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The Trade-Related Investment Measures Agreement (TRIMS) which came into effect on January 1, 1995 formed part of the Uruguay Round negotiations by the World Trade Organization (WTO).[1] The TRIMS Agreement is calculated to accommodate and facilitate the global increase of trade-related investments in respect of cross-border transactions. The TRIMS Agreement sets about confirming the anti-discrimination policies and domestic treatment principles contained in the WTO’s General Agreement on Trade and Tariffs (GATT).[2]
The primary goal of TRIMS is to harmonize and liberalize national trade rules incidental to investments.[3] However, the economic and social gaps existing between developed and developing nations prove to be problematic for the TRIMS Agreement, truncating its desire to have optimal impact. The discussion that follows examines the legal framework and ultimate goals of TRIMS, how it achieves its goals and the extent to which it falls short with particular emphasis on the impact and consequences for developing nations.
Legal Framework of the TRIMS Agreement
Previously the GATT’s Agreement of 1947 made provision for the prohibition of WTO Member States regulations that contradicted policies of national treatment and the annihilation of quantitative restrictions.[4] However, these prohibitive provisions were not entirely clear and the TRIMS Agreement to a large extent eradicates this shortfall by proving that TRIMS is required to be consistent with either Articles III or XI of the 1994 GATT Agreement.[5]
Additionally, TRIMS contain a list of specifically prohibited national content criteria, trade leveling criteria as well as foreign exchange and export restrictions which are inconsistent with Article III or XI of the GATT’s Agreement.[6] (See Appendix A for an illustrative list of TRIMS calculated as inconsistent with Articles III or XI of GATT.)
Article III of the GATTS Agreement makes provision against discriminatory practices in respect of the importation of goods and products between WTO Member States. Article III(1) begins by prohibiting the levying of taxations and fees on imports solely for the purpose of accommodating “protection to domestic production.”[7]
Article III(2) prohibits the annexing of taxes or fees in respect of imports that exceed similar taxations in respect of domestic products.[8]Article III(3) makes provision for an application for an extension of time for the removal of any regulations which are inconsistent with Article III(2) that are provided for in a multi-national trade agreement.[9]
Article III(4) of the GATTS Agreement specifically calls for non-discriminatory treatment between trading WTO member states. Article III(4) provides as follows:
“The products of the territory of any contracting party imported into the territory of any other contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use.
The provisions of this paragraph shall not prevent the application of differential internal transportation charges which are based exclusively on the economic operation of the means of transport and not on the nationality of the product.”[10]
Article III(5) goes on to prohibit quantitative restrictions of imports from one WTO Member State to another.[11]Article III(6) makes an exception to Article III(5) for the quantitative restrictions or regulations that were in place on “July 1, 1939, April 10, 1947 or March 24, 1948”[12]but only in circumstances where it is justified:
“…any such regulation which is contrary to the provisions of paragraph 5 shall not be modified to the detriment of imports and shall be treated as a customs duty for the purpose of negotiation.”[13]
Article III(7) prohibits the application of domestic quantitative restrictions on the mixtures, proportions and uses of products to cross border imports.[14] Article III(8)(a) exempts governmental concerns from this quantitative restriction.[15]
Article XI provides for the prohibition on certain subsidies and provides as follows:
“No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party.”[16]
The remaining paragraphs of Article XI make provisions for exemptions and extensions of the inconsistencies in similar terms to the exemption and exceptions provided for in Article III.
In general the TRIMS Agreement requires that WTO eliminate regulations that are inconsistent with Articles III and XI of GATT within a certain time period.
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In other words WTO Member States are required to eliminate provisions that allow investment approval reliant on cohesion with regulations and policies in favor of local products and material.
TRIMS came into effect on January 1, 1995 and provide three different time frames for elimination of investment measures that are inconsistent with Articles III and XI of GATT. While Paragraph 1 of Article 5 of Trims requires that WTO Member States notify the WTO within 90 days of the TRIMS Agreement’s effective date of any measures that do not conform to Articles III and XI of GATT, paragraph 2 of Article 5 provides as follows:
“Each Member shall eliminate all TRIMs which are notified under paragraph 1 within two years of the date of entry into force of the WTO Agreement in the case of a developed country Member, within five years in the case of a developing country Member, and within seven years in the case of a least-developed country Member.”[17]
Therefore, by January 2000 all developing nations should have eliminated all of their regulations that were inconsistent with GATT Article’s III and XI. However Article 5(3) of the Agreement on Trade Related Investment Measures allows for both developing and least developed nations to apply for extensions of the transition period.[18]
Bernard Hoekman maintains that TRIMS was among one of the Uruguay Rounds most “controversial topics”.[19] The end result was a compromise between opposing positions postulated by developing and developed nations. Hoekman explains:
“Many developing countries were of the view that attempting to agree to broad-ranging multilateral disciplines on policies affecting investment went far beyond the scope of the GATT, and that the GATT was not necessarily the appropriate forum for such an agreement (or attempt). Certain OECD countries, and the United States in particular, were of the view that policies distorting investment flows could have a significant impact on trade flows, and should be subject to multilateral disciplines.”[20]
The resulting TRIMS’ compromise seeks to tie in with the GATT disciplines which place bans on quantitative restrictions and confirms the WTO’s position against national treatment.[21]
When an application is made for an extension of time for transition the matter is taken up via discussion by the Council for Trade in Goods (CTG) within the WTO. In a typical case the requesting Member State submits an application to the CTG which is followed by extensive questioning from representatives of other Member States. The most aggressive interrogators so far have been representatives from the European Community, Japan and the United States.[22]
