Overview
2022 has been an interesting year as the world emerged from the pandemic. Hard core restrictions from the pandemic are all but gone and face-to-face meetings are starting to become the norm again. We are not quite at the fervour that we were at pre-pandemic, although the chorus would agree that 2021 remains an exceptional year.
Going into 2023, the prognosis is that it is going to be a challenging year with headwinds. Yet, this may not be the case for trade law related matters, where there have been interesting developments in 2022, and continued supply chain disruptions which are seeing a changing global trade play.
We provide key highlights of developments across Southeast Asia, such as regulatory activity relating to anti-dumping and safeguard measures, developments relating to export/import, free trade agreements, as well as sanctions. Briefly on trade remedies, there are developments in anti-dumping and safeguard duties under Indonesia, Philippines, Thailand, and Vietnam. On trade protectionism which has been creeping into various countries, we highlight Myanmar’s rules to curb the outflow of foreign currency, rules on border trade with Thailand and Philippines’ introduction of the “Admission Temporaire/Temporary Admission” Carnet System and its imposition of tariffs on certain electric vehicles and parts. On the flip side, to increase trade, we have the World Trade Organization (“WTO”) ruling against Indonesia’s nickel export ban and updates on the progress of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership. Finally, a major play has been around sanctions, with Singapore introducing sanctions for the first time independent of the United Nations and the addition of Myanmar to the Financial Action Task Force’s blacklist of high-risk jurisdictions. Trade has never been more exciting.
The RTA Competition & Antitrust Team continues to be at the forefront of trade issues across Southeast Asia, being the only dedicated practice of its kind entirely based in this region. The Team has done very well in its ranking, maintaining a Tier 1 Ranking in Chambers AsiaPacific as well as ranked in Chambers Global. Our Team members are highly ranked with Melisa Uremovic and Kala Anandarajah cited as leading lawyers. We have also seen several new hires as well as returnees across the different offices. We are especially pleased to have Joshua Seet re-join us and now a partner in the team (bringing the total number of partners to 4 in Competition & Antitrust) in Singapore and over 10 across the region.
Part 3 of our Regional Trade Report 2022 provides a summary of the Regional Comprehensive Economic Partnership Agreement and highlights the significant free trade agreements concluded by Malaysia, Philippines, Singapore, Vietnam, Indonesia and Thailand. We also provide an overview of the trade sanctions that were introduced by and against some Southeast Asian countries in 2022.
Free Trade Agreements
In 2022, there were numerous developments in the negotiation and conclusion of various free trade agreements (“FTA”). FTAs promote increased trade and investment flows and are key to business growth. Increasingly, there has also been an emphasis on digital trade and e-commerce in newer FTAs and agreements. These are growth areas and businesses can take advantage of them.
On 1 January 2022, the Regional Comprehensive Economic Partnership Agreement (“RCEP“) entered into force with 10 Parties (Brunei, Cambodia, Lao PDR, Singapore, Thailand, Viet Nam, Australia, China, Japan, and New Zealand) immediately ratifying the RCEP. By March 2022, Korea, Myanmar and Malaysia had ratified the RCEP as well. The RCEP remains the world’s largest FTA to date, covering around 30% of the global GDP (US $26 trillion) and nearly a third of the world population. The RCEP offers about 92% tariff elimination for goods traded amongst the signatories and allows businesses to benefit from additional preferential market access for products, including mineral fuels, plastics, chemical products, miscellaneous food preparation and beverages. The RCEP also streamlines the rules of origin and regional cumulation provisions, allowing businesses to tap on regional supply chains more easily. The RCEP includes new areas such as Intellectual Property, Competition Policy, e-Commerce, Government Procurement and Small and Medium Enterprises (“SMEs“). Please refer to our earlier regional Client Update on the signing of the RCEP here.
