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WTO Rules of Origin V1.0
WTO Rules of Origin V1.0
WTO Rules of Origin V1.0
Agreement
on Rules of
Origin
Presented By
“Rules of origin” are the criteria used to define where a product was made. They are an
essential part of trade rules due to the following policies discriminate between exporting
countries:
Quotas
Preferential tariffs
Anti-dumping actions
Countervailing duty
Rules of origin are also used to compile trade statistics, and for “made in ...” labels that
are attached to products. This is complicated by globalization and the way a product can
be processed in several countries before it is ready for the market.
For the longer term, the agreement aims for common (“harmonized”) rules of origin among
all WTO members, except in some kinds of preferential trade — for example, countries
setting up a free trade area are allowed to use different rules of origin for products traded
under their free trade agreement. The agreement establishes a harmonization work
programme, based upon a set of principles, including making rules of origin objective,
understandable and predictable.
Classification of “Rules of Origin”
There are two types of rules of origin:
Preferential
Non-Preferential.
Non-preferential rules of origin are used to distinguish
foreign products from domestic products when a country
does not want to provide the former with the same
treatment granted to the latter. In some countries, for
example, public procurement either excludes foreign
on-Preftial
NPre
on-
ntie
Pref
N
products or reserves certain transactions to domestic products, or grants a margin of
preference to them.
According to WTO Agreement, signed in Marrakech in 1994, “the general notion of
rules of origin shall include all rules of origin used in non-preferential commercial policy
instruments, such as in the application of most-favored-nation treatment, anti-dumping and
countervailing duties, safeguard measures, and any discriminatory quantitative restrictions
or tariff quotas”.
Hence, non-preferential rules are important for several reasons including the
application of tariffs, quotas, antidumping and agreements on textiles and clothing.
Preferential rules of origin are used to determine which goods may enter a country under a
preferential treatment. They define if goods are eligible for special treatment under a
trading arrangement between two or more countries, such as the free trade areas, bilateral
and regional integration agreements. According to the agreements, certain products
benefit from duty-free or duty-reduced entry into the nations granting special treatment,
provided that they originate from specific countries. If the product is judged as “not
originated” from that country because, for example, it has not undergone substantial
transformation or has had little value added there, the applicable tariff rate would usually
be the most favored- nation rate
The differences between the two regimes are the mirror image of deliberate
different trade policy objectives and the rationale for this differentiation has been
underlined in the framework of the EU rules of origin by the European Court of
Justice(ECJ) in the S.R. Industries v. Administration des douanes case.
A specific program was set up, and two new institutions were created to reach this
purpose. The first one was the Geneva-based Committee on Rules of Origin (CRO) at the
WTO, the second body was the Brussels-based Technical Committee on Rules of Origin
(TCRO) of the World Custom Organization. The Harmonization Work Programme (HWP),
which was launched on 20 July 1995, was scheduled for completion within three years of
its initiation, i.e. by July 1998. However, due to the complexity of the issues, the work
slowed down in between.
Negotiation difficulties can be attributed to problems such as:
1) The definition of goods which are wholly obtained in one country, in particular when
they are related to products extracted from international territories, as in high seas or outer
space;
2) The need for further refinement of the definitions of minimal operations and processes
which do not by themselves confer origin: processes like assembly, disassembly,
bleaching, drying, cutting and sewing, blending, packing and packaging, coloring must be
classified and ordered in the definition of “substantial transformation”.
This criterion is applied by Australia, Canada, New Zealand and the United States and
also by Bulgaria, the Czech Republic, Hungary, Poland, the Russian Federation and
Slovakia. The group of countries has fully harmonized the criterion applied.
The specified process tests of origin: it confers origin to the product based on the
results of tests it must undergo. This criterion is applied by the European Community,
Japan, Norway and Switzerland.
The change in tariff classification method: it is the most widely applied criterion. It
determines the origin of a good by specifying the change in tariff classification of the
“Harmonized System of Tariff Nomenclature” (HS) required to conferring origin on a good.