In November of 2000, Carlos Perez del Castillo, Chairman Ambassador to the WTO’s CTG announced that nine countries had applied for transitions extensions of their TRIMS regulations and he proposed allowing two year extensions. The applicants were from the Philippines, Mexico, Argentina, Chile, Columbia, Pakistan, Romania and Thailand and were applications for matters related “mostly over domestic investment schemes in their auto industries.”[23] Castillo also announced that he further proposed that any of these countries seeking a transition extension beyond the two year extension should be notified that a second two year extension would not be granted automatically, but would be considered on a “case by case basis” and would certainly be the last extension if granted.[24]
Ambassador Rita Hayes representing the United States took the position that it would support the CTG’s proposal in respect of Argentina, Chile, Romania and Mexico in connection with their auto TRIMS and would support Thailand’s application with respect to its diary products. Hayes also noted that the United States would not automatically agree to a second extension and would insist that requesting nations provide “a clear phase-out plan.”[25]
The European Community was less accommodating noting that it was still waiting for responses to queries placed to the applicant nations.[26]In the meantime the US filed a complaint with the WTO’s Dispute Settlement Body over the Philippines’ TRIMS’ “automotive sector.”[27] Likewise the European Community filed a similar dispute against India in respect of its “automotive industry products.”[28]
Japan on the other hand had no difficulties with the requesting nine Member States and fully agreed with Castillo’s proposal for an extension.[29] On July 31st the WTO via its CTG agreed to a three year extension of the requesting countries TRIMS transition regulations. As a result the requesting countries had until December 31, 2003 and no later to eliminate all TRIMS regulations that are inconsistent with GATT’s Articles III and XI.[30]
Author Sarah Dillon explains the significance of the WTO’s TRIMS and the resulting disparity between socio-economic concepts of developing and developed WTO nations. The TRIMS requirements are calculated to:
“…influence the commercial decisions of foreign investors, in favor of a certain socio-economic policies of the host country.”[31]
Dillon adds that TRIMS has the capacity to:
“…encompass a wide range of national measures, including local content requirements, to increase local procurement by investors, or export volume…”[32]
Cases involving TRIMS disputes
The World Trade Organization by virtue of the Uruguay Round established a relatively efficient method of settling trade disputes. The WTO was set up in 1995 and replaced GATT. The BBC reported in January of this year that:
“The WTO is the only international agency overseeing the rules of international trade. It polices free trade agreements, settles trade disputes between governments and organises trade negotiations.”[33]
The general aim of the WTO is not to pass judgment but to encourage dispute settlement between nations via a series of steps commencing with consultations and negotiations between Member States. The WTO is based in Geneva and its highest body is the Ministerial Conference which meets once every two years. One of its most significant functions is to elect the director-general and to supervise the work and conduct of the General Council.[34] The Ministerial Conference also conducts what is referred to as “trade rounds” which are negotiations calculated to remove and/or minimize trade barriers on an international level.[35]
By subscribing as Member States to the WTO Members agree that in the event of a trade dispute or upon the knowledge that another Member State is violating WTO trade rules they will “use the multilateral system of settling disputes instead of taking action unilaterally.”[36] In a typical scenario a dispute will arise when a Member State caries on a trade practice of policy measure that other WTO Member States believe are contrary to the regulations and spirit of the WTO Agreements. Member States not directly impacted by the alleged infraction can nonetheless subscribe to the process as third parties.[37]
Ideally, under the WTO legal framework and regime the complaining Member State will request consultation with the offending Member State. If and when the consultation does not produce satisfactory results the complaining State is at liberty to request assistance from the WTO by way of the formation of a panel. Even after a panel is formed and a tribunal-like process takes place the parties are free to continue with mediation and consultation.[38] The panel will hear both sides and third parties and thereafter publish a report which includes its findings and recommendations. The party against whom the panel finds is at liberty to appeal on points of law only.
The first significant TRIMS dispute was pursued against Indonesia and the complaining nations were the United States, the European Community and Japan.[39] In this case, US, EC and Japan v Indonesia: Certain Measures Affecting the Automobile Industry the complainants charged that the Indonesian automobile program was in contravention of the TRIMS Agreement, particularly Article 2 which provides as follows:
“1. Without prejudice to other rights and obligations under GATT 1994, no Member shall apply any TRIM that is inconsistent with the provisions of Article III or Article XI of GATT 1994.
The measure giving rise to this claim was an economic measure taken by Indonesia wherein import taxes and duties on foreign automotives and incidental parts were in excess of domestic parts. Moreover, KIA cars imported from Korea containing Indonesian parts were exempt altogether[41].
Indonesia claimed that the measure was justified in light of Indonesia’s desire to encourage increased production of domestic automobiles and incidental parts. In addition to maintaining that Indonesia’s domestic incentive violated Article 2 of the TRIMS Agreement, they further submitted that it also violated Article 5 of the Agreement in that they failed to notify the WTO that it was applying TRIMS that were inconsistent with TRIMS and by extension had not subscribed to the provision for transition.[42]
In 1996 a series of bilateral negotiations took place between each of the complaining nations and Indonesia. However, these talks did not yield satisfactory results and the complaining nations filed an official dispute claim with the WTO. The WTO panel hearing the dispute concluded that in order for domestic TRIMS to contravene Article 2 of the TRIMS Agreement it had to confer a benefit or an advantage on another.
