other
countries in the global trading system,
multinational corporations (MNCs) have
transformed radically how they organize
productive processes and source inputs.
For example, while in the 1950s and
1960s an MNC might have produced an
entire automobile in the Philippines for
sale in the local and international
markets, today that same MNC would
have operations in the Philippines that
would be part of a global production
process, in which the MNC would exploit
the comparative advantages of each
country in its network to produce the
automobile most efficiently. This value
chain would see labor-abundant countries
producing labor-intensive components,
capital-intensive countries producing
capital-intensive components, high-skillintensive countries producing high-skillintensive components, and so on. The

 | How to design, negotiate, and implement a free trade agreement in asia

production of automobiles and electronics

is increasingly characterized by this sort
of value-chain process in the modern
economy. The rising importanceand,
often, dominanceof electronics in the
exports of most East Asian economies
testifies to the importance of the vertical
division of labor that is being created
by these value chains, a process that
in turn is driving economic integration
and globalization more generally. It is
still driven by comparative advantage;
however, in addition to having
comparative advantage in particular
products, economies have comparative
advantages in processes and components
that are part of a vertical division
of production.
Further, this process allows developing
countries to tap more easily into global
production chains. In the past, the
production of an entire automobile in
the Philippines would have required a
demanding set of national economic
prerequisites such as available inputs
and skill sets that could have been
discouraging to the MNC. Perhaps the
Philippines would have been bypassed
in favor of a more developed country
with these attributes already in place.
However, within the context of the
vertical division of labor discussed
above, the Philippines would only have
to have comparative advantage in a
subset of these skills to participate in the
production chain. Hence, these value
chains hold important advantages for
less-developed countries, which can now
tap into globalization far earlier than in
the past.
In sum, the gains from trade
argument, based on the principle of
comparative advantage, explains the
inherent logic of international free trade
as the first best policy option, i.e., one
that should lead to greater welfare for all
countries. Comparative advantage is also
a dynamic process, suggesting that, while

trade increases efficiency and prosperity,

government policy at the national level
plays a key role in determining to what
degree each will be successful.
But what is the difference between
free trade and FTAs? Unlike multilateral
liberalization under the GATT/WTO, FTAs
tend to be controversial in economic and
policy circles for a variety of reasons,
most of which are linked to the fact that
preferential trading arrangements, such
as FTAs and customs unions, are by their
very nature discriminatory. We explain
the economics of FTAs in the rest of this
section, and focus on political-economyrelated issues in the next section.
Static effects
The static effects of FTAs generally
refer to the effect on price changes
induced by preferential tariff (and
nontariff) liberalization. Free trade
areas remove discrimination between
partner countries and domestic firms,
and, hence, home and country prices of
tradable goodsthat is, exports, imports,
and import-competing productstend
to be equalized as barriers to trade are
reduced. Relatively inefficient domestic
production therefore contracts (trade
creation) in favor of production in
partner countries. This is essentially the
same efficiency-enhancing effect as in
Riccardos model. However, FTAs create
a new form of discrimination, that is,
between the exports of partner and nonpartner countries. Partner-country exports
will displace more efficient non-partner
exports in the home market if the degree
of preferential access is sufficient (trade
diversion). Trade diversion implies a less
efficient international division of labor,
and, since the home country will lose
tariff revenues and will pay a higher price
for its imports, the importing country
loses. Thus, the net (static) effects of an
FTA will depend on the degree of trade

part I: Economics of a free trade agreement |

creation compared with trade diversion

(allocative efficiency). Note that trade
liberalization under the WTO should
not involve any trade diversion, as MFN
treatment implies nondiscrimination
between sources of imports. This is why
it is first best option. On the other
hand, since FTAs discriminate in favor
of partner countries, regionalism is the
second best and, therefore, does not
guarantee a more efficient division of
labor in the grouping.
In comparing the economics of
nondiscriminatory trade liberalization,
such as that taking place under the
auspices of the WTO on the basis of MFN
treatment, on the one hand, and
discriminatory trade liberalization in the
context of an FTA, on the other, we
should keep in mind the qualitative
differences between accords. First of all,
while trade diversion does exist in the
context of an FTA, it is also true that FTAs
tend to be more comprehensive in the
coverage of goods (and services). In fact,
Article XXIV of the GATT/WTO, which
dictates minimal requirements for FTAs,
insists on the coverage of substantially
all goods. But no such requirement exists
under the GATT/WTO. Countries include
as many sectors as they deem fit through
negotiations. This has led to a good deal
of piecemeal liberalization under the
GATT/WTO, leaving protection on some
agricultural and labor-intensive products
practically untouched after successive
multilateral rounds. The exclusion of
individual products can be problematic
on efficiency grounds, particularly when
it involves products that are used as
inputs in the productive network. For
example, duty-free inputs on steel will
cause exaggerated protection of value
added (the effective rate of protection)
in the automotive sector. The exclusion
of tariffs on imported lumber will do the
same in the furniture industry if the latter
is excluded from liberalization. Free trade

areas, on the other hand, are generally

far more comprehensive in the treatment
of sectors across the board. Thus, while
FTAs lead to potential trade diversion
because of discrimination between
countries, the existing multilateral regime
suffers from negative efficiency effects
because of discrimination between
products.
Second, regionalism holds another
advantage over multilateralism in that it
allows like-minded countries to address
far more issues and in a shorter period of
time. By choosing one or several partners
with similar policy goals, countries are
able to make more progress in deep
integration than they could in the
extremely diverse WTO context. The
recent interest in regionalism on the part
of OECD countries that have traditionally
shunned it (the US, Japan, the Republic
of Korea, Australia and New Zealand,
and so on) derives from their desire to
address these many issues and their
understanding that they cannot resolve
them in the context of the WTO, or at
least not in the short or medium run.
A successful conclusion to the Doha
Development Agenda would, perhaps,
give momentum to regionalism, but this
is not certain. The incentives for entering
into new bilateral and plurilateral
accords, as well as for deepening existing
ones, would remain.
Dynamic effects
Economists tend to focus on the static
effects of economic integration. Price
changes in FTAs drive the theoretical
and empirical FTA literature mainly
because they are easier to conceptualize
and estimate than other effects of
regionalism (see Box 1.4). However,
the static effects of FTAs tend to be less
important from the point of view of sheer
economic impact and the implications of
regionalism for economic development.

10 | How to design, negotiate, and implement a free trade agreement in asia

Box 1.4: Computable General Equilibrium Models and Free Trade Agreements
Computable general equilibrium (CGE) models
are often used by the World Bank, the World Trade
Organization (WTO), and ADB, among others, to
estimate the welfare effects of free trade
aggreements (FTAs) and other trading agreements.
These models evolved from the earliest models of
the economy that showed inter-industry links.
While earlier models could capture only very simple
general-equilibrium relationships, more recent
models are able to incorporate market mechanisms
and policy instruments that work through price
incentives.
The earliest global trade model was the Michigan
Model of World Production and Trade, which was
designed to gauge the employment impact of the
Tokyo Round. This model, with its set of equations
extended to include the features of the New Trade
Theory (imperfect competition, increasing returns
to scale, and product differentiation), was also used
in analyzing the effects of the US-Canada FTA. The
extended Michigan Model was later applied to
country groups selected from the original 34country Michigan Model.
The MIRAGE model, another imperfect
competition model, developed by the Centre
dEtudes Prospectives et dInformations
Internationales (CEPII) in Paris, describes imperfect
competition in an oligopolistic Cournot
framework, which accounts for horizontal product
differentiation linked to varieties and geographic
origin. The modeling is done in a sequential dynamic
setup, where the number of firms in each sector is
progressively adjusted, and installed capital is
assumed to be immobile even across sectors.
Compared with other CGE models, MIRAGE explicitly
describes foreign direct investment and trade
barriers, on the basis of a unique database for tariff
barriers (MacMap), and introduces vertical product
differentiation.

The Global Trade Analysis Project (GTAP) model,

constructed in 1992, is the applied generalequilibrium model in wide use. The standard GTAP
model assumes perfect competition and constant
returns to scale, while some extensions of the
model assume imperfect competition. The dynamic
model (GTAP-Dyn) extends the standard model
to incorporate dynamic behavior. It includes all
the special features of the standard model such
as sophisticated consumer demands and intersectoral factor mobility, as well as new treatment
of investment behavior and additional accounting
relations to keep track of foreign ownership of
capital. Backed by an international consortium of
agencies and universities, GTAP created a consistent
global data set for use in analyzing international
economic policy issues and has become the basis for
all global CGE models.
The LINKAGE model, developed by the World
Bank, is a recursive dynamic applied generalequilibrium model with neoclassic features. It
comes with an aggregation facility, which is used
to aggregate the extensive GTAP database into a
tractable data set for simulation. An extension of
the LINKAGE model, the General Equilibrium Model
for Asian Trade (GEMAT), is an applied generalequilibrium model of the global economy with a
focus on Asia and is primarily used by ADB. It
incorporates firm heterogeneity in production and
fixed trading costs in modeling production and
trade, thereby better capturing the extensive margin
in international trade growth and trade-induced
productivity enhancement.
The appendix to Part I gives a more explicit
example of the theoretical foundations of a CGE
and includes an actual application to various FTA
scenarios. The exercise demonstrates how the results
of these models should, and should not, be used by
policy makers in negotiations.

Source: ADB (2006); World Bank (2004); Plummer and Wignaraja (2006)

After all, price changes induce one-time

effects, and are called static for that
reason. On the other hand, dynamic
effects refer to the medium- and longterm implications of regional integration
and, as such, tend to be more significant.
Dynamic effects are also more pervasive,
affecting almost all areas that relate to
an economys competitiveness. From
articulated policy statements and the

direction of FTA formation in Asia, we

find that the economic policy goals of
FTAs in the region focus on these
dynamic effects, rather than mere price
changes. Below, we consider some of the
most important dynamic effects in the
context of FTAseconomies of scale,
technology transfer and foreign direct
investment (FDI), and structural policy
change and reform.

part I: Economics of a free trade agreement | 11

Economies of Scale. If a firms average

costs fall when its output expands, it will
be able to sell at more competitive
prices as its market grows. This type
of production function would be
characterized by economies of scale, of
which the degree depends on the product
type. Economies of scale exist in the
production of many agricultural, naturalresource-intensive, and manufacturing
sectors, as well as services. This effect is
intuitive to both business people and
consumers, who are used to paying less
for larger purchases.
The importance of economies of scale
in the context of FTAs is also intuitive.
By creating a larger market for firms
operating in partner countries, an FTA will
allow producers to take advantage of a
larger customer base and, hence, produce
at a lower average cost on all sales. Firms
will even be able to lower prices for
existing customersthe cost-reduction
effect (Corden 1972). As a result, they
will become more competitive not only at
home but also in foreign markets.
It is clear that exploiting economies
of scale is an important motivation for
regional integration. Resource pooling
and market sharing have been explicit
goals of ASEAN essentially since its
foundation. ASEAN has deepened
economic integration considerably over
time and is now creating an ASEAN
Economic Community, in part to compete
with the PRC and Indian markets, which
otherwise would have an important
competitive advantage in economic
scale. Deep integration in the European
Union (EU) has been pushed by the need
to compete with the US for the same
reasons.
Technology Transfer and Foreign Direct
Investment. The link between FDI and
technology transfer has been firmly
established. It is one of the primary
reasons why Asian countries seek to

attract FDI inflows, through unilateral

and concerted trade liberalization and
other means. Bilateral and regional FTA
formation attracts such long-term, risksharing investment flows by creating
a more integrated marketplace within
which MNCs can enjoy a regional
division of labor with low transaction
costs and exploit product-level economies
of scale.
Greater FDI flows can have important
salutary effects on the economy by
bringing in long-term foreign capital
and foreign exchange, providing readymade international customers through
the foreign firms global networks,
stimulating local competition, and
putting pressure on government bodies
to embrace best practices vis--vis
investment measures and regulations.
But perhaps the most important benefit
from FDI, at least for developing Asia, is
technology transfer.
The investment effect on trade creation
and trade diversion is also worth noting.
An MNC that believes an FTA between
India and ASEAN will lead to greater
economic dynamism in Asia will be
compelled to invest more in India.
Since the resulting investments would
be consistent with Indias dynamic
comparative advantage, this is known as
investment creation, i.e., India (and
the rest of the world) experiences a more
efficient distribution of global investment.
However, suppose that the MNC decides
to invest in India not because of a
perceived increase in dynamism in that
country but because it will now have
preferential access to the ASEAN market.
In other words, although investing in, say,
Bangladesh might have been more costeffective, the MNC diverts investment to
India because of this regional accord. The
motivation would be the same as in
tariff hopping FDI. This effect is known
as investment diversion. India may be
pleased that it can draw in more FDI,

12 | How to design, negotiate, and implement a free trade agreement in asia

but Bangladesh will certainly suffer.

Moreover, the investment in India could
very well go into sectors in which India
is not internationally competitive but
merely competitive relative to ASEAN,
producing negative efficiency effects even
there.
While conceptually clear, investment
creation and diversion is difficult to
estimate. We observe a change in FDI
flows empirically but are unable to
trace directly the motivation for the
investmentMNCs obviously do not
announce their management strategies.
However, we would expect investment
creation to follow trade creation, and
investment diversion to follow trade
diversion. To demonstrate this, let us
return to our India-ASEAN example and,
further, let us focus on electronics. If
tariffs on electronic products in ASEAN
were equal to zerothey are indeed very
low in the main ASEAN marketsthere
would be no incentive for investment
diversion, as the MNC even with its
newly gained preferential access would
have no real benefit from investing in
India; all countries would have tariff-free
access. Hence, if it still speeded up its
investments in India, we would attribute
this to investment creation. On the other
hand, if the electronics markets in ASEAN
were highly protected, the potential for
investment diversion would be great,
as would be the potential for trade
diversion.
Using an FTA to attract FDI from third
countries, as well as partner countries, is
often a key motivation for such an accord.
This is certainly the case in ASEAN,
whose free trade agreement (the AFTA)
is thought of more as an investment
agreement than as a trade agreement.
In other words, the goal of AFTA is
to reduce transaction costs to MNCs
wishing to use ASEAN as an integrated
production platform to exploit vertical
division of labor. Note, however, that the

goal of ASEAN (and other economies in

Asia) is mainly to bring in third-country
MNCs, that is, to attract greater FDI
inflows from OECD countries. Developed
countries are by far the most important
global investors. In 19952005, intraASEAN FDI was only 14% of total FDI
inflows, and almost half of that share was
Singaporean investment in Thailand and
Malaysia alone. Thus, it makes sense for
FTAs to focus on non-partner countries as
well as partner countries. Multinational
corporations in developed countries also
have the advantage of having the most
sophisticated technologies, and their
global reach can pave the way to readymade export markets.
In fact, ASEAN has always placed
emphasis, implicit or otherwise, on
attracting non-partner FDI. The ASEAN
Investment Area (AIA), which was
founded in 1998 and will be an important
pillar in building the ASEAN Economic
Community, explicitly charts a path for
the national treatment of partner- and
non-partner country investors, albeit
within different time frames2010 for
investors from partner countries and 2020
for those from non-partners.
Structural Policy Change and
Reform in New Age Free Trade
Agreements. Modern FTAs, particularly
those with OECD countries as partners,
go well behind the traditional focus
on tariffs to include other border and
behind-the-border measures. These
measures now receive far greater
attention in negotiations and tend to be
more important to the modernization and
competitiveness of economic systems,
in part because of the success of the
GATT/WTO in bringing down tariffs and
rendering them less significant. Examples
of these behind-the-border areas are:
complex measures specific to the service
sectors; laws related to corporate
and public governance; the national

part I: Economics of a free trade agreement | 13

treatment of partner-country investors;

competition policy, including the reform
of state-owned enterprises; and other
sensitive sectors with important
links to the rest of the economy. The
inclusion of these nontraditional areas
underscores how far FTAs have gone
beyond mere commercial policy to
include microeconomic policies that used
to be considered the exclusive domain of
national economic policy.
Policy harmonization issues are
especially pertinent in this regard.
Although the most significant effects of
the Single Market program of the EU are
held to be in many of the behind-theborder areas mentioned above, perhaps
one of the most important areas of
cooperation can be classified under the
rubric of harmonization issues, such
as mutual recognition of product testing
and professional certification, standards
conformance, and customs and transit.
Adopting universal harmonization
standards would maximize gains in all
of these areas. Doing so worldwide is,
however, much more difficult, and that
is why the GATT/WTO has made such
little progress in these areas. On the other
hand, like-minded countries in an FTA are
able to address these nontraditional areas
that improve the business environment by
reducing costs, leveling the playing field
for foreign investors, and pushing policy
reforms toward best practices.
One final point pertains to the limits
of harmonization. In many ways,
harmonization implies creating a level
playing field. However, the playing
field must be in good shape, that is, the
region should adopt not only compatible
policies (harmonization) but also best
practices. Otherwise, harmonization
may only reduce diversity in a region
while doing little to improve the business
environment, which, after all, should be
the overriding goal.

Competitiveness Incentives. As is the case

with trade liberalization generally, greater
exposure to international competition
has important salutary effects on a
partner country in an FTA. Increased
exposure to competition from partnercountry producers not only leads to trade
creation, and, therefore, greater structural
efficiency, but also increases the potential
profits for competitive, or potentially
competitive, firms. An important incentive
to invest in more efficient productive
processes and technology is thus created.
In other words, the FTA enables the firms
to adapt new technologies from abroad
by increasing the potential for success in
using those technologies to break into
partner-country markets.

Political Economy of Protection

The areas covered by regional trading
arrangements constitute a subsetthough
an increasingly large one, as mentioned
aboveof overall macroeconomic and
microeconomic policies. Moreover, all
existing and emerging trade accords
in Asia are FTAs, rather than customs
unions, meaning that the economic
policies of member countries continue to
be independent.10 Thus, the question of
how FTAs will affect the policy stance of
acceding countries will be crucial to the
ultimate success of the accord. For example,
in the NAFTA debates discussed above,
almost all American economists supported
the agreement not out of any conviction
that regionalism was the best way to goa
majority saw regionalism as a threat to
the integrity of the multilateral system, in
which they strongly believedbut rather
because they felt it was the best way to
lock in the progressive economy-wide
reforms that Mexico had set in motion
10

The one exception might be the ASEAN Economic

Community initiative, which may ultimately have to
create a customs union to reach its goal of a common
market.

14 | How to design, negotiate, and implement a free trade agreement in asia

in the process leading up to NAFTA. In

addition, accession to ASEAN has facilitated
economic reform in the transitional ASEAN
economies that joined in the 1990s, well
beyond what was needed to meet the
exigencies of ASEAN-based agreements. In
this section, we consider some aspects of
the complicated interaction between FTAs
and policy-making.
Dynamic policy considerations
A government can try to protect its
domestic market from foreign competition
by levying tariffs on imported goods or
erecting nontariff barriers such as quotas
of various kinds, discriminatory sanitary
requirements, or even administrative
action (e.g., antidumping and
countervailing duties ).11 While tariffs,
along with internal tax sources such as
income, corporate, and value-added
taxes, generate tax revenue for importing
countries, such a tax at the border
can itself be used as a policy variable
to influence the economys industrial
structure. Hence, tariff formation can be,
and usually is, affected by various factors
other than tax revenue maximization.
After all, if revenue maximization were
indeed the goal of a tariff regime, the
country should favor an across-theboard tariff that does not discriminate
across commodities when setting up
its commercial policy regime. Such an
approach would imply far less efficiency
costs than a tariff structure that differs
across commodities.12 The fact that
homogeneous tariffs are rarely in evidence
implies that countries tend to use their
tariff structure as a form of industrial
11

12

This does not mean that all sanitary requirements and

administrative actions are protectionist. However, they
have been used as hidden protectionist vehicles.
The argument for an optimum tariff rate suggests that
tariff rates should be set according to relative elasticity
between the demand for and supply of the imported
good to maximize terms-of-trade gains. Given the
compliance costs and potential rent-seeking behavior,
however, a uniform tariff can have great advantages
over a complex one.

policy. This aspect of endogenous tariff

formation has been explored through
political, rather than purely economic,
models. In general, this approach focuses
on the domestic governments political
objective of maximizing national welfare
as determined from its own point of
view, rather than from the economys
perspective. In line with this, the
governments objective function consists of
three major variables, i.e., domestic firms
profit, aggregate consumer surplus, and
tariff revenue, which can be represented
in the simple objective welfare function
W(L,C,). It should be noted that this
national welfare function differs from
what a neoclassical economy connotes.
In the political-support approach to
trade-barrier formation, the government
trades off political backing from
consumers against higher industry profits
because higher protection for domestic
industry will inevitably lead to higher
sale prices of goods (and, hence, will be
opposed by consumers). If the government
gives greater weight to consumers surplus
than to the domestic firms profit, the
effective tariff rate will be lower, and vice
versa. The local firms will lobby their
government for higher protection for their
industries. If the tariff revenue collected is
to be redistributed among domestic actors,
an altruistic government would choose a
tariff to maximize aggregate support from
its constituents. The altruistic government
endeavors to maximize social welfare
under the political incentive to gain public
confidence in order to win elections or
carry favors from various constituents.
These policy considerations of the
importing country government, in
turn, have strategic implications for the
exporting sector. Faced with the importing
governments welfare maximization
problem, exporting firms behave
strategically to maximize profit under
given constraints. An exporting firm not
only competes against the local firms in
the market of the host country, but also

part I: Economics of a free trade agreement | 15

engages in strategic behavior in responding

to trade barriers in the country to which
the firm will be exporting (i.e., the
destination country). This dynamic aspect
of strategic behavior is most evident in
firms comportment under administrative
protection regimes of the importing
country. Even in the context of rapid
globalization and with many FTAs that
have emerged as important policy vehicles,
administrative protection measures,
such as antidumping and countervailing
duties, have become the most important
trade barriers in industrialized (and some
developing) countries. The rationale and
effects of these protective measures, as well
as exporting firms strategic behavior in
facing the domestic governments threat of
protection, must be explored in a political
economy context. Although it is not yet
proven whether this kind of strategic
interaction exists in the real world, much
research reveals that this political-economy
context can explain a large portion of
trade barrier formation. This approach is
certainly more realistic than the logical
neoclassic approach, which would suggest
that all countries should adopt free trade,
with the exception of infant industries,
strategic trade policy, and the (theoretical)
optimal tariff argument.13
13

The infant-industry argument suggests that temporary,

short-term protection should be used to protect a
certain industry in the case of a financial bottleneck
in developing countries. While there are examples
of successful infant-industry protection, often the
argument is used merely as an excuse for traditional
protection: most infant industries never grow up.
Strategic trade policy refers to protection geared to
encourage economies of scale in an industry by creating
a captive domestic market (and, with lower average
costs, enhance competitiveness in global markets) or
to the protection of one (comparative-disadvantage)
sector that is a necessary input to a comparativeadvantage sector. This argument, too, is problematic;
while the former argument would lead to retaliation,
the latter has very weak theoretical foundations. Finally,
while it would be logical for them to do so in theory,
countries do not apply tariffs according to an optimal
criterion, that is, they do not apply tariffs to improve
terms of trade by forcing down import prices. Besides,
the criterion would not apply even theoretically to small
and developing countries: as they cannot influence their
respective terms of trade (they are price takers), the
optimal tariff would always be zero.

These dynamic policy considerations

in the formation of trade barriers suggest
the possibility of suboptimal trade policy
implementation. While freer trade
is better for the economic welfare of
both the exporting and the importing
countries, policy considerations in the
domestic market will inevitably lead
the government to suboptimal policy
decisions for protection. For example,
antidumping protection is technically
triggered when the sale price of an
exported commodity is lower than its
price in the country of origin, and this
price differential causes material injury
to the domestic industry of the importing
country through unfair competition.
However, with the emergence of many
interest groups in the industrial sector, the
governments become more vulnerable to
external pressures from industry interests
to say that dumping has occurred. After
all, most businesspeople would define
dumping as merely selling at a price
that is lower than their domestic price.
Furthermore, given the difficulty of
forming organized consumer-interest
groups, the balance of influence will
tilt toward more heightened protection
regimes at the cost of consumers
welfare and efficient allocation of global
resources.
Implications of rent seeking
Except in the presence of market failure
(e.g., where there exist externalities or
imperfect competition), a standard result
of economic theory is that government
intervention in markets tends to lead
to a less efficient outcome. Tariffs and,
certainly, nontariff barriers are no
different. As discussed above, a tariff
distorts consumption patterns and the
structure of production, thereby damaging
the static welfare of the country. Tariff
barriers raise revenue for the government,
but other sources of revenue, such as
value-added taxes and direct taxes

16 | How to design, negotiate, and implement a free trade agreement in asia

(e.g., income taxes), tend to be less

distortionary. Nontariff barriers are even
worse; they have the same negative
effects on consumers and the productive
structure but often do not produce any
revenue at all for the government.
Still, there are strong political reasons
for applying tariffs. In addition to the
process described above in terms of
dynamic policy considerations, support for
protection is usually justified to the public
in order to protect national security, jobs,
the environment, even a way of life. After
all, the economic case for free trade is
so strong that it has essentially created
a consensus in mainstream economics, a
field where there is very little consensus
in other areas. However, except for a
few small states, no country completely
embraces free trade. The political
economy of protectionism, therefore, is
obviously extremely important.
As long as there is protection, there will
be an incentive for rent seeking.14 Without
hard-and-fast rules based on economics
(e.g., free trade or uniform tariffs),
comparative-disadvantage industries will
always have a strong incentive to lobby
government officials. This type of rent
seeking is very costly to the economy.
The economic case for FTAs is
actually strengthened in the context
of rent seeking if the agreement is
comprehensive. Trade creation will
reduce the lobbying strength of the most
inefficient domestic firms and, hence,
their capacity to rent-seek. Moreover, if
tariff revenues are being used inefficiently
or, worse, are being diverted to the
pockets of customs officials, the creation
of an FTA, which obviously reduces tariff
14

The term rent seeking was first used by American

economist Ann Krueger for a theory developed by
economist Gordon Tullock. Tullocks theory addressed
the active creation of monopolies, with the aim of
achieving supernormal profits or market control,
in competitive conditions. See A. O. Krueger, The
Political Economy of the Rent-Seeking Society,
American Economic Review, vol. LXIV (1974), 291303.

revenue from intra-regional trade, will

have less of a fiscal impact. However,
firms may try to include protection in the
agreement itself to perpetuate protection
and rents. Complicated rules of origin are
a case in point.
Political and strategic considerations
Most existing preferential trading
arrangements were either created as
economic arrangements in support of
political goals or at least consistent with
the diplomatic strategy of the founding
countries. Economic cooperation in these
arrangements is seen as an important
vehicle for the pursuit of political goals
(which, in themselves, have important
economic ramifications). The EU has been
effective in using preferential trading
arrangements as diplomatic tools over
the past 40 years, in part out of necessity.
Commercial policy was (and still is) the
only truly unified policy at the regional
level (Messerlin 2001).
To the extent that these regional
accords add to the political stability of
the region, they do service to economic
development in general and to the goal
of policy reform in particular, even if the
arrangements have weak substance to
them. This, of course, is an important
part of the early success story of ASEAN.
Although most ASEAN countries had
only recently achieved independence
and were struggling to create nationstates (complete with many territorial
disputes), the arrangement established
an important dialogue process that
prevented overt hostilities between these
countries. To say that the (intentionally)
weak economic cooperation initiatives
in ASEAN had nothing to do with the
subsequent dynamic growth in the region
is to seriously understate its role.
However, there is also danger in
letting political goals dictate economic
agreements. If the overriding goal

part I: Economics of a free trade agreement | 17

is political, then the parties forming

an agreement will tend to make it as
restrictive as possible. This will mean that
they will include sectors that will be tradediverting and avoid liberalizing sectors
that will be trade-creating, guaranteeing
that the FTA will be inefficient. A positive
list approach to trade liberalization,
in which countries specifically offer the
commodities that they would be willing
to include in a packageas opposed to
a negative list approach, in which all
commodities are included apart from
those that are explicitly excludedis
especially vulnerable to this problem.
ASEANs original Preferential Trade
Agreement (PTA) and the South Asian
Association for Regional Cooperations
South Asian Preferential Trade Area
(SAPTA) used the positive list approach,
and accomplished very little, if anything,
in stimulating trade.
Moreover, in the more political accords,
countries signing an agreement will
list increasing intra-regional trade and
investment as the main goal. But such an
objective is political rather than economic.
If the FTA reduces transaction costs and
increases efficiency in the region, it will
be successful. But this does not necessarily
mean that it will increase intra-regional
trade and investment. For example, if
the accord brings in a great deal of FDI
from outside the region, this would serve
to improve the competitiveness of the
member countries and, hence, would
mean that the FTA is a success. But it
could very well be that the production
fragmentation associated with this FDI as
part of a global production chain could
also reduce intra-regional tradeand
certainly, given the fact that the FDI came
from outside the region, intra-regional
FDI will fall. The important thing is
that the economies have become more
competitive, trade and investment has
increased, and welfare has improved. The
nationality of trade and investment flows

is not particularly pertinent, at least from

an economic perspective.
As is the case with multilateral
liberalization, FTA negotiations produce a
complicated matrix of political interaction.
First, certain producers interests will be
pitted against those of consumer groups.
Since free trade tends to favor producers
that rely heavily on imported inputs, they
will generally back FTAs (as well as the
WTO) but, given the potential for trade
diversion, special producer interests will
attempt to reduce the scope and coverage
of the agreement. Sectoral conflict will
also take place: manufacturing industries,
for example, that have dealt with many
rounds of global trade liberalization may
well favor a given FTA, as they expect
to benefit from trade creation, that is,
expansion into partner-country markets.
However, sensitive manufactures will
resist. Also, agriculture, which has been
mainly excluded from GATT/WTO
rounds, tends to be the most complicated
sector of all because it is often the most
protected. The OECD, for example,
spends $300 billion per year protecting its
agricultural producers, which constitute
less than 5% of its workforce. Protection
is easiest to sell to the public in this sector
because of the need for a certain level
of agricultural production for national
security reasons, health issues, and the
multifunctionality of agriculture (a term
much favored by the French that suggests
the need to protect agriculture not only
for the reasons just cited but also because
of its positive effects on protecting and
beautifying the countryside).
There will also be conflicts due to firm
size. Large firms, which produce with
economies of scale, are often in favor of
FTAs as the greater efficiencies from a
larger market in an FTA will have a cost
reduction effect (Corden 1972). Small
and medium-sized producers, on the other
hand, will tend to oppose preferential
trade agreements as they anticipate being

18 | How to design, negotiate, and implement a free trade agreement in asia

vulnerable to partner competition. An

FTA that opens up the retail-food sector,
for example, will lead to a proliferation
of supermarkets and a contraction in the
number of mom and pop stores. Even
immigration groups will have a role:
trade can serve as a substitute for factor
flows, and so anti-immigration groups
tend to support FTAs (provided they do
not liberalize labor flows). This was the
case with NAFTA, which was generally
supported by anti-immigration groups in
the US.
In FTA negotiations, therefore,
governments have to negotiate not
only with their partners but also with
a complex web of domestic interests.
Compromises will have to be made across
groups within a country and across
countries in the FTA. Sometimes structural
change in the FTA can be facilitated
through a compensation mechanism
(e.g., the Trade Adjustment Assistance
program in the US): since the country is
better off with trade creation, it makes
good economic sense to compensate the
losers. However, constructing efficient,
well-targeted compensation mechanisms
can be complicated, and certain interests
will still oppose liberalization. This
complicated mix of considerations
underscores the critical importance of
establishing channels of communication
with different groups domestically
before and during negotiations, as well
as putting in place an astute, diverse
negotiating team. These topics are dealt
with in depth later in the book.

or an inward-looking one at worst? This is

the essence of the building blocs versus
stumbling blocs debate. The literature
would suggest that several possible
negative policy consequences (i.e.,
inherent stumbling bloc tendencies)
could emerge from an FTA, while other
tendencies would be consistent with
multilateral goals and market-friendly
domestic liberalization. We review the
general arguments for each side below.15

Economics of Consolidation/
Harmonization

15

Does regionalism support unilateral or

multilateral reform goals, or does the
discrimination inherent in a trade bloc
lead to a second best outcome at best,

Stumbling Blocs
Maximizing terms-of-trade gains
Regional integration increases the size of
an economic zone and, hence, increases
market power. The potential benefits of
exploiting such an advantage by imposing
an optimal tariff (i.e., maximizing the
difference between the terms-of-trade
gains from a tariff regime against its
costs in terms of efficiency) are familiar
from the international trade literature.
Moreover, FTAs and customs unions,
because of the trade-diversion effect,
improve the terms of trade of the region
relative to the rest of the world. The larger
the grouping, the larger the potential
improvement in the terms of trade.
In reality, the first effect is probably
not particularly relevant, as even customs
unions do not impose tariff regimes
according to optimum tariff rules.16
Moreover, in the case of both customs
unions and FTAs, changes in the external
tariff regime cannot on average be more
protective than the pre-integration

16

See Frankel (1997), on which some of these topics are

based.
Nor are they at the country level, as noted earlier.
While the optimum tariff argument is one of the three
classic economic arguments in favor of protection
(the others being the infant-industry argument and
strategic trade policy), it is well recognized as a
theoretical argument. Tariffs are generally
implemented for political and political-economyrelated reasons, not as a means of trying to extract
terms-of-trade gains.

part I: Economics of a free trade agreement | 19

status quo, according to Article XXIV

of the GATT/WTO. There can still be
negative sectoral effects as some areas
may see their tariffs rise, but in this case
other GATT/WTO members can sue for
compensation.
With respect to the terms-of-trade
effect, since trade diversion undeniably
results from preferential trading
arrangements, it is certainly a concern.
But trade diversion is a one-time price
effect and, hence, static. In fact, as
discussed above, it is the static cost of
preferential trading accords.
Special interests manipulating the contents
and scope of the agreement
This concern obviously also manifests
itself in domestic policy formation. This
is especially a problem in the context
of accords between developed and
developing countries, in which the former
obviously have the upper hand, as special
interests tend to be far better organized
and funded. Article XXIV of the GATT/
WTO is not particularly strict in regulating
FTAs, and with special-interest groups free
to rent-seek, the outcomes could be less
efficient. Of course, this could also have
a positive effect: for example, specialinterest groups in developed countries
no doubt push for better protection
of intellectual property rights (IPR),
competition policy, treatment of FDI, and
better trade and investment facilitation,
but these could also have important
positive effects on efficiency and policymaking in developing countries.
Waste of scarce negotiating resources
Particularly (but not exclusively) in the
case of developing countries, the scarcity
of well-trained and well-experienced
experts in trade negotiations implies an
opportunity cost of less resources being
devoted to multilateral negotiations

if all the talent is engaged in regional

deals. Critics of regionalism suggest that
such a capacity constraint can only be
detrimental to multilateral liberalization,
and even policy reform at the national
level. For example, after Viet Nam joined
ASEAN in 1995, it worked not only to
enter into AFTA but also to implement
a number of other accords, including
an extensive bilateral trade agreement
(BTA) with the US in 2001. On top of
that, it was working on ASEAN+3
initiatives. Given its human-capital
capacity constraints, this could very well
have delayed its drive to join the WTO,
which was realized only at the end of
2006.
Or perhaps not. A counterargument
would be that Viet Nam was able to ready
its economy for the WTO through the
outward-oriented policies of ASEAN, and
the BTA itself was essentially a means
of preparing Viet Nam for WTO entry,
including legal and administrative reforms
that would in any event be necessary.
The agreement is replete with references
to WTO protocols and WTO-consistent
reforms, from service liberalization
to TRIPS-plus. These negotiations
have also sharpened the expertise of
Vietnamese negotiating authorities.

Building Blocs
Locked-in policy change
Regional integration can be seen as a
blueprint for market-friendly reform
and increased competitiveness in the
international marketplace. Without
ASEAN (and eventually the BTA), one
can easily argue that Viet Nam would
not have made as much progress (and
its joining the WTO would no doubt
have been further delayed). This effect
also applies to industrialized regions.
When Greece (1981) and Spain and
Portugal (1985) joined the EU, they

20 | How to design, negotiate, and implement a free trade agreement in asia

were essentially newly industrialized

economies, each having undergone
political instability/transition only a few
years before. They each made significant
strides in modernizing their policies and
economies as a result of EU accession, and
today have significantly closed the gap
with advanced industrial economies.
Improved negotiating power for smaller units
Traditionally, the possibility of small
countries joining together and working
as one cohesive unit in trade negotiations
has always been considered an important
advantage of regionalism. This would
apply both to smaller countries as well
as to larger units. Free trade areas are
less effective in this regard relative to
customs unions, as the former do not
include a common external tariff and,
hence, divergences in interests will persist
and will make cooperation more difficult.
However, a well-developed system of
forming joint positions even in an FTA can
ensure that the whole will be greater than
the sum of its parts.
A dynamic weeding process as a first step
toward free trade
It could very well be that the process of
structural adjustment unleashed by a
regional trading arrangement through
trade creation could, in effect, facilitate
multilateral accords. As the weakest
(and, therefore, more resistant to any
international competition) are weeded
out, through an FTA or other means,
the stock of opposition to trade falls in
importance, thereby making multilateral
initiatives easier.
Perhaps a heuristic example will
illustrate the point. Suppose that the trade
policies of a country (let us call it home)
are determined by domestic firms, and
home trades with two other countries
partner (i.e., the country that will

eventually form an FTA with home) and

rest of the world. Furthermore, assume
that, in autarky, there are six industries,
with the linear cost structures of the firms
in the home country being such that two
are globally competitive (in goods A and
B), two are competitive only regionally
(in goods C and D, in a potential FTA
with partner), and two will never
be competitive with trade (in goods E
and F). Now, assume that the home
government puts to a vote whether or not
the country should move to free trade.
Firms producing A and B will vote yes, as
they will benefit from a larger market, but
the other four firms will vote against it, as
free trade will put them out of business.
We remain in an autarkic equilibrium.
But suppose now that the home country
votes on whether or not it should have an
FTA with partner. The firms producing
goods A, B, C, and D will vote in favor,
and those producing E and F, against. The
FTA will pass. Eventually, competition
from the partner country will force out
the production of goods E and F in the
home country (trade creation), and there
will be no trade diversion (as we began
in autarky). The remaining firms in the
home country will, therefore, eventually
produce only A, B, C, and D. Next, assume
that the home country votes once again
on whether or not it should have free
trade. The votes will now be two in favor
(A and B) and two against (C and D);
assuming that consumers have even a
little say would be sufficient to usher in
free trade, because of the FTA stepping
stone process.
Competitive liberalization to attract
international capital, as well as a
positive threat
Regional integration can be used as
a means of rendering the component
economies more efficient, competitive,
and market-friendly. While a grouping

part I: Economics of a free trade agreement |21

may or may not adopt global best

practices in regulatory, legal, and
other issues, it can reduce the stock of
divergences across countries, thereby
making it easier to integrate globally.
By reducing transaction costs across
countries, an FTA can enhance its
attractiveness to MNCs. As an FTA
deepens, and policy externalities thus
become increasingly important, the
incentive to internalize them through
monitoring, information sharing,
closer cooperation, etc., increases.
Because trade and financial links are
becoming increasingly important and
recognized, countries within an FTA soon
find it usefulor even necessaryto
further financial and macroeconomic
cooperation. It may also be true that
regional agreements can be used as
implicit and explicit threats, particularly
since FTAs seem to have a tendency to
grow over time.
In sum, both the stumbling bloc and
building bloc arguments have theoretical
merit. But in practice, the inclination of
the regional accord tends to be extremely
important. Clearly, if the group is being
formed to enhance inward-looking
development strategies or to isolate the
region from global competition, this initial
policy direction would set in motion many
of the problems discussed above. In fact,
this approach led to the downfall of many
regional trading agreements in the past,
especially in Latin America (e.g., the
Latin American Free Trade Area). Yet, if
outward-looking economies were to form
a regional grouping, regionalism is likely
to promote the goals of domestic policy
reform and multilateral liberalization.
These factors, among others, are
responsible:
(i) It is unlikely that a country
wishing to promote outwardlooking policies, including
extensive unilateral liberalization

and active participation in the

WTO, would contradict this stance
in favor of a regionally closed
system.
(ii) Reductions in trade barriers within
a preferential trading arrangement
make it more attractive for a
country to reduce external barriers,
in effect MFN-izing regional
concessions, because the most
important cost of regionalism, as
noted above, is trade diversion and
lower external barriers will reduce
the associated costs.
(iii) Weeding out least-competitive
industries, and making the
political economy of trade
liberalization more favorable
over time, seems to have been
important empirically.17
(iv) The membership of FTAs and
other cooperative accords tends
to expand and to become more
diverse over time, thereby
reducing regional sources of
support for protectionism in a
particular country and industry,
as well as reducing the overall
potential for trade diversion.
This has been true for the EU,
NAFTA, AFTA, the South American
Common Market (Mercosur), and
other agreements.

Inconsistencies between Agreements:

Spaghetti Bowl Effect
The boom in the number of separately
negotiated FTAs has often been blamed
for the spaghetti bowl or Asian noodle
bowl effect in the region. As mentioned
earlier, these FTAs can be quite different
from one another in coverage, depth of
liberalization, and the specific regulations
that make the accord function (e.g., the
17

Anecdotally would perhaps be more accurate, as

the empirical literature on this subject is not well
developed.

22 | How to design, negotiate, and implement a free trade agreement in asia

rules of origin discussed below). Their

inherent inconsistencies and (sometimes)
contradictions could be a real problem
in the global marketplace. A strong
advantage of the WTO framework is that
it generally, but not totally, avoids this
problem.
Complicated rules of origin (ROOs)
in FTAs are often cited as the most
obvious example of the spaghetti bowl
problem. Later in this reference we discuss
ROOs at length. Suffice it to note here
that they are necessary in FTAs to avoid
trade deflection. An example would
best illustrate the point. Suppose that
India and Malaysia were to form an FTA.
Further, assume that tariffs on television
sets are high in India but are low in
Malaysia. Once the agreement is in place,
Japanese exporters, for instance, will have
an incentive to deflect their exports
from India to Malaysia, where they will
pay a low tariff, and then reexport the
television sets to India from Malaysia to
take advantage of duty-free access. This
will lower the tariff costs for the Japanese
exporter. To avoid this possibility, any
India-Malaysia FTA should include ROOs
for products that seek to take advantage of
the FTA.
The problem is that ROOs can be used
as a protectionist technique, with high
ROOs being used as a way of protecting
domestic interests. Each FTA tends to
be unique and can choose its own ROO
regimeArticle XXIV is completely silent
on the issuebut many of them tend to
be extremely complicated, especially when
the FTA includes an OECD country. NAFTA,
for example, is a liberal FTA by most
measures, but its ROO regime is infamous:
the ROO for automobiles, for example, is
62.5% and for certain textiles, 100%.
Moreover, the diversity of these ROO
regimes is problematic. A country with
many FTAs could end up having different
ROOs for trade in a certain product for
each FTA, potentially creating confusion

but also influencing the input-sourcing

decisions of the firm in a way that could
hamper efficiency. Thailand, for example,
has FTAs with both Australia and New
Zealand. And even though Australia and
New Zealand themselves form one of the
most advanced FTAs in the world (the
Closer Economic Relations agreement),
the set of ROOs for Thailands FTA with
each is different. Hence, a Thai producer
that exports to both Australia and New
Zealand may need to have a different
production strategy for exports to each
market. That would be costly in a number
of ways to the Thai producer, which could
lose scale economies, among others.
Exactly how costly these different
ROO regimes are to any given country is
unclear. Some economists estimate the
compliance costs at 35% of the value of
exports, but others suggest that the cost
is lower. And governments can reduce the
associated costs by providing information
to exporting firms and importers. The
Singapore Government, for example, puts
out an interactive CD-ROM that provides
details to Singaporean firms regarding
the ROOs for any product and any FTA
involving Singapore.
What is clear is that the spaghetti
bowl effectin terms of ROOs or
other aspects of FTAs that tend to be
inconsistent between countriesdoes
have at least some economic cost.
Greater harmonization of policies in
these agreements, in ways that would be
more consistent with economic efficiency
(best practices), would obviously be
advantageous, particularly as the number
of FTAs in the region continues to grow.
We consider a set of best practices in the
next section.

