Bilateral and Regional Trade Agreements

‘Immediately after World War II, multilateralism and regionalism replaced bilateralism… The situation has now shifted, with economically powerful nations reaching agreements between and amongst themselves. Examples of current negotiations include the US-European Union (EU) and China-Japan -Korea. These follow completed ‘blockbusters’ such as US-Korea and EU-Korea, and the negotiated but not yet in force agreement between Canada and the EU.

The result of the proliferation of these agreements is that today’s international trade rules now consist of a number of instruments. At the forefront, there is the multilateral WTO Agreement, which includes 161 countries or customs territories. In addition there are the traditional trading blocs, each with their own agreements, some of which provide for deep integration or customs unions amongst the member countries. Then there is the complex web of bilateral trade agreements between individual countries. All of these agreements – over 400 in total – exist together, creating a mish-mash of overlapping, supporting, and possibly conflicting obligations.

Perhaps even more important than the sheer quantity of trade agreements are their scope and coverage. While the nineteenth- and early twentieth-century bilateral agreements were often narrowly focussed on reducing tariffs, the more recent ones contain obligations that are wide-ranging and controversial, from investment provisions to intellectual property rights affecting access to medicines to protections for labour/human rights and the environment and against abuses from anti-competitive behaviour and state-owned enterprises. While the full impact that these agreements will have on domestic policy is uncertain, it is clear that a number of agreements are going beyond the coverage of the WTO as well as the regional and bilateral agreements negotiated prior to 1999, and reaching a new level of international policy-making.’

‘Bilateral and Regional Trade Agreements – Commentary and Analysis’ Second Edition, edited by Simon Lester, Bryan Mercurio and Lorand Bartels (2015).

Structuring Drafting and Negotiating Free Trade Agreements

  • Glossary of terms
  • Introduction
  • Sources of law
  • Rules on market access
  • Border measures: tariffs and quantitative restrictions
  • Trade policy and domestic health and safety regulation and standards
  • Anti-dumping laws
  • Subsidies, countervailing duties and government procurement
  • Safeguard regimes and domestic adjustment policies
  • Treaties and MOU’s
  • WTO compliance
  • Drafting
  • Interpretation
  • Preamble
  • Main text
  • Reservations
  • Pre-conditions
  • Duration and termination
  • Amendment
  • Dispute resolution
  • Schedules
  • Capacity
  • Full powers
  • Adoption and authentification
  • Consent to be bound
  • Entry into force
  • Interpretation
  • Negotiation
  • Bibliography


Border barriers

‘The physical barriers encountered at borders between nations affect both goods and individuals. Border customs controls carry out a number of commercial functions: they make border collections of duties viable; they control the flow of farm items allowing different price levels for the same products to exist across member nations; they check plants and animals to preserve different health levels in different nations; they check trucks for road transport licences; and they protect the trade regimes that individual nations may have with countries that are not participants in a community or trade accord.

However one analyses the value of border crossings and the funds collected there, such customs post are in fact a matter of taxes. Since taxes are the primary civilian prerequisite of sovereignty, this issue has given nations their right to independence and justified their existence  over and over again. Therefore reducing and eventually eliminating customs throughout an internal market would put an end to much of this. Borders do not divide markets, they separate different nations that they protect.’ (Rosenberg).

Certificate of origin

A certificate declaring that goods purchased from a foreign country have indeed been produced in that country and not in another. A certificate would be required by a customs authority to determine whether:

(1)     an import benefits from a preferential tariff agreed between member countries of a free trade area or customs union; and

(2)     a product is liable to an anti-dumping tax.

Countervailing duty

‘Import duty imposed over and above normal levels when an importing nation considers the export price to contain a subsidy. GATT permits the use of such duties if material injury to the importing country’s producers occurs.’ (Rosenberg).

Customs Union

(1)     A form of regional economic integration group that eliminates tariffs among member nations and establishes common external tariffs.

(2)     An arrangement whereby European Community nations agreed to do away with customs barriers between themselves and apply a common tariff to nations outside the European Community so that the level of protection will be the same wherever a product enters the Community. It was formed by the six Community founder members in 1968 and was extended to include newer member nations of the European Community.


‘(1)    The selling of goods abroad at prices below those that the exporter charges for comparable sales in his or her own country, often involving a subsidy. Subsidies include most financial benefits granted to overseas corporations on the production or exports of goods (but not rebates of customs duties, or internal sales taxes) granted by governments when such items are exported.

(2)     Selling items to other countries below cost for purposes of eliminating surplus or to hurt foreign competition.’ (Rosenberg).

Free Trade  Agreement (‘FTA’)

Free trade agreements (FTAs) are international treaties that reduce barriers to trade and investment.

‘[An FTA is] a comprehensive agreement designed to remove barriers to substantially expand all trade through eliminating tariffs and quotas, enhancing market access, improving standards for treatment of investors, strengthening enforcement of intellectual property rights, improving standards for health and safety, and restraining certain government actions, such as subsidies.

Free trade agreements cover virtually every aspect of trade between signatories. They purport to remove all significant barriers to trade in goods and services and establish strong rules for investment and intellectual property rights, allowing participating economies to function according to market principles.

…free trade accords must cope with the primary issues of: (a) phased reduction and ultimate elimination of tariffs; (b) removing of non-tariff barriers; (c) removal of barriers to the free flow of investment; (d) providing a greater number of services in foreign markets; (e) provision of adequate and effective protection of intellectual property rights; (f) removal of most customs restraints; and (g) definition of appropriate rules of origin.’ (Rosenberg).

Free Trade Area

This represents two or more customs territories in which duties and other restrictions on trade are eliminated on most of the trade between the member nations. Unlike a Customs Union members of a Free Trade Area do not pursue a common external trade policy and do not therefore have any common external tariff. Since there are no internal tariffs its members are free to set their own tariffs on trade with the rest of the world.

