Steps towards WTO TFA ratification-short version

UNCTAD

Step 7: Entry into force of the Protocol and the WTO TFA

Trade Facilitation Section

a) The Protocol shall take effect upon acceptance by two thirds of the WTO Members, pursuant to Article X.3 of the WTO Agreement.

b) The Protocol will enter into force only for those WTO Member that have accepted it.

c) Thereafter, the Protocol shall take effect for each other Member upon acceptance by it.

Your partner for trade facilitation

Step 6: Deposit of the instrument of acceptance to the WTO Secretariat

a) The acceptance to the Protocol shall be deposited with the WTO Director-General.

b) In practical terms, the instrument of acceptance should be deposited with the Depositary Assistant in the WTO Legal Affairs Division.

c) The Director-General shall promptly furnish to each Member a certified copy thereof and a notification of each acceptance.

d) For more information about the WTO Members that have already deposited their instruments of acceptance, please click at https://www.wto.org/english/tratop_e/tradfa_e/tradfa_agreeacc_e.htm

Step 5: Elaboration of the instrument of acceptance of the Protocol

a) Once domestic procedures were successfully completed, WTO Members shall prepare an instrument of acceptance.

b) This instrument indicates the consent of each WTO Member to be bound by the TFA to the rest of the WTO membership.

c) In preparing their instruments of acceptance, WTO Members may wish to follow a model prepared by the WTO Secretariat (see Annex II).

d) In any case, the instrument of acceptance shall contain the following information:

• Full identification of the Protocol i.e. "the Protocol Amending the Marrakesh Agreement Establishing the World Trade Organization done at Geneva on 27 November 2014" or, alternatively, reproduce the Protocol as an attachment to the instrument of acceptance;
• A formal statement that the Member concerned formally accepts the Protocol and expresses its consent to be bound by it;
• iThe date and the place of issuance of the instrument of acceptance;
• The signature; and
• The name and title of the person signing the instrument.

Multilateral stage

This stage deals with procedure to become a party of the WTO TFA at the international level

Step 4: Ratification

Step 3: Approval of the WTO TFA

a) WTO Members indicate their consent to be bound to the TFA through ratification.

b) In case of Parliament approval, the Executive branch ratifies the agreement only thereafter.

c) The instrument of ratification has to be signed on behalf of the State. Usually either the head of the State, Head of Government or Foreign Minister (the big three) sign. Any one else needs full powers in order to sign the instrument.

d) Ratification shall not make the WTO TFA immediately binding to the WTO Member that ratifies unless and until the TFA enters into force.

According to the constitutional/legal requirements of each WTO Member, the approval of the WTO TFA can be held in two different instances:

a) Executive branch: if all the issues covered by the WTO TFA are completely within the Executive's constitutional powers, the Executive alone, without parliamentary approval, can approve the agreement.

b) Legislative branch: The parliament shall approve the WTO TFA if:

i) The implementation of agreement requires enacting new or amending existing legislation,

ii) The issues covered by the WO TFA are within the Parliament’s powers

In both cases, this step allows WTO Members weighing and considering the political and economic consequences of becoming a party to the TFA. Thus, the lead agency and other relevant stakeholders, in particular TF negotiators, shall facilitate and follow-up the debates as well as be available for answering technical questions about the TFA.

Note that neither the TFA (Article 24.9) nor the Protocol of Amending the Marrakesh Agreement establishing the WTO (paragraph 2) allow to enter reservations in respect of any of the provisions .

Step 2: Elaboration of the instrument of approval

Once the legal assessment determines whether the Executive or the Legislative branch should approve the WTO TFA, the following actions should be undertaken:

a) To elaborate an instrument of approval whether a law, act, decree or decision as appropriate.

b) To issue a report justifying the approval and ratification of the WTO TFA, containing advantages, economic impact, risk analysis and recommendations; and

c) To submit the draft of the instrument of approval along with the report to:

i) The Cabinet in case of Executive approval, or

ii) The Parliament in case of Legislative approval.

Developing and least-developed countries can use the models proposed by UNCTAD for the elaboration of the instrument of approval (see Annex I). Thereby, the legal instrument might follow one of the three approaches:

a) The ratification/approval of the WTO TFA (Annex I-A);

b) The ratification/approval of the Protocol of Amendment of the Marrakesh Agreement Establishing the WTO (Annex I-B); and

c) The ratification/approval of the Protocol of Amendment and its annex, the Agreement on Trade Facilitation (Annex I-C).

Step 1: Legal assessment of the WTO TFA vis-à-vis the domestic legal system

a) Each WTO Member shall first look at its constitutional/legal requirements for approving international agreements.

b) All agencies and stakeholders involved in cross-border trade in goods shall undertake a legal assessment of the obligations contained in the WTO TFA compared to the domestic legal framework.

c) Developing and least-developed WTO Members can base this assessment on the UNCTAD national trade facilitation (TF) implementation plans and technical notes, the WTO needs assessments and other reports carried out by Annex D organizations .

d) The objectives of this legal assessment is twofold:

i) It shall find out if new regulation or amendment of existing regulation will be required; and

ii) It shall determine if the Executive or the Legislative branch should approve the WTO TFA in accordance with the constitutional/legal requirements.

e) The National Trade Facilitation Committee (NTFC) shall ideally carry out this exercise.

f) The agency leading the trade facilitation negotiations, the ministry of foreign affairs or other relevant agency might head the domestic procedure of approval.

UNCTAD Trade Facilitation toolkit

Domestic stage

• This stage involves the domestic procedures that must be fulfilled before a WTO Member undertakes the obligations enshrined in the Agreement on Trade Facilitation (TFA).
• In many instances, approval by the national parliament or the executive branch might be required.

Steps towards the entry into force of the WTO Trade Facilitation Agreement