ORGANIZATION OF
AMERICAN STATES - TRADE UNIT |
PROVISIONS ON STANDARDS AND CONFORMITY
ASSESSMENT IN TRADE AND INTEGRATION ARRANGEMENTS OF THE WESTERN
HEMISPHERE |
SG/TU/WG.STBT/DOC.6/96/Rev.3
9 February 1998
Original: English
Limited Distribution |
Part I |
PROVISIONS ON
STANDARDS AND TECHNICAL BARRIERS TO TRADE
IN SUBREGIONAL TRADE AND INTEGRATION ARRANGEMENTS
|
VII. TRANSPARENCY
REQUIREMENTS
A. Notification
WTO |
Article 2.9:
Whenever a relevant international standard does not exist or the
technical content of a proposed technical regulation is not in
accordance with the technical content of relevant international
standards, and if the technical regulation may have a significant
effect on trade of other Members, Members shall:
- publish a notice in a publication at an early appropriate
stage, in such a manner as to enable interested parties in other
Members to become acquainted with it, that they propose to
introduce a particular technical regulation;
- notify other Members through the Secretariat of the products
to be covered by the proposed technical regulation, together
with a brief indication of its objective and rationale. Such
notifications shall take place at an early appropriate stage,
when amendments can still be introduced and comments taken into
account;
- upon request, provide to other Members particulars or copies
of the proposed technical regulation and, whenever possible,
identify the proposed parts which in substance deviate from
relevant international standards; and
- without discrimination, allow reasonable time for other
Members to make comments in writing, discuss these comments upon
request and take these written comments and the results of these
discussions into account.
Article 2.10: Subject to the provisions in the lead-in to
paragraph 9, where urgent problems of safety, health, environmental
protection or national security arise or threaten to arise for a
Member, that Members may omit such of the steps enumerated in
paragraph 9 as it finds necessary, provided that the Member, upon
adoption of a technical regulation, shall:
- notify immediately other Members through the Secretariat of
the particular technical regulation and the products covered,
with a brief indication of the objective and the rationale of
the technical regulation, including the nature of the urgent
problems;
- upon request, provide other Members with copies of the
technical regulation; and
- without discrimination, allow other Members to present their
comments in writing, discuss these comments upon request, and
take these written comments and the results of these discussions
into account.
Article 5.6: Whenever a relevant guide or recommendation
issued by an international standardizing body does not exist or the
technical content of a proposed conformity assessment procedure is
not in accordance with relevant guides and recommendations issued by
international standardizing bodies, and if the conformity assessment
procedure may have a significant effect on trade of other Members,
Members shall:
- publish a notice in a publication at an early appropriate
stage, in such a manner as to enable interested parties in other
Members to become acquainted with it, that they propose to
introduce a particular conformity assessment procedure;
- notify other Members through the Secretariat of the products
to be covered by the proposed conformity assessment procedure,
together with a brief indication of its objective and rationale.
Such notifications shall take place at an early appropriate
stage, when amendments can still be introduced and comments
taken into account;
- upon request, provide to other Members particulars or copies
of the proposed procedure and, whenever possible, identify the
proposed parts which in substance deviate from relevant guides
or recommendations issued by international standardizing bodies;
and
- without discrimination, allow reasonable time for other
Members to make comments in writing, discuss these comments upon
request, and take these written comments and the results of
these discussions into account.
Article 5.7: Subject to the provisions in the lead-in to 5.9,
where urgent problems of safety, health, environmental protection or
national security arise or threaten to arise for a Member, that
Members may omit such of the steps enumerated in 5.9 as it finds
necessary, provided that the Member, upon adoption of a technical
regulation, shall:
- notify immediately other Members through the Secretariat of
the particular technical regulation and the products covered,
with a brief indication of the objective and the rationale of
the technical regulation, including the nature of the urgent
problems;
- upon request, provide other Members with copies of the
technical regulation; and
- without discrimination, allow other Members to present their
comments in writing, discuss these comments upon request, and
take these written comments and the results of these discussions
into account.