National treatment

‘A form of friendship where laws governing the marketing of domestic items in nations that have signed treaties are extended to items designated as ‘foreign’ or ‘imported’.

Quantitative restrictions

‘Specific limits on the quantity or value of goods that can be imported or exported during a specific time period. GATT generally prohibits the use of quantitative restrictions except under specified exceptional conditions.’ (Rosenberg).


Temporary restrictions to trade levied unilaterally by a government on an emergency basis against imported items that  are seen as causing significant injury to a domestic industry.


‘(1)    a schedule of taxes on items imported or exported…

(2)     a published schedule showing the rates, fares, charges, classification of freight, rules and regulations applying to the various kinds of transportation and incidental services.’ (Rosenberg).

Tariff bindings

‘The agreement by contracting parties to maintain the duty rates on specified goods at negotiated levels or below; provided for in GATT.’ (Rosenberg).

Tariff quota

‘A tariff that has a lower rate until the end of a specified period or until a specified amount of the commodity has been imported. At that point the rates increases.’ (Rosenberg).

The Most Favoured Nation Principle

‘The Most Favoured Nation (MFN) obligation calls for a country to grant to every other country with which it has signed an MFN treaty the most favourable treatment that it grants to any other country with respect to imports, exports and related regulations. The most prominent example of such an obligation in the international economic order is found in Article 1 of the GATT… [The] main objective of the principle is to prevent discrimination, by generalizing concessions made to a specific trading partner. The MFN principle is often referred to as the cornerstone of the multilateral trading system, and an MFN obligation is included in numerous GATT/WTO agreements.’ (International Trade).

Article I:1 of the GATT embodies the principal MFN obligation of the world trading system, as follows;

‘With respect to customs duties and charges of any kind imposed on or in connection with importation or exportation or imposed on the international transfer of payments for imports or exports, and with respect to the method of levying such duties and charges, and with respect to all rules and formalities in connection with importation and exportation, and with respect to all matters referred to in paragraphs 2 and 4 of Article III, any advantage, favour , privilege or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties.’

‘By far the most sweeping exception to the MFN principle is the authorization of PTA’s such as customs unions and free trade areas under Article XXIV of the GATT, provided that certain conditions are met. Most importantly, trade restrictions must be eliminated with respect to “substantially all the trade” between the constituent territories , and customs duties shall not be higher thereafter than the duties prevailing on average throughout  the constituent territories prior to the formation of a customs union or free trade area. Subject to the requirements of Article XXIV, constituent territories are permitted to establish more favourable duty and other arrangements among themselves than pertain to trade with non-member countries… PTA’s are treaties between two or more countries granting preferential market access and therefore advancing trade liberalization and economic integration among parties to the PTA.’ (International Trade).


‘Immediately after World War II, multilateralism and regionalism replaced bilateralism… The situation has now shifted, with economically powerful nations reaching agreements between and amongst themselves. Examples of current negotiations include the US-European Union (EU) and China-Japan -Korea. These follow completed ‘blockbusters’ such as US-Korea and EU-Korea, and the negotiated but not yet in force agreement between Canada and the EU.

The result of the proliferation of these agreements is that today’s international trade rules now consist of a number of instruments. At the forefront, there is the multilateral WTO Agreement, which includes 161 countries or customs territories. In addition there are the traditional trading blocs, each with their own agreements, some of which provide for deep integration or customs unions amongst the member countries. Then there is the complex web of bilateral trade agreements between individual countries. All of these agreements – over 400 in total – exist together, creating a mish-mash of overlapping, supporting, and possibly conflicting obligations.

Perhaps even more important than the sheer quantity of trade agreements are their scope and coverage. While the nineteenth- and early twentieth-century bilateral agreements were often narrowly focussed on reducing tariffs, the more recent ones contain obligations that are wide-ranging and controversial, from investment provisions to intellectual property rights affecting access to medicines to protections for labour/human rights and the environment and against abuses from anti-competitive behaviour and state-owned enterprises. While the full impact that these agreements will have on domestic policy is uncertain, it is clear that a number of agreements are going beyond the coverage of the WTO as well as the regional and bilateral agreements negotiated prior to 1999, and reaching a new level of international policy-making.’

‘Bilateral and Regional Trade Agreements – Commentary and Analysis’ Second Edition, edited by Simon Lester, Bryan Mercurio and Lorand Bartels (2015).


‘The core areas of international economic law are international trade law, the law of regional economic integration, and other bi- or multilateral trade agreements, international investment law and international monetary law. It also comprises areas related to trade and investment such as international commercial arbitration, double taxation agreements, and international intellectual or industrial property law as well as international competition law…

The international agreements on the exchange of goods and services across borders are based on the reciprocal character of the respective rights and obligations of the parties and aim at achieving mutual benefits for all of them. The World Trade Organisation (‘WTO’) provides the institutional basis for global trade relations and is built on pre-existing structures under the General Agreement on Tariffs and Trade (GATT 1947). Its principal objectives are to reduce existing trade barriers and to expand international trade , raise the standard of living, attain sustainable development, and secure an adequate share in the growth of international trade for developing countries (WTO Agreement, preamble).

The institutional system of the WTO administers a number of trade agreements. The GATT 1947 and 1994) is the basic legal instrument for substantially reducing tariffs and other barriers to trade in goods and for eliminating discriminatory treatment… The General Agreement on Trade in Services (GATS) integrates services into the WTO system.

Bi – and multi-lateral free trade agreements and other forms of regional economic law overlap with WTO law. These agreements range from free trade areas over customs unions to more ambitious forms of regional economic integration…’ (Herdegen).


