REPORT OF THE MEETING OF LEGAL WORKING GROUP OF THE

REPORT OF THE MEETING OF LEGAL WORKING GROUP OF THE
INTERIM INTERGOVERNMENTAL STEERING GROUP ON CROSS-BORDER
PAPERLESS TRADE FACILITATION
Dates: 19-21 January 2016
Venue: MR-G, UNCC, Bangkok and WebEx Session
1. The meeting elected, Mr. Young Hwan Kim, Ministry of Strategy and Finance, Republic of
Korea, as the Chair of the Legal Working Group.
2. The meeting adopted provisional agenda without any changes.
3. The Secretariat provided a brief overview of pending provisions of the current draft text
provision by provision.
4. The meeting reviewed and negotiated each of the pending provisions one by one. The
meeting made the following discussion and revision by provisions:
•
During the discussion, Japan expressed its reservation and concerns over Articles 5,
6, 8 and 11 of the current draft text. However, the delegation would not object to the
Steering Group finalizing the draft text and would participate in the work of the
Steering Group. Japan, in this connection, requested that its stated position be noted
in official documentation.
1) Preamble
•
The meeting agreed to add a proposed additional paragraph to the Preamble,
submitted by the Chinese delegation, stressing the importance of connectivity.
Hence, the second paragraph of the Preamble now reads:
Noting that the unimpeded trade plays a crucial role in promoting comprehensive
connectivity which will generate trade creation and new growth in the region,
2) Article 3 Definitions
•
The meeting agreed to merge Articles 3 (a) and 3(b). Hence, new Article 3 (a) reads:
“Cross-border paperless trade” means trade in goods, including their import,
export, transit and related services, taking place on the basis of electronic
communications, including exchange of trade-related data and documents in
electronic form;
•
The meeting agreed to delete bracketed Articles (j) bis and (j) ter of Article 3, in
connection with its decision to add "(g) Improving transboundary trust
environment" in Article 5 as a new general principle.
3) Article 5 General Principles
•
The meeting agreed to add "(g) Improving transboundary trust environment" in
Article 5 as a new general principle and delete bracketed (g) and (h) of Article 5.
4) Article 8 Cross-border mutual recognition of trade-related data and documents in
electronic form
•
The meeting agreed to delete the bracketed alternate texts previously proposed by
Russian delegation in connection with the meeting’s decision to add "(g) Improving
transboundary trust environment" in Article 5 as a new general principle.
a) In Article 8.1, “(replace with “of the formation of a transboundary trust space
for subjects of electronic interaction”: Russian Federation and Pakistan)];
[keep brackets pending review: (Japan and India)]. [To this extent, the Parties
may constitute a technical group among themselves with the existing focal
points (delete: India)” were deleted.
b) In Article 8.2, “The requirements for building, development, operating and
performance of an audit of the transboundary trust space are prepared by the
corresponding working groups of the Parties and adopted by the Paperless
Trade Council” were deleted.
•
China proposed the addition of the phrase "by means of bilateral or multilateral
arrangements" at the end of Article 8.1. The meeting discussed value of such
additional wording as well as its relation to the protocols proposed in Article 16 bis.
Delegates from China and Russian Federation also held a bilateral consultation to
improve the proposed wording.
•
After further discussion, the meeting agreed to formulate a new para. 3 in Article 8
to incorporate China’s proposal as follows:
[3.
The Parties may enter into bilateral and multilateral arrangements to
operationalize cross-border mutual recognition of trade-related data and
documents in electronic form, in a manner consistent with principle of
transboundary trust environment and all the other general principles.]
•
However, some members of the LWG raised concerns regarding the relationship
between new paragraphs 3 and existing para. 1 and 2 of Article 8 because of the
ambiguity of the precondition for providing for mutual recognition. The meeting
decided to keep the new para. 3 in bracket for the time being for further review and
improvement.
5) Article 11 Legal liability framework
•
The delegation of the Philippines stated their reservation to the phrase in the
bracketed text of Article 11 reading “compensation for any commercial losses”.
•
The meeting sought the expert view of legal resource persons, in particular Mr.
Luca Castellani from UNCITRAL and Dr. Hong Xue from Beijing Normal
University, regarding the overall role and objectives of this provision. The meeting
also requested Mr. Castellani and Dr. Xue to review the provision and propose
revised text for the meeting to consider, in particular on the bracketed words.
