Cross-Cumulation Arrangement as FTA Under GATT Article XXIV

Jong Bum Kim

Journal of International Economic Law, 2020, vol. 23, issue 1, 165-185

Abstract: A cross-cumulation arrangement helps manufacturers meet the demands of the global value chain economy by facilitating the sourcing of intermediate products within the territories of participants in the arrangement. It is a de facto free-trade area formed by a network of bilateral free-trade areas underpinning the arrangement. However, a cross-cumulation clause provided in a bilateral free-trade area that underpins a cross-cumulation arrangement is inconsistent with General Agreement on Tariffs and Trade (GATT) Articles I and III because the intermediate products from the participants in the arrangement are more favorably treated than products from non-participants in the arrangement. The GATT inconsistencies of a cross-cumulation clause cannot be justified by the GATT Article XXIV exception, because a cross-cumulation clause of a bilateral free-trade area derogates from the free-trade area’s aim by facilitating trade in intermediate products between the free-trade area parties and non-parties to the free-trade area that are participants in the arrangement. In contrast, a cumulation clause provided in a free-trade area contributes to the free-trade area’s aim by facilitating trade in intermediate products between the parties to the free-trade area. To bring a cross-cumulation arrangement such as the Regional Convention on Pan-Euro-Med Preferential Rules of Origin into conformity with World Trade Organization law, the arrangement and its underlying free-trade areas should be recognized as a de jure free-trade area under GATT Article XXIV and notified to the World Trade Organization as such. A large cross-cumulation arrangement as a mega-free-trade area is likely to contribute to the world trading system by harmonizing divergent free-trade area rules of origin and providing an efficient mechanism for the formation of a mega-free-trade area.

Date: 2020
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