Access for goods and services from other countries to the market of a WTO member are impeded or restricted in various ways.  Restrictions can take the form of either tariffs or non-tariff barriers to trade. For goods, the most common tariff barrier is customs duty. Tariff barriers to trade can also take the form of other duties and charges on imports and exports. Non-tariff barriers for goods and services include:

(i)       quantitative restrictions, e.g. quotas and bans; and

(ii)      non tariff-barriers, such as technical barriers to trade, lack of transparency of national trade regulation, unfair and arbitrary application of national trade regulation, customs formalities and procedures and government procurement practices.

Different WTO rules are applicable to these various tariff and non-tariff barriers, reflecting a difference in the economic impact of these trade barriers.

A customs duty or tariff on imports, is a financial charge or a tax on goods due because of their importation. Market access for specified goods is then conditional upon the payment of the customs duty, which will usually be charged on an ad valorem basis, i.e. as a percentage of the value of the imported product.

Customs duties may also be specific , i.e. based upon a unit of quantity such as weight, length, area, volume, or numbers of a product.

The customs duties or tariffs imposed by a WTO Member on importation are set out in the Member’s national “tariff” or “customs tariff” (which is a structured list of product descriptions and of the corresponding customs duties).

‘The basic rules governing tariff negotiations are:

  • the MFN treatment obligation of Article 1 of the GATT 1994; and
  • the principle of reciprocity and mutual advantage…

The results of successful tariff negotiations are referred to as “tariff concessions” or “tariff bindings”. A tariff concession, or a tariff binding, is a commitment not to raise the customs duty on a certain product above an agreed level. The tariff concessions or bindings of a Member are set out in that Member’s Schedule of Concessions, also known as its Goods Schedule…

Members’ Goods Schedules are interpreted in accordance with customary international law rules on treaty interpretation, codified in Articles 31 and 32 of the Vienna Convention on the Law of Treaties, in order to ascertain the common intention of the Members…

WTO members may impose customs duties that are lower than their tariff concessions…[and] tariff concessions can be amended or withdrawn.’(‘Bossche & Prevost’).

In addition to ordinary customs duties, imported products can be subject to other duties and charges, e.g. financial charges or taxes on imported products other than ordinary customs duties such as import surcharges, security deposits, customs fees, foreign exchange fees and statistical taxes.

Whilst there are no WTO rules prohibiting or specifically regulating export duties, general GATT obligations, such as MFN treatment, apply to export duties.




‘The term “dumping” has many meanings. It may mean exporting a product at an unduly low price to drive out competition in the importing country. It may also mean “social dumping”, exporting a product from a country where wages are extremely low (and therefore, where the export price is low) or where the level of working conditions is far below that of advanced countries. Whatever the term “dumping” means, it has the connotation of “unfair” or “predatory”. On the other hand, there is a view that “dumping” is merely legitimate price competition…

To counteract dumping, countries impose “antidumping” duties on imports of the products that are being dumped… [An] importing country may impose an anti-dumping duty on imported products if (1) products are sold at a certain price in the domestic market of the exporting country and such products are sold at a lower price in the market of the importing country; (2) a domestic industry in the importing country is materially injured; and (3) there is a causal relationship between dumping and the material injury. The maximum duty that may be imposed under WTO rules is the difference between those prices…

The legal framework of antidumping in the GATT/WTO regime consists of GATT 1994 Article VI and the Antidumping Agreement. GATT 1994 is the general provision and the Antidumping Agreement is an implementation of Article VI.’(WTO).

GATT Article VI states,

‘The contracting parties recognize that dumping, by which products of one country are introduced into the commerce of another country at less than the normal value of the products, is to be condemned if it causes or threatens material injury to an established industry in the territory of a contracting party or materially retards the establishment of a domestic industry.’





‘A core objective of the multilateral trading system is the “elimination of discriminatory treatment in international trade relations.” In pursuit of this objective, WTO members must accord equal treatment to the goods and services of all other WTO Members (through “most-favoured-nation” or “MFN” treatment). In contrast, bilateral and plurilateral trade agreements – preferential trade agreements (PTA’s) – pursue trade liberalisation through precisely this type of discrimination. The parties to a PTA liberalise trade solely among themselves, creating a network of special preferences within the PTA that are not available to other WTO Members. PTA’s therefore entrench the very discrimination that WTO rules seek to eliminate.

In legal terms, the co-existence of the WTO and PTA’s among WTO Members creates a complex system of competing international rights and obligations.

As PTA’s involve discrimination contrary to the general MFN obligation, they would normally give rise to inconsistencies with WTO rules. However, the WTO Agreements contain a series of exceptions for PTA’s that allow limited derogation from WTO rules for PTA’s meeting certain conditions. Only PTA’s falling within one of these exceptions are valid under WTO law. In other words a WTO Member must ensure that any PTA to which it is a party complies with the conditions of the relevant WTO exception. Otherwise, the Member risks acting inconsistently with its WTO obligations. The PTA exceptions are contained in: Article XXIV of GATT 1994; paragraph 2(c) of the Enabling Clause; and Article V of GATTS.’ (‘Lester, Mercurio & Bartels’p.81)

WTO law permits preferential trade agreements, if covering ‘substantially all the trade’ (see Article XXIV: 4 and 8 of the GATT).


A trade agreement is a treaty.

‘Treaties do not have to be in any particular form. But, with the principal exception of exchanges of notes… most treaties consist of a single main instrument that follows a well-established pattern:

  • title;
  • preamble;
  • main text;
  • final clauses;
  • testimonium and signature block;
  • [schedules]…

The basic rules for drafting treaties are essentially the same as for any legal instrument, whether a contract, legislation or a UN resolution:

(1)     Keep it simple. The first draft should be as uncomplicated as possible; it will surely become more complex as the negotiations proceed.

(2)     See the text as a whole. This is especially important during redrafting.

(3)     Be consistent throughout the text. Do not use different words or formulations to say the same thing.

