published_or_final_version / Law / Master / Master of Philosophy

This thesis seeks to investigate the lack of participation by African countries in the WTO Dispute Settlement System by first providing an overview of the Dispute Settlement Understanding (DSU) system and, secondly by explaining the reasons that forestall the participation of African countries.

Thesis (Ph.D. (Economics))--University of the Witwatersrand, Faculty of Commerce, Law and Management, School of Economic & Business Sciences. / This thesis investigates the impact of tariff liberalisation on South African trade flows and product quality. The thesis addresses four objectives. First, various measures of trade margins (extensive and intensive) are discussed and calculated for exports and imports. Second, focusing on the European Union-South African Free Trade Agreement, the study investigates the impact of tariff liberalisation on South Africa’s export intensive and extensive trade margins. Third, the impact of tariff liberalisation on the intensive and extensive import margins is investigated focusing on South Africa major trading partners. Lastly, the study examines the impact of tariff liberalisation on product quality of South African exports. In addressing these objectives, the study uses panel data exploiting variations across product, time and countries. The results (in Chapter 2) show that South Africa generally exports more varieties to developed countries and trade more at the intensive margin with China. For imports, the results show that South Africa imported more varieties from developed than developing countries. These results are consistent across different measures of trade margins. In general, the results shows that trade agreements have been important in shaping South Africa’s trade patterns. The study also finds differential impacts of tariff reduction across product groups exported (Chapter 3). Disaggregated results largely confirm that tariff reductions are associated with an increase in the number of destinations of South African exports, except for consumer goods. Homogenous products show a weaker relationship with tariff reduction suggesting that homogeneous products are not easily traded even if there is tariff reduction. This implies the need for South African exporters to differentiate their products to increase trade with the European Union. The results also show differential impacts of tariff reduction across different product groups imported (Chapter 4). Capital, intermediate and consumer products show greater responsiveness to changes in tariffs suggesting that trade policy should be targeted, especially to those sectors that aid production. Finally, results show a positive relationship between tariff changes and product quality (Chapter 5). The results suggest that tariff declines are associated with a decline in quality upgrading.

There is an overlap between the transfer pricing concepts that apply under tax and under customs regimes. This thesis aims to demonstrate (i) that customs and tax laws often share common principles in respect of related-party transactions; (ii) that transfer pricing as agreed to under one discipline should be recognized under the other; (iii) that the OECD Transfer Pricing Guidelines constitute a body of rules that is appropriate to supplement the related party provisions of the GATT/WTO Valuation Code ("GVC"); and (iv) that such guidelines are generally in accordance with the provisions of the GVC and its general principles and objectives. This thesis also analyzes the tax and customs value of imported goods, and identifies which additions to or deductions from customs value might have to be taken into account in comparing tax and customs results. The thesis concludes with an analysis of the circumstances and conditions under which the introduction of transfer pricing compensatory adjustments to transaction value would be consistent with Article 1 of the GVC.

This thesis seeks to investigate the lack of participation by African countries in the WTO Dispute Settlement System by first providing an overview of the Dispute Settlement Understanding (DSU) system and, secondly by explaining the reasons that forestall the participation of African countries.

The World Trade Organisation Agreement on Technical Barriers to Trade (TBT Agreement) was crafted with the aim of ensuring that technical regulations, standards and conformity assessment procedure do not constitute unnecessary obstacles to international trade. Southern African Development Community (SADC) countries have since ratified this Agreement and took a step further to incorporate its principles into the Technical Barriers to Trade Annex to the SADC Protocol on Trade. Despite this effort, SADC countries are still grappling with implementing the TBT Agreement in their domestic frameworks. Consequently, technical barriers to trade have become impediments to both regional and international trade. It is in this context that this study aims to examine the implementation of the TBT Agreement within the SADC. The study answers the question what are the challenges facing SADC Member states to fully implement the TBT Agreement? The study demonstrates that SADC Member face challenges which include of lack adequate resources, technical expertise and enforcement mechanisms to effectively implement the TBT Agreement. In the finality, the study recommends SADC Member states to deepen regional integration in order to collaborate on matters relating to technical barriers to trade within the region. Member states should also share information and learn from the experiences of other countries on how to effectively implement the TBT Agreement. Further, government officials should be educated on trade-friendly regulations that do not compromise on the principles of the TBT Agreement. To this end, regulatory impact assessments should be established in order to assess the trade effects of both new and old regulations. Effective enforcement mechanisms should also be introduced in order to coerce Member states to comply with their regional obligations. By effecting these recommendations, SADC states have the opportunity to eradicate technical barriers to trade thereby increasing both regional and international trade.

