Analytical Note, June 2013

Negotiating a Trade Facilitation Agreement: Considerations and Lessons from WTO Jurisprudence

This note discusses the lessons learned from WTO jurisprudence on trade facilitation articles under the GATT (i.e. Articles V, VIII and X GATT) and on other articles and WTO agreements that embody language similar to the one currently under negotiations. 

The analysis indicates that:

• The WTO panel and appellate body have actively addressed articles V, VIII and X GATT, and often found WTO Members in violation of their obligations under these articles.
• The design of the rules under the trade facilitation draft negotiating text is overly-prescriptive in many areas and could intrude on national policy and regulatory space.
• The rules under a future trade facilitation agreement could potentially introduce multiple grounds based on which laws and regulations of Member States would be challenged.

• The nature of the substantive content under a future trade facilitation agreement would give the WTO dispute settlement bodies a significant role in defining the scope and outreach of the disciplines.

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