In addition to the RCEP, there were also further developments in relation to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”), which is a multilateral FTA involving various Southeast Asian countries such as Brunei, Malaysia, Singapore and Vietnam. On 18 February 2022, UK commenced the final market access stage of its accession under the CPTPP. It is anticipated that UK’s accession of the CPTPP will increase exports from UK to other CPTPP countries. On 30 September 2022, Malaysia announced its completion of all legal procedures to ratify the CPTPP, with the CPTPP coming into force on 29 November 2022. Various CPTPP committees had also met in 2022, including a first meeting of the E-Commerce Committee to commission a study on domestic laws in the CPTPP countries and the implementation of the CPTPP E-Commerce Chapter to facilitate digital trade between them.
In addition to the CPTPP, ASEAN, Australia and New Zealand substantially concluded negotiations to upgrade the ASEAN-Australia-New Zealand Free Trade Area (“AANZFTA”) on 13 November 2022. This is the first upgrade of its kind agreed by ASEAN and builds upon the relationships between the nations under the RCEP. The upgrades introduce commitments towards continued flow of essential goods during any global crisis, increased support for bulk breaking operations, education service cooperation and greater synergy between trade and sustainability goals.
In addition to the above regional developments, there have also been developments in individual countries’ advancement of FTAs. We highlight some of these below.
In Malaysia, the existing Malaysia-Turkey Free Trade Agreement (“MTFTA“) is set to be expanded. The MTFTA has been in force since 1 August 2015 and sets out a shared commitment to progressively reduce or eliminate tariffs on a substantial number of products between Turkey (now known as Turkiye) and Malaysia and for both countries to develop opportunities including providing technical assistance, capacity building and the facilitation of market access for products of interest. On 29 September 2022, it was decided during an inaugural joint economic and trade council meeting that 99% of Turkish exports to Malaysia shall enjoy duty-free treatment, while 86% of Malaysia’s exports to Turkiye shall enjoy a similar advantage under the MTFTA effective 1 January 2023. The expansion is expected to enhance cross-flows of investments and foster greater consumer confidence in online transactions through the harmonisation of rules and adoption of facilitation mechanisms to benefit micro, small and medium enterprises in terms of their participation in international trade.
In Philippines, the signing of the Philippines-Korea Free Trade Agreement (“PH-KR FTA“), which was aimed to be signed on February 2022, has been moved to the first quarter of 2023. It is expected that there will be improved market access for agricultural products such as bananas and other tropical fruits, as well as industrial products and other services. According to the Department of Trade and Industry, Philippines was able to secure tariff elimination for bananas and improved tariff treatment for processed pineapples. Tariffs on some imports of South Korean automotive parts will also be eliminated in five years. The PH-KR FTA, which will complement the ASEAN-Korea FTA (“AKFTA”) and RCEP, is also expected to improve the balance of trade between the Philippines and Korea more generally through enhanced trade flows, facilitating the movement of natural persons, generating more investment and, consequently, increased job generation opportunities.
In Singapore, there have been developments in various types of trade agreements, including FTAs, digital trade agreements and information sharing agreements, amongst others. We outline some of these below. Singapore signed the Pacific Alliance-Singapore Free Trade Agreement (“PASFTA”) on 27 January 2022. The PASFTA is intended to exponentially increase business opportunities for Singapore and the Pacific Alliance countries. Singaporean companies can now access the eighth-largest combined economy in the world, with Chile, Colombia, Mexico and Peru having a combined GDP of over US$2 trillion in 2021. In this regard, Pacific Alliance companies now also have greater access to Singapore and can use it as a base to access the marketplaces of various ASEAN nations. Additionally, Singapore is also in the process of negotiating the MERCOSUR-Singapore FTA (“MSFTA”) and the Eurasian Economic Union – Singapore FTA (“EAEUSFTA”). Singapore has substantively concluded negotiations on the MSFTA on 21 July 2022, while negotiations on the EAEUSFTA have likely been put on hold due to the Russia-Ukraine war.