Enhancing Consistency in Agreements:

Best Practices
One way to avoid inconsistency
associated with the spaghetti bowl

part I: Economics of a free trade agreement |23

effect would be to have rules that govern

FTAs. Article XXIV does have some
general rules, but they are extremely
general and have proven very difficult
to tighten. At the Doha Development
Agenda negotiations, for example, the
problem of the growing number of FTAs
was evident, but, even with a successful
outcome, any improvement in FTA
rules is likely to relate only to greater
transparency. It would be useful to define
a set of rules that would minimize the
negative effects of FTAs and maximize
the positive effects. This is especially
important in the light of the FTA
movement in Asia, where policies, rather
than being inward-looking, are directed
more toward efficiency goals. We might
call such rules best practices of FTAs.
Below are 10 major areas that might be
considered in this regard:18
(i) Product coverage: Goods.
Comprehensive coverage is best, to be
included within a reasonable period
of time (defined as 10 years by the
GATT/WTO). Article XXIV of the
GATT/WTO stipulates that, in
an FTA or customs agreement,
product coverage should include
substantially all goods. But the
exclusion of individual products
can be problematic on efficiency
grounds, particularly when it
involves products that are used
as inputs in the production chain.
Thus, to the greatest extent
possible, the FTA should include
all goods. Some will no doubt be
excluded either temporarily or
permanently, but such exemptions
should be as few as possible
and should take into account
the important effects that they
might have on the effective rate
18

These best practices were developed by ADB; see

Plummer (forthcoming 2007) for details.

of protection, as well as on trade

diversion.
(ii) Product coverage: Services. Again,
comprehensive coverage and a reasonable
time period for implementation are
best from an economic perspective,
and transparency is important in
some areas. Services present some
special and important challenges.
Certain services are fairly easy
to liberalize, e.g., in terms of
allowing for the movement of
professional persons, touristrelated services, and even hightech/knowledge-based services.
Others are extremely difficult.
Educational services tend to
be highly protected. Financial
services are often the most difficult
to include in any liberalization
package. Still, the gains from trade
in services are no less than those
from trade in goods, and yet there
has been far greater attention
to the latter in multilateral
agreements and most FTAs.
(iii) Rules of origin. Rules of origin
should be as low as possible as well as
symmetrical. As noted above, abuses
of ROOs in FTAs are problematic.
Stringent rules could have
important trade-diversion and
investment-diversion effects, with
a potentially high cost to nonpartners and greater inefficiencies
in partner countries. To avoid this,
generous and consistent ROOs are
of the essence.
(iv) Customs procedures. To the greatest
extent possible, customs procedures should
follow global best practices and GATT/
WTO-consistent protocols. Customs
and related procedures are at the
heart of trade facilitation, a key
priority in the Doha Development
Agenda. They are obviously
closely related to ROOs, as one
of the key challenges of customs

24 | How to design, negotiate, and implement a free trade agreement in asia

officials is to clear countries

of origin of imports. Regional
trading agreements can be used as
instruments to modernize customs
laws, regulations, administrative
guidelines, and procedures.
(v) Intellectual property protection. IPR
guidelines should be nondiscriminatory
and consistent with TRIPS, TRIPS Plus,
and related international conventions.
As will be noted later in this
reference book, the protection of
IPR is one of the most sensitive
issues in negotiating FTAs.
Developed countries, having a
strong comparative advantage
in IPR-intensive products, want
to make sure that IPR is taken
seriously both de facto and
de jure. Developing countries
often criticize the IPR stance of
developed countries as being
too severe and too favorable to
innovators, e.g., granting patent
monopolies for an exaggerated
length of time, or being too
insensitive in areas such as
pharmaceuticals. On the other
hand, it may be that stronger,
more serious IPR protection
can actually be positive for the
development of a countrys own
innovative and artistic sectors,
besides promoting more FDI and
technology transfer.
(vi) Foreign direct investment.
Investment-related provisions should
embrace national treatment and
nondiscrimination, shun performance
requirements, have a highly inclusive
negative list, and provide the usual
protection to foreign investors. In
particular, national treatment
is critical in this regard, as it
has important implications
for creating a competitive
environment and a level playing
field.

(vii) Antidumping procedures.

Antidumping procedures and dispute
resolution need to be transparent and
fair, and the process needs to be well
specified and effective. Antidumping
and countervailing duties, also
known as administrative actions,
were discussed briefly above. They
may or may not be stipulated
directly in an agreement;
sometimes, the references may be
exclusively directed to the WTO
dispute resolution. Antidumping
clauses in an FTA might be used
to tighten antidumping evaluation
procedures, promote transparency,
and expedite processes. But it
is also important that dispute
settlement procedures are
clearly identified and respected.
Otherwise, confusion can follow.
(viii) Government procurement.
Government procurement should
be as open and nondiscriminatory,
and procedures as clear and open,
as possible. The size of the state
sector varies across the region
and internationally, but in
most countries government
procurement is a significant
sector. There is a WTO Agreement
on Government Procurement, but
not all WTO member countries
are signatories.19 Moreover, the
rules on market access in this
agreement are relatively limited.
The chapters on government
procurement in the deeper
FTAs tend to go much further.
Best practices would require
that the arrangement produce
a transparent, open, and
nondiscriminatory regime that
grants national treatment as much
as possible to partner countries,
19

In this sense this World Trade Organization (WTO)

agreement is sometimes referred to as a voluntary or
plurilateral agreement.

part I: Economics of a free trade agreement |25

with an excluded (negative)

list as short as feasible and the
threshold-bid level as low as
practical.
(ix) Competition. Policies related to
competition should create a level
playing field for both locals and
partners, and they should not put nonpartner competition at a disadvantage.
Many countries in Asia do not
have a competition policy per
se. But trade and investment
liberalization is affected by
industrial organization at the
domestic level, and this becomes
an especially important area in
countries having active stateowned enterprises. Hence,
it follows that deep FTAs
should have basic rules and
procedures designed to prevent
anticompetitive behavior from
state-owned enterprises, quasistate firms, privately owned
domestic monopolies/oligopolies,
and the like, that would give them
a competitive edge over foreign
competition.
(x) Technical barriers to trade. These
should be kept to a minimum and
harmonized in a nondiscriminatory way,
with clear and transparent mechanisms
for determining standards. The WTO
Agreement on Technical Barriers
to Trade (TBT) attempts to
ensure that technical negotiations
and standards, as well as testing
and certification procedures, do
not create unnecessary obstacles
to trade. TBT takes on particular
significance at the global level,
as many of its aspects, including
harmonization of standards,
mutual recognition, definition
of legitimate means of protecting
animal and plant life and the
environment, should have global
rules of conduct. International

standards, however, are bound to

be general; FTAs, as they involve
only a few or several countries,
can potentially achieve far
deeper means of integration and
progress in this area. What would
be critical for efficiency and
outward orientation, therefore,
would be TBT clauses based on
international standards, having
high levels of transparency,
embracing best practices, and
eschewing discrimination against
outsiders as much as possible.
In sum, by adopting best practices,
FTAs can generate significant gains in
economic efficiency, well beyond the
effects of traditional FTAs and, arguably,
beyond what any realistic multilateral
approach could possibly hope to generate.

Summary
Trade policy is complicated. While
economic theory strongly supports
free trade and outward-oriented trade
agreements, trade policy is decidedly
in the political realm and, hence,
economic arguments constitute only
onealbeit essentialdimension of
trade negotiations. Still, it is important
that negotiators are aware of the
economic benefits of liberalization and
the economic costs to an economy of
inward-looking policies. Rarely is the
most efficient outcome forthcoming from
any multilateral, regional, or bilateral
negotiation. The trick is to maximize
the efficient aspects of any given accord
and minimize any potential negative
implications.
This assessment of the costs and benefits
of trade liberalization, at the global and
bilateral/regional levels, was the main
objective of Part I, which also considered

26 | How to design, negotiate, and implement a free trade agreement in asia

political determinants of trade policy.

Moreover, given that Asian economies
have explicitly expressed their desire for
FTAs to be outward-looking rather than
inward-looking, we considered rules of

thumb that would be useful in creating

such arrangements (or, perhaps, merging
them in the future). In Parts II and III, we
focus specifically on component parts of
FTAs and practical issues.

part I: Economics of a free trade agreement |27

Appendix to Part I:Application of a Computable

General Equilibrium Model to FTAs

rade models have become

increasingly useful tools for
analyzing the economic impact
of trade agreements in recent years.
Advances in theory, analytical techniques,
and data processing power of computers
have enabled analysts to assess the impact
of trade agreements in quantitative terms
and compare the effects under different
scenarios. For instance, an estimate of the
impact of the Doha Round shows global
gains of $68.6 billion to $155.2 billion by
2025 (ADB 2006). Another estimate shows
that full liberalization of merchandise
trade would result in a $291 billion to
$518 billion increase in world income by
2015 (World Bank 2004). Meanwhile,
bilateral free trade agreements (FTAs) like
the Japan-Singapore Economic Partnership
Agreement have been estimated to
increase the income of Japan by $6.9
billion and that of Singapore by $0.4
billion (Hertel et al. 2001). Given the wide
range of estimates and possible impact
on developing member countries, it is
important to gain a basic understanding
of the simulation models being used and
their strengths and weaknesses.
As noted in Box 1.4 above, the most
common trade model is the global
computable general equilibrium (CGE)
model. The CGE model is based on
the concept of a general equilibrium,
where supply equals demand in each
market in the economy. The chart below
presents an overview of the elements of
a typical CGE model and shows the links
between markets. To achieve market
equilibrium, prices are assumed to adjust
until demand for factors of production
equals available endowments, consumers

have chosen the desired basket of goods

given their incomes, and firms have
chosen production levels that maximize
their profits. Because an FTA introduces
a set of policy changes in an economy,
CGE models simulate an economy
where markets have adjusted and a new
equilibrium has been reached.The effect
of an FTA can be estimated by comparing
incomes under the old equilibrium with
those under the new equilibrium.
The attraction of a CGE model is that
it arrives at a numerically exact answer
(in the form of a change in income)
while ensuring theoretically consistent
results. A CGE model identifies the
sources of income gains or losses from
further opening up to trade and shows
how these gains or losses are distributed
across countries or regions. Hence,
CGE simulations can be used in FTA
negotiations to highlight, for example,
the sectoral and production effects of
some of the FTA provisions that could
hurt vulnerable groups in an economy.
This would give a good idea of how the
government should target any assistance
designed to facilitate restructuring
and compensate the losers. Multiple
simulations can also be undertaken to
work out alternative scenarios that might
turn national income losses from an FTA
into gains. Because of the multiplicity of
links in an economy, a simple diagram
may not show all the effects of an FTA,
whereas CGE and other computer-based
models allow systematic tracking of all
the interactions.
The CGE models used in empirical
studies vary somewhat in their underlying
economic structure, behavior of agents,

28 | How to design, negotiate, and implement a free trade agreement in asia

and focus. Box 1.4 presents different

types of CGE models and their uses. With
a CGE model, simulation exercises can
be conducted to evaluate the welfare
gains under different FTA scenarios. The
primary focus of such policy scenarios is
the removal of price distortions against
imports that arise from trade barriers and
other sources. An example of such an
approach might best illustrate the point.
A CGE model was used to evaluate gains
from the following Asian FTA scenarios:
(i) Fragmented scenario: a
continuation of the current wave
of bilateralism, where the region
is fragmented by several bilateral
or small regional FTAs;
(ii) ASEAN+3 FTA scenario: free trade
among Association of Southeast
Asian Nations (ASEAN) countries,
the PRC (including Hong Kong,
China), Japan, and the Republic
of Korea;

(iii) Asia Pacific Economic Cooperation

(APEC) FTA scenario: free trade
among APEC members; and
(iv) Global trade liberalization scenario:
complete abolition of import
tariffs and export subsidies.
The economic impact of these FTA
scenarios was estimated with the use
of ADBs General Equilibrium Model
for Asian Trade (GEMAT) (see Box 1.4
above). The results for gross domestic
product (GDP) and welfare with
equivalent variation for the four policy
scenarios are given in the table below.
Expectedly, a fragmented reality of
multiple bilateral and regional FTAs is
the least attractive for all regions and
countries. Among others, this scenario
may give rise to the famous Asian
noodle bowl effect, which refers to the
higher transaction cost from multiple
ROOs and standards in the growing
number of FTAs in East Asia.

Elements of a CGE Model:

The Circular Flow in an Open Economy

Savings

International Sector
Investment
Consumption
Goods and Services

Households

Capital Goods

Factor Services of Production

Factor Incomes
CGE = computable general equilibrium.
Source: Plummer and Wignaraja (2006); Kawai and Wignaraja (2007)

Firms

part I: Economics of a free trade agreement |29

Impact of Four FTA Scenarios, Change in Real Income (Equivalent Variation)

Region/
Country

Fragmented
Scenario

ASEAN+3FTA
Scenario

APEC FTA
Scenario

Global Free
Trade Scenario

In $ million (2001 prices)

Northeast Asia

(1,219)

21,724

ASEAN

8,869

56,734

72,944

10,375

8,341

11,319

(101)

(425)

(1,560)

4,288

US

(1,371)

(2,362)

12,035

22,884

Europe

(1,021)

(904)

(3,047)

25,325

(555)

(464)

280

14,861

74,689

153,718

Rest of Asia

Rest of the World

World

4,401

27,546

Northeast Asia

(0.02)

0.37

0.96

1.23

ASEAN

1.72

2.02

1.62

2.20

In % of GDP

Rest of Asia

(0.01)

(0.06)

(0.22)

0.61

US

(0.01)

(0.02)

0.12

0.24

Europe

(0.01)

(0.01)

(0.04)

0.30

Rest of the World

(0.01)

(0.01)

0.01

0.34

World

0.01

0.09

0.25

0.51

APEC = Asia Pacific Economic Cooperation, ASEAN = Association of Southeast Asian Nations, FTA = free-trade agreement,
GDP = gross domestic product, US = United States of America. Source: ADB staff simulations.

Under the ASEAN+3 scenario, the

welfare of members increases, with
Northeast Asian GDP increasing by
0.37% and ASEAN GDP by 2.02%,
while nonmembers (the rest of Asia, US,
Europe, and the rest of the world) incur
modest losses. An APEC FTA brings gains
to Northeast Asia and the US but less
gains to ASEAN than under a fragmented
scenario. The rest of Asia and Europe,
which would be excluded from an APEC
FTA, also lose relative to the first scenario.
Global free trade is the most attractive but
unrealistic scenario since even the Doha
Development Agenda process, which
does not aspire to global free trade, has
been beset by uncertainties regarding
the timing and depth of multilateral
agreements needed to reduce trade
barriers (see Plummer and Wignaraja
[2006] for an analysis of the impact of
the different scenarios on East Asian
economies).

While trade models like the CGE

model are useful in quantifying
the impact of FTAs, the drawbacks
include their reliance on the quality of
information fed into the model and on
the assumptions used in simulations.
Data may not always be of high quality
and could be missing, links between
markets in the economy may not always
be accurately specified, and different
scenarios and model specifications
can mean different results. Moreover,
existing CGE modeling frameworks
do not include many aspects of trade
agreementsbarriers to services,
competition policies, investment rules,
and other nontariff measures (e.g.,
sanitary and phytosanitary standards
and technical barriers to trade), which
are likely to afford more protection
for domestic industries than tariffs.
Accordingly, the impact of these issues is
not reflected in the simulation results.

30 | How to design, negotiate, and implement a free trade agreement in asia

CGE models are best used in

conjunction with other empirical tools
notably analysis of the complex structure
of FTAs, econometric methods, country
or case studies, and policy analysis. For
example, Gilbert et al. (2004) used both
the CGE model and a gravity model to
analyze regional trade agreements in
Asia. A gravity model seeks to explain
the pattern of bilateral trade and its
evolution over time in terms of certain
fundamental variables. While a CGE
model can show the effect of an FTA

in the future, a gravity model shows

the historical pattern of trade. The
findings from a CGE model could also
be supported by country or case studies
to highlight the possible microeconomic
impact of FTAs not accounted for by the
models. Nonetheless, the results of CGE
simulations are useful in giving a sense
of the order of magnitude that a change
in policy can mean for economic welfare.
Hence, CGE models are complements, not
substitutes, for a thorough policy analysis
of FTAs.

Part II:

Coverage of a Free
Trade Agreement
Trade in Goods

nder the WTO rules, a member may enter into a trade

arrangement20 with one or more other members under
which they grant more favorable access to exports from
one another than to exports from other WTO members. As
discussed in Part I, the basic rules governing this exception to
the WTOs MFN clause, or nondiscriminatory treatment for
trade in goods, are found in the GATT Article XXIV. Under this
article, a free trade agreement (FTA) binds a group of two or
more concurring countries21 to eliminate tariffs and other trade
barriers on substantially all the trade between them in products
originating in any of the member countries, within a reasonable
length of time.
Certain terms of Article XXIV are supplemented by the
Understanding on the Interpretation of Article XXIV of GATT
1994 (hereafter, Understanding), which was endorsed as part
of the Uruguay Round agreements. The Understanding, however,
is more specific on some significant points. For instance, where
Article XXIV indicates that tariffs should be eliminated within a
reasonable length of time, the Understanding is more explicit,
stating that an agreement allowing more than 10 years would
require a full explanation to the Council for Trade in Goods of
the need for a longer period. The Understanding is also more
specific on the criteria and procedures for the required review
of new or enlarged free-trade areas by the Council for Trade in
Goods. For developing countries, the 1979 Decision on Differential
20

21

The WTO often uses the term regional to refer to FTAs and other integration
arrangements even when the members involved are not part of the same region and
are far apart geographically, as in the Republic of KoreaChile and US-Australia FTAs.
Article XXIV refers to customs territoriesterritories with their own schedule of
tariffs and other trade regulations. Thus, customs territories are usually countries.
However, a country may have two or more distinct customs territories, as in the case of
the PRC and Hong Kong, China.

32 | How to design, negotiate, and implement a free trade agreement in asia

and More Favorable Treatment,

Reciprocity and Fuller Participation
of Developing Countries (hereafter,
Enabling Clause)22 gives these countries
more leeway in the time allowed for
complying with the GATT requirements,
including Article XXIV, and generally takes
a more lenient stand on the review of
FTAs between such countries.
Provisions on trade in goods form
the heart of an FTA, and the mutual
desire to expand exports underlies every
agreement. An FTA is a way for likeminded countries to reap the benefits
of openness at a faster rate than is
sustainable for the WTO, with its much
larger and more diverse membership.
From the point of view of beneficial
expansion of trade in goods, potential
partners may be compatible in several
ways. First, they may have significant
differences in comparative advantage,
usually indicated by internal relative
prices. The Republic of KoreaChile FTA
illustrates (see Case Study 2.1) such
a pairing, with the Republic of Korea
enjoying strong comparative advantage in
manufacturing and Chile enjoying strong
comparative advantage in agricultural
products. Moreover, each country is
highly competitive in these sectors at the
global level, suggesting that losses due
to trade diversion will be small relative
to trade creation. But potential partners
may also be compatible because one or
both need access to a larger integrated
market to benefit from scale economies
in production or increased competition.
In this case the dynamic gains may
be important even if significant trade
diversion implies losses in terms of the
static effects.
The formation of an FTA may reduce
the welfare of excluded trading partners,
especially if significant trade diversion
results, i.e., if tariff-free imports from
partners replace lower-cost goods still
22

As part of the Tokyo Round agreements.

Box 2.1: WTO Disciplines in

Trade-in-Goods Provisions
Aside from compliance with the minimum requirements
of the exception to the most-favored nation (MFN)
clause, most free trade agreeents (FTAs) also adopt or
draw reference to WTO principles and disciplines. A
number of Asian FTAs have the following provisions:
National Treatment
Each Party shall accord national treatment to the
goods of the other Party in accordance with Article III
of the GATT 1994 and to this end Article III of the GATT
is incorporated into and made part of this Agreement.
The national-treatment clause affords no less favorable
treatment of the goods of the other Party than the most
favorable treatment the Party accords to its own goods.
Import and Export Restrictions
Each Party shall not institute or maintain any
prohibition or restriction other than customs duties on
the importation of any good of the other Party or on the
exportation or sale for export of any good destined for
the other Party, which is inconsistent with its obligations
under Article XI of the GATT 1994 and its relevant
provisions under the WTO Agreement. [emphasis
supplied]
Nontariff Measures
Each party shall not introduce or maintain any
nontariff measures on the importation of any good
of the other Party or on the exportation or sale for
export of any good destined for the other Party which
are inconsistent with its obligations under the WTO
Agreement. [emphasis supplied]
Source: Legal text of various FTAs.

subject to tariffs. But, as elaborated in Part

I, trade diversion also implies a terms-oftrade loss to the importing country. This
constitutes an important incentive for
Asian countries to adopt best practices
in FTA, as discussed at length above. That
is, FTAs should seek to minimize trade
diversion and maximize the potential
gains from FTAs in terms of trade creation
and various dynamic effects. In addition,
FTAs should be inclusive. For example,
APEC (2004) stresses that: Consistent
with Asia Pacific Economic Cooperations
(APEC) philosophy of open regionalism
and as a way to contribute to the

part ii: coverage of a free Trade agreement |33

Case Study 2.1: Republic of KoreaChile Free Trade Agreement

In the mid-1980s, the United States began to
negotiate free trade agreements (FTAs) with
economically or geopolitically significant partners
including Canada and Israel. However, Asian countries
remained on the sidelines, with the most important
countries refraining entirely from participation in
FTAs until after the Asian financial crisis.a While the
crisis itself had underscored the need for cooperation
among the interconnected East Asian economies,
two other developments around the same time were
arguably more important. First, as FTAs proliferated,
excluded Asian exporters found themselves at a
disadvantage relative to other suppliers not subject
to the same trade barriers. This created a strong
incentive to form FTAs for defensive purposes. A
second concern was the Peoples Republic of Chinas
(PRC) rapid integration into world markets, which
translated into strong competition for established
export markets. By negotiating FTAs that excluded
the PRC, other Asian countries hoped to gain a market
advantage over their powerful new competitor.
In 1998, the Republic of Korea made plans to
negotiate its first FTA, which was also the first
trans-Pacific FTA. It chose Chile as its partner, even
though the PRC, Japan, and the United States were
each far more important in its trade. Two factors
may have influenced the choice. First, while small,
Chile had already succeeded in negotiating FTAs
with several other countries. More importantly, the
economy of Chile, whose exports were concentrated
in agricultural products and minerals, was
complementary with that of the Republic of Korea,
an exporter of manufactured goods. This meant that
reciprocal liberalization would most likely expand
trade along the lines of comparative advantage, with
minimal impact on protected domestic producers.
Yet each partner had sensitive sectors that were
exempted from liberalization. The Republic of Korea
gained immediate tariff-free access for automobile
exports to Chile while maintaining protection for
some agricultural products that competed with
products from Chile (apples, pears, rice). Similarly,
Chile gained greater access to its partners market
for other agricultural exports, i.e., ones with little
impact on farmers in the Republic of Korea, while
maintaining tariffs protecting the local manufacture
of washing machines and refrigerators.
The Republic of KoreaChile FTA was completed
in October 2002, was formally signed in February
a

The ASEAN Free Trade Area (AFTA) agreement, signed in 1992,

expressed the intention of ASEAN members to establish a free
trade area by 2008. The agreement, very brief by the standards
of later FTAs, has since been amended to accommodate new
ASEAN members and to expedite the integration of the original
signatories.

2003, and entered into force on 1 April 2004. The

agreement covers trade in goods, investment, trade
in services, competition, government procurement,
intellectual property rights, administrative issues,
and dispute settlement.
For trade in goods, some tariffs were eliminated
immediately (e.g., in Chile for exports of autos,
mobile phones, and computers from the Republic of
Korea), while most concessions were to be phased
in over as much as 13 years in the case of Chiles
imports of textiles and clothing. The Republic of
Korea likewise eliminated some restrictions on
Chiles exports of agricultural products immediately,
but was to phase in other tariff concessions over
a period of up to 16 years. Besides eliminating
tariffs on most goods, the agreement also called for
eliminating quantitative restrictions not covered by
the General Agreement on Tariffs and Trade (GATT)
Article XI, as well as import licensing and other
nontariff barriers. Some sensitive goods were
exempted on each sideas noted above,
refrigerators and washing machines for Chile and
apples, pears, and rice for the Republic of Korea.
Under the agreement, global safeguards applied
must conform to Article XIX of the General Agreement
on Tarrifs and Trade (GATT) and the World Trade
Organization (WTO) Agreement on Safeguards. Special
safeguards may be applied to agricultural products;
if no other mutually acceptable solution is reached,
safeguard measures include stopping the reduction
in the preferential tariff reduction or increasing the
tariff up to the most-favored nation (MFN) rate. This
implies that other types of special safeguards, e.g., a
price floor or quantitative restrictions, can be applied
if both parties agree to the measure. Antidumping
and countervailing duty actions must conform
to Article VI of the GATT, the WTO Agreement on
Antidumping, and the WTO Agreement on Subsidies
and Countervailing Measures.
Provisions on sanitary and phytosanitary (SPS)
measures and on product standards build on the
corresponding parts of the WTO Agreement, i.e.,
such regulations should not constitute disguised
protection, should be based on scientific principles,
and should be applied in a way that does not
discriminate among suppliers. However, the SPS
Agreement goes further, requiring each partner to
accept the procedures and standards of the other if
those can be shown to achieve the required level of
SPS protection. Both parties should base
their own product standards on existing
international standards unless these can be shown
to be ineffective or inappropriate in achieving the
countrys legitimate objectives.
continued on next page...

34 | How to design, negotiate, and implement a free trade agreement in asia

Case Study 2.1 continued.

Case Study 2.1: Republic of KoreaChile Free Trade Agreement

The FTA established a free trade committee to
monitor and evaluate the effects of the agreement.
The agreement sets out procedures for dispute
settlement but defers to WTO dispute-resolution
procedures regarding safeguard, antidumping, and
countervailing duty actions taken under the GATT
provisions governing their use.
Although expanding trade in goods by reducing
applicable tariff rates was the paramount concern of
negotiators on both sides, the FTA also put in place

measures to stimulate investment by each party in

the other country and to expand trade in services.
Other parts of the agreement deal with government
procurement, intellectual property rights, and rules of
origin. Preferential rules of origin are based on those
used in previous FTAs, including the North American
Free Trade Agreement (NAFTA) and the FTA between
the European Union (EU) and Chile. The Republic of
KoreaChile FTA calls for a single form, in English, to
establish compliance with rules of origin.

Source: KoreaChile Free Trade Agreement; Chung (2003).

momentum for liberalization throughout

the APEC region, best-practice FTAs
are open to the possibility of accession
of third parties on negotiated terms and
conditions.23
A typical trade-in-goods agreement
in FTAs primarily provides for tariff and
customs duty reduction and elimination,
basic principles (including transparency,
national treatment, and some reference
to WTO disciplines) (see Box 2.1),
nontariff and other measures (sanitary
and phytosanitary, safeguards, emergency
measures), rules of origin, customs
procedures, general exceptions, and
institutional arrangements.

Under Article XXIV, tariffs must

be eliminated on substantially all
traded goods. While the meaning of
substantially all has yet to be clearly
spelled out,24 in practice FTAs usually
cover all but a few items (even though
in practice this has not always been the
case25). The Understanding notes that
the value of an FTA is diminished if any
major sector of trade is excluded, and
APEC best-practice guidelines call for
liberalization in all sectors.
FTA concessions on trade in goods
include either reduction or elimination of
tariffs through (i) immediate elimination26
24

Tariff Elimination and Reduction

In general, the provisions of an FTA must
indicate which goods will be included
for elimination and reduction of tariffs
as well as those to be excluded (i.e.,
sensitive products) from liberalization. It
also must decide whether or not certain
commodities should receive a longer
phase-in period (and, in some cases,
whether or not special and differential
treatment will be granted to certain
member states).
23

Asia Pacific Economic Cooperation (APEC). 2004. Best

Practice for FTAs/FTAs in APEC. 16th APEC Ministerial
Meeting, Santiago, Chile, 1718 November.

The interpretation of that expression has remained

contentious. Two approaches, not mutually exclusive,
are typical in that respect:
The quantitative approach favors the definition of a
statistical benchmark, such as a certain percentage
of the trade between regional trade agreement (RTA)
parties, to indicate that the coverage of a given RTA
fulfills the requirement.
The qualitative approach sees the requirement as
meaning that no sector (or at least no major sector)
is to be kept out of intra-RTA trade liberalization.
This approach is aimed at preventing the exclusion
from RTA liberalization of any sector where the
restrictive policies in place before the formation of
the RTA hindered trade, as could well be the case
if a quantitative approach were used (see WTO
Compendium of Issues Related to RTAs).
25
For example, the European CommunityEuropean Free
Trade Agreeent(EC-EFTA) FTA and the EC-Israel FTA
accord included only manufactured goods.
26
Even before the FTA negotiations are concluded, some
countries already provide and implement immediate
tariff reduction or partial tariff reduction in the form
of early harvest schemes for selected products.

part ii: coverage of a free Trade agreement |35

upon the FTAs entry into force;

(ii) gradual and straight-line reduction
or elimination thereof; (iii) substantial
elimination in the first year, followed
by gradual elimination or reduction
(particularly for sensitive products); or
(iv) an initial grace period of several years,
followed by elimination of tariffs.27
In most FTAs entered into by the
member countries of the ASEAN, tariff
elimination follows certain modalities like
the normal- and sensitive-track approach.
In the case of the Asia Pacific Trade
Agreement (APTA), tariff concessions may
be negotiated (i) product by product,
(ii) across the board, or (iii) for each
sector. Concurrently, special concessions
may be further granted to least-developed
countries (LDCs) participating in the
preferential arrangements (with respect to
phasing or tariff elimination schedule and
rates). Under the bilateral FTA between
Thailand and New Zealand, some goods
were freed when the FTA took effect,
while other tariffs are to be eliminated
either through progressive reduction or
through immediate zeroing after a period
in which duties are kept constant.
Product coverage
Success in negotiation requires each
partner to be prepared to accept increased
imports of many types of goods. Thus,
from the standpoint of the negotiation,
success is most likely when the partners
do not hope to expand exports in the
same industries, i.e., when the partners
differ in comparative advantage products,
giving rise to trade patterns such as
the exchange of manufactured goods
for agricultural products (interindustry
trade), as in the case of the Republic of
Korea and Chile. However, trade between
two partners may expand even if their
exports fall in the same broad category as
27

See METI (2007) and Lee et al. (2006).

long as the partners specialize in different

segments of that category, as in the
exchange of small gas-efficient vehicles
for luxury high-performance vehicles
(intra-industry trade). Intra-industry
trade may also occur at successive stages
of the value chain, as in the exchange of
computer disk drives or semiconductors
for assembled computers.
Although exceptions to free trade or
slower phase-in for tariff cuts may help
overcome political opposition to an
agreement that is beneficial overall, these
tactics should be used sparingly. Cutting
or eliminating tariffs on some goods at
a faster rate may actually raise rather
than reduce the amount of protection
enjoyed by a domestic industry (effective
protection of a productive activity28).
For example, reducing the tariff on cotton
cloth more slowly than the tariff on raw
cotton will increase the protection of
cotton cloth production during the phasein period. To the extent that the goal of
the FTA is to increase exposure to world
market forces at a manageable rate,
the effect is exactly the opposite of the
policys goal. However, GATT Article XXIV
does not require tariff elimination on the
date when the agreement takes effect,
and most agreements allow tariffs and
other barriers to be eliminated in stages.
In such a case, the provisions of the
agreement must specify the schedule for
tariff reductions. Policy makers, therefore,
need to be aware of this phase-in problem
28

The effective rate of protection (ERP) measures the

extent to which the overall structure of protection on
goods raises the value added of a specific industrial
activity relative to free trade. The ERP rises with the
tariff rate on the activitys output but falls with the
tariff rate on the activitys purchased intermediate
inputs. If inputs are used in fixed proportions, the ERP
for the activity that produces good j expressed as a
fraction of value added under free trade is given by:
(VT VFT) / VFT = ( tj aijti) / ( 1 aij),
where VT and VFT are value-added in production of
good j under the current tariff structure and under
free trade, the a--s are the shares of each input i in
the total cost of producing good j, and the ts are the
tariff rates on each good.

36 | How to design, negotiate, and implement a free trade agreement in asia

and the potential (short-run) distortions

in productive incentives.
Phase-in period
As noted above, the time allowed for
phasing in often differs across product
groups, with extra time allowed for
sensitive products that are not excluded
from preferential treatment. In the
Republic of KoreaChile FTA, some tariffs
were eliminated immediately, while a
phase-in period of up to 16 years was
allowed for a few sensitive products.
The NAFTA included phase-in times of
up to 15 years. Such delays would be
the exception in principle, given the
1994 Understanding, which insists on
a 10-year maximum except in special
cases. Under the US-Singapore FTA, each
party eliminated customs duties on all
originating goods of the other party when
the agreement entered into force, but
will reduce the customs duties on some
products under the US tariff lines over 4,
8, or 10 years, depending on the product.
The Enabling Clause allows an even
longer phase-in period for FTA members
classified as developing countries. The
AFTA, as well as the ASEAN-plus FTAs
with the PRC and the Republic of Korea
(which were notified, or are to be
notified, under the Enabling Clause),
classifies the tariff items according to
their sensitivities under the normal- and
sensitive-track approaches. Under the
normal-track approach, some tariffs are
eliminated when the agreement takes
effect and some others are eliminated
within specified time frames. Under the
sensitive track, on the other hand, items
protected or exempted by the member
countries are classified into sensitive or
highly sensitive lists. In the New Zealand
Thailand Closer Economic Partnership
Agreement (New ZealandThailand
CEPA), no overall implementation period
is explicitly provided, but the schedule

of tariff elimination is up to 20 years for

Thailand and 10 years for New Zealand.
Members should keep in mind that a
longer phase-in period means a longer
wait until the full benefits of the FTA can
be achieved, and, of course, differences in
phase-in rates across goods may lead
to inappropriate increases in some
effective protection rates. Like the case of
Thailands FTAs with Australia and New
Zealand, the FTAs may provide further
that the elimination of customs duties may
be accelerated unilaterally or as a result of
consultations requested by either party, to
provide flexibility in the tariff concessions
of the FTA.
The Harmonized System
Since each country is likely to trade
hundreds or even thousands of different
products, negotiations on tariff
elimination typically identify goods
according to the Harmonized Commodity
Description and Coding System, usually
called the Harmonized System (HS). This
is an internationally standardized method
of classification developed by the World
Customs Organization (WCO).29 Broad
categories of goods are first divided into
sections, then into 97 chapters denoted by
two digits, and then subheadings denoted
by four or six digits. For example, Section
II (vegetable products) covers Chapters 6
14. Chapter 10 (cereals) is further divided
into four-digit subheadings that include
10.06 (rice) and then into four separate
six-digit subheadings that include 1006.20
(husked rice). Some countries expand this
system to eight or more digits. However,
differences in treatment of goods within a
given broad category should be kept to a
minimum to prevent inefficiencies due to
the diversion of trade across subcategories
or increases in effective protection rates.
29

www.wcoomd.org/ie/en/topics_issues/
harmonizedsystem/DocumentDB/
TABLE%20OF%20CONTENTS.html

part ii: coverage of a free Trade agreement |37

Positive-list or negative-list approach

A positive-list approach to trade in goods
enumerates specific tariff items to be
included in the liberalization schedule,
while a negative-list approach identifies
selected tariff items to be excluded from
negotiations for preferential tariffs. Most
FTAs between developed and developing
countries adopt a positive-list approach.
For instance, the New ZealandThailand
CEPA takes a positive-list approach. Tariff
elimination schedules are then set item
by item. However, since an FTA must
cover substantially all trade, it is more
convenient, though not popular, to use the
negative-list approach.
Which tariff rates?
Preferential tariffs are negotiated from
certain base rates, which usually are
the MFN tariff rates of the negotiating
parties. A procedural question regarding
tariff rates in negotiations relates to
whether negotiations should take as a
starting point the current applied rates
or the often higher bound rates of the
participating countries (assuming the
country does indeed bind its tariffs).30
In order For real liberalization to begin
as soon as the agreement takes effect,
current applied rates are the appropriate
starting point. But where current applied
rates are already very low, negotiations
could focus on binding rates at similarly
low levels. Singapore began negotiating
the US-Singapore FTA with applied tariffs
of zero on most of its imports but agreed
to reduce bound rates to zero as well.
Another potential area of confusion
is whether a countrys rates are applied
30

Applied rates are those currently in use, while bound

rates are the maximum rates to which WTO members
have committed themselves in accession agreements
or multilateral negotiations. Thus, countries may
raise their applied rates unilaterally without violating
their WTO obligations if bound rates are higher than
applied rates.

to the free on board (FOB) value of

imports or, as is more usual, to the cost,
insurance, and freight (CIF) value. In
the latter case, an ad valorem tariff rate
is applied to the value of insurance and
transportation costs, as well as to the cost
of the goods themselves.

Treatment of Sensitive Products

Because of the very large number of tariff
lines to be included in an FTA negotiation,
broad liberalization principles are
typically applied to most goods. For
example, negotiators may agree that all
tariffs already below a certain level will
be reduced immediately to zero when
the agreement takes effect. However, the
participants in any trade liberalization
negotiation must take into account the
existence of sensitive products, for
which immediate adjustment or even
adjustment at the rate allowed for most
goods would cause severe problems in
a particular sector or region. Such a
disruption could cause harsh political and
economic problems, at least in the short
run. These goods would be exempted
from the broad liberalization principles
applied to most trade between the
partners.
In the interest of transparency, each
partner begins negotiations by presenting
a preliminary list of sensitive products.
Since WTO rules require an FTA to
eliminate tariffs on substantially all
traded goods, these sensitive products
must be strictly limited in both number of
tariff lines and total value.31 The impact
of liberalization on domestic producers
of sensitive products may be mitigated by
a later start to tariff cuts and extra time

31

A small value of current trade may not be relevant

because sensitive sectors are usually highly protected.
Thus, the current trade value may be very low or even
zero.

38 | How to design, negotiate, and implement a free trade agreement in asia

allowed for tariffs to be eliminated.32 The

protocol for special treatment of sensitive
products in ASEANs Common Effective
Preferential Tariff (CEPT) scheme33
includes flexibility in the starting date
of the phase-in process, with a later
starting date and longer phase-in period
for LDC members; rules for ongoing
tariff cuts, with no rate change applied
for more than 3 years, a reduction of
at least 10 percentage points at each
adjustment, and a final tariff rate of no
more than 5%; and scheduled elimination
of all quantitative restrictions and other
nontariff barriers.
Imports of sensitive products are often
restricted by a tariff-rate quota (TRQ)
rather than a simple ad valorem tariff.
Under a TRQ, imports up to a stipulated
ceiling may enter at one tariff rate, while
additional imports beyond that ceiling
are subject to a higher rate. During the
phase-in period for such goods, scheduled
commitments should include gradual
increases in the size of the lower-rate
quota, as well as reductions in the tariff
rates themselves. If tariff quotas are
maintained, the agreement should be clear
on how the lower-rate quota will be filled.
An efficient option is for transferable
import licenses to be distributed through
a scheme that bases initial allocations on
historical market shares.
For sensitive agricultural products,
the applicable MFN tariff rate may be
seasonal, with a higher rate applied
during the part of the year when imports
compete with a like product grown
domestically. For example, the US,
Canada, and Mexico all charge higher
32

33

Because many goods are produced out of parts or

intermediates imported from outside the FTA partner
countries, the provisions include rules of origin
(ROOs) that determine whether these goods are
eligible for the preferential treatment (see the Rules of
Origin section in this chapter on page 49). In practice,
restrictive rules of origin for particular products are
also used to limit the impact on sensitive sectors.
ASEAN Protocol on the Special Arrangement for
Sensitive and Highly Sensitive Products, Singapore, 30
September 1999.

seasonal rates on imports of some fresh

agricultural products like tomatoes.
Under NAFTA, the tariffs on out-of-season
tomatoes were phased out over 5 years;
tariffs on in-season tomatoes were phased
out over 10 years, with a tariff quota in
effect during the transition period.

Trade Facilitation
Nontariff market access provisions are
gaining wide attention in negotiations
(multilaterally and bilaterally) and have
become as significant as negotiations
on tariff-related provisions. This is
because customs procedures and other
administrative hurdles can themselves
be significant barriers to trade. To
begin with, potential exporters and
importers need information on their
countries of origin and their partners
laws and procedures that affect trade.
And when trade is between FTA partners
(or involves other kinds of preferential
arrangements), compliance with rules
of origin usually involves additional
administrative procedures beyond those
ordinarily required in trade transactions,
e.g., detailed production information in a
specific format. Compliance with customs
regulations requires time and effort, but
basing procedures on best practices will
lead to efficiency and reduced transaction
costs. In a narrow sense, trade facilitation
means applying customs procedures
predictably, consistently, and transparently,
by improving access to information and
reducing the cost of complying with
administrative procedures. In broader
terms, trade facilitation includes reducing
behind-the-border costs from inadequate
or inefficient transportation, logistics, and
storage facilities.
Multilateral negotiations
Multilateral negotiations on trade
facilitation are aimed at simplifying
cross-border procedures and increasing

part ii: coverage of a free Trade agreement |39

the capacity of developing countries to

participate in the global trade. Trade
facilitation in the WTO context refers
to 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. The focus is thus
primarily on reducing the administrative
costs34 associated with trade.
The WTO Ministerial Conference in
Singapore in 1996 requested the WTO
Goods Council to begin exploratory work
to simplify trade procedures. Negotiations
in the WTO on trade facilitation began
in 2004.35 The negotiations are intended
to clarify and improve relevant aspects
of Articles V (transit of goods), VIII (fees
and formalities affecting imports), and X
(publication and administration of trade
regulations) of GATT 1994 with a view to
facilitating trade among the members.36
Since then, a number of trade facilitation
measures have been proposed by WTO
members.37
Negotiators also examine ways of
providing technical assistance and
support for capacity building, taking
into account the differences in levels of
development among WTO members. This
is being explicitly discussed at the Doha
Development Agenda under aid for trade.
34

35

36
37

These costs include compliance with rules-of-origin

procedures discussed in detail in the Rules of Origin
section of this chapter.
The mandate for trade facilitation negotiations is set
out in Annex D (Modalities for Negotiations on Trade
Facilitation) of the July Package.
www.wto.org/english/tratop_e/tradfa_e/tradfa_
negoti_e.htm
The proposals involve (i) the publication and
availability of information; (ii) the time period between
publication and implementation; (iii) consultation and
commenting on new and amended rules; (iv) advance
rulings; (v) appeal procedures; (vi) measures enhancing
impartiality, nondiscrimination, and transparency;
(vii) fees and charges connected with importation
and exportation; (viii) formalities connected with
importation and exportation; (ix) consularization;
(x) border-agency coordination; (xi) the release and
clearance of goods; (xii) tariff classifications; and (xiii)
matters relating to goods transit.

Trade facilitation provisions of FTAs

Trade facilitation provisions may be part
of the general principles, a section of
the customs procedures chapter, or an
independent chapter in FTAs. They often
specify measures, for example, simplified
requirements for documentation and
methods of determining compliance
with rules of origin (see the Rules of
Origin section on page 49). These trade
facilitation measures may be general or
specificdepending on factors like the
coverage of the FTA, geographic situation,
and institutional and technical capacity.
While the Agreement of the Bay of
Bengal Initiative for Multisectoral TechnoEconomic Cooperation (BIMSTEC)
does not specifically provide for trade
facilitation, it nevertheless suggests
the establishment of rules-of-origin
mechanisms and the simplification
of import and export formalities. In
the case of the South Asia Free Trade
Agreement, provisions call for the prompt
publication of rules and regulations, the
identification of inquiry points for the
exchange of information, consultations
on rules of origin, electronic means
of reporting and the identification of
low-risk and high-risk goods, customs
cooperation, and technical assistance
for LDCs.38 Meanwhile, the CEPT
Agreement for AFTA provides that
Member States shall explore further
measures on border and non-border
areas of cooperation to supplement and
complement the liberalisation of trade.
Since then, the ASEAN members have
agreed to implement a Harmonized Tariff
Nomenclature as well as to establish and
implement the ASEAN Single Window
to expedite customs clearance through
single submission of information,
documents, and formalities, single
processing, and single decision making.
38

See Chaturvedi (2007) for the detailed stocktaking of

trade facilitation provisions in South Asia FTAs.