•
The two resource persons introduced their proposals as follows:
Article 11 - Redress for disputes relating to electronic exchanges
"The Parties shall endeavour to redress disputes that may arise in relation to the
cross-border exchange of trade-related data and documents in electronic form."
Article 11 bis - Cooperation mechanisms for enforcement
"The Parties shall establish adequate legal cooperation mechanisms to address
enforcement issues that may arise in relation to the cross-border exchange of
trade-related data and documents in electronic form."
•
The meeting discussed the proposals and shared their concerns and views on the
newly proposed formulation.
•
The meeting also discussed the possibility of deleting this Article or making it
voluntary provision.
•
The meeting decided to retain the existing provision but deleted pending proposals
in brackets. There was consensus that the provision shall not aim at modifying preexisting legal regimes related to liability, but should only enable the parties to the
agreement to address new liability and enforcement issues that may arise from
cross-border electronic exchange of trade documents. The revised Article 11 reads
as:
The Parties shall endeavor [are encouraged to] establish an adequate legal and
regulatory framework [national legislation] to address specific liability and
enforcement issues that may arise in relation to the cross-border exchange of
trade-related data and documents in electronic form.
6) Article 12 Institutional arrangements
•
The meeting agreed to change the representation level for the Council from
‘ministerial level’ to “high-level nominee” and the meeting frequency to “upon
request but at least once a year.” The revised para. 1 of Article 12 reads as:
The United Nations Economic and Social Commission for Asia and the Pacific
(ESCAP) shall, for the purposes of the present [Framework] Agreement, establish
a paperless trade council comprising one (1) “high-level nominee” from each
Party and the Executive Secretary of ESCAP. The Council shall meet upon
request but at least once a year.
•
The Secretariat informed the meeting of a potential value of allowing all ESCAP
members States to participate in the Council as observers, in order to facilitate their
consideration of becoming Parties to the present agreement.
•
The secretariat clarified that Programme Budget Implication would not arise from
activities relating to this anticipated institutional arrangements. The secretariat also
informed the meeting that the secretariat would revise para. 41 of Annex:
Explanatory Note accordingly.
7) Article 13 Action plan
•
With regard to the implementation of the action plan, the meeting discussed whether
the wording should be ‘shall’ or ‘shall endeavour to’. Most LWG members favored
‘shall’, noting that individual action plans would be based on self-assessments as
per Art. 13.2. However, the meeting decided to revisit this provision after further
consideration of the implication of the wording.
8) Article 15 Capacity Building
•
The meeting decided to revise para. 3 of Article 15 from the current passive tense to
active tense and to clarify that the Parties would be the ones considering requests.
The revised para. 3 of Article 15 reads as:
3. The Parties shall give special consideration to requests from least developed and
landlocked developing countries for technical assistance and cooperation
arrangements designed to assist them in developing their paperless trade capacity
and in taking full advantage of the potential benefits of the present [Framework]
Agreement.
9) Article 16 bis Protocols
•
The meeting discussed how this Article could provide parties with a useful tool to
develop the international legal framework needed to facilitate and implement crossborder paperless trade.
•
The meeting discussed value of using “shall” instead of “may’ in para. 1 and agreed
to revise para 1 of Article 16 bis to read as:
1. The Parties shall, at any regular meeting of the Council, adopt relevant technical
or legal protocols to the present [Framework] Agreement based on the
recommendation of the Standing Committee.
•
Russian Federation delegation informed the meeting that it would share its position
on this Article 16 bis after internal consultation after return to the capital.
10) Article 16 ter Other agreements in force
•
The meeting agreed to add this provision as a new article. The meeting also agreed
to allocate a place and article number for this provision to be just before the
provision on dispute resolution (current article 17).
11) Article 17 Dispute resolution
•
The meeting agreed to restore the paragraphs with the original wording and hence
deleted all the new proposals in brackets, noting that the wording of Article 17 and
subsequent provisions were based on standardized text used in final clauses of UN
treaties.1 The restored Article 17 reads as:
1.
Any dispute that may arise among the Parties regarding the interpretation
and application of the present [Framework] Agreement shall be settled by means of
negotiation or consultation among the Parties concerned
2.