Article 10.3: Each Member shall take such reasonable measures
as may be available to it to ensure that one or more enquiry points
exist which are able to answer all reasonable enquiries from other
Members and interested parties in other Members as well as to
provide the relevant documents or information as to where they can
be obtained regarding:
- any standards adopted or proposed within its territory by
non-governmental standardizing bodies, or by regional
standardizing bodies of which such bodies are members or
participants;
- any conformity assessment procedures, or proposed conformity
assessment procedures, which are operated within its territory
by non-governmental bodies, or by regional bodies of which such
bodies are members or participants; and
- the membership and participation of relevant non-governmental
bodies within its territory in international and regional
standardizing bodies and conformity assessment systems, as well
as in bilateral and multilateral arrangements within the scope
of this Agreement; they shall also be able to provide reasonable
information on the provisions of such systems and arrangements.
Article 10.6: The Secretariate shall, when it receives
notifications in accordance with the provisions of this Agreement,
circulate copies of the notifications to all Members and
interested international standardizing and conformity assessment
bodies, and draw the attention of developing country Members to
any notifications relating to products of particular interest to
them.
Article 10.7: Whenever a Member has reached an agreement with
any other country or countries on issues related to technical
regulations, standards or conformity assessment procedures which may
have a significant effect on trade, at least one Member party to the
agreement shall notify other Members through the Secretariat of the
products to be covered by the agreement and include a brief
description of the agreement. Members concerned are encouraged to
enter, upon request, into consultations with other Members for the
purposes of concluding similar agreements or of arranging for their
participation in such agreements.
Article 10.8: Nothing in this Agreement shall be construed as
requiring:
- the publication of texts other than in the language of the
Member;
- the provision of particulars or copies of drafts other than in
the language of the Member except as stated in paragraph 5; or
- Members to furnish any information, the disclosure of which
they consider contrary to their essential security interests.
Article 10.9: Notifications to the Secretariate shall be in
English, French or Spanish.
Article 10.10: Members shall designate a single central
government authority that is responsible for the implementation on
the national level of the provisions concerning notification
procedures under this Agreement except those included in Annex 3.
Article 10.11: If, however, for legal or administrative
reasons the responsibility for notification procedures is divided
among two or more central government authorities, the Member
concerned shall provide to the other Members complete and
unambiguous information on the scope of responsibility of each of
these authorities. |
NAFTA |
Article 909.1:
Further to Article 1802 (Publication) and 1803 (Notification and
Provision of Information), each Party proposing to adopt or modify a
technical regulation shall:
- at least 60 days prior to the adoption or modification of the
measure, other than a law, publish a notice and notify in
writing the other Parties of the proposed measure in such a
manner as to enable interested persons to become acquainted with
the proposed measure, except that in the case of any such
measure relating to perishable goods, each Party shall, to the
greatest extent practicable, publish the notice and provide the
notification at least 30 days prior to the adoption or
modification of the measure, but no later than when notification
is provided to domestic producers;
- identify in the notice and notification the good or service to
which the measure would apply, and shall provide a brief
description of the objective of, and reasons for the measure;
- provide a copy of the proposed measure to any Party or
interested person that so requests, and shall, wherever
possible, identify any provision that deviates in substance from
relevant international standards; and
- without discrimination, allow other Parties and interested
persons to make comments in writing and shall, on request,
discuss the comments and take the comments and the results of
the discussions into account.
Article 909.2: Each Party proposing to adopt or modify a
standard or any conformity assessment procedure not otherwise
considered to be a technical regulation shall, where an
international standard relevant to the proposed measure does not
exist or such measure is not substantially the same as an
international standard, and where the measure may have a significant
effect on the trade of the other Parties:
- at an early appropriate stage, publish a notice and provide a
notification of the type required in paragraph 909.1(a) and (b);
and
- observe paragraph 1(c) and (d).
