498 Non-Tariff Barriers 3 34 OTHER NON-TARIFF BARRIERS ON TRADE IN GOODS in addition 10 customs duties and other duties and charges (ie. tariff barriers) and quantitative restrictions (Le. the first sub-category of non-tariff barriers) trade in goods may also be impeded by ‘other non-tariff barriers’. As the term indicates, this is a residual category of measures, actions or omissions, which restrict, to various degrees and in different ways, market access for goods.!% The category of ‘other non-tariff barriers’ includes, inter alia, technical barriers to trade, sanitary and phytosanitary measures, customs formalities and proce- dures, and government procurement laws and practices. Also, the unfair and arbitrary application of trade measures may constitute an important barrier to trade, However, not only action but also omission, and in particular the failure to inform about the applicable trade laws, regulations and procedures, promptly and accurately, may constituie a formidable barrier to trade, ‘This section addresses in turn the following ‘other non-tariff barriers’ to trade in goods: (1) lack of transparency: (2) unfair and arbitrary application of trade measures; (3) customs formalities and procedures; (4) government procurement laws and practices; and (5) other measures or actions, such as preshipment in spection, marks of origin, and measures relating to transit shipments. As men- tioned above, and due to their importance and detailed nature, the rules on tech nical barriers to wade and sanitary and phytosanitary measures are discussed, separately, in Chapters 13 and 14 of this book respectively.'°! Lack of Transparency As discussed above, lack of information, uncertainty or confusion with respect to the trade Jaws, regulations and procedures applicable in actual or potential export markets is an important barrier to trade, Therefore, WTO law provides for rules and procedures to ensure a high level of transparency of its Members’ trade laws, regulations and procedures. There are four kinds of relevant WTO rules and procedures: (1] the publicarion requirement; (2) the notification requirement; (3) the requirement to establish enguiry points; and (4) the trade policy review process Anticle X of the GATT 1994, entitled ‘Publication and Administration of Trade Regulations’. requires in its first paragraph that Members publish their laws, regulations, judicial decisions. administrative rulings of general application and international agreements relating to trade matters. Article X:1 does not prescribe in any derail how these laws, regulations, ete, have to he published, but it does Het Sew cut, Boat Caaneans sf te dnventone af None tari’ Meusans, Kore Behe Sec esarin. TSIMIASSIS Few Tesatcl 20) Novena 2001 HOE See below, pp NSE ind He480 Non- ‘ariff Barriers INTRODUCTION As mentioned in Chapter 6, not only tariff barriers but also a wide range of non- tariff barriers restrict trade.! While tariff harriers were systematically reduced! since the late 19405 as a result of successive rounds of tariff negotiations, non- tariff barriers have in recent decades gradually heeome an ever more prominent instrument of protection. The term ‘non-tariff barrier’ is not defined in WTO law, but this important residual category of barriers to trade can be understood 10 include all government imposed and sponsored actions or omissions that act as prohibitions or resuictions on trade, other than ordinary customs duties and other duties and charges on imports and exports.” Unlike tariff barriers, non-tariff barriers not only affect trade in goods but also trade in services.* This chapter deals in turn with: (1) quantitative restrictions on trade in goods; (2) ‘other non-tariff barriers’ on trade in goods; (3) market access barriers 10 wade in services; and (4) other barriers to trade in services. Note, however, that this chapter does not deal with two specific types of ‘other non-tariff barriers’ to trade in goods, namely, technical barriers to trade and sanitary and phytosani- (ary measures. Due to their importance and detailed nature, the rules on these other non-tariff barriers’ are discussed, separately, in Chapters 13 and 14 of this book respectively.’ While non-tariff barriers have hecome a prominent insuru- ment of protection, they often also serve important public policy objectives, such as public health, consumer safety and environmental protection. To the extent that they do so, their elimination or liberalisation may not be desir~ able at all. That is the case in particular, but not only, for the ‘other non-tariff barriers’ discussed in Chapters 13 and 14, WTO law regulates these other non- tariff barriers with a view to allowing their use but minimising discrimination and their adverse impact on trade. Finally, this chapter dogs not deal either with non-tariff barriers to trade 1e- sulting from the lack of effective protection of intellectual property rights. The WTO rules addressing these barriers, i.e. the WTO rules ensuring a minimum 1 Ini book. the eer noo-tarif hsaiee (NFB) encompasses the corm ann-taefl encase’ [NTA a com sport 2012, Fr and Bic Plies: A the ter won tai hari fi vege ad eter to in the ile of the WTO'S Work Ti {loser Law at Boa Fail Mdenseres ne dhe 24st Cenaury (W1D, 20123, Howe ‘ade si te tet “hunstacHlmacasine’ #8 also inctedes Barvievs ta trae olber thaw measures, such os she Hack of transparency, See Beli, pp A802 2 See also Ray Sansana anil Lee An dachson, Wdemtlying fowt-Tonff Rarviss: Evolution wf Miatera knee Toauke Reva. 2012, 405, nents ant Evkdence Fem che Dispaes [1928-20117 He hu carenily exist at the debte. ana The caren WTO amarvor ano Hho bil tay’ i a te mas a Ine Ines ele rete camenunications emnaing sersiees wampurs, shares BCAA Daiers ga exis Fr 4 See ble. pip BL Ws? nnd BOG481 21 6 This see Quantitative Restrictions on Trade in Goods level of protection and enforcement of intellectual property rights, are dealt with in Chapter 15 of this book.? QUANTITATIVE RESTRICTIONS ON TRADE IN GOODS Sree eR RE ELAR CHES I The archetypical non-tariff barrier to trade is a quantitative restriction on trade in goods. This section discusses: {1} the definition and types of quantitative re- striction on trade in goods; (2} the rules on quantitative restrictions; and (3) the administration of quantitative restrictions.