The South African Revenue Service has since 2009 introduced “reference pricing” as a tool to detect undervaluation of customs values of imported clothing and textiles. The term “reference pricing” is not defined in the Customs and Excise Act No.91 of 1964 which is the legislation that governs the importation of goods into the Republic of South Africa. The mandate of the South African Revenue Service, amongst others, is to facilitate legitimate trade. By applying the reference pricing guidelines the South African Revenue Service will target all importers who declare customs values which are less than the reference price for a targeted tariff heading associated with an item of clothing or textile. The Customs and Excise Act No.91 of 1964 is clear in that the transaction value which is the price paid or payable for the imported goods shall be the value used for customs duty purposes. The Customs and Excise Act No.91 of 1964 also requires that the interpretation of the sections 65, 66 and 67 of the said Act shall be subject to the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 (Valuation Agreement). Part I of the Valuation Agreement deals with the rules for customs valuation. Article 17 of part 1 allows for customs administrations to satisfy themselves as to the truth or accuracy of any statement, document or declaration presented for customs valuation purposes. The Technical Committee on Customs Valuation of the World Trade Organisation decided the following in so far as Article 17 of the aforesaid agreement is concerned: “1. When a declaration has been presented and where the customs administration has reason to doubt the truth or accuracy of the particulars or of documents produced in support of this declaration, the customs administration may ask the importer to provide further explanation, including documents or other evidence, that the declared value represents the total amount actually paid or payable for the imported goods, ....” It would appear that the South African Revenue Service is using reference prices as a tool to support its reason for doubting the truth or accuracy of the declared customs values. The indiscriminate use of reference pricing, it is submitted, affects legitimate trade adversely. This treatise provides an understanding of how the customs value should be determined in terms of the Customs and Excise Act No.91 of 1964 and the Valuation Agreement. It then provides a background to reference pricing and how reference pricing will be used to detect undervalued imports of clothing and textiles, the advantages and disadvantages of using reference pricing and a comparative analysis of the approach adopted by the Mexican Tax Administration Service in so far as the use of reference pricing is concerned. It was established that the reference price cannot replace the customs value of an imported clothing item as the customs value is based on the price actually paid or payable for it and not on some arbitrary or fictitious value. The reference price can only be used as a tool to identify importers that are possibly undervaluing the customs values. The disadvantages far outweigh the advantages of using reference pricing. The treatise further provides a background to the use of a valuation database as a risk assessment tool and compares this to the use of reference pricing. The use of reference pricing and its impact on trade facilitation is then discussed as well as whether the use of reference pricing is consistent with the risk management principles as discussed in the World Customs Organisation Risk Management Guide. It was established that the South African Revenue Service has not disclosed the basis of arriving at the reference price per tariff heading that it targets and the use of reference pricing is not sanctioned by any international guideline or agreement. It was also established that the use of reference pricing targets compliant importers unnecessarily and this practice goes against the principles of trade facilitation. The use of reference pricing can be used as a tool to detect undervalued imports of clothing but should not be used as a basis to stop every consignment of clothing simply because the customs value declared is less than the reference price. It should not be used as a stand-alone tool but rather enhanced further with the recommendations provided. In the final analysis, recommendations are provided which seek to enhance the reference pricing mechanism and to further identify and exclude compliant importers and limit the use of reference pricing to target non-compliant importers who undervalue the customs value of imported clothing and textile items.