(4)     Adopt (one) clear system of numbering, and keep to it.

(5)     Try to avoid drafting in a language in which you are not really proficient. And even if you are fluent in that foreign language, always have it checked by someone who is a native speaker. Negotiating problems can be caused by a draft done by non-native speakers who have not had it properly checked…

The initial draft should be done alone. Sometimes it is more sensible for the initial draft to be done by the policy maker and then given to a legal advisor…

Do not attempt to reinvent the wheel. Where possible, adapt precedents, but only if they are clearly right for the purpose and you fully understand them…

Use short sentences. Avoid unnecessary words, especially adjectives. Try to limit the number of cross-references. Instead, repeat the provision unless it is long. If there is a need to refer to the same provision several times, consider making it into a definition… Avoid ‘and/or’ if what you really mean is ‘both’ or ‘either’. Using simply ‘or’ will usually do the job…

You can learn how to draft the substance only ‘on the job’; and the more practice you get the better you should be at drafting.’ (Aust).




Drafting and interpretation


Negotiation principles



Drafting and interpretation


Negotiation principles



Drafting and interpretation


Negotiation principles



Drafting and interpretation


Negotiation principles



Part V of the Vienna Convention on the Law of Treaties (the ‘Convention’) sets out the various circumstances in which a treaty can be denounced, terminated or its operation suspended, other than on grounds of invalidity.

‘Denunciation and withdrawal are used interchangeably to refer to a unilateral act by which a nation that is currently a party to a treaty ends its membership in that treaty. In the case of multilateral agreements, denunciation or withdrawal generally does not affect the treaty’s continuation in force for the remaining parties. For bilateral agreements, in contrast, denunciation or withdrawal by either party results in termination of the treaty for both parties. The termination of a multilateral agreement occurs when the treaty ceases to exist for all States parties.’ (Hollis), page 635.

‘To be effective, denunciation, termination or suspension may take place only as a result of the application of the provisions of the treaty itself or Article 42(2) [of the Convention]. These days, most treaties contain provisions on duration and termination, often in the same article. But when there are none, one must consider not only the relevant article in Part V [of the Convention], but other articles in that Part which govern the conditions for applying the article, such as Articles 65-68 concerning the procedure to be followed. Certain other articles of the Convention may also be relevant…’ (Aust), page 245.

Article 42(2) provides, ‘The termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention. The same rule applies to suspension of the operation of a treaty.’

The design and operation of treaty exit clauses is governed by the foundational principle of State consent.

Article 54 of the Convention provides,

‘The termination of a treaty or the withdrawal of a party may take place:

(a)     In conformity with the provisions of the treaty; or

(b)     At any time by consent of all the parties after consultation with the other contracting States’.

‘At the negotiation stage, State representatives have free rein to choose the substantive and procedural rules that will govern the future cessation of their relationship. Once those rules have been adopted as part of a final text, however, a State that ratifies or accedes to the treaty also accepts any conditions or restrictions on termination, withdrawal or denunciation that the treaty contains. Unilateral exit attempts that do not comply with these conditions or restrictions are ineffective. A state that ceases performance after such an attempt remains a party to the treaty, albeit one that may be in breach of its obligations. However, the treaty parties may waive these conditions or restrictions and permit unilateral withdrawal, or terminate the treaty, “at any time by consent of all the parties after consultation with the other contracting states.”… States are the undisputed masters of treaty exit rules… But what if a treaty omits such clauses entirely? In such a situation the VCLT provides default rules to govern the end of the parties’ relationship.’ (Hollis), page 636.

Article 56 provides,

‘1.      A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:

(a)     it is established that the parties intended to admit the possibility of denunciation or withdrawal; or

(b)     a right of denunciation or withdrawal may be implied by the nature of the treaty.

  1. A party shall give not less than twelve months’ notice of its intention to denounce or withdraw from a treaty under paragraph 1.’

Whilst the commercial character of a treaty is not determinative, in principle, a trade agreement is likely to fall within the Article 56(1)(b) exception.

Article 70 further provides,

‘1.    Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention:

(a)     releases the parties from any obligation further to perform the treaty;

(b)     does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.

  1. If a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between that State and each of the other parties to the treaty from the date when such denunciation or withdrawal takes effect.’

‘Taken together, these provisions restrict States from using exit to avoid accountability for past violations of international law. They also discourage the precipitous and opportunistic withdrawals in which a State seeks to exit and then immediately violate a rule that it previously accepted as binding.’ (Hollis), page 641.

Article 43 also provides, ‘The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty.’

Treaty exit clauses operate in tandem with other flexibility devices including: reservations; amendment rules; escape clauses; and renegotiation provisions, that treaty makers use to manage risk.

Drafting and interpretation


Negotiation principles



The formal legal device for making changes to the text of a bilateral or multilateral trade agreement in the form of a treaty (as distinct from a non-legally binding MOU / political commitment), whether to its core provisions or to annexes or appendices, is an amendment.

If the changes apply only among a subset of treaty parties, they are referred to as ‘modifications’.

Where a bilateral treaty provides for the procedure for adopting an amendment to be determined by the parties, the agreement to amend coming into effect when formally confirmed by an exchange of notes, the amendment will often be recorded first in an MOU, which may also provide for the amendment to be put into effect ‘administratively’ pending confirmation.

Article 39 of the Vienna Convention on the Law of Treaties (General rule regarding the amendment of treaties) states,

‘A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such an agreement except in so far as the treaty may otherwise provide.’

This applies whether a treaty is bilateral or multilateral.

The use of the word ‘agreement’ recognises that a treaty can be amended by an agreement that is not a treaty, or possibly an oral agreement, the legal force of which is preserved by Article 3.

Article 31(3)(a) states, ‘There shall be taken into account, together with the context:

(a)     any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions’

Therefore a treaty can also be effectively amended by a subsequent agreement between the parties regarding the interpretation or application of the treaty.