In this instance an advantage was clearly conferred upon Korea via KIA cars.[43] Moreover, the panel found that Indonesia had failed to invoke the general exceptions provided for under GATTS and adopted by Article 3 of TRIMS. These exceptions arose in respect of measures calculated to safeguard against a danger to health, morals and national security, none of which were applicable in the instant case.[44]
The WTO panel further found that Indonesia also failed to invoke the exemptions provided for in Article 4 of TRIMS which reads as follows:
“A developing country Member shall be free to deviate temporarily from the provisions of Article 2 to the extent and in such a manner as Article XVIII of GATT 1994, the Understanding on the Balance-of-Payments Provisions of GATT 1994, and the Declaration on Trade Measures Taken for Balance-of-Payments Purposes adopted on 28 November 1979 (BISD 26S/205-209) permit the Member to deviate from the provisions of Articles III and XI of GATT 1994.”[45]
Additionally the panel ruled that Indonesia by failing to notify the WTO of its TRIMS had thereby not taken advantage of Article 5 of TRIMS which permitted continuation of domestic TRIMS during the transition period.[46] As a result of these findings the panel made a recommendation that:
“…the Dispute Settlement Body request Indonesia to bring its measures into conformity with its obligations under the WTO Agreement”. [47]
Indonesia maintained that it needed at least 15 months to adhere to the conformity request and the opposing parties insisted that six months was all that was necessary. It was ruled however, that taking into consideration Indonesia’s status as a developing nation together with the fact that it suffered from dire financial difficulties, 12 months would be a reasonable time for the country to implement conforming measures.[48]
In a recent case filed with the WTO by the European Community against Turkey the parties have reached a temporary settlement.[49] The complaint was lodged by the European Community via the European Federation of Pharmaceutical Industries and Associations (EFPIA). The complaint submitted that certain legislative and policy practices in Turkey negatively impacted the marketing of Community pharmaceutical goods throughout Turkey. The basis of the complaint was founded upon a claim that Turkey’s pricing rules of 2004 contravened Article III of GATT as well as Article 2 of the TRIMS Agreement in that it contained:
“…preferential pricing treatment afforded to pharmaceutical products incorporating materials of national origin…” [50]
By January 2005 Turkish authorities agreed to and make satisfactory modifications by removing its discriminatory pricing practices in respect of local pharmaceuticals and imported pharmaceuticals.[51]
In EC v Canada: Certain Measures Affecting the Automotive Industry WTO Dispute Settlement DS142 (1998) a complaint was filed by the European Community based on an argument submitted by Japan. On July 3rd, 1998 the Japanese took issue with Canadian legislative provision which indorsed an automotive parts and products agreement referred to as an “Auto Pact”.[52] The Auto Pact represented an agreement between Canada and the United States in which allowed only a certain number or vehicles to be imported into Canada duty exempt for further distribution within Canada on a wholesale and retail basis. Japan argued that the duty exemption was reliant on the following:
The Japanese complained that these requirements and measures contravened specific international obligations and specifically Articles I(1) and III(4) of GATT as well as Article 2 of the TRIMS Agreement among others. [54]
On August 17th 1998 the European Community made a request for consultation with Canada and cited the contraventions raised by Japan. On November 12th of the same year Japan took matters a step further by requesting that a WTO panel convene and the Dispute Settlement Board of the WTO deferred the request for the establishing of a panel.
Continued joint efforts by both Japan and the European Community let to the establishing of a single panel to examine the complaints and India, Korea and the United States were added as third parties. A report of the panel’s finding was published and circulated on February 11th, 2000. The panel concluded that the complaint was well founded and the following month Canada appealed the findings.[55]
The appellate body reversed two findings by the WTO DSB but they were not related to the TRIMS’ Agreement and are therefore not relevant to this discussion. On June 19, 2000 the DSB incorporated the Appellate Body’s findings into its report and as a result of its recommendations Canada agreed to modify its legislative provisions in respect of the automotive discriminatory duty exemptions so as to comply with TRIMS and GATT. A reasonable time for the transition was fixed to be no later than 19th February, 2001. A meeting held by the DSB of the WTO on March 12th, 2001 found that Canada had complied with the panel’s recommendations.[56]
In a complaint lodged by the European Community against India in EC v India: Measures Affecting the Automotive Sector WT/DS146(1998) the European Community took issue with specific measures adapted by India in respect of its automotive sector under a policy entitled “Export and Import Policy, 1998-2002” as well as another policy entitled “Public Notice No. 60 (PN/97-02) of 12 December 1997, Export and Import Policy April 1997-March 2002”.[57]These policies were fortified by legislative provisions and a Memorandum of Understanding indorsed by the Indian Government and particular automobile manufacturers.[58] The European Community’s complaint alleged as follows:
When a first request for a panel was denied by the WTO, the European Community made a second request which was allowed on 17 November 2000. After considering the merits of the complaint the panel released its findings on December 21, 2001 as follows:
The panel then recommended that India take steps to bring its legislative and policy practices within conformity with the WTO Agreements including Articles III(4) and XI of GATT and Article 2 of the TRIMS Agreement.[62]
Although India appealed the panel’s decision it would subsequently withdraw its appeal and enter into discussions and negotiations with the European Community as well as the United States, a third party to the proceedings. The result was that India agreed to modify its automotive legislative and policy practices and both parties agreed that a reasonable time for conformity was five months meaning that India would make the necessary modifications by September, 2002. By November 6, 2002 India informed the DSB that it had fully modified its legislative and policy practices by abrogating its previous trade balancing requirements in respect of automotive trade together with its “indigenization requirements.”[63]
Another case of interest was initiated by the United States against the Philippines in the case of US v Philippines: Measures Affecting Trade and Investment in the Motor Vehicle Sector WT/DS195 (2000). In May of 2000 the US requested discussions and consultation with the Philippines in respect of certain measures implemented by the Philippines Department of Motor Vehicles (MVDP) which by and large included programs known as the Car Development Program, the Commercial Development Program and the Motorcycle Development Program. The United States was of the opinion that the following measures fell under the programs:
In general the United States charged that these measures were inconsistent with Articles III(4) and XI(1) of GATT and Articles 2(1) and 2(2) of the TRIMS Agreement. The US, wholly unsatisfied with the progress of consultations with the Philippines requested that the WTO form a panel. A second request was necessary and by 17 November, 2000 the WTO agreed but as of August 2007 the panel has not yet been established.[65]
TRIMS and Consequences for Developing Nations
The most obvious difficulty for developing nations rests with the new and so-called improved dispute settlement process. Author Phillip Anthony O’Hara notes that previously under the GATT’s Agreement panel agreements were only binding if there was a consensus among the parties. As a result a single party could block a ruling by refusing to adopt it.[66] The establishment of the WTO in 1995 reversed this standing rule binding all parties to a panel’s decision unless and until all agree to abandon it.[67] O’Hara notes that:
“It may seem that the WTO has made an improvement in the process of settling disputes and in moving closer to a ‘rule-based system’. However, the new procedures have in fact made the situation worse for poor and developing countries.”[68]
There is no escaping the conclusion that a majority of the complaining countries are developed nations while the respondents are to a greater extent from developing or least developed nations. In terms of financial resources and expertise it is highly unlikely that the developing nation is in a position to persuade the developed nation to agree to abandon a ruling unless of course the ruling is against the developed nation. It is therefore fair to state that the new and so-called dispute settlement mechanism functions in favor of the developed nation putting the developing nation to a disadvantage in terms of inequality of bargaining position.