40 | How to design, negotiate, and implement a free trade agreement in asia

The trade facilitation provisions also

differ even for the same bilateral partner.
For example, Japans bilateral agreements,
on one hand, include commitments
to facilitate the transport of goods,
provide exporters and importers with
information regarding requirements for
documentation, increase transparency,
and build capacity through training,
technical assistance, and exchange of
experts. Agreements like the JapanSingapore, Japan-Philippines, and
Japan-Thailand Economic Partnership
Agreements (EPAs), on the other hand,
provide further commitments to improve
the speed and efficiency of customs
procedures through paperless trading.
Evolution of best practices
in trade facilitation
Existing mechanisms and instruments39
can provide for best practices in
trade facilitation. A case in point is
the International Convention on the
Simplification and Harmonization of
Customs Procedures (now commonly
referred to as the Revised Kyoto
Convention). The principles of the
convention are explicitly recognized by
negotiators of the WTO and are being
incorporated in FTAs.40 The Asia Pacific
Economic Cooperation (APEC) member
countries have also adopted the Trade
Facilitation Principles (applicable to both
goods and services), namely:41
(i) Transparency;
(ii) Communication and consultation;
(iii) Simplification, predictability, and
efficiency;
(iv) Nondiscrimination;
39

40
41

The World Customs Organization (WCO) website (www.

wcoomd.org/home_about_us_conventionslist.htm) lists
and contains the text of these instruments.
See for example, Chapter 4 of the Singapore-Australia
Free Trade Agreement.
See www.apec.org/apec/ministerial_statements/
sectoral_ministerial/trade/2001_trade/annex_b.html

(v) Consistency and predictability;

(vi) Harmonization, standardization,
and recognition;
(vii) Modernization and use of new
technology;
(viii) Due process; and
(ix) Cooperation.
Some of these principles have been
introduced in a number of FTAs:
Customs cooperation. Cooperation
is promoted between customs
authorities of FTA partners. It
may take the form of exchange
of information such as customs
laws and procedures (especially
for new and amended customs
rules); establishment of joint
committees to discuss and address
trade facilitation issues; mutual
administrative assistance and
exchange of experts; and common
customs declaration and joint
customs control at borders.
(ii) Release of goods. Principles like
simplification and standardization
of procedures, risk management,
and post-clearance audit allow
customs to ensure the smooth and
speedy flow of goods. Simplified
procedures reduce formalities
and documentation requirements
to the minimum extent, aligned
with international standards. Risk
management involves the selective
inspection of traded goods on a
scientific basis. Post-entry audit
allows goods to be released first
and documents reviewed, thereby
reducing the transaction costs of
physical examination at borders.
(iii) Advance rulings. Also called
binding rulings, these are issued
at the request of an exporter or
importer to customs authorities
to issue a decision relevant
to the application of customs
(i)

part ii: coverage of a free Trade agreement |41

procedures. Determining the

tariff classification, customs
valuation, and applicable duties
and taxes on certain products, for
example, would reduce clearance
formalities and speed up the
release of goods.
(iv) Use of information and
communication technology (ICT)
and paperless trading. Modern trade
facilitation measures like the use
of electronic filing and the transfer
of trade-related information and
electronic versions of bills of
lading, invoices, letters of credit,
and insurance certificates (a form
of electronic data exchange)
are alternatives to paper-based
methods that enhance the
efficiency of trade by reducing the
cost and time involved. Although
ICT is not indispensable, it
facilitates the implementation of
a single window42 in customs
procedures.
(v) Temporary admission of goods
in transit. Most FTAs involving
landlocked countries provide
for simplified procedures for the
temporary admission of goods in
transit.43 Other FTAs (like those of
Japan) provide for the application
of existing customs conventions,44
as well as Article V of GATT.
The effective implementation of
42

43

44

A single window is commonly defined as a facility

that allows parties involved in trade and transport
to lodge standardized information and documents
with a single entry point to fulfil all import, export,
and transit-related regulatory requirements.
(United Nations Economic Commission for Europe
Recommendation on Establishing a Single Window:
Recommendation 33, ECE/TRADE/352)
For example, the Kyrgyz-Kazakhstan FTA states that a
Party shall provide free transit via its territory, of goods
originating in the customs territory of the other Party or
third countries and intended for the customs territory of
the other Party or a third country. (Article 10, para. 2)
Such as the Customs Convention on the ATA Carnet for
the Temporary Admission of Goods (ATA Convention)
and the Convention on the International Transport of
Goods under Cover of TIR Carnets (TIR Convention).

these transit agreements requires

partnership between government
authorities, particularly customs
and transport associations.
(vi) Technical assistance and capacity
building. Trade facilitation
measures must be relevant and
must take into account the
resource constraints and needs
of smaller countries that are
parties to FTAs. As part of the
aid-for-trade agenda, developed
countries could provide funding
and technical support45 for the
implementation of multilateral
or bilateral trade facilitation
programs.

Technical Barriers to Trade, and Sanitary

and Phytosanitary Standards
Regulations and standards often
serve legitimate objectives including
the protection of the environment;
consumers; workers; national security;
human, animal, and plant life or
health; and the food and water supply.
Nevertheless, regulations and standards
also have a darker sidethey may be
employed as barriers to international
trade. As tariffs have fallen, regulations
have increasingly been used as nontariff
barriers to protect domestic producers.
Two WTO agreementsthe Agreement
on Technical Barriers to Trade (TBT
Agreement) and the Agreement on
Sanitary and Phytosanitary Measures
(SPS Agreement), seek to balance the
protection of legitimate objectives with
the need to restrain nontariff barriers to
prevent protectionism. Following is
an introduction to the TBT and SPS
Agreements, followed by an overview of
TBT and SPS measures in FTAs.

45

See Part 3 and Annex 1 of the Pacific Agreement for

Closer Economic Relations (PACER).

42 | How to design, negotiate, and implement a free trade agreement in asia

The TBT Agreement

The TBT Agreement is designed to
protect human, animal, and plant life and
health in specific instances when the SPS
Agreement does not apply. Legitimate
objectives for TBT measures include the
protection of the environment, consumers
(prevention of deceptive practices),
workers, national security, and human,
animal, and plant life and health. WTO
members also apply TBT measures to
ensure quality and to encourage product
standardization. The TBT Agreement
applies to technical regulations (which
are mandatory), standards (which are
voluntary), and conformity assessment
procedures (testing to verify whether
a product meets a particular technical
regulation or standard).
TBT measures relate to a products
characteristics, packaging, marking,
labeling, symbols, and terminology (among
other aspects). A typical example of a
technical regulation is a law requiring an
automobile dealer to display the vehicles
fuel efficiency. Compliance is mandatory
the dealer may not sell the vehicle unless
its fuel efficiency is displayed.
Compliance with a standard is
voluntary and often gives a product a
marketing advantage. A standard might
set forth characteristics that a product
must meet before a government permits
the manufacturer to use a particular
symbol on the products label. A typical
example would be rules governing the
use of a symbol showing that a product
is recyclable. If the product can be sold
without the symbol, the measure is a
standard and not a technical regulation.
The TBT Agreement establishes the
following disciplines, some of which are
familiar from the GATT Agreement:

Nondiscrimination. WTO members

must ensure MFN treatment and
national treatment with respect to
technical regulations, standards

46

47

and conformity assessment

procedures.
Avoidance of unnecessary obstacles
to trade. WTO members must
ensure that adopting or applying
technical regulations, standards,
and conformity assessment does
not create unnecessary obstacles
to international trade.46
Harmonization. Members must
base technical regulations
and standards on relevant
international standards.47 If
resources permit, members must
participate fully in the preparation
of guides and recommendations
for conformity assessment
by appropriate international
standardizing bodies.
Equivalence. Members are
encouraged to accept foreign
technical regulations fulfilling
the same policy objectives, as
equivalent.
Mutual recognition of conformity
assessment procedures. Members
must accept, whenever possible,
the results of foreign conformity
assessments, even when the
procedures differ from their own,
provided they are satisfied that
the procedures offer assurance
of conformity with technical
regulations and standards
equivalent to their own.
Transparency. Members must
provide information about
proposed and adopted technical
regulations, standards, and
conformity assessment procedures
through inquiry points,
publication, notification, etc.

The measures should be the least trade-restrictive

measures reasonably available to fulfill a legitimate
objective.
An exception exists when international standards
would be ineffective or inappropriate, for example,
when fundamental climatic and geographic factors or
fundamental technological problems make reliance on
such standards inappropriate.

part ii: coverage of a free Trade agreement |43

Technical assistance. Upon request,

members are required to provide
technical assistance on mutually
agreed terms.

(i)

The SPS Agreement

The purpose of the SPS Agreement is to
ensure that food and beverages are safe for
human and animal consumption (safe from
pesticide residues, additives, toxins, etc.),
and to prevent the spread of pests and
diseases (bacteria, viruses, invasive species,
etc.) among humans, animals, and plants,
while at the same time ensuring that
WTO members do not use SPS measures
as disguised restrictions on international
trade. Typical examples of SPS
measures are slaughterhouse inspection
requirements, quarantine requirements for
sick animals, and pesticide and herbicide
residue requirements.
The SPS Agreement grants all WTO
members the right to implement SPS
measures to protect human, animal,
or plant life or health from SPS risks
provided that the members comply with
the disciplines set forth in the Agreement.
Members that comply with the obligations
of the SPS Agreement are presumed to
be in compliance with the obligations of
GATT 1994, including its Article XX(b).48
Unlike the TBT Agreement, the SPS
Agreement does not classify trade
measures as technical regulations,
standards, or conformity assessment
procedures. SPS measures nevertheless
function like technical regulationsto the
extent that compliance with SPS measures
may be necessary to import or sell a
particular product. Some provisions of
the SPS and TBT Agreements are similar.
The most important provisions of the SPS
Agreement are the following:
48

Article XX(b) provides a general exception for trade

measures necessary to protect human, animal, or plant
life or health. Some sanitary and phytosanitary (SPS)
disciplines resemble those in the technical barriers to
trade (TBT) agreement.

(ii)

(iii)

(iv)

(v)

(vi)

(vii)
49

Science-based agreement. The

SPS Agreement is a sciencebased agreement; hence, SPS
measures must be based on
sufficient scientific evidence and
on risk assessment. Precautionary
measures must also be based on
some degree of scientific evidence.
(The science-based nature of the
SPS Agreement distinguishes it
from the TBT Agreement.)
Necessity. SPS measures must
be necessary to protect human,
animal, or plant life or health
(they must be the least traderestrictive measures reasonably
available to achieve the desired
level of risk prevention).49
No arbitrary or unjustifiable
discrimination. SPS measures
must not result in arbitrary or
unjustifiable discrimination
between countries with identical
or similar conditions. Measures
must not be disguised restrictions
on international trade.
Harmonization. SPS measures
must be based on international
standards, guidelines, and
recommendations where they
exist, unless there is scientific
justification based on appropriate
risk assessment to use a higher
standard.
Equivalence. Members should
accept as equivalent foreign SPS
measures that provide the same
level of protection.
Transparency. Members must
provide information about their
SPS measures through inquiry
points, publication, notification,
etc.
Technical assistance. WTO members
have agreed to facilitate the

Members must recognize the concept of disease-free or

pest-free areas, and the possibility that the prevalence
of pests and diseases could vary depending on
geography, ecosystems, etc.

44 | How to design, negotiate, and implement a free trade agreement in asia

provision of technical assistance

to other members, in particular
developing countries.
Treatment of SPS and TBT measures in FTAs
Unlike customs unions, in which members
generally harmonize SPS and TBT rules,
FTAs have no single practice for the
treatment of these regulatory matters.
Because of the sensitivity of agricultural
and food safety issues, many FTAs contain
few SPS provisions and leave it up to the
parties to apply the SPS agreement.50
With respect to TBT matters, FTAs often
contain stricter disciplines than those
found in the TBT agreement.
FTAs take several different approaches
with respect to regulatory matters, in
particular TBT. Some FTAs acknowledge
the parties WTO obligations but create
committees only to study SPS and
TBT problems. Other FTAs are moving
slowly toward mutual recognition of
conformity assessment procedures. A
third variant fosters greater integration
by harmonizing certain regulations,
recognizing measures in various sectors
as equivalent, and providing for a degree
of mutual recognition of conformity
assessment proceduresoften on a
sectoral basis. Regardless of the approach
taken, the starting point in FTAs is
usually recognition that the parties WTO
commitments remain binding. The WTO
Agreement thus serves as the lowest
common denominator of commitments in
FTA agreements. The following examples
illustrate how SPS and TBT measures are
handled in selected FTAs.
Agreements to Strengthen Cooperation
and to Negotiate. ASEANs 2002
Framework Agreement with the PRC
reaffirms relevant WTO commitments,
and provides for strengthened
50

This assumes that the parties are WTO members.

cooperation with respect to trade in

goods by negotiating nontariff measures,
scientifically unjustifiable SPS measures,
and TBT measures.51
WTO as a Basis for Agreement to
Negotiate. The New ZealandThailand
FTA reiterates the parties WTO
commitments with respect to nontariff
barriers, and more specifically with
respect to SPS and TBT measures.52
The FTA endorses equivalence,
harmonization, and mutual recognition,
and sets up a joint SPS committee
to encourage consultations and
negotiations. It establishes a framework
for addressing SPS and TBT issues, and
for negotiating additional arrangements
and annexes.53
General Reaffirmation of the
WTO Agreement with Enhanced
Cooperation. The US-Singapore Free
Trade Agreement (USSFTA) reaffirms
the parties WTO commitments and their
shared commitment to facilitate bilateral
trade by reducing or removing technical
and SPS barriers to the movement of
goods between the parties.54 In Chapter 6
the parties establish an enhanced
cooperation and coordination procedure
for dealing with TBT issues.55 The FTA

51

52

53
54
55

See Articles 3.8(e) and 7.3(a), Framework Agreement

on Comprehensive Economic Co-operation between
ASEAN and the Peoples Republic of China (Phnom
Penh, 5 November 2002) (www.aseansec.org/13196.
htm). This agreement builds on the ASEAN-PRC FTA
signed on 6 November 2001. The goal of the parties is
to create a free trade area by 2010.
See Articles 2.7 (nontariff measures), 6.4.1 (SPS
agreement), and 7.3.3 (TBT agreement) of the
ThailandNew Zealand Closer Economic Partnership
Agreement (www.thaifta.com/english/index_eng.
html).
See generally Chapters 6 and 7.
See www.iesingapore.gov.sg
See page 1 of the introduction to the US-Singapore
Free Trade Agreement, www.iesingapore.gov.sg/wps/
wcm/connect/resources/file/ebfe4f42743d685/FTA_
USSFTA_Agreement_Final.pdf?MOD=AJPERES. See
also Chapter 6, on technical barriers to trade.

part ii: coverage of a free Trade agreement |45

does not harmonize technical regulations,

standards, and mutual recognition of
conformity assessment procedures, except
in the area of telecommunications, where
the parties agree to implement Phases 1
and 2 of the APEC Mutual Recognition
Arrangement for Conformity Assessment
of Telecommunications Equipment.56
The agreement also establishes a medical
products working group to provide a
forum for cooperation on regulatory
issues of mutual interest.57
Sectoral Harmonization of
Standards. ASEAN members have
periodically selected sectors for
harmonization. They agreed to harmonize
standards in 20 priority product sectors in
1997 and completed the process in 2003.
They also agreed to harmonize electrical
safety standards for 71 additional
products in 1999 and completed the
process in 2004.58 In 2003, the ASEAN
members agreed to harmonize cosmetic
standards.59

contains provisions on the equivalence

of mandatory requirements (particularly
in the sectoral annexes),61 cooperative
activities in SPS matters,62 and the
negotiation of improved conformity
assessment procedures.63 The agreement
also contains two important sectoral
annexes providing for mutual recognition
of food products and horticultural goods.
The sectoral annex on food products
reaffirms WTO commitments under
the SPS and TBT Agreements and is
applicable to certain standards relating to
food products exported from one party to
the other, and to conformity assessments
of manufacturers or manufacturing
processes of food products exported from
one party to the other.64 The sectoral
annex on horticultural goods reaffirms
the parties obligations under the SPS
Agreement,65 and provides for mutual
recognition of certain phytosanitary
certificates.66

Safeguards, Antidumping Measures, and

Countervailing Duties

Broad Mutual Recognition. The

Singapore-Australia Free Trade
Agreement (SAFTA) builds on these
countries February 2001 mutual
recognition arrangements for medicinal
products, electrical and electronic
equipment, and telecommunications
equipment. It streamlines inspection
and compliance procedures for certain
products, and commits the parties to
harmonize their technical regulations
with international standards.60 SAFTA

WTO rules indicate when members

may apply trade remedies
safeguards, antidumping measures, and
countervailing dutiesin response to
specified actions by trading partners.
While some FTAs merely indicate
compliance with the relevant GATT
articles, others modify these rules as
they apply to trade among themselves.
For example, the Republic of Korea
Chile FTA simply indicates consistency
with the standard WTO treatment of

56

61

57

58
59
60

Article 6.3.1.
See Article 6.3.4 and Annex 6A of the US-Singapore
Free Trade Agreement. Annex 6A, para. 1, provides
for cooperation but excludes mutual recognition
agreements or other binding commitments.
www.aseansec.org/15564.htm
www.aseansec.org/20607.pdf
See generally Chapter 5 on Technical Regulations
and Sanitary and Phytosanitary Measures, and more
specifically Article 4.

62
63
64
65

66

Article 5.
Article 6.
Article 7.
www.dfat.gov.au/trade/negotiations/safta/annex_5_
a.pdf, at Articles 1.1 and 1.2.
www.iesingapore.gov.sg/wps/wcm/connect/
resources/file/ebc2d1418bb5162/Annex+5B+-+Se
ctoral+Annex+on+Horticultural+Goods-+SAFTA.
pdf?MOD=AJPERES, at Article 1.3.
Article 5.

46 | How to design, negotiate, and implement a free trade agreement in asia

safeguards, antidumping measures, and

countervailing duties.
The application of trade remedies
may give rise to trade disputes among
members. An FTA may specify additional
dispute settlement processes beyond
those provided in the WTO through
the creation of a regional body for
this purpose (see Dispute Settlement
Mechanism section on page 92). Where
this is the case, the rules should establish
which parties have standing to bring
a dispute to this body, i.e., whether
individuals, firms, or nongovernment
organizations (NGOs) as well as countries
may bring disputes for resolution. In the
WTO, member countries are the only
parties with such standing.
Global safeguards
GATT Article XIX authorizes members
to use safeguard measures to provide
temporary protection for a domestic
industry when increased imports cause
or threaten to cause serious injury
to the industry. In contrast to the
rules on antidumping measures and
countervailing duties (see pages 47
and 48), access to safeguard protection
does not require evidence that exporters
benefited from unfair trade practices.
The inclusion in the WTO of safeguard
provisions, which basically allow
countries to raise protection in particular
sectors, is justified in terms of two
functions. First, by allowing a country to
pull back temporarily when liberalization
causes greater problems than anticipated
for domestic import-competing
industries, safeguards provide a form
of insurance or safety net to countries
making liberalization commitments.
Second, because internal political forces
may push a government to protect a
particular sector, safeguards offer a safety
valve for protectionist pressure and
thus maintain the integrity of the larger

relationship. In practical terms, without

a safeguard provision, it would be far
more difficult to conclude substantive,
comprehensive trade agreements. The
key is to avoid abuse.
During the GATT era, safeguard
protection under Article XIX was used
only rarely. Some countries (notably
the US and EC countries) applied gray
area measures to deal with domestic
adjustment problems. In cases including
footwear, autos, and steel, importing
countries negotiated voluntary restraint
agreements with newer and highly
competitive exporters like Japan and the
Republic of Korea. The WTO Safeguards
Agreement revived interest in safeguards
by prohibiting the use of gray-area
measures but also set a time limit for
any safeguard action through a sunset
clause. However, because Article XIX
requires safeguard-imposing countries to
provide compensation to countries whose
exports are restricted, most safeguards
are eliminated before the required sunset
review of the measures.
While some FTAs simply indicate
compliance with the relevant WTO rules
on safeguards, others modify these rules
as they apply to trade among themselves.
Under Article XIX, these safeguards
now often called global safeguards
to distinguish them from special
safeguards discussed beloware to be
applied on a nondiscriminatory basis,
i.e., according to the MFN principle of
the WTO. But just as FTAs depart from
MFN treatment in tariffs and other
trade barriers, they may accord each
other special treatment in the case of
safeguards. For example, the Singapore
New Zealand agreement specifies
that neither party will take safeguard
measures against goods originating in the
other, i.e., the partner is to be exempted
from any safeguard measure taken under
Article XIX. But, as noted earlier, the
Republic of KoreaChile FTA provides no

part ii: coverage of a free Trade agreement |47

special status for partners when applying

safeguard protection under Article XIX.
The justification for exempting
partners is that the aim of an FTA is to
achieve a single integrated market, and
restricting partner imports as tariffs are
being eliminated is a step backward from
achieving that goal. On the other hand,
exempting FTA partners or other groups
(often LDCs are exempted) means that
the remaining suppliers outside these
preferred groups will be subject to an
even larger reduction in access to the
safeguarded market, exacerbating the
trade diversion. This spillover effect
could thus give rise to frictions with other
important trading partners.
Transitional and special safeguards
Like global safeguards, these special
safeguards permit access only when
there is evidence of serious injury
or threat of serious injury caused by
imports, i.e., there is no presumption
that exporters have violated WTO norms.
Within the WTO, this type of safeguard
has been associated with liberalization
in a particular sector, e.g., the phase-out
of the Multi-Fiber Arrangement, or with
the entry of a new member, e.g., the PRC.
An FTA sometimes includes a transitional
safeguard to provide a safety net in case
the effect of regional liberalization on an
import-competing sector is particularly
severe. The injury test would then
require not only evidence of serious
injury linked to increased imports but
also partner imports accounting for a
large part of the increase in imports.
The Taipei,ChinaPanama and ThailandAustralia FTAs both include transitional
safeguard provisions allowing the relevant
tariff to be returned (snapped back)
to the MFN level for a 2-year period to
start with. Special safeguards, where
included, apply only to a particular sector,
often certain agricultural products. For

example, NAFTA included not only a long

transitional period (15 years) for sensitive
agricultural products but also special
bilateral safeguards. These allowed the
tariff facing a partner to be snapped back
to the MFN level for a 3- or 4-year period
in the case of actual or threatened serious
injury as well as a substantial increase
in imports from the partner.
Like product exceptions and slower
phase-in periods for sensitive products,
transitional and special safeguard
provisions help achieve acceptance by
domestic import-competing industries but
also reduce the likely benefits from the
FTA once in force. Because safeguards, by
their very availability, increase uncertainty
about the actual terms of market access,
they may reduce incentives for investors
to make new commitments that help
partners to expand trade along the lines
of comparative advantage.
Antidumping measures
GATT Article VI and the Agreement
on Implementation of Article VI of the
General Agreement on Tariffs and Trade
1994 (AD Agreement) allow countries
to penalize imports sold in the domestic
market at less than the normal value
of the products when there is evidence
that these imports are causing material
injury to the competing domestic industry.
Since antidumping complaints are
specific to particular exporting firms in
a particular country, the rules represent
a departure from the principle of MFN
treatment. In cases where dumping
is found, import restrictions may be
enacted by levying a supplementary
tariff (antidumping duty) based on the
difference between the import price
and the normal value of goods from
this source, or by negotiating a price
undertaking with the exporter, i.e.,
an agreement to raise the price of the
product to an acceptable level.

48 | How to design, negotiate, and implement a free trade agreement in asia

Dumping occurs when the product is

sold at a lower price than at home or at
a price below its cost of production, but
neither criterion is straightforward in
its application. Moreover, the economic
justification for antidumping measures in
the absence of predation is at best weak;
almost all affirmative dumping cases
involve pricing behavior that would be
legal when practiced by a firm located in
the domestic market. Many economists
feel that the main case for antidumping
policy is political rather than economic,
and that the beneficiaries are largely firms
reluctant to compete with lower-cost
foreign producers. Moreover, in practice
antidumping measures often serve as an
attractive alternative to safeguard action.
The injury criterion is less stringent
(material versus serious injury), and no
adjustment plan for the domestic industry
is required. Moreover, because the injury
is attributed to unfair pricing on the
part of an exporting firm, antidumping
measures entail no compensation of
affected exporters and no limit to the
length of time that the measures can stay
in effect.67
Although many FTAs merely stipulate
that partners retain their rights and
obligations under GATT Article VI and the
AD Agreement, some offer more favorable
treatment to their FTA partners. Since
most alleged dumping would be legal
if the sale were carried out by a firm
in the domestic market, this favorable
treatment is consistent with the goal of
creating an integrated market. Notably,
EU members may not use antidumping
measures against firms in partner
countries, though they may pursue
complaints if EU competition policy is
67

The Antidumping (AD) Agreement contains a sunset

requirement establishing that dumping duties should
be applied for no more than 5 years unless a review
indicates that removing the duty would be likely to lead
to the continuation or recurrence of dumping and injury.
The sunset provision also applies to price undertakings.

violated. Australias agreement with the

US contains no chapter on antidumping
measures, implying that WTO rules apply
without modification. Its agreements with
Singapore and Thailand refer explicitly to
Article VI but impose additional limits on
the use of such measures.
Subsidies and countervailing measures
The WTO Agreement on Subsidies and
Countervailing Measures governs the
use of countervailing measures when
another countrys subsidies cause injury
to a domestic industry. As in the case of
antidumping measures, WTO policy on
subsidies allows a departure from MFN
treatment. Here, however, the source of
the injury to a domestic industry arises
from a governments action to provide a
subsidy rather than an exporting firms
pricing practices.
Under the subsidies agreement,
subsidies requiring recipients to meet
specified export targets or to use domestic
inputs instead of imported inputs in
production are prohibited because they
are designed to distort international
trade.68 Outside of agriculture, most
export subsidies violate current WTO
rules and can be challenged in the WTO.69
If a prohibited subsidy is not removed,
the complaining country can impose
an additional tariff (countervailing
duty) based on the value of the subsidy
provided by the government of the
exporting country.
Most other subsidies are categorized
as actionable. Here the complaining
country must show that the subsidy is
68

69

The prohibition on export subsidies does not apply

to least-developed countries (LDCs) and developing
countries with per capita incomes below $1,000.
Developing countries and transition economies are
given extra time to eliminate export subsidies and
subsidies to import-substituting industries; LDCs are
allowed an even longer period to comply.
A goal of the Doha Development Agenda is to phase out
subsidies in agriculture as well.

part ii: coverage of a free Trade agreement |49

causing an adverse effect on its interests

by damaging (i) an import-competing
industry, (ii) an export industry that
competes in the subsidizing countrys
domestic market, or (iii) an export
industry competing with firms in the
subsidizing country for the same thirdcountry markets.70 Otherwise the subsidy
is permitted. If a subsidy does have an
adverse effect, it must be withdrawn
or its adverse effect removed. Again, if
domestic producers are hurt by imports
of subsidized products, a countervailing
duty can be imposed.71 Alternatively, the
subsidized exporter can raise the price of
its products.
Many FTAs have no provisions
modifying the treatment of subsidies
provided in the WTO. However, Australias
FTAs with Thailand and Singapore go
further than the WTO, prohibiting even
agricultural export subsidies. This is in
accord with APEC best-practice principles,
which call for FTAs that go beyond
WTO commitments by building on
existing WTO obligations and exploring
commitments in areas not yet fully
covered by the WTO.

Rules of Origin
Rules of origin (ROOs) are a necessity
in any preferential trade agreement,
including all FTAs. Without ROOs it would
be impossible to distinguish products
that are eligible for tariff preferences
from those that are not. Since FTAs
allow members to set external tariffs
independently, rules of origin are needed
to prevent the transshipment of imports
70

71

An obvious example of this latter actionable subsidy

would be the US (successful) complaint against
the EU for its subsidies of soybean exports to third
markets.
Developing countries receive preferential treatment
if their exports are subject to countervailing duty
investigations.

entering the customs territory of the

member with the lowest tariff to the other
membersa problem that is referred to
in the literature of international trade
as trade deflection (see Box 2.2 on the
economics of preferential rules of origin).
In essence, an FTA without ROOs would
be equivalent to a customs union with the
external tariff being that of the member
customs territory or country with the
lowest MFN tariff, undercutting revenue
collection in the members with higher
MFN tariffs.
It is important to recognize that
governments regard ROOs not simply as
a technical device to enforce preferential
trade agreements but also as commercial
policy instruments.72

Preferential Rules of Origin and the

World Trade Organization73
The failure of the contracting members
of the WTO to complete the negotiations
aimed at harmonizing non-preferential
ROOs, as provided for in the Uruguay
Round Agreement (GATT 1994) on
Rules of Origin, is an indication not only
of the technical complexity of rules of
origin but also of the members desire
to retain autonomy in setting productspecific ROOs to protect their industries.
The refusal of contracting members
to even negotiate the harmonization
of preferential ROOs confirms the
reservation of such rules as commercial
policy toolsindeed as tools of protection
of special interests and sensitive
products.
Annex II (Common Declaration with
Regard to Preferential Rules of Origin) to
the Agreement on Rules of Origin (GATT
1994) is a nonbinding statement that
WTO members shall clearly define
72

73

Vermulst and Waer (1990) provide examples of

product-specific rules of origin from the EC that are, in
effect, instruments of commercial policy.
This section draws on James (2005).

50 | How to design, negotiate, and implement a free trade agreement in asia

Box 2.2: Economics of Preferential Rules of Origin

Rules of origin (ROOs) are needed in any preferential
trade agreement to determine which goods are eligible
for preferential tariff treatment and which are not.
Without ROOs it would be difficult to maintain the
integrity of independent tariff regions in a free trade
agreement (FTA) because of trade deflection, or the
transshipment of imported goods from nonmembers
through the member country with the lowest mostfavored nation (MFN) tariff rates. There is likely to be a
trade-off between prevention of trade deflection and
trade creation, assuming that member countries are
able to administer ROOs effectively. The more restrictive
the ROOs, the less is the potential for trade deflection.
But this comes at a cost. Firms must choose whether
or not to comply with ROOs, as documentation and
accounting efforts may add the equivalent of 1.56.0%
of the ex-factory price, or production cost of the goods
receiving preferential tariff treatment. If the difference
between MFN and preferential tariffs (referred to in the
economics literature as the margin of preference) is
less than the cost of compliance, firms will simply ignore
the ROOs and continue with shipments paying the MFN
tariff, and the preferential agreement will be ineffective
in boosting intra-FTA trade.
One measure of the effectiveness of a preferential
trade agreement is the extent to which member partners
trade avails itself of the preferences or the utilization
ratio (the volume of preferential trade divided by total
intra-trade in an FTA). Typically, FTAs involving developed
member countries such as the European Union or North
America Free Trade Agreement have higher utilization
ratios than those involving developing countries (e.g.,
ASEAN). One must be cautious in interpreting the
economic welfare effects of increased intra-regional
trade, as they may be due to welfare-improving trade
creation or welfare-reducing trade diversion (see Part
I). ROOs may also have an impact on firms investment
decisions in terms of choice of location for manufacturing
processes or sourcing decisions. This is a relatively new
theme and is at the frontier of research pertinent to FTAs.
The spaghetti bowl or Asian noodle bowl problem
arises when a country enters into numerous bilateral
FTAs with inconsistent, complex, and overlapping
ROOs. Firms wishing to take advantage of more than
one FTA may be faced with the difficulty of complying
with inconsistent rules of origin and may literally
have to invest in a separate production line for each
FTA. Customs authorities may also have difficulty in
administering multiple sets of ROOs in determining the
eligibility of goods for reduced tariffs. The advantages
provided by preferences dependent on customs
rulings may encourage corruption and rent-seeking
behavior. Hence, economists recommend that ROOs be
consistent across agreements and be kept as simple and
transparent as possible (Part I).
Source: James (1998); James (2006)

the ROOs in any contractual or

autonomous trade regime that provides
for preferential tariff treatment beyond
the application of paragraph 1 of
Article I of GATT 1994 (principle of
nondiscrimination). The Common
Declaration also stipulates the timely
provision of preferential ROOs by
members to the WTO Secretariat and
the publication of such rules (and any
changes) by members as if they were
subject to paragraph 1 of Article X of
GATT 1994. Upon request, members
must provide assessments of origin for
the purpose of obtaining preferences to
interested parties within a set period
(no longer than 150 days) and the
assessments must remain valid for
3 years.
As the Interpretation and Application
of Annex II finds no jurisprudence or
decision of a competent WTO body,
there are no binding disciplines over
WTO members concerning preferential
ROOs. The APEC organization has
suggested the adoption of best-practice
principles in RTAs, FTAs, and other
preferential arrangements.74 APEC
advocates the adoption of simple ROOs
that facilitate trade. This implies that
ROOs do not have high compliance
costs for business and that each APEC
member as far as possible adopts
consistent rules of origin across its own
preferential agreements. The APEC also
notes that ROOs should be designed
with a view to maximizing trade creation
and minimizing trade distortion so that
APEC members can promote regional
integration and not disrupt efficient
global production networks.

74

APEC (2004) sets forth proposed best practices in

RTAs/FTAs that APEC members are party to.

part ii: coverage of a free Trade agreement |51

Table 2.1: Product OriginWholly Obtained Principle

Type of Tradable

Principle/Criterion

Table 2.2: Tests for Determining Origin of

Processed or Manufactured Goods
Test for Processed/
Manufactured Goods

Principle of Last Substantial

Transformation

Change in tariff heading (CTH)

or change in tariff subheading
(CTSH) test

A change from any four-digit HS

chapter to any other four-digit
HS chapter (six digits for CTSH)

Specified process test

Any manufacturing process

deemed to confer origin

Value-added (percentage) test

Minimum regional content or

maximum non-originating content

Mixed tests

SP test and CTH test; CTH test or

value added test, or both

Primary

Wholly obtained in a single

customs territory/country

Agricultural Goods

Unprocessed and harvested

within customs territory/country

Marine Fisheries (outside

territorial waters of member
country)

Ownership of vessel/means
of catch

Forestry Products

Unprocessed and harvested

within customs territory/
country
Extracted within territory or
seabed in territorial waters

Source: Authors compilation.

Mineral Products
Scrap/Waste Products

Collected within and fit only for

recovery of raw materials

Source: Authors compilation.

Methods of Determining Product Origin

The determination of product origin for
primary products and scrap or waste is
fairly straightforward and is subject to the
criterion of being wholly obtained in the
territory of the country in question (see
Table 2.1). Several caveats arise in marine
fisheries and ocean-bed mining, however.
Products obtained outside the territorial
limits of a coastal entity may gain the
origin of the vessel or platform that is
used to extract, capture, or otherwise
obtain the product in question.75
For manufactured and processed goods,
the determination of origin is more
complex and controversial, particularly
for products with intermediate inputs and
processing or manufacturing operations
taking place in two or more countries or
customs territories. The Kyoto Convention
of the Customs Cooperation Council
(now known as the WCO) of 1973 set
forth the principle of a last substantial
75

Whether a territory is confined to the 12-mile limit or

to the extended limit provided for in the Law of the
Sea is disputed. Whether the flag of the vessel or its
actual ownership and control confers origin is also in
question (Imagawa and Vermulst 2005).

transformation for determining product

origin in the case of processed and
manufactured goods. Three types of tests
were agreed on as applicable in satisfying
(potentially) the principle of a last
substantial transformation. These are
(i) a change in tariff heading (CTH) test,
(ii) a specified process (SP) test, and
(iii) an ad valorem or percentage test.
These tests and their permutations are
shown in Table 2.2.

Examples of Alternative Tests for

Substantial Transformation
A CTH test is used to determine origin
if the manufacture or processing
undertaken results in a product coming
under a four-digit HS number different
from the numbers under which the nonoriginating components or articles fall
(Imagawa and Vermulst 2005: 607). For
example, country A imports raw leather
hide from country B (HS 41.01) and uses
it to produce tanned leather hide (HS
41.06), which it then exports to country
C. Country B is the origin of the product
imported by country C. When the test
is applied at the six-digit HS code this
is known as a CTSH test. For example,
under the Canada-US Free Trade
Agreement of 1989, tomato paste (HS

52 | How to design, negotiate, and implement a free trade agreement in asia

2002.09) imported by Canada from Chile

and used to produce catsup (HS 2103.20)
that is later exported to the US originates
in Canada and receives preferential
treatment in the US. However, NAFTA
adopted a rule of origin specifying that
catsup (HS 2103.20) obtains its origin
when transformed from any six-digit HS
chapter except from subheading 2002.09
(NAFTA Volume II, Annex 401-8, 1993).
Hence, Canada can no longer import
tomato paste from a source outside
NAFTA and receive preferential treatment
under NAFTA rules of origin. The
13.6% US MFN tariff on tomato paste
put Chilean tomato paste at a distinct
disadvantage versus Mexican tomato
paste.76
The ad valorem or percentage criterion
test may take place in any one of three
forms (Imagawa and Vermulst 2005:
605): import content, domestic/regional
content, or value of parts. The test
specifies a maximum non-originating
content or a minimum regional or
domestic content requirement as a
percentage of the FOB or ex-factory
price of the product that must be
reached if a product is to satisfy the last
substantial transformation principle
in the last territory where the product
was processed or manufactured. The
percentage test may or may not allow
cumulation among members,77 but
allowance of cumulation is clearly more
liberal than its disallowance. In the
case of the Japan-Malaysia Economic
Partnership Agreement (JMEPA),
76
77

This example is originally cited in Vermulst, Waer, and

Bourgeois (1994).
Cumulation allows value added for a group of
countries rather than just in the exporting country.
For example, suppose that product A produced in
Singapore uses 50% of its inputs from Malaysia.
When exported to a country with which Singapore
has an FTA, allowance for ASEAN cumulation would
suggest that 100% of the content would be accepted
(and, hence, the produce would certainly qualify
for preferential treatment), whereas with no ASEAN
cumulation only 50% would qualify.

the following formula is applied in a

percentage test:
QVC = [(FOBVNM) / FOB)] * 100
where: QVC is the qualifying value
content of a good as a percentage of
its FOB value of a good payable by
the buyer to the seller regardless of
means of shipment (excluding taxes
and duties), and VNM signifies the
value of non-originating material
used in the production of the good.
Item

Origin

Part A

Japan

100

Part B

Japan

100

Part C

Malaysia

400

Part D

India (non-originating)

300

Part E

Republic of Korea
(non-originating)

500

Part F

PRC (non-originating)

400

Other Costs
FOB Price

Cost($)

200
2,000

$2,000 $1,200 (Parts D, E,

and F)
QVC =
x 100 = 40%
$2,000

In the case of JMEPA, the QVC must

be 40% or greater for the item to attain
origin in the region. JMEPA allows
regional cumulation to reach the required
minimum QVC percentage. An example
of the application of this rule to a colortelevision receiver is given as follows
(JMEPA 2006: Operational Procedures):
Thus, according to the JMEPA rules
of origin, the color TV is eligible for
preferential tariff treatment.
A technical or specified process
test rounds out the acceptable criteria
under the WCO Kyoto Convention. This
test provides a detailed description of
production or sourcing processes that
do (positive test) or do not (negative
test) confer origin. In most cases, simple

part ii: coverage of a free Trade agreement |53

packing and unpacking operations are not

sufficient to confer origin. Normally such
negative test criteria are accompanied by
a positive test to provide more certainty
to businesses.
A technical test is frequently applied
to preferential agreements in textiles
and apparel. For example, the Japanese
economic partnership agreements with
Malaysia, the Philippines, Thailand, and
Singapore apply a double jump or
two-stage processing test requiring that
apparel be produced either from fabric
that is first dyed or printed in a member
(stage 1), and then assembled into an
article of apparel (stage 2). Alternatively,
if originating yarn is used to produce
fabric, then even if dyeing and printing
processes are carried out in a nonmember,
the test is satisfied, provided that the
fabric is also woven and assembled into
a garment article in a member country.
The double-jump requirement in Japans
agreements is applied in a way that is
rather liberal in that the processes need
not be completed in only one country but
may occur in both members. Furthermore,
Japan allows any process occurring within
ASEAN to count toward the doublejump test (i.e., cumulative origin). For
example, if yarn from outside the region
is woven into cotton cloth in Malaysia
and the cloth is then cut and assembled
into garments in the Philippines, the
article becomes eligible for preferential
treatment.
There is no perfect or universal test
for determining the origin of a good
produced in two or more locations.
For this reason, it is important that
agreements provide clear definitions of
rules of origin and publish these rules.
The CTH or CTSH criterion must clearly
specify the HS chapter tariff headings
or subheadings that are addressed by
the rule. The percentage or ad valorem
criterion must indicate the formula for
calculating the percentage of originating

and non-originating material and clearly

define the price being used as the
denominator. The SP or technical test
criterion must be based on a positive
standard and must precisely set out the
operation that confers origin (negative
standards may be set out to clarify the
positive standard).

Administrative Requirements
It is quite useful for an FTA to include
an annex with examples and guides
for firms and traders. These may be set
out in an operational manual on rules
of origin containing illustrations and
practical examples of the application
of each type of test and any supporting
documentation that the customs requires.
The manual should have specimens of the
required documents, including certificates
of origin. JMEPA provides a detailed
annex with administrative procedures
for obtaining and completing certificates
of origin (COOs) including procedural
matters with regard to administration
and enforcement of ROOs. The annex
gives detailed information on seven
rules associated with COO modification
and minor errors, loss, or theft, as well
as related provisions with regard to
shipments that may pass through a third
party. Four rules are also set forth to
clarify administration and enforcement,
including offices responsible, stamps and
specimens of signatures and stamps used
by the administering authorities, offices
responsible for advance customs rulings,
and matters pertaining to communication
between responsible authorities.
The annex also contains appendixes
with specimens of the COOs and
instructions for completing the COO
forms, examples of the calculation of the
percentage of qualifying value content,
and a clarification of product-specific
ROOs including de minimis provisions;
examples of documents required when

54 | How to design, negotiate, and implement a free trade agreement in asia

using ASEAN cumulation provisions;

and a description of operations for
dyeing or printing processes for textiles
and clothing items (HS 5063). In
general, the inclusion of such a detailed
annex on administrative aspects of
ROOs greatly increases transparency
and facilitates the use of agreements by
private enterprises.

Rules of Origin for Services

FTAs are increasingly providing
preferential access for commercial services
in addition to goods. While there are no
generally accepted principles or criteria
for identifying the origin of a service, six
types of tests tend to be used: nationality
of service provider or service-providing
entity, residency test, value-added test,
ownership test, intellectual input control
test, and mixed tests.78
In general, service agreements
(notified under Article V of GATS) may
extend preferences to any or all four
modes of supply of commercial services
(see Trade in Services section below).
The ROOs for services would have to take
into account which of the four modes of
supply is relevant in the provision of the
service.
Setting rules for determining the
country of origin of an internationally
traded service is essential for the
implementation of an FTA notified under
Article V of GATS. To the extent that
countries demand reciprocity in extending
MFN treatment to services (implying
discriminatory barriers to countries
not providing reciprocal access to their
markets79), ROOs are again necessary.
Article II of GATS codifies unconditional
MFN treatment but allows members
to maintain discriminatory measures,
78
79

This section draws on James (1998).

This is known as conditional MFN treatment (Grey
1990).

provided that these are listed and are

consistent with conditions set forth in the
Annex to Article II.
The principle of last substantial
transformation, which is used to provide
a basis for the tests used to determine
the origin of manufactured goods,
is irrelevant to international service
transactions (Kingston 1994). This
problem results from the difficulty in
evaluating the different components that
make up a service and the fact that the
nationality of a service-providing firm or
entity may not reflect the ownership and
control of the firm or entity.
Of the six possible ways of
determining the origin of a service
outlined above, most countries adopt an
ROO based on residency or ownership
and control of the service-providing
entity or, in cases where establishment
is unnecessary, on the control of
the essential input without which
the service cannot be provided. The
latter is simple in the case of services
provided by natural persons. In contrast,
determining non-originating value added
of a service is likely to be extremely
difficult. Similarly, if foreign investment
is required to provide a service through
establishment, the origin rule by
residency test is rather straightforward.
Residency is simply the place where the
service firm is incorporated, provided the
firm has a substantial presence in that
location (Hufbauer and Schott 1993:
61). Selecting the origin of cross-border
services, particularly network services,
presents a difficulty similar to that
encountered in determining the country
of origin of a good produced in several
locations in a global production and
distribution network. In general, simple
and transparent ROOs based on the
residency test or ownership and effective
control of the service are desirable on
efficiency and fairness grounds.

part ii: coverage of a free Trade agreement |55

Costs of Compliance and Preferential

Rules of Origin
Compliance with ROOs imposes costs
on firms and traders. Firms must decide
whether the benefits of receiving
preferential tariff treatment are greater
than the costs of complying with the
ROOs.80 Costly and complex rules of
origin are an important consideration.
This is accentuated when a large and
important economy such as Japan, the
EU, or the US negotiates numerous
separate bilateral FTAs with differing sets
of rules of origin. Development of hub
and spoke systems of FTAs, where the
hub economy has preferential access to
each spoke but spokes lack connection,
can isolate spokes, divert trade and
investment, and raise trade costs (ADB
2006). Consistent and clear ROOs are
desirable in avoiding the development
of hub-and-spoke systems but such
an outcome is unlikely when industry
interest groups lobby for ROOs designed
to protect their interests. Indeed a review
of ROOs in bilateral agreements involving
major Asian hub economies (Japan,
Republic of Korea, PRC, Singapore, and
Thailand) revealed that ROOs vary not
only across hubs but even within huband-spoke systems (James 2006). The
spaghetti bowl problem of complex,
inconsistent, and overlapping ROOs is
therefore on the rise and is likely to get
worse before it gets better.

