DRAFT TEXT

This text is the first attempt at developing general and institutional provisions of an overall architecture for the FTAA. As a result, it reflects preliminary views on the structure and content of the text to be developed by the TCI in due course. Due to the stage of the negotiations, the text is based on a limited number of proposals and does not cover all the elements or provisions on general and institutional issues of an overall architecture of the future FTAA Agreement.

Delegations have the right to submit new, additional or revised proposals. The document does not prejudice the positions of the delegations. The text is dependent to a large extent on the output of the negotiating groups and is likely to change as negotiations progress.

[The Governments of...(insert full names of the 34 countries of the FTAA), hereinafter “the Parties,” ]

[COMMITTED to advancing towards economic prosperity, strengthening ties of friendship [and cooperation] and democratic values and institutions, [and] protecting fundamental human rights and the security of persons, and promoting social development among the Parties, within a framework of equity, [and][consistent with the underlying principles [of the Summit of the Americas] and overall objectives of the Summit of the Americas process;]]

[CONSIDERING the need to strengthen the [close] economic relations and cooperation that unite the Parties so as to raise the productive capacity and competitiveness of their economies through the adoption of [uniform], balanced, clear, and transparent rules;]

[RECOGNIZING the broad differences in the levels of development and size of the economies of the region and the resulting need to create opportunities for all Parties,[ and especially the smaller economies], to participate in taking advantage jointly and fully in the benefits deriving from hemispheric integration; ]

[CONSIDERING the importance of attaining macro-economic stability and the efforts made by the Parties to achieve such stability;]

[TAKING INTO ACCOUNT the revitalization of frameworks for economic integration in the Hemisphere, the growing process of economic globalization of the economies, and the importance of securing proper international integration;]

[RESOLVED to foster a [more extensive and secure] market, [that is free of distortions], for goods produced and services provided, [as an important element in the facilitation of trade in goods and services and the flow of capital and technology]; ]

[COMMITED to market-oriented agricultural trade that is free from trade-distorting subsidies, and recognizing that agriculture plays an important role in reducing poverty and promoting development.]

[RECOGNIZING that the Parties must maintain the ability to preserve, develop and implement their cultural policies for the purpose of strengthening cultural diversity, given the essential role that cultural goods and services play in the identity and diversity of society and the lives of individuals;]

[DETERMINED to better protect the environment and promote sustainable development [by adopting trade and environmental policies that are mutually supportive];]

[COGNIZANT of the need to [secure further, in accordance with their respective laws and regulations, the observance and promotion of worker rights, consistent with their commitment to [the observance of] internationally recognized core labor standards, and to acknowledge that the International Labour Organization is the competent body to set and deal with those core labor standards,][ensure, in accordance with their respective laws and regulations, the observance and promotion of the labor rights, and recognizing the International Labour Organization as the competent body to deal with the fundamental labor laws and regulations;]]

[DETERMINED to promote higher standards of living and improve working conditions [in the Americas] through the creation of new and higher-paying employment opportunities, including, through increased economic integration and free trade, and the building of a democratic and just society based on solidarity; ]

[CONSIDERING their respective rights and obligations under the World Trade Organization agreements and other multilateral, regional and subregional instruments of integration and cooperation; ]

[CONSIDERING the need to promote the active involvement of the distinct private economic agents in efforts to achieve expansion and deepening of economic relations; ]

[CONVINCED of the importance of economic integration, productive investment, and free trade based on [fair regulations that allow] fair competition;]

[REMOVING to the extent possible, consistent with Article XXIV of the GATT 1994, other restrictive regulations of commerce;]

[CONSIDERING the need to establish a fair and predictable framework for promoting and protecting investment and for avoiding the implementation of measures that hamper investment flows among the Parties; ]

[DETERMINED to protect adequately and enforce intellectual property rights]

[ACKNOWLEDGING the importance of regulatory reform to advancing [toward] trade liberalization, increasing market openness, and enhancing competition within the Hemisphere;]

[CONVINCED of the importance of creating effective procedures for the interpretation and application of this agreement, for its joint administration and for the resolution of disputes among the Parties;]

[RESOLVED to preserve their flexibility to safeguard the public welfare]

[UNDERTAKING the preceding in a manner consistent with international human rights norms and principles]

[Enter into this Free Trade Agreement of the Americas (hereinafter the “Agreement”): ]

[The purpose of this Agreement is to establish a free trade area in accordance with Article XXIV of the General Agreement on Tariffs and Trade (GATT) 1994 and Understanding thereon, and Article V of the General Agreement on Trade in Services (GATS).]

