Substance of Accession Negotiations

5.2 Rules

Policy framework  back to top

Powers of Executive, Legislative and Judiciary branches of government. Judicial review.

An applicant needs to provide a description of the structure and powers of the government, describing the constitution and its relation to the main branches of government, the executive, legislative and judiciary and the powers of each.

Among the matters Members of Working Parties have indicated to be of most importance in the context of accession are: the application of WTO law in the domestic system, including the way in which the accession Protocol will be executed; the Ministries and other government entities responsible for making and implementing the policies subject to WTO disciplines; the relationship between international treaties including the WTO Agreement and domestic legislation; and the right of review and appeal of administrative action to independent tribunals on matters subject to WTO provisions.

The WTO Agreement provides that each WTO Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the agreements annexed to it. Various WTO agreements provide for a right to appeal administrative decisions taken in pursuance of their provisions.¹⁶⁸

Most of the commitments in this area relate to the subject of the review and appeal of administrative decisions. The basic text of a Protocol commitment on this subject has been: “The representative of [X] confirmed that from the date of accession [X’s] laws would provide the right to appeal administrative rulings on matters subject to WTO provisions to an independent tribunal in conformity with WTO obligations, including but not limited to Article X:3(b) of the GATT 1994.”¹⁶⁹ One recent commitment added references to Article 23 of the Agreement on Subsidies and Countervailing Measures, Article 11 of the Agreement on Implementation of Article VII of the GATT 1994, Article 62 of the Agreement on Trade-Related Aspects of Intellectual Property Rights and Article VI of GATS.¹⁷⁰

Two Protocols amplify this text by adding commitments to provide that the acceding country concerned “would revise its relevant laws and regulations so that its relevant domestic laws and regulations would be consistent with the requirements of the WTO Agreement on procedures for judicial review of administrative actions” and that “the tribunals responsible for such reviews would be impartial and independent of the agency entrusted with administrative enforcement, and would not have any substantial interest in the outcome of the matter”.¹⁷¹ In one of these cases, the acceding country also accepted commitments relating to tribunals, contact points and procedures for the prompt review of all administrative actions and the opportunity for appeal, without penalty, by individuals or enterprises affected by any administrative action subject to review.¹⁷²

One detailed Protocol commitment provides that the country concerned would, from the date of its accession, “establish or designate tribunals or procedures for the prompt review of all administrative actions relating to the implementation of laws, regulations, judicial decisions and administrative rulings of general application referred to in Article X:I of the GATT 1994 and Article VI of the GATS”. It further provides, inter alia, that “the tribunals or procedures would also include actions relating to the implementation of national treatment, conformity assessment, the regulation, control, supply or promotion of a service, including the grant or denial of a licence to provide a service and other matters”.¹⁷³

The commitment of an LDC on this subject confirmed that it was in the process of establishing the necessary draft law and commercial court system and the date by which these would be operational.¹⁷⁴

One acceding country confirmed that all laws and legislative instruments necessary for the application of WTO provisions would be adopted and in place prior to the legal conclusion of its WTO accession.¹⁷⁵

Another Working Party Report contains detailed commitments designed to ensure that relevant treaty commitments would prevail over national legal normative documents.¹⁷⁶

Under this heading, Working Parties sometimes touch on the need for the uniform application of WTO obligations throughout the territory of acceders but this issue is usually dealt with under the next heading — authority of sub-central governments.

Authority of sub-central governments. Uniform administration.

Some countries are highly centralized while others, notably federal States, may be decentralized to a greater or lesser extent. Even highly centralized States normally have local governments and decentralized States have regional and local levels of government, the names given to these units varying from country to country. The issue relevant to accessions is the extent to which these sub-central governments and authorities legislate on matters subject to WTO provisions and have the responsibility of enforcing these provisions. Obviously, regional and local governments deal with regional and local affairs and most constitutions give central governments the power to regulate trade and commerce with other countries. However, the precise interpretation of these provisions is sometimes unclear and central governments have sometimes hesitated to test the outer limits of their competence. The wide scope of the WTO Agreement has perhaps been a complicating factor.

In the area of goods, the GATT 1994 provides that each WTO Member is responsible for the observance of all its provisions and “shall take such reasonable measures as may be open to it to ensure observance of the provisions of this Agreement by the regional and local governments and authorities within its territories.” The approach taken in the area of services by GATS is different. It simply provides that “this Agreement applies to measures by Members affecting trade in services” as this term is defined in the Agreement. Whether the measure is taken by central, regional or local government bodies is not relevant. The Agreement on Trade-Related Aspects of Intellectual Property Rights does not refer to sub-central governments and enjoins Members to “give effect to the provisions of this Agreement.”¹⁷⁷

Applicants need to describe their constitutional arrangements in this respect. Some Members have wanted to satisfy themselves that acceding governments have effective control over their territory and that their WTO obligations will be applied uniformly throughout that territory. Members have also asked applicants to confirm, where appropriate, that their sub-central governments do not have competence in trade matters.