Article 39 provides that the rules laid down in Part II (Conclusion and Entry into Force of Treaties) apply to an agreement to amend a treaty “except insofar as the treaty may otherwise provide.” This phrase recognises that many treaties, especially multilateral, now have built-in amendment mechanisms. It is wrong to think that the Vienna Convention is a rigid structure which places obstacles in the way of treaty modification; rather it allows states to include in treaties such amendment provisions (good or bad) as they wish or, indeed, nothing at all.

Sometimes the amendments are so numerous or extensive that it may be better to replace the whole of the original treaty with a new one. Alternatively, a consolidated text showing the treaty as amended should be agreed and produced for information. If the amendments have the effect of replacing the original treaty and any previous amendments to it, another way is to require any party to the amendment treaty to denounce all the previous treaties with effect from the date the new treaty enters into effect for that party. The replacement treaty may provide that its entry into force for a party shall be deemed to amount to denunciation of the original treaty.’

Modern Treaty Law and Practice by Anthony Aust (2013), pages 233 and 238.

In addition to the broadly framed general principle contained in Article 39, Articles 40 and 41 contain residual procedural rules intended to guide the amendment of multilateral treaties.

Article 40 (Amendment of multilateral treaties) states,

‘1.      Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed by the following paragraphs.

  1. Any proposal to amend a multilateral treaty as between all the parties must be notified to all the contracting States, each one of which shall have the right to take part in:

(a)     the decision as to the action to be taken in regard to such proposal;

(b)     the negotiation and conclusion of any agreement for the amendment of the treaty.

  1. Every State entitled to become a party to the treaty shall also be entitled to become a party to the treaty as amended.
  2. The amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement; article 30, paragraph 4(b), applies in relation to such State.
  3. Any State which becomes a party to the treaty after the entry into force of the amending agreement shall, failing an expression of a different intention by that State:

(a)     be considered as a party to the treaty as amended; and

(b)     be considered as a party to the unamended treaty in relation to any party to the treaty not bound by the amending agreement.’

Article 41 (Agreements to modify multilateral treaties between certain of the parties only) states,

‘1.      Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if:

(a)     the possibility of such a modification is provided for by the treaty; or

(b)     the modification in question is not prohibited by the treaty and:

(i)       does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations;

(ii)      does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole.

  1. Unless in a case falling under paragraph 1(a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of the modification to the treaty for which it provides.’

As these residual rules confirm, amendments require agreement between treaty parties, but not necessarily between all parties. For bilateral treaties, of course, the agreement of both parties is needed to effect any changes. The main question here concerns the form in which the parties’ agreement is to be expressed. Some bilateral treaties stipulate that written agreements, for example though exchange of notes, is required. It is worth noting that for plurilateral treaties too the unanimity rule continues to hold sway. For example, the North American Free Trade Agreement (NAFTA) between Canada, Mexico, and the United States stipulates that the “Parties may agree on any modification of or addition to” NAFTA.

For multilateral treaties, the default rule is that amendments must be proposed and adopted, and that individual parties then decide whether or not they wish to become a party to the amendment. However, parties are free to reach informal agreements on the amendment, and to decide on the details of the amendment process. This open-endedness of the residual rules reflects not only… variations in State practice, but also the fact that international law does not contain an acte contraire principle. In other words, there is no general legal requirement that changes to a treaty be made through the same process or by an act of the same legal nature as the original instrument. When a party joins a treaty for which an amendment is already in force, it will normally be bound by the amendment unless it indicates otherwise. If two or more parties wish to change a treaty between themselves – as opposed to between all parties – they can do so, subject to certain limitations, by way of a modification.’ The Oxford Guide to Treaties (2012) edited by Duncan B. Hollis.

Drafting and interpretation


Negotiation principles



Drafting and interpretation


Negotiation principles



Drafting and interpretation


Negotiation principles







The challenge in all economic diplomacy is to find an agreed position among the various ministries, branches of government and stakeholders/sector interests and still be able to negotiate at an international level. Finding a common position requires some aggression of preferences, for example, between protectionist and liberally minded sectors of the economy.

Negotiations in economic diplomacy are almost always mixed value-creation and value-claiming. Value creation is where negotiators seek compromises in order to reach an agreement with mutual gains. Value-claiming is where one party seeks only to get concessions or claim value from the other. Only in very rare cases do countries pursue value-claiming strategies. So negotiators are nearly always in the business of trading concessions.

‘The process of negotiation begins with the negotiators’ opening moves and strategies and ends with some outcome.

Three key building blocks are parties, issues, and objectives… Suppose every official trade or monetary negotiator will have three types of objectives:

  • economic – to realise commercial or financial gain for my country or avoid loss;
  • relational – to maintain or increase my country’s future influence with the other parties, and hence to avoid worsening their attitudes towards us if possible; and
  • domestic political – to mainatin or increase the popularity of our chief executive or ruling party with constituents.

These goals may not be fully consistent with one another. Furthermore the negotiator’s priorities may vary… The negotiating process itself may shift priorities.’ (Odell p.25).


Bilateral and Regional Trade Agreements: Commentary and Analysis, edited by Simon Lester, Bryan Mercurio & Lorand Bartels, Cambridge University Press (‘Lester, Mercurio & Bartels’).

Cases and Materials on International Law, by Martin Dixon, Robert McCorquodale, & Sarah Williams, Oxford University Press (‘Cases and Materials’).

Cases and Materials on International Law, by David Harris, Sweet & Maxwell (‘Harris’).

Decision at Midnight: Inside the Canada-US Free Trade Negotiations, by Michael Hart with Bill Dymond & Colin Robertson, UBC Press (‘Decision at Midnight’).