Singapore also made significant strides in signing digital trade agreements. These agreements improve cross-border data flow and allow digital collaboration between signatories, introducing digital trade rules that result in a more secure digital environment for businesses and consumers. Some highlights are:
- On 25 February 2022, Singapore and UK signed the UK-Singapore Digital Economy Agreement (“UKSDEA”), which came into force on 14 June 2022. The UKSDEA includes binding disciplines on key areas of the digital economy, such as data, as well as cooperative elements in a wide range of emerging and innovative areas such as Artificial Intelligence, fintech and regtech, digital identities and legal technology. SGTech and techUK (foremost tech industry associations in Singapore and UK) have also signed an MOU on 25 February 2022 to formalise the obligations under the UKSDEA.
- On 21 November 2022, Singapore signed the Korea-Singapore Digital Partnership Agreement, which is the first digital trade agreement between Singapore and another Asian country. The agreement aims to deepen bilateral cooperation in new emerging areas such as Personal Data Protection, E-payments, Artificial Intelligence and Source Code protection.
- On 13 June 2022, Singapore and China signed an MOU to enhance digital economy cooperation. On 25 November 2022, Singapore and China signed another MOU regarding the recognition of electronic Bills of Lading as Singapore and China move further towards paperless cross-border trade and financing. A new project titled “Cross-Border eCommerce Cooperation” was also launched, which aims to increase collaboration between the ecommerce infrastructures of Singapore and China.
Separately, Singapore initiated various information sharing agreements to further facilitate the growth of ecommerce. On 1 June 2022, Singapore’s IMDA and Canada’s International Centre of Expertise of Montreal for the Advancement of Artificial Intelligence signed a MOU on Privacy Enhancing Technology aimed at combating cross-border scams and spam, making this one of the world’s first cross-border collaborations. A similar MOU was signed between the IMDA and the Australian Communications and Media Authority on 18 July 2022 and between the Personal Data Protection Commission of Singapore and the National Privacy Commission of the Philippines on 7 September 2022.
Last, in October 2022, Singapore and Thailand signed a Memorandum of Cooperation on matters relating to Intellectual Property and MOUs on matters relating to Meat trade, electric vehicles, and tourism, amongst others. On 1 November 2022, Singapore hosted Vice Premier Han of China for several bilateral meetings, signing a total of 19 MOUs between Singapore and China covering trade and digital commerce among other things.
In Vietnam, the EU-Vietnam Free Trade Agreement has been in effect since 2020. Yet, the related EU-Vietnam Investment Protection Agreement (“EVIPA”) is still in the process of gaining approvals from the EU Member States following its signing in 2019 and ratification in 2020. In this regard, Vietnam has been actively discussing with and requesting the approvals required from EU Member States such as Germany, Italy, etc. The EVIPA will replace 21 existing bilateral investment agreements between Vietnam and 21 EU Member States, and will ensure that European investors will receive the best available treatment, without infringing on Vietnam’s right to legislate in its own best interests on issues such as health and safety or the environment. Besides this, Vietnam is in the process of negotiating several other FTAs, including the Vietnam-Israel FTA (officially launched from 2 December 2015) and the Vietnam-EFTA FTA with EFTA States (i.e., Norway, Switzerland, Iceland, and Liechtenstein) (officially launched from May 2012).
In Indonesia, two FTAs are under discussion, namely the Indonesia-Iran Preferential Trade Agreement (“II-PTA”), and the Indonesia-Canada Comprehensive Economic Partnership Agreement (“ICA-CEPA”). The II-PTA builds on Indonesia and Iran’s longstanding relationship as successful trading partners, where, in 2021, Indonesia recorded a trade surplus of USD165.5 million with Iran. Indonesia’s main exports to Iran consist of commodities such as peanuts, palm oil, motorcycles, wood fibre, and industrial monocarboxylic fatty acids, while Indonesia’s main imports from Iran consist of turbo jets and other gas turbines, dates, iron or steel rods, instruments, apparatus and models designed for demonstration purposes, and alkaloids. The ICA-CEPA seeks to optimise Indonesia’s and Canada’s potential as trading partners and open up more opportunities for economic cooperation in the future between them, given increasing trade activity between them in the last three years. In 2021, Indonesia’s main exports to Canada consisted of natural rubber, men’s apparel, motor vehicle accessories, tires and textile footwear, while Indonesia’s main imports from Canada consisted of wheat, fertilizer, wood pulp, soybeans, and iron ore products. Businesses dealing in these commodities may benefit from the FTAs.