As a general rule, imported materials, parts or components are considered to have
undergone substantial transformation when the product obtained is classified in a heading
of the HS at the four-digit level which is different from those in which the non-originating
inputs used in the process are classified. However, since sometimes the CTH rule is not
able to determine the origin of a product, preference-giving countries have drafted a list,
the Single List, of working or processing to be carried out in non-originating inputs in order
that the final products may obtain originating status
National legislations
In the United States, Section 304 of the US Tariff Act of 1930 requires that all
foreign products imported into the country have to be marked with their foreign origin.
When two or more countries participate in the production of a good, local customs apply
the rule of the last substantial transformation issued in 1996.
As for the EU legislation, rules of origin are treated in Commission Regulation No.
2454/93, which lays down provisions for the implementation of Council Regulation2913/92
establishing the European Community Custom Code (ECCC), as modified by Regulation
No. 12/97 and by Regulation No. 46/9915. The Customs Code defines substantial
transformation in broad terms. Since this criterion is vague and leaves wide discretion to
national custom authorities, additional tests are used to define it more precisely:
A technical test, prescribing that the product must undergo specific processing
operations in the originating state and determined on a case by case basis. For example, it
may be stated that the product has been substantially transformed if it has one properties
that it did not have before;
A change in tariff classification, requiring the product to change its tariff heading
under the Harmonized Commodity Description System in the originating State. in such
cases a significant qualitative change in its characteristics is essential to determine a
change in the origin. In assembly operations, the importance of the transformation has to
be assessed within the entire production process. The assembly can be more than simple,
but not substantial, or it can be the decisive stage of the process which gives the product
its specific character: in this case the assembly confers origin
Dispute-DS243
Complainant: India
Complaint by India.
On 11 January 2002, India requested consultations with the United States in respect of its
rules of origin applicable to imports of textiles and apparel products as set out in Section
334 of the Uruguay Round Agreements Act, Section 405 of the Trade and Development
Act of 2000 and the customs regulations implementing these provisions.
India argued that, prior to the abovementioned Section 334, the rule of origin applicable to
textiles and apparel products was the “substantial transformation” rule. India considered
that Section 334 changed the system by identifying specific processing operations which
would confer origin to the various types of textiles and apparel products. In India’s view,
these changes appear to have been made to protect the United States textiles and
clothing industry from import competition. India indicated that the changes introduced by
Section 334 had already been challenged by the European Communities on the grounds
that they were incompatible with the United States’ obligations under the Agreement on
Rules of Origin and other WTO Agreements (WT/DS151). India explained that that dispute
was settled through a procès-verbal whereby the United States agreed to introduce
legislation amending Section 334. According to India, the changes introduced by the
amending legislation, i.e. Section 405, were aimed at taking account of the particular
export interests of the European Communities.
India is of the view that the changes introduced by Sections 334 and 405 have resulted in
extraordinary complex rules under which the criteria that confer origin vary between similar
products and processing operations. India argued that the structure of the changes, the
circumstances under which they were adopted and their effect on the conditions of
competition for textiles and apparel products suggest that they serve trade policy
purposes. On those grounds, India questioned the compatibility of those changes with
paragraphs (b), (c), (d) and (e) of Article 2 of the Agreement on Rules of Origin.
On 7 May 2002, India requested the establishment of a panel. At its meeting on 22 May
2002, the DSB deferred the establishment of a panel.
Further to a second request by India, the DSB established a panel at its meeting on 24
June 2002. EC, Pakistan and the Philippines reserved their third party rights. On 3 July
2002, Bangladesh reserved its third party rights. On 4 July 2002, China reserved its third
party rights. On 10 October 2002, the Panel was composed. On 9 April 2003, the
Chairman of the Panel informed the DSB that due to the complexity of the matter, the
Panel would not be able to complete its work in six months. The Panel expects to issue its
final report to the parties in early May 2003.
On 20 June 2003, the Panel Report was circulated to Members. The Panel found that:
ROA Art. 2(b) (trade objectives): The Panel rejected India's claim and concluded
that although the objectives of protecting the domestic industry against import
competition and of favouring imports from one Member over imports from another
may in principle be considered to constitute "trade objectives" in pursuit of which
rules of origin may not be used, India had failed to establish that US rules of origin
were being administered to pursue trade objectives in violation of Art. 2(b).
ROA Art. 2(c), first sentence (restrictive, distorting or disruptive effects): The Panel
rejected India's claim on the grounds that for there to be a violation of Art. 2(c), it
must be proved that there is a causal link between the challenged rules of origin
itself and the prohibited effects, and that it would not always and necessarily be
sufficient for a complaining party to show that the challenged rules of origin
adversely affect one Member's trading as it may favourably affect the trade of other
Members. The Panel concluded that India had not provided enough relevant
evidence that the US measures created "restrictive", "distorting" or "disruptive"
effects on international trade.
ROA Art. 2(c), second sentence (fulfilment of certain conditions): The Panel
rejected India's claim, noting that distinctions maintained in order to define the
product coverage of particular rules of origin were distinct from conditions of the
kind referred to in Article 2(c), second sentence (which prohibits the imposition of
condition/s unrelated to manufacturing or processing as a prerequisite to conferral
of origin). The Panel concluded that India did not establish that the measures at
issue required the fulfilment of conditions prohibited by Art. 2(c) second sentence.2
ROA Art. 2(d) (discrimination): The Panel concluded that Art. 2(d) applies to
discrimination between goods that are the "same", not those that are "closely
related", and that India had failed to demonstrate that the US legislation was in
violation of Art. 2(d).
India failed to establish that section 405 of the Trade and Development Act is
inconsistent with Articles 2(b), 2(c) or 2(d) of the RO Agreement;
At its meeting on 21 July 2003, the DSB adopted the Panel Report.
ANNEXURE-I
"(b) Principles.—
(D) the product is any other textile or apparel product that is wholly
assembled in that country, territory, or possession from its component
pieces.
(2) Special rules.-- Notwithstanding paragraph (1)(D)--
(A) the origin of a good that is classified under one of the following
HTS headings or subheadings shall be determined under
subparagraph (A), (B), or (C) of paragraph (1), as appropriate: 5609,
5807, 5811, 6209.20.50.40, 6213, 6214, 6301, 6302, 6303, 6304,
6305, 6306, 6307.10, 6307.90, 6308, or 9404.90; and
I.A.1.a.i.2 The descriptions of goods classifiable under HTS headings and subheadings
referred to in section 334 quoted above are as follows:
HTS headingDescription
5609 Articles of yarn, strip or the like of heading No. 54.04 or 54.05, twine,
cordage, rope or cables, not elsewhere specified or included.
5807 Labels, badges and similar articles of textile materials, in the piece, in
strips or cut to shape or size, not embroidered.
5811 Quilted textile products in the piece, composed of one or more layers
of textile materials assembled with padding by stitching or otherwise,
other than embroidery of heading No. 58.10.
6213 Handkerchiefs.
6302 Bed linen, table linen, toilet linen and kitchen linen.
6303 Curtains (including drapes) and interior blinds; curtain or bed
valances.
6305 Sacks and bags, of a kind used for the packing of goods.
6306 Tarpaulins, awnings and sunblinds; tents; sails for boats, sailboards
or landcraft; camping goods
6308 Sets consisting of woven fabric and yarn, whether or not with
accessories, for making up into rugs, tapestries, embroidered table
cloths or serviettes, or similar textile articles, put up in packings for
retail sale.
I.B.1.a.i.1 Section 405 amended section 334 of the Uruguay Round Agreements Act.
Of particular relevance to this dispute are two exceptions which section 405 created from
the "fabric formation" rule established by section 334. Specifically, section 405 provides
that:
- for silk, cotton, man-made or vegetable fibre fabric, origin is conferred by dyeing
and printing and two or more specified finishing operations; and that
- for certain textile products excepted from the assembly rule, origin is also
conferred by dyeing and printing and two or more specified finishing operations,
subject to certain exceptions.
(1) by redesignating subparagraphs (A) and (B) as clauses (i) and (ii),
respectively;
(2) in the matter preceding clause (i) (as redesignated), by striking
"Notwithstanding paragraph (1)(D)" and inserting "(A) Notwithstanding
paragraph (1)(D) and except as provided in subparagraphs (B) and
(C)";and