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AGREEMENT ON PRESHIPMENT INSPECTION
Members,
Noting that Ministers on 20 September 1986 agreed that "the Uruguay
Round of Multilateral Trade Negotiations shall aim to bring about further
liberalization and expansion of world trade, strengthen the role of GATT and
increase the responsiveness of the GATT system to the evolving international
economic environment";
Noting that a number of developing country Members have recourse to
preshipment inspection;
Recognizing the need of developing countries to do so for as long and
insofar as it is necessary to verify the quality, quantity or price of
imported goods;
Mindful that such programmes must be carried out without giving rise
to unnecessary delays or unequal treatment;
Noting that this inspection is by definition carried out on the
territory of exporter Members;
Recognizing the need to establish an agreed international framework of
rights and obligations of both user Members and exporter Members;
Recognizing that the principles and obligations of the GATT 1994 apply
to those activities of preshipment inspection entities that are mandated by
governments that are Members of the MTO;
Recognizing that it is desirable to provide transparency of the
operation of preshipment inspection entities and of laws and regulations
relating to preshipment inspection;
Desiring to provide for the speedy, effective and equitable resolution
of disputes between exporters and preshipment inspection entities arising
under this Agreement;
Hereby agree as follows:
Article 1
Coverage - Definitions
1. This Agreement shall apply to all preshipment inspection activities
carried out on the territory of Members, whether such activities are
contracted or mandated by the government, or any government body, of a
Member (hereinafter referred to as "user Member").
2. Preshipment inspection activities are all activities relating to the
verification of the quality, the quantity, the price, including currency
exchange rate and financial terms, and/or the customs classification of
goods to be exported to the territory of the user Member.
3. The term "preshipment inspection entity" is any entity contracted or
mandated by a Member to carry out preshipment inspection activities.[1]
Article 2
Obligations of User Members
Non-discrimination
1. User Members shall ensure that preshipment inspection activities are
carried out in a non-discriminatory manner, that the procedures and criteria
employed in the conduct of these activities are objective and are applied on
an equal basis to all exporters affected by such activities. They shall
ensure uniform performance of inspection by all the inspectors of the
preshipment inspection entities contracted or mandated by them.
Governmental Requirements
2. User Members shall ensure that in the course of preshipment inspection
activities relating to their laws, regulations and requirements, the
provisions of Article III:4 of the GATT 1994 are respected to the extent
that these are relevant.
Site of Inspection
3. User Members shall ensure that all preshipment inspection activities,
including the issuance of a Clean Report of Findings or a note of
non-issuance, are performed in the customs territory from which the goods
are exported or, if the inspection cannot be carried out in that customs
territory given the complex nature of the products involved, or if both
parties agree, in the customs territory in which the goods are manufactured.
Standards
4. User Members shall ensure that quantity and quality inspections are
performed in accordance with the standards defined by the seller and the
buyer in the purchase agreement and that, in the absence of such standards,
relevant international standards[2] apply.
Transparency
5. User Members shall ensure that preshipment inspection activities are
conducted in a transparent manner.
6. User Members shall ensure that, when initially contacted by exporters,
preshipment inspection entities provide to the exporters a list of all the
information which is necessary for the exporters to comply with inspection
requirements. The preshipment inspection entities shall provide the actual
information when so requested by exporters. This information shall include
a reference to the laws and regulations of the user Members relating to
preshipment inspection activities, and shall also include the procedures and
criteria used for inspection and for price and currency exchange rate
verification purposes, the exporters' rights vis-à-vis the inspection
entities, and the appeals procedures set up under paragraph 21 of this
Article. Additional procedural requirements or changes in existing
procedures shall not be applied to a shipment unless the exporter concerned
is informed of these changes at the time the inspection date is arranged.
However, in emergency situations of the types addressed by Articles XX and
XXI of the GATT 1994, such additional requirements or changes may be applied
to a shipment before the exporter has been informed. This assistance shall
not, however, relieve exporters from their obligations in respect of
compliance with the import regulations of the user Members.
7. User Members shall ensure that the information referred to in
paragraph 6 of this Article is made available to exporters in a convenient
manner, and that the preshipment inspection offices maintained by
preshipment inspection entities serve as information points where this
information is available.
8. User Members shall publish promptly all applicable laws and
regulations relating to preshipment inspection activities in such a manner
as to enable other governments and traders to become acquainted with them.
Protection of Confidential Business Information
9. User Members shall ensure that preshipment inspection entities treat
all information received in the course of the preshipment inspection as
business confidential to the extent that such information is not already
published, generally available to third parties, or otherwise in the public
domain. User Members shall ensure that preshipment inspection entities
maintain procedures to this end.
