WORLD TRADE
ORGANIZATIONG/C/W/379
30 May 2002
(02-2993)
Council for Trade in Goods Original:  English
TRADE FACILITATION: ARTICLE X OF GATT ON THE
PUBLICATION AND ADMINISTRATION OF TRADE REGULATIONS
Communication from Canada
The following communication, dated 24 May 2002, has been received from the Permanent
Mission of Canada.
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Introduction
In the period leading up to the Fifth Ministerial Conference, the Doha Ministerial Declaration
directs the Council for Trade in Goods to “review and, as appropriate, clarify and improve relevant
aspects of GATT Articles V, VIII and X and identify the trade facilitation needs of Members, inparticular of developing and least-developed countries”.  Members also undertook a commitment in
the Ministerial Declaration to “ensuring adequate technical assistance and support to build capacity”
in the area of trade facilitation.
This paper provides a number of Canadian ideas on how GATT Article X on Publication and
Administration of Trade Regulations could be clarified and improved.  Our paper also flags some
possible areas for technical assistance in support of our proposals.  Canada continues to support fullythe integrated approach of developing WTO commitments and ensuring technical assistance and
capacity building where required to assist in  implementing such commitments.
Considerations
The importance of transparency, predictability and consistency in the application of trade
regulations and procedures for international trad e is why GATT Article X was one of the original
GATT provisions.  The original drafters of the GATT recognized that traders and investors are
affected directly by border procedures as these can have a significant impact on their costs and timing,
and ultimately as to whether they choose to enter individual markets.  With the expansion anddiversification of trade over the last fifty-five years, there are significant potential benefits from
further enhancing transparency of border rules and procedures, promoting more advance notice of and
opportunities to comment on proposed trade rules, ensuring right of appeal against administrative
decisions and providing advance rulings.  These potential benefits of increased trade, investment,
economic growth and development are even greater if such improvements and clarifications are basedon multilateral commitments applied by all trading partners, based on the principles already
encompassed by GATT Article X.
Aside from the needs of larger traders, comple te, simple and readily accessible information is
also crucial for smaller countries and  small and medium-sized enterprises (SMEs) to enable them to
trade efficiently.  Publishing laws and regulations, seeking public comments, ensuring due process
and so forth can also benefit governments by allowing them to implement their policies moreG/C/W/379
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effectively and efficiently and in ways that encourage a more positive and cooperative relationship
between government and the private sector.
Possibilities for Clarifying and Improving GATT Article X
Canada would suggest the following improvements and clarifications to GATT Article X.
These suggestions, which reflect the trade facilitation principles of transparency, due process,
integrity, efficiency and simplification, and consultation, fall under the following four categories:
publication and administration of requirements; consultative/feedback mechanisms ; right of review
and appeal; and advance rulings .  In many cases, these ideas draw from a number of existing WTO
Agreements, such as the Agreement on Rules of Origin and the Agreement on Implementation of
Article VII of the GATT.  Our ideas also draw upon the National Experience papers on tradefacilitation submitted to the Council for Trade in Goods by various Members.
A. Publication and Administration of Requirements
1. To promote transparency and due process, relevant information regarding border rules and
procedures should  be made available to all interested parties on a non-discriminatory basis
through an officially designated, readily accessible medium, e.g., through centralized inquiry
points, publications and, where possible and feasible, through display on-line (e.g., via
electronic homepages).
For the explicit purpose of informing the public and enabling traders to be fully acquainted
with necessary information, improvements sh ould include publishing or making publicly
available as widely and promptly as possible:
• all laws, regulations, judicial decisions, administrative guidelines and administrative rulings
affecting imports and exports;
• all multilateral, regional and bilateral agreements affecting international trade policy;
• information on customs and other border-related agency processes;
• conditions and qualifications for different forms of customs treatment;
• any amendments to the foregoing; and
• where (e.g., offices, websites) the above information can be obtained.
Many governments have turned to technology in an effort to disseminate such information ore
quickly to their clients’ attention.  However, while use of technology is helpful in cases where the
capacity exists to do so, or where the technology can be implemented in the short term, it is not a
“have-to-have”/mandatory process.  The information can also be made readily available inpublications such as the Customs tariff, official gazettes, bulletins and public notices.  These can be
located at appropriate Customs offices or at other strategic locations where such information is likely
to be needed, e.g., at embassies and trade missions abroad or by display in public offices such as
major post offices. Special enquiry offices or desks can provide a valuable information service.
Although Canadian government departments, includi ng customs and trade, use internet-based web
sites extensively to communicate such information to interested parties and to receive feedback, they
also make use of all the other information sources noted above for such purposes.  We are open to
discussing with WTO Members where technical assistance might be provided  in developing either or
both non-electronic and electronic similar, relevant processes.G/C/W/379
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B. Consultative/Feedback Mechanisms
2. In order to increase transparency and predictability, enhance government-private sector
cooperation and heighten the likelihood of compliance, provide early opportunities for
stakeholders to comment on prospective rules and procedures (i.e., before the rules andprocedures are implemented), including:
• early notice of a proposed regulation, e.g., in an annual regulatory plan;
• a requirement that a public consultation process be launched to give interested persons an
opportunity to make their views known within a specified time period, e.g., within 60 days;
• analysis to explain what the regulatory proposal is meant to achieve, what alternatives have
been considered, what consultations have been carried out, what the reply of the department
or agency is to the concerns voiced and, what mechanisms are built in to ensure compliancewith the regulations;  and
• prepublication of the draft regulations in the official gazette before they can be put in place to
give those who are interested in a regulatory proposal the opportunity to determine the extent
to which the proposal is in keeping with previous consultations.