Arguably, inequality is not necessarily detrimental to developing and least developed nations. O’Hara acknowledges that there are those who maintain that inequality can lead to “growth and progress”.[69] The wealthy, by sharing their products encourage innovation and shared profits.[70] The general consensus among writers that support globalization argue that a lack of participation in globalization is by and large responsible for inequality of wealth and power between developing and developed nations. In other words, globalization equality benefits those nations that fully subscribe to it:
“…and penalizes those that maintain restrictions on trade and capital flows.”[71]
Others argue however that globalization inequality only widens the gap between the haves and the haves not and by extension widens the gap between the developed and developing nations. Paul Streeten for instance maintains that:
“…liberalization, the realignment of the economy…technological change and the savage competition that accompanied globalization have contributed to an increase in poverty, inequality, and labour insecurity…the weakening of social support institutions and systems, together with the erosion of identities and established values.”[72]
Whether or not one argument is substantiated to a greater degree than the other the fact remains that the inherent disadvantages to developing nations in a negotiations’ oriented process as that envisioned by the WTO. Writer John S. Odell identifies three significant reasons for this conclusion. To start with in a typical case a developing nation generally has far “far more transparent domestic political systems”.[73] This juxtaposition has the potential to place the developing nation in a vulnerable position in respect of “two-level games”[74] with the result that “analytical focus” on what is perceived as rather than what are “domestic political constraints.”[75]
Secondly, a developed nation is in a better position to sponsor the accumulation and processing of information for the duration of negotiations proceedings. This is so because developed nations will usually have at its disposal the requisite expertise. Developing nations usually does not have these kinds of resources and as a result tend to “pay less attention to information problems.”[76] Odell warns that:
“From a positivist perspective, this implies that it is misleading to try to use beliefs to explain developing countries’ negotiation behavior. From a normative, prescriptive (policy-science) perspective, this could mean that there is urgent need for developing countries to acquire expertise in information processing and updating.”[77]
The third and final reason offered by Odell in respect of the inequality of bargaining power between developing and developed nations is attributed to the relative aggressive nature of the representatives from developed nations. According to Odell, research results indicate that developed nations are usually represented by actors who are stronger in terms of negotiating “offers, content and timing of agreement.”[78]
In a rare case, Bangladesh, a least developed nation was the first Member State of the least developed nation status to request consultation in respect of anti-dumping regulations.[79] The request for consultation was lodged on January 28th, 2004 which is decades after the GATT’s Agreement came into force and almost a decade since its predecessor the WTO was formed. This statistic speaks clearly to the inequality of bargaining position between the developed nations and the developing nations and is also reflective of the lack of confidence and resources on the part of the developing and least developed nations.
In Bangladesh v India: Anti-Dumping Measure on Batteries from Bangladesh. WT/DS 306 2004 requested consultation with India in respect of India’s anti-dumping measures on imported acid batteries originating from Bangladesh. The latter’s concern was that the investigation carried out by the Indian authorities that gave way to its imposition of anti-dumping measures was inherently flawed. The concerns about the investigation can be summarized as follows:
“…essential facts under consideration which form the basis for the decision to apply definitive measures.”.[80]
Further the Indian authorities were alleged to have failed to serve notice of:
“…all relevant information on the matters of fact and law and reasons which have led to the imposition of final measures”.[81]
Bangladesh claimed that these allegations of infractions on the part of India represented violations of various provisions of GATT 1994 inclusive of Article III. Bangladesh also claimed that as a result of these violations it was being denied its benefits and advantages under GATT. On February 20, 2004 the European Community joined the consultation process and by 20th February, 2006 and India was persuaded to withdraw its Customs’ notification which gave rise to its anti-dumping provisions.[82] There is no way of knowing whether or not Bangladesh would have been able to negotiate India’s withdrawal without the assistance of the European Community, but it is worth noting that this was yet another instance in which the will of the developed nation prevailed over that of the developing nation.
Another case demonstrative of the inequality of resources and facilities between developed and developing nations and how it impacts the negotiation process envisioned by the World Trade Organization is the case of India v US: Rules of Origin for Textiles and Apparel Products WT/DS 243 (2002). India requested consultations with the United States in respect of US legislation applicable to the importation of apparel and textile products and the customs policies. The US legislation giving rise to concern was Section 334 of the Uruguay Round Agreement Act and Section 405 of the Trade and Development Act 2000.[83]
India maintained that the introduction of Section 334 of the Uruguay Round Agreement Act functioned to confer a biased method of identifying the origins of textile and apparel products. India was of the opinion that the identifying method was designed to safeguard the United States against competition in the area of textile and apparel production. Interestingly, India stated that the United States had already been challenged by the European Community on the same grounds to wit; Section 334 was inconsistent with the Member State obligations under the Rules of Origin and WTO Agreements generally.
