Non-Tariff Barriers In ASEAN.

Legal News & Analysis - Asia Pacific - ASEAN - International Trade

19 February, 2019

 

The inauguration of the ASEAN Economic Community (AEC) on 31 December 2015 marked the start of a new chapter in ASEAN’s ambitious drive towards closer integration and cooperation. The overarching objectives of the AEC are to promote the seamless movement of goods, services, investment, capital and skilled labor within ASEAN, with the ultimate goal being the creation of an ASEAN single market. 

 

Despite the myriad obstacles that ASEAN has faced since its establishment in 1967, such as socio-cultural diversity and markedly divergent stages of economic development, the grouping has eliminated many formal tariffs on intra-ASEAN trade, while restrictions in the services sector are being removed, albeit at a slower pace.

 

However, a key constraining issue for intra-ASEAN trade is the continuing prevalence of non-tariff measures (NTMs). While NTMs are sometimes justified on the grounds of protecting the public interest (such as in the areas of health, product safety, etc.), the problem is that at times they simultaneously take the form of protectionist barriers to trade, or what are known as non-tariff barriers (NTBs). 

 

The extent of the problem can be seen from the fact that non-tariff impediments to trade in ASEAN increased from 1,634 to 5,975 during the 2000-2015 period, according to the Asian Development Bank. 

 

With a population of some 379 million people (excluding Indonesia), ASEAN should be a lucrative market for Indonesian exporters. However, despite the laudable goals of the AEC and the various ASEAN regulatory framework agreements that have been adopted, many Indonesian exporters find themselves at a significant disadvantage compared with local producers in other ASEAN member states as a result of the continuing existence of NTBs.

 

Complaints Mechanism for Exporters

 

The good news is that an easy-to-use, internet-based complaints mechanism is available to ASEAN-based businesses that encounter NTBs in intra-ASEAN trade, namely, the ASEAN Solutions for Services, Investments and Trade (ASSIST) platform, which allows exporting businesses to file complaints or requests for clarification on NTBs, or NTMs that they think are actually NTBs. The platform, which was launched in 2016, thus far only covers movements of goods from one ASEAN member state to another.  However, it is expected to be expanded to cover services around May 2019.

 

ASSIST has been significantly underused to date, which may be partly due to the fact that it has never been well publicized. Perhaps more importantly, however, many companies may have been reluctant to use it for fear of retribution at the hands of governmental authorities. 

 

To overcome this, ASSIST is now being relaunched so as to allow businesses to lodge complaints anonymously through ASEAN-based trade associations, or other representative entities such as chambers of commerce, business councils, business federations, or registered ASEAN-based lawyers or law firms, when anonymity is desired by the complainant.

 

It is hoped that this will encourage more companies that encounter NTBs to file complaints through the system. ASEAN member states have around 60 days to respond to a complaint/request for clarification and either accept it (and therefore propose changes) or explain their position. 

 

Should the complainant not be satisfied with the outcome, it may refer the case, through the government of the ASEAN member state in which it is registered, to the ASEAN Compliance Body (ACB) or to the ASEAN Enhanced Dispute Settlement Mechanism (EDSM).  

 

 

For further information, please contact:

 
Theodoor Bakker, Partner, ABNR
tbakker@abnrlaw.com