Article 909.3: Each Party shall seek, through appropriate
measures, to ensure, with respect to a technical regulation of a
state or provincial government other than a local government:
- that, at an early appropriate stage, a notice and notification
of the type required under 909.1(a) and (b) are made prior to
their adoption; and
- observance of 909.1(c) and (d).
Article 909.4: Where a Party considers it necessary to
address an urgent problem relating to safety or to protection of
human, animal or plant life or health, the environment or consumers,
it may omit any step set out in 909.1 or 909.3, provided that on
adoption of a standards-related measure it shall:
- immediately provide to the other Parties a notification of the
type required under paragraph 1(b), including a brief
description of the urgent problem;
- provide a copy of the measure to any Party or interested
person that so requests; and
Article 909.5: Each Party shall, except where necessary to
address an urgent problem referred to in paragraph 4, allow a
reasonable period between the publication of a standards-related
measure and the date that it becomes effective to allow time for
interested persons to adapt to the measure.
Article 909.6: Where a Party allows non-governmental persons in
its territory to be present during the process of development of
standards-related measures, it shall also allow non-governmental
persons from the territories of the other Parties to be present.
Article 909.7: Each Party shall notify the other Parties of the
development of, amendment to, or change in the application of its
standards-related measures no later than the time at which it notifies
non-governmental persons in general or the relevant sector in its
territory.
Article 909.8: Each Party shall seek, through appropriate
measures, to ensure the observance of paragraphs 6 and 7 by a state or
provincial government, and by non-governmental standardizing bodies in
its territory.
- without discrimination, allow other Parties and interested
persons to make comments in writing, and shall, on request,
discuss the comments and take the comments and the results of the
discussions into account.
Article 909.9: Each Party shall designate by January 1, 1994 a
government authority responsible for the implementation at the federal
level of the notification provisions of this Article, and shall notify
the other Parties thereof. Where a Party designates two or more
government authorities for that purpose, it shall provide to the other
Parties complete and unambiguous information on the scope of
responsibility of each such authority. |
Andean
Community |
Article 11:
Each member country must notify the other member countries, through
the Board, of the initiation of any activity leading to the
publication of a standard, as well as the text of the same once it is
published.(Decision 376)
Article 18: Each Member Country must notify the rest of the
Member Countries, through the Board, the National Accreditation Bodies
and the bodies and persons accredited by them, indicating the areas of
action corresponding [to accreditation]. (Decision 376)
Article 27: Each member country must notify the other member
countries, through the Board, of new technical regulations that, in
accordance with the previous article, may be incorporated into their
legislation. Said notification must be realized within a period of no
less than sixty days before the date of its official publication.
Article 27: Each Member Country must notify the rest of the
Member Countries, through the Board, of the new technical regulations
that, in compliance with the preceding article, may be incorporated
into its legislation. Said notification must be realized within a
period of no less than sixty days before the date of its official
publication. To formulate the notification within the time period
indicated, it shall be necessary to require compliance by the other
Member Countries. (Decision 376) |
CACM |
|
Group of
Three |
Article 14-09.1:
Each Party shall inform the other Parties about the standards-related
measures it intends to adopt, in accordance with this chapter, before
the before the measures become effective and not after notifying its
own nationals.
Article 14-09.2: Upon proposing the adoption or modification of a
standards-related measure, each Party shall:
- at least 60 days prior to the adoption of modification of the
measure, publish a notice and notify the other Parties of its
intention to adopt or modify this measure so as to allow
interested persons to become familiar with the proposal;
- identify in the notice and the notification the good or service
to which the measure will apply, and include a brief description
of the objective of and motivation for the measure;
- provide a copy of the proposed measure to any Party or
interested person that so requests, and, whenever possible,
identify the provisions that differ substantially from relevant
international standards;
- without discrimination, allow other Parties and interested
persons to make comments and shall, on request, discuss the
comments and take into account the comments and the results of the
discussions; and
- ensure that, upon adoption of the measure, it be promptly
published or in some other form be made available to interested
persons within the Party so that they may become familiar with it.