In the event that the Parties to a dispute involving the present [Framework]
Agreement are unable to settle it by negotiation or consultation, the Parties shall
be referred to conciliation if any of the Parties to the dispute requests such a
referral.
3.
The dispute shall be submitted to one or more conciliators selected by the
Parties involved in the dispute. If the Parties to the dispute fail to agree on the
choice of a conciliator or conciliators within three (3) months after the request for
conciliation, any of those Parties may request the Secretary-General of the United
Nations to appoint a single conciliator to whom the dispute shall be submitted.
Handbook of Final Clauses:
https://treaties.un.org/Pages/Publications.aspx?pathpub=Publication/FC/Page1_en.xml
1
4.
The recommendation of the conciliator or conciliators appointed, while
not binding in character, shall become the basis of renewed consideration by the
Parties to the dispute.
5.
By mutual consent, the Parties to the dispute may decide in advance to
accept the recommendation of the conciliator or conciliators as binding.
6.
The provisions of the present article shall not be construed as excluding
other measures for the settlement of disputes mutually agreed among the Parties to
the dispute.
7.
Any State may, at the time of depositing its instrument of ratification,
acceptance, approval or accession, deposit a reservation stating that it does not
consider itself bound by the provisions of the present article relating to conciliation.
Other Parties shall not be bound by the provisions of the present article relating to
conciliation with respect to any Party which has deposited such a reservation.
12) Article 19 Entry into force
•
The meeting decided to reach a consensus on the number of Parties needed for entry
into force at the next meeting of the LWG. In relation to this, the Chair requested for
all LWG members to consider this matter in the interim period until the next LWG
meeting. Furthermore, the Chair requested the Secretariat to conduct a survey
during the interim period amongst the LWG members on their preferred number
using the LWG group mail.
13) Article 20 Procedures for amending the [Framework] Agreement
•
The meeting decided to change the wording of first sentence of para. 4, by
referencing a corresponding provision contained in the Intergovernmental
Agreement on Dry Ports. Hence, the revised wording of Article 20 reads:
[4.
An amendment shall be adopted by a two-thirds majority of the Parties to
the Agreement present and voting at the meeting of the Paperless Trade Council.]
•
The meeting also decided to keep the revised wording bracketed until the next LWG
meeting to allow other members of the LWG to have a chance to review the new
wording, noting that it should be read in conjunction with para 5.
•
The meeting decided to delete bracketed word “acceptance” in the first sentence of
para. 5, which now reads:
An amendment adopted in accordance with paragraph 4 of the present article shall
enter into force twelve (12) months after it has been accepted by two thirds of the
number of Parties at the time of its adoption.
14) Article 21 Reservations
•
The meeting discussed that allowing for blanket reservations on any or all
provisions of the Agreement would undermine its value. Accordingly, it decided to
delete alternative wording in the brackets and requested the Secretariat to inform
Pakistan of the decision. The revised provision reads as:
Reservations may not be made with respect to any of the provisions of the present
[Framework] Agreement, except as provided in article 17, paragraph 7.
15) Article 23 Suspension of validity
•
The meeting decided to align the number of Parties for suspension of validity to the
decision on Article 19, regarding number for entry into force. Hence, the meeting
would reach consensus on this issue at the next meeting of the LWG.
5. Under other matters, the Secretariat informed the meeting that a summary of Day 3 would be
shared on the following day (Friday 22 January 2016) and a draft report of the meeting would
be circulated by 26 January 2016 providing 1 week for review by the LWG participants. The
Secretariat also informed the meeting that official documentation of the draft text of regional
agreement for the 2nd Meeting of Interim Intergovernmental Steering Group would
incorporate decisions up to the current meeting only, as the official documentation needed to
be finalized before the end of the month. Further improvements or revisions made during the
March 2016 meeting of the LWG would be submitted as amendments to the documentation.
6. The Chair closed the LWG meeting and expressed his appreciation to all the participants for
their active participation and contribution, including those who joined the meeting virtually.
Annexes: 1. Final Agenda
2. Final List of Participants
3. Revised Draft Text of the Regional Arrangement for the Facilitation of Cross-border
Paperless Trade (Separate)
_______________
ANNEX 1. FINAL AGENDA
1.
2.
3.