In Thailand, although no new FTAs were concluded in 2022, discussions on an FTA between Thailand and the European Free Trade Association (“EFTA”) were revived after a 16-year hiatus, with parties aiming to conclude negotiations within a 2-year period. The EFTA currently has 4 member countries, including Iceland, Liechtenstein, Norway and Switzerland. In addition, FTA negotiations with Pakistan, Turkey, and Sri Lanka are ongoing, and frameworks for the Thailand-European Union FTA negotiations are in development.
Commentary
Even as we see increased protectionism, free trade agreements of varying forms remain a stalwart in pushing for greater trade flows across the world. The numerous developments in this space in 2022 is reflective of this. The hope is, even in the current difficult times, for increased trade and investment flows. FTAs have immense promise but will require businesses’ attention to properly to exploit the benefits. Do consider the FTAs applicable to your trade and how to optimise them. These can also affect how your global production and supply chains are structured. Planning ahead is hence critical.
Trade Sanctions
Various trade sanctions were introduced by and against Southeast Asian countries in 2022. We discuss these below, and highlight that businesses operating in this part of the world must also be alert to trade sanctions that operate across the world, which are not discussed below.
In Singapore, trade sanctions are imposed on imports and exports via various legislation and regulation, including the Regulation of Import and Export Regulations (“RIER”). With effect from 16 March 2022, Singapore updated the RIER to ban exportation from, transhipment in, or transit through, Singapore of specified goods which destination is or is intended to be Russia. This involves certain Military Goods and certain Dual-use goods under the Strategic Goods (Control) Order. The ban was aimed at constraining Russian capacity to conduct war in Ukraine and to undermine Ukraine’s sovereignty.
Pursuant to UNSCR 2624 (2022), the UN trade sanctions against Yemen was extended for another year. Further, the Houthis was added to its sanctions list on targeted arms embargo for engaging in acts to threaten the peace, security and stability of Yemen. In this regard, Singapore amended its sanctions regime against Yemen to give effect to UNSCR 2624 (2022) by amending its United Nations (Sanctions – Yemen) Regulations 2015 with effect from 22 March 2022.
In Philippines, the Department of Trade and Industry–Strategic Trade Management Office informed the public on 4 October 2022 that an individual has been added to the United Nations Security Council’s Sanctions List concerning Yemen.
Commentary
Developments on trade sanctions are ever changing and it is important for businesses to stay updated given that violations can result in serious consequences arising from both domestic and international law. It has become a strong tool through which some countries seek to use to their advantage; yet a useful one to combat the likes of terrorism, amongst others.
For example, in Singapore, financial measures were implemented against Russian banks, entities and activities in Russia in 2022, applying to all financial institutions in Singapore, including banks, finance companies, insurers, capital markets intermediaries, securities exchanges, and payment service providers. Digital payment token service providers are also specifically prohibited from facilitating transactions that could aid the circumvention of the financial measures. Separately, on 21 October 2022, the Financial Action Task Force (“FATF”) added Myanmar to a list of high-risk jurisdictions having significant deficiencies in countering money laundering, terrorist financing, and financing of proliferation. Myanmar is hence subject to a call to action and will remain on the list until the country has implemented an action plan. The FATF also recommended blacklisting Myanmar immediately and be subject to enhanced due diligence by member states; which can potentially have impact on business operations. These are not exhaustive.
Trade sanctions are not to be taken lightly, and does require a constant review.
Please click here for the full version of the Rajah & Tann Asia Regional Trade Report 2022.
