WT/REG417/2  
 
9 November  2022 
(22-6565) Page: 1/4 
Committee on Regional Trade Agreements  Original: English/ Spanish  
 
ECONOMIC PARTNERSHIP AGREEMENT BETWEEN KENYA AND THE UNITED KINGDOM, 
GOODS  
QUESTIONS AND REPLIES  
 The following communication, dated 8 November  2022, is being circulated at the request of 
the delegations of  the United Kingdom and Kenya . 
 
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Question from Canada  
 
Government procurement  
 
1.1.  Paragraph 4.17 provides the following: "The Agreement does not contain specific 
provisions on government procurement. However, a rendez -vous clause provides that, 
within five years upon its entry into force, the Parties undertake to conclude 
negotiations on transparency in public procurement (Ar ticle 3(b) (v)). " 
 Could the Parties please provide a status update on their negotiations on 
transparency in government procurement?  
 
Joint r esponse s from the Parties  
 
 The Parties discussed the 'Rendezvous Clause ' in Article 3 of the Agreement at the 
Committee of Senior Officials Meeting on 6 July 2022, where they reaffirmed their interest in 
extending the agreement in the specified areas, which includes transparency in public 
procurement. A formal timetable for negotiations will be discussed by the Pa rties in due course.  
 
Questions from Mexico  
 
Provisions on Trade in Goods  
 
1.2.  Paragraph 3.40: Pursuant to Article 50, the Parties may apply bilateral safeguards 
of limited duration if a product originating in one Party is being imported into the 
territory of  the other Party in such increased quantities and under such conditions as to 
cause or threaten to cause: (a) serious injury to the domestic industry producing like or 
directly competitive products in the territory of the importing Party; (b) disturbances in 
a sector of the economy that could result in major social problems or difficulties which 
could jeopardize the economic situation of the importing country; or (c) disturbances in 
markets of like or directly competitive agricultural products or in the mec hanisms 
regulating those markets (Article 50.2).  
 We note that clause (b) contains a number of unusual expressions. In this regard:  
 
a. Could you explain what are "disturbances in a sector of the economy"? What 
factors would be taken into account to analyse w hether such disturbances 
exist? Please provide examples.  
b. What is the meaning of "major social problems"? Please provide examples. 
What factors would be taken into account to analyse whether such problems WT/REG417/2  
 
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  exist? What factors would be taken into account in determining whether these 
problems are major or not?  
c. What is the meaning of the expression "which could jeopardize the economic 
situation of the importing country"? Please provide examples. What factors 
would be taken into account in determining whether such problems could 
arise? How would the cause -effect relationship be established between the 
factors analysed and the situation "that could" (potentially) jeopardize the 
economic situation of the importing country? Of what magnitude would this 
potential situation need to be, and how would such magnitude be determined, 
in order to consider that the economic situation of the importing country was 
jeopardized?  
d. In addition, could the Parties explain, in general terms, the procedure for 
determining the existence of the above -mentioned "disturbances"?  
Joint r esponse from the Parties  
 
 If the UK or Kenya believes that any of the circumstances set out in Article 50 exists, the 
matter will be referred to the Committee  of Senior Officials for examination.  
 
 The interpretation of provisions will be assessed on a case -by-case basis where relevant.  
 
Bilateral Safeguards  
 
1.3.  Paragraph 3.43: Bilateral safeguard measures cannot exceed what is necessary to 
remedy or prevent the serious injury or disturbances caused or threatened to be caused 
by imports and shall not be applied for more than two years, which can be extended for 
a further period of two years. When the importing country is the EAC Partner State(s), 
this duration may be of four years and can be extended for a further four years. 
Safeguard measures exceeding one year shall have clear elements leading to their 
termination.  
 Could the Parties indicate whether the "clear elements" indicating the termination 
of a safeguard measure are defined or whether there is any guideline indicating what 
should be taken into account for this purpose?  
 
Joint r esponse from the Parties  
 
 "Clear elements " is not defined in the FTA.  
 
 Article 50.5(c) states the following:  
 
 Safeguard measures referred to in this Article that exceed one year shall contain clear 
elements progressively leading to their elimination at the end of the set period, at the latest.  
 