80

There are few ex post studies of the costs of

compliance with rules of origin. See, for example,
Productivity Commission (2004). The study
estimated that costs of compliance with ROOs in the
AustraliaNew Zealand Closer Economic Relationship
(CER) were about 1.56.0% of the ex-factory price of
manufactured goods. Herin (1986) reports that the
costs of compliance with EC ROOs led one fourth of
export firms in the EFTA to simply forgo attempting to
comply. Palmeter (1993) finds the cost of compliance
with EC rules of origin to be equivalent to 5% of
production costs.

The costs of ROOs can be conceived of

as being a direct addition to a firms costs
in the sense of requiring the firm wishing
to avail itself of tariff preferences to incur
added costs. For example, keeping records
of all shipments of inputs and their prices
in production is necessary to establish
compliance with a value-added rule.
However, the costs may also be indirect.
For example, if firms are required to make
fabric from originating yarn and to cut,
trim, and assemble garments within the
member territories under the SP test for
textiles and apparel, this will discourage
them from locating production outside
the FTA, even if certain processes could
be done at lower cost. Indeed, ROOs
may discourage firms from undertaking
outward processing arrangements in
locations that would otherwise benefit
them through low-cost, labor-intensive
operations.
The CTH test is widely adopted as the
basis for ROOs for processed primary
goods and manufactured products in the
WTO. However, the test is not perfect.
First of all, the HS tariff classification
was not designed with ROOs in mind,
nor has any other tariff classification
system been so designed. This means that
products may undergo a last substantial
transformation without changing tariff
heading, particularly within machinery
sectors where assembly is a very
substantial transformation but does not
constitute a CTH. In such cases, a CTSH
rule may be used at the HS six-digit level,
but this is usually supplemented by a
minimal regional content or value-added
rule. The value-added requirement is
usually set high enough to discourage
firms from outsourcing production to
lower-cost non-members, thus indirectly
adding to production costs. Second,
tariff schedules used for purposes of CTH
become obsolete and must be constantly
revised and updated every 5 years.

56 | How to design, negotiate, and implement a free trade agreement in asia

Countries often exercise large amounts of

discretion in applying the CTH test and
in selecting processed or manufactured
products with rules of origin that are
exceptions to a CTH or CTSH test.
The value-added test is widely regarded
as the most objective test, but this is the
case only if clear accounting principles
are applied uniformly. The test sets a
minimum threshold for regional content
necessary to confer origin but may also set
a maximum threshold for non-originating
content as a percentage of the goods
price. Price itself is variously defined as
ex-factory, FOB, and CIF price in codes
of rules of origin. The lack of precision
of CTH-based rules often leads to the
application of the value-added test as a
supplement or as an alternative to the
CTH rule for manufactured products.
One drawback to the value-added rule is
that higher value-added requirements are
more difficult for less-developed countries
to achieve than for more-developed
countries, particularly where the former
are engaging in labor-intensive activities
using imported intermediate products.
The SP test is used in cases where
product value chains are complex and
operations take place in two or more
countries. The SP rule is supposed to be
based on a positive standard, that is, a
statement of operations or processes that
do confer origin, and not of those that
do not.81 However, in many cases the SP
test can be used as a commercial policy
instrument designed to protect domestic
producers rather than as an objective
test of rule of origin. The SP test is used
often in HS Chapters 5063 covering
textiles and apparel and may involve a
two-step (double jump such as fiber
to fabric or yarn to clothing) or even a
triple transformation. For example, to
comply with the NAFTA rules of origin
81

However, the latter may be used to clarify a positive

standard.

(see Box 2.3) clothing items must be cut

and assembled from fabric that contains
only yarn originating within the member
countries, subject to a maximum of 7%
by weight non-originating fabric or yarn.
The exemption of the 7% is under the de
minimis provision that allows a certain
exemption by weight of various types
of non-originating material (such as
certain types of fabric or fiber in textile
fabric and clothing that are not produced
within the FTA), but careful and costly
accounting is required of firms in
complying with these requirements.

Cumulation and Flexibility in Satisfying

Rules of Origin in PTAs
For developing countries to enjoy the
benefits of preferential market access
under unilateral preference schemes like
the Generalized System of Preferences
(GSP) and other preferential trade
schemes, the EU, Canada, and Japan
have modified their ROOs to allow
cumulation between developing
countries, in the form of value-added
(as in Canadas GSP) or cumulative
operations (as in the double-jump or
two-stage processing ROOs in Japans
and EUs GSP). The US has also shown
some flexibility in allowing apparel from
sub-Saharan African countries to use
non-originating fabric up to a limit under
the African Growth and Opportunity Act.
Japan allows ASEAN cumulation in its
GSP rules of origin (that is, operations
within ASEAN countries count toward
regional content requirements) and its
economic partnership agreement with
Malaysia also allows operations that take
place in another ASEAN country to count
toward the double-jump rule for textiles
and clothing. The EU has adopted a PanEuropean Cumulation System (PECS)
that permits inputs from any territory
with an association agreement to be
added to inputs from within the EU in

part ii: coverage of a free Trade agreement |57

Box 2.3: NAFTA Product-Specific Rules of

OriginTextiles and Apparel
The North American Free Trade Agreement (NAFTA)
of 1993 provides for special rules of origin (ROOs) for
intra-NAFTA trade in fibers, yarns, textiles, and clothing.
The agreement states that it takes precedence over
all other agreements members have with regard to
trade in textile products (including the Multi-Fiber
Arrangement). Stipulating the immediate elimination
of US import quotas on textile products from Mexico,
NAFTA prohibits the imposition of new quotas on such
goods, except as provided for in the safeguard provision
during a transition period.
One of the most interesting and most restrictive
provisions of the NAFTA special ROOs is the adoption of
a yarn-forward rule for most textile products. This rule
requires textile and clothing products to be produced
from yarn that originates within NAFTA member
countries to benefit from preferential treatment. For
clothing made from cotton or man-made fiber yarns,
however, the rule is fiber-forward. For such clothing
articles a triple transformation is required: from cotton
or man-made staple fibers to yarn, from yarn to fabric,
and from fabric to clothing or made-up articles of
textiles. For certain types of imported fabrics that are
not produced within the NAFTA textile industry or that
are deemed to be in short supply (particularly silk, linen,
and certain shirting fabrics) exceptions are allowed. A
de minimis provision also allows clothing using no more
than 7% by weight of non-originating fabrics to qualify
for preferences.
Source: NAFTA; James (2006).

meeting the value-added criterion for

duty-free access.
Allowing firms to choose between
complying through a CTH or CTSH test
or meeting a minimal regional content
requirement is an innovation in Japans
economic partnership agreements with
Indonesia, Malaysia, the Philippines, and
Singapore (see Appendix to Part II for
Malaysia and the Philippines). Firms may
comply through either type of test; this
arrangement is more flexible than the all
or nothing approach to rules of origin.
An additional bit of flexibility could be
gained in the case of value-added rules if
the rule could be satisfied by taking the
average percentage of regional content or
of non-originating content over a number

of shipments within a specified time

frame (say, 1 year) rather than requiring
every individual shipment to satisfy the
value-added test.

Trade in Services
While various models exist in FTAs
pertinent to liberalizing trade in services,
there is broad convergence on concepts,
approaches, and disciplines. Many of
these find their origin in the GATS but
there has also been much experimentation
over the last 10 years. A key element
that distinguishes preferential trade in
services is the approach to liberalization.
Distinctions tend to be drawn, depending
on whether a GATS-type or a NAFTA-type
approach has been followed.82 This section
explains the key concepts and approaches
in both models (including various hybrids).
It begins by explaining how trade in
services occurs and the types of preferences
that can be negotiated through an FTA. It
then examines the conformity requirements
of Article V of the GATS and the usual
provisions that are contained in the
services chapter of an FTA. This provides
the basis for explaining the various
approaches used in FTAs to negotiate
and schedule market access and national
treatment commitments on services.

Preferential Trade in Services:

Key Questions and Concepts
How are services traded across borders?
Understanding the different ways by
which services are traded internationally
is a fundamental starting point. For
trade in goods, the exchange is relatively
straightforward since goods are tangible
82

See Organisation for Economic Co-operation and

Development (OECD) (2002), Stephenson (2002), and
Marconini (2005).

58 | How to design, negotiate, and implement a free trade agreement in asia

Box 2.4: How Services are Traded

The Four Modes of Supply in the GATS
Virtually all free trade agreements (FTAs) follow the
General Agreement on Trade in Services (GATS)
definition of trade in services. The GATS does not define
what services are but defines instead the four modes of
service delivery.
Mode 1: Cross-Border Supply
The service itself crosses the border, rather than
the producer or consumer. Examples include services
provided via post or the Internet.
Mode 2: Consumption Abroad
The service consumer crosses the border to where
the service supplier is located to purchase and consume
services. Examples include holidays abroad, foreign
education, and overseas health care.
Mode 3: Commercial Presence
The service supplier establishes a commercial
presence through a foreign-owned affiliate, subsidiary, or
representative office in the country where the consumer is
located. Examples are a French bank operating in Thailand,
or a Malaysian telecommunications company in Malawi.
Mode 4: Movement of Natural Persons
A service supplier, in the form of a person, enters a
foreign market to supply a service. The service supplier
can be an independent supplier (e.g., a consultant, a
health worker) or an employee of a service supplier (e.g.,
a consultancy firm, a hospital, a construction company).
A nurse from the Philippines working on a contract
in Japan, for instance, would be a natural person who
moves to another country to supply a service for a
defined period of time.
Source: World Trade Organization (WTO) website. Available: www.wto.
org; authors compilation.

objects that can be stored, packaged,

and transported across borders. Services,
on the other hand, are by definition
intangible and can be transacted and
traded in more ways than goods. Some
services can be exchanged across a
border without either the producer or
consumer moving. Examples are the use
of the Internet to provide online services
like distance learning, e-banking, hotel
reservations, telemedicine, as well as many
other Internet-based services. However,
for some other services, the producer

and the consumer of that service have to

meet for the transaction to take place.
This is because the service is often not
created until it is delivered. To achieve this
proximity, either the producer has to move
to the consumer, or the consumer has to
move to the producer (see Box 2.4 for the
four modes of supply under the GATS).
While the four modes of supply
defined in the GATS have been criticized
for not necessarily reflecting transactions
in real life, where a service may be
delivered through more than one mode,
most FTAs still use them as the basis
for scheduling commitments. The share
of individual modes in world trade in
services has been estimated at: 40%
each for modes 1 and 3, 20% for mode
2 (mainly tourism), and less than 2%
for mode 4.83 Mode 3 trade, mostly
combined with FDI, has been the most
dynamic component in recent years.
The advantage of distinguishing
between the four modes of supply is
that it gives flexibility to negotiators to
liberalize only a certain type of activity
within a sector. The existence of four
possible ways of delivery, however, makes
the structure and content of the services
chapter of an FTA more complex than that
of the goods chapter.
What are barriers to trade in services and
how are preferences granted?
Unlike trade in goods, preferential
treatment in services is granted not
through tariffs but through the removal
of regulatory restrictions on foreign
services and service suppliers.84 Many
restrictions on foreign services and
service suppliers typically occur in
83
84

WTO Secretariat.
See Sauve and Mattoo (2003) for a discussion of
preferences in regional trade agreements that cover
services. See also Goode (2005) for an explanation of
the difference between eliminating discrimination and
liberalizing trade.

part ii: coverage of a free Trade agreement |59

technical regulations, licensing, and

qualification requirements. Some of these
restrictions may be discriminatory, with
foreign providers having to fulfil more
demanding or burdensome requirements
than domestic providers. Others may
be non-discriminatory since they apply
equally to both domestic and foreign
providers. Preferences are granted
when discriminatory restrictions, such
as national treatment restrictions on
foreign ownership, the type of legal entity
allowed, branching rights, performance
requirements,85 nationality, or citizenship
requirements for managers, are eased
or removed for an FTA party but not for
non-parties. Similarly, preferences may
occur when quantitative restrictions on
service output or on the number of service
suppliers are completely removed, or a
larger quota is allocated, but only for an
FTA party.
An important feature of reducing
barriers to trade in services is that, unlike
reducing barriers to trade in goods, it does
not lead to a loss of tariff revenue. The
removal of discrimination usually happens
through a change in domestic legislation,
the conclusion of mutual recognition
agreements, or the harmonization of
national laws and regulatory practices.
Hence, implementing preferences in
services may not always be easy or
feasible. The nature of service regulations
is such that many service restrictions,
once removed for one country, may not
continue to be applied to others, given
the difficulty of putting in place different
85

Performance requirements are measures that impose

certain requirements on the way investors operate
their business. These can include the proportion of
output that must be exported, the amount of inputs
that must be sourced locally, or requirements related
to the transfer of technology. These measures, which
affect trade in services, are typically prohibited in the
investment chapter of an FTA. The WTO Agreement on
Trade-Related Investment Measures also prohibits many
of these measures. Under the General Agreement on
Trade in Services (GATS), performance requirements,
if they are to be maintained, have to be scheduled as
market access or national treatment limitations.

regulatory regimes for suppliers from

different countries.86 This means that
many service sector reform measures,
agreed to in the context of an FTA, could
be relatively easy to multilateralize
(that is, extend to all partners). It would,
of course, generally increase economic
benefits to do so.
Conformity with Article V of the GATS
When negotiating preferences in the
context of an FTA, the parties need
to be mindful of the requirements of
Article V (economic integration) of the
GATS (see Box 2.5). Article V, formally
speaking, refers to economic integration
arrangements and, unlike the counterpart
Article XXIV provision of GATT, does not
distinguish between customs unions and
free-trade areas.
Article V does not define what might
constitute substantial sectoral coverage.
It simply notes that the phrase is to be
understood in terms of the number of
sectors, volume of trade, and modes of
supply, and that there should be no a
priori exclusion of any mode of supply.
Absence or elimination of substantially
all discrimination requires the parties
to an FTA to remove measures, usually
contained in laws and regulations, that
discriminate against foreign services
and suppliers. This condition is to
be satisfied through the removal of
existing discriminatory measures or the
prohibition of new or more discriminatory
measures, or both. It is important to note
that what is being required is the removal
of discriminatory treatment arising from
the regulation and not the regulation
itself. A timetable can be established
for removing discrimination. Measures
concerning payments and transfers, the
safeguarding of the balance of payments,
86

See Roy, Marchetti, and Lim (2006) for a discussion

of why preferential arrangements could potentially be
less harmful in services than in the goods trade.

60 | How to design, negotiate, and implement a free trade agreement in asia

Box 2.5: Meeting the Requirements

of GATS Article V
Article V of the General Agreement on Trade in Services
(GATS) permits World Trade Organization (WTO)
member countries to conclude free trade agreements
(FTAs) provided that certain requirements are met. The
FTA has to provide for
(i) substantial sectoral coverage;
(ii) the elimination of substantially all discrimination in
the sense of national treatment; and
(iii) not raising barriers against nonmembers as result
of the agreement.
All three conditions are cumulative and have to be
satisfied concurrently.
Rules of Origin and Developing-Country Flexibilities
Also contained in Article V is a liberal clause on rules
of origin and additional flexibilities for developing
countries. A service supplier from a third country
incorporated in one of the parties to the FTA must be
allowed to enjoy preferential treatment within the FTA
as long as it engages in substantive business operations
within the territory of the parties.
Developing countries have more flexibility in fulfilling
the conditions of substantial sectoral coverage and
eliminating discriminatory measures.a In agreements
consisting entirely of developing countries, more
favorable treatment may continue to be given to firms
owned or controlled by their own nationals.
Notification Requirements
WTO members concluding FTAs in services
must notify these agreements, and any subsequent
enlargements or significant changes, to the WTO Council
for Trade in Services. While the council is mandated
to examine these notifications for their conformity to
Article V it has, to date, not launched any conformity
examinations. Under current practice, notified FTAs are
forwarded by the Council for Trade in Services to the
Committee on Regional Trade Agreements (CRTA) for
any eventual examination. With the adoption of a new
regional trading agreement transparency mechanism
by the General Council on 14 December 2006, the WTO
Secretariat is mandated to submit a factual report for
discussion by WTO members in the CRTA.b
It is not clear from GATS Article III(a) whether that flexibility also
extends to developed countries that enter into agreements with
developing countries, though the presumption is that it applies only
to parties that are developing countries.
The transparency mechanism is implemented provisionally.
Members are to review, and if necessary modify, the decision, and
replace it with a permanent mechanism adopted as part of the
overall results of the Doha Round. The decision is available at www.
wto.org/english/news_e/news06_e/job06_59rev5_e.doc

Source: WTO website. Available: www.wto.org.

general exceptions, and security

exceptions may be maintained.
While an FTA lowers barriers between
the parties to the agreement, it must not
at the same time raise the overall level of
barriers faced by nonparties as compared
with the situation before the agreement.
If significant changes occur, WTO
members affected by them may seek
compensation or even withdraw some of
their MFN commitments.
Article V is meant to ensure that the
FTA, although it may be discriminatory,
contributes to further liberalization at the
multilateral level. In practice, assessing
conformity with Article V is difficult for
a number of reasons. For one, there are
severe data limitations on the service
trade, making it almost impossible to
accurately assess the volume of trade
covered by an FTA on services.87 There
is also no agreement on the meaning
of substantial sectoral coverage and
substantially all discrimination.
Moreover, since Article V allows
discrimination to be eliminated within
a reasonable time frame, questions may
arise as to what is reasonable. These
same questions have emerged in the
context of the GATT/WTO Article XXIV
in the context of goods. However, one
should not make too much of these
difficulties. An ordinary reading of the
word substantial indicates that the FTA
should be comprehensive in its coverage
(not exclude sectors) and should remove
nearly all discrimination between
the parties. An FTA that reproduces
commitments in the GATS with only
a limited number of improvements
would, on the face of it, not qualify. A
reasonable time frame should also be
one where phaseout periods are kept to a
strict minimum.

87

See Fink and Warren (2000).

part ii: coverage of a free Trade agreement |61

Contents of a services chapter: scope,

coverage, general disciplines, market access,
and national treatment
There is a strong degree of convergence
between FTAs and the GATS in scope,
coverage, and general disciplines. FTAs
also tend to follow the GATS structure of
a framework of rules and disciplines and
individual schedules of commitments.
In some FTAs, additional sectoral
commitments are taken in financial
services, telecommunications, and the
temporary movement of natural persons.
It is also increasingly common for servicerelated disciplines to be found in separate
chapters on investment, competition
policy, and government procurement.
In FTAs that follow a negative list
approach (see below the discussion of
scheduling approaches), the schedule
of commitments typically includes
reservations on existing and future
nonconforming measures.
Scope and Coverage. Many FTAs follow
the GATS and exclude air traffic rights
and services supplied in the exercise
of governmental authority from the
agreement. Following GATS Article 1(3),
governmental authority is defined as
services provided neither on a commercial
basis nor in competition with other
suppliers. Other common exclusions are
government procurement, subsidies,
and grants. Similar to the GATS, the
norm is also for FTAs to cover all
measures affecting trade in services at all
government levels including sub-federal
authorities and nongovernment bodies
exercising delegated authority.
There are some exceptions. In the
NAFTA-type FTAs, measures taken by local
governments (municipal level) are usually
excluded, and air transport, although
carved out of the services chapter, is
covered by the investment chapter as far
as mode 3 is concerned.

General Disciplines. After specifying

scope and coverage, FTAs tend to
contain a common set of general
disciplines, usually derived from the
GATS, on MFN treatment, transparency,
payments and transfers, monopolies and
exclusive providers, domestic regulation,
safeguards, subsidies, government
procurement, recognition, rules of origin,
and general exceptions. Apart from a few
innovations, there is often little difference
between the FTA and GATS provisions on
these general disciplines.
(i)

(ii)

Most-favored-nation clause. All

FTAs tend to contain an MFN
clause, which usually requires
the parties to the FTA to provide
treatment no less favorable than
that accorded to non-partners.
The purpose of this clause is to
ensure that no party to the FTA
will be disadvantaged if any other
party to the FTA negotiates better
concessions in another agreement
with a nonparty. This is an
interesting clause, as it essentially
ensures that whenever an FTA
commitment is negotiated, the
parties can avail themselves of the
best preferential treatment that its
FTA partner is providing or may
provide in any of its subsequent
FTAs. There may, however, be
legal and operational issues
to consider when negotiating
such clauses, since they may be
providing a guarantee that extends
beyond what the party originally
intended. There is also the issue of
the feasibility and consistency of
extending MFN treatment between
FTAs that may have significant
differences in structure and
content.
Transparency. As is the case under
the GATS, FTAs typically contain
obligations to publish relevant

62 | How to design, negotiate, and implement a free trade agreement in asia

measures and notify new (or

changes to existing) measures
affecting trade in services and to
establish national inquiry points to
provide information on measures
affecting the service trade upon
request. An innovation in FTAs
involving the US is a clause
requiring the opportunity for prior
comment on proposed changes in
service regulations.
(iii) Monopolies and restrictive business
practices. Since some services
are supplied by a monopoly
provider in many economies,
the FTA usually needs to specify
what these services are and the
extent to which competitors may
supply ancillary services. It is also
common to guarantee foreign
service providers access under
nondiscriminatory conditions
to the services provided by
a monopoly. There may also
be additional transparency
requirements including the
obligation to provide additional
information on the request of a
party. In some FTAs, disciplines
on monopolies and restrictive
business practices are contained in
a separate chapter on competition
policy.
(iv) Transfers and payments. It is usually
standard for FTAs to contain a
clause that prohibits restrictions
on transfers or payments subject
to prudential exceptions. However,
FTAs following the NAFTA model
and AFTA, for instance, allow
restrictions in the event of serious
balance of payments and external
financial difficulties. This is
similar to GATS Article XII. In
the Australia-Thailand FTA, the
prohibition is restricted only to the
extent that the restrictions would
affect scheduled commitments.

Recognition. An increasingly
important feature of FTAs is
mutual recognition agreements
(MRAs) for professional services.
An example of an MRA is the
requirement in FTAs following
the NAFTA model under which
the parties are required to give
equal opportunity to members
of the agreement and eliminate
citizenship or residency
requirements for recognition
or licensing within 2 years.
AFTA allows for the recognition
of equivalency in educational
requirements or experience
in the granting of licenses or
certifications. GATS Article VII on
MRAs requires WTO members that
have either begun or concluded
negotiations to notify the Council
for Trade in Services and to
provide adequate opportunity
to any other WTO member to
negotiate its accession to such
an agreement. In practice, many
countries appear to have taken
the line that MRAs negotiated as
part of an FTA are exempt from
the Article VII requirement. It
is argued that as the MRA was
negotiated in the FTA, it falls
under the Article V exception and
Article VII does not apply. On the
other hand, since the GATS does
not explicitly provide for a link
between economic integration
agreements and recognition, it
could also be argued that Article
V does not exempt WTO members
from their Article VII obligation.
(vi) Rules of origin. Unlike trade-ingoods, FTAs usually have liberal
ROOs for services (reflecting the
requirement in Article V).
Third-country investors,
provided they have substantial
business operations in one of
(v)

part ii: coverage of a free Trade agreement |63

the FTA parties, benefit from

the preferential treatment. More
details were covered in the Rules
of Origin section above.
(vii) Domestic regulation. The provisions
are often the same as those of the
GATS. There has been no progress
made in FTAs on sensitive issues
like the necessity test.
(viii) Safeguards, subsidies, and government
procurement. In general, there
has been little progress in FTAs
on unfinished rule items like
emergency safeguard measures
and subsidies. The safeguard
clause in FTAs typically refers
to negotiations in the WTO.
Negotiations on emergency
safeguard measures in the WTO
have, however, been inconclusive
so far. On subsidies, with the
exception of the EU and the
AustraliaNew Zealand Closer
Economic Relations, FTAs have
not established any dedicated
disciplines on subsidies.88
Moreover, subsidies and grants are
typically carved out from the scope
of the general disciplines. There
has been relatively more progress
on government procurement,
though this tends to feature in a
separate chapter on government
procurement rather than as part of
services per se.89
(ix) General exceptions. A feature of all
FTAs is general (i.e., public morals,
human, animal, or plant life or
health) and security exceptions
similar to those contained in Articles
XIV and XIV bis of the GATS.
Overall, FTAs do not go further than
the GATS with respect to the rules
area, e.g., safeguards, subsidies, or
88
89

See OECD (2002).

OECD (2002).

domestic regulation. Exceptions include

additional disciplines on financial services
and telecommunications, additional
transparency provisions, as well as some
sector-specific provisions relating to the
temporary movement of natural persons
and recognition. The most significant
variance between FTAs and the GATS, as
well as between FTAs themselves, tends to
come in their liberalization commitments,
which are discussed below.
Market Access and National Treatment.
The degree of liberalization that
occurs in an FTA depends on the
commitments made in respect to
market access and national treatment.
Article XVI of the GATS allows WTO
members when making commitments
to schedule four types of quantitative
restrictions and limitations on the form
of legal establishment and foreign equity
participation. In general, FTAs using a
positive list tend to include a GATS-like
market access provision, while those using
a negative list normally require only the
notification of quantitative restrictions
(see explanation of positive and negative
lists below). It should be noted that the
GATS market access provision does not
appear in FTAs that follow the NAFTA
model. In that connection, GATS goes
further than NAFTA-based FTAs, as
Article XVI includes nondiscriminatory
quantitative restrictions.
A key element of all FTAs is the
provision on national treatment, which is
the building block of any agreement on
services. The national treatment provision
of the GATS is found in Article XVII. The
provision contains the notion of treatment
no less favorable than that accorded to
locally owned service suppliers. The
benchmark for national treatment in the
GATS is not identical treatment but
treatment that does not modify the
conditions of competition in favor of
national services and service suppliers.

64 | How to design, negotiate, and implement a free trade agreement in asia

Unlike market access, there is no

exhaustive listing of limitations that can
be scheduled. Most FTAs have adopted
the national treatment provision of the
GATS. In FTAs that contain a separate
investment chapter, there is usually a
national treatment provision similar to
that found in the services chapter.
It should be noted that FTAs following
the NAFTA model usually have an
important provision regarding the
standard of treatment that does not find a
parallel in the GATS.90 Under the provision,
the service suppliers of all parties must
enjoy the better of national treatment and
MFN treatment. In other words, if the PRC
gets better MFN treatment in a particular
state of Australia than Australian service
providers, then Singaporean or Chilean
service providers should also get MFN and
not national treatment.

Positive versus Negative List

A key element that distinguishes between
GATS-type and NAFTA-type models is
the way commitments are scheduled.
The GATS uses a positive list of specific
commitments that are in turn subject to
limitations or conditions inscribed. This
is in contrast to a NAFTA-based negative
list, where all services covered by the FTA
are considered liberalized unless indicated
otherwise through lists of reservations.91
Positive list
In a positive list, only services included
in the schedule will enjoy preferential
treatment to the extent that there are
90

91

Marconini (2005) discusses the North American Free

Trade Agreement (NAFTA) inspired approach in some
detail.
NAFTA-type and GATS-type agreements also differ in
that the former deal with different modes of supply
in different chapters: disciplines for modes 1, 2, and
4 in a chapter on cross-border trade in services, and
disciplines relating to mode 3 as part of a chapter on
investment.

no limitations. National schedules list

service sectors and modes of supply
that enjoy market access and national
treatment, subject to limitations.
Countries are at liberty to impose traderestrictive measures in all nonscheduled
sectors, although those measures may
still be subject to an agreements general
disciplines. The use of a positive list has
various pros and cons.
Countries may prefer a positive
list because its use in the GATS has
already made them familiar with the
approach. A positive list may also be
easier to handle for countries that feel
less confident about their regulatory
regime and wish to have more time
before committing an existing regulatory
situation through a negative list.92 The
pace of liberalization is likely to be slower
under such an approach, since progress
is to be made through rounds of requestoffer negotiations. Such negotiations
typically take a longer time to reach a
critical mass. A major problem with a
positive list is that it does not provide
any information on services that are not
included in the schedule or the actual
regime since economies may choose not
to bind at the status quo.
An example of a positive list used in
the Singapore-India FTA is provided in
Box 2.6. The example is a pure GATSstyle positive list with a listing of services
in the far left column and a breakdown
of commitments into the four respective
modes of supply. The commitment is
subject to limitations on market access
and national treatment. There may also
be limitations in the horizontal section
that are not shown in this example.
The term None refers to a situation of
full liberalization with no limitations.
Unbound, on the contrary, means that
no commitment is provided and any
92

This point is observed by many commentators

including Goode (2005), Marconini (2005),
Stephenson (2002), and Sauve and Mattoo (2002).

part ii: coverage of a free Trade agreement |65

Box 2.6: A Traditional GATS-Style Positive List

This example is taken from Singapores schedule of commitments in its free trade agreement with India.
Modes of supply: (i) Cross-border supply, (ii) consumption abroad, (iii) commercial presence,
(iv) presence of natural persons
Sector or Subsector

Limitations on
Market Access

Limitations on
National Treatment

Additional
Commitments

SECTOR-SPECIFIC COMMITMENTS
1. Business Services
A. Professional Services
Legal consultancy services
for Indian law (861**)

(i) Unbound
(ii)None
(iii)Unbound
(iv)Unbound except as
indicated in the
horizontal section

(i) Unbound
(ii)None
(iii)Unbound
(iv)Unbound

Accounting, auditing, and

bookkeeping services,
except for financial
auditing services (862**)

(i) None
(ii)None
(iii)None
(iv)Unbound except as
indicated in the
horizontal section

(i) None
(ii)None
(iii)None
(iv)Unbound

limitation can be imposed. It is common

in a positive list in mode 4 to refer to the
horizontal section for the commitments.
This is because mode 4 commitments tend
not to be sector-specific but to apply to
all sectors (see explanation of horizontal
commitments below).
Variations on the positive-list approach
Some innovation has taken place
among FTAs using the positive-list
approach to simplify the schedule. These
include removing the need to schedule
commitments by mode of supply, and
reducing market access and national
treatment limitations to one column
(see Box 2.7).93 This is an interesting
simplification of the schedule, since
overlaps between market access and
national treatment often give rise to

considerable confusion.94 Merging the

market access and national treatment
columns into one removes the problem of
how to treat overlaps.
Not specifying how the service is
delivered arguably does little to reduce
the complexity of scheduling, since the
parties still remain free to schedule
limitations by mode of supply. On the
other hand, having only one column for
limitations is an interesting innovation, as
a two-column schedule poses the typical
problem of distinguishing between market
access and national treatment.95 Still,
despite these attempts to simplify the
schedule, very few GATS-plus concessions
were actually granted in the ThailandAustralia FTA.
94

95
93

Also discussed in Goode (2005).

The convention in the GATS is to schedule limitations

that relate to both market access and national
treatment, in the market access column only.
The guideline in the GATS is to schedule limitations in
the market access column if there is an overlap with
national treatment.

66 | How to design, negotiate, and implement a free trade agreement in asia

Box 2.7: A Simplified Positive Lista

This example is taken from Thailands schedule of commitments in its FTA with Australia. The
market access and national treatment measures listed in the limitations column condition all the
sector-specific commitments.
Sector or Subsector

Limitations

HORIZONTAL COMMITMENTS
Local Government Measures
Thailand reserves the right to adopt or maintain
any measure administered at the local government
level unless that measure is applied on a
discriminatory basis with the intention of nullifying
or impairing the benefit accruing to Australia under
the terms of the Agreement.

SECTOR-SPECIFIC COMMITMENTS
Notes:
(i) Commitments in this schedule are subject to the general limitations contained in the
Horizontal Commitments section of this schedule.
(ii) The (*) indicates that the sector-specific commitment for cross-border supply is unbound
because of the lack of technical feasibility.b
(iii) The (**) indicates that the service specified constitutes only a part of the total range of
activities covered by the Provisional Central Product Classification (CPC) concordance.
1. Business Services
General management consulting services
(CPC 86501) provided exclusively
through regional operating headquarters,
its associated company, or a foreign
branch.

Equity participation of up to 100% by Australian

investors/service suppliers is allowed.

Convention services (CPC 87909**)

excluding catering and beverage services

Total area of not less than 4,000 square meters; and

total area of the largest hall must not be less than
3,000 square meters.

International exhibition services

(CPC 87909**)

Total area of not less than 50 rai (80,000 square

meters) with an indoor exhibition area of not less
than 25,000 square meters.

a
b

With one column for market access and national treatment limitations and no modes of supply specified.
The entry unbound because of the lack of technical feasibility is a convention borrowed from the General Agreement
on Trade Services (GATS). Although reference is made to it in the Thailand-Australia FTA, it is not used in the schedule.

The Japan-Philippines Economic

Partnership Agreement (JPEPA)
introduces an interesting innovation: an
additional column (Stand Still [SS]) in
which parties can specify whether the
limitation is an existing nonconforming
measure. This is a helpful innovation,
since it clarifies current measures and
also encourages the parties to bind the
status quo, if not to liberalize. Binding
existing nonconforming measures is a

feature that is normally found only in

negative-list FTAs (see Appendix to Part II
for an example).
Negative list
NAFTA pioneered the use of a negative
list, where all services are considered
liberalized unless otherwise indicated
through lists of reservations. In other
words, all measures and sectors are

part ii: coverage of a free Trade agreement |67

Box 2.8: An Annex 1 Reservation List

This example is taken from the Australia-US FTA.

Box 2.9: An Annex 2 Reservation on

Future Measures

Sector

Telecommunications

This example is taken from the US-Chile FTA.

Obligations
Concerned

National Treatment (Article 11.3)

Senior Management and Boards of
Directors (Article 11.10)

Sector

Social Services

Obligations
Concerned

Level of
Government

Central

Source
ofMeasure

Telstra Corporation Act of 1991

National Treatment (Articles 10.2, 11.2)

Most-Favored-Nation Treatment
(Articles 10.3, 11.3)
Local Presence (Article 11.5)
Performance Requirements (Article 10.5)
Senior Management and Boards of
Directors (Article 10.6)

Description

Investment
The maximum aggregate foreign
ownership allowed in Telstra is 35%
of the Telstra shares that are not
Commonwealth-held. The maximum
individual foreign ownership allowed
in Telstra is 5% of the Telstra shares
that are not Commonwealth-held. The
Chairperson and a majority of directors
of Telstra must be Australian citizens,
and Telstra is required to maintain its
head office, main base of operations,
and place of incorporation in Australia.

Description

Investment and Cross-Border Services

The United States reserves the right
to adopt or maintain any measure
with respect to the provision of law
enforcement and correctional services,
and the following services to the extent
they are social services established or
maintained for a public purpose: income
security or insurance, social security
or insurance, social welfare, public
education, public training, health, and
child care.

considered free of restrictions unless

there is a reservation listed in the
nonconforming measures annex. The
absence of any reservations indicates
that the sector is fully liberalized.
Reservations are typically for existing
nonconforming measures (Annex 1) and
for future measures (Annex 2). Negative
lists have been used in all NAFTA-type
FTAs. Such an approach can potentially
provide a high degree of transparency
since, subject to the number of Annex
1 and Annex 2 reservations, the actual
level of openness is spelled out, along
with an indication of the legal/regulatory
framework in place.
FTAs using a negative-list approach also
typically include a ratchet mechanism,
whereby any future liberalization
of Annex 1type reservations is
automatically locked in. In other words,
whenever an FTA member removes any
restriction, even without any negotiation,
it must extend the benefit of that

liberalization to all FTA parties. The

ratchet mechanism thus automatically
binds any liberalization within the FTA.
Clearly, countries that feel confident
about their regulatory regime and have
relatively few discriminatory measures
tend to favor a negative-list approach.96
Otherwise, countries would resort to using
the Annex 1 and Annex 2 reservation
lists, and thus defeat the point of using
a negative-list approach. There is also
sometimes fear that a negative list would
bind the hands of governments, since it
cannot possibly be known what services
might be developed over time. However,
it is worth bearing in mind that all FTAs,
as with the GATS, recognize the right to
regulate. What is required in a schedule is
the removal of discriminatory measures,
not necessarily deregulation.
A negative list has no schedules of
commitments with sectors, modes of
96

Marconini (2005).

68 | How to design, negotiate, and implement a free trade agreement in asia

supply, and limitations, since all services

by definition are liberalized. The annex
of the agreements contains lists of
nonconforming measures, i.e., those
measures that for the time being continue
to discriminate against foreign service
suppliers. Box 2.8 gives an example of an
Annex 1 list of existing nonconforming
measures from the Australia-US FTA.
By expressing a reservation in Annex
1, the party exercises its right under
the FTA to maintain the discriminatory
measure in its current form, and is bound
not to make the measure more restrictive
at a later date. The format of an Annex
1 listing is fairly straightforward:
virtually all FTAs using a negative list
follow the NAFTA template. It is also
possible to pre-commit in Annex 1 by
setting a timetable for the lifting of the
reservation. Since reservations are based
on existing nonconforming measures,
such precommitments to phase out
restrictions are a good indication of actual
liberalization (for examples of phase-out
commitments in various FTAs, see Matrix
1 in the Appendix to Part II).
A second type of reservationon
future measuresallows parties to
reserve the right to adopt new or more
restrictive measures. In a sense, this is
somewhat equivalent to the unbound
situation in a GATS positive list. Annex 2
reservations on future measures provide
important exceptions to the sweeping
coverage of a negative list. Box 2.9 gives
an example from the US-Chile FTA.
Whether negative-list FTAs liberalize
more than positive-list FTAs depends on
what is reserved in Annex 1 and Annex 2.
In principle, it is possible to arrive at the
same level of liberalization with either
a negative or a positive list. In practice,
however, FTAs using a negative list tend to
show a significant degree of improvement
over commitments taken in the GATS,
compared with FTAs using a positive list.97
97

See Roy, Marchetti, and Lim (2006).

It should nonetheless be kept in mind

that a certain degree of self-selection
may be involved in these results, since
countries with the greatest motivation
to liberalize may have chosen to use
a negative-list approach. More recent
studies are also starting to show that the
choice of a negative-list or positive-list
approach does not always indicate the
extent of liberalization, contrary to what
is sometimes argued.98 For instance, some
FTAs that are following a negative-list
approach exclude a high number of sectors
in their specific commitments.99 Ultimately,
what matters more is what is committed
in the individual schedules rather than the
form these commitments take.

Making Horizontal Commitments

There is often considerable confusion
about the status of horizontal
commitments in a schedule. To clarify,
horizontal commitments in a GATS-type
positive list bind all sectors listed in the
schedule unless stated otherwise.100
Essentially a formatting convention that
removes the need to repeat the same
binding in all the subsectors that follow,
horizontal commitments are thus normally
used for measures of general application
that apply to all sectors (see Box 2.7:
the limitation placed by Thailand on
local government measures binds all the
sector-specific commitments that follow).
Neither horizontal commitments nor
sector-specific commitments rank higher;
98

See Ochiai, Dee, and Findlay (2007); and Lesher and

Miroudot (2006).
99
See Ochiai, Dee, and Findlay (2007); and Lesher and
Miroudot (2006). Percentages of sectoral exclusions
in negative-list FTAs: ChileRepublic of Korea, 46.4%,
Japan-Mexico, 53.3%, US-Singapore, 59.4%, Republic
of KoreaSingapore, 59.8% (from Ochiai, Dee, and
Findlay [2007]).
100
The use of horizontal commitments in relation to
mode 4 (refer to Box 4) sometimes creates confusion.
The GATS convention is for members to specify in the
horizontal section the market access and national
treatment they grant for mode 4, but not for the other
modes of supply. Entries like Unbound except as
indicated in the horizontal section are thus common
in the sector-specific section.

part ii: coverage of a free Trade agreement |69

the two need to be read together. The

horizontal section in a negative list follows
a similar logic. It contains reservations of
a general nature, which do not need to
be repeated in all following subsectors. In
terms of good practice, only commitments
or reservations that are truly horizontal, in
the sense that they bind all sectors, should
be included in this section.

Sector-Specific Disciplines
Other interesting innovations in FTAs
are found in sector-specific disciplines
and liberalization modalities in financial
services, telecommunications, and the
temporary movement of natural persons.101
Financial services
Financial services tend to be heavily
regulated for prudential reasons. The
sector is also characterized by a large
number of diverse services that are
defined in the GATS Annex on Financial
Services. Many of the standard provisions
of a typical FTA could, of course, easily
apply to financial services as well.
However, there is clearly a distinct
preference for a separate chapter because
of the unique characteristics of the
financial services sector. Box 2.10 lists
typical contents of a financial services
chapter and approaches taken.
In general, in developed and advanced
developing countries, market access and
national treatment restrictions in financial
services have been substantially reduced
through domestic reform, and most of
the progress, especially for commercial
presence, is reflected in the commitments
made in the GATS 1997 Round of
financial services negotiations. As a result,
when it comes to financial services, there
101

The examples given here of typical provisions in the

telecommunications and financial services chapters of
FTAs are drawn mainly from unpublished research by the
Institute for International Trade. See also Goode (2005)
for examples of typical provisions in these two sectors.

is greater emphasis in FTAs on addressing

nondiscriminatory measures, licensing
requirements, transparency, efficiency
of the administrative process, and
competitive safeguards.
Telecommunications
An increasing number of FTAs have a
separate chapter dealing with the unique
characteristics of the telecommunications
services sector. It is also worth bearing
in mind that in the extended GATS
Telecommunication Services negotiations,
which concluded in February 1997,
many WTO members committed to open
their national markets to international
competition, thus removing the more
important barriers to market access.
While there is no single approach
to a telecommunications chapter,
it is clear that the value added for
telecommunications services for many
FTAs comes in further developing the
regulatory disciplines. NAFTA-type FTAs,
especially those involving the US, for
example, combine elements of the NAFTA,
the GATS Annex on Telecommunications,
and the WTO Reference Paper, to form
a comprehensive set of regulatory
disciplines, which are GATS-plus. Other
FTAs, such as Thailand-Australia, JapanSingapore, New ZealandSingapore,
Philippines-Japan, do not have a separate
chapter on telecommunications services.
Network issues set telecommunications
apart. Without access to the essential
facilities of the network, it is impossible
to provide telecommunication services.
There is also a need to separate policy
and regulation. A separate independent
regulator must be established to ensure a
transparent approach to the players in the
market as well as regulatory certainty.
Provisions on telecommunications
services are intended to ensure access to
and use of the services without undue
discrimination against service providers.
This is important because public

70 | How to design, negotiate, and implement a free trade agreement in asia

Box 2.10: Typical Features of Financial Services Provisions of FTAs

Scope and Coverage
Financial services are defined in the same way as in
the Annex on Financial Services. Typical exclusions
are government procurement of financial services,
and activities or services forming part of a public
retirement plan or statutory system.
Liberalization
The chapter specifies the approachwhether
positive- or negative-listto market access and
national treatment. In all its free trade agreements
(FTAs), the US combines positive- and negative-list
approaches for financial services. On market access,
the provision is modeled on General Agreement on
Trade in Services (GATS) Article XVI, but applies only
to mode 3. Liberalization is subject to the traditional
negative-list approach (establishment is allowed in
all financial service activities unless a reservation
is made). However, cross-border trade (modes 1
and 2) is subject to a different approach, similar to
the one adopted in the World Trade Organizations
(WTO) Understanding on Commitments in Financial
Services, i.e., a positive list of commitments.
Regulation and Supervision
The need for effective prudential regulation
is well established in all FTAs. For instance, all
prudential measures taken by central banks and
monetary authorities are typically carved out of
the FTA. The main principle as regards regulation
and supervision, while recognizing the need
for prudential regulation, is nondiscrimination.
If the regulation is needed for prudential
purposes, normally there is little justification for
discrimination between domestic and foreign
suppliers.

New Financial Services

An interesting issue that arises in FTA
negotiations is how to treat new financial services,
that is, those services that are likely to be developed
in the future and are unknown to the negotiators at
the time the FTA is finalized. In cautious agreements,
the approach taken is for the parties to consult on
the possibility of covering new financial services
at the request of one party. In more ambitious
agreements, FTA parties already agree at the time
the FTA enters into force.
Transparency
In addition to the usual transparency obligations,
each party is required to publish in advance any
regulations of general application relating to
financial services. An important innovation is the
requirement to provide interested persons and the
other party a reasonable opportunity to comment
on such proposed regulations.
Financial Services Committee
NAFTA-type FTAs form financial services
committees to supervise the implementation of
the chapter and its further elaboration, to consider
issues regarding financial services that are referred
to the committees, and to participate in dispute
settlement process.
Dispute Settlement Provisions
Some FTAs lay down a distinct set of dispute
settlement provisions for financial services. These
emphasize the need for panelists to have financial
services expertise and confine retaliatory measures,
if applicable, to the financial services sector. There is
also a procedural requirement for investor disputes
on financial services to be referred to the financial
services committee for decision.

