THE CARIFORUM-EC EPATHE CARIFORUM-EC EPAA Critical EvaluationA Critical Evaluation

Norman GirvanNorman GirvanMarch 23, 2008March 23, 2008

‘‘The devil is in the detail’The devil is in the detail’

22

EPA—democratic governance? EPA—democratic governance? The EPA isThe EPA is More than a trade agreement—will impact More than a trade agreement—will impact

many aspects of lives of Caribbean many aspects of lives of Caribbean peoplespeoples

Legally binding, difficult to amend once Legally binding, difficult to amend once legally in force and of indefinite durationlegally in force and of indefinite duration

Wide in scope, covering several areas of Wide in scope, covering several areas of national and regional policy national and regional policy

Limits governments’ ability to change Limits governments’ ability to change future policies in several areasfuture policies in several areas

Little known and understood by the publicLittle known and understood by the public

33

Part I. Trade Partnership For Sustainable DevelopmentPart II. Trade And Trade-Related MattersTitle I. Trade In GoodsChapter 1. Customs DutiesChapter 2. Trade Defence InstrumentsChapter 3. Non-Tariff MeasuresChapter 4. Customs And Trade Facilitation Chapter 5. Agriculture And FisheriesChapter 6. Technical Barriers To Trade Chapter 7. Sanitary And Phytosanitary Measures Title II. Investment, Trade In Services And E-Commerce Title III. Current Payments And Capital Movement Title IV. Trade Related IssuesChapter 1. CompetitionChapter 2. Innovation And Intellectual PropertyChapter 3. Public ProcurementChapter 4. EnvironmentChapter 5. Social AspectsChapter 6. Protection Of Personal Data Part III. Dispute Avoidance And SettlementPart IV. General ExceptionsPart V. Institutional ProvisionsPart VI. General And Final Provisions

44

Annexes, Protocols and Joint Declarations •Schedule of Cariforum commitments on liberalization of trade in goods•Schedule of Cariforum commitments on liberalization of trade in services •Schedule of Cariforum commitments on liberalization of investment (commercial presence) in non-service sectors•Protocol I on Definition of "Originating Products" (Rules of Origin) and Methods Of Administrative Cooperation•Protocol II on Mutual Administrative Assistance in Customs Matters•Protocol III on Cultural Cooperation•Joint Declaration on Development Cooperation•Joint Declaration on Bananas•Joint Declaration on Used Goods•Joint Declaration on Rice•Joint Declaration on Undelivered Quantities Under the Sugar Protocol

55

Reading the EPA Reading the EPA ((Art 233)Art 233)

‘‘Party’ or ‘Parties’ refer to Party’ or ‘Parties’ refer to • European Community (EC), representing 27 European Community (EC), representing 27

member states of EU member states of EU oror • CARIFORUM States “acting collectively” CARIFORUM States “acting collectively” • ““Signatory CARIFORUM States” refer to Signatory CARIFORUM States” refer to

individual states that have assumed rights and individual states that have assumed rights and obligations as separate entitiesobligations as separate entities

CARICOM as a juridical entity not a Party CARICOM as a juridical entity not a Party Many references to Committees with wide Many references to Committees with wide

powers (see powers (see Implementation Committee Implementation Committee slide) slide)

66

Assessing the EPA: An OverviewAssessing the EPA: An Overview

Cariforum (CF) getsCariforum (CF) gets Market access for goodsMarket access for goods Market access for servicesMarket access for services Promises of development supportPromises of development supportEurope (EU) getsEurope (EU) gets Opening of CF markets for goods and Opening of CF markets for goods and

servicesservices Binding commitments on CF policies in Binding commitments on CF policies in

other areasother areas

77

What does the EPA offer Cariforum?What does the EPA offer Cariforum?1. 1. Market access for goodsMarket access for goods

EPA establishes duty free quota free (DFQF) access to EU EPA establishes duty free quota free (DFQF) access to EU markets except for sugar and rice in transition periods markets except for sugar and rice in transition periods

Under the Lome Convention ACP countries have had Under the Lome Convention ACP countries have had DFQF access for 97% of their exports since 1975, but DFQF access for 97% of their exports since 1975, but their non-traditional exports have shown little dynamism their non-traditional exports have shown little dynamism and they have lost market share in the EUand they have lost market share in the EU

Major obstacles are Rules of Origin, Technical Barriers to Major obstacles are Rules of Origin, Technical Barriers to Trade (TBT) and Sanitary and Phytosanitary Standards Trade (TBT) and Sanitary and Phytosanitary Standards (SPS). (SPS).

There is no evidence that the EPA has addressed TBT and There is no evidence that the EPA has addressed TBT and SPS obstacles satisfactorily through (a) SPS obstacles satisfactorily through (a) modification/simplification of rules or (b) binding modification/simplification of rules or (b) binding commitments for development support commitments for development support

Fuller explanation is needed about additional benefits Fuller explanation is needed about additional benefits available under Rules of Origin available under Rules of Origin

Several sugar-based products excluded from regional Several sugar-based products excluded from regional ‘cumulation’ of value added until 2015, discouraging ‘cumulation’ of value added until 2015, discouraging regional production integration in the sugar-based regional production integration in the sugar-based industries.industries.

88

‘‘Market presence’ vs. ‘Market access’Market presence’ vs. ‘Market access’

Targeted product-specific and firm-specific Targeted product-specific and firm-specific assistance to CF firms is needed to assistance to CF firms is needed to establish ‘market presence’ in the EU establish ‘market presence’ in the EU

Without action on TBT, SPS, ROOs and Without action on TBT, SPS, ROOs and targeted assistance, how many firms targeted assistance, how many firms especially SMEs will be able to establish a especially SMEs will be able to establish a market presence in Europe and expand market presence in Europe and expand exports of goods?exports of goods?

99

What does the EPA offer CF?What does the EPA offer CF?2. Market access for Services2. Market access for Services

EU has liberalized access for ‘Movement of EU has liberalized access for ‘Movement of Natural Persons’ (i.e. individuals) from CF Natural Persons’ (i.e. individuals) from CF employed to ‘Contractual Service Suppliers’ in 29 employed to ‘Contractual Service Suppliers’ in 29 service sub-sectors and for 11 categories of service sub-sectors and for 11 categories of ‘Independent Professionals’. ‘Independent Professionals’.

Details of eligibility criteria show that this is Details of eligibility criteria show that this is highly conditioned and leaves considerable highly conditioned and leaves considerable discretionary authority with individual EU states discretionary authority with individual EU states

What will service providers have to do in order to What will service providers have to do in order to meet these criteria?meet these criteria?

What policy measures will governments have to What policy measures will governments have to take to facilitate service providers meeting these take to facilitate service providers meeting these criteria?criteria?