[This Agreement has the following objectives:]

[a) trade liberalization with a view to generate economic growth and prosperity, contributing to the expansion of world trade;]

[b) to generate increasing levels of trade in goods and services, and investment, by means of market liberalization, through [fair, clear, stable, and predictable] [fair, transparent, predictable, coherent and with no counter-effect on free trade] rules;]

[c) to enhance competition and improve market access conditions for goods and services among the Parties, including in the area of government procurement;]

[d) to eliminate barriers, restrictions and/or unnecessary distortions to free trade among the Parties,[including unfair trade practices, para-tariff measures, unjustified restrictions, domestic subsidies and aids to trade in goods and services];]

[e) to eliminate the barriers to the movement of capital and business persons among the Parties;]

[f) to foster the development of a hemispheric infrastructure that facilitates the circulation of goods, services, and investment; and]

[g) to establish mechanisms that guarantee greater access to technology, through economic cooperation and technical assistance.]

[This Agreement shall be governed by the following principles:]

[a)the rules agreed upon shall be clear, transparent and stable, in order to prevent the possibility of any Party from applying unilateral, arbitrary and/or discretionary measures to the detriment of one or several other Parties;]

[b) transparency in the actions of the Parties and of the bodies of this Agreement; ]

[c) consistency of the rights and obligations emanating from this Agreement with the rules and disciplines of the World Trade Organization (WTO); ]

[d) the coexistence of this Agreement with bilateral and subregional agreements, to the extent that the rights and obligations deriving from these agreements are greater in scope than those hereunder;]

[e) special and differential treatment, considering the broad differences in the levels of development and size of the economies of the Parties, to promote the full participation of all Parties;]

[f) the adoption of decisions by consensus;]

[g) the sovereign equality of the Parties;]

[h) good faith in compliance with commitments assumed by the Parties within the framework of this Agreement.]

[4.1. Each Party is fully responsible for the observance of all provisions of the FTAA Agreement, and shall take such reasonable measures as may be available to it to ensure such observance by regional and local governments and authorities within its territory.]

[4.2. The Parties shall ensure that their laws, regulations, and administrative procedures are consistent with the obligations of this Agreement. The rights and obligations under this Agreement are the same for all the Parties[, whether Federal or unitary States, including the different levels and branches of government], unless otherwise provided in this Agreement.]

[4.3. This Agreement shall co-exist with bilateral and subregional agreements, and does not adversely affect the rights and obligations that one or more Parties may have under such agreements, to the extent that such rights and obligations imply a greater degree of integration than provided for hereunder.]

[4.4. The Parties confirm the rights and obligations in force among them under the WTO Agreement. In the event of conflict between the provisions of the WTO Agreement and the provisions of this Agreement, the provisions of this Agreement shall prevail to the extent of the conflict.]

[The general exceptions of Article XX of GATT 1994,]

[The general exceptions of Article XIV of GATS,]

[The exceptions for national security reasons set forth in Article XXI of GATT 1994;]

[Exceptions related to the disclosure of confidential information; and ]

[Balance of payments exceptions.]

[6.1 Each Party shall designate [a contact point] [an agency or office] [as] [a general national contact point] [an information center] to facilitate communication between the Parties on any matter covered by this Agreement.]

[6.2 Likewise, each Party shall designate specific contact points to facilitate communication between the Parties on the following matters covered in this Agreement:... These contact points shall provide information on national legislation and other measures that have a bearing on the aforesaid matters.]

[6.3 [The designation of the general and specific contact points shall include the name of the institution, the name and title of the official in charge [of the matter], the office, address, telephone number, fax number, and electronic mail address.][On the request of another Party, the [information center][contact point] shall identify the office or official responsible for the matter and assist, as necessary, in facilitating communication with the requesting Party].]