Article 14-09.3: With respect to any technical regulation of a
state or department or municipal government, each Party shall
- ensure that at an early appropriate stage a notice is published
and the other Parties are notified of the intention of that
government to adopt or modify the measure;
- ensure that the good or service to which the technical
regulation will apply is identified within the notice and
notification, and include a brief description of the objective and
motivation for the adoption or
modification;
ensure the a copy of the proposed regulation is provided to the
Parties or any interested persons that request it; and
take reasonable measures as may be available to ensure that upon
adoption of the technical regulation, it is promptly published or
in some other form be made available to interested persons within
the Party so that they may become familiar with it.
Article 14-09.4: Each Party shall inform the other Parties
about its standardization programs and plans.
Article 14-09.5: When a Party considers it necessary to address
an urgent problem related to safety or to the protection of human,
animal or plant life or health, of the environment or practices that
may harm consumers, it may omit any of the steps established in
paragraph 14-09.2(a) and b), provided that upon adoption of the
standard-related measure it shall
- immediately notify the other parties immediately in accordance
with the requirements established in paragraph 14-09.2 (b),
including a brief description of the urgent problem;
- provide a copy of the measure to any Party or interested person
who requests it;
- without discrimination, permit other Parties or interested
persons to make comments and shall, on request, discuss the
comments and take into account the comments and the results of the
discussions; and
- ensure that the measure be promptly published to allow
interested persons within the Party to become familiar with it.
Article 14-09.6: The Parties shall, except when necessary to
address an urgent problem referred to in paragraph 14-09.5, allow a
reasonable period of time to pass between the publication of its
standards-related measures and the date they become effective, to
provide an opportunity for interested persons to adapt to the
measures.
Article 14-09.7: Each Party shall designate a government
authority responsible for the implementation at the federal or central
level of the provisions of notification in this Chapter, and shall
notify the other Parties thereof. When a Party designates two or more
government authorities for this purpose, it shall notify the other
Parties, without ambiguities or exceptions, the scope of
responsibility of these authorities. |
MERCOSUR |
Resolution 61/97: Idem. Page
25 |
ALADI |
Article 18. The
signatory countries shall promote ongoing contacts between their
national bodies for standardization, regulation, and conformity
assessment and the specialized regional bodies, in order to promote
and speed up the process of harmonization and ensure, to the extent
possible, that the Technical Regulations, Technical Standards, or
conformity assessment procedures and systems and their application
will neither impede nor hinder intra-regional trade. |
CARICOM |
|
CHILE &
MERCOSUR |
Article 26:
Provisions for the notification of new standards and technical
regulations and for their harmonization and compatibility will be
developed under the scope of the Administrative Commission. |
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B. Procedures
for Changes in Standards-Related Measures
WTO |
See Article 2.9, 2.10
above.
See Article 5.6, 5.7 above. |
NAFTA |
Articles 909.1 through
909.9, listed above, describe the appropriate procedures for
changes in Standards-Related Measures. |
Andean
Community |
|
CACM |
|
Group of
Three |
See Article 14-09
above under Notification. |
MERCOSUR |
Res. GMC 152/96.
Item 5.1. Request for review and preparation of MERCOSUR technical
regulations. |
ALADI |
|
CARICOM |
|
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C. Time
Requirements for Notification of Changes
WTO |
Article 2.11: Members
shall ensure that all technical regulations which have been adopted
are published promptly or otherwise made available in such a manner
as to enable interested parties in other Members to become
acquainted with them.