® Definition and Types a meas- A quantitative restriction on trade in goods, also referred to as a ‘OR’, i ure that limits the quantity of a product that may be imported or exporied. A typical example of a quantitative restriction is a measure allowing the importa~ tion of a maximum of 1,000 tonnes of cocoa powder a year or a measure allow- ing the importation of a maximum of 450 tractors a year. While usually based on the number of units, weight or volume, quantitative restrictions may also be based on value, for example a limit on the importation of flowers to the value of €12 million per year. ‘There are different types of quantitative restriction: (1) a prohibition, or ban, on the importation or exportation of a product; such a prohibition may be ab- solute or conditional, i.e. only applicable when certain defined conditions are not fulfilled; (2) an import or export quota, ic. a measure, as the examples given above, indicating the quantity that may be imported or exported; a quota can be a global quota, a global quota allocated ameng countries or a bilateral quota; (2) import or export ficensing, as further discussed below,’ and (4} other quan- titative restrictions, such as a quantitative restriction made effective through State trading operations; a mixing regulation; a minimum price, triggering a quantitative restriction; and @ voluntary export restraint.” Confusingly perhaps. a tariff (rate) quota, or TRO is nof a quota in the strict sense of the term: it is nor a quantitative restriction.” A tariff quota is a quantity, which can be imported at a certain duty. The panel in US Line Pipe (2002) stated that a tariff quota involves the “application of a higher tariff rate to oe vomeledes sth a short amo spect art feremsal cremeaemt rewtrling unaitatve testo sions wa tae in oul, See hie. p95 svi for Trak Gods, Dacia afc ritatine Restrictions ope! 98 4 ete 294, Glew 1a Pracrdures fi Ui Hh 2 Sov Panel Report. EEC» ananas HL (29H yeon, 19h, Save hat thy GATT panel sept is or sdogned,499 Other Non-Tariff Barriers on Trade in Goods state that they have to be published: (1) ‘promptly’; and (2) ‘in such a manner as to cnable governments and traders to become acquainted with them’! The panel in EC = IT Products (2010) noted that Article Ni 1 addresses the due procs and than ensures those who need to be aware of certain krws, reulations, judicial decisions and administrative rulings of general application can hecome acquainted with them?! ss notion of notice hy requiring publication Usat is prompt With regard to the ‘promptness’ requirement, the panel in EC - IT Products {2010} considered that: the meaning of prompt is not an absolute concept, Le. a pre-set period of time applicable in all cases, Rather, an assessment of whether a measure has been published ‘promptly’, that is quickly’ and ‘without undue delay’, necessarily requires a case-by-case assessment. !°* In this case, the panel found that publication in the EU's Official Journal eight months after the measures were made effective was not ‘prompt’. However, the Panel noted that the measures were posted an an EU website prior to the date that they were made effective. The panel found that the latter publication was ‘prompt’ but that it was not ‘in such a manner as to enable governments and traders to become acquainted” with the measures at issue, With regard to the concept of ‘administrative ruling of general application’, note that, to the extent that an administrative ruling is addressed to a specific company or applied to a specific shipment, it cannot be qualified as an admin ative ruling of general application. However, to the extent that an admini vative ruling affects an unidentified number of economic operators, it ean be qualified as a ruling of general application. The fact that a measure is country specific does not preclude the possibility of ft being an administrative ruling of general application." In EC ~ IT Products (2010), the question arose whether a CNEN (i.e. an explanatory note to the EU's Customs Nomenclature} could be considered to be a measure to which Article X:1 applied. The panel found that: the instruments covered by Article X:1 range fiom imperative rules of conduct to the ex ercise of influence or an authoritative pronouncement by certain authoritative hodies, Ac- cordingly. we consider that the coverage of Anicle X:t extends to instruments with a legree of euthoritativencss issued hy cervain fegislative, administrative or judicial bodies. This does not mean, however, that they have 10 he ‘binding’ under domestic aw, Hence, the Nove at ese senuibemens a st expliiy spply to inemasionsl cows be he assuned he they ase apy i thy ome ice So hs a eg Sewers niscose conidia ire veh ses iuement i eerie be cute ote ple incest or which sould pret the tei Interests of inisularenietpases, sae 8 pn Nel last semteace, ofthe Gi8tT 104. See an Panel Repin, Tailed serene (Philippines) (20011, path, 7. 10s Pane! Repon FC ~ AF Pradwers 200% pata. 7 1035, Hs foi. pare. 2.1024, 105 See thi, para. 7.0 7 1519971, 1. Sow ae glans Body Repart, BC = Pele See \upellate Budy Report, US ~ U 1 88. 12113, Rote seat the pal Fepon (200 sae tats same eens sha ssnutlt ase Amicte Not aequiemenspplios ta lyst sot se si al spplivatien. ira sowie! exten administerive rulings in individ casos shove such pains establish ve nse pein 1 cri apical im fare cases.” See Panel Reon. lemon Hii (2998F para. 4.3288500 Non-Tariff Barriers fact that CNENS are not legally binding under FC law does not preclude them from being. contemplated by the terms ‘laws, regulations, judicial decisions [or} administrative nalings’ under Article Not. The panel in Thaitand ~ Cigarenes (Philippines) (2011) found that the explana~ tion given by the Thai Excise Department of the methodology for calculating the minimum retail sales prices (MRSPs} for imported and domestic cigarenes ap- plied ‘prospectively and generally’ 10 all potential sales of cigarettes. Therefore, the panel considered that this methodology for determining the MRSPs t be a measure 16 which Article X:1 applied.!! In addition to Article X:1, Article X:2 of the GATT 1994 also concerns the publication of trade measures of general application. Article X:2 provides: No measure of general application taken by any [Member] effecting an advance in a rate of duty or other charge on imports under an established and uniform practice, or imposing a new or more burdensome requirement, restriction or prohibition on imports, or on the wan fer of payments therefor, shall be enforced before such measure has been officially published Pursuant to Article X:2, Members may not enforce measures of general ap- plication, imposing new or higher barriers to trade, before they are officially published.'® Such trade measures will only take effect after official publica tion.'!® With respect to the rationale of Article X:2, the Appellate Body noted in US ~ Underwear (1997) Aniicle X:2, General Agreement, nray be seen ta embody a principle of fundamental imporsance ~ that of promoting full disclosure of governmental acts affecting Members and private persons and entesprises, whether of domestic or foreign nationality, The relevant, policy principle is widely known as the principle of transparency and has obviously due process dimensions. The essential implication is that Members and other persons affected, or likely to be affected, hy governmental measures imposing restraints, requirements and other burdens, should have a reasonable opportunity to acquire authentic information about such measures and accordingly to protect and adjust their activities or alternatively to seek modification of such measures.!”" Note that the GATT 1994 and other WTO agreements also require Members to publish, or give public notice of, certain specific trade measures of general ap- plication,'? 