THE EPA, DEVELOPMENT & REGIONAL INTEGRATION: SOME LEGAL ISSUES Norman Girvan Presentation at Norman...

THE EPA, DEVELOPMENT & REGIONAL INTEGRATION:

SOME LEGAL ISSUES Norman Girvan

Presentation at Norman Manley School, UWIMay 2, 2008

http://normangirvan.info

Girvan EPA 27/04/08 2

Wide scope of the EPA • More than just about trade—extends into several

aspects of national, regional and international policies, laws and regulations

• Legally binding, with detailed and elaborate enforcement machinery, of indefinite duration and with a scope for revision that is circumscribed

• There is inadequate understanding of the scope, implications and potential impact of the EPA within the public and even at official levels


Part I. Trade Partnership For Sustainable DevelopmentPart II. Trade And Trade-Related MattersTitle I. Trade In GoodsChapter 1. Customs DutiesChapter 2. Trade Defence InstrumentsChapter 3. Non-Tariff MeasuresChapter 4. Customs And Trade Facilitation Chapter 5. Agriculture And FisheriesChapter 6. Technical Barriers To Trade Chapter 7. Sanitary And Phytosanitary Measures Title II. Investment, Trade In Services And E-Commerce Title III. Current Payments And Capital Movement Title IV. Trade Related IssuesChapter 1. CompetitionChapter 2. Innovation And Intellectual PropertyChapter 3. Public ProcurementChapter 4. EnvironmentChapter 5. Social AspectsChapter 6. Protection Of Personal Data Part III. Dispute Avoidance And SettlementPart IV. General ExceptionsPart V. Institutional ProvisionsPart VI. General And Final Provisions


Annexes, Protocols and Joint Declarations •Schedule of Cariforum commitments on liberalization of trade in goods•Schedule of Cariforum commitments on liberalization of trade in services •Schedule of Cariforum commitments on liberalization of investment (commercial presence) in non-service sectors•Protocol I on Definition of "Originating Products" (Rules of Origin) and Methods Of Administrative Cooperation•Protocol II on Mutual Administrative Assistance in Customs Matters•Protocol III on Cultural Cooperation•Joint Declaration on Development Cooperation•Joint Declaration on Bananas•Joint Declaration on Used Goods•Joint Declaration on Rice•Joint Declaration on Undelivered Quantities Under the Sugar Protocol

Impact of legal interpretations on bargaining power in the EPA

negotiations• Issue of ‘WTO compatibility’• Issue of ‘Substantially all trade’• Issue of Phase 1 vs. Phase 2 negotiations• Issue of GSP as the only alternative to EPAs—

meaning of Art. 37.6 • Issue of WTO Waiver and the negotiating

deadline of December 31, 2007

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Asymmetry of legally binding obligations in subjects of interest to CF vis-à-vis the EC

• Reciprocal trade liberalization between highly unequal partners must be accompanied by substantial investment in physical infrastructure, human resource development and enterprise development in order for the poorer partners to cope with increased competition on home markets and take advantage of export opportunities to the richer partners

• Although Ch. 1 and most other chapters have numerous references to development support; they are not quantified and time bound and are hence difficult to monitor and to make subject to the EPA’s enforcement machinery

• On the other hand CF’s obligations w.r.t. tariff liberalisation, market access in service sectors, and adoption of new laws, regulations, institutions and accession to international treaties in the ‘WTO-plus’ disciplines are spelt out in detail and most are time-bound and subject to the EPA’s enforcement machinery

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Parties to the EPA (Art 233)

• ‘Party’ or ‘Parties’ refer to – European Community (EC), representing 27 member states of

EU or – CARIFORUM States “acting collectively” – “Signatory CARIFORUM States” refer to individual states that

have assumed rights and obligations as separate entities• The first relate mainly to general understandings and to

Dispute Settlement, the second to specific, binding commitments for market access and legislative and regulatory measures

• CARICOM not a Party • Implications for integrity of Caricom as an integration

arrangement• Implications for bargaining power in implementation


Conditions of access for Natural Persons employed to Service providers

1. Must be working with a firm with a service contract in an EU member state not exceeding one year’s duration

2. Must have at least 1 year’s working experience with the supplying firm as well as 3 years’ professional experience

3. With certain exceptions*, must possess a university degree or equivalent qualification and professional qualification required in receiving state. Mutual recognition agreements necessary.