1010

Services liberalized for Contractual Service Suppliers Services liberalized for Contractual Service Suppliers from the Caribbean (Art 83)from the Caribbean (Art 83)

1)1) Legal advisory services in Legal advisory services in international public law and international public law and foreign law foreign law

2)2) Accounting and bookkeeping Accounting and bookkeeping 3) Taxation advisory 3) Taxation advisory 4) Architectural 4) Architectural 5) Urban planning and landscape 5) Urban planning and landscape

architecture architecture 6) Engineering 6) Engineering 7) Integrated Engineering 7) Integrated Engineering 8) Medical and dental 8) Medical and dental 9) Veterinary 9) Veterinary 10) Midwives 10) Midwives 11) Services provided by nurses, 11) Services provided by nurses,

physiotherapists and physiotherapists and paramedical personnelparamedical personnel

12) Computer and related 12) Computer and related 13) Research and development 13) Research and development 14) Advertising 14) Advertising

15) Market Research and Opinion 15) Market Research and Opinion PollingPolling

16) Management consulting 16) Management consulting 17) Services related to 16 17) Services related to 16 18) Technical testing and analysis 18) Technical testing and analysis 19) Related scientific and technical 19) Related scientific and technical

consulting consulting 20) Maintenance and repair of 20) Maintenance and repair of

equipment, including transportation,equipment, including transportation,21) Chef de cuisine 21) Chef de cuisine 22) Fashion model 22) Fashion model 23) Translation and interpretation 23) Translation and interpretation 24) Site investigation work24) Site investigation work25) Higher education services 25) Higher education services

(privately-funded)(privately-funded)26) Environmental 26) Environmental 27) Travel agencies and tour operators' 27) Travel agencies and tour operators' 28) Tourist guides 28) Tourist guides 29) Entertainment services other than 29) Entertainment services other than

audiovisual services audiovisual services

1111

Employees of CSS – conditions of access Employees of CSS – conditions of access

1.1. Must be working with a firm with a Must be working with a firm with a service contractservice contract in an EU in an EU member state not exceeding one year’s durationmember state not exceeding one year’s duration

2.2. Must have at least Must have at least 1 year’s working experience1 year’s working experience with the with the supplying firm as well as supplying firm as well as 3 years’ professional experience3 years’ professional experience

3.3. With certain exceptions*, must possess a university degree or With certain exceptions*, must possess a university degree or equivalent qualification equivalent qualification andand professional qualification professional qualification required in receiving state. required in receiving state. Mutual recognition agreementsMutual recognition agreements necessary.necessary.

4.4. Stay limited to cumulative period of Stay limited to cumulative period of six monthssix months in any 12- in any 12-month period or duration of contract, whichever is less month period or duration of contract, whichever is less

5.5. Access limited to performance of contractAccess limited to performance of contract6.6. Number limited to what is necessary to fulfill contract Number limited to what is necessary to fulfill contract as as

determineddetermined by local laws by local laws7.7. Other ‘discriminatory limitations’ are allowed, including Other ‘discriminatory limitations’ are allowed, including

limitations on the limitations on the number of employeesnumber of employees permitted entry as a permitted entry as a result of ‘economics needs tests’ in the receiving countries.result of ‘economics needs tests’ in the receiving countries.

8.8. Other conditions are specified in Annex 4. still unpublished.Other conditions are specified in Annex 4. still unpublished.

* Fashion model services, chef de cuisine services, and entertainment * Fashion model services, chef de cuisine services, and entertainment services other than audio-visual . services other than audio-visual .

1212

Services liberalized for Independent Services liberalized for Independent Professionals (IPs) ( Professionals (IPs) ( Art 83Art 83))

1) Legal advisory services in international public law 1) Legal advisory services in international public law and foreign lawand foreign law

2) Architectural services2) Architectural services3) Urban planning and landscape architecture services3) Urban planning and landscape architecture services4) Engineering services4) Engineering services5) Integrated Engineering services5) Integrated Engineering services6) Computer and related services6) Computer and related services7) Research and development services7) Research and development services8) Market Research and Opinion Polling8) Market Research and Opinion Polling9) Management consulting services9) Management consulting services10) Services related to management consulting10) Services related to management consulting11) Translation and interpretation services 11) Translation and interpretation services

1313

Conditions of access of IPs Conditions of access of IPs ((Art 83)Art 83)1.1. Must be engaged in the supply of a service on a temporary Must be engaged in the supply of a service on a temporary

basis in the other Party and must have obtained a basis in the other Party and must have obtained a service service contractcontract not exceeding 12 months. not exceeding 12 months.

2.2. At least At least 6 years professional experience6 years professional experience..

3.3. A University degree or equivalent qualification A University degree or equivalent qualification andand professional qualification required by local regulations. professional qualification required by local regulations. Mutual recognition agreementsMutual recognition agreements necessary necessary

4.4. Stay limited to cumulative period of Stay limited to cumulative period of 6 months6 months in any 12 in any 12 month period or duration of contract, whichever is less.month period or duration of contract, whichever is less.

5.5. Other ‘discriminatory limitations’ are allowed, including Other ‘discriminatory limitations’ are allowed, including limitations on the limitations on the number of employeesnumber of employees permitted entry as a permitted entry as a result of ‘economics needs tests’ in the receiving countries.result of ‘economics needs tests’ in the receiving countries.

6.6. Other conditions are specified in Annex 4. not yet published. Other conditions are specified in Annex 4. not yet published.

1414

Mutual Recognition AgreementsMutual Recognition AgreementsNecessary for all individuals providing services (CSS and IPs) Article Necessary for all individuals providing services (CSS and IPs) Article

85)85)

1.1. Caveat: Nothing in EPA shall ‘prevent Parties from requiring Caveat: Nothing in EPA shall ‘prevent Parties from requiring necessary qualifications and/or professional experience in necessary qualifications and/or professional experience in territory concerned’ territory concerned’

2.2. Professional bodies to be encouraged to jointly develop Professional bodies to be encouraged to jointly develop recommendations on MR for Trade and Development Committee recommendations on MR for Trade and Development Committee (TDC) within three years(TDC) within three years

3.3. Priority to accounting, architecture, engineering and tourism.Priority to accounting, architecture, engineering and tourism.

4.4. TDC reviews to determine consistency with EPATDC reviews to determine consistency with EPA

5.5. If approved by TDC, Parties negotiate MRA ‘through their If approved by TDC, Parties negotiate MRA ‘through their competent authorities’ competent authorities’

6.6. Agreement must conform with WTO particularly Article VII of the Agreement must conform with WTO particularly Article VII of the GATS.GATS.

1515

What does Cariforum get from the What does Cariforum get from the EPA?—(3) Development SupportEPA?—(3) Development Support

The many references to development cooperation in the EPA are The many references to development cooperation in the EPA are not specific, quantified and time-boundnot specific, quantified and time-bound

Specific funding commitments for infrastructure and the private Specific funding commitments for infrastructure and the private sector to increase competitiveness in response to competition sector to increase competitiveness in response to competition from imports and to diversify into exports of new goods and from imports and to diversify into exports of new goods and services, including establishing ‘market presence in EU markets, services, including establishing ‘market presence in EU markets, are absent from the EPA.are absent from the EPA.

Existing European Commission (EC) funding for the region is made Existing European Commission (EC) funding for the region is made through the European Development Fund (EDF) for the ‘Regional through the European Development Fund (EDF) for the ‘Regional Indicative Programme and for adjustment of traditional export Indicative Programme and for adjustment of traditional export industries such as sugar, bananas and riceindustries such as sugar, bananas and rice

Hence the EPA relies on reciprocal trade liberalization between Hence the EPA relies on reciprocal trade liberalization between highly unequal partners to achieve its development objectiveshighly unequal partners to achieve its development objectives

1616

Possible consequences Possible consequences If the net economic effects of import liberalization If the net economic effects of import liberalization

are negative then this contradicts the stated are negative then this contradicts the stated objective of the EPA to reduce poverty objective of the EPA to reduce poverty

There may be need for (a) a longer transition There may be need for (a) a longer transition period and/or (b) compensatory resource period and/or (b) compensatory resource transfers to cushion these effects. transfers to cushion these effects.