Opening of the Meeting
(a)
Election of chair
(b)
Adoption of the agenda
(c)
Overview of pending provisions in the current draft text of regional agreement
Negotiation of the draft text of regional agreement by provisions
(a)
Preamble
(b)
Substantive clauses
(c)
Final clauses
Other matters
(a) Interim work plan until the 3rd meeting of LTWG
(b) Any other business
4.
Closing.
ANNEX 2. FINAL LIST OF PARTICIPANTS
ECONOMIC AND SOCIAL COMMISSION FOR ASIA AND THE PACIFIC
Meeting of Legal Working Group of the Interim Intergovernmental Steering Group on Crossborder Paperless Trade Facilitation
19-21 January 2016
Bangkok, Thailand
LIST OF PARTICIPANTS
BANGLADESH
Mr. A.H.M. Shafiquzzaman, Deputy Secretary, Ministry of Commerce of Bangladesh, Dhaka
Tel: +88 02 954 0199, fax: +88 02 954 9346, email: [email protected]
CAMBODIA
Mr. Chantha Un, Chief of Inspection and Registration Office, Export-Import Department, General
Directorate of Trade Support Services, Ministry of Commerce, Phnom Penh
Tel: +855 12 833397, fax: +85 23 866 469, email: [email protected]
CHINA
Mr. Zhenwei Yang, Director, Ministry of Commerce of China, Beijing
Tel: +86 10 6519 7719, email: [email protected]
Ms. Miao Yu, Ministry of Commerce of China, Beijing
Email: [email protected]
Mr. Hai Zhou, General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ)
Beijing
Mr. Hongwei Du, General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ),
Beijing
Ms. He Bin, General Administration of Quality Supervision, Inspection and Quarantine (AQSIQ), Beijing
Ms. Yiwei Chen, First Secretary, Department of electronic Commerce and Informatization, Ministry of
Commerce, Beijing
Ms. Yan Liu, Deputy Director, Department of Foreign Trade, Ministry of Commerce, Beijing
Mr. Yiming Sun, Sector Chief, Department of Treaty and Law, Beijing
Mr. Lisheng Feng, Director, General Administration of Customs of China, Beijing
Email: [email protected]
Mr. Jia Wang, Deputy Director, General Administration of Customs of China, Beijing
Email: [email protected]
Mr. Shuson Guo, Principal Staff, General Administration of Customs of China, Beijing
Email: [email protected]
Mr. Liu Qian, Official, General Administration of Customs of China, Beijing
JAPAN
Mr. Hitoshi Kozaki, Deputy Permanent Representative of Japn to ESCAP, Embassy of Japan,
Bangkok
Tel: 66 2 207 8500, email: [email protected]
Mr. Toru Adachi, First Secretary and Deputy Permanent Representative to ESCAP, Embassy of Japan,
Bangkok
Tel: +66 2 2078500, email: [email protected]
Mr. Satoshi Yoshida, Second Secretary, Embassy of Japan, Bangkok
Tel: +66 2 207 8500, email: [email protected]
PHILIPPINES
Ms. Noemi V. Alcala, ATTY. IV, Bureau of Customs Philippines, Manila
Email: [email protected]
Mr. Victor Pablo Cruz Trinidad, Project Manager, Philippine Customs, Manila
Tel: +632 2 5278258, email: [email protected], [email protected]
REPUBLIC OF KOREA
Mr. Kim YoungHwan, Ministry of Strategy and Finance, Sejong
Email: [email protected]
Mr. Son Minho, Assistant Director, Ministry of Strategy and Finance, Sejong
Tel: +82 44 215 4466, fax: +82 44 215 8077, email: [email protected]
Mr. Deok-Bo Kim, Officer, Korea Customs Service, Dae-jeon
Email: [email protected]
Mr. Joon Hyoung Bae, Customs Officer, Korea Customs Service, Seoul
Email: [email protected]
RUSSIAN FEDERATION
Mr. Mikhail Maslov, Head, Division of UN Organizations and Multilateral Cooperation, Department
of Europe, North America and International Organizations, Ministry of Economic Development of the
Russian Federation, Moscow
Tel: +7 495 9513338, fax: +7 495 9512364, email: [email protected]
Ms. Anastasia Orlova, Chief Expert, Division of International Economic Law, Legal Department