Article 2.12: Except in those urgent circumstances referred
to in Article 2, paragraph 10, Members shall allow a reasonable
interval between the publication of a technical regulation and its
entry into force in order to allow time for producers in exporting
Members, and particularly in developing country Members, to adapt
their products or methods of production to the requirements of the
importing Member. |
NAFTA |
Articles 909.1, 909.4,
909.5 and 909.7, listed above in section A), describe the
time requirements for notification of changes. |
Andean
Community |
|
CACM |
|
Group of
Three |
See Article 14-09
above under Notification. |
MERCOSUR |
|
ALADI |
|
CARICOM |
|
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VIII. DISPUTE SETTLEMENT
A. Consultations on Standards-Related
Disputes
WTO |
Article 14.1:
Consultations and the settlement of disputes with respect to any
matter affecting the operation of this Agreement shall take place
under the auspices of the Dispute Settlement Body and shall follow,
mutatis mutandis, the provisions of Articles XXII and XXIII of the
GATT 1994, as elaborated and applied by the Understanding Governing
the Rules and Procedures for Settlement of Disputes.
Article 14.2: At the request of a party to a dispute,
or at its own initiative, a panel may establish a technical expert
group to assist in questions of a technical nature, requiring
detailed consideration by experts.
Article 14.3: Technical expert groups shall be governed by
the procedures of Annex 2.
Article 14.4: The dispute settlement provisions set out above
can be invoked in cases where a Member considers that another Member
has not achieved satisfactory results under Articles 3, 4, 7, 8 and
9 and its trade interests are significantly affected. In this
respect, such results shall be equivalent to those as if the body in
question were a Member. |
NAFTA |
Article 913.2(c):
The Committee's (Committee on Standards-Related Measures) functions
shall include providing a forum for the Parties to consult on issues
relating to standards-related measures, including the provisions of
technical advice and recommendations under Article 914.
Article 914.1: Where a Party requests consultations regarding
the application if this Chapter to a standards-related measure, and
so notifies the Committee, the Committee may facilitate the
consultations, if it does not consider the matter itself, by
referring the matter for non-binding technical advice or
recommendations to a subcommittee or working group, or to another
forum.
Article 914.2: The Committee should consider any matter
referred to it under paragraph 1 as expeditiously as possible and
promptly forward to the Parties any technical advice or
recommendations that it develops or receives concerning the matter.
The Parties involved shall provide a written response to the
Committee concerning the technical advice or recommendations within
such time as the Committee may request.
Article 914.3: Where the involved Parties have had recourse
to consultations facilitated by the Committee under paragraph 1, the
consultations shall, on the agreement of the Parties involved,
constitute consultations under Article 2006 (Consultations).
Article 914.4: The Parties confirm that a Party asserting
that a standards-related measure of another Party is inconsistent
with this Chapter shall have the burden of establishing the
inconsistency. |
Andean
Community |
Article 7:
The standards, technical regulations and conformity assessment
procedures that the Member Countries elaborate, adopt, apply, or
maintain, must not have as their objective or have the effect of
creating technical obstacles to intra-subregional trade. (Decision
376)
Article 8: If a Member Country considers that the national
standards or technical regulations, or the conformity assessment
procedures of another Member Country constitute technical barriers
to trade, or diminishes its rights derived from this Decision, it
may hold consultations with the Member Country that adopts the
measure, solicit the technical intervention of the Committee or
approach the Board so that it can pronounce conformity with the
dispositions in Article 43 of the Accord, and if the Board finds
that a barrier exists may order the revocation of the measure. The
holding of consultations, the technical intervention of the
committee or the pronouncements of the Board may not exceed thirty
calender days from the date of receiving the corresponding petition.
The Board, in considering the case, may request the technical
opinion of the Committee members or of the corresponding Ad Hoc
committee members. (Decision 376). |
CACM |
|
Group of
Three |
Article 14-18.1:
When a Party has concerns regarding the interpretation or
implementation of this Chapter to its standards-related measures,
metrology, or to those of another Party, the Party may seek recourse
either through the Committee (on Standards Related Measures) or
through the dispute settlement mechanism within the Treaty. The
Parties involved shall not be allowed to use both channels
simultaneously.
Article 14-18.2: When a Party decides to seek recourse
through the Committee, the Party shall so inform the Committee so
that it can consider the matter or refer it to a subcommittee or
working group, or other competent forum, in order to obtain
non-binding technical advice or recommendations.