The dispute between the United States and the European Community was settled by virtue of the United States amending Section 334 and implementing Section 405 of the Trade and Development Act 2000. This latter section, India claimed was calculated to accommodate exports originating out of the European Community.[84]
According to India these legislative changes had the result of introducing different tests for determination of the origin of like products and the methods for processing these products. India argued that having regard to the circumstances in which the legislative provisions were introduced and their overall impact on competition strongly indicate that they were for specific unjustifiable trade policies. As a result both legislative provisions violated Article 2 of the Agreement on Rules of Origin and pursuant to this argument India requested a panel on May 7th, 2002.[85]
The DSB agreed to the establishing of a panel on June 24th, 2002 and convened on October 10th, 2002. The following June the panel published and circulated its report which found generally that India had failed to prove its claims generally.[86]This result is a manifestation of the inherent disparities between developing nations and developed nations. As argued by India when the European Community took a similar position against the United States, the countries, both developed nations reached a satisfactory agreement.
However, when India, a developing nation took attempted to negotiate with the United States it could not secure a satisfactory agreement. There is no doubt that India’s claim had merit since the European Community succeeded in a similar claim against the US. The difference in the claims is accounted for in the manner in which they were negotiated. Obviously India lacked the resources, information and expertise to advance its position effectively. This inequality of bargaining position disadvantages developing nations in the WTO’s vision for international trade harmony and liberalization.
Integration into the world trade climate is a far more complicated measure for developing countries than it is for developed nations. By comparison, developing nations are struggling with internal economic policies that are geared toward stabilization, modification of its own balance of payments and in general reformation of its “trade and exchange rate regime.”[87]Moreover, in developed nations the general members of the public are by and large of one mind on the question of globalization and are in general already open to the practice of participating in a global economy. The same cannot be said for members of the public within developing nations. Stephen Haggard notes that:
“In the developing world, by contrast, the domestic coalitions supportive of a more open stance toward the world economy have not usually been consolidated. Interventionist development strategies have naturally created strong interests in the policy status quo, and in many developing countries, deep intellectual divisions and political cleavages remain over the merits of closer integration with the world economy.”[88]
Haggard goes on to explain that internal difficulties only add to the difficulty of integration and conformity to international harmonization of trade rules and regulations. Political instability poses an administrative problem for Governments of developing nations in much the same manner as economic instability.[89] These countries upon joining the WTO were already struggling with policies and measures calculated to address internal socio-economic difficulties. Therefore making transitions in the manner required by the TRIMS Agreement is no small matter.
The WTO accepts that transition by developing and least developed nations is a complicated matter and takes time. This explains why the TRIMS Agreement is prefaced with the following declaration:
“Taking into account the particular trade, development and financial needs of developing country Members, particularly those of the least-developed country Members…”[90]
In recognition of this acknowledgement Article 4 of the TRIMS Agreement makes the following provision:
“A developing country Member shall be free to deviate temporarily from the provisions of Article 2 to the extent and in such a manner as Article XVIII of GATT 1994, the Understanding on the Balance-of-Payments Provisions of GATT 1994, and the Declaration on Trade Measures Taken for Balance-of-Payments Purposes adopted on 28 November 1979 (BISD 26S/205-209) permit the Member to deviate from the provisions of Articles III and XI of GATT 1994.”[91]
As previously noted Article 2 of TRIMS abrogates provisions that are inconsistent with Articles III and XI of GATT.
The idea is to allow for Member States to make transition adjustments that are consistent with their resources and facilities.[92] Be that as it may, what is often overlooked is the underlying political influence of an integration agenda. Democratic challenges are difficult to dismiss and Scott Sinclair goes so far as to submit that the World Trade Organization aspires to “restructure the role of governments worldwide”.[93]This kind of conclusion comes as a result of trade controls envisioned by WTO Agreements such as TRIMS, the General Agreement on Trades in Services (GATS) and the Agreement on Trade Related Aspects of Intellectual Property (TRIPS).
Member States by their membership to the WTO are committing their citizens and governance to a series of agreements to which they have had no specific input. This in and of itself is an affront to the fundament concept of democratic institutions. In fact Green Party of England and Wales spokesperson for Globalization, Jayne Forbes noted that:
“Citizens of the UK have had no input into these discussions and have no right of access to papers or negotiating positions. This is in complete contrast to the open access given to chief executives of large companies and business interest groups of the continent's most powerful corporations.”[94]
Although Jayne Forbes spoke with reference to the GATS Agreement it cannot be distinguished from TRIMS since both agreements are characterized by the same measure of secrecy and closed door negotiations of WTO dispute settlement and consultation regime. Forbes goes on to maintain that GATS:
“…fundamentally undermine citizens' rights to determine their own social and environmental priorities.”[95]
No doubt the same is true of the TRIMS agreement. The time allowed for transition merely disadvantages the developing and least developed nations by pressuring them to restructure internal social and environmental priorities in order to comply with an international agenda rather than a domestic one.
Beyond democratic concerns a more complex difficulty exist for developing and least developed nations seeking to conform to TRIMS. The TRIMS Agreement is very insulated and its brevity poses construction and conformity problems immediately. By comparison the OECD MAI agreement encompasses a more specific definition of investment. It includes portfolio investments, intellectual property rights, dept capital and other tangibles and intangibles.[96] Further complicating matters is the fact that TRIMS can not be interpreted in isolation. It is necessary to read it together with other WTO agreements and policies and this is particularly problematic for developing nations.