107 Panel Repon. EC ~ IF Praduets £2070} para. 7.1027. oi Panel Repon, Thain ~ Cigurenes (Pbitiypines} £20) 1) para. 1-779, Mave thatthe panel én Chine = Rave Maveriahs (20521 foond that China's flue to set a quots amount was i measure ta which Article XLT ap pled, Ste Panel Reports, China = Reve Swevils (2012, pn, 1.80, tos The pone! in EC ~ FF Produers 2011) raie tar ever a single fastance prubliction could amount v0 # violation of Article X:2, See Pane Report, EC = 17 Products 20% 1 pats 7.1129, Note that Article Xt eels to "publication wile Amicle X:2relers 18 “oficial publication 150 Nake riot, si resp to she iste uf He rmpactive fleet oF tse missus, ee Appellee Rody ele ES Unernsar {19971 tas Atco Ni2 does no se Tnsice des wet reset te permis giving reroastive elec rage eestecnive measures, Where no autho exists to Ti ws trale-rosicive menses, shat desieenes fs ot ceed hy pulsing ie measne some ime het #S icra application, See Appeiate Body Repos, US — Uauerweur #39974, 20 Ha did N12. See ext Anise SULT of she GATE 1994 lenncerniegs quvtas aud rarif qumnas) ane Article 2.1 a dhe THT gscement (eunceming tecnica regalanons), See hens, BO.01 Other Non-Tatiff Barriers on Trade in Goods As noted above, WTO law also provides fora uotificarion requirement. Almost all WTO agreements require Members to notify the WTO of measures or actions covered by these agreements. A typical example of such @ notification require ment is found in Article 12.6 of the Agreement on Sajequards, whieh states: Members shal novity promptly the Coniitiee on Safeguards of their Laws, regulations and administrative procedures relating to saleuard measures as well as any modifications made to them.!"? A number of WTO agreements also provide for the possibility for a Member to notify measures or actions of other Members, which the latter failed to no: tify." The 1993 Decision on Notification Procedures lists in an annex the many measures and actions Members must notify to the WTO.'" To improve the operation of the notification requirements under almost all WTO agree- ments, and thereby contribute to the transparency of Members’ trade policies and measures, a central registry of notifications has been established under the responsibility of the WTO Secretariat. This central registry records the measures notified and the information provided by Members with respect to the purpose of the measure, its trade coverage and the requirement under which it has been notified. The central registry cross-references its records of notifications by Members and their obligations." Information in the central registry regarding individual notifications is made available, on request, to any Member entitled to receive the notification concerned. The central registry informs each Member annually of the regular notification obligations to which that Member will be expected to respond in the course of the following year. It must be noted that many Members, and especially developing-country Members, fail to comply with one or more of their notification requirements, Often this failure is due to a lack of administrative capacity and WTO expertise within the relevant mini: tries of the Members concerned. '!? In addition to a publication requirement and a notification requirement, some WTO agreements also require Members to establish national enquiry points where further information and relevant documents on certain trade laws and regulations can be obtained by other Members or interested parties. This is, for \se with regard to technical barriers to trade and SPS measures, example, the as discussed in Chapters 13 and 14 of this book respectively. nawind’s Suc noricatons are vite refer a8 cross soul 15 Seeey, Article LER uP the age 5 flacsian nn Nusiivaton Bracesures.abopteé Be the Trade Sesoainions Carnmiiree an {3 Hevetnber 2% sn sees 10 she Final tet Emaiving dhe Resus of #hs Cana 136 Sew i, I. [27 On technica! insistance i this respect to developing-cesiniy M hotiicainn reiremeis may alsy he die 0 ack oF an cents snfbers. sew shoe,» 4, ete tha the fait dee of Menor 0 samp fh doing sion of 9 santetion For not ng sa slow. jp. 8b and502 3.2 Non-Tariff Barriers Finally, the transparency of Members’ trade policies, legislation and pro dures is also advanced considerably by the periodic trade policy reviews under the Trade Policy Review Mechanism. This mechanism is discussed in detail in Chapter 2 of this boak.!? Questions and Assignments 2.5 Why is abe lack of transparency with respect to a counnry’s trade Jaws, regulations and other measures of general application, a formidable barrier to trade in goods? How docs WTO Jaw seek to ensure transparency with respect to its Members’ trade measures of general application? Unfair and Arbitrary Application of Trade Measures vis clear that the unfair and arbitrary application of national trade measures, and the degree of uncertainty and unpredictability this generates for other Mem- bers and traders, constitutes a significant barrier to trade ~ in the same way as the lack of transparency discussed above, To ensure minimum standards for wansparency and procedural fairness in the administration of national trade measures, Article X:3 of the GATT 1994 provides for: (1) a requirement of uniform, impartial and reasonable administration of national trade measures; and (2) a requirement for procedures for the objective and impartial review of the administration of national customs rules, The first of these two requirements is set out in Article X:3(a) of the GATT 1994, which provides: Each [Member] shall administer in a uniform, impartial and reasonable manner all its tows, regulations, decisions and rulings of de kind deseribed in paragraph 1 of this Article The panel in Thailand ~ Cigarettes (Philippines) (2011) ruled that to establish a violation of Article X:3(a) a complaining party must therefore show that the responding Member administers the legal instraments of the kind described in Article X:1 ina manner that is ston-unifirm, partial andfor unreasonable ... The obligations of uniformity, impartiality and reasonableness are legally independent and the WTO Members are obliged to comply with all three require ments, This means that a violation of any of the three obligations will lead 10 a violation of the obligations under Article X:3(2)."" As the words of Article X:3{a} clearly indi impartiality and reasonableness’ do not apply to the laws, regulations, decisions te, the requirements of “uniformity. and rulings themselves, but rather to the administration of those laws, regula- tions, decisions and rulings.'