Ministry of Economic Development of the Russian Federation, Moscow
Ms. Alla Kryzhanovskaya, Counsel of AIRR, Moscow
Email: [email protected]
Ms. Natalia Karmazinskaya, Third Secretary, Assistant Russian Permanent Representative to ESCAP,
Bangkok
Email: [email protected]
THAILAND
Mr. Sakchai Sakabucha, Director of International Law Division, Thai Customs Department, Ministry
of Finance, Bangkok
Tel: +66 2 667 7495, email: [email protected]
Mr. Aphichat Aumyoo, Legal Officer, Thai Customs Department, Ministry of Finance, Bangkok
Tel: +66 2 667 8330, email: [email protected], [email protected]
TIMOR-LESTE
Mr. Luis Pereira, Chief of Legal Support Unit, Cabinet of the State minister Coordinator for Economic
Affairs (MECAE), VI Constitutional Government of East Timor,Dili
Tel: +670 331 1243, email: [email protected]
VIET NAM
Ms. Hang Thi Thanh Bui, Deputy Chief of International Affairs Division, Vietnam E-commerce & IT
Agency, Ministry of Industry & Trade, Hanoi
Tel : +84 4 2220 5486, email : [email protected]
__________________
INTERGOVERNMENTAL ORGANIZATIONS
World Customs Organization (WCO)
Mr. Kazunari Igarashi
Head
Asia/Pacific Regional Office for Capacity
Building (ROCB A/P)
World Customs Organization
c/o Thai Customs Department
Sunthornkosa Road, Khlong Toey, Bangkok
10110 THAILAND
Tel: +66-2-667-6017
E-mail: [email protected]
__________________
LIST OF VIRTUALLY ATTENDED PARTICIPANTS
INDIA
Ms. Anice Joseph Chandra, Director, Department of Commerce, Ministry of Commerce and Industry,
New Delhi
Tel: + 91 112306 3642, fax: +91 11 22306 3642, email: [email protected], [email protected]
MALAYSIA
Ms. Nur Fauziah Dato’ Mokhtar, Senior Federal Counsel, Ministry of International Trade and Industry
(MITI), Kuala Lumpur
Tel: +60 3 6299 0061, email: [email protected]
Dr. Hosni Hussen Md. Saat, Head Section for Research on System Producure, Corporate Planning
Divisiona, Royal Malaysia Customs Department, KL
Email: [email protected]
Ms. Norizan Che Meh, Senior Federal Counsel, Ministry of International Trade and Industry, KL
Email: [email protected]
Mr. Ahmad Hafiz Abdul Aziz, Senior Assistant Director, Trade Facilitation Section, MITI, KL
Email: [email protected]
PAKISTAN
Mr. Umar Wahid, Executive Secretary, National Trade and Transport Facilitation Committee,
Ministry of Commerce, Islamabad
Tel: +91 51 920 7678, fax: +91 51 9205241, email: [email protected]
SRI LANKA
Mr. A.W. Sudattha Indrajith Silva, Superintendent of Customs (ICT), Sri Lanka Customs, Colombo
Tel: +94 11 247 0945 ext. 7675, fax: +94 11 244 5148, email: [email protected]
__________________
RESOURCE PERSON
Dr. Hong Xue, Professor, Director of Institute for the Internet Policy & Law (IIPL), Beijing, China
Tel : +86 10 8242 5692 Email: [email protected], [email protected]
__________________
UNITED NATIONS BODY
United Nations Commission on
International Trade Law (UNCITRAL)
Mr. Luca G. Castellani
Legal Officer and
Secretary of Working Group IV (Electronic
Commerce)
UNCITRAL
Vienna, Australia
Tel: +43 1 26060 4078
Email: [email protected]
__________________
ESCAP SECRETARIAT
Ms. Susan F. Stone
Director
Trade and Investment Division
Mr. Yann Duval
Chief, Trade Facilitation Unit
Trade and Investment Division
Mr. Sangwon Lim
Economic Affairs Officer
Trade Facilitation Unit
Trade and Investment Division
Mr. Tengfei Wang
Economic Affairs Officer
Trade Facilitation Unit
Trade and Investment Division
Mr. Dong-Oh Nam
Expert on Regional Trade and Monetary
Cooperation
Trade and Investment Division
Ms. Maame Agyeben
Associate
Economic
Affairs
Officer
Trade Facilitation Unit
Trade and Investment Division
__________________