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In recent years, the use of the mode of regional trade liberalisation has proliferated, while the multilateral talks through the WTO have proceeded slowly, resulting in a debate on the role of bilateral and multilateral trade liberalisation. This thesis aims to provide new insights to this debate by studying the welfare effects of different types of trade agreements and the equilibrium outcome(s) of trade negotiation. We apply the three-country and three-good “competing-exporters model" developed by Bagwell and Staiger (1999) as our basic trade framework. By comparing the equilibrium welfare of each country under different structures of trading blocs, we clarify the welfare impacts of each trade agreement. Then we model the process of trade negotiation as a trade negotiation game, in which each country endogenously decides whether to negotiate through multilateral or bilateral trade liberalisation. By solving the equilibrium of the game, the stable structure of trading blocs and the path(s) to reach it can be found. We start with a framework in which all countries are welfare maximising. We find that at the early stage of trade negotiation, a free trade agreement (FTA) is Pareto welfare improving, despite the fact that member countries benefit more than any non-member. Although being the hub is the best position, a spoke is in a worse position than being outside a single FTA. Thus, a “hub-and-spoke" structure cannot be achieved and the unique equilibrium outcome of trade negotiation is given by multilateral free trade (MFT) through a multilateral trade agreement (MTA). The welfare-maximising analysis is followed by the examination of cases in which each government is politically motivated. The political structure we use is similar to Ornelas (2005), which follows the basic framework developed by Grossman and Helpman (1995), emphasising the interaction between lobby groups representing the special interest of one industry and the government in their home country. We first consider a circumstance where the political pressures are only from the import- competing sector. It is then generalised to a case in which all sectors are allowed to lobby the local government. Furthermore, the analysis is extended into an asymmetric world that includes two big countries and one small country. Our results show that political economy forces usually reduce the likelihood of forming trade agreements and that when the political concerns are sufficiently large, all trade agreements can be prevented by political pressures. Also, our findings suggest that the option of bilateral FTAs does not cause an initially infeasible MFT to become feasible, while a previously feasible MFT is likely to be blocked by the option of FTAs. Thus, our thesis provides some evidence to support the argument that the formation of FTAs can be a “stumbling block" for global trade liberalisation. / Thesis (Ph.D.) - University of Adelaide, School of Economics, 2009

In recent years, the use of the mode of regional trade liberalisation has proliferated, while the multilateral talks through the WTO have proceeded slowly, resulting in a debate on the role of bilateral and multilateral trade liberalisation. This thesis aims to provide new insights to this debate by studying the welfare effects of different types of trade agreements and the equilibrium outcome(s) of trade negotiation. We apply the three-country and three-good “competing-exporters model" developed by Bagwell and Staiger (1999) as our basic trade framework. By comparing the equilibrium welfare of each country under different structures of trading blocs, we clarify the welfare impacts of each trade agreement. Then we model the process of trade negotiation as a trade negotiation game, in which each country endogenously decides whether to negotiate through multilateral or bilateral trade liberalisation. By solving the equilibrium of the game, the stable structure of trading blocs and the path(s) to reach it can be found. We start with a framework in which all countries are welfare maximising. We find that at the early stage of trade negotiation, a free trade agreement (FTA) is Pareto welfare improving, despite the fact that member countries benefit more than any non-member. Although being the hub is the best position, a spoke is in a worse position than being outside a single FTA. Thus, a “hub-and-spoke" structure cannot be achieved and the unique equilibrium outcome of trade negotiation is given by multilateral free trade (MFT) through a multilateral trade agreement (MTA). The welfare-maximising analysis is followed by the examination of cases in which each government is politically motivated. The political structure we use is similar to Ornelas (2005), which follows the basic framework developed by Grossman and Helpman (1995), emphasising the interaction between lobby groups representing the special interest of one industry and the government in their home country. We first consider a circumstance where the political pressures are only from the import- competing sector. It is then generalised to a case in which all sectors are allowed to lobby the local government. Furthermore, the analysis is extended into an asymmetric world that includes two big countries and one small country. Our results show that political economy forces usually reduce the likelihood of forming trade agreements and that when the political concerns are sufficiently large, all trade agreements can be prevented by political pressures. Also, our findings suggest that the option of bilateral FTAs does not cause an initially infeasible MFT to become feasible, while a previously feasible MFT is likely to be blocked by the option of FTAs. Thus, our thesis provides some evidence to support the argument that the formation of FTAs can be a “stumbling block" for global trade liberalisation. / Thesis (Ph.D.) - University of Adelaide, School of Economics, 2009