Article 14-18.3: the Committee shall consider any matter
referred to it, in accordance with paragraphs 14-18.1 and 2, as
expeditiously as possible and, in the same manner, forward to the
Parties any technical advice or recommendations that it develops or
receives related to that matter. Once the Parties involved receive
from the Committee the technical advice or recommendation they had
requested, they shall send a written response to the Committee
related to the technical advice or recommendation within a time
frame to be determined by the Committee.
Article 14-18.4: In accordance to paragraphs 14-18.2 and 3,
in case the technical recommendation issued by the Committee does
not solve the existing differences between the Parties involved,
they can invoke the dispute resolution mechanism of the Treaty. If
the Parties involved agree, the consultations facilitated by the
Committee shall constitute consultations under Article 19-05.
Article 14-18.5: The Party asserting that a standards-related
measure of another Party is inconsistent with the provisions of this
Chapter shall have to demonstrate this inconsistency. |
MERCOSUR |
|
ALADI |
Article 24.
The signatory countries undertake, as required, to hold technical
consultative meetings pertaining to the objectives of the present
Agreement.
Article 25. The countries directly involved shall ask the
Representatives Committee to establish Technical Groups to arrange
such consultative meetings.
The Technical Groups shall issue their recommendations within
strict time frames set by the Representatives Committee. |
CARICOM |
|
CHILE &
MERCOSUR: |
Article 26:
The current measures on technical regulations at the date of the
signature of this Agreement will be replaced within a period of six
months, from the date it enters into force.
Those measures will be revised by the Administrative Commission,
in order to verify if they effectively do not constitute a barrier
to reciprocal trade. If they do, negotiation procedures for their
compatibility within a period of time to be defined by the
Administrative Commission, will be initiated immediately. If at the
end of this period no agreement has been reached, the measure should
be incorporated to the Complementary Notes, established in Article 7
of this Agreement. |
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B. Provisions
for General Dispute Settlement
WTO |
Article 14.1:
Consultations and the settlement of disputes with respect to any
matter affecting the operation of this Agreement shall take place
under the auspices of the Dispute Settlement Body and shall follow,
mutatis mutandis, the provisions of Articles XXII and XXIII of the
GATT 1994, as elaborated and applied by the Understanding Governing
the Rules and Procedures for Settlement of Disputes. |
NAFTA |
Articles 913, 914,
and 2006-2022 list the procedures and the role of the
Committee on Standards Related Measures, as well as the full dispute
resolution process. |
Andean
Community |
Article 47: The
solution of controversies that originate with the outcome of the
application of the judicial process of the Andean Community will be
subject to the deliberations of the Tribunal of Justice. |
CACM |
|
Group of
Three |
|
MERCOSUR |
Annex III |
ALADI |
|
CARICOM |
General provisions are
detailed in Articles 11 and 12. |
CHILE &
MERCOSUR |
Article 22:
The disputes over the interpretation, application and attainment
of the present Agreement will be settled according to the Settlement
of Disputes Regime contained in Annex 14. |
BOLIVIA
& MERCOSUR |
Article 21:
The disputes which may arise with the application of this
agreement will be settled according to the Settlement of Disputes
Regime contained in Annex 11. |
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C. Relationship
to WTO Dispute Settlement Disciplines
WTO |
|
NAFTA |
Article 2005.1:
Subject to paragraphs 2, 3 and 4, disputes regarding any matter
arising under both this Agreement and the General Agreement on
Tariffs and Trade, any agreement negotiated thereunder, or any
successor agreement (GATT), may be settled in either forum at the
discretion of the complaining party.
Paragraphs 2-7 of Article 2005 further elaborate the
relationship between the NAFTA and WTO dispute settlement
procedures. |
Andean
Community |
|
CACM |
|
Group of
Three |
|
MERCOSUR |
|
ALADI |
|
CARICOM |
|
Continue to: Part
II: PROVISIONS ON STANDARDS
AND TECHNICAL BARRIERS TO TRADE
IN BILATERAL FREE TRADE
|