Preparatory Approaches to Overcoming Regulatory NTBs in an EU-Australia FTA

Abstract

The issue of non-tariff barriers (NTBs) has arisen predominantly in the context of multilateral trade negotiations. Such barriers have often been revealed only after the implementation of liberalising trade obligations. As a result, they have traditionally been dealt with using approaches that rely largely on the benefit of hindsight. Such approaches involve assessment, surveillance and dispute resolution procedures. In recent times, however, the multilateral trade negotiation process-the Doha Round-has stalled. In response to this, many states and trading blocs have been negotiating bilateral and regional free-trade agreements (FTAs) (or preferential trade agreements, PTAs). This development has given rise to opportunities to anticipate NTBs by virtue of the greater level of domestic regulatory control resulting from the domestic enactment of trade treaties reciprocally incorporated into domestic law. The more frequently states negotiate similar treaty provisions, the greater the likelihood that they will be able to identify areas in which NTBs may arise, and the greater the prospect that they may be able to establish cooperative processes between domestic regulatory agencies in order to handle and possibly even remove these NTBs. There is now greater potential than in the past for introducing procedures for dealing with NTBs during the treaty negotiation phase rather than including processes in the treaty itself for handling them, on an ad hoc basis, if and when they emerge. This paper describes this development as a notional shift away from reactive procedures towards proactive ones. Australia and the EU intend to negotiate an FTA in the next few years. This paper argues that the approach to handling and possibly eradicating NTBs in such an agreement need not adopt a traditional reactive approach. Rather, it could take a more proactive approach, moving to anticipatory settings to better remove and prevent NTBs. An EU-Australia FTA may be a prime opportunity for such a shift to occur in Australia's approach to resolving NTBs in FTAs.