?? To the extent that these measures themselves are 119. See abou, p. 9, 120. See Appellate Body Kenn, US = Str U1 Panel Report, Thaitand ~ Cigarettes SPIITIPIBeSS AIOE PARAS. POH 7.862, 22 See Apmlite Healy Reywin, EC Bananas BI0997%, para, 200. See also Panel sai Paned Repo, BS = Carznsina-Resasens Ser? Sanses Renew 120047 i, para 3 BCs Paar 65958503 Other Non-Tariff Barriers on Trade in Goods discriminatory, they may be found inconsistent with, for example, Articles [:1, ML2 oF ka of the GATT 1994.""" However, as the Appellate Body clarified in EC ~ Selected Customs Matters (20061. it is possible to challenge under Article X:3(a] the substantive coment of a legal instrument that regulates the adminis- tration of a law. regulation, decision ar ruling falling under Article X:1.14 The Appellate Body stated: Under Aricle X3ta). a distinction mast be niade between the leva instrument being ad- ministered and the egal instrument that regulates the application or implemencation of that instrument, While the substantive content of the legal instrument being administered is nor challengeable under Article X:3{a), ve see no reason why a legal instrument that regulates the application or implementation of that instrument cannot be examined under Article X-3fa} if itis alleged to lead to a lack of uniform, impartial, or reasonable administration of that legal instrument.' Under Article X:3(a}, one can thus challenge: (1) the manner in which legal instruments of the kind falling under Article X:1 are applied or implemented in particular cases; and (2) legal instruments that regulate such application or implementation. Note that also administrative processes leading to administra~ tive decisions have been found to fall within the scope of application of Article X:3fa). 76 With regard to the requirement that national trade rules be applied in a uni- form manner (the requirement of ‘uniform administration’), the panel in US Stainless Stee! (Korea) (2001) stated: (THhe requirement of uniform administration of laws and regulations must he understood to mean uniformity of treatment in respect of persons similarly situated: it cannot be under stuod to require ideatical results where relevant Facts differ"? Furthermore, the Appellate Body ruled in EC ~ Selected Customs Matters (2006) that Article X:3{@) of the GATT 1994 does not contemplate uniformity of administrative proc- esses. In oifier words, non-uniformity or differences in administrative processes do not. by themselves, constitute a violation of Article X:3la}... {U]nder Article X:3fa), itis the applica tion of a legal instrument .. that is required 10 be uniform, but not the processes leading to administrative decisions, or the cools that might be used ia the exercise of administration."?° Note that, in China ~ Rae Materials (2012), the panel found that a system under which export quotas were allocated by thirty-two local governmental entities which were not provided with any guidelines for the allocation of such export quotas, posed a very real risk to the interests of relevant parties such 123 See who, pp. 320-350 and 39 124 See Appellate Boul: Repor, LE = Srleried Customs Aditeers (20001, para. 200 See ssw Pate Repo Argentina = Hes wid Seether (20014, pas. IVT 1.72 125. Anpelline Body Report, EC = Setvie Customs Mareers 20061, para, 2001 126 See Panel Repon, Taitend ~ Cigarettes Piiléppies} 201 1h pai, 7.873. 127 Panel Repun, US ~ Suandess Stevt fAeora) 12001), nace, 6.5) 28 Anpelinte Body Reps EC ~ Secu Customs Awrers 20085, para 224504 Non-Tariff Barriers thar this necessarily leads to ‘non-uniform’ administration inconsistently with Article X:3(a).? With respect to the requiremem that national trade niles he applied in an impartial manner (the requirement of impanial administration’), the panel in Thailand ~ Cigarenies (Phitippines} (2011) addressed the question whether the Features of the administrative process at issue, namely. the fact that certain Thai government officials in charge of customs and tax determinations also serve on the board of directors of the Thai Tobacco Monopoly to which these customs and k of “impartial administration’! The tax determinations applied, leads 1 a lac panel started out by ruling that: [bjased on the ordinary meaning .. impartial administration would appear to mean the application or implementation of the relevant laws and regulations in a fair, unbiased and unprejudiced manner." After considering in detail the evidence submitted by the complainant, the Phil ippines, the panel concluded tha Unless it can be shown that these determinations are made because of the very presence of the government officials serving also as [Thai Tobacco Monopoly] directors, we are not ina position to find that the appointment of dual function officials led to a partial administra- tion of customs andl tax rules." With respect to the requirement that national trade rules be applied in a rea~ dministration’), the panel in sonable manner (the requirement of ‘reasonable Argentina ~ Hides and Leather (2001) found thar: a process aimed at assuring the proper Classification of products, but which inherently contains the possibility of revealing confidential business information, is an unreasonable ananner of administering the laws, regulations and rules identified in Article X:1 and there- fore is inconsistent with Article X:3{a)." Note that, in Dominican Republic ~ Import and Sale of Cigarettes (2005), the panel found that the Dominican Republic had applied the provisions regarding 129. See Panel Repons. Chine ~ Raw Materials (2012), pra, 7.752. Note that the Appellate Body declared this Finding moot and of no legal effect because the panel made this finding regarding a calm not prmperty idemited sm the panel request. See Appellate Body Reports, Ching ~ Rats Afateriats (2012), para. 23 130 See Panel Report. Thailand ~ Cigarees (Pritippines} (2011). para, 7.898, 111 hi. para, 7.889, 122 bie. pra. 7.904, A similar situation arose in Angeatinn ~ Hides and (eather (2001). At isaae in that ease wast Argentinian gelation providing forthe participation af representatives af the daniesic tammers sssnerstion. ADICHA, #8 the customs sngpeetion procedares for hes destined for expan’ aperations. The representatives of ADICKEA “assist Augeatina’e castouns authorities in the plication and enfotceient fof the nsles nn eustoms classiicatin, valuation andl export dies, The panet in shat ease ruled thatthe Argentinian miessure wis mnconsisient with she eeygeinent of inspamiaty’ af Artele X;3fa, The panel pote sat ateypiste safoussrs enuld remedy this sintion, Hasenver, se Safegnands sere, ssvorting the panel. not ia place. See Panel Report, Ageatina ~ Hides and feather (2001) patss. HE.99-11 401, fn (Chisa ~ Row Materils (2022) he pac! examine! the elas thn te invaeenent a the Cina Chanser of Commerce nf Metals, Mievils and Chemicals Iniparters ant Exporters (CCRC) in aalinistring the expo ‘quot on various ate msaneials consrinuted pail adlasnstrainn inconsistent sh Aticle Xa, The panel vanelaied that ef The sevite eremetanees. A Ai ot. See Bane! Reps, China ~ Row Abascriais 12012. para, 778 114 ancl Report, Argentina = Hides and Bewther 2004), pa. 19K505 Other Noa-Tariff Barriers on Trade in the determination of the tax base for the imposition of tax on cigarettes in an unreasonable manner, According to the panel {uhe fer shar the Dominican Republic authorities did nor support its decisions regarding Ae determination of the tax base for imported cigarettes by resorting to the rules in force si the Hime and that they decided! 