Systemic reflection on the EC-IT product case establishing an `understanding` on maintaining the product coverage of the current information technology agreement in the face of technological change

Abstract

The dividing character of the Information Technology Agreement (ITA), separating information technology (IT) products in the list from those yet to be included, by its nature, might make the ITA stumble on the converging technology trend. The European Communities and Its Members States - Tariff Treatment of Certain Information Technology Products (hereinafter `EC-IT Product`) case has opened up Pandora`s box: would original ITA products, after technological change, still be included in the ITA? In light of the terms of relevant concessions being interpreted, the Panel establishes that the ITA could be dynamic along with new technology in that the addition of new technology or features would not necessarily warrant the exclusion of the ITA products from the duty-free coverage. However, because of the limitation on the scope of coverage through terms and conditions or the use of HS interpretative rules, ITA products might be excluded as a result; this is not necessarily supportive in terms of the ITA. The author argues that the dispute settlement mechanism does not provide a satisfactory systemic solution for the ITA. In this regard, the author proposes that establishing an `understanding` on the maintenance of product coverage of current ITA under technological change, which includes the use of `like product` analysis and the development of an `indicative good practices guidance`, might serve as a pragmatic tool and the starting point for further discussions towards finding the `simple, transparent, and expeditious solution` contemplated by the ITA Committee. © 2011 Kluwer Law International BV, The Netherlands.