TN/TF/W/193  
 
15 May 2013  
(13-2515)  Page: 1/5  
Negotiating Group on Trade Facilitation  Original: Spanish  
 
 SENSITIVE ISSUES FOR CUBA IN THE NE GOTIATIONS ON TRADE FACILITATION 
COMMUNICATION FROM CUBA 
The following communication, dated 10 May 2013, is  being circulated at the request of the 
delegation of Cuba for presentation and discussion  in the Negotiating Group on Trade Facilitation. 
 This proposal is based on Rev. 15 of the Draft Consolidated Negotiating Text. 
 
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ARTICLE 2: PRIOR PUBLICATION AND CONSULTATION 
1. Interval between publication and entry into force Cuba provides for intervals between publication and entry into force of its domestic legislation. 
Unless a specific time-period is established, any regulation that is published enters into force 
72 hours (three days) after publication in the Official Journal. Depending on the piece of legislation concerned, the legislature may provide for a longer interval between publication and entry 
into force. However, no provision is made for pre-publication in the case of trade-related laws 
and regulations. Accordingly, we propose that the phrase [or, where appropriate, 
pre-publication] be deleted . Only then would the paragraph be acceptable to Cuba. 
 
Proposed text: 
1.1 Each Member [shall], [to the extent practicable], ensure that a reasonable interval 
is provided between the publication [or, wher e appropriate, pre-publication] of new or 
amended trade-related laws or regulations and their entry into force.1 
 1.2 [Changes to duty rates or tariff rate s are excluded from this provision.] 
 
1This is without prejudice to specific timeframes es tablished under other WTO Agreements and practices 
of WTO Committees.  
 
2. Opportunity to comment on new and amended rules 
In Cuba, consultations are held with the central government agencies, which have the authority 
to discuss any draft legislation with the business se ctor as they deem appropriate. The negotiating 
text goes beyond the reality in Cuba in that it seeks to make commenting by traders and other interested parties on the proposed introduction or amendment of laws and regulations binding, 
which means that a regulation would have to be published as soon as it is drafted and others 
would have to be given the opportunity to influence the legislative process. Public consultation on new or amended legislation is not currently acceptable for Cuba, since these decisions 
are sovereign political decisions. Besides, the central government agencies and traders are kept 
informed of the changes through the Official Jour nal and the website of the Ministry of Justice. 
 
We cannot repeat the errors of the past, when the problems resulting from the implementation 
of the Uruguay Round Agreements ultimately led our Ministers to adopt, in Doha, a Ministerial Decision on Implementation-Related Issues and Concerns. This is because we accepted TN/TF/W/193 
 
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  commitments that went beyond our domestic legislation or turned out to be difficult to adapt 
to our domestic systems.  Consequently, the text would only be acceptable if we were to maintain the phrases " to the 
extent possible and where appropriate ". This would provide enough flexibility to cover 
the realities of each Member. 
 
Proposed text:  
2.1 Each Member shall [, to the extent practicable,] [, as appropriate,] provide opportunities 
and a reasonable time period to traders and other interested parties [within its territory] 
to comment on the proposed introduction or amendment of [trade-related] [and] [customs] laws 
and regulations.  
 3. Consultations 
As explained earlier, in the Cuban legal system, it is up to the central government agencies 
to consult with the traders.   
Moreover, in this case as well, there could be an implementation-related problem. Following the 
same reasoning as in the previous paragraph, we propose deleting the phrase " and traders 
or other stakeholders within its territory ". 
 
Proposed text: 
Each Member shall, as appropriate, provide fo r regular consultations between border agencies 
and traders or other stakeholders within its territory. 
 ARTICLE 3: ADVANCE RULINGS 
C u b a  s e e s  n o  n e e d  t o  b e  s o  p r e s c r i p t i v e  i n  d e f i n i n g  " a d v a n c e  r u l i n g s " ,  s i n c e  n o t  a l l  M e m b e r s  
necessarily issue them. However, it would be possibl e to accept the issuance of this type of ruling 
as regards tariff classification of goods while leaving open the possibility for a Member that wishes to go further and considers it appropriate to issue them in relation to other matters to do so. Indeed, if they were to be binding in each of  the proposed subject areas, it would impose 
a considerable burden on the administrations of the developing countries in particular. 
 Proposed text: 
Definitions: 
(a)  An advance ruling is a written decision [or statement] provided by a Member to an applicant 
prior to the importation of a good covered by the application that sets forth the treatment that 
the Member shall provide to the good at the time of importation [or exportation] with regard to the 
following: [the following: where they are implemented by Members:] 
  
(i) The good's tariff classification [[including] the applied duty rate for the product 
[or, where appropriate, the way the applied duty rate for a product is calculated]]; 
 [(ii) The appropriate method and the application of the method to be used for determining 
the customs value under a particular set of facts;] 
 [(iii) The application of the Member's requirem ents for duty drawback, deferral, [or other 
relief from customs duties];] 
 
[(iv) The application of the Member's requir ements for quotas, including tariff quotas;] 
 
[(v) The origin of the good;] 
 
[(vi) Additional matters for which a Member considers it appropriate to issue an advance 
ruling;] Would have to be renumbered as (ii) 
 TN/TF/W/193 
 
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  (b)  An applicant is an importer, exporter [or producer],  or a representative thereof [who meets 
the criteria specified in the national legislation] [of the importing Member]. [A Member 
may require that an applicant have legal representation in its territory.] 
 
ARTICLE 7: RELEASE AND CLEARANCE OF GOODS 
2. Electronic payment In Cuba, while traders submit their goods declarations in advance, prior to their arrival in the 
country, payment always takes place after the release of the goods. 
 In terms of trade facilitation measures, there are payment agreements between traders and the customs authorities which facilitate the process, but payment is not yet electronic, nor is it 
possible to foresee electronic payment in the short term. Consequently, this must 
be a best-endeavour provision.  
Proposed text: 
Each Member [shall] [endeavour to] adopt or maintain procedures allowing, [to the extent 
practicable], the option of electronic payment for [customs] duties, taxes, fees and charges 
[imposed on or in connection with importation and exportation of goods.]. 
 
 ARTICLE 10: FORMALITIES CONNECTED WITH IMPORTATION AND EXPORTATION AND 
TRANSIT 
6. Preshipment [and post-shipment inspections] 
Cuba has co-sponsored document TN/TF/W/186, previously submitted by Angola and Egypt, 
and our position is set out in that document. The proponents of this text are of the view 
that Article 10.6 of the Draft Consolidated Nego tiating Text (TN/TF/W/165/Rev.15) on preshipment 
inspection does not fall within the mandate of the negotiations on trade facilitation, forfeits the 
rights of developing countries and LDCs in the sp ecial and differential treatment that they gained 
in the Agreement on Preshipment Inspection, and obviously conflicts with the preamble of the 
Agreement and with Article 6 on the procedures that must be followed in order to review or amend it. We therefore request that Article 10.6 on preshipment inspection be dropped from 
the Draft Consolidated Negotiating Text. 
 ARTICLE 11: FREEDOM OF TRANSIT 
For the Cuban delegation this article contains elements that are of particular importance. As stated 
on many occasions " despite existing GATT rules, aimed at ensuring the smooth 
and non-discriminatory flow of trade acr oss borders for transit, freedom of transit 
is often absent or compromised in practice ". 
 Cuba therefore submitted, early on, a first generation document (TN/TF/W/64 of 19 September 2005, entitled Improvement an d Clarification of Article V of the GATT: 
Strengthening of the Principles of Non-Discrim ination and Most-Favoured-Nation Treatment) 
and another, third generation document with text for a future agreement (TN/TF/W/127 of 6 July 2006), which still remains valid. 
 
We should all be able to agree that although both the spirit and letter and Article V appear 
to confirm the obligation of observing the principles of non-discrimination and MFN treatment, 
commercial practice has shown a need to strength en the disciplines of Article V.2 to avoid any 
discretion and arbitrary use of the exce ptions provided for under the GATT 1994. 
The non-discrimination obligation is regularly breached by certain WTO Members that apply, unilaterally and for non-commercial reasons, laws and measures of extraterritorial scope that 
ignore the legitimate interest of other Members' right to free transit and to carry out normal trade 
practices in the enjoyment of their rights as full Members of this Organization, as well as the commercial interests of third parties affected. 
 TN/TF/W/193 
 
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  At the same time, the future Agreement must have its own provisions on freedom of transit 
strengthened, since the current provisions of the GATT 1994 have not always been respected.   Proposed text: 
3. [[Any charges, regulations or formalities in  connection with traffic in transit imposed 
by a Member in accordance with Article V of GATT 1994: 
 
(a) shall not be more restrictive on traffic in transit than necessary [to fulfil 
a legitimate objective]. 
 
(b) shall not be maintained if the circumstances or objectives giving rise to their 
adoption no longer exist or if the changed circumstances or objectives 
can be addressed in a less restrictive manner. 
 
(c)  shall not be applied in a manner that would constitute a disguised restriction 
on transit traffic.] 
 
[Except as otherwise provided in Article V of GATT 1994, no Member shall impose charges 
for reasons of any kind, including for allowing transit through its territory.] [Any charge imposed 
by a Member consistently with Article V of GATT 1994, shall: 
 
(a) Only be imposed for the administrative procedures entailed or transit services 
provided in connection with the transit movement in question; 
 
(b) Not exceed the approximate administrative costs entailed or cost of the transit 
service rendered; and 
 
(c)  Not be calculated on ad valorem basis.] 
 
[Each Member shall periodically review its charges on traffic in transit in order to reduce them, 
where practicable.]] 
 3bis [Each Member shall notify the Committee on the objective and duration of all charges, 
regulations or formalities in connection with traffic in transit on a regular basis.] 
 
[Members may draw the Committee's attention to examine any measure that under their 
judgement should have been notified by another Member.] 
For Cuba, counter-notification is not a new su bject, since it is provided for in other 
WTO agreements and provisions (e.g. the Ag reement on Import Licensing Procedures, 
the Understanding on the Interpretation of Article XVII of the GATT 1994 on state 
trading enterprises, etc.), so it is diffic ult to understand why other Members should 
oppose this measure. 
[3ter 
Members shall not seek, take or maintain any voluntary restraints or any other similar measures 
on traffic in transit.] 
4. [Members shall not apply discriminatory measures to goods in transit, or to vessels 
or other means of transport of other Members, for reasons of any kind. This does not exclude 
the right to resort to the exceptions already laid down in WTO Agreements, for valid reasons and provided that the measure concerned does not constitute a disguised restriction 
on international trade.] 
 
ARTICLE 12: CUSTOMS COOPERATION  
Customs cooperation is a top priority for the World Customs Organization, which has a number 
of different instruments for administrative assistance between customs authorities, such as the Nairobi Convention of 1997 (in force, but involving only 51 contracting parties of the TN/TF/W/193 
 
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  177 Members of the Organization) and the Johannes burg Convention (9 contracting parties plus 
South Africa, which joined in 2007, and on ly two countries that have ratified). 
 Cuba understands the interest of certain WTO Members in progressing on this issue given 
the increase in fraud, the undervaluation prob lems, and the need to improve trade security. 
These countries are in favour of a multilateral ex change of customs information involving the data 
contained in the goods declarations. 
 
However, Cuba is not in favour of the proposal for the establishment of a multilateral mechanism for the exchange and handling of information for the following reasons:  
 (a) the workload and economic burden th at this represents for the underdeveloped 
countries, which would have to devote human resources and time in order to handle any request on this scale; 
 
 (b) the trade implications, since it would involve providing information on contracts, 
goods and their value, ports, suppliers, et c., which could be used by competitors; 
 
 (c) as we know, certain developed countries apply coercive, unilateral measures of an 
extraterritorial character against underdeveloped countries in a totally discriminatory manner and contrary to free trade and to all of the WTO Agreements; this also 
includes the persecution of all commercial and financial operations that those 
countries, including Cuba, undertake. 
 
We are extremely concerned that the WTO should wish to go beyond what has been achieved 
in the international organization responsible for customs matters (the WCO). Any cooperation should be bilateral and non-mandatory, and shou ld not involve the establishment of a binding 
multilateral mechanism for the exchange of cu stoms information in the context of the WTO. 
 However, in view of the flexibility provided for in paragraph 9 of document TN/TF/W/165/Rev.15
i, 
Cuba could accept the proposal subject to those conditions only. 
 Cuba regrets that the multilateral exchange of information was considered as the only way to achieve effective cooperation between customs administrations. 
 
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i [In cases where the requested Member is of the opinion that exchange of information under these 
provisions is prohibited by its laws and regulations or would infringe upon its sovereignty, security, 
public policy, or other substantial interest, or  prejudice any legitimate commercial  [, industrial] or professional 
interest, the request may be refuse d or may be subject to the satisfaction of certain conditions 
or requirements.]