10 disregaed retail selling prices of imported cigarettes, is not in accordance with reason’, “having sound judgement, ‘sensible’, within the limits of reason’, nor ‘articulate’! ‘The panel in Thailand - Cigarestes (Philippines) (2011) examined whether the delays in appeals of customs valuation determinations constituted ‘unreasonable administration’ of the Thai customs laws. The panel found that, although the “requirement of reasonable administration’ of Article X:3{a) does not set a spe~ cific time-limit for administrative review process, the delays at issue (the appeals process took over seven years} resulted in the administration of the Thai customs law in an unreasonable manner and were iticonsistent with Article X:3(a).!°5 In China ~ Raw Materials (2012), the pane! found that a system under which ex- port quotas were allocated by thirty-two local governmental entities which were not provided with any guidelines for the allocation of such export quotas, posed a very real risk to the interests of relevant parties such that this necessarily leads to ‘unreasonable’ administration inconsistent with Article X:3(a)."6 To conclude on Article X:3(a} of the GATT 1994, four more observations of a general nature must be made. First, the panel in Argentina - Hides and Leather (2001) clarified the nature of the obligation under Article X-3(a) by distinguish- ing between transparency between WTO Members and transparency with respect to individual traders. According to that panel, unlike for other rules under the GATT 1994, for Article X:3{a); the test generally will not be whether there has been discriminatory treatment in favour of exports to ane Member refative to another, Indeed, the focus is on the treatment accorded by government authorities to the rraders in question.'” Secondly, the same panel in Argentina ~ Hides and Leather (2001) ruled that while a showing of trade damage is nor required, Article X:3(a) requires an examination of the real effect that a measure might have on traders operating in the commercial world. The assessment of a violation of Article X:3la) can therefore involve an examination of whether there is a possible impact an the competitive situation due to alleged partiality, unreasonableness or lack of uni- formity in the application of a fiw. regulation, decision or ruling." 134 Panel Report Baminica Republi’ = aspire Sale oF Cigarettes 2005), para, 7 125 Sow Panel Report. Tutland ~ Cigaeties (Ph para. 7969) 1M Soe Panel Reports, China ~ Raw Materies (20124 pats, 774 Nose thar Dhe Appellate Body declaeed his Finging avo: and al no legal effect hecawse the pte se His ding regain a etal not property fdentitied i the panel request. See Appeite Hey Kegines. Chins ~ Rae Materials (20122, para, 29 17 See Panel Report. Argentina ~ Hides uit ative 12081, ya. 1476. Emphasis adger 108 See iid, aes, 1177506 Non-Tariff Barriers Thirdly, as the panel in US - Hot-Rolled Stecl (2001) ruled, for a finding of Violation of Article X:3fa), a Member's actions would have to have ‘a significant impact on the overall administration of the law, and not simply on the outcome in the single case in question’! Fourthly, the Appellate Body in US - Git Country Tubular Goods Sunset Re~ riews 2004] cautioned WTO Members on bringing » case under Article X:3{a) We observe, first. that allegations that the conduct of y WTO Member is biased or unreason- able are serious under any circumstances. Such allegations should not be brought tightly, cor in a subsidiary fashion." The requirements of uniform, impartial and reasonable administration of na tional trade measures are also reflected in WTO agreements other than the GATT 1994, Article 1.3 of the Import Licensing Agreement, for example, provides: The rules for import licensing, procedures shal) be neutral in application and administered in a fair and equitable manner.'*! The Appellate Body ruled in EC - Bananas Ill (1997) that Article 1.3 of the Import Licensing Agreement and Article X:3la) of the GATT 1994 have ‘identi- cal coverage’."*? In disputes invalving the administration of import-licensing procedures, Article 1.3 of the /mport Licensing Agreement should be applied first since the Import Licensing Agreement deals specifically, and in detail, with the administration of impart-licensing procedures.'"" Apart from the requirements of Article X:3(a) that national trade measures be administered in a uniform, impartial and reasonable manner, Article X:3 contains ~ as noted above ~ a second rule to ensure transparency and procedural fairness in the administration of trade measures, namely, the requirement of procedures for the objective and impartial review, and possible correction, of the administration of national customs ruies. Article X:3(b) of the GATT 1994 provides: Each [Member] shall maintain, or institute as soon as practicable, judicial, arbitral or ad~ ministrative tribunals or procedures for the purpose, inter alia, of the prompt review and correction of administrative action relating. to customs mates, In EC ~ Selected Customs Matters (2006), the panel reflected on the function of Article X:3(b) as follows: JA] due process theme underlies Article X of the GATT 1994. In the Panel's view, this theme suggests that an aim of the revie 3(b) of the GATT 1994 is ty ensure that a trader who has been adversely alfected by a decision of an administrative provided for under Anicle X: 199 Pomel Rep, US = Mos-Rodlet Steel BOMB. para. 72% 1 Appellate Bndy Repon. US ~ Oi Counties Fable Gass Swset Reviews (2004. pata 217, See abo Pane Report Thaitend « Ciyarites (Philippines! 22013). para, LNA LiL See alse above, p. 495, Via Appellate Body Report. £0 ~ Bananas par, 208 fae Appellate Body noved ce ference: in soning hencen Anil 1.) the Inport Liecesing Agereoarys al Arike XH of the GALTY 1994, but conver tbat as phrases ae. forall practical purpose, interchangeable V1) See ii, pra, 204507 33 Other Non-Tariff Barriers on Trade in Goods agency has the ability to have that adverse decision reviewed hy a tribunal or procedure that is independent from the ageney that originally tok the adverse decision.!" Anticle X-3{b} does not presetibe one particular type of review or correction. tt refers very broadly to ‘judicial, arbitral or administrative tribunals or procedures’ Members thus have a significant degree of discretion in complying with the ob- ligation under Article X:3(b}. However, Article X:3(b) does explicitly require that the “tribunals or procedures’ be iadependent of the agencies entrusted with admin- istrative enforcement" and Article X:3(c) calls for the review of the ‘tribunals oF procedures’ to be ‘objective and impartial." Furthermore, Article X:3(b} re- quires that the review or correction be ‘prompt’. As discussed above, the panel in Thailand - Cigarettes (Philippines) (2011) was confromted with a situation in which there were excessive delays in the administrative appeals process; this proc- ss took over seven years and was the prerequisite step necessary to reach the Thai Tax Court. The panel ruled that Thailand had ‘failed to maintain an independent tribunal for the prompt review of customs value determinations inconsistently with Article X:3(by’.4? Note that Article X:3(b] refers to ‘administrative action relating to customs matters’, Le, the administration of customs rules, and not to the administration of the broader category of ‘laws, regulations, decisions and rulings relating to trade matters’ or, in short, the administration of trade rules.'