[6.4 The general and specific national contact points shall be designated and commence operations within a period [of xx days from the date this Agreement enters into force] [that shall take into account the differences in the levels of development and size of the economies]. ]

[6.5 Developing countries shall be provided with the technical and financial assistance needed to ensure the operation of their general and specific contact points.]

[7.1. Subject to the provisions of the chapters of this Agreement, laws, regulations, judicial decisions and administrative decisions of general application made effective by any Party, pertaining to the matters covered under this Agreement, shall be published promptly in such a manner as to enable governments and interested sectors to become acquainted with them. Agreements affecting international trade policy which are in force between the government or a governmental agency of any Party and the Government or governmental agency of any other Party shall also be published. The provisions of this paragraph shall not require any Party to disclose confidential information which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private.]

[7.2.

a) Each Party shall administer in a uniform, impartial, and reasonable manner all the laws, regulations, decisions, and administrative rulings of the kind described in paragraph 1 of this Article.]

[b) Each Party shall maintain, or institute as soon as practicable, judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the correction of action relating to customs matters. Such tribunals or procedures shall be independent of the agencies entrusted with administrative enforcement and their decisions shall be implemented by, and shall govern the practice of, such agencies unless an appeal is lodged with a court or tribunal of superior jurisdiction within the time provided for appeals to be lodged by importers, and provided that the central administration of such agency may take steps to obtain a review of the matter in another proceeding if there is good cause to believe that the decision is inconsistent with established principles of law or the actual facts.]

[c) The provisions of subparagraph b) of this paragraph shall not require the elimination or substitution of procedures in force in the territory of a Party on the date of this Agreement’s entry into force, which in fact provide for an objective and impartial review of administrative action. Any Party employing such procedures shall, upon request, furnish the other Parties with full information thereon in order that they may determine whether such procedures conform to the requirements of this subparagraph.]

[7.3. Each Party shall ensure that its laws, regulations, procedures and administrative rulings of general application respecting any matter covered by this Agreement are promptly published or otherwise made available in such a manner as to enable interested persons and Parties to become acquainted with them. [The laws, regulations, and procedures shall be published and shall enter into force in accordance with the national laws of the respective Party].]

[7.4. To the extent possible, each Party shall:]

[a) publish in advance any such measure that it proposes to adopt; and]

[b) provide [interested persons and Parties] [and any of their nationals] [the same] a reasonable opportunity to comment on such proposed measures.]
 

[8.1. [To the [maximum] extent possible,] each Party shall notify [the other Parties] [any other Party with an interest in the matter] [the Secretariat] of any [proposed or] actual measure[that the Party considers] [that] might [materially] affect the operation of this Agreement or otherwise substantially affect that other Party’s interests, [under this Agreement]. ]

[8.2. At the request of another Party, a Party shall [promptly] [within a period not exceeding xx days] provide information and respond to questions pertaining to any actual or proposed measure, whether or not that other Party has been previously notified of that measure.]

[8.3 The Parties shall, at the earliest opportunity, notify the Secretariat of the signing of international agreements and their entry into force, provided that they refer to matters covered in this Agreement.]

[8.4 [Each Party shall furnish complete information and shall do so in good faith.] Any notification or [or furnishing of] information [in accordance with][provided under] this article shall [take place][be without prejudice as to] whether [[or not] the measure is consistent with this Agreement].]

[8.5 The Secretariat shall be a clearinghouse for information provided by the Member States in the cases established in this Agreement. Such information, whether of a public or confidential nature, shall be posted on the FTAA website.]

[9.1. Each Party confirms the guarantees of hearings, legality and due process provided for in their respective legislations.]

[10.1. Each Party shall administer in a uniform, impartial, and reasonable manner all its laws, regulations, decisions, and administrative rulings of general application [respecting any matter covered by this Agreement].]