Uncertainty over country-specific and product-Uncertainty over country-specific and product-specific details and therefore over fiscal and specific details and therefore over fiscal and economic impacts of the EPAeconomic impacts of the EPA

1717

Does the EPA support development?’ Does the EPA support development?’ The Cotonou Partnership Agreement, under which EPAs are The Cotonou Partnership Agreement, under which EPAs are

negotiated, says that their principal objectives are poverty negotiated, says that their principal objectives are poverty reduction & sustainable developmentreduction & sustainable development

In order for a reciprocal trade agreement between unequal In order for a reciprocal trade agreement between unequal partners, such as the EU-CF EPA, to contribute to sustainable partners, such as the EU-CF EPA, to contribute to sustainable development of the less developed partners, there must be development of the less developed partners, there must be adequate resource transfers for the development of their economic adequate resource transfers for the development of their economic infrastructure and the supply capabilities of their firms. The EU has infrastructure and the supply capabilities of their firms. The EU has recognized this in their own internal arrangements by the provision recognized this in their own internal arrangements by the provision of ‘Structural Funds’ and ‘Social Cohesion Funds’ for their poorer of ‘Structural Funds’ and ‘Social Cohesion Funds’ for their poorer member states. member states.

There are no additional funding commitments provided through the There are no additional funding commitments provided through the EPA to facilitate adjustment to the liberalization of imports from EPA to facilitate adjustment to the liberalization of imports from the EU and to take advantage of export opportunities in goods and the EU and to take advantage of export opportunities in goods and services from CFservices from CF

Without such additional resources, existing inequalities between Without such additional resources, existing inequalities between unequal partners are likely to be worsened.unequal partners are likely to be worsened.

1818

What does the EU get from the EPA?What does the EU get from the EPA?SummarySummary

Phased liberalization of access to CF markets for goods, Phased liberalization of access to CF markets for goods, services and investmentservices and investment

Binding commitments on CF government policies in the Binding commitments on CF government policies in the areas of ‘National Treatment’ of EU investors and suppliers, areas of ‘National Treatment’ of EU investors and suppliers, Competition, transparency of Public Procurement, Competition, transparency of Public Procurement, Intellectual Property, Customs Administration and Trade Intellectual Property, Customs Administration and Trade Facilitation, Electronic Commerce, Social Aspects and Facilitation, Electronic Commerce, Social Aspects and Environmental StandardsEnvironmental Standards

Permanent, institutionalized involvement in Cariforum Permanent, institutionalized involvement in Cariforum decision-making processes across a wide range of subject decision-making processes across a wide range of subject areas including regional integrationareas including regional integration

Establishment of a precedent of a ‘WTO-plus’ FTA to be Establishment of a precedent of a ‘WTO-plus’ FTA to be used in negotiations with other ACP countries, other used in negotiations with other ACP countries, other developing countries and in the WTO developing countries and in the WTO

1919

What does the EU get from the EPA?What does the EU get from the EPA?1. Market access for EU exports of goods to CF1. Market access for EU exports of goods to CF

82.7 percent of imports from the EC into CF market will be made 82.7 percent of imports from the EC into CF market will be made duty-free within 15 years and 90 percent after 25 years. 10% duty-free within 15 years and 90 percent after 25 years. 10% comprising ‘sensitive products’ are permanently excluded.comprising ‘sensitive products’ are permanently excluded.

It is argued that this extent and timing of tariff liberalization is It is argued that this extent and timing of tariff liberalization is necessary for ‘WTO compatibility’ under rules governing necessary for ‘WTO compatibility’ under rules governing regional trade agreements. There are different opinions on this.regional trade agreements. There are different opinions on this.

The details and timing of import liberalization for each CF The details and timing of import liberalization for each CF country have not yet been officially published. They need to be country have not yet been officially published. They need to be fully explained to producers. fully explained to producers.

Need for careful evaluation, country by country, of impact on Need for careful evaluation, country by country, of impact on government revenue, local production and employment in each government revenue, local production and employment in each sectorsector

2020

What does the EU get from the EPA?What does the EU get from the EPA?2. Services: market access for EU firms2. Services: market access for EU firms

75% of CF service sectors in MDCs and 65% in LDCs will be 75% of CF service sectors in MDCs and 65% in LDCs will be liberalized to EU liberalized to EU

Each CF country has made market access commitments for Each CF country has made market access commitments for service sectors. The detailed commitments and the terms service sectors. The detailed commitments and the terms and conditions are contained in Annex 4, which has not and conditions are contained in Annex 4, which has not been published. been published.

It is therefore impossible to assess the potential impact on It is therefore impossible to assess the potential impact on the development of CF service industries. For example, the development of CF service industries. For example, what will happen in banking and to SMEs in the tourist what will happen in banking and to SMEs in the tourist sector? Will local firms be displaced or acquired by larger sector? Will local firms be displaced or acquired by larger EU firms? EU firms?

How will investment of EU firms affect national and regional How will investment of EU firms affect national and regional development plans for services industries? development plans for services industries?

2121

Possible asymmetries in Movement of Possible asymmetries in Movement of Natural PersonsNatural Persons

1.1. Most firms establishing ‘Commercial Presence’ are likely to be Most firms establishing ‘Commercial Presence’ are likely to be EU firms setting up business in CF countries. EU firms setting up business in CF countries.

2.2. Such firms will be allowed to bring in in ‘Key Personnel – Such firms will be allowed to bring in in ‘Key Personnel – Managers and Specialists – for up to 3 years and Graduate Managers and Specialists – for up to 3 years and Graduate Trainees for up to 1 year. The qualifications for these categories Trainees for up to 1 year. The qualifications for these categories are stated in general terms with few conditions attached.are stated in general terms with few conditions attached.

3.3. Most of the CF interest in services is in the ‘Movement of Most of the CF interest in services is in the ‘Movement of Natural Persons’ into the EU.Natural Persons’ into the EU.

4.4. The required qualifications and experience related to this The required qualifications and experience related to this category are very precisely stated, with many more category are very precisely stated, with many more reservations and conditions applying. reservations and conditions applying.

5.5. Contractual Service Suppliers and Independent Professionals Contractual Service Suppliers and Independent Professionals have no right to bring in ‘Graduate Trainees’have no right to bring in ‘Graduate Trainees’

6.6. Existing immigration, visa, work permit and residency Existing immigration, visa, work permit and residency regulations will continue to be in force.regulations will continue to be in force.

7.7. Thus on balance, the flow of Natural Persons from the Thus on balance, the flow of Natural Persons from the Caribbean to Europe may be much more difficult than in the Caribbean to Europe may be much more difficult than in the other direction other direction

2222

‘‘WTO-plus’ provisions in the EPAWTO-plus’ provisions in the EPAThe EPA includes binding commitments onThe EPA includes binding commitments on Competition – policy, practice, regulationsCompetition – policy, practice, regulations Public Procurement - transparency Public Procurement - transparency Investment – treatment ofInvestment – treatment of Services - beyond WTO commitmentsServices - beyond WTO commitments Additional Intellectual Property protection Additional Intellectual Property protection E-commerce E-commerce

The first three are known as the ‘Singapore Issues’ The first three are known as the ‘Singapore Issues’ and were rejected for inclusion in the Doha and were rejected for inclusion in the Doha Round negotiations of the WTO by developing Round negotiations of the WTO by developing countries, as this would mean additional countries, as this would mean additional restrictions on their development policy options restrictions on their development policy options and impose onerous implementation obligations and impose onerous implementation obligations

2323

Impact of WTO-plus provisionsImpact of WTO-plus provisions Pre-empt and proscribe government policies in key Pre-empt and proscribe government policies in key

areas of development areas of development

Pre-empt CSME regimes in services, investment, Pre-empt CSME regimes in services, investment, competition, public procurement, intellectual competition, public procurement, intellectual property, e-commerce which have not yet been property, e-commerce which have not yet been completedcompleted

Involve changes in laws, regulations and Involve changes in laws, regulations and implementations and compliance costsimplementations and compliance costs

Compromise the region’s negotiating positions in the Compromise the region’s negotiating positions in the WTO and in bilateral trade agreements with Canada, WTO and in bilateral trade agreements with Canada, the US and other trading partnersthe US and other trading partners

2424

Why WTO-plus? Why WTO-plus? The EC argues that these provisions enhance the The EC argues that these provisions enhance the

development potential of the EPA development potential of the EPA This argument derives from the ideology of neo-This argument derives from the ideology of neo-

liberal globalisation position, which leads to the liberal globalisation position, which leads to the use of ‘trade’ agreements to ‘lock in’ neo-liberal use of ‘trade’ agreements to ‘lock in’ neo-liberal policies by sovereign states, giving them the policies by sovereign states, giving them the force of international treaty law force of international treaty law

Critics argue that this method of securing policy Critics argue that this method of securing policy changes is undemocratic and non-transparent.changes is undemocratic and non-transparent.