** In Thailand Cigarettes (Philippines) (2C11), the Appellate Body agreed with the panel in that case that ‘administrative action relating to customs matters’ encompasses ‘a wide range of acts applying legal instruments that have a rational relationship with customs matters’! Questions and Assignments 7.6 Does Article X:3fa) of the GATT 1994 require that laws, regulations, decisions and mulings relating to trade in goods are ‘uniform, impartial and reasonable’? Inspired by the case law to date, give a few examples of inconsistency with Article X:3(s). Does Article X:3{b} re- quire Members to provide for independent judicial review of all government legislation and ures relating to trade in goods? Dovs the obligation under Articie X:3(b) differ from the Gars? obligation under Article VE2 of 1 Customs Formalities and Procedures Another important type of ‘other non-tariff barrier’ to trade in goods are cus: roms formalities and procedures. i.e. administrative harriers to trade. The losses Lat Panel Repost, BC = Seleetad Customts Marrs (2006, paca. 7.536, rented by the aninistatts 15 The decisions of dhe atihunals ne processes cancemmed ms! be imple yore, ies He dovisans ate appesied. $e Aatcle S21) {i For siuavions in soci ee prscedunes ace ant filly or aematly independent of the ayencies entrasies ih siminisistive enforcement see Article Xft of the GATT 1994, EF Panui Report, Thailand = Cignretes (Philippines) (200, para, 7-201. 114 Soci this pect the ‘paralle aad broader vblgation under Avvele VED of the GATS, discussed bela. p. 894 19 Appuilate Bas Repo. Thailand ~ Cipavetes {Phidigpines) 1201 Th pa, 202,Non-Tariff Barriers that traders suffer through delays at borders, complicated and/or unnecessary documentation requirements and lack of automation of customs procedures are estimated 10 exceed, in many cases, the costs of customs duties. Ina speech at the World Customs Organization in June 2011, WTO Director-General Pascal Lamy noted sate documents and ¢ For OECD countries it currently takes an average about four se ing the goods in an average of ten days at an average cost of about $1,100 per container. By contrast, in sub-Saharan Africa almost double the number of documents are required and koods take from 32 days (for exports) 10 38 days (for imports) to clear at an average cost per container of herween $2,000 {for exports} and $2,500 (for imports), The overall world champion at trade facilitation is Singapore, where four documents are required and goods are cleared in, at most, five days at an average cost of around $456 per container. At the other end of the scale are many of the low-income developing countries. in particular the landlocked developing countries, whose trade-processing costs can mushroom as a result uf the effort required to move goods in transit by road or rail through their neighbours to their nearest internationa} port, According to recent research, every extra day required t0 ready goods for import or export decreases trade by around 49%," Article VIN:i{c} of the GATT 1994 states: ‘The [Members}... recognize the need for minimizing the incidence and complexity of impart and export formalities and for decreasing and simplifying impor and export documentation requirements Nevertheless, WTO law currently contains few rules on customs formalities and procedures aimed at mitigating their adverse impact on trade. Article VIII:2 requires Members, in very general terms, to ‘review’ the operation of their laws and regulations in light of the acknowledged need for: {1} minimising the inci- dence and complexity of customs formalities; and (2) decreasing and simplify- ing documentation requirements. Article VII:3 of the GATT 1994 furthermore requires penalties for breaches of customs regulations and procedural requite- ments to be proportional. Members may not impose substantial penalties for minor breaches of customs regulations or procedural requirements In view of the paucity of substantive WTO rules with respect to customs for- malities and procedures, the 1996 Singapore Ministerial Conference directed the Council for Trade in Goods ‘to undertake exploratory and analytical work ... on the simplification of trade procedures in order to assess the scope for WTO rules in this area’.'® The negotiations on simplification of wade procedures, com- monly referred to as ‘trade faciliration’, are currently part of the Doha Round negotiations. The negotiations on “trade factitation’ aim at clarifying and 150 Speech at the Wosld Castomts Maganizzion ia Brussels om 24 ume 2011 9sste anes Anes « 151 Ministerial Conference, Siagnpore Mtinistersa! Beetarain,anloqtcil 1) Deveunbcr 1996. WHAMRIOYDEC pra. 152. Sew Ministerial Conference, Doh Miniseniot Berlaraaian, adapred 14 Nuvemnber 2091, ACEMINIOTDEC para, 27: General Comet, Doh Wark Plagiaurne. Decision adnjted on nus 2008, WHA saved 2 August 2008, para. UU Hy a tuans on ‘sae Inviitotn” te Ae agenda oF He Doar Rnune ee ale alot 989. clamor decision, WTO Members aed a Rego509 34 Other Non-Tarilf Barriers on Trade in Goods improving the relevant provisions of the GATT 1994, and in particular Article ance technical assistance and VII thereo!.!”! These negotiations also aim to en capacity building in this area. It is important to note that, for the first time in GATTIWTO negotiations, an explicit link is made between the adoption of new WTO obligations and the technical assistance, which developing-country Mem- bers in particular will need to implement new obligations. At present, the cost of moving trade worldwide is, according to the WTO Secretariat, roughly 10 per cent of the value of trade." By cutting red tape at the border, standardising customs procedures, improving customs ‘productivity’ and limiting the scope for corruption, a WTO agreement on ‘trade facilitation’ could bring down this cost to 5 per cent.'%* Questions and Assignments 7.7 Are customs procedures and formalities significant barriers (0 trade? Are there any specific WTO rules on customs procedures and formalities? Discuss the ‘trade facilitation” negotia tions conducted since 2004 in the context of the Doha Round. Government Procurement Laws and Practices National laws and/or practices relating to the procurement of goods by a gov- ernment for its own use are often significant barriers to trade, Under such laws or practices, governments frequently buy domestic products rather than im- ported products. ft is undisputed that a government can most effectively ensure hest value for money’ by purchasing goods (and services} through an open and non-discritninatory procurement process. However, governments often use public procurement to support the domestic industry or to promote employment As discussed above, the national treatment obiigation of Article Ill:4 of the GATT 1994 does not apply to government procurement Jaws and practices." As government procurement typically represents between 15 and 20 per cent of GDP,” it is clear that the absence of this and other multilateral disciplines gnificant gap in the