[10.2. With a view to administering in a [consistent,] impartial and reasonable manner all measures of general application affecting matters covered by this Agreement, each Party shall ensure that in its administrative proceedings applying measures referred to in Article [7] (Publication) to particular persons, goods or services of another Party in specific cases that:]

[a) wherever possible, persons of another Party that are directly affected by a proceeding are provided reasonable notice, in accordance with domestic procedures, when a proceeding is initiated, including a description of the nature of the proceeding, a statement of the legal authority under which the proceeding is initiated and a general description of any issues in controversy;]

[b) such persons are afforded a reasonable opportunity to present facts and arguments in support of their positions prior to any final administrative action, when time, the nature of the proceeding and the public interest permit; and]

[c) its procedures are in accordance with domestic law.]

[11.1. Each Party shall [adopt or] maintain [and] [or] [establish] judicial, [quasi-judicial [,]] [arbitral] or administrative tribunals or procedures for the purpose of, [inter alia], the prompt review [and correction of measures of general application respecting] [and [where] [when] [justified][warranted], [the] correction of [definitive][final] administrative actions [regarding][related to]] matters covered by this Agreement. Such tribunals shall be impartial and independent of the office or authority entrusted with [administrative enforcement [of the law]] [to apply measures of general application respecting any matter covered by this Agreement,] and shall not have any substantial interest in the outcome of the matter.]

[11.2. Each Party shall ensure that, in any such tribunals or procedures, the parties [to the proceeding] [in those procedures] are provided with the right to:]

[a) a reasonable opportunity to support or defend their respective positions; and]

[b) a decision based on [the] evidence and [arguments presented by the parties][submissions of record], or where required by domestic law, the record compiled by the administrative authority.]

[11.3. Each Party shall ensure, subject to appeal or further review as provided in its domestic law, that such decisions shall be implemented by [, and shall govern the practice of,] the offices or authorities [with respect to the administrative action at issue].]

[12.1. For the purposes of this [Section][Chapter], “[an] administrative ruling of general application’’[ shall mean][means] an administrative ruling or interpretation that applies to all persons and fact situations that fall generally within its ambit and that establishes a norm of conduct but does not include:]

[a) a determination or ruling made in an administrative or quasi-judicial proceeding that applies to a particular person, good or service of another Party in a specific case; or]

[b)a ruling that adjudicates with respect to a particular act or practice].

[13.1. In the implementation of this Agreement, special and differential treatment that takes into account levels of development and size of the economies of the Parties shall be accorded. [Such treatment shall be applied according to sectors, topics, countries or groups of countries.] [Such treatment shall be determined on the basis of case by case analysis (according to sectors, topics and country/countries).] ]

[13.2. Without prejudice to the specific measures on special and differential treatment in each Chapter of this Agreement, the Parties undertake to support the Hemispheric Cooperation Program to ensure that effective advantage is taken of the advantages derived therefrom.]

[14.1. The Political Body of this Agreement, composed of the Ministers Responsible for Trade of all of the Parties, is hereby established. It shall be the supreme body in charge of steering the process at the political level of this Agreement.],

[14.2. The Political Body shall have the following functions:]

[a) ensure the fulfillment and enforcement of the provisions of the Agreement;]

[b) adopt decisions in accordance with the obligations established under the Agreement;]

[c) appoint the Chair and Vice Chair that shall conduct the meetings of the Political Body and the Executive Body, as well as the respective chairs and vice chairs of the technical bodies;]

[d) periodically evaluate the implementation and the outcomes of the Agreement;]

[e) examine any subsequent reforms as may be necessary; and]

[f) consider any other matter that may affect the operation of this Agreement]

[14.3. The Political Body may:]

[a) create technical bodies other than those established in accordance with Annex ____01 to this article;]

[b) modify, in pursuance [of the objectives] of this Agreement:]

[i. the time periods established in tariff elimination program(s), in order to accelerate the process of tariff elimination;]

[ii. the rules of origin established in ____ (Specific rules of origin);]

[iii. Annexes ____ to Chapter ____ (Investment);]

[iv. Annexes ____ to Chapter ____ (Services); and]

[v. the list of entities of a Party set out in Annex ____ (Entities), with the goal of incorporating one or more entities into the scope of application of Chapter ____ (Government Procurement).]

[c) request the advisory services of individuals or groups without governmental association;]

[d) draft rules and procedures for its functioning, as well as for the functioning of the Executive Body; and]

[e) draft and approve the regulations that are required for implementation of this Agreement.]