Note that securing WTO-plus provisions in Note that securing WTO-plus provisions in bilateral trade agreements (BTAs) is a major bilateral trade agreements (BTAs) is a major objective of the EU’s ‘Global Europe Project’ objective of the EU’s ‘Global Europe Project’

2525

The EC’s ‘Global Europe’ Project (2006)The EC’s ‘Global Europe’ Project (2006)The real EPA AgendaThe real EPA Agenda??

EU will pursue bilateral trade agreements with EU will pursue bilateral trade agreements with major emerging economies to secure new and major emerging economies to secure new and profitable markets for EU companies exports and profitable markets for EU companies exports and investments and access to energy and others investments and access to energy and others resources. BTAs will aim to includeresources. BTAs will aim to include

Rules securing European investments Rules securing European investments Stronger Intellectual property rights coverage and Stronger Intellectual property rights coverage and

enforcement provisions, including geographical enforcement provisions, including geographical indications  indications  

Reduction of non-tariff barriers to EU exports and Reduction of non-tariff barriers to EU exports and investments, e.g. in application of anti-dumping investments, e.g. in application of anti-dumping mechanisms, national treatment, competition mechanisms, national treatment, competition policypolicy

Opening up of public procurement marketsOpening up of public procurement markets The European Services Forum, a coalition of EU The European Services Forum, a coalition of EU

service firms, has also lobbied strongly for the service firms, has also lobbied strongly for the inclusion of services in BTAsinclusion of services in BTAs

2626

Competition in the EPACompetition in the EPA‘‘The EU’s strategy is to achieve international The EU’s strategy is to achieve international

convergence on competition policy on the convergence on competition policy on the basis of the European model – rules that basis of the European model – rules that would prevent other governments from would prevent other governments from allowing domestic cartels, monopolies, allowing domestic cartels, monopolies, “unfair” trade practices and would prevent “unfair” trade practices and would prevent or make it more difficult for governments or make it more difficult for governments to give state aid to their domestic firms or to give state aid to their domestic firms or provide other support that would protect provide other support that would protect their firms from international competition’.their firms from international competition’.

From ‘Competition Policy in the EPAs’ (see list of sources)From ‘Competition Policy in the EPAs’ (see list of sources)

2727

Competition obligation in the EPACompetition obligation in the EPAExample (1)Example (1)

““The Parties and the Signatory CARIFORUM The Parties and the Signatory CARIFORUM States shall ensure that within 5 years of States shall ensure that within 5 years of the coming into force of this Agreement the coming into force of this Agreement they have laws in force addressing they have laws in force addressing restrictions on competition within their restrictions on competition within their jurisdiction, and the bodies referred to in jurisdiction, and the bodies referred to in Article 125(1)”Article 125(1)”

From Article 127From Article 127

2828

Competition – example (2)Competition – example (2)““With regard to public enterprises and enterprises With regard to public enterprises and enterprises

to which special or exclusive rights have been to which special or exclusive rights have been granted, the Parties and the Signatory granted, the Parties and the Signatory CARIFORUM States shall ensure that, following CARIFORUM States shall ensure that, following the date of the entry into force of this Agreement, the date of the entry into force of this Agreement, there is neither enacted nor maintained any there is neither enacted nor maintained any measure distorting trade in goods or services measure distorting trade in goods or services between the Parties to an extent contrary to the between the Parties to an extent contrary to the Parties interest, and that such enterprises shall Parties interest, and that such enterprises shall be subject to the rules of competition in so far as be subject to the rules of competition in so far as the application of such rules does not obstruct the the application of such rules does not obstruct the performance, in law or in fact or the particular performance, in law or in fact or the particular tasks assigned to them.tasks assigned to them. “ “

(Article 129.2, emphasis added)(Article 129.2, emphasis added)

2929

Competition – Example (3)Competition – Example (3)““The Parties and the Signatory CARIFORUM States The Parties and the Signatory CARIFORUM States

shall progressively adjust, without prejudice to shall progressively adjust, without prejudice to their obligations under the WTO Agreement, any their obligations under the WTO Agreement, any State monopolies of a commercial nature or State monopolies of a commercial nature or character, so as to ensure that, by the end of the character, so as to ensure that, by the end of the fifth year following the entry into force of this fifth year following the entry into force of this Agreement, Agreement, no discrimination regarding the no discrimination regarding the conditions under which goods and services are conditions under which goods and services are sold or purchased exists between nationals of the sold or purchased exists between nationals of the Member States of the European Communities and Member States of the European Communities and those of the CARIFORUM Statesthose of the CARIFORUM States, unless such , unless such discrimination is inherent in the existence of the discrimination is inherent in the existence of the monopoly in question”monopoly in question”

(Article 129.4, emphasis added(Article 129.4, emphasis added) )

3030

Cooperation in CompetitionCooperation in Competition

The areas prioritised reflect EU interests in The areas prioritised reflect EU interests in promoting ‘international convergence on the promoting ‘international convergence on the basis of the European model’: basis of the European model’:

the efficient functioning of the CARIFORUM the efficient functioning of the CARIFORUM

Competition Authorities;Competition Authorities; assistance in drafting guidelines, manuals and, assistance in drafting guidelines, manuals and,

where necessary, legislation;where necessary, legislation; the provision of independent experts; andthe provision of independent experts; and the provision of training for key personnel the provision of training for key personnel

involved in the implementation of and involved in the implementation of and enforcement of competition policy”enforcement of competition policy”..

From Article 130From Article 130

3131

Innovation and Intellectual PropertyInnovation and Intellectual PropertyChapter 2 Title IVChapter 2 Title IV

Section 1, which is CARIFORUM’s main interest, Section 1, which is CARIFORUM’s main interest, largely provides for largely provides for non-binding commitmentsnon-binding commitments and declarations and measures that will be and declarations and measures that will be defined during implementation. The difficulty will defined during implementation. The difficulty will be to determine the scope and measures that can be to determine the scope and measures that can be considered as adequate implementation of the be considered as adequate implementation of the commitments. commitments.

Section 2, which is the EC’s main interest, mainly Section 2, which is the EC’s main interest, mainly establishes establishes binding standardsbinding standards of Intellectual of Intellectual Property protection that must be implemented by Property protection that must be implemented by the Parties; and that can that can be easily the Parties; and that can that can be easily verified and assessed for purposes of ensuring verified and assessed for purposes of ensuring compliance.compliance.

3232

Non-binding commitments in support of Non-binding commitments in support of Innovation – Example (1)Innovation – Example (1)

Article 134 - Participation in framework programmesArticle 134 - Participation in framework programmes

““1.1. The participation of the Parties and the Signatory The participation of the Parties and the Signatory CARIFORUM States in existing and future framework CARIFORUM States in existing and future framework programmes, specific programmes and other activities of programmes, specific programmes and other activities of the other Party shall be facilitated and promoted, in so far the other Party shall be facilitated and promoted, in so far as it is permitted by each Party's internal rules governing as it is permitted by each Party's internal rules governing access to the programmes and activities concerned.access to the programmes and activities concerned.