multilateral trading system and leaves a con- represents as siderable source of barriers to trade unaddressed, The plurilateral WTO Agreement on Government Procurement provides for some disciplines with respect to government procurement of goods as well as 1 eas fe bole 131 Also on the agenda af Me trade Fcilitatinn® negotiations are Anticle W Bir pith am Amicie % (Publication ane Admmniseation af ade Realty sr stow. gh SUA 154 Sev speech at (TU Director-General Paseal Lamy atthe mteeting of ACP Mision Trade i Brussels on {Hciohee 1012, ssswrsseo-orafenglish/news.sisppl_efsppl256,1 hn 195 See Hid For an overvisy of the eutent stave af play oF ere Fiat soe Negariatng sup unt Trae aciitanion, Drap Considaret Neqatation Fest trevisiont, P Jeadated 2 stuber 2012 156 See Amicle Hl:sfal of the GATT 1994; and abo, p. 286 15? the total sige of the gasermnens provement sector tas gstinate hy the DELL sv be sy Ae ge fon Peluso Ke Ds 520 per cen of GDM aceoss OECD and ton-OECD ecanomies, Se Re A wh aid A Miller, Assessing te Value of Future accessions tn the WTO Aureemes ey Gaver Pracaee Paw ERSD-201 1-15 [WTO, 20111 2 1 HGP), Stat Warkin510 Non-Tariff Barriers, services. However, it does so only for the forty-two Members that are currently a party to this Agreement." The Agreement on Government Procurement applies co the laws. regulations, procedures and practices regarding procure- ment by those government bodies which @ party has listed in Appendix | to the Agreement.! Furthermore, for the Agreement to apply, the government procurement contract must be worth more than a specified threshold value." The key discipline provided for in the plurilateral Agreement on Government ¢ [Il:}[a) of the Agreement on Govern: Procurement is non-discrimination. Artic! ment Procurement sets out a national weatment obligation; Article Il:1(b) sets out an MEN treatment obligation."°! Furthermore, in order to ensure that these non-discrimination obligations are abided by, the Agreement also provides for rules to ensure that laws, regulations, procedures and practices regarding gov- ernment procurement are transparent." On 15 December 2011, the parties to the Agreement agreed in principle on a revision thereof." This revision aims at making the provisions of the Agreement more user-friendly and adapting them to recent developments in government procurement practices (such as the use of electronic tools in the procurement process). The revised Agreement also includes more explicit special and differential treatment provisions, so as to fa~ cilitate developing-country Members to become a party to the Agreement. Most importantly, however, the revised Agreement provides for a significantly ex- tended coverage. The WTO Secretariat has estimated the gains in market access as a result of the extended coverage of the Agreement are between US$8O and 100 billion annually." These gains result from lower thresholds and additions of new entities and sectors to the parties’ lists in Appendix I to the Agreement, On 30 March 2012, the revised Agreement on Government Procurement was formally adopted.'® It deserves to be stressed again that the Agreement on Government Pro- curement discussed above is a plurilateral agreement, which applies to only 158 ‘The parties to the Agreeten? on Gorevnent Procurement currently are: Armes, Canada, Chinese Tape the Burapean Union an is twenty-seven emf Sttcs, Hong Kong China cland Israel, Japan, Lech= tenstein. the Metheriands with respect 10 Arsha, Norway. SIngepore, South Korea, Switzer. and the United States. Accession negations are ude way wit, inter ali, China, New Zegiand and Uke 189 See. inthis respect. Panel Report, Kur ~ Procurement {2000 in whi the question arose whether she Korean Aispot Cansiacton Ahoy. the Korean Aipors Authority and the Iuchon. International Atpon Corporation were sitin the scape of Koreas list of ‘entra government entities as specified in Keren’ Schedule in Appendix {to the Agreemien! on Gavenument Procure 160. See Anite Ea of the Agreement om Gorennntent Facuremica, ky Appeudix 19 rhe Agreement each panty species relevant thresh 1) Note that these non-iscrimavation ubligations out apple berween dhe aries tthe Aggeement 162. See Anticles VIE 10 XVL of he Agreement an Gorermniens Procurement 163. See Minisierial-I evel Meeting ofthe Committee on Gavermnyent Pinearement on 15 December 2011. Devi= Vo} fhe Agrewoven! ot Garerumend Procure sion ur the Ouresoes the Negutiations ender Amick X ment, GPAITI2, date 16 Deceather 2011 ot See wows sto orplenitishliatop cfsproe.efiegatiations eh. 165, See Commitee on Government Procurement, Adupron of tke Results uf se Negetutions under Arte XXIV ofthe Agreemens on Gavernmen Procurcieent. Falowing Theie Verification and Review. as Rogucred bh the Ministerio! Decision of 15 Beveniber 211 (GPACT 124 Paragront 8. GPAIL3. dated 2 Apn 2012 “The revised Agreement will eater into farce thingy days alter tworitds aF the partes haxe deposited ee ments oF acceptancesu Other Non-Tariff Barriers on Trade in Goods forty-two Members, none of which is a developing-country Member." In the 2001 Doha Ministerial Declaration, Members expressly recognised the case for a multilareral agreement on transparency in government procurement, !6” However. in the years that followed, they failed to agree on the modalities of the negotiations on such a multilateral agreement, and transparency on govern- ment procurement was thus never included in the Dobia Round agenda," Many developing-country Members were concerned about their ability t0 engage “successfully” in such negotiations and 10 implement the new international commitments resulting from these negotiations. Questions and Assignments 7.8 Why is the plurilateral Agreement on Goverameat Procurement an important agreement? What are the basic disciplines set out in this Agreement? Did the 2012 revision bring about significant changes to the Agreement? Can the ministry of defence of the country of whicl you are a national discriminate against army boots trom other WTO Members when buying 100,000 pairs of hots? Other Measures and Actions In addition to technical barriers to trade and SPS measures, the lack of transpar- ency, unfair and arbitrary application of trade rules, customs formalities and Procedures, and government procurement laws and practices, the category of ‘other non-tariff barriers’ to trade in goods also includes many other measures or actions, or the lack thereof, This section brieily addresses the following ‘other non-tariff barriers’: (1) preshipment inspection; (2) marks of origin; (3) measures relating (0 transit shipments; (4) operations of State trading enterprises; (5) trade- related investment measures; and (6) exchange controls ot exchange restrictions, Preshipment inspection is the practice of employing private companies to check the price, quantity, quality and/or the customs classification of goods before their shipment to the importing couniry.'