[14.4. The changes that are referred to in paragraph 19.3(b) shall be implemented by the Parties in accordance with Annex _____01(4).]

[14.5. The Political Body shall convene at least once every two years or whenever deemed necessary, but not necessarily at the headquarters of the Administrative Secretariat. All its decisions must be adopted by consensus. ]

[15.1. The Executive Body, which will be made up of the Vice Ministers Responsible for Trade of each Party or their representatives, is hereby established.]

[15.2. The Executive Body shall have the following functions:]

[a) ensure the fulfillment of [the principles, objectives, and commitments][and application of the provisions] of this Agreement;]

[b) draft and review the technical documents required by the Political Body to make decisions;]

[c) follow up with decisions taken by the Political Body;]

[d) approve the rules of procedure for the functioning of the respective technical bodies;]

[e) supervise the work of the various technical bodies;]

[f) act as a forum for negotiation on the issues covered by this Agreement and any other issues that may arise;]

[g) establish the rules and procedures for the functioning of the Administrative Secretariat, including, among others, the appointment, -- powers, duties, conditions of service, and duration of the mandate of the Administrative Secretary;]

[h) decide on financial and managerial matters relating to this Agreement;]

[i) review the financial reports prepared by the Administrative Secretary;]

[j) present a written report on the administration of the budget at every meeting of the Political Body, that includes proposed expenditure and available resources, and that minimally covers the period leading up to the following meeting;]

[k) establish the remuneration that the members of the neutral group, their assistants, and experts should receive and the expenses that should be covered for them;]

[l) consider any other matter referred to it by the Political Body that may affect the operation of this Agreement;]

[m) oversee the implementation of this Agreement and the work of the ad hoc Technical Committees and of the Administrative Secretariat; and]

[n) establish any necessary technical committees of an ad hoc nature, subcommittees, working groups, or similar entities.]

[15.3. The Executive Body shall convene as often as needed and no fewer than [once] [two times] per year prior to the meeting of the Political Body.]

[16.1. The Technical Bodies shall be made up of representatives of all of the Parties to the Agreement. They shall be made up of experts who meet at the request of the Executive Body, to advise Vice Ministers and Ministers on the implementation of the Chapters of this Agreement within their purview. ]

[16.2. The Technical Bodies shall have the following functions: ]

[a)submit their respective rules of procedure to the Executive Body for its approval;]

[b)ensure the proper operation of the Chapters of this Agreement within their purview;]

[c) consider any matter referred to them by a Party that believes that an actual [or proposed] measure by another Party affects the effective implementation of any commitments set forth in the Chapters of this Agreement that are within their purview;]

[d) request technical reports from the competent authorities and take the necessary actions for settling the matter;]

[e) evaluating and recommend to the Executive Body proposals for modifying, amending, or adding to the provisions of the Chapters of this Agreement that fall within their purview; and]

[f) carrying out such other tasks as referred by the Executive [and/or Political] Body, pursuant to the provisions of this Agreement.]

[16.3. The Technical Bodies shall meet as often as needed in order to fulfill their responsibilities at the request of [any of the Parties or ] the Executive Body.]

[Chairs and Vice Chairs and Decision-Making]

[17.1. Each meeting of the Political Body and Executive Body shall have a Chair and a Vice Chair who shall be selected on a rotational basis from among the various Parties at the end of each meeting of the Political Body. The selection of the respective Chairs and Vice Chairs shall be made bearing in mind the need to maintain a geographic balance among the Parties. The appointed Chairs and Vice Chairs shall discharge their duties until the following meeting of the Political Body. ]

[17.2. [Decisions shall be made by consensus among the Parties] within the Political Body, the Executive Body, and the Technical Bodies [, including the Dispute Settlement Body]. ]

[Meetings of exclusive interest to two or more Parties]

[17.3 Notwithstanding the provisions of Articles_____01(1), ___02(1), and ___03(2), the Political Body, the Executive Body, and the Technical Bodies may respectively convene and adopt decisions whenever representatives of two or more Parties are in attendance to deal with matters that are of exclusive interest to those Parties, such as the acceleration of the tariff elimination process.]

[18.1. The [Administrative] Secretariat is the operational and logistical support body responsible for providing administrative [and technical] services to the other FTAA institutions for implementation of the Agreement.]