Source: Institute for International Trade, unpublished case studies.

telecommunications services are often

provided by a monopoly or under
conditions where a former monopoly still
dominates the market. As shown in Box
2.11, the telecommunications chapters
also have provisions pertaining to the
behavior of regulatory bodies, especially
with respect to decision making,
transparency, and technical standards.
Including a telecommunications
services chapter in an FTA allows the

parties to develop mutually beneficial

interpretations of the general principles
laid down in the GATS Annex on
Telecommunication Services. The key
challenge in developing such
interpretations is that markets in an FTA
are usually very different in nature, size,
and stage of development. A regulatory
issue that is important in one market
might be less so in another.

part ii: coverage of a free Trade agreement | 71

Box 2.11: Typical Features of Telecommunications Services Provisions of FTAs

Free trade agreement (FTA) provisions on
telecommunications services typically follow
the structure and content of the World Trade
Organizations General Agreement on Trade in
Services (GATS) Telecommunications Reference
Paper, with details added.
Scope and Coverage
The chapter usually applies to (i) measures relating
to access to and use of public telecommunications
services, (ii) obligations of suppliers of public
telecommunications services, (iii) measures relating
to public telecommunication networks, and (iv)
measures relating to the supply of value-added
services. Other provisions include no requirement
for an enterprise to construct a network or provide
a service not generally supplied by a public entity
or for a broadcaster to make available its facilities
as a public telecommunications network. Normally
excluded from coverage are measures relating to
broadcast or cable distribution of radio or television
programming.
Regulatory Transparency
A set of good practices, such as in US-Oman,
include prompt publication of the rules issued by the
telecommunications regulatory body, an opportunity
to comment on rules, and the availability to the
public of information and measures relating to the
provision of telecommunications services. Licensing
must be fair and nondiscriminatory.
Actions of Independent Regulators
The independence of the regulatory authority
is central, as it affects market access and national

treatment. FTAs (e.g., US-Peru) typically require the

telecommunications regulatory body to be separate
from and not accountable to any supplier of public
telecommunications services. All decisions by the
regulatory body must be impartial and must not
accord more favorable treatment to a supplier
owned by the government. Universal service
obligations must be administered transparently,
fairly, and with competitive neutrality.
General Competitive Safeguards and
Interconnection
Competition policy is vital to telecommunications
services. FTAs generally include safeguards against
anticompetitive practices such as anticompetitive
horizontal arrangements, misuse of market
power, anticompetitive vertical arrangements,
and anticompetitive mergers and acquisitions.
Public telecommunications services must provide
interconnection at reasonable rates and protect
the confidentiality of commercially sensitive
information.
Obligations of Major Suppliers
A major supplier is typically defined as a supplier
of public telecommunications services that can
materially affect price and supply. FTAs, such as US
Central America Free Trade Agreement, oblige major
suppliers not to discriminate against unrelated
suppliers (i.e., not their own subsidiaries and
affiliates); to charge reasonable rates; to unbundle
network elements; and to provide fair treatment
in interconnection, co-location, and rights-of-way.
Major suppliers are also subject to anticompetitive
safeguards, including anticompetitive cross-subsidy.

Source: Institute for International Trade, unpublished case studies.

Temporary movement of natural persons

Given the sensitivities surrounding the
movement of labor, only very limited
progress has been made in the GATS on
mode 4 (the temporary movement of
natural persons to supply a service).102
These sensitivities are also present in
FTAs, though there have been some
interesting innovations with respect
to professionals and business visitors
102

Most FTAs apply the GATS definition of mode 4.

(including intra-corporate transferees).

Most NAFTA-type negative-list FTAs
have a separate chapter on the
movement of natural persons, which
establishes disciplines for the entry of
businesspersons active in the goods and
services sectors. Also common is a review
mechanism, which gives persons denied
entry an opportunity to have their claims
considered by an independent person or
tribunal. The substantive disciplines and
depth of commitments in these chapters
vary from agreement to agreement (see

72 | How to design, negotiate, and implement a free trade agreement in asia

Box 2.12: Movement of Natural Persons

Provisions on Business Visitors
Sometimes a free trade agreement (FTA) will address
business mobility issues for investment and services
in separate chapters. As there is usually considerable
overlap between the business mobility provisions
in these chapters, it would seem appropriate (where
possible) to combine relevant provisions in one chapter.
In that case, the main provisions would tend to govern
the following matters:
(i) a statement that the agreement does not apply
to measures regarding nationality or citizenship,
permanent residence, or permanent employment;
(ii) a listing of the chapters of the agreement to which
the provisions on entry apply;
(iii) the conditions under which temporary entry for
short-term business visitors and intra-corporate
transferees may be granted;
(iv) the conditions under which temporary entry may
be denied;
(v) an agreement that the parties retain the right to
regulate the entry of natural persons and to ensure
the orderly movement of natural persons across
their borders;
(vi) a provision enabling online lodgment of visa
applications and their processing;
(vii) the exclusion of labor market testing in any of the
parties;
(viii) an undertaking to exchange information on domestic
laws and policies governing temporary entry;
(ix) an undertaking to handle appeals against decisions
by immigration authorities expeditiously; and
(x) a description of the extent to which the
agreements dispute settlement provisions apply to
the chapter.
Source: Institute for International Trade, unpublished case studies.

Box 2.12 for some typical provisions

on business visitors). All such chapters
include a GATS-style carve-out on access
to the domestic employment market and
the regulation of the entry of natural
persons.
On the whole, most FTAs do not go
beyond improving conditions of entry
for business visitors and intra-corporate
transferees. With respect to professionals,

the progress made has come in the form

of mutual recognition agreements. To
be able to supply a service in a foreign
market, professionals need to either have
the mandated local qualifications or have
their foreign qualifications recognized.
Nonrecognition of qualifications is thus an
important barrier to mode 4 access. The
approach in many FTAs is to encourage
their competent regulatory bodies to
negotiate and conclude MRAs. Some FTAs
identify specific professions for MRAs
and establish negotiating time frames. A
detailed examination of MRAs is beyond
the scope of this chapter but it is clearly
an area that holds much promise for the
movement of natural persons. An example
of an easing of restrictions on certain
categories of mode 4 is given in the
following case study (Case Study 2.2)
of the Japan-Philippines Economic
Partnership Agreement.

Summary
There is no one single FTA model to
liberalizing trade in services that can be
prescribed. Indeed, much will depend
on the objectives and individual
circumstances of the parties involved. This
chapter provides an overview of some key
issues that need to be considered when
negotiating the services chapter of an FTA.
It examines some of the key approaches
used and the potential issues that may
arise. In doing so, some examples of
innovative practice that have arisen over
recent years are illustrated and discussed.
The increasing popularity of some of these
innovations, such as in the scheduling of
commitments or the treatment of specific
sectors like telecommunications and
financial services, is giving rise to what
appears to be a body of prevailing, if not
of best, practice.
It is, however, difficult to generalize.
The FTAs that have been concluded in
the recent past, not least the services

part ii: coverage of a free Trade agreement | 73

Case Study 2.2: Specific Commitments for the Movement of Natural Persons under
the Japan-Philippines Economic Partnership Agreement (JPEPA)
JPEPA is a General Agreement on Trade in Services
(GATS)-type positive-list agreement with the
innovation of binding limitations at the level of
existing nonconforming measures. In JPEPA, Japan
took a number of significant commitments to ease
the entry of Filipino mode 4 service providers.
Categories
Annex 8 of JPEPA defines the various categories
included in the commitment on mode 4 and sets
out the respective terms and conditions for the
entry of short-term business visitors; intra-corporate
transferees; investors; and natural persons who
engage in professional services (legal, accounting, or
taxation services), those who possess advanced or
specialized skills, and nurses or certified careworkers.
In terms of the last two categories, activities are to
be conducted on the basis of a personal contract.
Lengths of Stay Granted
Short-term business visitors (90 days, which may
be extended), intra-corporate transferees, investors,
natural persons who engage in professional services,
specialized/skilled workers (1 to 3 years, which
may be extended), and nurses or caregivers (1 to 3
years; depending on whether stay was linked to the
purpose of obtaining a qualification and on the type
of service provided, period may be extended).

Qualification Requirements
Legal, accounting, or taxation service suppliers
need to be qualified under Japanese law. In terms of
service suppliers possessing advanced skills, there
is a minimum requirement of having completed
college education (i.e., bachelors degree) or higher
education, or have at least 10 years experience in
the area of speciality. For nurses and caregivers,
qualifications obtained in the Philippines are
recognized according to the following criteria:
(i) a qualified nurse under Philippine law with at
least 3 years work experience; and (ii) caregivers
must have graduated from a 4-year program of
at higher-education institution and be a certified
caregiver in the Philippines, or have graduated
from a nursing school authorized by the Philippine
Government. Japanese language proficiency is also
required to satisfy the requirements for entry and
stay as a qualified nurse (kangoshi) or caregiver
(kaigofukushishi).
Immigration Laws and Procedures
All commitments on temporary entry and stay for
natural persons are still subject to immigration laws
and procedures. In other words, service providers
may be required to obtain an appropriate visa or its
equivalent prior to entry.

Source: Extracted from the text of the Economic Partnership Agreement between Japan and the Republic of the Philippines. Available:
www.mofa.go.jp/region/asia-paci/philippine/epa0609/index.html

component of such agreements, are

highly complex in architecture and are
still evolving. But the race to conclude
FTAs, and the inclusion of services as a
central component, is showing no signs
of slowing down. It would thus seem
important to provide some normative
guidance to those who may be involved in
such negotiations. By way of conclusion,
several points are worth reiterating:
(i)

Before embarking on mastering

the technicalities and intricacies
of negotiating services in an FTA
it is important to ask: what are
the ultimate goals that are to be
served by the agreement? This may

seem to be an obvious question

but the reasons why economies
choose to conclude FTAs will
be critically important in the
selection of the approach. Indeed,
an assessment of existing polices
and circumstances may well
reveal that a preferential deal
may not be the best option. After
all, if the objective of service
liberalization is to reduce the
costs of service inputs and to
attract FDI, this may well be
better served by undertaking
multilateral commitments.
Moreover, for practical reasons
it is often difficult for economies

74 | How to design, negotiate, and implement a free trade agreement in asia

to have separate regulatory

regimes for different supplier
countries. If preferences cannot be
implemented in practice, would
it not be better to liberalize at
the multilateral level where, it is
generally agreed, gains would be
greater than through preferential
deals? Good policy should guide
negotiating form and not the other
way around.
(ii) If the decision is taken to negotiate
an FTA, in the context of services, a
primary starting point is to ensure
compliance with Article V of the
GATS. The substantive conditions
of Article V are designed with
the objective of ensuring that
when economies depart from
MFN treatment to negotiate
preferential trade agreements,
they do so in a way that minimizes
trade distortions and harm to
the multilateral trading system.
The conditions of Article V can
be met, for instance, by not
excluding modes of supply or
taking large sectoral carve-outs,
and by substantially eliminating
discrimination on national
treatment.
(iii) Much has been made of whether a
positive- or negative-list approach
should be adopted. While both
approaches have their pros and cons,
it is possible to arrive at the same
level of liberalization, whichever
approach is taken. What is perhaps
more critical is a thorough
understanding of the implications
and consequences of either
approach, since this will have
an important bearing on how to
prepare for the negotiations. A
negative list, since it automatically
binds all sectors and measures
unless reservations are taken,
requires a thorough review and

understanding of the regulatory

regime in question. This does
not mean that a positive list
does not require a similar level
of preparation, if an ambitious
outcome is sought, but since
market access and national
treatment apply only to scheduled
sectors there is less pressure to
do so. In terms of outcomes, it
cannot be assumed that a negative
list will be far superior to a
positive list. This is an empirical
question that can be answered
only by a thorough reading of
the reservations in a negative-list
schedule and of limitations in a
positive-list schedule.
(iv) Given that there is usually less
familiarity with concepts and
approaches used in FTAs as
compared with those in the GATS,
it is important to pay attention to
definitions. Some key concepts
that are found in FTAs do not
have exactly the same objective
as in the GATS. For instance, in
FTAs, the MFN clause acts as an
insurance policy against an FTA
party providing better treatment
to a third party. NAFTA-inspired
FTAs also often require the better
of MFN or national treatment. In
some cases, domestic suppliers
actually get worse treatment
than that given on an MFN basis,
since the governments policy is
to provide incentives to foreign
investors.
(v) Particular attention needs to be
given to ensuring coherence and
consistency between the various
chapters of the FTA that deal with
trade in services. NAFTA-inspired
FTAs typically contain disciplines
for modes 1, 2, and 4 in the
services chapter, while mode
3 is covered by a chapter on

part ii: coverage of a free Trade agreement | 75

investment, which covers both

goods and services. There may
also be an additional chapter on
certain categories of mode 4, such
as business visitors. Managing
overlaps and avoiding conflicts
become an important challenge.
For instance, in many NAFTA-type
FTAs, core air transport services
are carved out of the services
chapter. However, the investment
chapter, which applies to mode 3,
does not exclude any particular
service sector and would therefore
apply to all air transport services.
It then becomes necessary for a
specific reservation to be taken in
the relevant annex for the sectoral
carve-out to apply.

Investment
International investment flows have
grown more rapidly than international
trade in goods or world GDP. A major
contributing factor is the liberalization
of FDI policies around the world and the
global fragmentation of production. While
the bulk of direct investment flows is still
between developed countries, there is also
a growing volume of direct investment
flows to the developing economies.
In recent decades, FDI has been
increasingly regarded as an important
instrument for accelerated economic
development. In East Asia, FDI has been
used as an instrument to jump-start
export manufacturing. It has led to the
establishment of regional production
networks and has been instrumental
in linking the region to global supply
chains. For some economies in East
Asia, multinational corporation affiliates
established via FDI account for over half
of manufactured exports. In the more
advanced East Asian economies, such as

Hong Kong, China and Singapore, FDI in

services is also a growing phenomenon.
The developing countries in East Asia
and beyond compete with one another
for FDI and try to improve their overall
investment climate. The positive effects
of FDI are being increasingly appreciated
because of, among others, its ability to
enhance productive capacity leading to
higher incomes and employment, the
building of manufacturing capabilities,
and the upgrading of technological levels.
However, countries remain concerned
over the perceived negative effects, which
include the crowding out by foreign
investment of domestic entrepreneurship
in strategic and sensitive sectors of the
national economy. This has resulted
in a broadly open national FDI policy
coexisting with sectoral limitations on FDI
entry and operations.
In this section, we first consider the
FDI aspects of FTAs in the broader context
of multilateral rules and approaches and
other forms of cooperation. Then we
consider best-practice approaches to FDI
policies in FTAs.

FTAs and FDI Inflows

Location-specific factors contribute to the
overall investment climate. These factors
include an established legal framework
and economic fundamentals. FTAs have
different investment provisions reflecting
differences in various location-specific
factors. Investment provisions include
pre- and post-establishment treatment
of foreign investors and their differences
with actual national investment rules,
and the availability of effective dispute
settlement mechanisms. Empirical studies
show that investors want a predictable
investment climate. Predictability may
be enhanced when domestic policies
and regulations are enshrined or locked
into regional and bilateral treaties and
agreements. It should also be noted that

76 | How to design, negotiate, and implement a free trade agreement in asia

trade rules (tariffs, nontariff measures,

rules of origin) could affect investment
flows. FTAs have different effects on
extra-regional and intra-regional sources
of FDI.
FDI from extra-regional sources
The lowering of regional tariffs may
create incentives for extra-regional
investors to establish a presence in the
region to take advantage of the larger
integrated market (horizontal market
seeking FDI). If individual member
countries of the FTA were previously
served through trade, this may then
raise inward FDI. If individual member
countries were already served through
MNC subsidiaries, this may induce FDI
flows to the least-cost location in the FTA.
Further, as noted in the Rules of Origin
section above, when the FTA has strict
rules of origin, the extra-regional investor
may need to set up manufacturing
and processing operations in several
member countries in the region. When
most inward FDI is from extra-regional
sources, the attractiveness of the enlarged
market size depends also on the margin
of preference between the MFN-applied
tariffs and the FTA tariff preferences. For
example, ASEAN is heavily dependent on
FDI from extra-regional sources, yet these
investors at present are not accorded the
same treatment as investors from within
ASEAN. A further concern arises when
some national FDI policies are more
generous than the regional ASEAN FDI
policy.
FDI from intra-regional sources
FTAs may discourage horizontal tariff
jumping FDI because it becomes cheaper
to serve member countries through trade
rather than by establishing a subsidiary
and incurring plant-level and firm-level
costs. The FTA region could be served

most cheaply through exports from the

single regional location, thereby realizing
economies of scale. The tariff-jumping
motive favors FDI over exporting; the
higher the external tariff and the lower
the fixed costs of a new plant, the greater
the incentive for tariff-jumping FDI.
On the other hand, FTAs may encourage
export platform intra-regional FDI,
because lower trade costs favor the
establishment of production networks
and an efficiency-seeking subsidiary in a
member country as it becomes cheaper
to reexport regional production. There
is likely to be more intra-regional FDI
in countries with few manufacturing
capacities and when flexible rules of origin
allow for diagonal or full cumulation to
enable non-members to supply the country
that attracts intra-regional FDI.
Competition for FDI
An FTA could result in a highly uneven
distribution of FDI among member
economies. While increased intra-regional
FDI enhances the regional integration
process, competition for FDI between
member states could be divisive and
costly if fiscal incentives are involved.
To minimize such competition, ASEAN,
for example, emphasizes investment
cooperation among its members. It
has organized ministerial-level joint
investment promotion activities in major
developed economies promoting ASEAN
as an investment region (the ASEAN
Road Show). The ASEAN Secretariat
has also undertaken several investment
facilitation activities, including providing
information through portals, databases,
publications, and statistics.

WTO Provisions on Investment

While trade in goods and services is
covered by WTO rules, there are no
corresponding rules on international

part ii: coverage of a free Trade agreement | 77

investment flows. A number of efforts

to establish international rules on
investment have failed. The latest is the
abandonment after the 2003 Cancun
meeting of the Doha Development Agenda
to establish a multilateral agreement on
investment (MAI). The MAI was perceived
as unbalanced and unacceptable to many
developing countries since it sought
to protect investors and there were
no provisions on investor obligations.
Developing member countries of the WTO
were concerned that this would prevent
or reduce their policy space to determine
their own investment policies.
Without an overarching MAI, foreign
investment provisions are dealt with in
a fragmented fashion in several existing
WTO Agreements.
1. In the General Agreement on
Trade in Services (GATS), FDI
is covered under supply mode
3 (commercial presence). GATS
adopts a positive-list approach,
that is, countries can decide which
service sectors to commit. Once
a sector is committed, horizontal
(all sectors) market access and
national treatment principles
apply, unless otherwise notified.
2. Under the Agreement on
Trade-Related Investment
Measures (TRIMS), countries
cannot impose trade-related
performance requirements on
firms that are inconsistent with
the national treatment principle.
The annex to TRIMS contains
an illustrative list of prohibited
performance requirements. Many
governments have used local
content requirements in the past
to promote backward integration
and domestic value added, such
as in the automobile industry.
TRIMS provides for the phasing
out of prohibited performance

requirements, with transition

periods of 2 years for developed
countries, 5 years for developing
countries, and 7 years for LDCs.
3. The Agreement on Trade-Related
Aspects of Intellectual Property
Rights (TRIPS) sets minimum
standards of protection for specific
categories of intellectual property
and includes national treatment,
MFN treatment, domestic
enforcement procedures, and
international dispute settlement.
It builds on existing conventions
like the Berne Convention,
the Paris Convention, and the
Washington Treaty on Intellectual
Property in Respect of Integrated
Circuits.
4. Under the Government
Procurement Agreement (GPA),
tenders may not discriminate
against foreign products and
foreign suppliers and locally
established suppliers that are
foreign-affiliated or foreignowned. The GPA disallows
offsets in the evaluation of
tenders and award of contracts.
5. The Agreement on Subsidies and
Countervailing Measures (ASCM)
prohibits the use of investment
incentives that fall under the
definition of a subsidy and
cause adverse effects. Subsidies
contingent on the exportation of
goods produced are prohibited.
Adverse effects are defined in
terms of distortions in the trade
flows of subsidized goods.

Investment Provisions of FTAs

The investment provisions of FTAs are
aimed at giving investors in the FTA
member countries better market access
and right of establishment and national
treatment, as well as restraint in the use

78 | How to design, negotiate, and implement a free trade agreement in asia

of performance requirements. However,

there are still substantial safeguard
measures in the FTAs and in the national
laws that restrict FDI. The investment
provisions of FTAs usually go beyond
those in the WTO, particularly the
provisions on the right of establishment.
Three categories of FTAs may be
distinguished in this regard:
(i) Those that do not have
investment-related provisions
except for trade rules. This is the
case with most FTAs between
developing countries.
(ii) Those that include comprehensive
investment provisions from the
start, including pre-establishment
national treatment and
effective investor-state dispute
mechanisms, such as NAFTA.
(iii) Those that evolved toward a
common approach over time,
introducing new provisions to
promote regional investment
cooperation and grant national
treatment and MFN treatment to
foreign firms, as is the case with
ASEANs AIA agreement, signed
in 1998.
The investment provisions of FTAs
can be categorized under definitions of
investment and investors, treatment of
investments and investors, and dispute
resolution and settlement.
Definition of investment and investors
Investment. Investments are usually
defined to be broader than FDI flows.
There are two principal ways of defining
investments. The enterprise-based
method defines the enterprise that is to
be covered and then defines the assets of
the enterprise to be included. The assetsbased method (NAFTA-type) itemizes the
types of assets to be included, ranging
from physical assets such as machinery

Box 2.13: Bilateral Investment Treaties

Investment provisions can be contained in bilateral
investment treaties (BITs) as well as free trade agreements
(FTAs). Without an overarching multilateral agreement
on investment (MAI), BITs remain the main instrument for
negotiating investment rules between countries. There are
currently well over 2,100 BITs in existence. They are usually
designed to protect foreign direct investments (FDIs) from
expropriation and ensure certain standards of treatment
by the host country. The actual contents of BITs can vary.
US BITs often include pre-establishment rights, while
European BITs usually focus on post-establishment rights.
Most developed investing countries have already
signed many BITs with developing host countries.
They seek diplomatic protection of their nationals and
their assets, and guarantees regarding repatriation of
revenues earned. In particular, BITs are useful in ensuring
FDI flows to developing countries that lack sufficient
national legal safeguards for the protection of assets
and property rights. ASEAN countries have entered
into BITs that facilitate post-establishment rather than
pre-establishment rights. Singapores FTA investment
chapters, however, tend to cover pre-establishment
rights as well. There are even many BITs between ASEAN
member countries.
Source: ADB staff.

and equipment, to intangible assets

such as patents, know-how, and other
intellectual properties, as well as the
licenses and permits needed to carry out
the investment. Usually what results is
a combination of both definitions. Some
agreements cover only FDI and specifically
exclude portfolio investment, such as the
AIA. This reflects ASEANs aversion to
portfolio investments after the 1997 Asian
financial crisis. Some agreements include
concession agreements and the right to
search for natural resources. In ASEAN,
only investments approved in writing
are protected under the AIA, while other
investments are protected either by
the national laws of the host country,
BITs (see Box 2.13), or the principles of
international law on state responsibility.
Investor. Foreign investments can be
made by natural persons or by corporate
entities. Usually investment protection
is confined to citizens, although the

part ii: coverage of a free Trade agreement | 79

Malaysia and Singapore agreements,

for example, also include permanent
residents. In common-law countries
(such as Brunei Darussalam, Malaysia,
and Singapore) the concept of corporate
nationality is based on incorporation, so
that any company that is incorporated
in the country assumes its nationality.
However, in civil-law countries (like the
Philippines and Thailand), nationality
is based on the location of the effective
management of the company.
Treatment of Investors and Investments.
While many FTAs would include fair
and equitable treatment, others provide
national treatment and MFN treatment for
pre-establishment and post-establishment.
Some investment provisions apply to
listed sectors only (positive approach),
while others apply to all sectors with
listed exceptions (negative approach).
National Treatment. National treatment
means that the foreign investor should
be treated on equal terms with local
investors. National treatment is desired by
foreign investors, but some host countries
are reluctant to give it, preferring
instead to support local firms. National
treatment at the pre-establishment stage
refers to the right of establishment or
foreign ownership of corporate equity,
other assets, and land. At the extreme,
foreign ownership is prohibited from
certain sectors and enterprises, while in
most cases majority foreign ownership is
controlled.
Exceptions to National Treatment. Many
host countries, both developed and
developing, impose sectoral limitations
on foreign ownership and control to
shelter their strategic and sensitive
sectors from foreign investor competition
and on national security grounds.
Excluded sectors are commonly found
in the land and natural resource and
service sectors and include banking

and finance, transportation, power

and energy generation, media and
telecommunications, land and natural
resources, real estate, small-scale
agriculture, and small and medium
enterprises. Most agreements confine
national treatment to the postestablishment phase only. Many
agreements also exclude state enterprises
from the national treatment rule. In
addition, most agreements reserve the
right to implement future measures
concerning the limitation of national
treatment to several sectors, especially in
the service sectors.
Flexibility in National Treatment
Provision. Some agreements seek to
postpone national treatment to reflect the
lower level of economic development of
the host country, while other agreements
confine national treatment only to those
in like circumstances. Some agreements
provide for national treatment as far
as possible. In the APEC Non-binding
Investment Principles, the national
treatment provision states that such
treatment is subject to the exceptions as
provided for in domestic laws, regulations
and policies.
Fair and Equitable Standard. This
usually means that certain rights and
privileges usually regarded as having been
accepted in customary international law
should be accorded the foreign investor.
As discussed below, Urata and Sasuya
(2007) conducted a recent study of seven
bilateral FTAs, covering the US, Canada,
Mexico, Japan, Singapore, and Australia,
and found that Canada, Mexico, and
Australia have highly restrictive screening
and approval of FDI projects. Under the
Investment Canada Act, Canada requires
a review of all acquisitions of Canadian
businesses, with the value of the assets
and the control being acquired. Japan
highly restricts the movement of foreign
investors. Australia, Canada, Chile, the

80 | How to design, negotiate, and implement a free trade agreement in asia

Republic of Korea, and Mexico are very

restrictive in their service sectors. In the
transportation sector, there are limitations
on foreign ownership especially of
oceangoing vessels and airlines;
often, concessions for the domestic air
transportation sector are provided only to
domestic companies. In information and
communications, Mexico, the Republic
of Korea, and Singapore limit foreign
ownership in newspaper publishing.
Japan limits foreign ownership in Nippon
Telegraph and Telephone Corporation
(NTT) to less than one third of total share
capital, and does not allow foreigners
to serve as directors or auditors. The
financial sector of Japan also has
limitations on foreign ownership and
market access. Singapore restricts foreign
bank provision of retail customer services
such as the establishment of automated
teller machine (ATM) networking, but
relaxes the restriction under the
US-Singapore FTA.
Most-Favored-Nation Treatment. MFN
clauses are commonly found in trade
agreements. The foreign investor
desires national treatment between
himself and the local investors, as well
as nondiscriminatory treatment with
other foreign investors. This means
that privileges created in other future
agreements will automatically flow to
nationals of the first agreement. For
example, privileges accorded to US
investors in the US-Singapore FTA would
also be accorded to Japanese investors
even though they were not included in the
earlier Japan-Singapore FTA. However,
privileges given by Singapore in the
context of ASEAN do not automatically
flow to Singapores bilateral FTA partners.
Performance Requirements. These are
imposed by host developing countries
to ensure that the foreign investor
contributes to expected benefits. They

could cover a percentage of firm

production that has to be exported, the
purchase of local products and services,
and the employment of local labor. Unlike
TRIMS, which prohibits only traderelated performance requirements, FTAs
seek to prohibit them altogether in their
investment provisions.
(i)

(ii)

NAFTA forbids the use of

performance requirements.
Developed countries argue that
performance requirements distort
international trade. First, their
imposition may result in the
foreign investor using inefficient
inputs or production processes, or
both. Second, they may influence
the type of investment, as they
could affect the quality of inputs
used and, hence, investment
profitability.
In the past, ASEAN countries,
except Singapore, linked investment
incentives to performance
requirements. However, net
incentives matter to investors, and
the performance requirements
could negate the positive effects
of investment incentives. TRIMSinconsistent performance
requirements have been removed
under the WTO Agreement.
It should be noted, however,
that abolishing performance
requirements alone is unlikely
to attract FDI if other positive
elements of the investment climate
are absent.

Expropriation and Nationalization.

International law and regulations
normally allow expropriation of foreign
assets only when it is in the public
interest, is nondiscriminatory, and is
made with adequate compensation. FTAs
with such provisions aim at reducing
the noncommercial risks of foreign

part ii: coverage of a free Trade agreement |81

investment. Home countries require

payment of prompt, adequate, and
effective compensation.
Most agreements favor the full
compensation formula. However, some
developing countries seek an alternative
flexible formula that would enable them
to pay compensation within a flexible
time frame in times of balance-ofpayments difficulties. Many investment
agreements have also addressed the issue
that the protection of the environment
or other interests of the state should
not be construed as amounting to
expropriation. For example, the side letter
in the US-Singapore FTA reads: Except
in rare circumstances, nondiscriminatory
regulatory actions, designed and applied
to protect public welfare objectives,
such as public health, safety and the
environment do not constitute indirect
expropriation.
Repatriation of Profits and Other
Proceeds. Some countries insist on
guarantees in agreements that assure
the ready repatriation of profits as well
as the proceeds of liquidated assets in
a freely convertible currency and at
the prevailing exchange rate. However,
strong repatriation provisions may be
resisted by host developing countries
that face balance-of-payments problems,
particularly occasioned by sudden
flights of capital such as those that
triggered the Asian financial crisis in
1997. Some safeguard provisions in
investment agreements may provide for
such situations. For example, Chilean
agreements generally contain the
provision that equity capital can only
be transferred one year after it has
entered the territory of the Contracting
Party unless its legislation provides
for a more favorable treatment. The
Japan-Singapore FTA provides for the
suspension of repatriation rights in the
event of external financial difficulties

or in other exceptional circumstances

in which capital movements could
result in serious economic and financial
disturbance. There are agreements that
refer explicitly to the right of a country
under the IMF Agreement to impose
exchange restrictions. Also, GATS (Article
XII) provides that repatriation may be
stopped in the event of serious balanceof-payments and external financial
difficulties.
Use of Investment Incentives. Developing
host countries, including many in ASEAN,
often use a variety of fiscal and non-fiscal
incentives to attract FDI. These incentives
are largely given at the discretion of
host governments and are normally not
included in the investment provisions of
FTAs or in BITs. Their use is controversial,
as is the case with the use of performance
requirements. Critics point to lack of
evidence of their efficacy in attracting
FDI, their distortionary effect on resource
allocation, and their negative effect on
tax revenues.
Responsibilities of MNCs. One major
reason why the MAI failed to find
acceptance among developing countries
is its failure to incorporate the interests
of developing host countries by also
requiring investing MNCs to meet
standards of performance. BITs and
the investment provisions of FTAs also
generally make no express reference to
the responsibility of MNCs, particularly
toward the environment. However, in
Indonesian agreements, a foreign MNC
that pollutes the environment would not
be acting in accordance with Indonesian
laws and would not enjoy investment
protection. Additionally, the Indonesian
investment agency (BKPM) could
introduce conditions on foreign investors
at the time of entry and the granting of
license to operate.

82 | How to design, negotiate, and implement a free trade agreement in asia

Dispute resolution and settlement

Investment rules, including those on
expropriation, need to be backed by an
effective dispute settlement mechanism.
This can be state-to-state or investor-tostate. Some host countries are averse to
investor-to-state dispute settlement built
into investment agreements. Disputes can
be settled by national or regional courts,
or referred to international arbitration
under the Convention of the Settlement
of Investment Disputes (ICSID) or the UN
Commission on International Trade Law
(UNCITRAL).

FDI Strategy and Best Practices

The investment provisions of FTAs are
aimed at liberalizing the regulations and
protecting investments to encourage
freer and greater cross-border flows of
investment, particularly of FDI. These
provisions have to be negotiated, taking
into account the laws, regulations, and
policies governing foreign investment
in the FTA partner countries. Often,
investment commitments in FTAs require
corresponding changes in national laws,
regulations, and policies, which take time
to put in place.
There is growing recognition that FDI
can contribute to a countrys economic
development, more particularly to
participation in regional production
networks and global supply chains, and
technological and marketing capabilities
in manufacturing. This benefit is strongly
exemplified by the role of FDI in the rise of
the PRC as a manufacturing power in the
past decade. Global competition for FDI
has intensified as FTAs have become more
global in reach and as individual countries
have unilaterally liberalized. Besides
liberalizing their policies and regulations,
host countries must also ensure that other
key elements of a favorable investment
climate exist, that is: political and

economic stability, a well-established

and transparent legal and regulatory
framework (including protection of
intellectual property), and availability
of cost-effective physical infrastructure
and human resources. Countries that
wish to attract FDI in high-tech activities
have to ensure a favorable environment
for research and development, while
countries that wish to attract FDI primarily
for employment creation have to ensure
a favorable labor market. Likewise, to
be effective, provisions on investment
liberalization and protection have to
be buttressed by liberal trade rules, fair
competition laws, and protection of
intellectual property rights (IPR).
National treatment and MFN treatment
are the cardinal principles desired by
foreign investors. FTAs seek to enshrine
these principles. Nonetheless, economic
and policy space will ultimately be
necessary to enable the host country
to protect key and sensitive sectors
and businesses from free and open
competition from foreign investors.
However, these temporary and permanent
exclusions from national treatment should
not be lengthy and should be time-bound;
otherwise, the liberalizing principles
lose their meaning. Nondiscriminatory
treatment of investments and investors
would enable a country to attract
investment from the best sources
and assure a level playing field to all
investors.
An equally important principle sought
by foreign investors is the protection
of their investments from arbitrary
and unjustified expropriation and
nationalization. However, host countries
need to negotiate safeguard measures
to cover themselves in emergency
situations. Dispute resolution could be
undertaken under the impartial ICSID and
UNICTRAL.
In the final analysis, the investment
provisions of FTAs represent a fine

part ii: coverage of a free Trade agreement |83

balancing act between a countrys

economic, political, and social benefits
and the perceived costs of FDI. For
example, ASEAN would do better to have
a common template when negotiating
the investment chapters in FTAs with its
various dialogue partners. This would
help ensure coherence among the various
agreements and attract more external FDI.

FTA-Plus Chapters
Traditional FTAs as defined by economists
focused almost exclusively on tariffs.
Even the EC, which began as a customs
union and ultimately evolved into an
economic union, had diverse commercial
policies (e.g., independent nontariff
barriers and lack of national treatment
in certain areas) even three decades
after its foundation. It is clear from this
reference book that modern FTAs are
complicated; in certain areas they even
go beyond what the EC included. In this
section, we consider four additional key
features typically included in modern
FTAs, particularly in the context of FTAs
in which at least one developed country
is a party: government procurement,
intellectual property protection,
competition policy, and environmental
and labor standards.

Government Procurement
Government procurement in the WTO
The WTO Government Procurement
Agreement (GPA) is a plurilateral
agreement among 27 WTO members
that include the EU; the US; Japan; Hong
Kong, China; the Republic of Korea; and
Singapore. Few developing countries
are members, and some OECD countries
have not signed the GPA. It is essentially
a market access agreement because it

lowers trade barriers in government

procurement through a framework of
common procurement procedures,
transparency at all stages of the
procurement process, and the opportunity
for aggrieved private bidders to challenge
procurement decisions and obtain
redress. At the 1996 Singapore Ministerial
Conference, the WTO working group was
mandated to look into the transparency
aspects of government contracts. Many
developing countries objected to a WTO
agreement on government procurement
covering national treatment, as they
provide preferential treatment to national
firms, suppliers, and contractors. The
procurement issue was removed from the
Doha agenda in 2004.
Government procurement in FTAs
Government procurement is a key feature
of many FTAs. This reflects the failure to
secure an agreement at the multilateral
level and the recognition that foreign
suppliers of goods and services require
not only nondiscriminatory market access
but also transparent and fair procedures
that allow them to compete on a level
playing field.
APEC developed a set of voluntary,
nonbinding principles on government
procurement. The principles, intended to
promote the liberalization of government
procurement markets and transparency,
cover value for money, open and effective
competition, fair dealing, accountability
and due process, and nondiscrimination.
FTAs have gone beyond the GPA and
include many developing (and some
developed) countries that did not sign
the plurilateral GPA. They are more
comprehensive in coverage, involving
transparency and information access,
market access and national treatment,
various tiers of government and various
types of government business, and lower
monetary thresholds for contracts.

84 | How to design, negotiate, and implement a free trade agreement in asia

Nondiscriminatory Treatment.
Nondiscrimination requires each
government to accord the suppliers,
goods, and services of its FTA partner the
same treatment that applies to domestic
suppliers, goods, and services. Like the
GPA, these agreements explicitly prohibit
offsets.
Transparency. FTAs promote transparency
through the collection and dissemination
of all relevant information by electronic
means. For example, the e-ASEAN
Framework Agreement calls for the use of
electronic means in the procurement of
goods and services by members.
NAFTA adopts lower thresholds and a
negative-list approach to service coverage.
NAFTA seems to have influenced
several bilateral agreements involving
the US. In the US-Australia FTA, the
procurement chapter sets out specific
rules, procedures, and transparency
standards to be applied in the conduct
of government procurement. Australia
becomes a designated country under
the US Trade Agreements Act and, hence,
enjoys a waiver from the Buy American
Act, which enables Australian suppliers to
compete in the US procurement market
on equal terms with American suppliers
and suppliers from other designated
countries. In the negotiations for the USMalaysia FTA, government procurement
has been one of the sticking points. In
Malaysia, government procurement is
a key pillar of affirmative action policy,
and a nondiscriminatory government
procurement policy would undermine
such affirmative action.
There are no government procurement
provisions in AFTA nor in the FTAs that
ASEAN has concluded with the PRC
and the Republic of Korea. However,
there are government procurement
chapters in Singapores FTAs with
New Zealand, Japan, the Republic of
Korea, India, Australia, and the US.

The SingaporeNew Zealand FTA, for

example, commits to implement the
APEC nonbinding principles relating
to transparency, value for money, open
and effective competition, fair dealing,
accountability and due process, and
nondiscrimination. The US-Singapore
FTA also makes reference to applying
the APEC nonbinding principles. Thus,
the APEC nonbinding principles appear
to offer a common template for bilateral
FTA negotiations on government
procurement.

Intellectual Property
Intellectual property provisions of FTAs
compared
The starting point for intellectual property
(IP) rules in FTAs is the network of
existing IP treaties103 that bind almost
all trading nations. Many provisions of
these treaties are incorporated into the
WTO TRIPS Agreement (discussed in
the Investment section above), which is
applicable to all WTO members. Together,
these rules form the lowest common
denominator of IP obligations. They bind
both developed and developing countries,
although LDC members of the WTO
Agreement enjoy a waiver until 1 January
2016 before they must provide patent
protection for pharmaceutical products.
FTAs often strengthen IP protection
beyond that required by the WTO TRIPS
Agreement. Such provisions are called
103

The WTO incorporates parts of the Paris Convention

for the Protection of Industrial Property (governing
patents, trademarks, service marks, industrial designs,
and utility models); the Berne Convention for the
Protection of Literary and Artistic Works (Copyright
and Related Rights); the International Convention for
the Protection of Performers, Producers of Phonograms
and Broadcasting Organisations (Rome Convention);
and the Treaty on Intellectual Property in Respect
of Integrated Circuits (IPIC, or Washington Treaty),
which governs layout designs/topographies). The
text of these World Intellectual Property Organization
(WIPO)administered treaties can be found at: www.
wipo.int/treaties/en/

part ii: coverage of a free Trade agreement |85

TRIPS-plus provisions, since they exceed

the minimum obligations contained in the
TRIPS Agreement. TRIPS-plus provisions
include (i) the implementation of higher
IP protection than that required in the
TRIPS Agreement, or (ii) an agreement
to forgo transition periods and privileges
that developing countries and countries
in economic transition negotiated during
and after the Uruguay Round of GATT.
The US and the EU in particular use
FTAs as a vehicle for negotiating TRIPSplus commitments. Typical commitments
include agreements to accept the
patentability of plants and animals
other than microorganisms;104 join the
International Union for the Protection
of New Varieties of Plants (UPOV)
Convention;105 grant additional protection
to geographic indications beyond the
weak protection granted in TRIPS Articles
2224 (particularly in the alcoholic
beverage sector);106 limit parallel imports;
extend industrial design, patent, and
copyright protection;107 limit compulsory
licensing, particularly in the public health
field;108 increase penalties for breaches of
IP rights (IPR), increase IPR enforcement
rules; expand the scope of trademark
protection to cover dissimilar goods
104

See The Agreement on Trade-Related Aspects of

Intellectual Property Rights (TRIPS) Article 27.3(b).
www.upov.int/en/publications/conventions/index.
html.
106
TRIPS Articles 2224 apply to geographical
indicationsa term defined in Article 22 of the
TRIPS Agreement as indications which identify a
good as originating in the territory of a Member, or
a region or locality in that territory, where a given
quality, reputation or other characteristic of the good
is essentially attributable to its geographical origin.
107
The minimum periods of protection in the TRIPS
Agreement for protection are 10 years for industrial
designs (Article 26([3)]), 20 years for patents (Article
33), and 50 years for copyrights (Article 12).
108
Compulsory licensing is a decision by a government to
allow the use of the subject matter of a patent without
the right holders consent. Compulsory licensing is
permitted by Article 31 of the TRIPS Agreement, in
particular with respect to certain pharmaceutical
products, subject to recent disciplines agreed on by
WTO members. See generally the WTO instruments
dealing with TRIPS and Public Health: www.wto.
org/english/tratop_e/trips_e/pharmpatent_e.htm
105

identified with well-known trademarks;

and protect new types of marks such as
scent and sound marks.
The IP provisions of FTAs differ,
depending on the level of development
of the parties to an FTA. FTAs between
developed countries frequently contain
provisions requiring the ratification
of post-TRIPS IP agreements, and
cooperation in the implementation
of TRIPS provisions, including the
enforcement of laws protecting foreign
intellectual property. The SingaporeAustralia Free Trade Agreement (SAFTA)
provides a good example of an FTA
between a developed country and
an advanced developing country.109
Section 13 deals explicitly with IP
protection. Article 2 of Section 13
reconfirms each partys commitment to
the TRIPS Agreement (a common FTA
provision) and obligates the parties
to accede or ratify several post-TRIPS
IP agreements: the World Intellectual
Property Organization (WIPO) Copyright
Treaty, the WIPO Performances and
Phonograms Treaty, and the Geneva Act
of the Hague Agreement Concerning the
International Registration of Industrial
Designs. Article 5 requires the parties to
cooperate with a view to eliminating
trade in goods infringing intellectual
property rights, subject to their respective
laws, rules, regulations, directives or
policies. In Article 6 the parties agree to
cooperate on education and the exchange
of information on the protection,
management, and exploitation of IPR.
More stringent IP obligations are found in
the US-Singapore FTA.110
109

www.dfat.gov.au/trade/negotiations/safta/full_safta.
pdf
110
Chapter 16 (Articles 16.116.10) of the US-Singapore
Free Trade Agreement contains a large number of
TRIPS-plus provisions, including the ratification of
many additional IP Agreements, and a considerable
number of provisions directed at the enforcement
of IP obligations. See www.ustr.gov/assets/Trade_
Agreements/Bilateral/Singapore_FTA/Final_Texts/
asset_upload_file708_4036.pdf

86 | How to design, negotiate, and implement a free trade agreement in asia

Chapter 13 of the Thailand-Australia

FTA111 provides a more typical example of
the IP protection found in an agreement
between a developed and a developing
country. IP obligations are not as strong
as those in either the SAFTA or the USSingapore FTA, but are nevertheless
present. In general, cooperation with
respect to existing IP obligations is the
theme. Article 1302 requires the parties
to observe the TRIPS Agreement. Article
1303 requires the parties, upon receipt
of information or a complaint, to take
measures to prevent the export of goods
that infringe copyright or trademarks, in
accordance with its laws, regulations, or
policies. Likewise, Article 1304 requires
the parties to cooperate on enforcement,
and Article 1305 requires cooperation on
educational activities.
Framework of best practices and practical
approaches to intellectual property
Developed countries and advanced
developing countries are expected to
conform to IP best practices. This means
fulfilling their international IP obligations
arising under the WTO Agreement and
international IP treaties, in particular civil
and criminal enforcement obligations.112
Enforcement issues are a sensitive subject
in many ADB member countries, as a
result of the large number of TRIPS
requirements concerning enforcement,
the stringent enforcement provisions
present in the US-Singapore FTA, and
legislation such as Section 337 of
the of the US Tariff Act of 1930 (19
U.S.C. 1337), which empowers the
US International Trade Commission to
111

www.dfat.gov.au/trade/negotiations/aust-thai/tafta_
toc.html
112
Unlike many of the WTOs covered agreements,
Articles 4161 of the TRIPS Agreement require
members to establish fair and equitable procedures for
the enforcement of intellectual property rights (IPR).

investigate allegations of patent and

trademark infringement.
Best practices also include fulfilling
any TRIPS-plus obligations FTA members
have accepted. The more a country
develops and trades, the more pressure
the developed world will place on it to
meet its IP commitments, and to accept
TRIPS-plus commitments. The fulfilment
of IP commitments, in turn, requires
educating the private sector, civil society,
enforcement agencies, and the judiciary
about IP protection. Good governance,
including an effective judiciary, is
necessary for an effective IP regime.
The priority a country places on IP
protection will depend on its level of
development, as well as demand from
its own business, scientific, and cultural
community. LDCs almost never receive
serious foreign pressure to enforce
IP rules. They also benefit from the
temporary waiver of patent protection for
pharmaceutical products enacted in the
course of the Doha Development Agenda.
This point should be considered by LDCs
seeking to negotiate an FTA.
Policy recommendations and strategy for
negotiating IP provisions in FTAs
The advanced developed countries
already have solid IP protection in place
and are important beneficiaries of the
IP system. Their business interests are
the main proponents of TRIPS-plus
commitments. Because of the market
access opportunities that developed
countries can offer to developing
countries, they are in a strong negotiating
position vis--vis the developing world
when they negotiate IP issues.
Nevertheless, developing countries
have historically been hesitant to tighten
IP protection, both in the WTO and in
FTAs. IP protection is generally viewed
in developing countries as favoring

part ii: coverage of a free Trade agreement |87

developed countries and their business

interests. IP protection is, however,
of increasing importance to certain
developing countries, in particular
those that (i) seek to attract FDI (see
the Investment section above); (ii) have
innovators in particular technology
sectors; or (iii) seek to protect their film,
print, and music industries.
Developing countries that negotiate
TRIPS-plus commitments with the
developed countries should evaluate the
merits of more stringent IP protection. In
particular, they should look at access to
technology, health issues (in particular
access to medicines), the protection of
domestic innovation, and the protection
of domestic artists, software producers,
etc. They should also evaluate the
relative strength of their negotiating
position in light of their existing TRIPS
commitments; the economic importance
of the FTA, either directly or as a vehicle
to attract FDI and increase development;
and the positive and negative effects
of strengthened IP commitments on
disadvantaged members of society.
Developing countries should also consider
IP commitments that they would like to
receive from prospective FTA partners,
such as the protection of traditional
knowledge and folklore (including
medicinal plants) and biodiversity.
There are strategies for strengthening a
developing countrys negotiating position
when negotiating IP commitments in an
FTA, such as the following:
(i) A developing country should enter
FTA negotiations knowing what it
wants to gain.
(ii) A developing country should study
other FTAs that prospective FTA
partners have signed, particularly
FTAs signed by countries at a
similar level of development. More
recent FTAs are more likely to

provide an indication of a countrys

real ambitions in the negotiations.
(iii) A developing country should
study matters being discussed
and negotiated in the WTO,
including the review of Article
27.3(b) of the TRIPS Agreement
on the patentability of plant
and animal inventions, and the
negotiations on the protection of
traditional knowledge, folklore,
and biodiversity.
(iv) If an FTA includes two or more
developing-country members,
the developing countries should
consider working together to
negotiate with prospective
developed-country members.
Economic blocs, like the EU, have
stronger negotiating power than
individual countries. Likewise,
developing-country blocs are
beginning to enjoy greater
negotiating strength. Some
developing countries are already
beginning to work together on
TRIPS-plus issues.113
(v) Prospective FTA partners from
the developed world may expect
at least minimal IP concessions
from developing-country partners.
Developing countries should
identify the sectors in which
they want market access or other
concessions, in return for IP
concessions.
(vi) If IP concessions are inevitable,
the developing country should
seek in return exemptions for
sensitive sectors, long transition
periods, technical assistance,
113

For example in 2005, 10 Latin American health

ministers issued a joint declaration calling for
avoidance of TRIPS-plus provisions. (See Third World
Network Info Service on WTO and Trade Issues. 2006.
South American Ministers Vow to Avoid TRIPS Plus
Measures. 1 June. Available: www.twnside.org.sg)

88 | How to design, negotiate, and implement a free trade agreement in asia

infrastructure (computers,
etc.), and training programs
for authorities working on
IP-related issues, including
training programs in developed
countries.
(vii) The developing country should
consult IP and FTA specialists
at ADB, WTO, the United
Nations Conference on Trade
and Development (UNCTAD),
the World Health Organization
(WHO), and other international
organizations before entering FTA
negotiations.
(viii) The developing country
should consult other relevant
stakeholders and groups,
including businesses, trade
associations, chambers of
commerce, and NGOs, before
entering FTA negotiations.