4. Stay limited to cumulative period of six months in any 12-month period or duration of contract, whichever is less

5. Access limited to performance of contract6. Number limited to what is necessary to fulfill contract as determined by

local laws7. Other ‘discriminatory limitations’ are allowed, including limitations on the

number of employees permitted entry as a result of ‘economics needs tests’ in the receiving countries.

8. Other conditions are specified in Annex 4.

* Fashion model services, chef de cuisine services, and entertainment services other than audio-visual .


Conditions of access of IPs (Art 83)1. Must be engaged in the supply of a service on a temporary basis in the

other Party and must have obtained a service contract not exceeding 12 months.

2. At least 6 years professional experience.

3. A University degree or equivalent qualification and professional qualification required by local regulations. Mutual recognition agreements necessary

4. Stay limited to cumulative period of 6 months in any 12 month period or duration of contract, whichever is less.

5. Other ‘discriminatory limitations’ are allowed, including limitations on the number of employees permitted entry as a result of ‘economics needs tests’ in the receiving countries.

6. Other conditions are specified in Annex 4.


Mutual Recognition AgreementsNecessary for all individuals providing services (CSS and IPs) Article 85)

1. Caveat: Nothing in EPA shall ‘prevent Parties from requiring necessary qualifications and/or professional experience in territory concerned’

2. Professional bodies to be encouraged to jointly develop recommendations on MR for Trade and Development Committee (TDC) within three years

3. Priority to accounting, architecture, engineering and tourism.

4. TDC reviews to determine consistency with EPA

5. If approved by TDC, Parties negotiate MRA ‘through their competent authorities’

6. Agreement must conform with WTO particularly Article VII of the GATS.

Legal Implications of ‘WTO-plus’ commitments

• The EPA contains far-reaching commitments on Services, Customs Cooperation and Trade Facilitation, Competition, Public Procurement, Intellectual Property, Investment, that go beyond the scope of current WTO obligations

• The legislative, regulatory and institutional obligations could be onerous and costly and need to be thoroughly evaluated as they were not legally necessary for a WTO-compatible EPA

• Circumscribe ‘policy space’ for the fostering of agricultural, industrial and service development

• As the CSME regimes for these areas are not yet in place, they will likely be driven by the requirements of EPA compliance

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JOINT CARIFORUM-EC COUNCIL

TRADE AND DEVELOPMENT COMMITTEE

COMMITTEE ON CUSTOMS CO-OPERATION AND TRADE FACILITATION

CONSULTATIVE COMMITTEE

PARLIAMENTARY COMMITTEE


Joint EC-Cariforum CouncilPart V Articles 227-229

• Composition: Members of the Council of the EU, members of the EC, and representatives of the CF states.

• In matters where CF states agree to act collectively “One representative of the CF states will act on their behalf”

• Responsible for operation and implementation of the Agreement and to “ensure that the Objectives are fulfilled”

• Decisions are by consensus and are binding and Parties “shall take measures to implement them”

• Other responsibilities set out in 19 paras.

Comparison with Caricom Governance

• Art. 28 of the RT of C states that decisions of the Conference of HoG ‘shall be binding’

• Art. 240 states that decisions ‘shall be subject to the relevant procedures of Member States before creating legally binding rights and obligations’

• Once the EPA is ratified by Member States, Is there an equivalent caveat regarding decisions of its organs?

• The enforcement machinery of the EPA appears to be considerably more robust than that of the RT, and will be backed by the considerable human, technical and financial resources of the EC as well as the original imbalance in economic power

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Joint CARIFORUM-EC Council Composition

Members of the Council of the European Union, members of the European Commission, and representatives of the Governments of the Signatory CARIFORUM States. "CARIFORUM States shall mandate one representative to act on their behalf on all matters ...for which they have agreed to act collectively"

Frequency of Meetings At regular intervals, not exceeding two years, and whenever the need arises Functions and powers

1 Supervise the implementation of the Agreement.

2 Be responsible for the operation and implementation of the Agreement and ensure that the objectives of the Agreement are fulfilled

3 Examine major issues arising within the framework of the Agreement, as well as other issues (bilateral, multilateral or international in nature) that may affect trade between the Parties

4 Examine the Parties’ proposals and recommendations for the review of the Agreement 5Establish its own rules of procedure6 Establish the rules of procedure of the CARIFORUM-EC Trade and Development Committee 7Adopt decisions and recommendations that parties agreed to collectively8Provide periodic reports on the operation of the Agreement to the Council of Ministers

9 Shall be advised on any request made by a third State to become a member of the EU and decide on measures relating to the effects of the accession of new EU Member States on the Agreement.