 The expectation is that if a Party imposes a bilateral safeguard mea sure in the form of an 
increase in tariffs, for example, the tariff will be progressively liberalized over the measure 's 
application period.  
 
 Additionally, the Committee of Senior Officials is required to meet for periodic consultations 
if a bilateral saf eguard measure is applied. This is with the aim of establishing a timetable for the 
abolition of the measure.  
 
Anti-dumping and countervailing measures  
 
1.4.  Paragraph 3.49: Nothing in the Agreement shall prevent the Parties from adopting 
anti-dumping or counte rvailing measures in accordance with the WTO Agreements. 
Before imposing any definitive duties, the Parties shall consider the possibility of 
constructive remedies as provided for in the relevant WTO Agreements. Where an anti -
dumping or countervailing meas ure has been imposed by either Party, a judicial review 
shall be conducted only in one single forum. Where anti -dumping or countervailing WT/REG417/2  
 
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  measures can be imposed on a regional and on a national basis, the Parties will ensure 
that these measures are not app lied simultaneously to the same product by the regional 
and national authorities. A Party shall notify the other Party of the receipt of a properly 
documented complaint before initiating an investigation. The WTO dispute settlement 
rules apply to any dispu tes over these issues.  
 With respect to the judicial review to be conducted, could the Parties explain what 
they are referring to with the expression "in one single forum"? In any event, what 
forums are envisaged to be excluded?  
 
Joint r esponse from the Parties 
 
 The Parties will settle any domestic challenges related to the imposition of an anti -dumping 
or countervailing measure in their respective domestic judicial system.  
 
Question s from the United States  
 
Multilateral safeguards  
 
1.5.  The factual presentation states that "in {} light of the overall development 
objectives of the Agreement and the small size of the economies of the EAC Partner 
State(s), the UK will exclude imports from any EAC Partner State from such multilateral 
measures (Article  49.2). This exclusion, which is applicable for a period of five years 
from the entry into force of the Agreement, can be extended upon review by the EPA 
Council based on the development needs of the EAC Partner State(s)."  
 Please explain how this multilatera l safeguard provision is consistent with 
Article  9.1 of the WTO Agreement on Safeguards, which states "{s}afeguard measures 
shall not be applied against a product originating in a developing country Member as 
long as its share of imports of the product con cerned in the importing Member does not 
exceed 3 %, provided that developing country Members with less than 3 % import share 
collectively account for not more than 9 % of total imports of the product concerned." 
Will these WTO criteria be utilized as part of the exclusion?  
 
Joint r esponse from the Parties  
 
 Given the size of the economies of the EAC Partner State(s), the UK anticipates such 
exclusion within the first five years of entry into force of this Agreement to be based on either 
Article 9.1 of the WTO  Agreement on Safeguards or the lack of serious injury caused by the 
imports from EAC Partner State(s).  
 
 The factual presentation lists three standards for determining whether to impose a bilateral 
safeguard: serious injury, disturbances in a sector of th e economy that could result in major social 
problems or difficulties which could jeopardize the economic situation of the importing country, or 
disturbances in the markets of like or directly competitive agricultural products or in the 
mechanisms regulatin g those markets.  
 
Bilateral safeguards  
 
1.6.  The factual presentation lists three standards for determining whether to impose a 
bilateral safeguard:  serious injury, disturbances in a sector of the economy that could 
result in major social problems or difficult ies which could jeopardize the economic 
situation of the importing country, or disturbances in the markets of like or directly 
competitive agricultural products or in the mechanisms regulating those markets.  
 Please explain how the standard "disturbances"  compares to the "serious injury" 
standard in the WTO Agreement on Safeguards. Also, please, specify how "disturbances" 
will be evaluated in comparison to serious injury.  WT/REG417/2  
 
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  Joint r esponse from the Parties  
 Article 50 allows for a Party to apply a bilateral s afeguard measure under certain 
circumstances.  
 
 If a Party believes that any of the circumstances set out in Article 50 exists, the matter will 
be referred to the Committee of Senior Officials for examination.  
 
 Although the interpretation of provisions will be assessed on a case -by-case basis where 
relevant, the UK and Kenya expect that any assessment of "disturbances " will incorporate relevant 
economic data from the impacted sectors.  
 
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