2.2. The CARIFORUM-EC Trade and Development The CARIFORUM-EC Trade and Development Committee may make recommendations in order to Committee may make recommendations in order to facilitate the participation of CARIFORUM institutions and facilitate the participation of CARIFORUM institutions and enterprises in the programmes referred to in paragraph 1 enterprises in the programmes referred to in paragraph 1 and shall periodically review such participation”. and shall periodically review such participation”.

3333

Non-binding commitments: Example (2)Non-binding commitments: Example (2)From Article 135 (2)From Article 135 (2)“…“…the Parties agree to cooperate, including by the Parties agree to cooperate, including by

facilitating support, in the following areas: facilitating support, in the following areas: (a) promotion of innovation, diversification, (a) promotion of innovation, diversification,

modernisation, development and product and modernisation, development and product and process quality in businesses;process quality in businesses;

(b) promotion of creativity and design, particularly (b) promotion of creativity and design, particularly in micro, small and medium enterprises, and in micro, small and medium enterprises, and exchanges between networks of design centres exchanges between networks of design centres located in the EC Party and the CARIFORUM located in the EC Party and the CARIFORUM States;States;

(c) promotion of dialogue and exchanges of (c) promotion of dialogue and exchanges of experience and information between networks of experience and information between networks of economic operators;economic operators;

(d) technical assistance, conferences, seminars, (d) technical assistance, conferences, seminars, exchange visits, prospecting for industrial and exchange visits, prospecting for industrial and technical opportunities, participation in round technical opportunities, participation in round tables and general and sectoral trade fairs;tables and general and sectoral trade fairs;

3434

Binding commitments for IP protection – Binding commitments for IP protection – Example (1) accession to international Example (1) accession to international

agreementsagreements

Article 143.1 Article 143.1 11.. The EC Party and the Signatory CARIFORUM States The EC Party and the Signatory CARIFORUM States

shall comply with:shall comply with: a)a) The World Intellectual Property Organization The World Intellectual Property Organization

(WIPO) Copyright Treaty (Geneva, 1996); and(WIPO) Copyright Treaty (Geneva, 1996); and b)b) The WIPO Performances and Phonograms The WIPO Performances and Phonograms

Treaty (Geneva, 1996).Treaty (Geneva, 1996). 2.2. The Signatory CARIFORUM States shall The Signatory CARIFORUM States shall

endeavour to accede to the Rome Convention for endeavour to accede to the Rome Convention for the Protection of Performers, Producers of the Protection of Performers, Producers of Phonograms and Broadcasting Organisations Phonograms and Broadcasting Organisations (1961).”(1961).”

3535

Example (2) TrademarksExample (2) TrademarksRegistration procedure (from Article 144)Registration procedure (from Article 144)

““The EC Party and the Signatory CARIFORUM States The EC Party and the Signatory CARIFORUM States shallshall provide for a system for the registration of provide for a system for the registration of trademarks in which each final decision taken by the trademarks in which each final decision taken by the relevant trademark administration is reasoned and relevant trademark administration is reasoned and in writing. The applicant will have the opportunity to in writing. The applicant will have the opportunity to contest the refusal to register a trademark and to contest the refusal to register a trademark and to appeal a final refusal before Court. The EC Party and appeal a final refusal before Court. The EC Party and the Signatory CARIFORUM States the Signatory CARIFORUM States shallshall also introduce also introduce the possibility to object to the registration of the possibility to object to the registration of trademarks after the publication of the applications. trademarks after the publication of the applications. The EC Party and the Signatory CARIFORUM States The EC Party and the Signatory CARIFORUM States shallshall provide publicly available electronic databases provide publicly available electronic databases of trademark applications and trademark of trademark applications and trademark registrations”. (Emphasis added)registrations”. (Emphasis added)

3636

Example (3) Geographical Example (3) Geographical IndicationsIndications

““The Signatory CARIFORUM States The Signatory CARIFORUM States shallshall establish a establish a system of protection of geographical indications system of protection of geographical indications in their respective territories in their respective territories no later than 1 no later than 1 January 2014January 2014. The Parties . The Parties shall shall cooperate through cooperate through the CARIFORUM-EC Trade and Development the CARIFORUM-EC Trade and Development Committee in accordance with the provisions of Committee in accordance with the provisions of Article 27(c) towards the development of Article 27(c) towards the development of geographical indications in the territories of the geographical indications in the territories of the CARIFORUM States. To this end, and CARIFORUM States. To this end, and within six within six months from the entry into force of the months from the entry into force of the agreement,agreement, the Cariforum States the Cariforum States shallshall submit to submit to the consideration of the CARIFORUM EC Trade the consideration of the CARIFORUM EC Trade and Development Committee a list of prospective and Development Committee a list of prospective Geographical Indications originating in the Geographical Indications originating in the CARIFORUM states for its discussion and CARIFORUM states for its discussion and comments”. (From Article 145, emphasis added)comments”. (From Article 145, emphasis added)

3737

Public ProcurementPublic Procurement‘‘A vast untapped potential’ for EU businessA vast untapped potential’ for EU business Title IV Chapter 3 sets out detailed Title IV Chapter 3 sets out detailed

obligations with respect to transparency of obligations with respect to transparency of public procurement for contracts of over public procurement for contracts of over SDR 130,000 for Supplies & Services and SDR 130,000 for Supplies & Services and SDR 5 Million for works SDR 5 Million for works

One of the most detailed chapters of the One of the most detailed chapters of the EPA, it contains EPA, it contains 8 articles, 72 paragraphs 8 articles, 72 paragraphs and 58 sub-paragraphsand 58 sub-paragraphs

Note: ‘SDR’ = ‘Special Drawing Rights’ the international currency unit Note: ‘SDR’ = ‘Special Drawing Rights’ the international currency unit of the IMFof the IMF

3838

The Public Procurement Chapter The Public Procurement Chapter General Objective General Objective DefinitionsDefinitions ScopeScope Transparency of Government ProcurementTransparency of Government Procurement Methods of ProcurementMethods of Procurement Selective TenderingSelective Tendering Limited TenderingLimited Tendering Rules of OriginRules of Origin Technical SpecificationsTechnical Specifications Qualification of SuppliersQualification of Suppliers NegotiationsNegotiations Opening of tenders and award of contractsOpening of tenders and award of contracts Information on contract awardsInformation on contract awards Time LimitsTime Limits Bid challengesBid challenges ImplementationImplementation Review ClauseReview Clause CooperationCooperation

3939

Article 167 on Public ProcurementArticle 167 on Public Procurement““The Parties and the Signatory CARIFORUM The Parties and the Signatory CARIFORUM

States shall ensure that the procurement States shall ensure that the procurement of their procuring entities covered by this of their procuring entities covered by this Chapter takes place in a transparent Chapter takes place in a transparent manner according to the provisions of this manner according to the provisions of this Chapter and the Annexes pertaining Chapter and the Annexes pertaining thereto, thereto, treating any eligible supplier of treating any eligible supplier of either the Signatory CARIFORUM States or either the Signatory CARIFORUM States or the EC Party equallythe EC Party equally in accordance with in accordance with the principle of open and effective the principle of open and effective competition.” (Emphasis added)competition.” (Emphasis added)

CRNM comment – this does not confer market access rights on CRNM comment – this does not confer market access rights on the EC, as states retain the right to determine ‘eligible the EC, as states retain the right to determine ‘eligible supplierssuppliers’ ’

4040

Example of detailed provisionsExample of detailed provisionsArticle 167.3 – 3-4Article 167.3 – 3-4““For each procurement covered by this Chapter, For each procurement covered by this Chapter,

procuring entities shall, save as otherwise procuring entities shall, save as otherwise provided, publish in advance a notice of intended provided, publish in advance a notice of intended procurement. Each notice shall be accessible procurement. Each notice shall be accessible during the entire time period established for during the entire time period established for tendering for the relevant procurement. tendering for the relevant procurement.