The above process would allow for a more open, informed and cooperative relationship
between government and the private sector and would help the public be better informed as to the
government’s objectives and goals.  Direct public and private sector feedback to regulators meansthey would be better informed and thus better prepared to draft appropriate, workable laws/regulations
and avoid later problems.  Prepublication of the laws and regulations allows a final opportunity for
public comment before the laws/regulations are put into effect.  In this regard, Canada also supports
and encourages public participation and consultation with stakeholders through means such as
consultative bodies involving customs administrations and industry groups or sector associations.This allows for early dialogue between interested parties, governments and the private sector, on
proposed new legislation, regulations and other procedures affecting import and export administration
and border-related procedures, before their formal adoption or entry into force.
Canada is open to discussing and sharing its experience on consultations and feedback in
order to explore the possibility for developing specific technical assistance and training in this area.
C. Right of Review and Appeal
3. To enhance the existing provisions under GATT Article X on review and appeal by
improving accessibility to independent judicial, arbitral or administrative tribunals and
making more readily available procedures to review and correct administrative actions related
to customs matters.  This could include provisions to ensure that trade is not unduly affected
pending the outcome of appeal procedures and could include the following:
• ensuring that stakeholders seeking redress with respect to decisions resulting from the
interpretation of rules and procedures have access to appropriate appeal mechanisms;
• providing right of review and appeal for tariff classification and other customs rulings; and
• providing a mechanism to allow goods to be released and the possibility, in certain situations,
for payment of duties and taxes to be left in abeyance, subject to the requirements of national
legislation, to the payment of a surety, guarantee or other form of bond pending the outcome
of the appeal.
Canada believes that there should be a non-discriminatory, legal right of appeal against
customs and other agency rulings and decisions, initially to a higher authority within the same agency
or another body, and subsequently to a separate judicial or administrative body.  Appeal proceduresG/C/W/379
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should be clearly outlined in legislation, and the legal requirements and procedures for filing an
appeal should be made readily accessible to the trade community and the general public.  The
availability of a transparent, open, accessible and effective review and appeal system would instil
confidence by the public and the trading community in  the government institutions, and would further
the effectiveness and efficiency of government measures.
In this regard, consideration could also  be given to developing and extending a provision
similar to that of Article 13 of the Customs Valuation Agreement which requires all WTO Members
to make provision for goods’ release in the event of delays in the determination of customs value.  In
certain circumstances, pending the outcome of an appeal, goods could be released on the basis of the
provision of collateral or some form of monetary security to ensure that obligations of importers,
exporters, warehouse operators or international transporters of goods would be met.  Care needs to betaken to ensure that the enforcement activity of customs or other agencies is not reduced or unduly
impeded by an unfettered right of release of goods.
Over the years, the Canadian legal system has evolved in the provision of avenues of judicial
and administrative appeals.  Canada is ready to discuss with WTO Members the possibility fordeveloping specific technical assistance/training in the matter of appeals systems.
D. Advance Rulings
4. Provision  of binding rulings on tariff classification, possibly also on eligibility for treatment
under specific customs procedures such as those offering relief from duties and taxes,
including:
• rulings in advance of importation (in response to a written request by an importer, exporter or
their representative), which are binding on the importing authorities, provided that the goods
and the circumstances at importation are identical to those presented in the ruling request.
• rulings could cover the main elements of impor t requirements, e.g., tariff classification and
applicable duties, taxes and import licensing requirements, and could be modified or revoked,after notification, without retroactive application.
• in circumstances where inaccurate or false information was provided, such rulings could be
modified or revoked without notification and with retroactive application.
Both traders and government administrations can  benefit from binding advance rulings.  Not
only do such rulings offer the traders greater certainty and predictability in terms of the treatment of
their goods at the time of importation, advance ruli ngs also encourage the traders to comply with
customs and border-related requirements.  The provision of binding rulings in advance of the
importation of goods benefits the customs administration that provided the rulings, in that the traders
are informed of the appropriate import requirements and delays, complaints and subsequent appeals
are minimized.
The WTO Agreement on Rules of Origin, Part 11, Article 3 (f), provides for origin rulings to
be issued to an importer or exporter as soon as possible, but not later than within 150 days of the
request, assuming that all information is available.  In consideration of any future WTO commitments
that may be made in respect of advance rulings in other areas, we would suggest that the texts be
closely aligned on existing provisions such as those in the Agreement on Rules of Origin.G/C/W/379
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Technical Assistance
Technical assistance can assist developing countries, particularly the least developed countries, who
face resource and capacity constraints in implementing improvements and clarifications of GATT
Articles V, VIII and X.  Developing countries may also need time to implement new commitments.
Canada has flagged above some potential areas where technical assistance in the areas covered by its
proposals on GATT Article X might be considered a priority.  But more broadly, Members will need
to discuss in greater detail how best to identify, coordinate and deliver technical assistance where and
when it is needed to implement future commitmen ts on trade facilitation.  Canada looks forward to
engaging actively and fully with other Members on this, taking into account the interrelationship of
technical assistance to future WTO commitments in the area of trade facilitation.
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