This necessity speaks to the ambiguity of the TRIMS Agreement making the interpretation of its obligations a mammoth task for developing and least developed nations. Many of these nations lack the capacity by virtue of resources and expertise to fully appreciate the actual scope and range of TRIMS obligations. Obviously this shortfall has the capacity to create and facilitate unnecessary tensions between developing nations and developed nations with the result that the WTO’s efficiency and integration agenda is significantly compromised.[97]
Some economists and jurists alike argue that the state-to-state dispute settlement process within the WTO legal frame-work does a disservice to the TRIMS Agreement and advocate for an investor-to-state mechanism for dispute settlement. However, others argue and reasonably so that changing the already imbalanced dispute settlement regime of the WTO would only serve to further disadvantage developing nations. If they already lack the expertise to effectively negotiate they will remain incapacitated by the requirement to elect and sponsor investors.[98]
There are those that argue however, that imbalance is a necessary evil and side effect of globalization. It becomes a fair trade off for the elimination of poverty. WTO Agreements are largely viewed as necessary instruments for the improvement of the economic infrastructure of developing as well as least developed nations. In the words of Erin Thomas, managing Editor of Global Vision free trade clears the way for “the untaxed flow of goods and services between countries.”[99] Thomas goes on to surmise that it is primarily a lack of international harmony that accounts for poverty in developing and least developed nations. In fact, as Erin states, those countries engaging in unrestricted trade on an international level are not more successful economically by pure coincidence. On the other hand, countries that gravitate toward a more obvious:
“…protectionist stance on trade” have labored under “both loss of opportunity and nepotism.”[100]
The “Make Trade Fair” campaign launched by Oxfam International in October of 2002 had as its agenda the elimination of poverty on a global level. The campaign was characterized by the concept that open market access akin to that envisioned by the WTO via its various agreements such as TRIMS, TRIPS and GATS was a viable response to world poverty. Oxfam noted that:
"For [the] engine [of trade] to function, poor countries need access to rich country markets. Expanding market access can help countries to accelerate economic growth, at the same time expanding opportunities for the poor."[101]
As writer Erin Thomas for Foreign Policy in Focus suggest there is very little argument of merit against the position that free market access is the most effective measure for the elimination of poverty on a global level. Therefore it is obvious that the free and open market agenda envisioned by the WTO via its various is at least in part, the answer to world poverty.[102]
However the Agreements under the WTO have a lot of fine toning if they are going to achieve the goal of liberalization and economic progression. TRIMS for instance requires some comprehensive changes particularly in the provision of a more definitive definition of investment. It is also necessary to make provision for closer attention to the needs and shortfalls of developing and least developed nations and for the implementation of provisions that go beyond mere extensions of time for transitions and conformity.
Examples of Practical Problems for Developing Countries in Making WTO Commitments
United Arabic Emirates
The WTO in its Trade Policy Review WT/TPR/S/162 of March 2006 notes that the United Arabic Emirates’ (UAE) economy experienced an average growth rate at 6 per cent per annum over the last 10 years. The UAE currently enjoys one of the world’s most impressive GDP’s at approximately US$24,000. The economical framework of the UAE is by and large government owned and controlled and this is the driving force behind UAE trade policies. The Federal Supreme Council which is made up of seven Emirate representatives supervises the Ministry of Economy for the coordination and formulation of UAE Trade policies.[103]
The UAE subscribed to GATT since 1994 and contracted with the WTO in April of 1996. The UAE provides the WTO’s Most Favored Nation treatment to each of its trade partners with the exception of Israel and has never been a party to a WTO dispute.[104] One of the greatest barriers to international integration is the UAE’s failure to enact or promote “competition anti-dumping, subsidies, countervailing or safeguards legislation.”[105]
The WTO notes that the UAE has made efforts to diversify its ability to fully benefit from the multilateral trade mechanisms envisioned by the WTO is hampered by “institutional weaknesses”,[106] its lack of competition policies and restraints on foreign investment measures. This according to the WTO is in:
“…contrast with its relatively low border barriers to trade and preclude it from benefiting fully from the advantages of a liberal economy.”[107]
Currently the UAE requires reconstruction of its trade policies more particularly its adherence to anti-competition policies to bring it into conformity with WTO principles. Since it also operates primarily within free zones, tariff reforms are also necessary. This is no simple task and requires a systematic overhaul of trade policies and a measure of departure from collective Emirate concepts.
Brazil
The primary difficulty for Brazil within the legal framework of the WTO is its lack of transparency. Foreign trade in Brazil is regulated by a complex number of laws and often times provisional measures making it difficult for trade partners to keep abreast of Brazil’s trade laws and policies. This problem is further compromised by Brazil’s centralized governance which empowers the President to singularly enact measures of his own volition and he often does so by the implementation of provisional measures.[108]
Brazil’s socio-economic policies are characterized by an inward orientated regime. The emphasis is on encouraging exports and discouraging imports. As a result import taxes are excessive in comparison to export taxes and tariffs.[109] These unfair and unbalanced trade incentives make it difficult for Brazil to integrate into liberalized globalization and runs counter to the broad goals of the WTO for harmonization. In order for Brazil to achieve optimum results from the WTO’s integration regime its import policy will have to be revamped to allow greater market access to WTO’s Member States. Once other Member States have greater access to the Brazilian markets Brazil’s access to international markets will increase and its economic growth will follow.
Bangladesh
Bangladesh is unquestionably a country struggling to overcome internal poverty and as such the cost of conformity to WTO trade policies is a mammoth task doomed for failure. These costs are further compromised by political weaknesses, poor infrastructure and a string of natural disasters.[110] These weaknesses also increase the costs of trading with Brazil in all sectors.[111] In World Trade Organization’s Trade Policy Review of Bangladesh, the Chairman noted that it was necessary for Bangladesh to take:
“…steps to improve the provision of essential infrastructure services, notably power, telecommunications, transport and port facilities, and strengthen the banking sector as well as measures to enhance governance.”[112]
As a result of the Government’s lack of revenue it relies almost entirely on border tariffs and this creates a challenge for Bangladesh’s ability to adhere to WTO open market access regime. The Government’s reliance on border taxes together with unstable governance has led to a number of inconsistent border taxes and regulations. By extension Bangladesh is unable to provide the requisite transparency required of WTO Agreements harmonizing cross-border trade systems.[113] Another difficulty for Bangladesh exists in its unitary trade system which relies heavily on exporting garments. Obviously diversification cannot be accomplished by fostering an economy that is focused on exports of a single product.