The information in each notice of intended The information in each notice of intended procurement shall include at least the following:procurement shall include at least the following:

name, address, fax number, electronic address name, address, fax number, electronic address

(where available) of the procuring entity and, if (where available) of the procuring entity and, if different, the address where all documents different, the address where all documents relating to the procurement may be obtained;relating to the procurement may be obtained;

4141

Detailed provisions (Con’t)Detailed provisions (Con’t) the tendering procedure chosen and the form of the tendering procedure chosen and the form of

the contract;the contract; a description of the intended procurement, as a description of the intended procurement, as

well as essential contract requirements to be well as essential contract requirements to be fulfilled;fulfilled;

any conditions that suppliers must fulfil to any conditions that suppliers must fulfil to participate in the procurement;participate in the procurement;

time-limits for submission of tenders and, where time-limits for submission of tenders and, where applicable, any time limits for the submission of applicable, any time limits for the submission of requests for participation in the procurement.requests for participation in the procurement.

all criteria to be used for the award of the all criteria to be used for the award of the contract; andcontract; and

if possible, terms of payment and other terms.”if possible, terms of payment and other terms.”

4242

National Treatment’ in the EPA National Treatment’ in the EPA Prevent policies fostering development of local/regional firmsPrevent policies fostering development of local/regional firms

ExamplesExamplesArticle 27 Article 27 1. “Originating imports shall not be subject, either 1. “Originating imports shall not be subject, either

directly or indirectly, to internal taxes or other internal directly or indirectly, to internal taxes or other internal charges of any kind in excess of those applied, directly or charges of any kind in excess of those applied, directly or indirectly, to like domestic products. ..indirectly, to like domestic products. ..

““2. Originating imports shall be accorded treatment no less 2. Originating imports shall be accorded treatment no less favourable than that accorded to like domestic products favourable than that accorded to like domestic products in respect of all laws, regulations and requirements in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, affecting their internal sale, offering for sale, purchase, transportation, distribution or use. ..transportation, distribution or use. ..

3 No Party or Signatory CARIFORUM State shall establish or 3 No Party or Signatory CARIFORUM State shall establish or maintain any internal quantitative regulation relating to maintain any internal quantitative regulation relating to the mixture, processing or use of products in specified the mixture, processing or use of products in specified amounts or proportions which requires, directly or amounts or proportions which requires, directly or indirectly, that any specified amount or proportion of any indirectly, that any specified amount or proportion of any product which is the subject of the regulation must be product which is the subject of the regulation must be supplied from domestic sources.”supplied from domestic sources.”

Exceptions: (i) payment of subsidies to national producers (ii) Exceptions: (i) payment of subsidies to national producers (ii) public procurement (iii) provisions of Art. 23public procurement (iii) provisions of Art. 23

4343

National Treatment in Investment National Treatment in Investment and Services (Article 68) and Services (Article 68)

““In the sectors where market access commitments In the sectors where market access commitments are inscribed in Annex 4 and subject to any are inscribed in Annex 4 and subject to any conditions and qualifications set out therein, with conditions and qualifications set out therein, with respect to all measures affecting commercial respect to all measures affecting commercial presence, the EC Party and the Signatorypresence, the EC Party and the Signatory

CARIFORUM States shall grant to commercial CARIFORUM States shall grant to commercial presences and investors of each other treatment presences and investors of each other treatment no less favourable than that they accord to their no less favourable than that they accord to their own like commercial presences and investors’own like commercial presences and investors’

Note:Note: The official text of Annex 4 has not yet been published The official text of Annex 4 has not yet been published

4444

Summary assessmentSummary assessmentThe EPA gives Cariforum..The EPA gives Cariforum..

Preservation of existing duty-free quota-free Preservation of existing duty-free quota-free access in Europe for 97% of exports of goods, with access in Europe for 97% of exports of goods, with certain temporary exceptions, and eventual certain temporary exceptions, and eventual coverage of 100%. The relative advantage of this coverage of 100%. The relative advantage of this access will decline over the years due to ongoing access will decline over the years due to ongoing liberalization and EU BTAs with other regionsliberalization and EU BTAs with other regions

Additional market access in services, subject to Additional market access in services, subject to many conditions. These may take some time to many conditions. These may take some time to fulfill and will have cost implications. Also, CF fulfill and will have cost implications. Also, CF countries will be better placed than others to take countries will be better placed than others to take advantage of this.advantage of this.

No additional development funding over and No additional development funding over and above what was provided for under the Cotonou above what was provided for under the Cotonou agreementagreement

4545

In return for…In return for… Phased liberalization of CF markets to the Phased liberalization of CF markets to the

majority of EU goods over a 15-year period; 10% majority of EU goods over a 15-year period; 10% of imports permanently excluded from of imports permanently excluded from liberalizationliberalization

Liberalization of the majority of services in the CF Liberalization of the majority of services in the CF market for EU firms and service providers market for EU firms and service providers

Binding commitments across a wide range of Binding commitments across a wide range of areas including investment, competition, public areas including investment, competition, public procurement, intellectual property and e-procurement, intellectual property and e-commerce.commerce.

Elaborate and detailed Dispute Settlement and Elaborate and detailed Dispute Settlement and Implementation machinery Implementation machinery

4646

Meetings of these bodies will be demanding of time, scarce manpower, and reporting and servicing responsibilities and will have a considerable opportunity cost in terms of resource diversion in the small resource-challenged states of CF which cannot now adequately service all their international trade-related and CSME implementation obligations.

There will be penalties for failure to adequately service this structure—loss of market access, development cooperation, and trade sanctions

JOINT CARIFORUM-EC COUNCIL

TRADE AND DEVELOPMENT COMMITTEE

COMMITTEE ON CUSTOMS CO-OPERATION AND TRADE FACILITATION

CONSULTATIVE COMMITTEE

PARLIAMENTARY COMMITTEE

Prepared by Norman Girvan on the basis of the EPA text. 18/03/08.

Implementation Machinery

4747

Joint EC-Cariforum CouncilJoint EC-Cariforum CouncilPart V Articles 227-229Part V Articles 227-229

Composition: Members of the Council of the EU, Composition: Members of the Council of the EU, members of the EC, and representatives of the CF members of the EC, and representatives of the CF states. states.