10 May decide to allow the Parties to review the provisions of the Protocol on Rules of Origin with the view to further simplifying the concepts and methods used for determining origin

11Adopt measures to adjust the provisions of the Agreement where a state has become party to an economic integration agreement and such agreement provides more favourable treatment to the third party than that granted by the Signatory CARIFORUM State to the

12Review the operation of the provision on multilateral safeguards to decide whether to extend their application for a further period

13 Take decisions concerning which procurements should apply to the respective parties and under which conditions they apply.

14 Supply the CARIFORUM-EC Parliamentary Committee with requested information relevant to the implementation of the Agreement

15Decide on participation in the CARIFORUM-EC Consultative Committee.

16Take decisions on all matters covered by the Agreement. Decisions taken shall be binding on the Parties and the Signatory CARIFORUM States, and the Parties shall take measures to implement them in accordance with internal rules

17Make recommendations regarding actions Parties should take concerning the implementation measures to attain the objectives of the Agreement. .

18Adopt decisions and recommendations on matters which Signatory CARIFORUM States agreed to collectively

19Shall be informed of the adoption of any safeguard measures and of a timetable for its removal


Trade and Development CommitteeArticles 230-231, references in several other Articles

• Composed of Senior Officials – CF one representative in matters of collective action

• Powers can be delegated from the Joint Council • 56 functions and responsibilities set out in Article 230

and other references • Special Committee on Customs Cooperation and Trade

Facilitation – 13 functions, powers and responsibilities

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CARIFORUM-EC Trade and Development CommitteeFunctions and powers

Supervise and be responsible for the implementation and application of the Agreement, discuss and recommend cooperation priorities Oversee the further elaboration of the provisions of the Agreement and evaluate the results obtained Undertake action to avoid disputes and to resolve disputesAssist the Joint CARIFORUM-EC Council in the performance of its dutiesMonitor the development of regional integration, economic and trade relations between the PartiesMonitor and assess the impact of the implementation of the Agreement on the sustainable development of the Parties Discuss and undertake actions to facilitate trade, investment and business opportunities between the Parties Discuss any matters pertaining to the Agreement and any issue liable to affect the attainment of its objectives Assist the Joint CARIFORUM-EC Council in the area of development cooperation related matters Monitor the implementation of the cooperation provisions of the Agreement and coordinate such action with third party donors Make recommendations on trade-related cooperation between the Parties Review and discuss cooperation priorities and make recommendations on the inclusion of new priorities Review and discuss cooperation issues pertaining to regional integration and implementation of the Agreement.

Set up and oversee any special committees or bodies to deal with matters falling within its competence, and determine their composition, duties and rules of procedure

Consider issues under this Agreement and take appropriate action in the exercise of its functions

Take decisions or make recommendations in the cases provided for in this Agreement or where such power has been delegated by the Joint CARIFORUM-EC Council.

Be notified of the start of phased elimination and the elimination of customs duties on the import of products originating in the EC PartyMay review the schedule of customs duty reductions and elimination in the event of serious difficulties in the import of a given product.

Facilitate consultations among Parties in cases where there are reports of failure to provide administrative co-operation and/or of irregularities or fraud.

Shall be notified of temporary suspension of preferential treatment of a product/s. Facilitate consultations on temporary suspensions of preferential treatment and their termination Provide the forum for Parties to modify the level of customs duties stipulated in Annex 2.

Resolve cases where a Party’s import duties have been affected by errors in the management of the preferential system of export, and in the application of the definition of "originating products"

Examine cases where a party has informed the Committee that safeguards measures need to be taken Make recommendations to the Parties concerned to remedy the circumstances with regard to safeguard measures.