Internal reconstruction of Bangladesh’s fiscal regime and government structure is necessarily a priority for Bangladesh. Measures to improve the internal fiscal problems will go a long way in bringing Bangladesh to a place where it is functioning in manner consistent with the WTO integration agenda. A more stable government will foster confidence in both foreign and domestic interests with the result that balance of payments will improve. The improvement of the country’s infrastructure will automatically follow.
Balance of Payments and Developing Nations
The WTO endeavors to assist developing nations and least developed nations by enabling them to engage in unbalanced taxes and tariffs by virtue of a system known as a balance of payments. In a directive issued under the title ‘Understanding on the Balance-of-Payments Provisions of the General Agreement on Tariffs and Trade 1994’ Article 1 provides as follows:
“Members confirm their commitment to announce publicly, as soon as possible, time-schedules for the removal of restrictive import measures taken for balance-of-payments purposes. It is understood that such time-schedules may be modified as appropriate to take into account changes in the balance-of-payments situation. Whenever a time-schedule is not publicly announced by a Member, that Member shall provide justification as to the reasons therefor.”[114]
Article 2 goes on to permit disparity in import and export tariffs and taxes as well as all surcharges necessitated by internal weaknesses.[115] The difficulty for many developing nations and least developed nations is their failure to notify the WTO of the measures in place and their justification for these measures. This failure violates the WTO’s policy on transition as well as its position on transparency. As a result developing and least developed nations find themselves the subject o consultation and WTO dispute settlement proceedings.
Cost Requirements for Developing Nations
Making the transition from a self-governing economic entity to a WTO regulated regime comes at both a financial and social cost for developing and least developed nations. As noted previously in nations such as Brazil and Bangladesh, internal restructuring is a necessary prerequisite to transition and open market access. Transition requires reconstructing polices and practices at home and then the general educating of potential traders in respect of both internal and international trade rules and policies. Such measures have the capacity to incur financial cost and a general revamping of internal goals and policies. In many cases countries can expect to evolve from a centralized form of economic institution to a more liberalized economic institution. While this is not necessarily a bad thing it does incur cultural adaptations to change.
In order to make necessary changes to internal policies it becomes virtually impossible without some form of external expertise and advice. These measures will obviate expenditures from a country already struggling to overcome economic difficulties.
Recommendations for a Legal Framework with a view to Accommodating Developing Nations
One of the greatest difficulty for developing and least developed nations in adhering to commitments contained in the WTO’s various agreements is the abrogating of inconsistent legislative provisions and the implementation of legislation that complies with their respective WTO commitments. There is a general lack of guidance in the individual agreements and in the case of the TRIMS agreement is not only ambiguous it is also lacking in substantive and procedural detail. A good starting point for the WTO is for the adaptation of more detailed agreements.
As noted previously many developing and least developed nations lack the capacity and resources to interpret and implement the agreements into domestic law. Taking a lesson from the European Economic Community, the WTO should issue directives which provide detailed substantive laws for implementation with a timeframe set for implementation. This measure would go a long way in removing the barriers that incapacitate developing nations.
The implementation of a directive which mandates that any inconsistency co-existing between domestic laws and WTO directives should be resolved by adhering to the WTO directive. This measure would have the result of dispensing with the need for formal abrogation of inconsistent laws.
The WTO dispute settlement process is fraught by secrecy and as such leaves the impression of unfairness. The process should be open to public scrutiny with the result that public confidence in its fairness can be fostered. Moreover, open proceedings will have the added benefit of educating WTO Members. The more a Member State knows of the proceedings and the substantive law the more likely consultations will end in agreement.
Conclusion
A general lack of comity of nations has always presented a stumbling block in all aspects of international relations. Any attempt to regulate international relations by virtue of public international law has always been fraught by fears of sovereignty of nations. However, the Treaty of Rome that formed the European Economic Community has led the way for the unification of nations by promoting the free movement of goods, people and services while maintaining some element of domestic control over domestic policies. The WTO has a similar agenda but it falls short in the construction of its defining agreements.
The WTO is flawed in that its agreement calls for commitments and obligations as opposed to a comprehensive set of rules and regulations. The WTO purports to administer far too much control over governments rather than actual international relations. Governments are the best bodies for regulation of internal policies and regimes. The overall difficulty with the WTO is that it is too idealistic in its approach and sorely lacking in realistic construction of its goals.
Lazar Lydia assistant Dean at Chicago-Kent College of Law succinctly explains that:
“Our traditional “rational basis” test for business regulations reflects the give and take of local politics in any particular community – yet under GATS and WTO disciplines, our communities may be prevented from enacting forward thinking legislation to promote sustainability.”[116]
Appendix A
“ANNEX
Illustrative List
1.TRIMs that are inconsistent with the obligation of national treatment provided for in paragraph 4 of Article III of GATT 1994 include those which are mandatory or enforceable under domestic law or under administrative rulings, or compliance with which is necessary to obtain an advantage, and which require:
(a)the purchase or use by an enterprise of products of domestic origin or from any domestic source, whether specified in terms of particular products, in terms of volume or value of products, or in terms of a proportion of volume or value of its local production; or
(b)that an enterprise's purchases or use of imported products be limited to an amount related to the volume or value of local products that it exports.