In matters where CF states agree to act In matters where CF states agree to act collectively “One representative of the CF states collectively “One representative of the CF states will act on their behalf”will act on their behalf”

Responsible for operation and implementation of Responsible for operation and implementation of the Agreement and to “ensure that the Objectives the Agreement and to “ensure that the Objectives are fulfilled”are fulfilled”

Decisions are by consensus and are binding and Decisions are by consensus and are binding and Parties “shall take measures to implement them”Parties “shall take measures to implement them”

Other responsibilities set out in 19 paras. Other responsibilities set out in 19 paras. Read ‘Institutional Machinery of the EPA’ at http://normangirvan.info Read ‘Institutional Machinery of the EPA’ at http://normangirvan.info

4848

Trade and Development CommitteeTrade and Development CommitteeArticles 230-231, references in several other Articles Articles 230-231, references in several other Articles

Composed of Senior Officials – CF one Composed of Senior Officials – CF one representative in matters of collective representative in matters of collective action action

56 functions and responsibilities set out in 56 functions and responsibilities set out in Article 230 and other references Article 230 and other references

Special Committee on Customs Cooperation Special Committee on Customs Cooperation and Trade Facilitation – 13 functions, powers and Trade Facilitation – 13 functions, powers and responsibilitiesand responsibilities

Further details in ’Institutional Machinery of the EPA’Further details in ’Institutional Machinery of the EPA’

4949

Towards regional disintegration?Towards regional disintegration? Parties to the EPA are the EC, CF states ‘acting Parties to the EPA are the EC, CF states ‘acting

collectively’ and 15 Signatory CF states. Neither collectively’ and 15 Signatory CF states. Neither Caricom nor Cariforum is juridically a Party Caricom nor Cariforum is juridically a Party

Most binding obligations are with ‘Signatory CF Most binding obligations are with ‘Signatory CF states’, implying that they are treated as states’, implying that they are treated as individual juridical entities for purpose of individual juridical entities for purpose of compliance with these obligations compliance with these obligations

In implementation, this will tilt bargaining power In implementation, this will tilt bargaining power even more heavily in favour of Europe. even more heavily in favour of Europe.

Dominican Republic will be a major playerDominican Republic will be a major player Cariforum states may end up competing with one Cariforum states may end up competing with one

another in implementation, possible widening of another in implementation, possible widening of intra-regional inequalities and regional intra-regional inequalities and regional disintegration.disintegration.

5050

Marginalization of CSME?Marginalization of CSME? EPA is EU-DR-Caricom ‘Single Market’ for Goods, Services, EPA is EU-DR-Caricom ‘Single Market’ for Goods, Services,

and Capital and ‘Single Economy’ in Intellectual Property, and Capital and ‘Single Economy’ in Intellectual Property, Competition, Public Procurement, e-commerce, Competition, Public Procurement, e-commerce, Environment and Social Aspects Environment and Social Aspects

The EPA organs of governance may rival those of Caricom The EPA organs of governance may rival those of Caricom e.g., e.g.,

• What will the authority of the Conference of Caricom Heads What will the authority of the Conference of Caricom Heads of Government, or the Caricom Council for Trade and of Government, or the Caricom Council for Trade and Economic Development (COTED) vis-à-vis that of the Joint Economic Development (COTED) vis-à-vis that of the Joint EC-CF Council and the Trade and Development Committee?EC-CF Council and the Trade and Development Committee?

The purpose of the CSME was The purpose of the CSME was • to create a single economic space to enhance to create a single economic space to enhance

competitiveness and foster the development of regional competitiveness and foster the development of regional firms and production networks for successful exporting to firms and production networks for successful exporting to world markets; and world markets; and

• pool bargaining power. pool bargaining power. Is this path effectively foreclosed by the EPA ?Is this path effectively foreclosed by the EPA ?

5151

Other voices (1) - Report of the Cotonou Other voices (1) - Report of the Cotonou Monitoring Group on review of the ACP Monitoring Group on review of the ACP

guidelines and the EU negotiating mandates guidelines and the EU negotiating mandates

"Despite its over-riding policy emphasis on "Despite its over-riding policy emphasis on poverty eradication and sustainable poverty eradication and sustainable development, for the EU the ACP-EU negotiations development, for the EU the ACP-EU negotiations are primarily about one thing, namely achieving are primarily about one thing, namely achieving the progressive and reciprocal liberalisation of the progressive and reciprocal liberalisation of trade in goods and services…not taking into trade in goods and services…not taking into account the level of development of the ACP account the level of development of the ACP countries and the economic, social and countries and the economic, social and environmental constraints they are facing." environmental constraints they are facing."

The emphasis is very much on "removing The emphasis is very much on "removing progressively barriers to trade." This is the progressively barriers to trade." This is the overwhelming focus of the EU negotiating overwhelming focus of the EU negotiating directives.directives.

Clive Thomas, Design and Architecture of the EPA, Stabroek News Clive Thomas, Design and Architecture of the EPA, Stabroek News 24/02/0824/02/08

5252

(2) Report of the Select Committee on International (2) Report of the Select Committee on International Development of the UK Parliament on progress of the Development of the UK Parliament on progress of the

EPAs (2004-2005EPAs (2004-2005))

Condemned the negotiations for being non-Condemned the negotiations for being non-transparent and conducted away from effective transparent and conducted away from effective public scrutinypublic scrutiny

““Without special and differential treatment, the Without special and differential treatment, the agreements will not be fair." " agreements will not be fair." "

Advised of potential conflict with ACP regional Advised of potential conflict with ACP regional integration efforts. integration efforts.

‘‘Appalled at the cynical, manipulative way the EU Appalled at the cynical, manipulative way the EU was handling the negotiations, comparing it to a was handling the negotiations, comparing it to a game of poker, where the winner-takes-all. It also game of poker, where the winner-takes-all. It also stressed the unequal power relation. stressed the unequal power relation. Clive Thomas, ‘Design and Architecture’…Stabroek News 24/02/08’Clive Thomas, ‘Design and Architecture’…Stabroek News 24/02/08’

5353

(3) Declaration by ACP Ministers, (3) Declaration by ACP Ministers, 13th December 2007, 13th December 2007,

““The European Union’s The European Union’s

mercantilist interests have mercantilist interests have taken precedence over the taken precedence over the ACP’s developmental and ACP’s developmental and regional integration interests” regional integration interests”

5454

How did we get to this?How did we get to this?Critical points in the EPA negotiations (1) 2000-2004Critical points in the EPA negotiations (1) 2000-2004

2000 – Cotonou Partnership Agreement sets out 2000 – Cotonou Partnership Agreement sets out EPA objectives, architecture & time-table for ACP EPA objectives, architecture & time-table for ACP

2000 – EU gives duty free quota free access to its 2000 – EU gives duty free quota free access to its market to all Least Developed Countries including market to all Least Developed Countries including non-ACPnon-ACP

2001 – Doha WTO meeting agrees to waiver for EU-2001 – Doha WTO meeting agrees to waiver for EU-ACP non-reciprocal trade preferences to 12/2007ACP non-reciprocal trade preferences to 12/2007

2003 - Phase 1 negotiations with all ACP concluded 2003 - Phase 1 negotiations with all ACP concluded without binding agreement on Phase 2 without binding agreement on Phase 2

2003 – Cancun WTO Ministerial ends with rejection 2003 – Cancun WTO Ministerial ends with rejection of ‘Singapore Issues’ from scope of Doha Round.of ‘Singapore Issues’ from scope of Doha Round.

2004 – Phase 2 negotiations begin with 6 separate 2004 – Phase 2 negotiations begin with 6 separate ACP groups; Cariforum negotiations within a ‘WTO-ACP groups; Cariforum negotiations within a ‘WTO-plus’ framework that includes some of the plus’ framework that includes some of the Singapore Issues Singapore Issues

5555

The second phase: 2004--2007 The second phase: 2004--2007 2004: EC determines that GSP tariffs are the only 2004: EC determines that GSP tariffs are the only

alternative for countries that don’t wish to sign alternative for countries that don’t wish to sign EPAs. Bargaining power shifts decisively towards EPAs. Bargaining power shifts decisively towards the EC.the EC.

2005-2007 Doha Round at WTO deadlocked; EC 2005-2007 Doha Round at WTO deadlocked; EC adopts its ‘Global Europe’ project focusing on adopts its ‘Global Europe’ project focusing on bilateral agreements that are WTO-plus. bilateral agreements that are WTO-plus.