10. User Members shall provide information to Members on request on the
measures they are taking to give effect to paragraph 9 of this Article. The
provisions of this paragraph shall not require any Member to disclose
confidential information the disclosure of which would jeopardize the
effectiveness of the preshipment inspection programmes or would prejudice
the legitimate commercial interest of particular enterprises, public or
private.
11. User Members shall ensure that preshipment inspection entities do not
divulge confidential business information to any third party, except that
preshipment inspection entities may share this information with the
government entities that have contracted or mandated them. User Members
shall ensure that confidential business information which they receive from
preshipment inspection entities contracted or mandated by them is adequately
safeguarded. Preshipment inspection entities shall share confidential
business information with the governments contracting or mandating them only
to the extent that such information is customarily required for letters of
credit or other forms of payment or for customs, import licensing or
exchange control purposes.
12. User Members shall ensure that preshipment inspection entities do not
request exporters to provide information regarding:
(a) manufacturing data related to patented, licensed or undisclosed
processes, or to processes for which a patent is pending;
(b) unpublished technical data other than data necessary to
demonstrate compliance with technical regulations or standards;
(c) internal pricing, including manufacturing costs;
(d) profit levels;
(e) the terms of contracts between exporters and their suppliers
unless it is not otherwise possible for the entity to conduct the
inspection in question. In such cases, the entity shall only
request the information necessary for this purpose.
13. The information referred to in paragraph 12 of this Article, which
preshipment inspection entities shall not otherwise request, may be released
voluntarily by the exporter to illustrate a specific case.
Conflicts of Interest
14. User Members shall ensure that preshipment inspection entities,
bearing in mind also the provisions on protection of confidential business
information in paragraphs 9-13 of this Article, maintain procedures to avoid
conflicts of interest:
(a) between preshipment inspection entities and any related entities
of the preshipment inspection entities in question, including any
entities in which the latter have a financial or commercial
interest or any entities which have a financial interest in the
preshipment inspection entities in question, and whose shipments
the preshipment inspection entities are to inspect;
(b) between preshipment inspection entities and any other entities,
including other entities subject to preshipment inspection, with
the exception of the government entities contracting or mandating
the inspections;
(c) with divisions of preshipment inspection entities engaged in
activities other than those required to carry out the inspection
process.
Delays
15. User Members shall ensure that preshipment inspection entities avoid
unreasonable delays in inspection of shipments. User Members shall ensure
that, once a preshipment inspection entity and an exporter agree on an
inspection date, the preshipment inspection entity conducts the inspection
on that date unless it is rescheduled on a mutually-agreed basis between the
exporter and the preshipment inspection entity, or the preshipment
inspection entity is prevented from doing so by the exporter or by force
majeure[3].
16. User Members shall ensure that, following receipt of the final
documents and completion of the inspection, preshipment inspection entities,
within five working days, either issue a Clean Report of Findings or provide
a detailed written explanation specifying the reasons for non-issuance.
User Members shall ensure that, in the latter case, preshipment inspection
entities give exporters the opportunity to present their views in writing
and, if exporters so request, arrange for re-inspection at the earliest
mutually convenient date.
17. User Members shall ensure that, whenever so requested by the
exporters, preshipment inspection entities undertake, prior to the date of
physical inspection, a preliminary verification of price and, where
applicable, of currency exchange rate, on the basis of the contract between
exporter and importer, the pro forma invoice and, where applicable, the
application for import authorization. User Members shall ensure that a
price or currency exchange rate that has been accepted by a preshipment
inspection entity on the basis of such preliminary verification is not
withdrawn, providing the goods conform to the import documentation and/or
import licence. They shall ensure that, after a preliminary verification
has taken place, preshipment inspection entities immediately inform
exporters in writing either of their acceptance or of their detailed reasons
for non-acceptance of the price and/or currency exchange rate.
18. User Members shall ensure that, in order to avoid delays in payment,
preshipment inspection entities send to exporters or to designated
representatives of the exporters a Clean Report of Findings as expeditiously
as possible.
19. User Members shall ensure that, in the event of a clerical error in
the Clean Report of Findings, preshipment inspection entities correct the
error and forward the corrected information to the appropriate parties as
expeditiously as possible.
