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Across Borders takes a close look at world trade and customs issues. Articles are written by Atty. Agaton Teodoro O. Uvero, an international trade, indirect tax and customs consultant, and a licensed customs broker. He has an Advance Certificate in Purchasing and Supply Management from International Trade Centre (UNCTAD/World Trade Organization) and is an accredited trainer of Ateneo Graduate School of Business-Center for Continuing Education.


 

You are now viewing: Across Borders Archives : 2006 Q2

*Integrated Logistics Under RA 9280 (May 8, 2006)

*Duties on Air Freight Charges (May 22, 2006)

*CVCRRC – Valuation and Classification Disputes (June 5, 2006)

*CMO 20-2006: Rules for Alcohol and Tobacco products (June 21, 2006)

*RP to Adopt the Revised Kyoto Convention (July 3, 2006)

*WTO Review of Free Trade Agreements (July 17, 2006)

 

Integrated Logistics Under RA 9280

CASE STUDY 1. A local manufacturer, Santa Barbara Company (SBC), imports various articles on a Delivered Duty Paid (DDU) terms of trade. The foreign supplier hires a logistics company, ABC Express, to ship the goods to the Port of Manila. ABC Express has a local subsidiary - ABC Express Philippines. ABC Express Philippines hired licensed customs brokers as full-time employees to "prepare, sign, file and process" import declarations with customs. ABC likewise paid for the duties and taxes, arrastre, wharfage and other port charges. Can ABC Express hire licensed customs brokers as full-time and regular employees to "prepare, sign, file and process" the import declarations? Can ABC Express advertise their customs broker services? Can the company's employees, who are not licensed customs brokers, assist the customs brokers in processing the import entries with customs? Can the logistics company pay the duties and taxes, arrastre, wharfage, and other port charges? Can SBC hire licensed customs brokers as its full-time employees to "prepare, sign, file and process" import declarations with customs? Is the importer required to deal directly with the customs broker? Can an importer authorize the logistics company to hire a customs broker to provide customs clearance services?

CASE STUDY 2. SBC likewise imports raw materials for its manufacturing facilities. The raw materials are imported from offshore suppliers mostly on CIF terms of trade. PanPacificGlobal (PPG), a multinational forwarder, is the accredited forwarder of SBC. PPG hires a licensed customs broker to "prepare, sign, file and process" import declarations with customs. Upon release from customs custody, the raw materials are delivered to SBC warehouse using PPG transport facilities. Can an integrated logistics provider hire an independent customs broker to "prepare, sign, file and process" import declarations with customs?

Discussion on the Case Studies. Can ABC Express hire licensed customs brokers as full time and regular employees to "prepare, sign, file and process" the import declarations? RA 9280 prohibits corporations from engaging in the customs brokerage business. While there is no express prohibition with regard to the hiring of full-time licensed customs brokers, the arrangement here raises issues on the independence and arms' length nature of the customs broker service provided and as such, there is a high risk that such arrangement may be considered as a dummy operation or may be found to violate the prohibition on corporate practice. Can SBC hire licensed customs broker as its full-time employees to "prepare, sign, file and process" import declarations with customs? The same argument here applies in regard to the independence and arms' length nature of the service provided. To manage the risk of non-compliance, SBC should instead hire the licensed customs brokers as independent contractors, not as full-time employees. Can ABC Express advertise their customs broker services? RA 9280 expressly prohibits entities or individuals who are not licensed customs brokers from advertising or offering themselves as customs brokers. As discussed above, the risk of non-compliance is high in case the company hires full-time licensed customs brokers. Advertising as a customs broker is clearly prohibited as far as ABC Express is concerned. To manage this concern, the company may provide that customs clearance services are done by professional customs brokers. Can the company's employees, who are not licensed customs brokers, assist the customs brokers in processing the import entries with customs? While this is not expressly prohibited under RA 9280, customs rules however provide that customs representatives must be full-time and regular employees of the individual customs broker duly accredited by the Bureau of Customs. Can the logistics company pay the duties and taxes, arrastre, wharfage, and other port charges? Yes, logistics companies can pay or advance the duties and taxes, arrastre, wharfage, and other port charges. More so in the case of DDP shipments where the importer has already paid in advance such costs to the supplier. What is expressly prohibited by law is for the customs brokers to pay or advance such costs. While companies can no longer engage in the customs broker service, they are not however prohibited from such financing activities. Is the importer required to deal directly with the customs broker? Can an importer authorize the logistics company to hire a customs broker to provide customs clearance services? There is nothing in the law or the implementing rules that require importers to deal only and directly with customs brokers. Importers may authorize their integrated logistics providers to hire a customs broker, who is an independent service provider, to provide customs clearance services. Can an integrated logistics provider hire an independent customs broker to "prepare, sign, file and process" import declarations with customs? So long as the independence and arms' length nature of the customs broker service is maintained, logistics companies may continue to manage its importer-clients and outsource customs clearance services to an independent service provider - an individual customs broker or a professional partnership.


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Duties on Air Freight Charges

IMPORTERS, customs brokers and forwarders normally encounter problems clearing air shipments with customs due to discrepancies in the computation of duties and taxes arising from variances in air freight charges provided in the House Air Way Bill (HAWB) issued by the freight forwarder/consolidator to the consignee/importer as against charges provided in the Master Air Way Bill (MAWB) issued by the air carrier to a consolidator or freight forwarder.

The MAWB normally indicates higher charges as against charges provided in the HAWB and in many instances, customs will compute the duties and taxes based on the air freight charges in the MAWB.

The question for many is which air freight charge is valid for purposes of computing the taxes and duties on the imported article? What are the relevant customs laws and rules on the subject matter?

Background - Customs Valuation. The basis for computing the taxes and duties is basically the CIF (Cost, Insurance and Freight) or CIP (Carriage and Insurance Paid ToÉ) invoice value of the imported article. The CIF or CIP terms of trade (INCOTERMS 2000) normally involve the cost of the goods plus freight and insurance charges. In other words, the dutiable value is the transaction value, plus the cost of insurance and freight, if not yet included in the price paid or payable.

Under Section 201 of the Tariff and Customs Code (TCCP), the dutiable value of an imported article is the "transaction value, which shall be the price actually paid or payable for the goods when sold for export to the Philippines". Stated otherwise, the primary basis for determining the customs value is the price paid or payable (Method 1 - Transaction Value).

RA 9135 and its implementing rules (CAO 5-2001 as amended by CAO 4-2004) provide that in determining the transaction value, certain adjustments may be made to the price actually paid or payable for the imported goods being valued. These adjustments are as follows: (a) commissions and brokerage fees (except buying commissions); (b) cost of containers; (c) cost of packing; (d) assists; (e) royalties and license fees; (f) subsequent proceeds that directly or indirectly accrue to the supplier; (g) cost of transport to the port of entry; (h) loading and handing charges to the port of entry; and (i) cost of insurance. Additions to the price paid or payable, however, must be actually incurred before they could be considered as part of the dutiable value.

Considering that among the additions mentioned above, it is typically the insurance and freight costs which are reflected in the invoice and as such, customs has in practice considered the CIF or CIP value as the basis for computing the taxes and duties.

Tax and Duty Computation Technique. The general formula for computing the taxes and duties on an imported article is provided below.

 

Dutiable Value (DV)
 
(CIF value plus other additions,
if applicable)
     
Plus:    
Customs Duties   DV x duty rate
Bank Charges   DV x .00125
Brokerage Fee   Per CAO 1-2001
Arrastre Charge   Per CMO 28-95
Wharfage Due   Per CMO 28-95
Documentary Stamps   Php265.00
Import Processing Fee   Per CAO 2-2001
Total   Landed Cost
VAT rate   12%
VAT Payable   LC x VAT rate


With the dutiable value generally based on the CIF or CIP invoice value, what then is the freight charge to be used in case there is a variance in the charges reflected in the MAWB and the HAWB?

Freight Charges as Actually Incurred. Under Section 201, TCCP, additions to the transaction value as incurred by the importer must be made only "on the basis of objective and quantifiable data". In principle therefore, the freight charge to be used for arriving at the dutiable value should be the actual charge paid by the importer, which is in practice reflected in HAWB and not in the MAWB.

To further clarify this issue, Customs Memorandum Order (CMO) No. 21-2003 (Supplemental Guidelines in the Determination of Air Freight Charges) provides the guidelines in the determination and application of air freight charges as a component of the dutiable value for customs purposes.

In particular and in case there is discrepancy in the freight charges provided in the MAWB and HAWB, CMO 21-2003 states that the air freight charges to be applied shall be based on the following:

a) The freight charges indicated in the Official Receipt issued by the air carrier;

b) The freight charges paid as certified by the carrier/consolidator on its stationery; and

c) The amount indicated in the consolidated manifest as freight charges, provided, however, that the individual freight charges are indicated in the different HAWBs.


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CVCRRC – Valuation and Classification Disputes

In a previous article (PortCalls, April 10, 2006), we wrote about CMO 7-2007 which provides for new rules governing assessment disputes (valuation and classification issues) brought before the Valuation and Classification Review Committee (VCRC). With the establishment of a review and ruling body known as Central Valuation and Classification Review and Ruling Committee (CVCRRC), what is now the impact of the new rules on the existing VRCR procedures?

Doubt as to Value or Classification. Under present customs rules and procedures, customs has the right to satisfy itself as to the truth or accuracy of any statement, document or declaration presented for customs valuation purposes. The documentary requirements to support the declarations to customs normally include the commercial invoice, packing list, bill of lading (or air way bill) and other transport documents. When there is an issue as to the value declared, additional submissions may be required to support the following position: (a) that there is a sale for export and (b) that the declared price is the price actually paid for the imported article covered by the sale.

To answer the question of whether there is a “sale for export”, the following basic questions must first be addressed: (a) who are the parties; (b) is there property involved; (b) is there a transfer of ownership involving a financial consideration; and (c) is there exportation from one country to another. As previously mentioned, a sale requires a “buyer” who agrees to obtain certain goods for a certain amount and a “seller” who agrees to transfer ownership of those goods for the said amount. And when parties agree, there is a sale.

From a commercial perspective, a sale should start with a tender offer or a purchase order, followed by a confirmation or contract of sale. The sale contract itself may contain the provisions for payment. Normally, international sale transactions are executed through banking institutions.

Sale for Export. Financial consideration in a “sale for export” usually refers to the payment. Payment may be made directly or indirectly, may be made to a third party if the supplier provides so, or may be made in cash or in kind. Commercial transactions usually involve the use of banking instruments such as letters of credit, cable transfers, negotiable instruments, etc. The submission of the documentary evidence of the “sale for export” and “price paid” should serve as one of the bases for the acceptability of the declared price to customs.

When customs rejects the declared price or classification of importers in the import entry, it is the burden of the importer to prove the acceptability of the declarations to customs. In such a case, the importer normally has two options: (a) pay under protest and (b) request for release under tentative liquidation.

Protest vs. Tentative Release. Customs rules provide that when there is a dispute as to the assessment of the collector of customs on the liability of the importer for taxes and duties payable on the imported goods, the importer may file a written protest within 15 days from payment of taxes and duties (Section 2308, TCCP). The protest is normally filed with the law division of the port concerned. In case of a favorable ruling, the same shall be automatically reviewed by the Commissioner of Customs and the Secretary of Finance. A final ruling favorable to the importer should result in the issuance of a Tax Credit Certificate.

In case customs rejects the value or classification declared for the imported article, another option for the importer is to raise the issue before the Valuation and Classification Review Committee (VCRC) of the port (collection district) concerned.

A payment under protest is a tedious process. In contrast and as provided in the old rules, the procedure in the VCRC is summary in nature, and in case of a favorable ruling, a tax refund may immediately be issued to the importer. With the issuance of CMO 7-2007, a decision favorable to the importer is now subject to automatic review of the CVRRC.

Review of VCRC Rulings. The general procedures at the VCRC of the various collection districts should still remain even with the issuance of the CMO 7-2007. With regard to the old procedure allowing the immediate issuance of the refund check upon a favorable VCRC ruling, the new rules will now require a ruling by the CVCRRC affirming the VCRC ruling to allow the issuance of the refund check.

As specifically provided in the new rules, CVCRRC, headed by the Commissioner, shall now automatically review or take cognizance of the following: (a) VCRC cases pending for three calendar months from filing; (b) VCRC rulings favorable to the importer or adverse to the government; (c) appeals from the VCRC rulings filed within 15 days; and (d) review of the Commissioner of Customs, motu propio or upon written request by any office or unit of the customs organization.

The new rules also empower the Office of the Commissioner to review any VCRC decision, with or without any appeal filed before the CVCRRC. With this issuance, the procedures for valuation and classification disputes under the VCRC system have now become similar to the “Payment under Protest” system. The major difference though is that a CVCRRC ruling favorable to the importer or adverse to the government is not subject to automatic review by the Secretary of Finance and a refund check, instead of a tax credit certificate, is issued in case of a favorable CVCRRC ruling to the importer.


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CMO 20-2006: Rules for Alcohol and Tobacco products

IN a previous column (January 30, 2006, Port-Calls), we wrote about the new law passed last year governing alcohol and to-bacco products. The Bureau of Customs (BoC) has recently issued its guidelines to implement RA 9334 and the implementing rules issued by the Bureau of Internal Revenue (BIR), specifically RR 3-2006 and RMC 26-2006.

CMO 20-2006 was also issued to address the specific implementation and operational issues regarding importation of alcohol and tobacco products especially those bound for duty-free zones and those imported by international air carriers and vessels.

RA 9334 and BIR RR-2006. Republic Act No. 9334, entitled "An Act increasing the specific tax rates imposed on alcohol and tobacco products amending for the purpose Sections 141, 142, 143, 144, and 145 of the National Internal Revenue Code of 1997, as amended", effectively amended the provisions of the National Internal Revenue Code (NIRC) pertaining to alcohol and tobacco products. To most people, RA 9334 was known for increasing the excise tax rates of alcohol and tobacco products. The increase in the excise tax rates resulted in higher retail prices for these products.

To clarify the provisions of RA 9334, the Bureau of Internal Revenue (BIR) recently issued Revenue Regulation No. 3-2006 "Prescribing the Implementing Guidelines on the Revised Tax Rates on Alcohol and Tobacco Products Pursuant to the Provisions of Republic Act No. 9334, and Clarifying Certain Provisions of Existing Revenue Regulations Relative Thereto". Other than the increase in excise tax rates, there are many other provisions in the new law which now impact on how companies trade in alcohol and tobacco products. RR 3-2006 and CMO 20-2006 have now highlighted many of these seemingly unimportant provisions.

Tax and Duty on All Products. Under the CMO, importation into the duly chartered economic and free port zones and duty free shops shall be governed by the customs order and any alcohol or tobacco products entering through a free port and special economic zone shall be deemed to have entered Philippine customs territory "upon unloading thereof from the carrying vessel".

Before the passage of RA 9334, imported tobacco or alcohol products bound for free trade or export processing zones were exempted from all kinds of duties and taxes. The new law and the CMO have now withdrawn such exemption. Specifically, Section 12 (Importation of an alcohol or tobacco product by Duty-Free Shops, or into Economic Zones and Freeport Zones) of RR 3-2006 expressly provide that importation of alcohol or tobacco products, even if destined for tax and duty-free shops or legislated free ports, shall be subject to all applicable taxes, duties, charges, including excise taxes thereon.

As provided in Section II.C of the CMO, importations of government-owned and operated duty-free shops, excise and value added taxes shall likewise be paid even if the exemption on customs duties remains.

Labels on Alcohol and Tobacco Products. Section II.C of the CMO expressly provides that appropriate phrases such as "For Domestic Sale Only", "For Export Only", "For Export to the Philippines: Tax and Duty Paid" and "Duty Free and Not for Resale" shall be prominently placed on the face of the label and all sides of secondary containers of the imported alcohol and tobacco products. Cigars and cigarettes, distilled spirits and wines and similar products sold in the domestic market or found within the premises of free trade zones or duty-free shops without the proper labels or markings shall be subject to seizure and forfeiture proceedings and the subsequent destruction of such imported articles.

Transshipment of Imported Products. In addition to the new rules governing importation of alcohol and tobacco products into export processing and free trade zones, RR 3-2006 and CMO 20-2006 likewise provide new procedures for transshipment of such goods. Under the CMO, alcohol or tobacco products intended for transshipment shall not be subject to the imposition and payment of duty, excise and value added taxes under the following conditions:

a) Foreign port of destination clearly indicated in cargo manifest;
b) Alcohol and tobacco shipment must remain at all times at port of arrival and must not be transferred/transported to any other port of entry;
c) The products must be transported abroad within 15 days;
d) If the products for transshipment are unloaded at the port of arrival prior to transport to the foreign port of destination, a guaranty (bond, letter of credit, bank guaranty or cash) must be posted in an amount equivalent to the duties and taxes otherwise due on the shipment; and
e) Submission within 6 months of any document showing that the products have been transshipped.

Penalties for Non-Liquidation of Guaranty. With regard to the requirements for the cancellation or release of the guaranty, the last paragraph of Section II.D of the CMO provides the bond shall be liquidated by submission of proof of actual shipment of the alcohol or tobacco products. Non liquidation of the bond within the effective life of the guaranty (e.g. bank guaranty, surety bonds) shall be subject to sanctions and penalties as provided under related customs rules and regulations.

 

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RP to Adopt the Revised Kyoto Convention

THERE are at present two proposed legislation pending in Congress which, if not studied fully, may impact nega-tively on how companies conduct their business across international borders. One is the anti-smuggling bill which accordingly will violate various Philippine commitments under the WTO, the Harmonized System and the AHTN protocol. In the guise of preventing smuggling in the country, the proposed bill has provisions that will not only cause delays in the movement of goods but will also create barriers to international trade.

Another pending legislation is the proposed fiscal reforms bill which intends to reduce certain incentives provided to the exporting community.

Amidst the growing opposition to these proposed legislation, the Philippine government recently announced its plan to accede to the Revised Kyoto Convention (RKC) by 2007 and adopt the international best practices on customs procedures. This announcement is very significant because many provisions of the proposed anti-smuggling bill are likewise contrary to the principles of the RKC. In addition, many of the best practices proposed in the RKC have yet to be adopted by the Philippines. Thus, accession to RKC will require a major overhaul of the present tariff and customs code as well as existing customs procedures and operating systems.

Revised Kyoto Convention. The Revised Kyoto Convention is more formally known as the "International Convention on the Simplification and Harmonization of Customs procedures (Kyoto Convention)" which entered into force in 1974. In order to meet the demands of governments and international trade, the original convention was revised and updated. The WCO Council adopted the Revised Kyoto Convention in June 1999 as the model for efficient and modern customs procedures in the 21st century. To date, there are 46 countries signatory to the convention.

Designed to standardize and harmonize customs policies and procedures worldwide, the RKC also serves to implement customs-related principles developed by the WTO, such as the agreements contained in Article V (Freedom of Transit), Article VIII (Fees & Formalities Connected with Importation and Exportation) and Article X (Publication & Administration of Trade Regulations) of the GATT 1994.

The RKC consists of the Body of the Convention, the General Annex, and the Specific Annexes. The Convention and the General Annex are obligatory to all signatories while the Specific Annex, which contains standards and recommended practices, is not. Accession to the Specific Annex is therefore optional.

The General Annex contains the core principles of the RKC and provides standards and transitional standards, all of which are mandatory to the signatory country. As a whole, the convention provides a comprehensive set of over 600 legal and technical provisions outlining the basic principles of modern customs procedures and practices.

Principles of the RKC. Foremost among the governing principles of the RKC is the commitment by customs administrations to provide transparency and predictability for those in the gateway community, particularly the importing, exporting, logistics, transport and forwarding industries. The convention promotes trade facilitation and effective controls through its legal provisions that detail the application of simple yet efficient procedures. The convention also contains new and obligatory rules for its application which all contracting parties must accept without reservation.

Specifically, the RKC provides core principles for the following:

a) Predictability (standard principles for customs processing of goods, conveyances and persons moving across borders - clearance procedures)
b) Transparency (provides all information relating to customs)
c) Legal (prevents arbitrary or unfair actions by customs)
d) Use of Information Technology

Benefits to Stakeholders. While it may be quite a while for the Philippines to accede to the RKC and comply with its principles and standards, many in the international trading community are already anticipating the benefits that will result from compliance and implementation of the convention.

For those engaged in international trade, compliance with the convention will result in the implementation of new rules that will effectively reduce transaction costs, avoid delays in the release and clearance process, and simplify procedures for traders with a good compliance record. For a government with very limited resources and dealing with an ever growing volume of trade transactions, it will enhance revenue collection, increase economic efficiency and, provide better security and protection. Customs authorities will also have a more effective and efficient deployment of its scarce resources.