Competition Policy
Hoekman (1998) distinguishes
competition policies in general from
antitrust or competition law. Competition
policy refers to the broad set of
measures and instruments pursued by
governments to enhance the contestability
of markets, of which antitrust law is a
subset. Competition policy is directed
at both government and private sector
actions and includes privatizing stateowned enterprises (SOEs), deregulating
activities, cutting firm-specific subsidies
(industrial policy), and reducing policies
that discriminate against foreign products
and suppliers. Antitrust laws are directed
at private sector behavior. They involve
instruments that control or regulate
the permissible behavior of private
firms or natural persons. They prohibit
anticompetitive practices like price fixing,
collusion between firms to restrict output,
or abuse of a dominant position.

Provisions on competition in the WTO

Competition-related provisions have
been incorporated in the GATT and
subsequent WTO agreements in a
piecemeal manner. It appears in GATT
Article VI on antidumping measures
and countervailing duties; GATT Article
XVII on state trading enterprises; GATS
Article VIII on monopolies and exclusive
service suppliers; GATS Article IX on
business practices; and agreements on
TRIPS, TRIMS, Safeguards, Technical
Barriers to Trade, Application of
Sanitary and Phytosanitary Measures;
Preshipment Inspection, Government
Procurement, and Trade in Civil Aircraft.
Proposals have been made to extend
the WTO rules to include multilateral
disciplines in competition policies. A
WTO working group has been mandated
to focus on clarifying certain core
principles, including transparency,
nondiscrimination, procedural fairness,
and provisions on hardcore cartels
modalities for voluntary cooperation, and
support for the progressive reinforcement
of competition institutions in developing
countries through capacity building.
Provisions on competition in FTAs
Competition-related provisions are in
widespread use in FTAs and they expand
on the WTO disciplines. For example,
APEC has produced a set of nonbinding
principles on competition. The objective
is to introduce and maintain effective
or adequate competition policy and/or
laws and associated enforcement policies,
ensuring the transparency of the above,
and promoting cooperation among APEC
economies, thereby maximizing, among
other things, the efficient operation of
markets, competition among producers
and traders, and consumer benefits.
The principles cover nondiscrimination,

part ii: coverage of a free Trade agreement |89

comprehensiveness, transparency, and

accountability.
Typically the competition chapter in
an FTA would contain several important
obligations, e.g., commitments to ensure
that (i) anticompetitive business practices
are proscribed, (ii) monopolies do not
abuse their powers, (iii) there are avenues
for complaints of unfair practices to be
initiated, and (iv) the relevant authorities
commit to cooperate and consult one
another to facilitate enforcement and
share best practices. Competition policy in
FTAs is generally of two types: (i) supranational coordination of specific
competition rules, and (ii) general
obligations against anticompetitive
conduct.
Supranational Coordination of
Specific Competition Rules. In the EU,
enforcement of competition rules falls
on the supranational institutions. At the
same time, EU member states maintain
separate and distinct national competition
laws and national competition authorities.
The EU also has trade agreements with
third countries that call for the adoption
and coordination of specific competition
standards and rules.
General Obligations against
Anticompetitive Conduct. These are
general obligations to take action against
anticompetitive business conduct. NAFTA
Chapter 15 on competition policy,
monopolies, and state enterprises requires
member countries to adopt or maintain
measures to proscribe anticompetitive
business conduct and to take appropriate
action with respect thereto. FTA members
are to consult and cooperate on the
effectiveness of their national competition
laws and to cooperate on the enforcement
of those laws via mutual legal assistance,
notification, consultation, and the
exchange of information.

In the AustraliaNew Zealand CER

(ANZCEFTA), complaints about the
misuse of substantial market power
may be filed, heard, and enforced in
either jurisdiction. These are buttressed
by a separate bilateral enforcement
agreement with extensive investigatory
assistance and exchange of information.
ANZCEFTA phased out the application
of antidumping remedies. In the USSingapore FTA, the US was interested
in how Singapores SOEs competed and
interacted with other companies and how
they were regulated, particularly in view
of their significant role in the Singapore
economy. The Competition Policy chapter
ensures that Singapore SOEs are subject
to the same rules of fair competition as
other companies, and that US companies
in Singapore would be guaranteed a level
playing field. The Singapore Government
also committed to continue its policy
of not intervening in the commercial
operations of SOEs, reduce its stake in
SOEs over time, and enact a competition
law by 2005.

Environmental and Labor Standards

Almost every country adopts laws
intended to maintain socially mandated
environmental and labor standards.
However, these standards vary across
countries as a consequence of historical
developments as well as economic and
social factors. Standards tend to rise
with per capita income; at higher income
levels, citizens demands move beyond
basic necessities and begin to focus
on issues like clean air and water and
elimination of child labor that may have
no direct effect on their personal living
conditions. Differences across countries in
environmental standards may also reflect
climate and geographic factors.
Some FTAs include provisions on
environmental or labor standards.

90 | How to design, negotiate, and implement a free trade agreement in asia

Specific terms may arise from one

or more of three concerns. First, and
especially when partners are at different
stages of development, the partner with
higher standards may fear that a trading
partners lower standards may translate
into a cost advantage in production and
thus a competitive advantage in trade
(social dumping). Second, partners may
fear that FTA commitments may restrict
a members ability to regulate activity,
including FDI, within its borders so as
to maintain its own desired standards.
Finally, developing countries may seek
technical or financial assistance in raising
standards at home through participation
in the agreement.
Some agreements, such as the Republic
of KoreaEFTA FTA, have no provisions
regarding environmental and labor
standards. The Republic of KoreaChile
FTA does not provide for labor standards,
but its provision on environmental
standards reserves the right of either party
to set appropriate standards for investment
within its boundaries and warns against
encouraging investment through the
relaxation of domestic health, safety,
or environmental measures. Beginning
with NAFTA, all free-trade negotiations
between the US and partner countries
have incorporated provisions on both
environmental and labor standards.114
Typically these oblige each country to
enforce its own environmental and labor
laws, address consistency with multilateral
environmental agreements, and affirm
obligations under the International Labour
Organization (ILO) (e.g., Australia-US FTA
and Singapore-US FTA).
114

The Canada-US FTA dealt only with potential

conflicts with parties trade obligations under various
international environmental agreements. In NAFTA,
environmental and labor provisions appeared as
side agreements added late in the negotiation to
overcome domestic political resistance in the US.
Subsequent FTAs negotiated by the US have included
environmental and labor clauses in the body of the
agreement.

Environmental standards
While the Marrakesh Agreement
establishing the WTO begins with a
commitment to optimal use of the worlds
resources, sustainable development,
and environmental protection, WTO
rules place few restrictions on the
environmental policies of its members.
The basic principle underlying WTO
rulings on disputes arising from national
environmental policies is that such
policies should not be applied in a way
that distorts trade by discriminating
between domestic and foreign producers
or between different trading partners.
Countries are free to use subsidies to
achieve environmental objectives, and
WTO agreements dealing with such issues
as product standards, food safety, and IP
protection acknowledge their relevance
to environmental goals. Ongoing efforts
in the WTO to reduce agricultural
subsidies are likely to have important
environmental benefits in addition
to their primary goal of removing an
important source of distortion in world
trade flows.
The official stance of the WTO and of
many WTO members is that the setting
of international rules for environmental
protection should be left to environmental
agencies and conventions. While there
are potential conflicts between terms of
multilateral environmental agreements
(MEAs) and the WTO over the use
of trade policies such as sanctions or
other import restrictions to enforce an
environmental agreement, in practice no
such conflict has arisen.
Most FTAs have no provision dealing
specifically with environmental issues.
A few others explicitly address the
environment in chapters on other
subjects. For example, the ASEAN-PRC
FTA includes environment, fishery, and
forestry among a large number of policy
areas in which the parties commit to

part ii: coverage of a free Trade agreement | 91

extend cooperation. The investment

chapter of the Taipei,ChinaPanama FTA
includes a section on environmental
measures, which affirms that the
agreement should not prevent the parties
from adopting and enforcing appropriate
measures to protect the environment. It
also recognizes that it is inappropriate
to encourage investment by relaxing
domestic health, safety or environmental
measures.
A major exception would be FTAs
negotiated by the US, all of which include
explicit sections dealing specifically with
environmental issues. (These illustrate
the propensity of the US to use FTAs to
achieve a variety of non-trade objectives.)
Provisions of the Canada-US FTA (Articles
104 and 105, Annex 104.1) indicate that,
where the agreement conflicts with trade
obligations under specified MEAs, the
latter will prevail. Where a country can
choose among equally effective means
of complying, it will choose the one that
conflicts least with its commitments
under the agreement. NAFTA was one of
the first international trade agreements to
include a full treatment of environmental
issues and thus set a precedent for
the treatment of environmental issues
in future agreements negotiated by
the US. Although the NAFTA text
addresses environmental concerns
in several places, including a section
on MEAs with language similar to
that in the agreement with Canada,
additional environmental provisions
are contained in a side agreement.
The North American Agreement on
Environmental Cooperation calls for
trilateral cooperation on environmental
matters and includes provisions regarding
the parties responsibility to enforce their
environmental laws. The US and Mexico
agree to establish a bilateral commission
to promote cooperation in achieving
environmental goals and a North
American Development Bank to assist in

financing environmental infrastructure

projects along the border.
The US-Singapore FTA is representative
of environmental terms included in
other US FTAs. The agreement includes
a chapter (18) specifically dealing with
the environment. However, the main
terms generally call for each party to
enforce its own environmental laws and
to avoid using reduced environmental
protection to promote exports or to attract
investment. The environmental chapter
also proposes the formation of a joint
committee to deal with environmental
matters, and calls for each country to
encourage public participation.
Labor standards
Labor standards are norms for the way that
workers are treated, including child labor
and forced labor, the right to organize trade
unions and to strike, minimum wages,
health and safety conditions, and working
hours. All WTO member governments
are committed to a narrow set of
internationally recognized core standards:
freedom of association, no forced labor,
no child labor, and no discrimination in
the workplace. Beyond that agreement on
core standards, the primary international
organization dealing with labor issues is
the International Labour Organization
(ILO) rather than the WTO.115 Nonetheless,
some groups, especially in wealthier
countries with higher wages and higher
labor standards, assert that the much lower
wages in developing countries constitute a
form of unfair competition. For their part,
developing countries understandably see
the emphasis on common labor standards
as a form of protectionism intended to
keep their goods out of the markets of the
developed countries.
115

At the 1996 Singapore Ministerial Conference,

WTO members identified the International Labour
Organization (ILO) as the competent body to negotiate
labor standards.

92 | How to design, negotiate, and implement a free trade agreement in asia

As with environmental issues, most

FTAs contain no provisions on labor
standards. FTAs negotiated by the US are
the principal but not the only exception.
While ASEAN FTAs contain no labor
standards provisions, Malaysias FTA with
Japan includes provisions on encouraging
human resource development and
implicitly commits Japan to share the
cost. Although the Republic of Koreas
other FTAs contain no labor provisions,
the agreement with Singapore does
include a commitment to promote human
resource development through such
activities as exchange of government
officials, cooperation between educational
institutions, and special training programs
(Article 18.10).
In contrast, all US FTAs beginning
with NAFTA have included special
provisions on labor standards. The
NAFTA labor provisions are included in
a side agreement, the North American
Agreement on Labor Cooperation.
Each party commits to the freedom
of association, the right to bargain
collectively, the right to strike, prohibition
of forced labor, restrictions on labor by
children and young people, minimum
employment standards, elimination
of employment discrimination, equal
pay for men and women, prevention
of occupational accidents and diseases,
compensation in case of work accidents
or occupational diseases, and protection
of migrant workers consistent with its
own domestic laws. The agreement also
creates a tri-national labor commission to
facilitate the achievement of its objectives
and to deal with labor issues in a
cooperative and consultative manner that
duly respects each nations sovereignty.
Subsequent FTAs place labor provisions in
the main text but are similar in requiring
each country to enforce its own labor
laws without regard to whether those
laws are consistent with internationally
recognized labor standards. A new

feature in the relevant article of the USJordan agreement (Article 6) subjects

compliance with labor laws to the same
dispute settlement process as other
provisions of the agreement. However,
the agreement only requires the parties
to strive to ensure that domestic laws
are consistent with internationally
recognized labor rights and to improve
those standards.

Dispute Settlement Mechanism

Scope of the WTO Mechanism
WTO dispute settlement is state-to-state,
rule-based, and binding, and takes place
within strict time limits. The Dispute
Settlement Understanding (DSU) is
illustrated in a flowchart in Figure 2.1.
The scope of the DSU is set forth in
its Appendix I. The DSU applies to the
agreement establishing the WTO; the
multilateral trade agreements on trade
in goods, trade in services (GATS), and
trade-related aspects of IPRs (TRIPS);
the DSU; and two plurilateral trade
agreements still in force that cover
trade in civil aircraft and government
procurement.
As the flowchart suggests, WTO
disputes may have up to four phases:
(i) mandatory consultations; (ii) in the
event of unsuccessful consultations, an
arbitral procedure in which disputes
are heard by a panel, composed usually
of three persons serving as finders of
fact and law; (iii) an appellate system
under which the finding of the panel
(the panel report) can be appealed to an
appellate body; and (iv) an enforcement
mechanism according to which the
winning party may impose sanctions
(withdraw trade concessions) until the
losing party brings its trade measures into
conformity with the recommendations of
the WTO Dispute Settlement Body.

part ii: coverage of a free Trade agreement | 93

Figure 2.1: WTO Dispute Settlement Flowchart

60 days

by 2nd DSB
meeting

0-20 days
20 days (+10 if
Director-General
asked to pick panel)

Consultations
(Art. 4)

Panel established
by Dispute Settlement Body (DSB) (Art. 6)

Terms of reference (Art. 7)

Composition (Art. 8)

Panel examination
Normally 2 meetings with parties (Art. 12)
1 meeting with third parties (Art. 10)

Interim review stage

Descriptive part of report
sent to parties for comment (Art. 15.1)
Interim report sent to parties for comment (Art. 15.2)

6 months from panels

composition,
3 months if urgent

up to 9 months
from panels
establishment
60 days for panel
report unless
appealed...

REASONABLE
PERIOD OF TIME
determined by:
member proposes,
DSB agrees; or parties
in dispute agree;
or arbitrator
(approx 15 months
if by arbitrator)

30 days after
reasonable
period expires

During all stages

good offices, conciliation,
or mediation (Art. 5)

Panel report issued to parties

(Art. 12.8; Appendix 3 par 12(j))

Expert review group

(Art. 13, Appendix 4)

NOTE: a panel
can be composed
(i.e., panelists
chosen) up to
about 30 days
after its
establishment
(i.e., after
DSBs decision
to have a panel)

Review meeting
with panel
upon request
(Art. 15.2)

... 30 days for

appellate report

Panel report issued to DSB

(Art. 12.9; Appendix 3 par 12(k))

DSB adopts panel/appellate report(s)

including any changes to panel report made
by appellate report (Art. 16.1, 16.4, 17.14)

Implementation
report by losing party of proposed
implementation within reasonable period of
time (Art. 21.3)

In cases of non-implementation
parties negotiate compensation pending full
implementation (Art. 22.2)

Retaliation
if no agreement on compensation, DSB
authorizes retaliaton pending full
implementation (Art. 22)
Cross-retaliation:
same sector, other sectors, other agreements
(Art. 22.3)

Appellate review
(Art. 16.4 and 17)

Dispute over
implementation:
Proceedings possible,
including referral to
initial panel on
implementation (Art. 21.5)

max 90 days
TOTAL FOR
REPORT
ADOPTION:
Usually up to
9 months (no appeal),
or 12 months
(with appeal) from
establishment
of panel to
adoption of
report (Art. 20)

90 days

Possibility of arbitration
on level of suspension
procedures and
principles of retaliation
(Art. 22.6 and 22.7)

Source: World Trade Organization (WTO) website. Available: www.wto.org/english/thewto_e/whatis_e/tif_e/disp2_e.htm

The WTO Agreement also provides for

good offices, mediation, conciliation, and
an independent arbitral system. But WTO
members rarely use these procedures.
The WTO DSU has been a tremendous
success. It is widely used by WTO members,
which have lodged more than 300 disputes

under it since 1995. WTO dispute

settlement stands in strong contrast to the
GATT dispute settlement system, where the
losing party could block the adoption of a
panel report (the findings of the arbitral
process), delay was common, and the
enforcement mechanism weak.

94 | How to design, negotiate, and implement a free trade agreement in asia

Despite the success of the WTO system,

however, certain questions remain. Should
WTO panels have exclusive jurisdiction
in trade disputes, or can a panel decline
jurisdiction when an FTA tribunal is
seized with a dispute? The Appellate Body
ruled in the MexicoSoft Drinks dispute
that Articles 3, 7, 11, 19, and 23 of the
DSU require WTO panels to take certain
actions and that a decision by a panel
to decline to exercise validly established
jurisdiction would seem to diminish
the rights of a complaining Member to
seek the redress of a violation of [WTO]
obligations.116 The Appellate Bodys
decision in MexicoSoft Drinks would
appear to restrict the right of a WTO
panel to determine freely whether or not
it can exercise jurisdiction. In instances
when WTO rights and obligations are
at issue, particularly rights affecting
third parties, it is possible that the
WTO dispute settlement mechanism may
be elevated above dispute settlement
mechanisms in FTAs.

Institutional structures of FTA dispute

settlement mechanisms compared
FTA dispute settlement mechanisms vary
considerably, yet almost always have
several points in common with the WTO
system. A few examples drawn from FTAs
involving ADB members will demonstrate
some of the similarities and differences in
dispute settlement provisions, and better
illustrate the jurisdictional question posed
above.
ASEAN Free Trade Agreement. AFTA
was the first major FTA in the East and
Southeast Asian region. The ASEAN
Protocol on Enhanced Dispute Settlement
Mechanism governs disputes arising
116

Appellate Body Report, MexicoTax Measures on Soft

Drinks and Other Beverage (MexicoSoft Drinks),
WT/DS308/AB/R, paras. 4853 (quoting para. 53).

under ASEAN economic agreements,

including AFTA. The protocol is based
almost entirely on the WTO DSU. Like the
WTO system, it provides for consultations,
a panel process, appellate review, and
suspension of concessions, under terms
that are almost identical to those of
the DSU. Minor differences do exist:
panel reports are adopted at the Senior
Economic Officials Meeting (SEOM). The
SEOM plays a role similar to that of the
WTO Dispute Settlement Body. Like the
WTO, a reverse-consensus rule applies in
the SEOM. Appeals are made to a sevenmember Appellate Body appointed by the
ASEAN economic ministers, with three
members designated to hear a proceeding.
Article 1:3 of the protocol allows ASEAN
members to resolve a dispute involving
fellow members in other dispute
settlement forums (e.g., the WTO) at any
stage before a party has made a request
to the SEOM to establish a panel. This
clause implies that the protocol becomes
the exclusive means of resolving disputes
between members once a request is made
to the SEOM to establish a panel.117
Japan-Singapore Economic Partnership
Agreement. As is clear from the above
discussion, economic partnership
agreements that incorporate FTA
agreements have become relatively
common in East Asia. Singapore has
entered into several such agreements
that provide for state-state dispute
settlement, require consultations as
a first step in the dispute settlement
process, and provide for an arbitration
117

The decisions of the Appellate Body in MexicoSoft

Drinks and the WTO Panel in ArgentinaDefinitive
Anti-Dumping Duties on Poultry from Brazil
(ArgentinaPoultry), WT/DS241/R, bring into
question when or even whether WTO rules would
permit a panel to decline to hear a case pending or
decided under the Protocol or other FTA mechanisms,
and whether the doctrine of estoppel might be applied
to prevent the WTO from hearing such a dispute.

part ii: coverage of a free Trade agreement | 95

mechanism if consultations prove

unsuccessful. Investor-state disputes are
usually regulated under separate dispute
settlement provisions. For example, the
Japan-Singapore Economic Partnership
Agreement (JSEPA) is an FTA with a
dispute settlement mechanism that
provides for general consultations to
avoid recourse to the dispute settlement
system. Like the WTO Agreement,
it makes arbitration, mediation, and
conciliation available as options for
settling a dispute. If the parties are
unable to settle their dispute through
means short of formal dispute settlement
proceedings, JSEPA provides for special
consultations as the first step in its
formal dispute settlement process, before
arbitration. JSEPA permits the parties
to have recourse to other international
dispute settlement agreements (such
as the WTO) to which they are parties.
Starting an action under one agreement
makes that agreement the exclusive
forum for the dispute unless substantially
separate and distinct rights or obligations
under different international agreements
are in dispute.
Comprehensive Economic Cooperation
Agreement between the Republic of India
and the Republic of Singapore. This
agreement also provides for
consultations, followed by arbitration
to resolve disputes arising under it. It
incorporates many WTO obligations. The
parties affirm their rights and obligations
under existing bilateral and multilateral
agreements to which both are parties,
including the WTO Agreement, but what
is to be done in the event of a conflict
between agreements is left vague. The
agreement only provides that, in the
event of an inconsistency, the parties
should immediately consult with each
other with a view to finding a mutually
satisfactory solution.

Singapore-Australia Free Trade

Agreement. Again, consultations
followed by arbitration are used in the
SAFTA. In the event of any inconsistency
between this agreement and any other
agreement to which both are parties,
the countries are required to consult
with each other with a view to finding
a mutually satisfactory solution in
accordance with customary rules of
public international law.
North American Free Trade
Agreement. Chapter 20 of the agreement
is applicable to NAFTA disputes not
involving investment, antidumping
measures, or countervailing duties
(which fall under other NAFTA dispute
settlement rules). NAFTA members
are required to try to resolve Chapter
20 disputes through governmentto-government consultations. If
consultations are unsuccessful, the
parties may request a meeting of
the NAFTA Free Trade Commission
(comprising the trade ministers of the
parties). If the commission cannot resolve
the dispute, a party may call for the
establishment of a five-member arbitral
panel, which is entitled to seek assistance
from scientific experts (scientific review
boards). NAFTA permits parties to
choose whether to resolve trade disputes
through arbitration within the FTA or
before the WTO. Disputes like the longrunning Softwood Lumber case have been
heard in both forums.
In summary, the above examples are
representative of FTA dispute settlement
provisions. They suggest that FTA dispute
settlement systems
(i) are state-to-state;
(ii) require consultations;
(iii) usually make available good
offices, mediation, and
conciliation; and

96 | How to design, negotiate, and implement a free trade agreement in asia

(iv) provide for some form of arbitration

if consultations are unsuccessful.

(i)

In addition, FTA agreements generally

use an enforcement mechanism similar to
that of the WTO Agreement (but based
on the withdrawal of FTA, and not, WTO
concessions).118
One area where FTAs differ is in forum
selection between the FTA and the WTO
in the event of overlapping obligations.
Various options exist:
(i) Refrain from taking a position on
this point and simply require the
parties to consult.
(ii) Make the FTA the exclusive forum
for the resolution of a trade
dispute involving FTA members.
(iii) Allow FTA members to choose
whether to have a dispute heard
before an FTA tribunal or before
the WTO (make the first forum
before which the dispute is
brought the exclusive forum).
(iv) Allow the exercise of concurrent
jurisdiction.
The WTO Appellate Body decisions in
the MexicoSoft Drinks case (discussed
above) raises questions concerning FTA
provisions aimed at limiting an FTA
members recourse to WTO dispute
settlement when WTO obligations are at
issue, though the decision will not be the
last word on the subject.

Framework and Practical Approaches

for Best Practices in Dispute Settlement
Mechanisms
Some salient recommendations of realistic
best practices in dispute settlement would
include the following:
118

The effectiveness of this remedy may be tempered by

the existence of any bound concessions a party has
made under the WTO Agreement.

(ii)

Work within WTO rules. Many

FTAs draw inspiration from the
WTO dispute settlement system
and this is a good place to
start when analyzing practical
approaches and best practices
in FTA dispute settlement
mechanisms. The success of the
WTO dispute settlement system
has served as an inspiration for
many FTAs. AFTA presents the
clearest example of an FTA with
dispute settlement provisions
modelled on the WTO system. The
framework applies consultations,
a panel process (arbitration),
and an appellate process.
Enforcement is generally well
understood by trading countries,
and commonly used in FTAs, with
the exception that FTA dispute
settlement mechanisms do not
always have an appellate stage of
dispute settlement proceedings.
At a minimum, FTAs should be in
accord with WTO rules, including
dispute settlement practices.
Place importance on
consultations. The importance
of consultations as a first step
in dispute settlement must be
stressed. A large number of trade
disputes are resolved either
bilaterally through informal
consultations, or through
formal consultation procedures.
Likewise, although good offices,
conciliation, and mediation are
options that are only infrequently
used, their inclusion in an FTA
costs the parties nothing and
their occasional use by the parties
may, in certain cases, help to
avoid recourse to formal dispute
settlement proceedings. Resolving
a trade dispute at an early stage,
before the initiation of formal
dispute settlement procedures, is

part ii: coverage of a free Trade agreement | 97

cost-effective and efficient,

and often the best solution for
maintaining harmonious trade
relations among FTA parties.
(iii) Develop a choice of law strategy
between WTO and FTA
procedures. Owing to the almost
universal nature of the WTO
Agreement, and overlapping
obligations in the WTO and FTA
Agreements, FTA members may
find themselves in situations
where the rules of both the FTA
and the WTO apply. They must
decide under which rules they
want to seek relief. Dispute
settlement proceedings might be
heard under one or both systems,
and the potential for inconsistent
results exists. Parties negotiating
FTAs frequently insert a clause
providing that initiation of an
action under the FTA excludes
commencement of the same
action in the WTO. Two WTO
decisions have examined this
type of clause,119 and in each case
WTO panels assumed jurisdiction
despite the clause. Nevertheless,
these two rulings, for a number
of technical reasons, are not the
final word on the question. FTA
drafters should therefore continue
to insert a provision on how
conflicts between the two sets of
rules should be managed, with
the expectation that members will
operate in good faith and not seek
recourse in a second forum if they
fail to prevail in the first forum.
(iv) Use WTO dispute settlement
rules as a model for FTA dispute
settlement provisions. Because
of their common goals (trade
liberalization), FTAs frequently
119

See the MexicoSoft Drinks and ArgentinaPoultry

decisions (discussed above).

draw on WTO principles

and practices. The result is a
framework of obligations that
is familiar to the parties and
may result in fewer disputes.
Likewise, FTAs frequently draw
on the dispute settlement rules
of the WTO as a model for their
own rules. The familiarity of
trading countries with these rules,
and the relative success of the
WTO dispute settlement system,
supports this choice, and may
result in a desirable degree of
harmonization among FTA dispute
settlement systems.
(v) Provide technical assistance on dispute
settlement to developing-country
FTA members. Economically
more advanced FTA members
should recognize the importance
of strengthening capacity and
institutions in less-developed
members. Capacity constraints
can limit the ability of developing
countries, in particular LDCs, to
participate successfully in FTA
dispute settlement proceedings.
Technical assistance regarding
dispute settlement practices
and procedures is important in
maintaining an equitable dispute
settlement system. More broadly,
investment in education in poorer
member countries can help
improve the success of the FTA in
general, and its dispute settlement
system in particular.
(vi) Emphasize good governance
principles, including transparency, in
FTA dispute settlement procedures
and practices. Factors like good
governance and transparency
will influence the success of an
FTA and will provide greater
legitimacy for its dispute
settlement system. The free flow
of goods, services, investment,

98 | How to design, negotiate, and implement a free trade agreement in asia

and capital can contribute to

regional growth and development,
as well as stability and prosperity.
A dispute settlement system with

fair and efficient procedures and

practices is one way to lock in
those gains.

Appendix to Part II:

Rules of Origin in Japans Economic Partnership Agreements (EPAs) with Malaysia and the Philippines
Chapter

EPA with Malaysia

EPA with the Philippines

16 Preparations of Fish

CTH or WO
(or wholly obtained in ASEAN)

CTH or WO
(or wholly obtained by authorized
vessel under Indian Ocean Tuna
Commission)

1820 Preparations of Cocoa, Cereals,

Vegetables

CTH or WO
(or wholly obtained in ASEAN)

CTH (19) or WO
(or for Chapters 18 and 20 wholly
obtained in ASEAN)

2838 Chemicals

CTH or VA (regional, 40%)

CTH or VA (regional, 40%)

40 Rubber and Articles of Rubber

CTH or VA (Regional, 40%)

CTH or VA (Regional, 40%)

5060 Textiles

CTH and two-step SP

(or two-process SP in ASEAN)

CTH and 2 Step SP

(or two-process SP in ASEAN)

6163 Clothing and Articles of Textiles CTH and two-step SP

(or two-process SP in ASEAN)

CTH and two-step SP

(or two-process SP in ASEAN)

64 Footwear

CTH

CTH

8485 Electrical Machinery

CTSH or VA (regional, 40%)

CTH or VA (regional, 40%)

8689 Transport Equipment

CTH or VA (regional, 40%)

CTH or VA (regional, 40%)

94 Furniture and Bedding

CTH or VA (regional, 40%)

CTH or VA (regional, 40%)

ASEAN = Association of Southeast Asian Nations, CTH = change in tariff heading, SP = specified process, VA = value added, WO = wholly obtained.
Source: Compiled from the World Trade Organization (WTO) regional portal. Available: www.wto.org

Binding Nonconforming Measures, Japan-Philippines Economic Partnership Agreement (JPEPA)

Modes of supply: (i) Cross-border supply, (ii) consumption abroad, (iii) commercial presence, (iv) presence of natural persons
Sector or Subsector

SS

Limitations on Market
Access

SS

(i) None
(ii)None
(iii)None except that
foreign capital
participation,
direct and/or
indirect, in
Nippon Telegraph
and Telephone
Corporation
(NTT)23 must be
less than one
third.
(iv)None

Limitations on National
Treatment

Additional Commitments

C. Telecommunication Services
Basic telecommunication
services:
Voice telephone services (7521);
Packet-switched data
transmission services (7523**);
Circuit-switched data
transmission services (7523**);
Telex services (7523**);
Facsimile services (7521**,
7529**);
Private leased circuit services
(7522**, 7523**); and Other

SS = subsector.

(i) None
(ii)None
(iii)None except
that board
members and
auditors in NTT
and the regional
companies must
be Japanese
nationals.
(iv)None

Japan undertakes the

additional commitments
below.

Resale of international telecommunications traffic to be permitted by 2007.

Financial companies to be allowed to establish branches no later than 4 years after entry into force of the
agreement. Companies also to be allowed to provide cross-border supply of portfolio management services to
collective investment schemes no later than 4 years after entry into force of the agreement.
There will be no restrictions on the number of subscription television concessions at the zonal, municipal, and
district levels once the current concessions at those levels expire and in no case beyond 31 October 2011.

Telecommunications

Financial services

Audiovisual services

US

Asset management by mutual funds, investment funds, and foreign capital investment funds to be allowed as of
entry into force of the agreement, and management of voluntary savings plans to be allowed as of 1 March 2005.

Quotas for broadcasting of locally produced programming on free-to-air national television services on weekends/
holidays to be reduced from 50% to 30% by 1 February 2009.

US

US

US

Hong Kong, China and

Macao

US

Foreign insurance companies to be allowed to establish branches in Chile no later than 4 years after the date of
entry into force of the agreement.

Wholly owned operations in architectural, engineering, integrated engineering, and urban planning and landscape
architectural services to be permitted as of December 2006.

US and EC

US

US

US

US

Foreign insurance companies to be allowed to supply marine, aviation, and transport insurance 1 year after entry
into force of the agreement on a cross-border basis.

Colombia

Local presence requirements, including those for maritime, road, and rail transport services, to be phased out
within 3 years from the date of entry into force of the agreement.

Transportation

Professional services

Local presence requirements for travel agencies and tour operators, and travel guide services to be phased out
within 3 years from the date of entry into force of the agreement.

Tourism

China,
Peoples
Republic of

Foreign insurers will be able to acquire new nonlife insurance licenses, with no restrictions, 6 months after the date
of entry into force of the agreement.

Financial services

Financial services

Local presence requirements to be phased out within 3 years from the date of entry into force of the agreement.

Construction

Chile

The existing two-operator limit on the number of mobile telecommunication suppliers to expire by 31 December 2005. US

Telecommunications

US

Local presence requirements to be phased out within 3 years from the date of entry into force of the agreement
for advertising, car rental, consultancy and management, and debt collection. For accounting, financial auditing
and bookkeeping, architectural and engineering, and services incidental to mining, the phase-out will be within 7
years of the date of signature of the agreement. Branching and entity restrictions in advertising and publishing to
be phased out within 5 years of date of entry into force of the agreement.

Partner Country
US and Singapore

Business services

FTA Commitments Providing for the Phase-out of Restrictions in Place

Foreign life insurers will be allowed to operate branches.

Bahrain

Sector

Financial services

Australia

Country

Matrix 1: Examples of Commitments Providing for the Phase-out of Restrictions in Various FTAs

Matrices of FTA Service Provisions

100 | How to design, negotiate, and implement a free trade agreement in asia

Financial services

Business services

Peru

Singapore

Financial services

Telecommunications

Telecommunications

Nicaragua

Distribution

Financial services

Morocco

Panama

Foreign insurance companies to be allowed to establish branches 4 years after entry into force of the agreement.
However, members of the board of directors must be residents of Nicaragua.

Telecommunications

Honduras

Oman

Monopoly on basic telecommunication services to be eliminated as of 13 April 2005.

Financial services

Guatemala

Existing Singaporean laws to be modified so as to relax conditions under which US law firms are permitted to
provide legal services.

Partner Country

El Salvador

US

US

US

US

US

US

US

US

US

US

US

Foreign nonlife insurance companies are allowed to supply marine, aviation, and transport insurance 2 years
US
after the entry into force of the agreement. Services auxiliary to insurance, such as consultancy, actuarial, risk
assessment, and claim settlement services, may also be provided on a cross-border basis 2 years after the entry into
force of the agreement.

Monopoly on basic telecom services to be eliminated by January 2003.

Full foreign ownership of retail enterprises worth more than $1 million to be permitted by 2011.

Foreign life and nonlife insurance companies to be allowed to establish branches not later than 4 years after entry into
force of the agreement. Apart from reinsurance brokerage, foreign insurance companies will be permitted to supply
marine, aviation, and transport insurance 2 years after entry into force of the agreement on a cross-border basis.

Basic telecom services to be fully liberalized by 24 December 2005. Additional mobile operators may also be
authorized by December 2005.

Foreign life and nonlife insurance companies, as well as brokers and agents, to be allowed to establish branches
no later than 4 years after entry into force of the agreement. Currently, collective investment schemes are not
regulated in Guatemala. Nonestablished financial institutions (other than trust companies) will be allowed to
provide investment advice and portfolio management services to collective investment schemes in the country as
soon as these schemes are regulated.

Foreign insurance companies to be allowed to establish branches no later than 3 years after entry into force of
the agreement.

Financial services

El Salvador

Foreign life and nonlife insurance companies to be allowed to establish branches no later than 4 years after entry
into force of the agreement. Currently, collective investment schemes are not regulated in the Dominican Republic.
Nonestablished financial institutions (other than trust companies) will be allowed to provide investment advice and
portfolio management services to collective investment schemes in the country as soon as these schemes are regulated.

Insurance sector to be fully liberalized and the existing monopoly to be eliminated in phases. Upon entry into
force of the agreement foreign insurance companies will have access to the insurance sector on a cross-border
basis. After 2008, the companies will be allowed to establish operations in Costa Rica, through branching and other
means, but restrictions on third-party auto liability and on worker compensation will continue until 2011, after
which the sector will be fully liberalized.

Financial services

Financial services

Direct supply to the customer of the following telecommunications services will be allowed: (i) private network
services, by 1 January 2006; (ii) Internet services, by 1 January 2006; and (iii) mobile wireless services, by 1 January 2007.

FTA Commitments Providing for the Phase-out of Restrictions in Place

Telecommunications

Sector

Dominican
Republic

Costa Rica

Country

part ii: coverage of a free Trade agreement | 101

Tourism, education,
and maritime
transport

Financial services

Sector

By January 2005, equity participation of up to 60% (subject to certain criteria) by Australian investors/service
suppliers allowed in major restaurants or hotels, tertiary education institutions specializing in science and
technology and located outside Bangkok, and certain maritime cargo services.

Australia

US

Republic of Korea

For architectural services, the requirement of residency in Singapore to be phased out by April 2005. The
requirement to have Singapore-registered or Singapore-allied professionals occupying at least two thirds of
directorships in a corporation to be reduced to 51% by April 2005.
Current ban on new licenses for full-service banks to be lifted within 18 months, and within 3 years for wholesale banks
that serve only large transactions. Licensed full-service banks able to offer all their services at up to 30 locations in the
first year, and at an unlimited number of locations within 2 years. Locally incorporated subsidiaries of US banks can apply
for access to the local ATM network within 2.5 years. Branches of US banks get access to the ATM network in 4 years.

US

Partner Country

Foreign power companies to be allowed to supply electricity to non-household consumers in two phases: phase 1, 2
months after the opening up of the electricity market in the second half of 2002; and phase 2, 6 months after phase 1.
In the final phase, scheduled for implementation by 2003, retail sale to the remaining consumers (mainly household
consumers) to be fully opened up.

FTA Commitments Providing for the Phase-out of Restrictions in Place

ATM = automated teller machine, EC = European Community, FTA = free trade agreement, US = United States.
Source: Roy, Marchetti, and Lim (2006).

Thailand

Country

102 | How to design, negotiate, and implement a free trade agreement in asia

part ii: coverage of a free Trade agreement | 103

Matrix 2: Key Approaches and Provisions of FTAs Involving East Asian Countries
Agreement

Scheduling
Approach

MFN Clause

Sectoral CarveOuts

Rules of Origin for

Judicial Persons*

ASEAN Framework
Agreement on
Services

Positive

MFN between ASEAN None**

members subject to
ASEAN-X formula***

Yes. As far as services are

concerned, benefits are
also extended to juridical
persons with substantial
business operations in the
territory of any party.

Australia-Thailand

Positive

More favorable
treatment of
non-parties to be
extended to parties,
but nonbinding.

None **

Yes (for chapter on

promotion and protection
of investments)

India-Singapore

Positive

More favorable
treatment of
non-parties to be
extended to parties,
but nonbinding.

Core air transport

services

Yes (for services supplied

crossborder and through
consumption abroad,
although benefits can
be denied). Several
Singaporean banks
are expressly listed as
beneficiaries.

Japan-Malaysia

Positive

More favorable
treatment of
non-parties to be
extended to FTA
parties, subject to
a negative list of
reservations.

Core air transport

services and
cabotage in maritime
transport

Yes (parties can deny

FTA benefits to service
providers from non-parties
with which a party does
not maintain diplomatic
relations or where certain
trade sanctions apply).
The investment chapter
of Japan-Malaysia does
not extend benefits to
branches of enterprises of
third states.

Japan-Singapore

Positive

More favorable
treatment of
non-parties to be
extended to parties
(but nonbinding).

Core air transport

services and
cabotage in maritime
transport

Yes. As far as services are

concerned, benefits are
also extended to juridical
persons with substantial
business operations in the
territory of any party.

Australia-Singapore

Negative

None

Core air transport

services

Yes

ChileRepublic of
Korea

Negative

None

Core air transport

services and financial
services

Yes. But parties can deny

FTA benefits to service
providers from non-parties
with which a party does
not maintain diplomatic
relations or where certain
trade sanctions apply.

Japan-Mexico

Negative

More favorable
treatment of
non-parties to be
extended to FTA
parties, subject to
a negative list of
reservations.

Core air transport

services, cabotage in
maritime transport,
and financial services

Yes. But parties can deny

FTA benefits to service
providers from non-parties
with which a party does
not maintain diplomatic
relations or where certain
trade sanctions apply.

104 | How to design, negotiate, and implement a free trade agreement in asia

Agreement

Scheduling
Approach

MFN Clause

Sectoral CarveOuts

Viet NamUS

Positive

MFN obligation

None **

Singapore-US

Negative, except for

cross-border trade in
financial services, for
which a positive list is
adopted.

Better treatment of
non-parties to be
extended to FTA
parties, subject to
a negative list of
reservations.

Core air transport

services

Singapore-Panama

Negative, except for

cross-border trade in
financial services, for
which a positive list is
adopted.

Better treatment of
non-parties to be
extended to FTA
parties, subject to
a negative list of
reservations.