Protocol commitments are often made up of different elements.

First, some acceders have “confirmed that sub-central entities had no autonomous authority over issues of subsidies, taxation, trade policy or any other measures covered by WTO provisions”.¹⁷⁸ One went on to confirm that it would “in a timely manner” annul local regulations, government rules and other local measures that were inconsistent with its obligations.¹⁷⁹

Second, some acceders have also “confirmed that the provisions of the WTO Agreement, including [its] Protocol, would be applied uniformly throughout its customs territory and other territories under its control, including in regions engaging in border trade or frontier traffic, special economic zones, and other areas where special regimes for tariffs, taxes and regulations are established”.¹⁸⁰ One country’s obligations relate to its special economic areas and all laws, regulations and other measures pertaining to or affecting trade in goods, services, TRIPS or the control of foreign exchange.¹⁸¹ Another country committed itself to “apply the WTO provisions … uniformly throughout the entire customs territory controlled by [its] central government”.¹⁸²

Third, some acceding governments have undertaken a commitment that “when apprised by a WTO Member of a situation where WTO provisions were not being applied or were applied in a non-uniform manner, central authorities would act to enforce WTO provisions without requiring affected parties to petition through the courts” or “would act to correct the situation and enforce the WTO provisions” or “would eliminate or nullify measures taken by sub-central authorities in [its territory] that are inconsistent with WTO provisions from the date of accession”.¹⁸³ One Protocol establishes “a mechanism under which individuals and enterprises can bring to the attention of the national authorities cases of non-uniform application of the trade regime” and provides that “when non-uniform application is established, the authorities would act promptly to address the situation utilizing the remedies available under [its] laws, taking into account [its] international obligations and the need to provide a meaningful remedy”.¹⁸⁴ One other Working Party Report qualifies this commitment by providing that the national authorities of the acceder would investigate claims that WTO provisions were not being applied or were being applied in a non-uniform manner and would act to enforce WTO provisions if the charges were found to be valid.¹⁸⁵

 

Notes:

168. See, inter alia, WTO Agreement, Article XVI:4, GATT 1994, Article X: (b) and (c) and GATS Article III. back to text
169. Nepal, para 31; Cambodia, para 36; Armenia, para 34; Croatia, para 37; Oman, para 32; Georgia, para 35. For a broader commitment, see Kyrgyz Republic, para 26. back to text
170. Saudi Arabia, para 85. back to text
171. Viet Nam, para 135; China, paras 78 and 79, Protocol 2 (D). back to text
172. See China, Protocol 2(D) for the full text. back to text
173. Tonga, para 43. back to text
174. Cambodia, para 36. back to text
175. Armenia, para 37. back to text
176. Viet Nam, paras 119 and 517. For further Protocol commitments, see China, para 68; Jordan, para 43; Estonia, para 30; Latvia, para 124. back to text
177. The relevant provisions of GATT 1994, GATS and TRIPS are: GATT 1994 Article XXIV :12 and the Understanding on the Interpretation of that Article; GATS Article I :1 and 2; TRIPS Article 1:1. back to text
178. Tonga, para 48; Armenia, para 36; Moldova, para 48; Lithuania, para 29; Croatia, para 41; Albania, para 38; Georgia, para 40; Jordan, para 43; Estonia, para 30; Latvia, para 30. back to text
179. China, para 70. back to text
180. Tonga, para 48; Saudi Arabia, para 88; Moldova, para 48; Lithuania, para 29; Croatia, para 41; Albania, para 38; Jordan, para 43; Estonia, para 30. back to text
181. China Protocol 2(A). These areas include border trade regions and minority autonomous areas, Special Economic Zones, open coastal cities, economic and technical development zones and other areas where special regimes for tariffs, taxes and regulations are established. back to text
182. Georgia, para 40. back to text
183. Tonga, para 48; Chinese Taipei, para 15; Armenia, para 36; China, para 73; Moldova, para 48; Lithuania, para 29; Croatia, para 41; Albania, para 38; Georgia, para 40; Jordan, para 43; Estonia, para 30; Latvia, para 30. back to text
184. China, para 75 and Protocol I.2(A). back to text
185. Viet Nam, para 134. back to text