Soft enforcement: Transparency, notification

 . Soft enforcement:
Transparency, notifications and
trade policy reviews
Concerns over non-compliant measures do not
always require that countries resort to the hard option
of a formal dispute. There are other, softer forms of
enforcement that are intended to promote compliance.
These include norms and rules of transparency, the
requirement that countries notify their measures, and
the conduct of trade policy reviews.
Transparency was a well-established principle in
the trading system long before the advent of WTO.
GATT article X provides that “[l]aws, regulations,
judicial decisions and administrative rulings of general
application” on matters related to trade “shall be
published promptly in such a manner as to enable
governments and traders to become acquainted with
Box 5. Sources of information on compliance and non-tariff barriers
Countries may take advantage of several programmes and databases in order to monitor the compliance of their partners
with the commitments made in trade agreements.
The trade policy reviews (TPRs) conducted by WTO, as discussed elsewhere in this manual, provide regular examinations of
members’ trade regimes and sometimes identify laws or policies that may not be consistent with a country’s commitments.
The TPR rules explicitly prohibit countries from citing these reports as the basis of a formal complaint in the WTO’s Dispute
Settlement Body, but any non-compliant measures that are identified in a TPR could certainly be verified through some
other source. Another WTO resource is the Integrated Trade Intelligence Portal (I-TIP), which gathers the data generated in
members’ notifications to the WTO and through other sources to provide practical information on a wide range of issues
affecting specific products and sectors.
UNCTAD offers the database on NTMs developed in collaboration with the African Development Bank, ITC and World Bank,
as well as ALADI, ERIA and the WTO secretariat. It provides a global information dataset on NTMs used by more than 60
countries, representing more than 80 per cent of global trade. All the trade-related regulations, including the SPS and TBT
areas, are collected and classified in a systematic and coherent database. The NTMs database is disseminated through
WITS/World Bank, UNCTAD-iTIP and ITC dissemination systems.
The World Bank hosts two specialized databases that catalogue the restrictions that countries impose. The Temporary Trade
Barriers Database offers detailed information on more than 30 Governments’ use of antidumping duties, countervailing duties
and safeguards. The Services Trade Restrictions Database provides information on services measures for 103 countries in
five sectors (telecommunications, finance, transportation, retail and professional services) and by modes of delivery.
Several other databases on NTBs are available on a national or regional basis. Examples include the following:
• The Association of Southeast Asian Nations has a non-tariff measures database that allows users to download files on
its members’ measures.
• The European Union maintains a market access database of other countries’ NTMs that can be either browsed or
• The regional economic communities of Africa sponsor a mechanism for reporting, monitoring and eliminating non-tariff
barriers that allows users to register complaints, seek to resolve them, and browse details and summary statistics of the
NTBs that others have reported to the system.
The global financial crisis of 2008–2009, which could have led to a new wave of protectionism, inspired the creation of the
Global Trade Alert (GTA). This is an independent project that catalogues all new measures adopted by any country that
affect trade, classifying them as protectionist, market opening, or neutral. The GTA measures can be browsed or searched
by several different criteria, and users may also register to receive alerts for any new measures affecting specific countries
or sectors.
them” . Other GATT articles supplemented this general
principle of transparency and publication by requiring
the notification of certain types of measures. The
scope of notifications expanded with the agreements
negotiated in later rounds, as well as with the horizontal
requirements set by the Understanding Regarding
Notification, Consultation, Dispute Settlement and
Surveillance. Today there are more than 200 provisions
in WTO agreements requiring notifications, most of
which are related to non-tariff measures.
A notification will typically consist of a short statement
that follows a standard format in which the member
identifies the law, regulation, action, etc., that is at
issue, the precise content of which varies according to
the agreement and topic involved. These documents
are routinely filed and made available on the WTO
website to other members and the public. Specific
agreements may also require that members take other
steps to promote transparency. The agreement dealing
with sanitary and phytosanitary (SPS) measures, for
example, not only obliges members to publish all SPS
measures and notify changes that are made to them,
but further requires that they identify a single central
government authority responsible for the notification
requirements (i.e. the national notification authority)
and establish a national enquiry point responsible for
answering questions from other members about SPS
measures and related issues.
Compliance with notification requirements is uneven.
Most developed countries appear to file most of the
required notifications most of the time, and the same
can be said for some of the developing countries, but
many of the poorer and smaller developing countries
struggle to meet this obligation. A single example
suffices to illustrate the problem. The Agreement on
Subsidies and Countervailing Measures requires that
members make a subsidy notification no later than
30 June of each year, whether or not they employed
any subsidies. In 1995, when there were 112 WTO
members, 56 of them notified subsidies and 27 made
a nil notification of no subsidies; that left 29 members
(25.9 per cent ) that failed to meet the obligation to
notify. The rate of non-compliance rose steadily
thereafter, to the point where in 2015 there were 106
members (65.4 per cent of the total) that had failed
to make the mandatory notification.16 This failure to
comply with a notification requirement is by no means
the most serious problem that the multilateral system
faces; yet it is symptomatic of a declining commitment
to abide by the norms of that system.
Members and the WTO secretariat have addressed
the problem of incomplete notifications from two
directions. One approach views the number and
complexity of the requirements as the root of the
problem, with developing countries proposing that
the burden be reduced and the procedures simplified.
These concerns led to such steps as the publication
of the Procedural Step-by-Step Manual for SPS
National Notification Authorities and SPS National
Enquiry Points, a guidebook with detailed instructions.
Some WTO committees have also worked to simplify
procedures for the notifications that fall within their
purview. The other response has been for the
secretariat to provide greater assistance to developing
countries in complying with these obligations. This is,
together with accessions and scheduling, one of the
highest priorities in the technical assistance that the
secretariat offers to members.
The WTO’s Trade Policy Review Mechanism is another
and more thorough form of soft enforcement. It
provides for regular diagnostics of all members’ trade
policies, with members being subject to a review once
every two, four or six years (depending on their weight
in global trade). The results of these reviews can help
a country to identify areas where its own laws and
policies may need to be brought into compliance,
and also — although explicitly not intended to serve
as a basis for the enforcement under the disputesettlement procedures — to determine whether its
trading partners are living up to their obligations. This
process and its relationship to TPFs are taken up in
part VI of this manual.

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