The Unique Features of the Trade Facilitation Agreement: A Revolutionary New Approach to Multilateral Negotiations or the Exception Which Proves the Rule?

Abstract

The Trade Facilitation Agreement (TFA) has received much attention for its unique approach to special and differential treatment, especially the ability of developing countries to self-designate their implementation periods and technical assistance needs. However, the Agreement contains other unique features which, though they have received less attention from commentators, may turn out to be more significant for multilateral rulemaking. Most notably, the self-designation and categorization of measures result in each developing country taking a Member-specific approach to its TFA commitments. While a Member-specific approach to market access commitments has been commonplace since the original GATT, rules commitments have tended to have a broad application to all Members or, where some differentiation of Members is used, to broad groups of Members based on objective criteria. In this sense, the TFA may have broken the mould for how rules commitments are negotiated. This article explores whether the TFA could open the door for Member-specific approaches to other rules areas at the WTO. With the current deadlock in multilateral trade negotiations, this aspect of the TFA may provide a template for negotiators to seek more nuanced and balanced outcomes for other rules negotiations such as anti-dumping.