® Preshipment inspection is primarily used by developing-country Members 1 prevent commercial fraud and evasion of customs duties, Preshipment inspection is used to compensate for inadequacies in national customs administrations. While certainly beneficial, the problem with preshipment inspection is that it may give rise to unnecessary delays or unequal treatment, and thus constitute a barrier to trade. The WTO. Agreement on Preshipment Inspection seis out obligations for both importing 166 China i tikely 1 be the frst developing-counu 164 pais 1 the Agreement on Goren serial Conference, Doha Ministerid Declaeatso a 20. fist step in this dietion was taken a he 195 Singapoee Msteral Conterence See Ministerial Conterence, Singayare Ministerad Declaration anyied +? Decent WIMINGGIDEC. pata. 27 ral Council, Hoha Wass Programme, Decision diy i | Asus! 2004, WT/LISP9, dated ast 2008, para. tg 69 See Anicte 2 of the Agreement on Preshipmens lespec niet 2001, ST/MINIDIDECH. paraNon-Tariff Barriers Members using preshipment inspection and the exporting Members on whose territory the inspection is carried ot The importing Members using preshipment inspection must ensure, fnter alia, that: (1) preshipment inspection activities are carried out in a non-diseriminatory manner;'”" (2) preshipment inspection activities are carried out in a transparent manner;"7! (3) the companies carrying out the inspection respect the confidenti- ality of business information received in the course of the preshipment inspec- tion:"”? and {4) the companies carrying out the inspection avoid unreasonable delays in the inspection of shipments.'”? The exporting Members on whose territory the preshipment inspection is car- ried out must ensure non-discrimination and tansparency with regard to their Jaws and regulations relating to preshipment inspection activities.”4 The Agree- ment on Preshipment Inspection also provides for rules on procedures for inde- pendent review of disputes between the companies carrying out the inspection and the exporters." With respect to marks of origin ‘attached’ to imported goods, Article IX: the GATT 1994 states: of The (Members) recognize that, in adopting and enforcing laws and regulations relating to marks of origin, the difficulties and inconveniences which such measures may cause t0 the commerce and industry of exporting countries should be reduced to @ minimum, due regard being had 10 the necessity of protecting consumers against fraudulent or misleading, indications." Note that marking requirements are, of course, subject to all relevant WTO rules and disciplines, such as the MEN treatment obligation.” With respect to measures concerning traffic in transit, Article V of the GATT. 1994, entitled ‘Freedom of Transit’, sets out a number of obligations on Members not to impede this traffic. Traffic in transit is the traffic of goods from country A to country C, through the territory of country B. It is clear that any restriction or impediment that country B would impose on the transit of the goods concerned would constitute a barrier to trade. Article V:2 of the GATT 1994 provides: There shall be freedom of transit through the territory of each (Member), via the routes most convenient for international transit, for traffic in transit to or from the territory of other [Members}. No distinction shall be made which is based on the flag ef vessels, the place of origin, departure, entry, exit or destination, or on any cireumstances relating to the owner ship of goods, of vessels or of other means of transport Traffic in transit shall not be subject to any unnecessary delays or restrictions and shall be exempt from customs duties and from all transit duties or other charges 170 See ibid, Anichy 2.1 ad 22. UPL See ab, Amis 205 s0 V72 Sew ii, Arches 7.9 10 2.2). UY Se ibid Anekes 2.15 30-218, 174. Se this Aries 31 anal 1.2 These Menntiers muse also pavile 10 user Members. iFreyuestel cecal sistance divecse towards the aeievenaes a the whe ives ofthis Agreement nally ageed terms 175 See ibid, Aniwte 4.176 Eiepliesis aude 127 See Aniete IS: of the GATT 1994,513 Other Non-Tariff Barriers on Trade in Goods imposed in respect of transit, except charges for transportation or those com mensurate with administrative expenses entailed by transit ot with the cost of services rendered." All charges, regulations and formalities in connection with transit shall be reasonable and be subject to the MEN treatment obligation," Furthermore, the operations of Stare trading enterprises can be a significant barrier to trade in goods. State trading enterprises are: (glovernmental and non-governmental enterprises, including marketing boards, which have been granted exclusive ur special rights or privileges, including statutory or constitutional powers, in the exercise of which they influence through their purchases or sales the level or direction of imports ar exports!" The WTO does not prohibit the establishment or maintenance of State trading enterprises. However, Article XVII of the GATT 1994 requires that: (1) State trading enterprises act in accordance with the MEN treatment obligation and other basic obligations under the GATT 1994;!"" and (2) only commercial con- siderations should guide their decisions on purchases and sales for import and export, To increase transparency regarding the use of State trading, Members must notify their State trading enterprises to the WTO annually. Trade-relared investment measures can also be barriers to trade when these meas- ures take the form of direct or indirect quantitative restrictions on imports or exports. For example, a foreign car manufacturer may be allowed to establish a production plant in a country but only if it uses in the production of the cars steel produced in that country. Article 2.1 of the TRIMS Agreement states in relevant part: Without prejudice to other sights and obligations under GATT 1994, no Member shall apply any TRIM that is inconsistent with the provisions of... Article XI of GATT 1994. Finally, exchange controls or exchange restrictions may make it difficult, if not impossible, for an importer to pay for imparts or for an exporter to be paid for exports. If so, these measures constitute a significant impediment to trade. Arti- cle XV:9 of the GATT 1994 stipulates in this regard that the GATT 1994 does not preclude Members to use exchange controls or exchange restrictions that are in accordance with: {1} the Articles of Agreement of the IMF; or (2) a Member's spe- cial exchange arrangement with the WTO. Nothing in the GATT 1994 precludes restrictions or controls on imparts ar exports the sole effect of which is to make effective such exchange controls or exchange restrictions Questions and Assignmenis 7.9 Explain how preshipment inspection, marks of origin, measures relating to traflec in aransit, and the operations of Stare trading enterprises can constitute harriers to trade in goods. Does WTO law regulate these types of other non-tariff barriers? Iso, how? 178 See Auicle V3 aime GAEY 1994179 See Amtele Ved and of the GATT 1998 180. WTO Undersian nteruveeaion of Asie NYA, pata 1 THLE Soe Amictes Hcl and Nt of the GAFT 2994, as dstissed above, pp 336 aml 483 82 For an Mustrative bss a tade-relato investeeent smcises ithe Form af quantitative restrictions, see THNES Agrecmens, Kanes, pas 2 0 the