In summary, traders will benefit from improved facilitation and reduced costs while shippers and transport providers will benefit from uniform customs controls and faster movement of people and goods. Customs will also benefit from modern controls that will plug revenue leakage and enhance border security.

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WTO Review of Free Trade Agreements

The continuing failure of WTO members to enter into major agreements starting three years ago has made many countries participate in numerous regional and bilateral trade agreements. Regional Trade Agreements (RTAs), which include bilateral free trade agreements between countries that are not in the same region, have become so widespread that only one WTO member is not party to any RTA, with the vast majority of WTO members party to one or more RTAs.

In the Asia-Pacific region, many of the trade negotiations involve the ASEAN member countries and the major trading countries of Asia. Specifically, the regional agreements between ASEAN and the big three Asian countries (China, Japan and Korea) are in various stages of negotiations or implementation. Last January 12, 2006, the Philippine government issued EO No. 487, which effectively reduced the tariff rates of certain imported articles from China and other ASEAN countries as part of the normal track agreement under the ASEAN-China Free Trade Area (ACFTA) framework.

While RTAs are being negotiated by ASEAN with its neighboring countries, the Philippines has likewise entered into its own bilateral trade agreement with China and this is now being implemented. The RP-Japan agreement is still being negotiated.

WTO Review of RTAs. Last July 1, 2006, the WTO Director-General officially announced the formal approval of the new WTO Transparency Agreement governing these RTAs. Accordingly, the WTO Negotiating Group on Rules has forwarded the decision to the Trade Negotiations Committee. Current estimate is that more than half of world trade is now conducted under RTAs.

Officially, 197 RTAs have been notified to the WTO, with an additional 70 estimated to be operational although not yet notified. By 2006, if RTAs reportedly planned or already under negotiation are concluded, the total number of RTAs in force will be approaching300.

Committee on RTAs. As a background, a Committee on RTAs was created in 1996 to replace separate working parties that have examined these agreements since the establishment of the WTO. However, differences among member countries on the interpretation of the criteria for assessing the consistency of RTAs with WTO rules have resulted in a huge backlog of uncompleted reports in said committee. In fact, only one case to date has reached consensus on WTO consistency – the customs union between the Czech Republic and the Slovak Republic after the break up of Czechoslovakia.

Transparency Mechanism. Among the major provisions of the new transparency mechanism are as follows:

a) Early announcement of any RTA and notification to the WTO;

b) WTO members will consider the notified RTAs on the basis of a factual presentation by the WTO Secretariat;

c) The Committee on Regional Trade Agreements will conduct the review of RTAs falling under Article XXIV of General Agreement on Tariffs and Trade (GATT) and Article V of the General Agreement on Trade in Services (GATS);

d) The Committee on Trade and Development will conduct the review of RTAs falling under the Enabling Clause (trade arrangements between developing countries);

e) The transparency mechanism is to be implemented on a provisional basis (Members are to review and, if necessary, modify the decision, and replace it with a permanent mechanism adopted as part of the overall results of the Doha Round);

Purpose of the Mechanism. Under the agreement, WTO member countries like the Philippines have the following specific obligations:

a) Members participating in new negotiations aimed at the conclusion of an RTA shall endeavor to inform the WTO; and

b) Member parties to a newly signed RTA shall convey to the WTO, in so far as and when it is publicly available, information on the RTA, including its official name, scope and date of signature, any foreseen timetable for its entry into force or provisional application, relevant contact points and/or website addresses, and any other relevant unrestricted information.

The formal approval of the new transparency mechanism on RTAs (which include the ASEAN agreements and the Philippines’ own bilateral agreements), will help prevent the continuing logjam in the WTO on RTAs. The mechanism will also ensure that RTAs promote international trade and not become stumbling blocks to world trade.

For the Philippines, existing agreements with other countries, including the ASEAN framework, will have to be reviewed for consistency with the trade rules under the WTO.


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A licensed customs broker, the writer is an international trade, indirect tax and customs consultant. He has a Certificate in Purchasing and Supply Management from International Trade Centre (UNCTAD/WTO) and is an accredited trainer of Ateneo Graduate School of Business.
Please contact aouvero@customsadvocates.com or (632) 4050021 / 29 for your comments or questions..


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