Dictionary Of International Trade, by Jerry M. Rosenberg, John Wiley & Sons, Inc (‘Rosenberg’).

Diplomatic and Judicial Means of Dispute Settlement, edited by Laurence Boisson de Chazournes, Marcelo G. Kohen, & Jorge E. Vinuales, Martinus Nijhoff Publishers (‘Diplomatic Settlement’).

Diplomatic Dispute Settlement: The Use of Inter-State Conciliation, by Sven M.G. Koopmans, T.M.C Asser Press (‘Koopmans’).

Essentials Of WTO Law, by Peter Van den Bossche and Denise Prevost, Cambridge University Press (‘Bossche & Prevost’).

Evidence, Proof, and Fact-Finding in WTO Dispute Settlement, by Michelle T. Grando, Oxford University Press (‘Grando’).

Handbook Of International Law, by Anthony Aust, Cambridge University Press (‘Handbook Of International Law’).

Modern Treaty Law and Practice by Anthony Aust, 3rd Edition, Cambridge University Press (‘Aust’).

Interpreting WTO Agreements: Problems and Perspectives, by Asif H. Qureshi, Cambridge University Press (‘Qureshi’).

International Law and Dispute Settlement: New Problems and Techniques, edited by Duncan French, Matthew Saul, & Nigel D White,Hart Publishing (‘International Dispute Settlement’).

Negotiating a Preferential Trading Agreement: Issues, Constraints and Practical Options, edited by Sisira Jayasuriya, Donald MacLaren & Gary Magee, Edward Elgar (‘Jayasuriya, MacLaren & Magee’).

Negotiating the World Economy, by John S. Odell, Cornell University Press (‘Odell’).

Preferential Trade Agreements: A Law and Economics Analysis, edited by Kyle W. Bagwell & Petros C. Mavroidis, Cambridge University Press (‘PTA’s’).

Principles Of International Economic Law, by Matthias Herdegen, Oxford University Press (‘Herdegen’).

Regional Trade Agreements and the Multilateral Trading System, edited by Rohini Acharya, Cambridge University Press (‘Acharya’).

Static and Evolutive Treaty Interpretation: A Functional Reconstruction, by Christian Djeffal, Cambridge University Press (‘Djeffal’).

The Expert Negotiator, by Raymond Saner, Martinus Nijhoff Publishers (‘Saner’).

The Law Of Treaties: An Introduction, by Robert Kolb, Edward Elgar (‘Kolb’).

The New Economic Diplomacy: Decision-Making and Negotiation in International Economic Relations, edited by Nicholas Bayne & Stephen Woolcock, Ashgate (‘Bayne & Woolcock’).

The Law and Policy of the World Trade Organisation, by Peter Van den Bossche & Werner Zdouc, Cambridge University Press (‘Bossche & Zdouc’).

The Settlement Of International Disputes: Basic Documents, compiled by Christian J Tams and Antonios Tzanakopoulos, Hart Publishing (‘Settlement Documents’).

The World Trade Organization: Law, Practice, And Policy, by Mitsuo Matsushita, Thomas J. Schoenbaum, Petros C. Mavroidis, & Michael Hahn, Oxford University Press (‘WTO’).

The Oxford Guide to Treaties edited by Duncan B.Hollis, Oxford University Press (‘Hollis’).

The Regulation Of International Trade, by Michael Trebilcock, Robert Howse & Antonia Eliason, Routledge (‘International Trade’).

The WTO Dispute Settlement Procedures, WTO Secretariat, Cambridge University Press (‘WTO Dispute Settlement Procedures’).

Trade Cooperation: The Purpose, Design and Effects of Preferential Trade Agreements, edited by Andreas Dur & Manfred Elsig, Cambridge University Press (‘Dur & Elsig’).

Treaty Interpretation, by Richard Gardiner, Oxford University Press (‘Gardiner’).

European Union Economic Diplomacy: The Role of the EU in External Economic Relations, by Stephen Woolcock, Ashgate (‘EU Economic Diplomacy’).



A Post-Brexit Britain Would Double Down on Middle East Alliances – Jane Kinninmont (Chatham House):

After Brexit: Britain’s Future – Chatham House Briefing:

After Brexit: Charting a Course for the United Kingdom’s Trade Policy – Cato Institute:

America’s NAFTA nemesis: Canada, not Mexico:

ASEAN’s Preferential Trade Agreements (PTA) Strategy:

Australia wants free trade agreement with UK after Brexit:

Australia says there will not be a Brexit trade deal with UK for years:

Britain is completely unequipped to negotiate post-Brexit trade deals:

Britain lacks the skills to go solo on trade deals:

Canada to step up UK trade with new export hub after Brexit vote:

Canada – EU-Canada trade deal in crisis as Canadian minister walks out:

Canada – Ceta talks: Last-ditch bid to save EU-Canada trade deal:

Canada – ‘Ball in Europe’s court’ to rescue Ceta deal, says Canada trade minister:

Canada – EU sets Belgium Monday deadline to back Canada trade deal:

Canada – EU-Canada trade deal: Belgians break Ceta deadlock:

Canada – EU and Canada sign Ceta free trade deal:

China cautiously welcomes Trans-Pacific free trade deal:

China’s FTA Strategy:

David Davis: Trade deals. Tax cuts. And taking time before triggering Article 50. A Brexit economic strategy for Britain:

Department for International Trade – Fox declares trade ministry ‘open for business’:

Downing Street – PM meeting with Donald Tusk: 8 September 2016 (Press Release):

Elections and Divided Government As Constraints on Trade Liberalization:

European Commission Trade News home page:

EU Fails to Reach Agreement With Russia Over Europe-Ukraine FTA:

EU-Japan FTA: Why negotiations are far from over:

EU Member States Controlling the Commission through Negotiating Directives in FTA Negotiations: Unnecessary to Tie a Double Knot?:

Five models for post-Brexit UK trade:

Five key rules should guide our post-Brexit trade deals:

Free Trade Agreement Pros and Cons:

FTA’s – ‘The opportunities are ENORMOUS’ Fox tells UK to brace itself for exciting new trade deals:

FTA’s – Boost for Brexit as SIX MORE wealthy countries seek free trade deals with the UK:

FTA’s – Theresa May: UK will lead world in free trade:

FTA’s – Establishment of Australia-UK trade working group (Joint statement by Rt Hon Liam Fox MP, Secretary of State for International Trade of the UK, and the Hon Steven Ciobo MP, Minister for Trade, Tourism and Investment of Australia  06.09.2016):

FTA’s – Australia-UK potential free trade agreement hailed as success but not everyone is convinced:

FTA’s – Britain faces long road to post-Brexit trade deals:

FTA’s – With Brexit in mind, just how long do trade deals take to agree?:

Global Trade After the Failure of the Doha Round:

How David Davis promised the earth (and more) from post-Brexit trade:

If this is the end of globalisation, what hope for UK trade post Brexit?:

Japan’s Free Trade Agreement Strategy:

Lawyers and trade negotiator experts predict long negotiations over Brexit:

Leaving the EU would mean renegotiating more than 100 trade agreements:

Life after BREXIT: What are the UK’s options outside the European Union?:

Minister for Brexit David Davis appeared unaware of how EU trade deals actually work:

Negotiating the Korea – United States Free Trade Agreement:

Norway may block UK return to European Free Trade Association:

Post Brexit: The UK’s trade deal challenges:

Prospects improve for UK-GCC free trade ties:

Starting Over on Tariffs: Post-Brexit Trade Agreement Partners for the United Kingdom:

The EEA: A Safe Harbour in the Brexit Storm – Professor Richard G. Whitman (Chatham House):

The FTA – A strategic call for the EU and India:

The UK’s potential new trade agreements:

Theresa May and her six-pack of difficult deals:

TTIP – EU’s TTIP trade deal with the US has collapsed, says Germany:

TTIP – Free trade talks between Europe, US hit a dead end in Berlin:

TTIP – TTIP has failed – but no one is admitting it, says German Vice-Chancellor:

TTIP – TTIP’s ‘failure’ gives us a clue about Britain’s post-Brexit trading future:

TPP: What is it and why does it matter?:

Trade negotiators need to sign beneficial FTA’s (Pakistan):

Trade talks lead to ‘death of Doha and birth of new WTO’:

Trans-Pacific Partnership: vast trade deal made public:

Trans-Pacific Partnership (Text):

Trans-Pacific Partnership (DFAT – Text and associated documents):

Trans-Pacific Partnership Wikipedia page:

UK after Brexit: options for trade deals if voters elect to leave:

Unfavourable trade winds:

UK turns to Canada for advice on striking post-Brexit trade deals with EU:

UK Lacks Negotiators For Brexit, Says Letwin:

UK will build trading zone TEN times bigger than EU with mega-deals with 12 major nations:

UK opens trade talks for Brexit in January 2019:

UK To Set Out Free Trade Ambitions:

UK-EU FTA – Ministers fear UK-EU trade deal could take decade as Walloons torpedo Canada agreement:

What could the EU-Canada free trade deal tell us about Brexit?:

What would Brexit mean for UK trade deals?:

World TradeLaw.Net (Trade News page):

FTA Research Resources

A Handbook on Negotiating Preferential Trade Agreements: Services Liberalization (ESCAP):

A New Trade Strategy: The Case for Bilateral Agreements:

A Political-Economy Theory of Trade Agreements:

Agreement on Trade-Related Aspects of Intellectual Property Rights:

Are the Contents of International Treaties Copied-and-Pasted? – Unique Evidence from Preferential Trade Agreements:

Assessing regional trade agreements with developing countries:

Assessing the impact of Brexit on the regulatory regime for trading:

Asia-Pacific Economic Cooperation (‘APEC’):

Australian Government guide to negotiating free trade agreements:

Bilateral and Regional Trade Agreements by Liz Brownsell (Allen & Overy):

Bilateral and Regional Trade Agreements and Technical Barriers to Trade: An African Perspective:

Bilateral trade and investment negotiations underway outside the WTO circuit:


Canada-India Free Trade Agreement Negotiations:

CBI – 10 facts about EU trade deals:

CETA: the EU-Canada free trade agreement:

Centre for Applied Studies in International Negotiations:

Centre for Economic Performance (LSE):

Centre for European Reform:

China FTA Network:

Creating Country Trade Negotiating Strategies: A Handbook:

Diplomacy Dialogue:

Diplomatic Studies Network:

Economic Negotiation Network:

Essential Elements Clauses In EU Trade Agreements MAKING Trade Work In A Way That Helps Human Rights by Nicolas Hachez:

Exploring the Links between Bilateral and Regional Trade Agreements and Merchandise Trade:

EU debate: what do Switzerland and Norway tell us about life outside the EU?:

EU referendum: impact of an EU exit in key UK policy areas:

EU trade insights:

EU trade relations with Russia:

EU – Trade for All – New EU Trade and Investment Strategy:

European Commission Overview of FTA and Other Trade Negotiations:

European Commission – Trade (Home page):

European Commission – Trade negotiations step by step:

EU Chief Negotiators:

European Economic Area (Wikipedia):

European Economic Area Agreement:

European Free Trade Association (‘EFTA’):

EFTA Free Trade Agreements:

Global Issues – Some regional free trade agreements:

Global Policy Forum – International Trade Agreements:

Global Trade Negotiations home page, Center for International Development, Harvard University:

How to Design, Negotiate, and Implement a Free Trade Agreement in Asia – Asian Development Bank:

How many free trade deals has the EU done?:

Importers, Exporters and the Division of the Gains from Trade (by Andrew B.Bernard and Swati Dhingra):

Indian Trade Portal – FTA’s:,55,288

Institutions and Bodies of the European Union:

Institute for Trade and Commercial Diplomacy:

Institute for Government Think Tank:

International Law Association (‘ILA’) – Preferential Trade Agreements Committee documents:

International Trade Agreements:

International Trade Centre (Country Reports):

International Trade Law (Berkley Law Library):

International Trade Law Guide:

International Trade Law Research Guide (Georgetown Law Library):

International Trade Negotiations – Training Manual:

Institute of European and International Economic Law:

Latin American Trade Network:

Legal Impediments To A Free Trade Agreement – An Australian Lawyer’s Perspective – by Robert Winter:

Matrix Chambers Brexit Hub:


Mercosur Economic Research Network:

Legatum Institute:


Negotiating Free Trade:

Negotiating free trade (Journal of International Economics):


Organization of American States – Foreign Trade Information System (Countries page):

Policy Making – EU Commission:

Preferential Trade Agreements — Their Evolution and Limitations:

Preferential Trading Area:

Preferential Trade Agreements With Special Reference To Asia:

Preferential Trade Agreements and the WTO:

Program on Negotiation at Harvard Law School:

Regional Trade Agreements and the WTO:

Regional Trade Agreements:

Review of bilateral and regional trade agreements (Law Council of Australia):

Rules Of Origin And The European Union’s Preferential Trade Agreements With Special Reference  To The EU-ACP Economic Partnership Agreements:

Swati Dhingra’s website:

Swimming upstream: input-output linkages and the direction of product adoption (by Boehm, Johannes, Dhingra, Swati and Morrow, John):

Switzerland and the EU: The Heavy Cost of Isolation:

The Design of Preferential Trade Agreements: A New Dataset in the Making:

The Future of “WTO-Plus” Provisions in Preferential Trade Agreements:

The Library of Economics and Liberty:

The Multilateral Trading System and Preferential Trade Agreements: Can their Negative Effects be Minimised? – Heribert Dieter, German Institute for International and Security Affairs, Berlin:

The Politics of Free Trade Agreements:

Trade Agreements and Bilateral Trade in Sub-Saharan Africa: Estimating the Trade Effects of the EU – ACP PTA and RTAs:

Trade for All – New EU Trade and Investment Strategy:

Trade negotiations for a Free Trade Agreement: a guide to general principles and requirements:

Trade negotiations step by step (European Comission):

Theresa May told trade deals with rest of world MORE important than Brexit deal with EU:

UNCITRAL (United Nations Commission on International Trade Law):

UK Government Policy on Free Trade 2010-2015:

UK Government Trade and Investment Policy website page:

When Can the UK Negotiate Its Own Trade Agreements? (International Economic Law and Policy Blog):

Why Do Countries Seek Regional Trade Agreements?:

World Trade Institute:

World Trade Report 2011:

World Trade Report 2012:

World Trade Report 2013:

World Trade Report 2014:

World Trade Report 2015:

Trade Agreements

ASEAN – Australia – New Zealand FTA – Facts and Figures:

Australia – Free Trade Agreements:

Australia – DFAT Free Trade Agreements Portal:

Australia-US Free Trade Agreement (Text):

Australia-India Comprehensive Economic Cooperation Agreement:

Canada’s Free Trade Agreements – Government of Canada:

CETA (European Commission Trade page):

CETA (July 2016 Text – Government of Canada website ):

China-India Regional Trade Arrangement Joint Feasibility Study & news:

China-New Zealand Free Trade Agreement:

China – Taiwan Economic Co-operation Framework Agreement – Background:

China –Taiwan Economic Co-operation Framework Agreement (ECFA):

What it Currently is, and What it Could Potentially Become:

European Commission – Trade Agreements:

EU – How many free trade deals has the EU done?:

EU relations with Switzerland:

EU-Korea Free Trade Agreement:

Framework Agreement between the EU and Korea:

Free Trade Agreements – Australian Government Department of Foreign Affairs and Trade:

Free Trade Agreements – EFTA:

Free Trade Agreements – United States Department of Commerce:

India: Bilateral and Regional Trade Agreements: An update:

India-Customs Union of Russia, Belarus, and Kazakhstan FTA:

Indian Government Department of Commerce – Trade Agreements:

List of multilateral free trade agreements:

List of bilateral free trade agreements:

Mexico’s Free Trade Agreements:

Mexico – Free Trade Agreement between Mexico and the European Union (Process & Documents):

Mexico – Free Trade Agreement between Mexico and the European Union (Wikipedia):

Norway’s economic and trade relations with the EU:

Norway’s free trade agreements:—innsiktsartikler/frihandelsavtaler/norways-free-trade-agreements/id457017/

New Zealand – China FTA:

NZ – China Free Trade Agreement – Facts and Figures:

Regional Trade Agreements (part 1):

Regional Trade Agreements (part 2):

Regional trade agreements (WTO Gateway):

Switzerland’s economic and trade relations with the EU:

Switzerland – Free Trade Agreements (SECO website):

Switzerland – Free trade agreement Switzerland/EU and EFTA agreements:

The ASEAN – Australia – New Zealand FTA (aanzfta):

The CARIFORM – EU Economic Partnership Agreement:

The Comprehensive Economic And Trade Agreement ( CETA) between Canada and the EU:

The Doha Round:

Trade preference agreements: import and export:

Ukraine FTA’s (Ministry of Foreign Affairs of Ukraine):

United States-Colombia Trade Promotion Agreement:

United States of America (Office of the United States Trade Representative) – Free Trade Agreements:

U.S. Department of State – Free Trade Agreements:

United Stets-Korea Free Trade Agreement:

World Bank – Global Preferential Trade Agreements Data Base: