Resolution of Non-Tariff Barriers in Bilateral Trade Agreements: Lessons from the U.S. - Korea Free Trade Agreement and a Model for Market Access in the Twenty-First Century

Abstract

The incredible success of the World Trade Organization and bilateral Free Trade Agreements in reducing tariffs has shifted the battle for market access in the twenty-first century. Countries that seek to protect their markets now must resort to non-tariff barriers. Unfortunately for exporters, non-tariff barriers are elusive and it is difficult to prove the illegality of a measure within the confines of the standard dispute settlement system. Additionally, the current dispute settlement system is litigious and lengthy. This article draws upon lessons from the U.S. - Korea Free Trade Agreement and the current political climate and concludes that the United States must develop a new framework to address non-tariff barriers to trade within bilateral trade agreements. It is proposed that an NTB Resolution Mechanism be included within U.S. bilateral trade agreements. The NTB Resolution Mechanism should build on proposals at the World Trade Organization that require that NTBs be examined within 60 days and focus on the trade restrictiveness - and not the legality - of the measure. But the Congressional Proposal to Open Korea’s Automotive Market makes it clear that the NTB Resolution Mechanism must have teeth to assure exporters that trade barriers will be addressed. One option is to include the Korea trade agreement’s “snap-back” provision within the NTB Resolution Mechanism. Next, the NTB Resolution Mechanism should allow for a private right of action. Exporters are concerned that the United States government may not take up their cause over discrete non-tariff barriers in otherwise complicated bilateral relationships. A private right of action would guarantee that all companies with market access problems are heard.Finally, a continuous monitoring platform should be created that documents non-tariff barriers. The platform would exist within U.S. bilateral trade agreements and would be built upon the principles of three structures: the National Trade Estimate Report on Foreign Trade Barriers of the Office of the U.S. Trade Representative; the Automotive Working Group of the U.S. - Korea Free Trade Agreement; and the Codes of Liberalisation of Capital Movements of the Organisation for Economic Co-Operation and Development. The platform would provide a formal channel to raise non-tariff barriers and ratchet-up pressure to remove the barriers. The platform would also provide a channel to build evidence prior to engaging the NTB Resolution Mechanism.Market access is the issue that drives corporate support for liberalization of international trade. The United States must build structures within its trade agreements that can adequately address market access inhibitors like non-tariff barriers. Without these structures, agreements like the U.S. - Korea Free Trade Agreement will not be ratified by a Congress that is increasingly skeptical of liberalized trade, and the United States will fall further behind in global trade agreements.