‘Regional Preference’ ClauseArt. 238.2

• Requires ‘Signatory CF states’ to give each other the same treatment that they give to the EU

• Effect is to require Caricom LDCs (OECS & Belize) to give to the Dom Rep the same concessions as to the EU, contrary to the provisions of the Caricom-DR FTA

• Is it consistent with Ch. 7 of the RToC on Specially Disadvantaged Countries, Regions and Sectors?

• What happens in the event of a conflict between the EPA and the RT?

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What role for the CCJ under the EPA?

• Is there an overlap of jurisdiction over Dispute Avoidance/Dispute Settlement?

• Disputes in the areas of Competition, Intellectual Property, Public Procurement, Customs Administration etc. Will be subject to EPA machinery, what role will be left for the CCJ in these ‘Single Economy’ areas?

• If the CSME regimes for these are the EPA regimes, will the EPA machinery not supersede the CCJ and the RToC?

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‘Most Favoured Nation’ ClauseArt. 19

• Inserted in all EPAs on the insistence of the EC negotiators

• Effect is to require CF to give to the EU the same concessions they may give in a future trade agreement with China, India, Brazil or MERCOSUR

• Brazil has complained that this is contrary to the letter and spirit of the GATT ‘Enabling Clause’ on Special and Differential Treatment for Developing Countries and will undermine South-South Cooperation

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How much scope is there for revision of the EPA after it is signed, provisionally applied and ratified?

Revision Clause Article 246 (1)

.1. “The Parties agree to consider extending this Agreement with the aim of broadening and supplementing its scope in accordance with their respective legislation, by amending it or concluding agreements on specific sectors or activities in the light of the experience gained during its implementation. The Parties may also consider revising this Agreement to bring Overseas Countries and Territories associated with the European Community within the scope of this Agreement.”

2. “As regards the implementation of this Agreement, either Party may make suggestions oriented towards adjusting trade related cooperation, taking into account the experience acquired during the implementation thereof.

3. The Parties agree that this Agreement may need to be reviewed in the light of the expiration of the Cotonou Agreement.”


Revision Clause (continued)

Article 246 (2) and (3)

2. “As regards the implementation of this Agreement, either Party may make suggestions oriented towards adjusting trade related cooperation, taking into account the experience acquired during the implementation thereof.

3. The Parties agree that this Agreement may need to be reviewed in the light of the expiration of the Cotonou Agreement.” (i.e. in 2020. Emphasis added)


Commonwealth-ACP High Level Technical Meeting April 8-9, 2008 - Ministers, senior officials, NGOs, resource

persons

• “To ensure that EPAs are pro-development EC and ACP should review and renegotiate contentious issues.

• “There is still legal space to do so• ACP unity needs to be maintained/restored • “ACP should engage with other stakeholders in

Europe


Decision of Caricom Heads 7-8 March 2008

• Heads ‘noted that a number of Member States were still examining the text of the EPA which in some cases would require the tabling of this Agreement in national parliaments’.

• ‘They committed themselves to take the necessary steps to complete these internal consultations in a timely manner to facilitate signature and provisional applications of the agreement by 30 June.’


Report – ‘EPA signing delayed – Golding’

"For a number of reasons including the time that needs to be allowed for individual member states to carefully examine the text of the agreement, (and) recognizing that there have been two changes of government since the start of this year, it was felt that it was necessary for new governments to advise themselves properly before committing to the agreement," said Mr. Golding at the 19th Inter-sessional CARCOM heads of Government meeting in the Bahamas.


Prime Minister Thompson of Barbados on CSME and EPA

Speech to TTMA 15/04/08

• ‘Powerful case’ built against the signing of the EPA• ‘There is still room for negotiation on the EPA, within the 3-

year moratorium before formal ratification of the Agreement’.• The EPA ‘constitutes an imperfect basis from which to move

forward into the brave and unknown world of the 21st century’.

• ‘We must recommit ourselves as a region to the full implementation of the Single Market and Economy while negotiating in WTO and bilaterally’

THE EPA, DEVELOPMENT & REGIONAL INTEGRATION: SOME LEGAL ISSUES Norman Girvan Presentation at Norman...

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