Core air transport

services

Rules of Origin for

Judicial Persons*
Yes. But parties can deny
FTA benefits to investors
from third country if the
denying party does not
maintain normal economic
relations with the third
party (investment chapter
only).

ASEAN = Association of Southeast Asian Nations, FTA = free trade agreement, MFN = most-favored nation, US = United States.
*Extended to juridical persons constituted under domestic laws and having substantial business operations in the domestic territory.
** No explicit sectoral carve-out in the text of the agreement; coverage of the sector depends on what has been committed in the schedules of specific
commitments (in the case of a positive-list approach) or what is included in the reservations list (for negative list FTAs).
*** ASEAN-X formula as described in Fink and Molinuevo (2007) is a 2003 amendment to the ASEAN Framework Agreement on Services that allows for the departure
from MFN if two or more members agree to liberalize trade in services faster than the remaining ASEAN members.
Source: Compiled from tables in Fink and Molinuevo (2007).

Examples of Investment
Agreements
Key NAFTA Investment Provisions. Chapter
11 contains the most established regional
investment regime. Investment is defined
through a broad list of assets, along with
a negative list of certain claims to money.
Although investment provisions are
applicable to all sectors in principle, each
country has identified key sectors that are
exempted. National treatment and mostfavored nation (MFN) treatment are granted
for the establishment (market access),
acquisition, expansion, management,
conduct, operation, and sale or other
disposition of investments. In addition,
there are prohibitions on restrictions on
ownership and on use of performance
requirements, and there are guarantees
on free transfer of funds and protection
from expropriation and nationalization.
There is also a comprehensive dispute

settlement mechanism for state-to-state

and investor-to-state disputes, including
access to international arbitration through
the International Centre for Settlement of
Investment Disputes (ICSID) and the UN
Commission on International Trade Law
(UNCITRAL).
(i) The obligations of the investment
chapter in US FTAs go far beyond
the provisions proposed at the
WTO. For example, they require
US investors and investments to
be treated at least equally with
locals (national treatment), in
preestablishment rights and other
matters, unless the exceptions
are listed in the FTA (negativelist approach). Performance
requirements such as transfer of
technology are also prohibited
except in certain circumstances or
for listed exceptions.

part ii: coverage of a free Trade agreement | 105

(ii) US FTA negotiations with

some ASEAN countries on
the investment chapter have
met with various difficulties.
The expropriation provision
requires compensation, including
interest, for direct or indirect
expropriation of an investment.
As investment is defined very
broadly to include tangible
and intangible property, loans,
shares, intellectual property,
etc., investors can directly sue
the state at an international
tribunal for violations of the
investment chapter, including
the expropriation provision.
Indirect investment could mean
losses resulting from government
regulation or policy. The
investment chapter could affect a
partner countrys ability to put in
place capital controls and other
policies such as those used during
the 1997 Asian financial crisis.
Key ASEAN Investment Provisions. These
are contained in the 1987 ASEAN
Agreement on the Promotion and
Protection of Investment, and the 1998
Framework Agreement on the AIA. The
latter introduced the concept of the
ASEAN investor and covers investments
from sources within and outside the
ASEAN region. It provides for national
treatment for ASEAN investors by 2010
(later advanced to 2003) and non-ASEAN
investors by 2020 (later advanced to
2010) with respect to investments that
are specifically approved in writing
and registered by the host country; for
preestablishment rights subject to a
negative list of temporary and sensitive
exclusions from each ASEAN state;
and for state-to-state and investor-tostate dispute settlement at the national
and regional (meetings of the ASEAN
economic ministers) levels. Disputes

may also be brought before the ICSID,

UNCITRAL, the Regional Centre for
Arbitration in Kuala Lumpur, or any other
regional center. ASEAN has likewise
entered into economic partnership
agreements with its dialogue partners
(the PRC, Japan, the Republic of Korea,
the AustraliaNew Zealand FTA, India,
and the EU). The investment chapter in
each agreement is aimed at promoting
liberalization, transparency, facilitation,
and protection of cross-border investment.
A concern, however, is the lack of
coherence and consistency among the
different agreements.
Key Investment Provisions of the
Japan-Singapore Economic Partnership
Agreement (JSEPA). In recent years
Singapore has been prolific in signing
bilateral trade agreements. The investment
provisions of JSEPA (Chapter 8) are
examined below.
(i)

(ii)

Investment vs. Enterprise.

Investment is very broadly defined
to cover every kind of asset owned
or controlled, directly or indirectly,
by an investor. It also includes profit,
interest, capital gains, dividends,
royalties, and fees. Investor
covers nationals of Japan, nationals
of Singapore, and permanent
residents of Singapore. Enterprise
means any legal person/entity and
includes government-owned and
government-controlled corporations.
An enterprise is defined as owned
by non-parties if more than 50%
of the equity interest is owned by
non-parties, and controlled by
non-parties if such persons have
the power to name a majority of
its directors or otherwise to legally
direct its actions.
National treatment (Article 73):
Each party must accord investors/
investments of its FTA partner

106 | How to design, negotiate, and implement a free trade agreement in asia

national treatment with regard

to the establishment, acquisition,
expansion, management,
operation, maintenance,
use, possession, liquidation,
sale, or other disposition of
investment. National treatment
also extends to access to its courts
of justice and administrative
tribunals and agencies. National
treatment applies as well to any
restitution or compensation to
investors that have suffered loss
or damage to their investments
due to armed conflict or
revolution, insurrection, and civil
disturbance.
(a) Japan has listed the following
exceptions: horizontal
exceptions on land transport;
prior notification requirement
in some sectors; public
monopoly and state enterprises;
subsidies designated for
investments in research and
development; and permanent
residents of Singapore.
Sectoral exceptions cover
agriculture (plant breeders
rights); the mining industry,
including oil and natural gas
exploration and development;
the water transport industry;
financial services; and the
telecommunications industry.
National treatment and
prohibition of performance
requirements do not apply to
fisheries within the territorial
seas, internal waters, and
exclusive economic zones; the
manufacture of explosives;
the nuclear energy industry;
the aircraft industry; the arms
industry; the space industry;
the electric utility industry; the
gas utility industry; and the
broadcasting industry.

(b) Singapore has listed the

following exceptions:
horizontal exceptions on
subsidies and incentives for all
sectors; company registration
formalities for all sectors (also
exceptions to performance
requirements); ownership of
residential land and property;
regulations on Singaporedollar transactions; and
privatization (also performance
requirements). Sectoral
exceptions cover investments
in services; the printing and
publishing sector; the arms and
explosives sector; and certain
industries/products in the
manufacturing sector.
(iii) Performance requirements: These
are prohibited, with exceptions.
(iv) Expropriation and compensation
(Article 77): Investments/
investors must be accorded
fair and equitable treatment
and full protection and
security. Expropriation and
nationalization can be undertaken
only for a public purpose, on
a nondiscriminatory basis, in
accordance with due process
of law, and upon payment of
compensation. Compensation
must be equivalent to the fair
market value of the expropriated
investments, must be paid without
delay, and must be effectively
realizable, freely transferable,
and freely convertible at the
market exchange rate prevailing
on the date of the expropriation,
and into freely usable currencies
defined in the International
Monetary Fund (IMF) Articles
of Agreement. Investors have
the right of access to the courts
of justice or the administrative
tribunals or agencies of the

part ii: coverage of a free Trade agreement | 107

partner making the expropriation,

to seek a prompt review of the
investors case or the amount
of compensation that has been
assessed.
(v) Settlement of state-investor disputes
(Article 82): Such investment
disputes must, as far as possible,
be settled amicably through
consultations between the
disputing parties. If an investment
dispute cannot be settled through
such consultations within 5
months, and if the investor has
not submitted the dispute for
resolution under administrative
or judicial settlement, or in
accordance with any agreed
dispute settlement procedures,
that investor may either request
the establishment of an arbitral
tribunal or submit the investment
dispute to the ICSID or UNICTRAL
for conciliation or arbitration.
(vi) Temporary safeguards (Article 84):
A party may adopt or maintain
measures inconsistent with its
obligations on national treatment
and on transfers in the event of
serious balance of payments or
external financial difficulties,
or where, in exceptional
circumstances, movements of
capital result in serious economic
and financial disturbance in the
FTA partner. The measures must
be consistent with the IMF Articles
of Agreement, must not exceed
those needed to deal with the
circumstances, must be temporary
and must be eliminated as soon as
conditions permit, must promptly
be notified to the FTA partner,
must be nondiscriminatory, and
must avoid unnecessary damage
to the commercial, economic,
and financial interests of the FTA
partner.

(vii) Intellectual property rights (Article

86): National treatment applies
only to the extent provided for
in TRIPS Annex 1C to the WTO
Agreement.
(viii) Joint Committee on Investment
(Article 88): This committee
will review and discuss the
implementation and operation of
this chapter, review the specific
exceptions in Article 76, and
discuss other investment related
issues.

Investment Provisions of
Selected FTAs Compared
The Urata and Sasuya (2007) study of
seven FTAs involving the US, Australia,
Japan, Singapore, Republic of Korea, and
Chile reached the following conclusions:
(i) The Japan-Mexico and Chile
Republic of Korea agreements
are the most restrictive to foreign
direct investment (FDI). In the
Japan-Mexico agreement, Mexico
has more restrictions on FDI than
Japan. In the ChileRepublic
of Korea agreement, the two
countries are almost equally
restrictive. Restrictions cover
foreign ownership and market
access, national treatment,
composition of management,
performance requirements, entry
of investors and businesspeople,
and right to implement future
restrictive measures.
(ii) The North American Free Trade
Agreement (NAFTA) is also
restrictive to FDI. Canada and
Mexico maintain a high degree
of restrictions. The US, while
relatively more open, requires
reciprocity from its FTA partners

108 | How to design, negotiate, and implement a free trade agreement in asia

it opens up only those sectors

that its FTA partner also opens
up to US investors. Canada and
Mexico have very high restrictions
on agriculture and mining. All
three NAFTA countries maintain
high restrictions on the financial,
transportation, and information
and communications sectors. In
contrast, the US agreements with
Australia and Singapore are less
restrictive than NAFTA.
(iii) Of Singapores bilateral
agreements with Japan, the US,
and the Republic of Korea, the
agreement with the Republic of
Korea is most restrictive because
of the latters restrictions. In
all sectors, the Republic of
Korea reserves the right to
prohibit or restrict ownership
in state enterprises, to prohibit
or limit the right of Singapore
investors to control a company
or investment created in the
transfer or disposal of state
assets, and to adopt or maintain
any measure with respect to
land acquisition by foreigners.
Singapore restrictions are found
in the financial sector and in its
requirement for investments to
have local managers. Both the
Republic of Korea and Singapore
have high restrictions on the
electricity sector, transportation,
information and communications,
education, public administration,
defense, and compulsory social

security sectors. The JapanSingapore agreement is more

restrictive than the Japan-Mexico
agreement, reflecting the fact
that the former is Japans first
bilateral agreement and Singapore
has limited bargaining leverage
because Japan had to ask more
from Mexico than it did with
Singapore, such as opening of the
automobile market, Japan also
had to give more.
The seven countries, ranked from
the most to the least restrictive in the
investment provisions of their FTAs, are
Canada, Mexico, Chile, Republic of Korea,
Japan, Australia, Singapore, and the
US. The restrictions examined pertained
to foreign ownership and market
access, national treatment, screening
and approval, corporate directorships,
movement of people, and performance
requirements. The US is the most open
to FDI; its restrictions usually follow the
reciprocity principle. It is relatively open
in the primary, manufacturing, and most
service sectors, except for the financial
and transportation sectors. Singapore
is relatively open to FDI, but imposes
limitations on foreign ownership in state
enterprises, certain types of housing, and
financial services. Foreigners who wish
to register a business firm in Singapore
need to have a local manager, and a local
resident for at least one of the directors,
while all branches of foreign companies
should have at least two local agents.

Part III:

Negotiating,
Implementing, and
Evaluating Free
Trade Agreements
Introduction

countrys participation in a free trade agreement

(FTA) does not begin and end with the actual
negotiations. The FTA trail entails various
pre-negotiation procedures and extends until its
enforcement and evaluation. Understanding the whole
process will assist the negotiators, implementers, and
evaluators in effectively delivering their duties and
properly coordinating their functions.
Part III120 provides a general understanding of
the entire FTA process, discusses the procedures and
experiences at each step, and identifies good practices and
practical approaches to the issues and challenges that face
government officials and staff working on FTA and other
FTA-related matters. A model FTA process is shown in
Figure 3.1. Except for the substantive and procedural
requirements established under the WTO framework,
there is no firm sequence of events in preparing for,
120

Part III is based on inputs from concerned ministries and agencies of ASEAN
member countries, the Republic of Korea, and Australia. The authors are
grateful to the ASEAN Secretariat for circulating the questionnaire to ASEAN
member countries, and to the FTA training course speakers and participants
for their valuable comments. Good practices and experiences especially from
developed countries are incorporated.

110 | How to design, negotiate, and implement a free trade agreement in asia

Figure 3.1 Model FTA Process

INITIATION

PRE-NEGOTIATION CONSULTATION
Legislative Notification
Presidential/Ministerial Directive
Cabinet Approval
Resolution by Member States

Joint Statement
to pursue FTA
PRE-NEGOTIATION CONSULTATION
National Feasibility Studies or
Impact Assessments
Public Hearing

MANDATE
to launch
Negotiation

Critical issues consultation

Legislative reports/notices

NEGOTIATION
FTA DRAFT
Initialing by
negotiators
Legal scrubbing
and translation
Cabinet approval
Public disclosure

DOMESTIC/NATIONAL

Acceptance of
JSG Report

Public and
Private
Stakeholders

EXTERNAL
Chief Negotiator
Plenary Sessions
Working Groups

CONSULTATION/
INFORMATION GATHERING
Conduct of Joint
Feasibility Study

Framework
of Agreement/
Terms of Negotiation

ORGANIZATION
National Advisory Council
Interagency Committee
Negotiating Team
Joint Study Group (JSG)

Joint Coordinating
Team
Interagency or committee consultation

FTA
SIGNING

RATIFICATION
Legislative
President

IMPLEMENTATION
Exchange of diplomatic
notes
Legal enactments
Directives, issuances,
and regulations
Information campaign

ENFORCEMENT
and MONITORING

REVIEW and
ASSESSMENT

AMENDMENT
Protocol
Side Agreements

Public Notice
Treaty Publication and Registration with UN
Notification to WTO

FTA = free trade agreement, JSG = Joint Study Group, UN = United Nations, WTO = World Trade Organization.
Source: ADB Staff.

negotiating, and implementing FTAs. The

procedures, however, are usually the same
and are more often dictated by national
laws and practices.
The starting point of an FTA process
varies between countries. While most
developed countries and some newly
industrialized economies (NIEs) in Asia
begin with pre-negotiation consultations
or exploratory works, most developing
countries (e.g., member countries
of the ASEAN) begin with high-level
government-to-government initiatives.
At the pre-negotiation consultation
stage, national feasibility studies,
domestic sensitivity analysis, scoping
studies, or public hearings assess the
desirability and viability of the proposed
FTA and identify sectoral difficulties.
When the FTA is found to be appropriate

and timely, the country that conducted

the feasibility studies proposes FTA
negotiation. FTA initiation therefore
involves an active player (the country that
has determined the relevance of entering
into an FTA and thereby proposes FTA
negotiations with another party) and a
passive player (the country that accepts
the proposal from a prospective FTA
partner to negotiate).
In many countries, the decision to
enter into an FTA is politically motivated
and is sometimes determined by
the head of state. In this case, FTA
initiation precedes the pre-negotiation
consultations. The idea of entering into
an FTA is usually introduced in bilateral
meetings (such as state visits) to further
the economic relations between the
parties involved. ASEAN, for instance, has

part Iii: negotiating, implementing, and evaluating free trade agreements | 111

typically acceded to FTA talks initiated

by its external dialogue partners in the
ASEAN-plus FTAs.
After the initiation or pre-negotiation
consultation, the prospective FTA partners
issue a joint statement declaring formally
their intention to negotiate and enter
into an FTA. Joint statements usually
contain the rationale or significance of
the FTA, its broad coverage, the target
date of implementation, and sometimes
a reference to the countrys WTO
commitments.
Some pre-negotiation procedures
are then required and preliminary
government-to-government contact
is made. These internal government
procedures are a precursor to launching
FTA negotiations, which include
legislative notification (especially where
the parliament has a strong role in or
influence on executive policies), the
circulation of presidential or ministerial
directives (as in most ASEAN countries),
the submission of the overall FTA
objectives and strategy to the cabinet for
approval (as in the Republic of Korea),
or formal adoption by member states
(as in the case of the Australian Federal
Government and the EU). In the process,
the mandate to negotiate is obtained.
At the organization stage or as early
as the pre-negotiation stage, several
bodies may be organized or convened
national advisory committees (with
representatives from the public and
private sectors); legislative-executive
and interagency committees (composed
of public stakeholders, regulators, and
policy makers); and the negotiating team
(at the working and support levels). The
committees (which are either decisionmaking or consultative bodies) will
oversee and coordinate the policy aspects
of the FTA and ensure that they are
aligned with the national objectives of the
country. The negotiating team is tasked to
carry out their negotiation mandate.

A joint study group (JSG) (which will

conduct the joint feasibility study) and a
joint coordinating team (JCT) (which will
agree on the terms of the negotiation) are
organized on both sides of the negotiating
table as part of the broader consultation
and information-gathering stage. If the
JSG report recommends entering into an
FTA and this recommendation is accepted
by the leaders of the prospective partner
countries, a framework agreement is
signed or formal negotiation ensues.
The framework agreement specifies
the outline or coverage of the proposed
agreement, including areas for possible
economic cooperation and possibly earlyharvest schemes.121 With or without a
framework agreement, the JCT agrees on
the terms of the negotiation and moves on
to the negotiation.
FTA negotiation (which takes 12
years, depending on the issues covered
and the depth of the proposed agreement)
occurs at two levelsexternally with the
negotiating counterparts, and domestically
with national stakeholders. External
negotiations are conducted between
chief negotiators (especially on sensitive
issues) and between sub-teams at plenary
sessions and at working group level
(for specialized or technical matters).
Domestic negotiations take place with
stakeholders from both the public sector
(e.g., policy makers, cabinet members,
and regulatory bodies) and the private
sector (e.g., business or industry groups,
NGOs, workers unions, environmental
lobbyists, civil society, and consumer
groups). Part of the negotiators task at
this stage is therefore balancing external
and domestic interests. While domestic
negotiations are an integral part of the
whole negotiation process in advanced
121

A term used in trade negotiations for agreeing to

accept the results of a portion of the negotiations
before the rest of the negotiations are completed (e.g.,
early implementation of tariff liberalization of selected
goods).

112 | How to design, negotiate, and implement a free trade agreement in asia

countries, external negotiations are still

at the center of the process in many
developing countries.
Concurrently, coordination and
consultation with the interagency
committee, the national advisory council,
the cabinet, and the legislative body122
continues. While some practical issues are
addressed through meetings among the
ministries concerned (at the director or
director-general level depending on the
level of authority needed to resolve the
issues), critical issues are often elevated to
the interagency committee, the national
advisory council, or the cabinet. Highly
critical issues that dictate the destiny of
the whole negotiation are sometimes
taken up at the level of the head of
state, usually at the final stage of the
negotiation. In some countries, regular
legislative reports or notices provide an
opportunity to discuss critical issues,
arrive at new bargaining positions if
necessary, and minimize possible conflicts
or obstacles during ratification.
Sometimes the text of the agreement
is based on previously signed agreements
(e.g., agreements entered into by the US,
Japan, and ASEAN) to which one of the
countries is a party. This process, called
docking, saves time, as negotiators no
longer need to renegotiate areas that do
not present any material issue to either
side. Docking may even result in more
consistent or harmonized FTA agreements
(especially in the matter of rules),
lessening the so-called spaghetti bowl
effect of FTA proliferation.
After the negotiation but before the
signing of the agreement, the text of
the agreement is initialled by the chief

Box 3.1: How the US Negotiates a

Trade Agreement
Before negotiations, the administration notifies
the Congress, consults with relevant congressional
committees and the Congressional Oversight Group
(COG), and complies with additional consultation and
assessment requirements (for negotiations in the
agriculture, textiles and apparel, and fish and shellfish
sectors). The Congress then considers implementing
legislation for a trade agreement under expedited
procedures.
During the negotiations, the Office of the US Trade
Representative (USTR) consults closely with the COG and
all committees of jurisdiction.
Before signing the agreement, the President reports
to the revenue committees the proposed amendments
to the US trade remedy laws and then notifies Congress.
Private sector advisory committees will thereafter submit
reports to Congress, the President, and the USTR.
Within 60 days from entering into the agreement,
the President submits to the Congress a list of the
required amendments to US law. The International Trade
Commission submits to the President and Congress an
assessment of the impact of the FTA on the US economy
and the industrial sectors.
Source: US Trade Representative website; Pregelj (2005).

negotiators.123 The initialled text then

undergoes legal scrubbing to ensure
that it reflects or is consistent with what
was agreed on and intended during
the negotiations. Consistency with
and adjustments of domestic laws and
regulations are taken into consideration.
Legal scrubbing takes time: although
the main agreement may not exceed a
hundred pages, the appendixes could
have thousands of pages.124 Instances of
ambiguity or oversight may have to be
renegotiated. Negotiators must therefore
be good drafters in the legal as well as
the practical sense, since careful drafting
123

122

During FTA negotiations, US negotiators are mandated

to coordinate at length with congressional committees.
After the negotiations, the Congress examines the
draft FTA text in the light of the negotiating mandate
and either approves or vetoes the text but does not
propose amendments.

Chief negotiators of Japans FTAs sign what is called

an agreement in principle.
124
For example, the draft USRepublic of Korea FTA,
deemed the most voluminous FTA entered into in the
region, had 1,300 pages in Korean and 1,400 pages in
English, 280 pages of reference materials, and a 30page terminology guidebook.

part Iii: negotiating, implementing, and evaluating free trade agreements | 113

(coupled with skillful legitimation)

makes ratification and efficient
implementation more likely. The presigning stage may also involve translation
if the official language of one country
is different from the common language
used by the parties.
The full text of the FTA, as well as
its annexes and list of commitments,
may or may not be made available to
the public at this stage. However, public
disclosure before signing promotes
transparency and provides an opportunity
to clarify the contents of the agreement
to the stakeholders. In some countries
(e.g., Singapore), cabinet approval is
mandatory before the FTA is signed.
The signing of the agreement makes the
FTA internationally binding between the
parties involved.
Whether or not the agreement is
already in effect or enforceable depends
on the domestic laws of each country.
After the agreement is signed, it is made
available to the public and notified to
the WTO.125 Where required in some
countries, legislative ratification precedes
the notification to the WTO.
Ratification may or may not follow the
signing of the agreement. Some countries
classify FTAs as executive agreements, and
thus binding and effective once signed
by the president or the trade minister.
Most countries laws, however, require
ratification by the legislature or approval
by the president (if the latter did not
sign the FTA) for FTAs to be enforceable,
particularly when they are classified
as treaties. As a treaty, the FTA is also
recorded, published, and deposited as an
125

The WTO Negotiating Group on Rules requires

Member parties to a newly signed RTA [to] convey to
the WTO, in so far as and when it is publicly available,
information on the RTA, including its official name,
scope and date of signature, any foreseen timetable for
its entry into force or provisional application, relevant
contact points and/or website addresses, and any
other relevant unrestricted information. [emphasis
supplied, Annex 1.b]

international instrument at the United

Nations.126
A note verbale or diplomatic note,
from each of the parties notifies the other
party that all domestic requirements for
implementation (including ratification)
have been complied with.127 The date the
FTA takes effect depends on the domestic
laws of the member country or the
agreement of the parties.
The implementation stage consists of
(i) the passage of laws or amendments
to domestic laws and regulations to
comply with the countries commitments
in the FTA, and (ii) the issuance of
directives and rules by the implementers
or regulators (e.g., agencies dealing with
tariffs, customs, or tax collection). Lack of
proper legal and administrative measures
or their delay could undermine the
effectiveness of signed FTAs.
The FTA is enforced and monitored by
implementing and regulatory agencies
within the country with the assistance of
overseas trade promotion offices (which
collect information and concerns from
traders and private sector groups abroad).
Reports from these agencies and offices
are useful in evaluating FTAs.
Most FTAs provide for their (interim or
midterm) evaluation. On the basis of the
assessments made by a review committee,
the FTA may be revised or amended
through protocols to the agreement.
The amendment may require the same
procedures as those carried out when
negotiating an FTA, or a simple addendum
or side letters to the agreement signed
by the trade ministers, depending on
the nature and coverage of the proposed
changes.

126

In Australia, after an agreement enters into force, it

is recorded, archived, and published in the Australian
Treaty Series and registered with the United
Nations (UN).
127
This notification is different from that made by a WTO
member to the WTO.

114 | How to design, negotiate, and implement a free trade agreement in asia

Preparing for FTA Negotiations

Box 3.2: US Trade Strategy

Countries, at least in principle, have

established systematic criteria for entering
into an FTA and selecting an FTA partner.
In most cases, the decision to enter into
an FTA is primarily motivated by political
rather than economic considerations.
Nevertheless, each country needs a
well-defined FTA strategy to maintain
a consistent negotiating position and to
guide its negotiators, especially where
the negotiating mandate is insufficient or
ambiguous.

Competitive liberalization is the core strategy of US

trade policy. The US gives priority to the multilateral
system but conducts parallel talks with global, regional,
and bilateral partners to generate constructive
liberalization. The main objective of negotiation is the
removal of trade barriers in goods, services, and foreign
investment, as well as the extension of the rules-based
trading system. This broad objective is accompanied by
a range of policy priorities, including the protection of
intellectual property, the enhancement of transparency,
support for e-commerce, and the continued
incorporation of government procurement, labor, and
environmental issues into US trade agreements.
While trade is not an immediate objective of some
US initiatives and foreign policy considerations largely
account for others, certain standards are nevertheless
established. The US considers it a matter of utmost
importance that its free trade agreements set the gold
standard for free trade, investment, and economic reform.

General FTA Strategy

The need for an FTA strategy cannot be
overemphasized. For active FTA players,
the strategy states their primordial goal
and approach to FTAs. For countries that
passively enter into FTAs, it provides a
framework for negotiating agreements
that achieve the countrys national
economic development objectives, and
ensures the effective management of
scarce resources and skills in trade
negotiation. The FTA strategy may be
general (as in the case of the US, Japan,
Australia, and the Republic of Korea) or
specific to the FTA partner (as in the case
of most developing countries).
The US puts forward its competitive
liberalization strategy in its bilateral,
regional, and multilateral agreements (Box
3.2). Japans FTA approach, on the other
hand, is two-track: it negotiates regionally
with ASEAN as a whole, and bilaterally
with individual member countries.
Japans economic partnership agreement
strategy is likewise dual, providing for
trade liberalization and facilitation, on
one hand, and economic partnership
enhancement (through cooperation
and FTA-plus provisions), on the other
(Box 3.3). Meanwhile, Australia pursues
opportunities to negotiate better trade
and investment conditions through the
mutually reinforcing and complementary

Suggested Readings:
Bergsten, C. Fred. 1996. Competitive Liberalization and Global Free
Trade: A Vision for the Early 21st Century. Working Paper 96-15.
Washington, DC: Peterson International Institute for Economics.
Schott, Jeffery J., ed. 2004. Free Trade Agreements: US Strategies
and Priorities. Washington, DC: Peterson International Institute for
Economics.

approaches of (i) negotiating globally

through the WTO, (ii) cooperating with
other countries in the region (e.g., the
Asia Pacific Economic Cooperation), and
(iii) negotiating with important trading
partners including FTAs.128

Formulation of FTA Negotiation Strategy

The creation of a viable free trade area
is a complex legal and economic process
that requires strategic planning. Before
beginning FTA negotiations, a country
should consider its economic, political,
and legal objectivesits reasons for
wanting to join an FTA.
Is it seeking to join an FTA because of
other FTA negotiations in their region?
There may be a defensive need to
negotiate an FTA with a major trading
128

www.dfat.gov.au/trade/fta/fta-guide.pdf

part Iii: negotiating, implementing, and evaluating free trade agreements | 115

partner if other countries in the region

(competitors) have done so already.
Is it seeking to join an FTA to increase
market access, perhaps to increase its
market for a particular product or group
of products? Is it joining to cement a
political relationship or gain a preference
vis--vis a competitor? Which market
sectors will benefit from an FTA? Which
market sectors may lose? What are the
economic results?
To answer these questions, a country
should:
(i) Develop an economic model of
the economy in its present state
and project the economic results
of commitments made in various
sectors.
(ii) Consult industry and trade
associations, consumer groups,
farmers and farm groups,
NGOs, and other stakeholders,
and ascertain their FTA needs,
objectives, and concerns.
(iii) Examine the objectives in terms
of the countrys trade relations
with other countries, the needs
of stakeholders, and the countrys
WTO obligations.
(iv) View objectives from an economic
perspective:
(a) Can the FTA be used to
promote domestic economic
reform and competition?
(b) Will exempting sectors from
coverage (protectionism)
make a domestic sector
inefficient?
(c) Will exemptions raise the price
of certain inputs and diminish
competitiveness?
(d) Will exemptions protect
infant industries? Should long
transition periods be used to
protect such industries?
In effect, this exercise is a cost-benefit
analysis to evaluate the potential gains

and losses from the FTA, and to shape an

appropriate negotiating strategy.
Determining the scope and coverage
of the agreement
Consistency with WTO Rules. Almost
all trading nations are either WTO
members or in the accession process;
hence, WTO rules also influence the
choice of strategies in trade negotiations.
WTO rules provide opportunities for FTA
members to protect key sectors. Members
can seek to exclude products from the
agreement, or to liberalize the covered
products through gradual or transitional
arrangements. A country must, however,
strike an agreement on exemptions and
phase-in periods in its FTA negotiations,
and must bear in mind that sectoral
omissions and phase-in periods could
jeopardize the success of the negotiations
and could have diverse short- and longterm economic implications.
The WTO rules that are applicable
to free-trade areas serve as minimum
requirements that all FTAs should
meet, and specific WTO disciplines are
a starting point for determining the
scope and coverage of FTAs. The WTO
Agreement permits FTAs, but subjects
them to conditions designed to ensure
that any free-trade area formed by
the parties has substantial coverage
sufficient to justify the discrimination
and trade distortion that is likely to result
from the FTAs.129
Specifically, GATT Article XXIV sets
forth rules for the formation of an FTA
for trade in goods. Many of the same
129

As illustrated in Part I and II, the GATT and the

Understanding provide that (i) a free trade area
should facilitate trade between the constituent
territories and not raise new barriers to trade with
other WTO members outside the FTA; (ii) an FTA must
eliminate duties and restrictive commercial regulations
on substantially all the trade between its members
with respect to products originating in their territories;
and (iii) an interim agreement to establish an FTA
must include a plan and schedule for the formation of
the FTA within a reasonable length of time.

116 | How to design, negotiate, and implement a free trade agreement in asia

Box 3.3: Japans FTA Strategy

Japan views free trade agreements (FTAs) as a means of broadening the scope of its economic relationships
with other countries while maintaining its commitment to the World Trade Organization (WTO). It considers
economic, political, and diplomatic factors when promoting FTAs, and is guided by the principle of conformity
with WTO agreements. Japan aims for a comprehensive agreement, based on its first bilateral FTA with
Singapore. It maintains flexibility by considering Singapore-plus or Singapore-minus options. A selective
approach is also possible, for advance agreement in specific areas such as investment and services. Japan has
strategic priorities in determining which FTAs to negotiate, and has established specific objectives in each case.
Negotiations with ASEAN countries, for example, should offer a broad range and high degree of liberalization to
ensure economic integration comparable with that of other regions. Japan also uses FTAs to promote economic
development by incorporating aspects of development assistance in FTAs with developing countries.
Template of Japans Economic Partnership Agreements
Chapters

Objective

Trade in goods
Rules of origin
Customs procedures
Paperless trading
Mutual recognition
Trade in services

Investment
Movement of natural
persons
Intellectual property
Government
procurement
Competition

Liberalization and
facilitation

Financial services
cooperation
ICT
Energy
Science and technology
Human resource
development

Trade and investment

promotion
Small and medium
enterprises
Broadcasting
Tourism

Economic partnership
and enhancement

Source: Ministry of Foreign Affairs of Japan. 2002. Japans FTA Strategy. October. Available: www.mofa.go.jp/policy/economy/fta/
strategy0210.html

rules are applicable to customs unions,

and WTO decisions interpreting the
rules applicable to customs unions may
have relevance for the negotiation of an
FTA since both forms of regional trade
agreements are often couched in similar
language.
GATS Article V, on the other hand, sets
forth rules for the scope and coverage
of an FTA for trade in services.130
Fundamental decisions regarding the
modality of service commitments must be
130

An economic integration agreement liberalizing trade

in services among its members must have substantial
sectoral coverage, and eliminate substantially all
discrimination between or among the parties, in the
sectors covered by (i) eliminating discriminatory
measures; and/or (ii) prohibiting new or more
discriminatory measures, either when the agreement
takes effect or within a reasonable time frame.

taken at the start of service negotiations.

In particular, the parties must decide
whether to use a positive-list approach
like the WTO, or a negative-list
approach. (See extensive discussions in
Part II of this reference book.)
Complementing Economic and
Development Strategy. An FTA should
be viewed as part of a countrys overall
political, economic, and development
strategy. The FTA may strengthen a
political relationship. It may also secure
an economic advantage vis--vis other
WTO members, or implement a regional
development strategy. For example,
Mexicos membership in the NAFTA
secured preferential market access for
Mexican exports to both the Canadian

part Iii: negotiating, implementing, and evaluating free trade agreements | 117

and US markets, and resulted in FDI in

Mexico from Canadian and US investors
as well as from non-member country
investors.
Japan decides to enter into an FTA on
the basis of (i) economic, (ii) geographic,
(iii) political and diplomatic,
(iv) feasibility, and (v) time-related
criteria. Similarly, US key trade agencies
hold discussions with potential FTA
partners with six broad factors in mind:
(i) country readiness, (ii) economic and
commercial benefits, (iii) benefits to the
broader trade liberalization strategy,
(iv) compatibility with US interests,
(v) congressional and private sector
support, and (vi) resource constraints
of the US Government. Australias FTA
policy allows the country to negotiate an
FTA only if it (i) will deliver substantial
economic benefits including commercial
gains for Australian businesses, (ii) will
deliver benefits more quickly than
multilateral efforts, (iii) is comprehensive
in scope, (iv) is consistent with Australias
WTO commitments and objectives,
and (v) will significantly enhance the
countrys broader economic, foreign
policy, and strategic interests.131

development aspects into consideration,

the negotiations may result in exceptions
that are broader and more favorable to
developing countries seeking to enter
into FTAs.

Awareness of Ongoing Negotiations to

Clarify and Improve FTA Disciplines. The
Doha Declaration mandates negotiations
aimed at clarifying and improving
disciplines and procedures under the
existing WTO provisions applying
to regional trade agreements. The
negotiations shall take into account
the developmental aspects of regional
trade agreements. The clarification and
improvement of disciplines may make
it more difficult to negotiate WTOconsistent FTAs (perhaps by specifying
what constitutes substantially all
the trade). Alternatively, by taking

The legislature or the constitution in

many countries vests the authority
for developing trade policy in the
president or prime minister, subject to
parliamentary approval. At the same
time, the formulation of FTA negotiation
strategy may be lodged with the president
or executive department (e.g., in the
Republic of Korea and the Philippines), a
specialized body (in Brunei Darussalam),
or a national or ministerial team
comprising representatives of all
government ministries (in Indonesia).
In Australia, the Federal Government
executive (the cabinet) decides the
overall FTA negotiation strategy, and
also sets the guidelines for each FTA
negotiation.

131

See www.mofa.go.jp/policy/economy/fta/
strategy0210.html, US Government Accountability
Office (2004), and www.fta.gov.au

Understanding the political and

administrative process
The political and administrative process
implicit in the negotiation of an FTA will
differ for each country. Many countries
follow the traditional route of granting
power to government officials in FTA
negotiation, signing, ratification, and
implementation. Other political and
administrative mechanisms, however,
exist. For example, internal policy papers
and guidelines are developed at relevant
ASEAN forums to guide ASEAN-plus
FTAs. In the case of the EU, the member
states have granted the EC authority
to negotiate FTAs, and are not directly
involved in ratification (in contrast to
ASEAN FTAs, where negotiations and
implementation are primarily country-tocountry).
Identifying the lead agency

118 | How to design, negotiate, and implement a free trade agreement in asia

Box 3.4: Useful Information and Sources for Negotiators

Economic analysis and country trade
performance

Multilateral institutions (such as UNCTAD, IMF, and World

Bank) and regional organizations like ADB and ASEAN
Secretariat; national sources like the national statistics
office and trade and finance ministries; private sector data
providers (e.g., JP Morgan and Bloomberg); and various
research institutions

Sector/Industry information, measures affecting

trade, and nontariff barriers

International Trade Center, UN Commodity Trade Statistics

database, UN Trade Analysis and Information System, WTO
Trade Policy Review Reports, EU Market Access Sectoral
and Trade Barriers database, ASEAN Nontariff Measures
database, and USTR National Trade Estimate Report on
Foreign Trade Barriers

FTA trends and useful resources

ADB ARIC FTA database, UNESCAP Asia Pacific Trade and

Investment Agreements database, WTO RTA gateway, Tuck
Trade Agreements database

Domestic and FDI policies and regulations

National legislation, finance and customs regulations

Domestic and trade priorities of the FTA partner

National development plans, FTA strategies

Sensitive issues including trade remedies filed

and raised in dispute settlement mechanisms
against prospective FTA partner

WTO, World Trade Law website, tariff commissions

ADB = Asian Development Bank, ARIC = Asia Regional Integration Center, ASEAN = Association of Southeast Asian Nations, EU = European
Union, IMF = Integrated Monetary Fund, FDI = foreign direct investment, FTA = free trade agreement, RTA = regional trade agreement, UN
= United Nations, UNCTAD = United Nations Conference on Trade and Development, UNESCAP = United Nations Economic and Social
Commission for Asia and the Pacific, USTR = United States Trade Representative, WTO = World Trade Organization.
Source: ADB staff.

The FTA negotiation strategy is

implemented by the agency that takes
the lead in trade and FTA matters.132 US
trade agreements are negotiated and
implemented by the President through
the Office of the US Trade Representative
(USTR). In other countries, the legislature
takes a stronger role. Member states of
the EU have delegated most trade policy
competence to the European Commission.
The lead agency exercises general
supervision and management over trade
negotiations. It plays a major role from the
time the FTA is initiated, when a dispute
132

The ministries or departments of foreign affairs and

trade (in Australia, Brunei Darussalam, Republic of
Korea, and New Zealand); the department or ministry
of (international) trade and industry (in Malaysia,
Philippines, Singapore, and Viet Nam); the economic,
trade and industry, and foreign affairs ministries (in
Japan); and the ministry of (foreign) commerce (in
the PRC, Pakistan, and Thailand).

arises during implementation, and when

a change in the circumstances of the
parties requires a new agreement. The lead
agency also takes the role of intermediary
between the regulatory agencies that
administer the implementation of the FTA.
These duties are performed by an FTA
staff ranging in size from 10 to 15 officers
(as in international trade departments
of some ASEAN countries) to 100 staff
(as in the FTA Bureau of the Republic of
Korea). Of the staff complement of 45 in
the authorized department of one of the
advanced countries in the region, around 15
are involved full time in a particular FTA.
Using information as a negotiation tool
Effective negotiation depends on the
availability of essential data and the
quality of the impact analysis of the

part Iii: negotiating, implementing, and evaluating free trade agreements | 119

proposed FTA. Trade officials must be

equipped with this information to make
informed decisions in the negotiations.
Negotiators are not expected to be
technical experts in all FTA aspects.
But they must at least have at hand the
relevant information, such as economic or
trade indicators and regulations not only
of their country but also of the other party
(see Box 3.4).133
Conducting a feasibility study to assess
the prospective FTA
The feasibility study assessing the
prospective FTA is conducted either
internally (within the ministry) or
externally (with the assistance of an
independent government think tank or
a private consulting firm). The study is
carried out at the national level in the
pre-negotiation stage or jointly with
the FTA counterpart through a joint
study group (JSG). The JSG, which
is composed of government officials,
economists, and business sector
representatives, is gathered to examine
potential complementarities between the
negotiating countries in terms of further
trade and economic cooperation through
the FTA. The report and recommendations
of the JSG are reviewed and studied
closely by a joint task force or joint
coordinating team (usually composed of
members of the negotiating committee)
for negotiation purposes.
Feasibility studies are conducted by
government, members of the academe,
or groups of eminent persons endorsed
by the government. In most countries,
research institutions, law firms, and
scholars are selected through private
tendering to perform feasibility or
econometric studies including CGE
model analysis based on Global Trade
133

Also to avoid being surprised or embarrassed at having

to face a counterpart negotiator who knows more
about the laws and regulations of a particular country
than the countrys own negotiators.

Analysis Project (GTAP) simulations. To

supplement the quantitative analysis
of the impact of FTAs, some type of
qualitative evaluation may be required.
In some countries, a domestic sensitivity
analysis is performed to assess the
likely impact of the FTA on producers,
consumers, and regulators before going
through negotiation. Other types of
studies are sectoral impact studies,
political and social impact analyses,
environmental impact assessments, and
review of laws and regulations that are
related to or that may be affected by
the FTA. Econometric modeling may be
commissioned by the government through
external consultants, along with other
qualitative assessments of the costs and
benefits of the proposed FTA.
The breadth and relevance of the
feasibility study, which takes from 6
months to a year to complete for bilateral
FTAs (12 years for ASEAN-plus FTAs),
depend on the scope and coverage of
the proposed FTA and the length of its
negotiation. The feasibility study may be
conducted once at the pre-negotiation
or joint feasibility study stage, and again
during the negotiation process to gauge
the impact of the scenario presented at
the negotiation table.
The results of the feasibility studies are
useful but sometimes do not provide the
depth of sectoral or industry analysis and
detailed information required during the
negotiations. In this regard, the in-house
capacity of the trade teams or FTA units to
deliver up-to-date information at various
stages of negotiations is crucial in coming
up with appropriate bargaining positions.
The trade negotiators may also tap the
resources of other government agencies
(through interagency cooperation) and
industry and consumer groups (through
public-private partnership) on specific
issues and technical matters. The
negotiating team, however, must have
sustained competence and diligence to
arrive at an independent and credible

120 | How to design, negotiate, and implement a free trade agreement in asia

Figure 3.2: Three Levels of FTA Committees

National
Advisory Council
Public-Private

Legislative-Executive

Joint Study
Group

Interagency
Committee
FTA Support

Joint Coordinating
Team

Negotiating Team
Chief Negotiator

Co-chairpersons

Sub-teams/ Working
Group

FTA = free trade agreement.

Source: ADB.

negotiating position based on their own

assessment of facts and in accordance
with their mandate.

Structuring the
Negotiating Team
Organizing a negotiating team involves
not only enlisting those who will be at
the negotiating table but also forming
an advisory committee, an interagency
committee, and other committees to
guide and give technical support to the
negotiators. The negotiators must be
equipped with appropriate skills and
information to be effective as mediators
rather than mere messengers in the
negotiation. A clear reporting line is also
important for effective decision making
during the negotiations.