Price Verification
20. User Members shall ensure that, in order to prevent over- and
under-invoicing and fraud, preshipment inspection entities conduct price
verification[4] according to the following guidelines:
(a) preshipment inspection entities shall only reject a contract
price agreed between an exporter and an importer if they can
demonstrate that their findings of an unsatisfactory price are
based on a verification process which is in conformity with the
criteria set out in (b)-(e) below;
(b) the preshipment inspection entity shall base its price comparison
for the verification of the export price on the price(s) of
identical or similar goods offered for export from the same
country of exportation at or about the same time, under
competitive and comparable conditions of sale, in conformity with
customary commercial practices and net of any applicable standard
discounts. Such comparison shall be based on the following:
- only prices providing a valid basis of comparison shall be
used, taking into account the relevant economic factors
pertaining to the country of importation and a country or
countries used for price comparison;
- the preshipment inspection entity shall not rely upon the
price of goods offered for export to different countries of
importation to arbitrarily impose the lowest price upon the
shipment;
- the preshipment inspection entity shall take into account
the specific elements listed in paragraph 20(c) of this
Article;
- at any stage in the process described above, the
preshipment inspection entity shall provide the exporter
with an opportunity to explain his price;
(c) when conducting price verification, preshipment inspection
entities shall make appropriate allowances for the terms of the
sales contract and generally applicable adjusting factors
pertaining to the transaction; these factors shall include but
not be limited to the commercial level and quantity of the sale,
delivery periods and conditions, price escalation clauses,
quality specifications, special design features, special shipping
or packing specifications, order size, spot sales, seasonal
influences, licence or other intellectual property fees, and
services rendered as part of the contract if these are not
customarily invoiced separately; they shall also include certain
elements relating to the exporter's price, such as the
contractual relationship between the exporter and importer;
(d) the verification of transportation charges shall relate only to
the agreed price of the mode of transport in the country of
exportation as indicated in the sales contract;
(e) the following shall not be used for price verification purposes:
(i) the selling price in the country of importation of goods
produced in such country;
(ii) the price of goods for export from a country other than the
country of exportation;
(iii) the cost of production;
(iv) arbitrary or fictitious prices or values.
Appeals Procedures
21. User Members shall ensure that preshipment inspection entities
establish procedures to receive, consider and render decisions concerning
grievances raised by exporters, and that information concerning such
procedures is made available to exporters in accordance with the provisions
of paragraphs 6-7 of this Article. User Members shall ensure that the
procedures are developed and maintained in accordance with the following
guidelines:
(a) preshipment inspection entities shall designate one or more
officials who shall be available during normal business hours in
each city or port in which they maintain a preshipment inspection
administrative office to receive, consider and render decisions
on exporters' appeals or grievances;
(b) exporters shall provide in writing to the designated official(s)
the facts concerning the specific transaction in question, the
nature of the grievance and a suggested solution;
(c) the designated official(s) shall afford sympathetic consideration
to exporters' grievances and shall render a decision as soon as
possible after receipt of the documentation referred to in (b)
above.
Derogation
22. By derogation to the provisions of Article 2, user Members shall
provide that, with the exception of part shipments, shipments whose value is
less than a minimum value applicable to such shipments as defined by the
user Member shall not be inspected, except in exceptional circumstances.
This minimum value shall form part of the information furnished to exporters
under the provisions of paragraph 6 of this Article.
Article 3
Obligations of Exporter Members
Non-discrimination
1. Exporter Members shall ensure that their laws and regulations relating
to preshipment inspection activities are applied in a non-discriminatory
manner.
Transparency
2. Exporter Members shall publish promptly all applicable laws and
regulations relating to preshipment inspection activities in such a manner
as to enable other governments and traders to become acquainted with them.
Technical Assistance
3. Exporter Members shall offer to provide to user Members, if requested,
technical assistance directed towards the achievement of the objectives of
this Agreement on mutually agreed terms.[5]
Article 4
Independent Review Procedures
Members shall encourage preshipment inspection entities and exporters
mutually to resolve their disputes. However, two working days after
submission of the grievance in accordance with the provisions of paragraph
21 of Article 2, either party may refer the dispute to independent review.
Members shall take such reasonable measures as may be available to them to
ensure that the following procedures are established and maintained to this
end:
(a) these procedures shall be administered by an independent entity
constituted jointly by an organization representing preshipment
inspection entities and an organization representing exporters
for the purposes of this Agreement;
(b) the independent entity referred to in sub-paragraph (a) of this
Article shall establish a list of experts as follows:
(i) a section of members nominated by an organization
representing preshipment inspection entities;
(ii) a section of members nominated by an organization
representing exporters;
(iii) a section of independent trade experts, nominated by the
independent entity referred to in sub-paragraph (a) of this
Article.