2006-2007 CF negotiations proceed on a WTO-2006-2007 CF negotiations proceed on a WTO-plus agreement; the main stumbling block is plus agreement; the main stumbling block is scope and speed of import liberalization scope and speed of import liberalization

End 2007 – EC pressures several African and End 2007 – EC pressures several African and Pacific countries to sign ‘Interim EPAs’ using Pacific countries to sign ‘Interim EPAs’ using threat of imposition of GSP tariffs; threat of imposition of GSP tariffs;

CF makes last-minute concessions in market CF makes last-minute concessions in market access and initials WTO-plus agreement access and initials WTO-plus agreement

5656

So what happens now?So what happens now?

Option 1: Review, Revise Option 1: Review, Revise & Re-negotiate& Re-negotiate

Option 2: Sign now, make Option 2: Sign now, make the best of it, and try to the best of it, and try to change it later if necessarychange it later if necessary

5757

How much scope is there for revision of the EPA How much scope is there for revision of the EPA after it is signed, ratified and brought into force ?after it is signed, ratified and brought into force ?

Revision Clause Article 246 (1)Revision Clause Article 246 (1).. “The Parties agree to consider extending this “The Parties agree to consider extending this

Agreement with the aim of Agreement with the aim of broadening and broadening and supplementing its scopesupplementing its scope in accordance with their in accordance with their respective legislation, by amending it or respective legislation, by amending it or concluding agreements on specific sectors or concluding agreements on specific sectors or activities in the light of the experience gained activities in the light of the experience gained during its implementation. The Parties may also during its implementation. The Parties may also consider revising this Agreement consider revising this Agreement to bring to bring Overseas Countries and Territories associated Overseas Countries and Territories associated with the European Community within the scopewith the European Community within the scope of of this Agreement.” (Emphasis added)this Agreement.” (Emphasis added)

5858

Revision Clause (continued)Revision Clause (continued)

Article 246 (2) and (3)Article 246 (2) and (3)2. “As regards the implementation of this 2. “As regards the implementation of this

Agreement, either Party may make Agreement, either Party may make suggestionssuggestions oriented towards adjusting oriented towards adjusting trade related cooperation, taking into trade related cooperation, taking into account the experience acquired during account the experience acquired during the implementation thereof.the implementation thereof.

3.3.The Parties agree that this Agreement may The Parties agree that this Agreement may need to be reviewed in the light of the need to be reviewed in the light of the expiration of the Cotonou Agreementexpiration of the Cotonou Agreement.” .” (i.e. in 2020. Emphasis added)(i.e. in 2020. Emphasis added)

5959

ConclusionConclusion

The possibility for revising the Agreement is The possibility for revising the Agreement is limited to limited to

(i)(i) extending the scope of commitments (e.g. in extending the scope of commitments (e.g. in services, public procurement, investment) services, public procurement, investment)

(ii)(ii) including the Overseas Countries and including the Overseas Countries and Territories, Territories,

(iii)(iii)varying of specific measures by the varying of specific measures by the implementation committees, within the implementation committees, within the limits set by the terms of the Agreement limits set by the terms of the Agreement itself itself

6060

Can the EPA be renegotiated?Can the EPA be renegotiated?Proposal from Havelock Brewster, Norman Girvan & Vaughan LewisProposal from Havelock Brewster, Norman Girvan & Vaughan Lewis

EPA has been initialed, but not yet signed, EPA has been initialed, but not yet signed, provisionally applied and brought into force provisionally applied and brought into force

Any challenge in the WTO to the continuation of Any challenge in the WTO to the continuation of non-reciprocal market access for CF exports to non-reciprocal market access for CF exports to Europe before the EPA is finalised and approved Europe before the EPA is finalised and approved by the WTO, will take time to be mounted and by the WTO, will take time to be mounted and adjudicatedadjudicated

Brazil has objected to the EPAs, as initialed, on Brazil has objected to the EPAs, as initialed, on the grounds that the Most Favoured Nation the grounds that the Most Favoured Nation clause is inconsistent with the GATT rules on clause is inconsistent with the GATT rules on Special and Differential Treatment and will Special and Differential Treatment and will discourage South-South Trading agreements discourage South-South Trading agreements

These developments open a possible ‘window of These developments open a possible ‘window of opportunity’ to re-open, review and re-negotiate opportunity’ to re-open, review and re-negotiate what has been initialed what has been initialed

6161

A possible course of action?A possible course of action?1.1. Signal to EC that the initialed EPA cannot be signed and Signal to EC that the initialed EPA cannot be signed and

provisionally applied due to insufficient consultation and provisionally applied due to insufficient consultation and evaluationevaluation

1.1. Commit to concluding a WTO-compatible, but not a WTO-Commit to concluding a WTO-compatible, but not a WTO-plus, EPA by end 2008plus, EPA by end 2008

2.2. Defer negotiation of WTO-plus subjects until agreement Defer negotiation of WTO-plus subjects until agreement reached at WTO or CSME regimes completedreached at WTO or CSME regimes completed

3.3. Seek to renegotiate market access commitments in light Seek to renegotiate market access commitments in light of impact on employment, incomes and fiscal revenue; of impact on employment, incomes and fiscal revenue; more detailed analysis by country; propose targeted more detailed analysis by country; propose targeted infrastructure and firm level support for the development infrastructure and firm level support for the development of supply and marketing capabilities. of supply and marketing capabilities.

4.4. Mobilise political and diplomatic from national and Mobilise political and diplomatic from national and regional stakeholders, the DR, other ACP around a regional stakeholders, the DR, other ACP around a common position, EU NGOs and other stakeholders, and common position, EU NGOs and other stakeholders, and the Caribbean Diaspora. the Caribbean Diaspora.

‘‘Renegotiate the EPA’ is at http://normangirvan.infoRenegotiate the EPA’ is at http://normangirvan.info

6262

There are risks in either courseThere are risks in either course Changing course is risky—threat of GSP Changing course is risky—threat of GSP

treatment and loss of credibilitytreatment and loss of credibility But there maybe limited scope for revision But there maybe limited scope for revision

of the EPA once it is brought into force of the EPA once it is brought into force Is the present course coherent?Is the present course coherent?

• CF Member states to review the EPA—what if CF Member states to review the EPA—what if they find they need to change it? they find they need to change it?

• If ‘implement and then revise” is the decision—If ‘implement and then revise” is the decision—will this be possible? will this be possible?

• If ‘make the best of it’ is the approach, won’t If ‘make the best of it’ is the approach, won’t some benefit more than others, leading to some benefit more than others, leading to possible intra-regional competition and possible intra-regional competition and fragmentation?fragmentation?

6363

Information on the EPAInformation on the EPAAvailable at Available at http://normangirvan.infohttp://normangirvan.info : : Official Main Text of the EPA and the schedules of Official Main Text of the EPA and the schedules of

market access commitments in goods and services, as market access commitments in goods and services, as initialed on 16/12/07initialed on 16/12/07

Analytical notes on the EPA includingAnalytical notes on the EPA including• Institutional MachineryInstitutional Machinery• Most Favoured Nation’ clauseMost Favoured Nation’ clause• Innovation and Intellectual PropertyInnovation and Intellectual Property• Competition PolicyCompetition Policy

Links to Commentaries, Technical Studies and News Links to Commentaries, Technical Studies and News Items, the Statement and comments by a Group of Items, the Statement and comments by a Group of Concerned Caribbean CitizensConcerned Caribbean Citizens

On the negotiation process since 2000 see articles by On the negotiation process since 2000 see articles by Clive Thomas and by Havelock Brewster Clive Thomas and by Havelock Brewster

Visit the CRNM website at Visit the CRNM website at www.crnm.orgwww.crnm.org for official for official information and explanations of the EPA.information and explanations of the EPA.