Organizational Structure
Most countries establish committees at
three levels when entering into an FTA
(Figure 3.2). At the highest level is the
national advisory council,134 where policy
134

Steering committee on international trade negotiations

(Thailand) or ministerial or national team (Indonesia).

and national priority issues related to FTAs

are discussed. The council may comprise
public-private representatives, a legislativeexecutive committee, or a combination
of the two. At the second level is the
interagency committee, which is composed
of the cabinet members and agencies
affected by and involved in the FTA
negotiations. Other countries may provide
for a subcommittee (for example, the FTA
support committee in Thailand) to oversee
FTA implementation, economic adjustment,
and restructuring. Wide consultation is
managed or conducted at these first two
levels. Some members of these committees
(together with distinguished members of
the academe) are assigned or appointed to
the JSG to identify the benefits and losses
from the proposed FTA, and recommend
the type and coverage of the agreement, if
deemed desirable.
At the third level is the negotiating
team, composed of the chief negotiator,
co-chairpersons, and several sub-teams
or working groups to negotiate with
their government counterparts. In
some countries, a task force for each
FTA negotiation is created, to conduct
all aspects of research, analysis, and
consultation and even actual negotiations.
Key members of each partys negotiating
team together compose the JCT. Before

part Iii: negotiating, implementing, and evaluating free trade agreements | 121

Box 3.5: Typical Composition of Working Groups in the Negotiating Team

Chapter/Provision

Ministry/Agency (as chair)

Goods (other than agriculture)

Trade and industry/Foreign affairs/Tariff

commission

Rules of origin

Trade and industry/Customs

Agriculture and sanitary and phytosanitary

measures

Agriculture

Services and investment

Finance/Economic affairs/Investment

Competition policy

Competition bureau/Fair trade commission

Technical barriers to trade

Standards, industry regulators

Trade rules and facilitation

Trade/Customs

Government procurement

Finance

Cooperation and development

Foreign affairs

Dispute settlement, institutional provisions,

and intellectual property

Attorney general/Justice department/

International law/Intellectual property bureau

Source: Authors compilation.

the negotiations, the JCT presents the

negotiating foci, discusses the items for
negotiation, and agrees on an indicative
timetable for the negotiation.
The chief negotiator or head of
delegation usually comes from the lead
FTA agency (e.g., USTR in the US, the
Ministry of Foreign Affairs and Trade in
the Republic of Korea, and the Ministry
of Foreign Affairs in Japan). In ASEANplus FTA negotiations, the organization
structure is similar, with at least one lead
negotiator from each member country
assigned to each dialogue partner.
The chief negotiator is assisted by the
co-chairpersons (director level), who
head the sub-teams or working groups.
The co-chairpersons usually come from
ministries and regulatory agencies with
responsibility for each chapter of the FTA,
and may also be technical government
experts (see Box 3.5, for example). In
the case of Japan, the co-chairpersons
come from the Ministry of Foreign
Affairs, to ensure a unified and consistent
perspective during the negotiations. In
federal governments like the Australian

Government, representatives of the

state governments are also part of the
negotiating team. Similarly, if negotiations
are held abroad the negotiating team
is supported by ambassadors and trade
attachs assigned thereto.
The sub-teams or working groups hold
specific and focused negotiations on each
chapter or sector of the proposed FTA
before these provisions are considered
by the joint negotiating committee at the
plenary. The members of each working
group and their number vary depending
on the resources of the negotiating
governments (in size, most negotiating
teams from developing countries stand
in a 1:2 to 1:4 ratio vis--vis their
counterparts from developed countries).
Government officials in the legal
departments undoubtedly play a crucial
role in the negotiating team. Aside from
handling or co-chairing working groups
on dispute settlements, competition
policies, intellectual property rights, and
institutional provisions, lawyers or the
legal team warrant that the mandate to
negotiate and the conduct of negotiation

122 | How to design, negotiate, and implement a free trade agreement in asia

is sanctioned by their constitution and

is consistent with domestic laws; ensure
that FTA provisions are carefully drafted
(consistent with the agreement and
flexible enough for situations that are
not or could not have been reasonably
foreseen during the negotiations);
undertake proper and legal scrutiny
of the complete draft; and classify the
agreement and render a legal opinion on
the need to have it ratified.

The Negotiators Mandate

After the pre-negotiation consultations,
a mandate in the form of directives or
negotiating instructions is issued. In
some countries, government departments
prepare a submission to the cabinet,
and the cabinet, after considering the
options and recommendations, decides to
negotiate. In the US, the Bipartisan Trade
Promotion Authority Act of 2002 serves
as the Presidents official mandate to
negotiate FTAs. The negotiation mandate
contains government approval to proceed
with the formal negotiations, grants
authority to represent the government,
and delimits the negotiating teams
authority (in terms of coverage of the
agreement, negotiating position, and so
on). The negotiators mandate may change
from time to time. Negotiators need a clear
mandate from their ministries or at least
a channel through which they can obtain
the mandate promptly. In some cases, the
lack of authority of negotiators drags out
the negotiation process. Regular meetings
involving all sectoral bodies may be
conducted to guide the negotiating team
and clarify or strengthen their mandate.

Quantity and Quality of the

Negotiating Team
In a negotiation between a developed
and a developing country, the latter is
faced with negotiating constraints. For

instance, while the Republic of Korea

or Japan may assign a team of around
50 persons to each FTA negotiation, the
developing country negotiating team
is often less than half that number.
Moreover, negotiators from developing
countries handle more than one important
area of negotiation or even several FTA
negotiations, thereby causing conflicts
and problems of overlapping sessions.
Although the size of the negotiating
team could prove valuable in the
negotiations, the quality of the
negotiators (i.e., the appointment of
the right persons) and the consistency
of the core team members are much
more important concerns. First, the
negotiators in each working group must
be capable of aligning the sectoral (or
their agencys) position with the national
negotiating position by interacting
regularly with other working groups
and consulting with the interagency
committee through the co-chairpersons or
the chief negotiator. The core negotiating
team must be retained as much as
possible for consistency and faster
resolution of outstanding issues. This
will make the negotiation process more
efficient and serve the national interest.
Lastly, the members of the negotiating
team must have adequate technical,
communication, and negotiating skills135
to be effective negotiators and not mere
emissaries every time a negotiating
issue is presented at the table. Access to
information and support from various
sectors are also essential.

135

Training and capacity building in the following areas

would be useful to negotiators: (i) formulation of
international trade negotiation positions and strategy;
(ii) trade regimes and negotiation of international
trade agreements; (iii) trade diplomacy and advocacy;
(iv) policy and research analysis; (v) rules of WTO and
other international agreements; and (vi) the art
of managing political pressure and stakeholders
agenda(s).

part Iii: negotiating, implementing, and evaluating free trade agreements | 123

Box 3.6: ASEAN Approaches to Negotiation

Box 3.7: Negotiation Approach under the GATS

Association of Southeast Asian Nations (ASEAN) free

trade agreement (FTA) negotiations are characterized by
a sectoral approach to negotiationsfirst, agreement is
reached on trade in goods, followed by trade in services
and investment liberalization. Even though the dialogue
partners are supposed to negotiate with ASEAN as
a whole, negotiating with ASEAN involves bilateral
negotiations between each ASEAN member country
and the dialogue partner. This type of negotiation is
crucial in cases of modalities and coverage of FTAs,
particularly provisions on sensitive sectors. The process,
however, tends to drag out the negotiation because the
negotiators, having to weigh national versus regional
objectives, find it difficult to reach consensus.

Trade in services under the World Trade Organization

(WTO) has quite different negotiation dynamics in terms
of commitments and rules. On one side is the bilateral
negotiation of specific national commitments, which
takes the form of a bilateral bargaining process based
on requests and offers, and on the other the multilateral
(i.e., collective) negotiation of the governing rules,
which involves an effort to build consensus on broad
principles among member countries.
The steps in negotiating a proposal under the
General Agreement on Trade in Services (GATS) are as
follows:
(i) Develop requests under the request or offer
procedure in the WTO.
(ii) Formulate negotiating proposals on rules in the
GATS negotiation.
(iii) Negotiate sectoral and functional agreements.

Source: ADB staff.

The Negotiation Process

Laying Out the Negotiation Rules
and Timetable
Unlike multilateral negotiations (i.e.,
within the WTO framework), FTA
negotiations follow no established or
internationally accepted procedure. They
differ from country to country and may
be deduced from past practices, protocol,
or prior agreements entered into by
the negotiating countries. At the very
least, the JCT must agree on the rules
of proceeding with the negotiations. In
terms of sequencing, the negotiators may
adopt a sectoral approach (see ASEAN
example in Box 3.6), a dual approach
(i.e., the modalities-and-rules approach
in the GATS, Box 3.7), or a gradualist
approach (from simpler to more complex
issues). These are not the only options
negotiators sometimes agree to adopt a
template FTA (another FTA previously
signed by a party to the negotiation)
and no longer negotiate items that are
acceptable to both parties or are not
otherwise disputed.
The sequence of negotiations
logically affects the preparation of the
indicative timetable for negotiations.
The timetable must be flexible enough

Source: Monning and Feketekuty (2003).

to take delays into account, especially

in the negotiation of modalities (where
the number of tariff lines is negotiated
separately from the list of products; see
Figure 3.3 and discussions under trade
in goods in Part II), sensitive sectors,
and exclusions. It must also provide for
adequate consultation with domestic
stakeholders and significant committees
when critical issues are considered. There
is no universal deadline for negotiation of
FTAs. However, in the US the time limit
set for the trade promotion authority
serves as deadline for its FTA negotiation.
The election cycle in many countries may
also be a deadline for FTA negotiations.
Negotiators are likewise faced with
resource constraints (especially when
some agencies are unable to attend
negotiation meetings) and strong pressure
to conclude the negotiations quickly.

Interagency Coordination
Aside from providing a venue for
government departments to balance
national interests and industry- and
sector-specific concerns, interagency

124 | How to design, negotiate, and implement a free trade agreement in asia

Figure 3.3: Tariff Elimination Modalities for Negotiating FTAs

MODALITIES
Early-Harvest Scheme

Immediate Elimination

Normal Track

Sensitive Track

Gradual/Phase-in
Elimination

Sensitive List

Highly Sensitive
List/Exclusion

Source: Authors compilation from various free trade agreements (FTAs).

coordination facilitates at least two

significant processes that are useful in
negotiating and implementing FTAs.
First, interagency coordination enables
the consolidation of all the sectoral
consultations of the different departments
or agencies. Formal hearings are
sometimes selective and infrequent, so
the national advisory council or trade
negotiation team can base its assessment
only on sectoral information provided by
the ministries or agencies.
Second, interagency coordination
provides the necessary link in FTA
enforcement and monitoring. For
instance, the effective implementation
of the trade facilitation provisions
of an FTA requires interconnectivity
and coordination among all crossborder agencies (customs, sanitary and
phytosanitary, inspection, and quarantine
agencies). In most cases, interagency
coordination is required before FTA
implementation (to itemize the products
to be included in each modality of
tariff liberalization). The interagency
committee may be ad hoc and organized
for each negotiation or may already be
embedded in the government structure
(see Boxes 3.8 and 3.9 for an overview
of the interagency mechanisms in the US
and the Republic of Korea).

Negotiation Techniques, Habits, and Role

of the Chief Negotiator
There are various negotiation techniques,
most of which can be learned through
practice. Simulation exercises have been

proven to be practicable and effective. In

some countries, junior trade officers learn
by observing actual negotiations. Exposure
to FTA issues and involvement in actual
FTA negotiations are effective ways of
developing negotiation skills. Whatever
the strategy or approach adopted by a
negotiating team, certain guidelines and
protocols must be followed to achieve
smooth and successful negotiations (see
Box 3.10). The chief negotiators on both
sides must ensure this.
Most countries appoint a separate
chief negotiator for each FTA rather than
endorsing one for several FTAs. The chief
negotiator must be clear about the
countrys national trade interests, maintain
a strategic and holistic framework in the
negotiations, and ensure that the countrys
negotiating position is clearly understood
by the counterpart. However, simply
sticking to a predetermined negotiating
position may drive the negotiating process
to an impasse; hence, negotiators are
quite often advised to focus more on
interest than on standing positions.136
Unlike negotiations for private issues, FTA
negotiations bind government officials
more strongly to their mandates. Given
that the ultimate goal of FTA negotiations
is to maximize national interests, however,
positions need to be properly adapted
to changing negotiating conditions to
best serve the national interest. The
chief negotiator must, among others,
possess credibility, patience, and sincere
commitment to negotiate and arrive at an
136

Fisher and Ury (1988).

part Iii: negotiating, implementing, and evaluating free trade agreements | 125

Box 3.9: Interagency Coordination Mechanism in

the Republic of Korea

Box 3.8: US Interagency Structure

The Office of the US Trade Representative (USTR) is the
lead agency in formulating and coordinating US trade
policy, negotiating trade agreements such as free trade
agreements, and enforcing these agreements. It consists
of three tiers of committeesthe National Security
Council (NSC) and the National Economic Council (NEC),
the Trade Policy Review Group (TPRG), and the Trade
Policy Staff Committee (TPSC). The presence of the NSC
shows that security issues are considered in US trade
policy.
The Office of the USTR consults with other
government agencies on trade policy matters through
the TPRG and the TPSC. These groups, administered and
chaired by the Office of the USTR and composed of 19
federal agencies and offices, make up the sub-cabinetlevel mechanism for developing and coordinating US
government positions on international trade and traderelated investment issues.
If agreement is not reached in the TPSC, or if
significant policy questions are being considered, then
issues are taken up by the TPRG (deputy USTR and
undersecretary level). The final tier of the interagency
trade policy mechanism is the NEC, chaired by the
President. The NEC deputies committee considers
memorandums from the TPRG, as well as important or
controversial trade-related issues.
Sources: US Trade Representative website; US Government
Accountability Office Report (2005).

Interagency coordination is either managed by an ad hoc

or permanent centralized interdepartmental committee,
led in many cases by the ministry of foreign affairs. Some
countries (e.g., the Republic of Korea) have a committee
consisting of the ministers for international economic
affairs and chaired by the finance minister. Sub-teams
or back-office members working on different aspects
of the free trade agreement meet when necessary with
colleagues in other relevant agencies. While certain
issues are discussed bilaterally between the lead agency
and the agencies concerned, most issues are dealt with
in committee meetings. The committees effectively
coordinate different agency positions, although
critics decry the frequent use of the process to share
responsibility for certain sensitive issues among agencies.
Source: ADB staff.

(BATNA) and considering the partners

BATNA are also very important in
strengthening bargaining power during
negotiation and strategizing the options
available.138

Managing Consultations
agreement; maintain a good working
relationship with the counterpart chief
negotiator; have the ability to manage
conflicting interest and views; employ
sound judgment on the pace and rhythm
of the negotiation; be able to effectively
coordinate the team; and have the
ability to energize domestic processes.
The chief negotiator should also be able
to communicate with the media since
progress briefings are frequent. If the
parties cannot reach a mutually beneficial
agreement and the negotiations fail, it
is crucial for the chief negotiator to be
prepared with a best alternative to an
agreement.137 Developing ones best
alternative to a negotiated agreement
137

Using a cost-benefit analysis of the negotiating

teams options, strategy, or plan for solving the trade
problem.

Building domestic consensus in FTAs is

always difficult. A common issue raised
against FTA negotiators is their failure
to consult all stakeholders. Getting
stakeholders to participate in consultation
meetings may also be difficult. Managing
consultations involves providing a
venue for discussing the stakeholders
concerns and issues and sustaining such a
mechanism.

Subjects and Types of Consultation

The overall objective of consultation is
to consolidate varied interests, assess
the countrys FTA objectives, and build
national consensus on the proposed FTA.
138

See Fisher and Ury (1988).

126 | How to design, negotiate, and implement a free trade agreement in asia

Box 3.10: Negotiating Skills and Good

Negotiating Habits
Listen Actively
Place information provided by other negotiators in
the proper context. When in doubt, confirm what you
thought you heard.
Ask Questions
The negotiation setting is an opportunity to learn
about counterpart interests and determine where tradeoffs or compromise might be appropriate.
Tactical and Timely Use of Silence
Information or compromise may be provided to fill
the vacuum.
Take Breaks from the Negotiating Table
Going to the balcony to review an oral or written
proposal, develop or formulate a response, and regain
your composure is important.
Organize Brainstorming Sessions
Brainstorm to elicit reactions, ideas, and
counterproposals. What if questions give the team or
counterparts the power of choice and make acceptance
of the proposal more likely.
Use Objective Criteria
Introduce fair standards and persuade the other
party to support an argument or proposal by submitting
evidence from independent experts.
Practice Role Reversal
Discuss what would work for the other party and
why, to understand that partys bargaining position.
Listen to and Record All Proposed Options
Preserve the proposal for ongoing review and
comment by creating a record of the session.
Be Sensitive to Cross-Cultural Dynamics,
Gender, and Language
Diplomacy and careful use of language will
determine the success or failure of the negotiation
process.
Build a Reputation
Rapport and good working relationships with
counterparts will generate long-term benefits.
Create a Win-Win Mentality
Aim to arrive at a mutually acceptable agreement
such that both sides feel they have won.
Source: Monning and Feketekuty (2003).

Consultation involves two types of

subjects. Public stakeholders who define
national policies, implement government
programs and measures in all sectors,
and deliver services to the public are
subjects of the first type. They are the
members of the parliament, the cabinet,
and regulatory agencies. In the second
group are the private stakeholders,
comprising chambers of commerce,
trade groups, sector or industry
representatives, consumers, labor groups,
NGOs, and the general public. The level
of participation of these groups varies
(and existing mechanisms tend to be
biased in favor of big pressure groups).
At the very least, all of these sectors
should be well represented during the
negotiations.
Consultation mechanisms may be
formal or informal. Formal consultations
are institutionalized and involve the
membership and participation of public
and private stakeholders in the advisory
council as well as in the interagency
committees FTA policy debates. Some
countries convene public hearings
before the official negotiation. Informal
consultation is done through sectoral
public hearings, opinion surveys, outreach
and regional seminars, and other means
(e.g., through invitations for comments on
government websites).
Contrary to common perception,
consultation is not a stumbling block but
rather a building block (by providing
inputs and outputs) in the negotiation
process. In terms of inputs, consultation
serves as a venue for discussing the
issues and concerns of various sectors,
identifying the key sensitive sectors,
and managing conflict arising from the
resistance posed by civil society and
other vested groups. In some cases,
strong opposition from interest groups is
a defensive tool used to protect certain
industries during the negotiation.
In terms of outputs, consultation
becomes an instrument of advocacy for

part Iii: negotiating, implementing, and evaluating free trade agreements | 127

the negotiators, not only in disseminating

information on the FTA at various stages,
but also in soliciting stakeholder support
(thereby assisting in the legitimation
of the FTA), understanding technical
information, and drafting effective
and non-trade-restricting measures to
implement the FTA.
Although the type of consultation may
vary in the stage of the FTA process, it
should nonetheless be conducted from prenegotiation to amendment (Figure 3.4).
During pre-negotiation, public hearings are
conducted to make a general assessment
of the impact of the FTA. When feasibility
studies are conducted, economic scholars,
technical experts, and the business sector
provide specific and quantitative analyses
of the FTA. Politically sensitive items
and other critical issues are discussed
with the various stakeholders through
available channels during the negotiation.
Consultations during the implementation
of the FTA assist the regulators as well
as end users of government and trade
services in improving the FTA-established
mechanisms and in assessing whether or
not the objectives of the FTA have been
achieved.
The resources needed and the
manner of consultation depends on
the value accorded to the process by a
country. To attain the expected effects
described above, the consultation should
be sufficient to help the stakeholders
understand what is being presented at
the negotiation and consult with their
constituencies on the pros and cons of
the proposals from their own perspective.
This guarantees representation of
all interests in policy debate and
formulation.

Consultation Mechanisms
There are various models and ways of
managing consultations on FTAs and
trade-related issues (refer to Box 3.11).
Most developing countries adopt a top-

Figure 3.4: When Consultation Should

Be Conducted

Pre-negotiation
Consultation

Joint Feasibility
Studies

Consultation
during Negotiation

Assessment and
Amendment
Enforcement and
Monitoring

Source: ADB staff.

down approach, where those at the

higher levels (e.g., ministries, chief
executive officers) steer the flow of
consultation and, ultimately, decision
making. Developed countries, however,
have established a bottom-up approach
to consultation (beginning broadly
with the general public and concerned
sectors). Various stakeholders views are
constantly obtained through submissions
and industry feedback (e.g., the Australia,
New Zealand, and Singapore FTA websites
elicit such feedback). The choice of the
system usually takes into account the
political, economic, and institutional
circumstances of the country as well
as the time and resources available. In
any case, the design of the consultation
mechanism should be systematic,
continuous, and transparent. The amount
and quality of information provided by
the negotiators will determine and sustain
the stakeholders active participation in
the consultation.

Implementing an FTA
After an FTA is signed, it undergoes
several internal pre-implementation
procedures such as ratification and
legislative enactment to ensure that the

128 | How to design, negotiate, and implement a free trade agreement in asia

Box 3.11: Examples of Consultation Mechanisms

Agency-Led Consultations
The Republic of Korea (through the Ministry of
Foreign Affairs and Trade) consults all private and
public stakeholders before and during negotiation,
thus giving them ample opportunity to voice their
concerns and opinions. Consultations are conducted
through public hearings, private sector advisory
meetings, and online channels to gather industry
views.
National Trade Consultations
Australias national trade consultations provide
a forum for consultation, coordination, and
collaboration on trade and investment issues
between the federal and state and territory
governments. Once or twice a year, the trade
minister chairs a meeting with state and territory
ministers who are responsible for trade issues.
Additional issue-specific meetings are arranged as
necessary. Explicit consultation guidelines have been
issued by the Council of Australian Governments, the
agency that facilitates consultation, cooperation, and
policy coordination.
Industry-Based Consultations
In India, extensive consultation is conducted
by at least two major industry associationsthe
Confederation of Indian Industry (with over
4,800 company members) and the Federation
of Indian Chambers of Commerce and Industry.
These associations play an active role in delivering
industry views and providing critical inputs to the
Government on trade issues.
Public-Private Advisory Consultations
Established in 1974, the private sector advisory
committee system in the US is aimed at providing
information and advice with respect to negotiating
objectives and bargaining positions before trade
agreements are negotiated. Under the Trade Act
of 2002, each advisory committee is required to

prepare a report on proposed trade agreements

for the Administration and Congress and make
it public on the website of the Office of the US
Trade Representative (USTR). The USTRs Office
of Intergovernmental Affairs and Public Liaison
administers the federal trade advisory committee
system and provides outreach to, and facilitates
dialogue on trade policy issues with, state and
local governments, the business and agricultural
communities, and labor, environmental, consumer,
and other domestic groups.
Evaluation and Advisory Consultations
Australias Productivity Commission (PC) is the
Governments principal evaluation and advisory
body on microeconomic policy and regulation. Once
authorized to conduct an inquiry, the PC collects
public opinions through hearings, submissions,
and feedback on draft reports. Final findings and
recommendations are based on extensive public
input and feedback, which, in some cases, differ
substantially from initial positions. This open
process helps reduce the possibility of unexpected
responses, which could lead to policy reversals.
Technology-Based Consultations
International Enterprise Singapore is an
agency under the Ministry of Trade and Industry
that is spearheading the development of
Singapores external economy. It maintains a free
trade agreement portal providing information
to Singapore-based companies exporting to
Singapores FTA partner countries, and collects
industry feedback (through online surveys) to help
the government negotiate FTA provisions that cater
to the needs and interests of business.
Sources: Australian Trade Commission; FTA and CommonwealthState Consultation on Treaties websites; International Enterprise
Singapore website; Office of the US Trade Representative website;
and Gallagher (2006).

signed FTA is within the mandate of

the government.139 These procedures,
however, often unduly delay the FTAs
implementation and, hence, also the
attainment of its expected benefits. The
implementation stage requires the active
involvement of all government agencies
139

This presupposes that the agreement is in accord with

the countrys constitution or requires no constitutional
change.

concerned, if only to comply with the

countrys FTA commitments and gain from
new market opportunities.

Pre-implementation
The effectivity of an FTA depends on
(i) the entry into force provision in the
FTA, and (ii) the internal or domestic
procedures of the signatories. Depending

part Iii: negotiating, implementing, and evaluating free trade agreements | 129

on the nature of the agreement, the FTA

may take effect on the date it is signed, or
on the date one party gives notice to the
other party that it has complied with all
the legal requirements such as ratification
(or the number of days after that notice
is received by the other party), or on
the date the FTA becomes effective and
binding as domestic law.140 The date of
effectivity may also be agreed upon by the
signing parties.
In the case of AFTA, member countries
have different procedures for the FTA
to be effective. While the act of signing
by authorized officials (which could
be the president or the trade minister
as the presidents alter ego) would
make the AFTA effective in Brunei
Darussalam, Malaysia, and Viet Nam,
other ASEAN countries have additional
requirements: a letter of acceptance
signed by the President in the Philippines
and Indonesia, and ratification by the
legislature in Thailand. In Singapore, all
necessary approval is obtained before
signing; hence, no ratification is needed.
In the US, after an agreement is
concluded, the US President is required
to submit its final text to Congress
together with the draft implementing bill,
a statement of any administrative action
proposed to implement the agreement,
and other supporting information.
Failure to comply with this submission
requirement would prevent the agreement
from entering into force.141
Ratification
The AFTA requirements, however, do
not apply to ASEAN-plus agreements or
bilateral FTAs entered into by individual

member countries. Indonesia considers

FTAs and all other international
agreements (e.g., the WTO Agreement)
as presidential decrees, thereby requiring
in most cases, only the signature of the
President. The Philippines, on the other
hand, makes a distinction: agreements
that primarily involve the reduction of
tariffs are executive agreements and need
not go through legislative ratification,
but FTAs that are comprehensive in scope
(covering items that could be subject to
legal enactments or are constitutionally
mandated) require legislative
concurrence. Still, even if legislative
ratification is not required, strong
political pressure would necessitate prior
endorsement of the legislature if only to
legitimize the FTA (as in the case of the
New ZealandSingapore FTA).142
In Japan, executive agreements can
be concluded by the executive under
its power to manage foreign affairs.
However, treaties that require the
maintenance or adoption of legislative
measures for their implementation or
deal with financial matters require the
approval of the Diet.143 In the same vein,
other Asian countries like Georgia have
made it obligatory to ratify international
treaties and agreements that require
a change in domestic legislation or
the adoption of laws and acts with the
force of law to honor the international
obligations undertaken.144 If an
agreement requires no change in domestic
legislation, it may be accepted without
parliamentary ratification.
In the US, Congress has delegated
the tariff-negotiating authority to the
President and authorized the latter to
suspend existing duty-free treatment. By
virtue of this delegation and the doctrine

140

For example, when the FTA has provisions affecting

the rights and obligations of citizens or imposes
penalties, due process requires notice or publication.
The FTA takes effect only after the publication
requirements have been complied with. In this
case international agreements have the standing of
domestic law.
141
Pregelj (2005).

142

The New Zealand Constitution provides that the

Parliament has no power to delay or alter an
international agreement or ratify one. The Parliament
only takes into consideration the FTA to identify and
provide for necessary changes to law.
143
Japans two-house Parliament.
144
Article 65, Constitution of Georgia.

130 | How to design, negotiate, and implement a free trade agreement in asia

Box 3.12: Australias Treaty Approval Process

The Australian treaty approval process involves the
following steps for all treaty actions (negotiating a new
treaty, amending an existing one, or abrogating a treaty):
(i) The preparation of a national interest analysis (NIA),
which sets out the advantages and disadvantages
to Australia of becoming, or not becoming, a party
to the treaty, including the significant quantifiable
and foreseeable economic and environmental
effects of the treaty. Among several other points,
the NIA must detail the consultations that have
taken place with the states and territories, and with
community and other interested partners.
(ii) The preparation of a regulatory impact statement,
including an assessment of the impact of the
proposed regulation (i.e., the treaty) and its
alternatives on different groups and the
community as a whole.
(iii) The tabling of the treaty before Parliament for 20
sitting days and consideration of the proposed
treaty action by the Joint Standing Committee on
Treaties.
(iv) The preparation and passage of the enabling
legislation.
Source: Goode (2005).

of political agency, negotiators (with the

approval of the President and designated
political appointees of the President)
can commit to an executive agreement
without the approval of the Congress,
but not to a treaty or an agreement that
changes US law. An agreement classified
as a treaty must be ratified by two thirds
of the US Senate, while an agreement that
changes US law must be approved by a
majority of both houses of Congress.145
FTAs are considered as treaties in
Australia, so the FTA must undergo treaty
approval (see Box 3.12). After treaty
approval and when the agreement enters
into force it is recorded, archived, and
published in the Australian Treaty Series
and registered with the UN.
145

Monning and Feketekuty (2003). See also Grimmett

(2004) and Pregelj (2005).

WTO notification
A mandatory action for WTO members
signing an FTA is to notify the agreement
to the WTO. The following rules govern
the notification procedure:
(i) The Decision on the Transparency
Mechanism for Regional Trade
Agreements, which calls for
an early announcement by
members participating in FTA
negotiations;146 and
(ii) GATT Article XXIV:7; the
Understanding; and GATS
Article V:7, which provides that
a member must notify the WTO
and submit details to the WTO
regarding FTAs and interim
agreements that the member is
joining or intends to join.
Notification under the WTO may
be under the Enabling Clause, GATT
Article XXIV, or GATS Article V,147 and
may be made to the WTOs Committee
on Regional Trade Agreements (those
FTAs falling under GATT Article XXIV
and GATS Article V) or to its Committee
on Trade and Development (FTAs falling
under the Enabling Clause). The types
of agreements notified are preferential
arrangements, free-trade agreements,
customs unions, service agreements, and
accession to any of these agreements.
After the required notification, a working
146

It also requires parties to specify the provision(s) of

the WTO Agreement under which the FTA is notified,
and to provide the full text of the FTA and any related
schedules, annexes, and protocols, in one of the WTO
official languages (English, French, and Spanish).
147
WTO rules for trade in goods are found in Article
XXIV of the GATT, and for trade in services, in
Article V of the GATS. The Enabling Clause allows
developed countries to accord more favorable
treatment to developing countries without according
such treatment to other countries. It also applies
to preferential trade arrangements (PTAs) or FTAs
between developing countries but not PTAs and FTAs
between developed and developing countries. See
Fiorentino et al. (2007).

part Iii: negotiating, implementing, and evaluating free trade agreements | 131

Figure 3.5: New RTA Transparency Mechanism

Early
Announcement

Formal
Notification

Factual
Presentation

Review
by WTO
Members

Notification
of
Change

RTA = regional trade agreement.

Source: World Trade Organization (WTO) website. Available: www.wto.org.

party is convened to examine the notified

FTA, verify consistency with the WTO
Agreement, and make appropriate
recommendations. Furthermore,
periodic reports on the operation of
the FTAs, including significant changes
and developments in the agreements,
are required. A new regional trade
agreement (RTA) transparency
mechanism was adopted on a provisional
basis in 2006. This refers to the early
announcement of RTA and notification to
WTO (see Figure 3.5 for the major steps
involved).

Implementation
Legislative enactments and amendments
Most countries pass new legislation or
amend existing laws to comply with
their FTA commitments or to extend
preferential treatment to traders from FTA
countries. These procedures are necessary
for FTAs to be effective as domestic laws
and to fill the gaps left by the general
provisions and even the implementation
arrangements provided in the FTAs.
The legislative enactment presupposes
that the FTA is consistent with the
constitution and has passed the
ratification stage. It is worth noting that
the procedure and voting requirement
when ratifying an FTA may be different
from the requirement for passing
legislation to implement the FTA. In
some countries where the president has
legislative powers, the requisite legislative

enactment or amendment of laws may be

made by the presidents office.
The laws to be passed or amended
are those covered by the FTAs that affect
the rights and obligations of the citizens
of the FTA member country. These
laws either translate the international
agreement into domestic law or clarify the
issues presented in the new arrangement.
This is especially the case where some
restrictions are lifted or foreign entities
are given preferential treatment by the
FTA (see Box 3.13 for an example of legal
changes adopted as a result of entering
into an FTA). These new or amended laws
are complemented by implementing rules
and regulations, as discussed in the next
section.
Directives, issuances, and regulations
Even after an FTA takes effect (and the
requisite laws are passed or amended),
some administrative procedures still
need to be carried out to fulfill the
requirements of the FTA. Some FTAs
draw out uniform operational guidelines
in implementing the customs procedure
and rules of origin mechanism. In the
Philippines, the executive order from the
President is followed by issuances from
the finance department and guidelines
from the customs bureau. In Malaysia,
a directive from the finance ministry
would suffice. Meanwhile, in Indonesia,
a decree from the finance ministry and
an issuance from the customs agency
on the procedures are mandatory. These

132 | How to design, negotiate, and implement a free trade agreement in asia

Box 3.13: Legal Changes Made in Singapore

Box 3.14: Examples of FTA Websites

Singapore has entered into a number of free trade

agreements (FTAs) with its trading partners. As a
result, Singapore laws have been amended to reflect
commitments made under the various FTAs. Customs
legislation has been amended to accord preferential
tariff treatment and provide procedures for the issuance
of preferential certificates of origin. Following the
US-Singapore FTA (USSFTA), Singapore legislation
has permitted the importation of chewing gum with
therapeutic value. Likewise, under the new Singapore
import/export law, where any part of the manufacture
of textiles and clothing products covered under the
USSFTA is carried out or procured by any person in
Singapore, to be exported to the US, that person must
be registered.
As a result of Singapores FTA commitments (namely,
USSFTA, the Republic of KoreaSingapore FTA, and the
Transpacific Strategic Economic Partnership concluded
by Singapore with Brunei Darussalam, Chile, and New
Zealand), it now offers its FTA partners a more attractive
procurement environment, particularly in relation to the
threshold values of procurement contracts. Singapore
passed the Competition Act of 2004 and established
the Competition Commission in 2005. Changes have
been made as well in the regulation of entry into and
activities in various service sectors such as banking
and legal practice. The Trade Marks Act, the Patent Act,
and the Copyright Act have been amended to reflect
Singapores FTA commitments.

Australia
Japan

Source: Hsu (2006).

are common steps in implementing tariff

reduction schemes. The procedures are
more complex (where implementing rules
and regulations follow a law that has
been passed or amended) to implement
the nontariff provisions of the FTA (e.g.,
services or investment liberalization
provisions).
The directives, issuances, or
regulations should serve as essential
guides for regulators as well as traders/
individuals especially in availing
themselves of the preferences given
under the FTA. They should not be too
stringent or complicated so as to restrict
or discourage the business sector from
taking advantage of what the FTA has
to offer.

Singapore
Thailand
United States

www.fta.gov.au/
www.mofa.go.jp/policy/economy/fta/
index.html
www.iesingapore.gov.sg/wps/portal/
FTA
www.thaifta.com/english/index_eng.
html
www.ustr.gov/Trade_Agreements/
Section_Index.html

Source: Authors compilation.

Public information
Information dissemination has always
been crucial in the implementation of an
agreement. For instance, many observers
have attributed the low utilization of
preferential tariff rates to the lack of
information on the AFTA tariff scheme.148
The fact that the newly signed FTA
will not impose any undue burden on
exporters who value the reduction or
elimination of nontariff barriers more
than differential tariff rates should also be
highlighted.
Information dissemination is
traditionally conducted through
brochures, newspapers and other
publications, seminars, road shows, and
trade discussions. However, there are
modern approaches to introducing FTA
to the public, including disseminating
information through FTA websites (see
Box 3.14 for a list of FTA websites).
These sites are useful not only in
providing one-stop online resource
sites on the FTAs entered into by the
country but also in soliciting feedback
or conducting public consultation
on proposed FTAs. FTA sites may
also provide additional assistance by
publishing the names of those who
148

Other reasons given for the low utilization rate are

the minimal margin between WTO or MFN rates and
common effective preferential tariff (CEPT) rates, and
the additional procedures required.

part Iii: negotiating, implementing, and evaluating free trade agreements | 133

can render expert advice to exporters

(e.g., in Singapore and Australia). In
Australia, an FTA export advisory panel
has been established to promote the
benefits of FTAs, by offering advice
on implementation and market access
issues, and by identifying specific trade
and investment opportunities created by
such agreements. The panel is made up
of senior representatives from a range of
industry groups and includes input from
a cross-section of specialists, business
organizations, and community groups.

Evaluating an FTA
The review clauses of FTAs provide
an opportunity to identify areas
where the agreements can be further
improved. This stage, however, requires
proper mechanisms for monitoring
and evaluation to assess whether the
objectives of the FTA have been met in
the first place and whether the scope of
the agreement can be expanded and its
terms improved.

Monitoring and Enforcement

Compliance monitoring requires
resources and intensive effort not only
from the lead agency but especially
from the implementers and regulators.
In the US, monitoring is primarily done
by the same agency that negotiates FTA,
although several other agencies, both
domestic and overseas, are likewise
involved (see Box 3.15).
In most countries, monitoring is
lodged with the implementing agencies.
Coordination among agencies is essential
especially between those agencies that
will put into operation the provisions
of the agreements and those that will
eventually review the agreements and
provide for the necessary amendments.

For example, although valuable, data on

the actual utilization of the FTA are not
always readily available. The directive to
be issued by the customs or tariff agency
could require traders that avail themselves
of preferential rates under the FTA to
report such use on the specified form
directly to a specific unit or agency, to
facilitate recording and monitoring. Such
information will be handy in evaluating
the impact of FTAs on traders.
Other possible mechanisms for
monitoring and compliance are regular
consultations with the private sector and
full use of the technology (such as the
internet and available mobile services)
to gather comments from other sectors
including consumers.

Assessment and Evaluation

Some FTAs provide review clauses to
analyze the impact or progress of their
implementation. Most countries use
general indicators to assess the economic
impact of FTAs, from macroeconomic
indicators (in the Republic of Korea)
to industry utilization indicators (in
Singapore). The review, however, is often
limited to analyzing whether tariff cuts
have been made or whether the FTA has
resulted in an increase in trade volume
or growth in market shares between the
FTA partners. The use of these indicators
should be approached with caution since
trade expansion need not be a direct
result of the tariff liberalization and may
be caused by other factors beyond what
is covered by the FTA. There is also a
growing interest in assessing FTAs by
examining the existence or nonexistence
of nontariff barriers to trade.
Another important aspect is identifying
the proper agency to evaluate the
FTAs. While some countries designate a
specialized body, in others trade-related
institutes or other organizations conduct
annual studies on the economic effects of

134 | How to design, negotiate, and implement a free trade agreement in asia

Box 3.15: US Monitoring and Enforcement System

The monitoring and enforcement of trade agreements of the US involves four agencies and several
units within each agency. Each agency has both domestic and overseas components, as well as several
geographic, industry, and issue-specific units involved in monitoring and enforcement. The agencies
coordinate monitoring and enforcement activities through an interagency network for trade policy
development led by the Office of the US Trade Representative and involving at least 17 federal agencies. To
improve interagency coordination, a regular forum is provided to allow federal agencies to share and discuss
information, set priorities, assign responsibilities, and design and implement strategies. Trade agencies take
advantage of technology (through e-mail and videoconferencing) to communicate information on trade
compliance issues.
Agency

Main Unit at Headquarters

Overseas and Other Units Involved

US Trade
Representative

Monitoring and Enforcement Unit

US Mission to the World Trade Organizations

(WTO); trade policy officers; WTO and
multilateral affairs; region-specific offices

Commerce

Market Access and Compliance

Office

Trade promotion agencies; Foreign

Commercial Service; market access and
compliance officers overseas; Manufacturing
Services; Import Administration; Patent and
Trademark Office

State

Trade Policy and Programs

Economic section of embassies; country desk

staff; issue-specific task forces

Agriculture

Foreign Agricultural Service

Animal and Plant Health Inspection Service;

Food Safety and Inspection Service

Source: US Government Accountability Office (2005).

FTAs. Often the foreign affairs ministry

is responsible for both implementing
and evaluating FTAs. The frequency of
reviews depends on each specific FTA.
For example, the joint committee under
the Australia-US FTA is supposed to
meet annually to supervise the overall
implementation of the agreement.
Even if the importance of this stage
is well recognized among the countries,
manpower and other resources are
often limited. With this constraint, it is
important to remember that there should
be an independent assessment of the FTAs.
At the very least, those who were directly
involved in the negotiations should not be
the ones who evaluate the FTAs.

Amendment Procedures
Like the review clauses, most FTAs have
sections on amendments and modification.
These amendments may take the form
of exchanges of notes and protocol
agreements. Where no substantial change
is introduced, these protocols require
only the endorsement of the parties (i.e.,
the signature of the trade ministers).
There are countries that require cabinet
approval, depending on the changes to
be introduced. Some FTA amendments
undergo the same domestic procedure
as treaty amendments. In certain cases,
amending FTAs involves ministerial
approval and legislative change.

Appendix to Part III:Sample Questionnaire on the

Negotiation, Implementation, and Evaluation of
Free Trade Agreements

Preparing for FTA Negotiations

(1) Please choose the kind of FTA
negotiation strategy that you use and
identify its main components:

that most affector would affect

your countrys choice of FTA partner
and arrangement, with the factor
ranked 1 being the most significant
and the factor ranked 4 the least
significant.

Type

Main Components

General
FTA
negotiation
strategy

Economic objective
Coverage of FTA

FTA Partner

Different
strategy
per FTA/
partner

Sensitive sectors to be
protected

Type of FTA (regional or

bilateral)

Sequencing of
negotiation*

Scope and Coverage of FTA

Political consideration

Others (please specify)

* E.g., trade in goods first, then trade in services and
investment.

(2) Who is responsible for formulating your

trade (or FTA) negotiation strategy?
Legislature
President/Executive department
Specialized body (such as trade
representative office)
Others (please specify)

(3) Do you have written laws, directives,

guidelines, or policies regarding your
FTA negotiation strategy? Please
enumerate:
_____________________________________
_____________________________________
(4) In your previous/current and
prospective FTA negotiations, please
rank in descending order the factors

Factor

Previous/
Current
FTA

Future
FTA

Time Frame of FTA

(5) Is there an agency designated to

conduct feasibility studies on your
prospective FTAs? If so, please identify
the agency and the type of feasibility
studies conducted (for example, CGE
modeling, sectoral impact studies).
_____________________________________
_____________________________________
(6) Please describe your general FTA
negotiation cycle,* including
the sequencing of political or
administrative procedures for initiating
and implementing FTA negotiations,
and the usual time spent on each step.
_____________________________________
_____________________________________
* E.g. , feasibility study, public hearing, cabinet decision,
consultation with the legislature, organization of the
negotiation team, consultation with stakeholders (interest
groups), drafting of laws, legislative approval, implementation
and review procedures.

136 | How to design, negotiate, and implement a free trade agreement in asia

Organizing the negotiating team

(7) Which ministry/agency is the lead
agency in FTA negotiations in your
country? ________ Please identify
the lead department/office in that
ministry and the total number of staff
of that department. _______________
(8) Please describe the composition
of your trade negotiating team in
previous FTA negotiations (name,
actual number of members, and
composition of each sub-team
or committee, and actual tasks
performed).
Sub-team/
Committee

Number and
Composition
of Members

Managing Consultations and FTA

Implementation and Monitoring
(12) To what extent and at what stage
do public/private stakeholders
participate in the negotiation process?
Stakeholders/Sectors

Stage of
Negotiation

Major
Input

Trade groups
Business sector
Consumer groups
Sensitive industries
(please specify)
Marginalized sectors
Others (please specify)

Tasks

(9) Please enumerate the strengths

and weaknesses of interagency
coordination in the negotiation
process.
_____________________________________
_____________________________________
(10) Please describe the constraints on
your negotiating team in previous/
current FTA negotiations.
_____________________________________
_____________________________________
(11) Do you have one chief negotiator
for all FTA negotiations? _____What
do you think are the most important
characteristics and roles of the chief
negotiator?
_____________________________________
_____________________________________

(13) What are the advantages (or

limitations) of your current system of
managing consultations?
_____________________________________
_____________________________________
(14) Please describe the procedures
after the FTA is signed (including
legislative approval) and before it
takes effective.
Mandatory
Procedures

Optional Procedures

(i)

(i)

(ii)

(ii)

(15) What are the mechanisms used

in disseminating information on
the signed FTAs? Please tick all the
applicable mechanisms.
FTA webpage
Government websites
Newspapers or other publications
Brochures and FTA guides
Seminars and trade discussions
TV and radio
Others (please specify)

part Iii: negotiating, implementing, and evaluating free trade agreements | 137

(16) Who is responsible for evaluating

the implemented FTA? How often are
the reviews conducted?
Legislature
President/Executive department
Specialized body (e.g., trade
representative office)
Others (please specify)

(17) What indicators do you use in

assessing FTAs?
_____________________________________
_____________________________________

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About How to Design, Negotiate, and Implement a Free Trade Agreement in Asia
This reference book, intended to complement the training courses on free trade agreements (FTAs)
conducted by ADB, aims to increase the knowledge and capacity of officials who are actively involved in
designing, negotiating, and implementing FTAs. Building on international trade theories and good practices
and FTA experience of countries worldwide, the book explains important facts and benchmarks to be
considered when preparing, negotiating, and enforcing FTAs in Asia.

ADBs vision is an Asia and Pacific region free of poverty. Its mission is to help its developing member
countries substantially reduce poverty and improve the quality of life of their people. Despite the regions
many successes, it remains home to two thirds of the worlds poor. Nearly 1.7 billion people in the region
live on $2 or less a day. ADB is committed to reducing poverty through inclusive economic growth,
environmentally sustainable growth, and regional integration.
Based in Manila, ADB is owned by 67 members, including 48 from the region. Its main instruments for
helping its developing member countries are policy dialogue, loans, equity investments, guarantees, grants,
and technical assistance. In 2007, it approved $10.1 billion of loans, $673 million of grant projects, and
technical assistance amounting to $243 million.

Asian Development Bank

6 ADB Avenue, Mandaluyong City
1550 Metro Manila, Philippines
www.adb.org
Publication Stock No. BBK-119108
ISBN: ISBN 978-971-561-684-3

Printed in the Philippines

How to Design, Negotiate, and Implement a Free Trade Agreement in Asia

About Asian Development Bank

How to Design, Negotiate, and Implement a

Free Trade Agreement in

ASIA