[18.2. The [Administrative] Secretariat shall have its permanent headquarters in ______________ and all meetings of [the Political Body, the Executive Body, and] the Technical Bodies shall be held there.]

[18.3. The Political Body shall oversee the ]Administrative] Secretariat.]

[18.4. The [Administrative] Secretariat shall have the following functions:]

[a) maintain and update the official documentation of the FTAA negotiations and the subsequent administration of the Agreement;]

[b) prepare the financial reports, as well as any other documentation related to the budget allocated for administering the FTAA Agreement, for the consideration of the Executive Body;]

[c) notify communications among the Parties;]

[d) provide translation and simultaneous interpretation services during meetings of the Political Body, the Executive Body, and the Technical Bodies;]

[e) publish and distribute documents;]

[f) providing the necessary administrative and logistical support for meetings of the other FTAA institutions, as well as for meetings of the neutral panels established in accordance with Chapter ____(Dispute Settlement); and ]

[g) consider any other matter that is referred to it by the Executive Body;]

[h) maintain the web page.]

[18.5. The [Administrative Secretary] shall appoint Secretariat staff and shall define their duties and conditions of service in accordance with the rules and procedures adopted by the Executive Body.]

[18.6. In the discharge of their duties, the [Administrative Secretary] and Secretariat staff shall neither request nor accept instructions from any government or any authority other than the Political Body and the Executive Body and shall refrain from carrying out any activity that may be incompatible with their duties.]

[Technical assistance for training government officials involved in the implementation process. ]

[Institutional assistance for setting up and maintaining the offices and equipment needed to fulfill the obligations assumed under this Agreement.]

[During the implementation phase of the Agreement, contributions shall be made by the thirty-four (34) countries of the Hemisphere.]

[The Dispute Settlement Body shall be made up of all the Parties to this Agreement (the same members that sit on the Executive Body). It shall be responsible for overseeing the full implementation of this Agreement’s dispute settlement mechanism, which is made up of two bodies.]
- [Neutral Group or Panel (First Instance).]
- [Appellate Body (Second Instance).

[The TCI shall elaborate this text based on the contributions received from the NGDS.]

[1. The Parties shall implement the decisions of the Political Body referred to in Article ___01(3)(b), in accordance with their national legislation.]

[2. In the specific case of the following Parties, the following procedure shall be applied: a) In the case of Costa Rica, the agreements reached by the Parties shall be equivalent to the instrument referred to in the third paragraph of Article 121.4 of the Political Constitution of the Republic of Costa Rica].

[1. The remuneration of the members of the neutral panel, their assistants and experts, their travel and lodging expenses, and all of the general expenses incurred by the neutral panels shall be covered by the FTAA Administrative Secretariat.]

[2. Every member of a neutral panel and every assistant and expert shall keep a record and submit a final tally of their time and expenses, and the neutral panel shall keep a similar record and submit a final bill to the FTAA [Administrative] Secretariat documenting all of the general expenses.]

[The Technical Bodies or Committees shall be established in accordance with the requirements that arise from the negotiations of the Free Trade Area of the Americas]

[The Annexes to the FTAA Agreement are an integral part thereof.]

[No reservations or unilateral interpretative statements may be made regarding any provision of this Agreement.]

[25.1. The Parties may agree upon any modification or amendment to this Agreement.]

[25.2. The practice of adopting decisions by consensus shall be maintained in carrying out said modifications or amendments.]

[25.3. When so agreed and approved in accordance with each Party’s corresponding legal procedures, the modifications and amendments shall constitute an integral part of this Agreement.]

[The Spanish, English, French, and Portuguese texts of this Agreement are equally authentic.]

[27.1. Any Party may denounce this Agreement and such denunciation shall take effect after a period of XX from the date on which the Political Body receives written notification thereof from the Party.]

[27.2. The Agreement shall remain in force for the other Parties who have not denounced it.]

[28.1. The Parties shall seek to ensure that the FTAA Agreement enters into force on 1 January 2006.]

[28.2. All the countries shall ensure that their laws, regulations, and administrative procedures are consistent with the obligations under this Agreement].