A Comparative Guide to the Chile-United States Free Trade Agreement and the
The structure and the content of Chapter 7 on Technical Barriers to Trade of the Chile-U.S. FTA and DR-CAFTA are very similar. Both contain provisions on trade facilitation, technical regulations, conformity assessment, and transparency. Both establish a committee on technical barriers to trade and obligate countries to ensure a timely exchange of information. Both have as their objective “to increase and facilitate trade through the improvement of the implementation of the TBT Agreement, the elimination of unnecessary technical barriers to trade, and the enhancement of bilateral cooperation”.
Relationship with the TBT Agreement: both Agreements affirm the Parties’ rights and obligations under the TBT Agreement.
Scope and Coverage: in terms of the scope and coverage, both Agreements cover standards, technical regulations and conformity assessment procedures (as defined in the WTO TBT Agreement) that may directly or indirectly affect trade in goods between the Parties. In both Agreements it is specified that the TBT Chapter applies only to central government bodies and that the Chapter does not cover sanitary and phytosanitary measures or government procurement. The main difference in this section is that DR-CAFTA specifies in a footnote that any reference to standards, technical regulations and conformity assessment procedures include those related to metrology.
International Standards: both Agreements invoke the document on Decisions and Recommendations adopted by the Committee since 1 January 1995, Section IX (Decision of the Committee on Principles for the Development of International Standards, Guides and Recommendations with relation to Articles 2, 5 and Annex 3 of the Agreement) issued by the WTO Committee on Technical Barriers to Trade as the source for principles for use in determining the existence of an international standard. These principles concern transparency, openness, impartiality and consensus, relevance and effectiveness, coherence and developing country interests. The Chile-U.S. FTA references G/TBT/1/Rev.7, 28 November 2000, while DR-CAFTA references the more recent version of this document, G/TBT/1/Rev. 8, 23 May 2002.
Trade Facilitation: the two Agreements include an Article on trade facilitation, encouraging the parties to intensify their joint work in this area with a view to facilitating market access (DR-CAFTA) or trade between the Parties (DR-CAFTA) and to seek to identify bilateral initiatives as appropriate, including cooperation on regulatory issues, alignment with international standards, reliance on supplier’s declaration of conformity and use of accreditation to qualify conformity assessment bodies. The Chile-U.S. FTA includes mutual recognition as a cooperation mechanism, while DR-CAFTA does not. DR-CAFTA calls for Parties to favorably consider sector-specific cooperation proposals. This same language is included in the Chile-U.S. FTA, but in the section addressing the Committee on TBT.
Technical Regulations: in both Agreements, if the Party does not accept a technical regulation of the other Party (or of another Party, in the case of the multi-country DR-CAFTA) as equivalent to a particular technical regulation of its own, the Party is obliged to provide, upon request, an explanation of the reasons for not doing so, in cases where the Party provides for equivalency of foreign technical regulations, and is urged to provide such an explanation, upon request, in cases where it does not.
Conformity Assessment: the objective of the Article on conformity assessment in both Agreements is not to set out guidelines for conformity assessment procedures, as this is done in the WTO TBT Agreement, but to foster acceptance of each other’s procedures. For instance in the Chile-U.S. FTA, the Agreement provides for facilitating “the acceptance of conformity assessment results”. DR-CAFTA likewise provides “to facilitate the acceptance of conformity assessment procedures conducted in another Party’s territory.” Parties are urged to intensify their exchange of information on mechanisms available to fulfill this. In cases where Parties do not accept the results of conformity assessment procedures of their counterparts, they are obliged, upon request, to explain the reasons. Parties are to accredit, approve, license, or otherwise recognize that conformity assessment bodies in the territory of the other Party on the same terms as accorded to such bodies in their own territory. In cases where this is not done, the Party shall, upon request, explain the reasons for such refusal.
Transparency: both Agreements provide for persons of the other Party to participate in standards, technical regulations and conformity assessment procedures development. Nongovernmental standardizing bodies in the territory of the Parties will also be recommended to follow this procedure.
Each Agreement states that Parties shall provide, upon request, information regarding the objective and rationale for a standard, technical regulation or conformity assessment procedure that the Party has adopted or is proposing to adopt and also provides for specific notification procedures related to the notifications made to the WTO:
· When publishing a notice under Articles 2.9 or 5.6 of the TBT Agreement (a notice of intent to introduce a particular technical regulation or conformity assessment procedure in the case when a relevant international standard or relevant guide or recommendation issued by an international standardizing body does not exist), the Party shall include in this notice a statement describing the objective and rationale of the proposal and transmit this electronically to the other Part(y)(ies) through the TBT inquiry points at the time it makes its WTO notification, and shall allow at least 60 days for persons and the other Part(y)(ies) to make comments on this proposal.
· When making a notification under Articles 2.10 or 5.7 of the TBT Agreement (notification of adoption of a technical regulation or conformity assessment procedure due to urgent problems of safety, health, environmental protection or national security or threats thereof) the Party shall transmit the notification electronically to the other Part(y)(ies).
Parties are to publish responses to significant comments. The time period for the Chile-U.S. FTA is at the same time as the publication of the final technical regulation or conformity procedure, while in DR-CAFTA, these are to be published no later than this publication date.
DR-CAFTA includes a provision, absent from the Chile-U.S. FTA, that requires Parties to immediately notify the importer when detaining goods due to a perceived failure to comply with technical regulations.
These transparency provisions are, in both Agreements, to be implemented as soon as possible, no later than five years form the date of entry into force of the Agreement (for the Chile-U.S. FTA this would be January 1, 2009).
Committee on Technical Barriers to Trade: both the Chile-U.S. FTA and DR-CAFTA establish a TBT Committee that is to meet at least once a year, unless otherwise agreed. The functions of the TBT Committee include monitoring the implementation and administration of the Chapter, consulting on matters arising under the Chapter, reviewing the Chapter in light of developments under the WTO TBT Agreement, and reporting to the Commission on the implementation of the Chapter; addressing issues Parties raise with respect to the development, adoption, application or enforcement of standards, technical regulations or conformity assessment procedures; enhancing cooperation in the development and improvement of standards, technical regulations or conformity assessment procedures; facilitating sectoral cooperation among governmental and nongovernmental conformity assessment bodies, and exchanging information on developments in non-governmental, regional and multilateral fora; and taking any other steps Parties consider useful in assisting them in meeting the objectives of implementing the TBT Agreement and facilitating trade among the Parties. DR-CAFTA includes an additional element, adding the designing and proposal of mechanisms for technical assistance, as set forth under Article 11 of the WTO TBT Agreement.
Information Exchange: in both Agreements, Parties agree to provide information or explanation requested, pursuant to the provisions of the Chapter, within a reasonable amount of time. DR-CAFTA operationalizes “reasonable” as being within 60 days.
Definitions: both Agreements adopt the definitions of the TBT Agreement for the terms central government body, conformity assessment procedures, standard and technical regulation. DR-CAFTA specifies that the term TBT Agreement refers to the WTO Agreement on Technical Barriers to Trade.