The geographical distribution of the experts on this list shall
be such as to enable any disputes raised under these procedures
to be dealt with expeditiously. This list shall be drawn up
within two months of the entry into force of the Agreement
Establishing the MTO and shall be updated annually. The list
shall be publicly available. It shall be notified to the MTO
Secretariat and circulated to all Members;
(c) an exporter or preshipment inspection entity wishing to raise a
dispute shall contact the independent entity referred to in
sub-paragraph (a) of this Article and request the formation of a
panel. The independent entity shall be responsible for
establishing a panel. This panel shall consist of three members.
The members of the panel shall be chosen so as to avoid
unnecessary costs and delays. The first member shall be chosen
from section (i) of the above list by the preshipment inspection
entity concerned, provided that this member is not affiliated to
that entity. The second member shall be chosen from section (ii)
of the above list by the exporter concerned, provided that this
member is not affiliated to that exporter. The third member
shall be chosen from section (iii) of the above list by the
independent entity referred to in sub-paragraph (a) of this
Article. No objections shall be made to any independent trade
expert drawn from section (iii) of the above list;
(d) the independent trade expert drawn from section (iii) of the
above list shall serve as the chairman of the panel. He shall
take the necessary decisions to ensure an expeditious settlement
of the dispute by the panel, for instance, whether the facts of
the case require the panelists to meet and, if so, where such a
meeting shall take place, taking into account the site of the
inspection in question;
(e) if the parties to the dispute so agree, one independent trade
expert could be selected from section (iii) of the above list by
the independent entity referred to in sub-paragraph (a) of this
Article to review the dispute in question. This expert shall
take the necessary decisions to ensure an expeditious settlement
of the dispute, for instance taking into account the site of the
inspection in question;
(f) the object of the review shall be to establish whether, in the
course of the inspection in dispute, the parties to the dispute
have complied with the provisions of this Agreement. The
procedures shall be expeditious and provide the opportunity for
both parties to present their views in person or in writing;
(g) decisions by a three-member panel shall be taken by majority
vote. The decision on the dispute shall be rendered within eight
working days of the request for independent review and be
communicated to the parties to the dispute. This time-limit
could be extended upon agreement by the parties to the dispute.
The panel or independent trade expert shall apportion the costs,
based on the merits of the case;
(h) the decision of the panel shall be binding upon the preshipment
inspection entity and the exporter which are parties to the
dispute.
Article 5
Notification
Members shall submit to the MTO Secretariat copies of their laws and
regulations by which they put this Agreement into force, as well as copies
of any other laws and regulations relating to preshipment inspection when
the Agreement comes into force for the Member concerned. No changes in the
laws and regulations relating to preshipment inspection shall be enforced
before such changes have been officially published. They shall be notified
to the MTO Secretariat immediately after their publication. The MTO
Secretariat shall inform the Members of the availability of this
information.
Article 6
Review
At the end of the second year from the entry into force of the
Agreement Establishing the MTO and every three years thereafter, the
Ministerial Conference shall review the provisions, implementation and
operation of this Agreement, taking into account the objectives thereof and
experience gained in its operation. As a result of such review, the
Ministerial Conference may amend the provisions of the Agreement.
Article 7
Consultation
Members shall consult with other Members upon request with respect to
any matter affecting the operation of this Agreement. In such cases, the
provisions of Article XXII of the GATT 1994, as elaborated and applied by
the Understanding on Rules and Procedures Governing the Settlement of
Disputes, are applicable to this Agreement.
Article 8
Dispute Settlement
Any disputes among Members regarding the operation of this Agreement
shall be subject to the provisions of Article XXIII of the GATT 1994, as
elaborated and applied by the Understanding on Rules and Procedures
Governing the Settlement of Disputes.
Article 9
Final Provisions
1. Members shall take the necessary measures for the implementation of
the present Agreement.
2. Members shall ensure that their laws and regulations shall not be
contrary to the provisions of this Agreement.
1. It is understood that this provision does not obligate Members to allow
government entities of other Members to conduct preshipment inspection
activities on their territory.
2. An international standard is a standard adopted by a governmental or
non-governmental body whose membership is open to all Members, one of whose
recognized activities is in the field of standardization.
3. It is understood that, for the purposes of this Agreement, force majeure
shall mean "irresistible compulsion or coercion, unforeseeable course of
events excusing from fulfilment of contract".
4. The obligations of user Members with respect to the services of
preshipment inspection entities in connection with customs valuation shall
be the obligations which they have accepted in the GATT 1994 and the other
Multilateral Trade Agreements included in Annex 1A of the Agreement
Establishing the Multilateral Trade Organization.
5. It is understood that such technical assistance may be given on a
bilateral, plurilateral or multilateral basis.