2.TRIMs that are inconsistent with the obligation of general elimination of quantitative restrictions provided for in paragraph 1 of Article XI of GATT 1994 include those which are mandatory or enforceable under domestic law or under administrative rulings, or compliance with which is necessary to obtain an advantage, and which restrict:
(a)the importation by an enterprise of products used in or related to its local production, generally or to an amount related to the volume or value of local production that it exports;
(b) the importation by an enterprise of products used in or related to its local production
by restricting its access to foreign exchange to an amount related to the foreign exchange inflows attributable to the enterprise; or
(c) the exportation or sale for export by an enterprise of products, whether specified in terms of particular products, in terms of volume or value of products, or in terms of a proportion of volume or value of its local production.” [117]
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[1] Damro, Chad. "Multilateral Competition Policy and Translantic Compromise." European Foreigh Affairs Review 9(2) (2004): 269-287
[2] Steinbery, Richard. “In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO”. International Organization 56(2) (2002): 339-374
[3] Ibid
[4] Ibid
[5] Agreement on Trade Related Investment Measures, Article 2(1)
[6] Hoekman., Bernard. Trade Laws and Institutions: Good Practices and the World Trade Organization . New York: World Bank Publications, 1995. P. 40
[7] GATTS Agreement 1947, Article III(1)
[8] Ibid Article III(2)
[9] Ibid, Article III(3)
[10] GATT 1947 Article III(4)
[11] Ibid Article III(5)
[12] Ibid Article III(6)
[13] Ibid
[14] GATT 1947 Article III(7)
[15] Ibid Article III(8)(a)
[16]Ibid Article XI(1)
[17] Agreement on Trade Related Investment Measures, Article 5(2)
[18] Ibid Article 5(3)
[19] Hoekman., Bernard. Trade Laws and Institutions: Good Practices and the World Trade Organization . New York: World Bank Publications, 1995. P. 40
[20] Hoekman., Bernard. Trade Laws and Institutions: Good Practices and the World Trade Organization . New York: World Bank Publications, 1995. P. 40
[21] Ibid
[22] Mashayekhi, Mina and Gibbs, Murray. “Lessons from the Uruguay Round Negotiations on Investment.” Journal of World Trade 33(6) (1999) p. 13
[23] Feature Article. “Goods Council Makes Good on Extension of TRIMS Deadline.” ICTSD Bridges Weekly Trade News Digest. 4(44) 21 November, 2000. http://www.ictsd.org/html/weekly/story4.21-11-00.htm Accessed September 20 2007
[24] Feature Article. “Goods Council Makes Good on Extension of TRIMS Deadline.” ICTSD Bridges Weekly Trade News Digest. 4(44) (21 November, 2000). http://www.ictsd.org/html/weekly/story4.21-11-00.htm Accessed September 20 2007
[25] Ibid
[26] Ibid
[27] Ibid
[28] Ibid
[29] Ibid
[30] Feature Article. “Goods Council Discusses Investment Measures.” .” ICTSD Bridges Weekly Trade News Digest 10(2) (Feb. 2004) http://www.iprsonline.org/ictsd/docs/AgendaMarchTRIPsCouncilYear8-2.pdf Accessed September 20, 2007
[31] Dillon, Sarah. International Trade and Economic Law and the European Union. Oxford: Hart Publishing. 2002 p. 96
[32] Ibid p.96
[33] BBC News. (January 2007) Profile: The World Trade Organization. http://news.bbc.co.uk/1/hi/world/europe/country_profiles/2429503.stm Viewed September 21, 2007
[34] Ibid
[35] Ibid
[36] World Trade Organization. (n.d.) Understanding the WTO: Settling Disputes. http://www.wto.org/english/thewto_e/whatis_e/tif_e/disp1_e.htm Viewed September 21, 2007
[37] World Trade Organization. (n.d.) Understanding the WTO: Settling Disputes. http://www.wto.org/english/thewto_e/whatis_e/tif_e/disp1_e.htm Viewed September 21, 2007
[38] Ibid
[39] US, EC and Japan v Indonesia: Certain Measures Affecting the Automobile Industry. WT/D554, 1998
[40] Agreement on Trade Related Investment Measures, Article 2
[41] US, EC and Japan v Indonesia: Certain Measures Affecting the Automobile Industry. WT/D554, 1998
[42] US, EC and Japan v Indonesia: Certain Measures Affecting the Automobile Industry. WT/D554, 1998
[43] Ibid
[44] Ibid
[45] Agreement on Trade Related Investment Measures, Article 4
[46] US, EC and Japan v Indonesia: Certain Measures Affecting the Automobile Industry. WT/D554, 1998
[47] Ibid
[48] Ibid
[49] EC v Turkey. General Overview of Active WTO Dispute Settlement Cases Involving the EC as Complainant or Defendant and of Active Cases under the Trade Barriers Regulations.(July, 20th 2007) p. 38 Available online at: http://trade.ec.europa.eu/doclib/docs/2007/may/tradoc_134652.pdf Viewed September 21, 2007
[50] EC v Turkey. General Overview of Active WTO Dispute Settlement Cases Involving the EC as Complainant or Defendant and of Active Cases under the Trade Barriers Regulations.(July, 20th 2007) p. 38 Available online at: http://trade.ec.europa.eu/doclib/docs/2007/may/tradoc_134652.pdf Viewed September 21, 2007
[51] Ibid
[52] EC v Canada: Certain Measures Affecting the Automotive Industry WTO Dispute Settlement DS142 (1998)
[53] EC v Turkey. General Overview of Active WTO Dispute Settlement Cases Involving the EC as Complainant or Defendant and of Active Cases under the Trade Barriers Regulations.(July, 20th 2007) p. 38 Available online at: http://trade.ec.europa.eu/doclib/docs/2007/may/tradoc_134652.pdf Viewed September 21, 2007
The Trade-Related Investment Measures Agreement (TRIMS). (2017, Mar 02). Retrieved from https://studymoose.com/the-trade-related-investment-measures-agreement-trims-essay
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