Procedure for the elimination of non-tariff trade barriers approved

On 22 May, by Supreme Decree No. 102-2021-PCM ("Decree"), the procedure for the elimination of non-tariff trade barriers was approved.

The Decree contains provisions regulating the elimination of illegal and/or unreasonable non-tariff trade barriers that restrict or hinder the free trade of goods from or to the national territory. A more detailed and clearer regulatory framework has been created, taking as experience the provisions of the procedure for the elimination of bureaucratic barriers where applicable.

Below is a brief summary of the main provisions of this Decree:

• Non-tariff trade barrier: It is defined as any unlawful and/or unreasonable demand, requirement, restriction, prohibition and/or collection imposed by public administration on economic operators by rule of law or administrative powers, which affects the import or export of goods in the national territory, materialized in provisions or administrative acts with general or particular scope. No details have been given about the administrative acts of promotion, which also create barriers; through various resolutions, however, INDECOPI has excluded them from the corresponding scope.
   
• Procedure details: The procedure has been clarified, for example:
   
  • Start ex officio or on request: In the latter case, the request shall be addressed to the Technical Secretariat of the Commission on Dumping, Subsidies and Elimination of Non-Tariff Trade Barriers of INDECOPI. This request may also be submitted by associations or guilds through their legal representatives.
  • Methodology: It includes legality analysis and reasonableness analysis. The latter shall be considered only if the applicant presents arguments or indications prior to the admission of the complaint. If a barrier is found to be illegal, the reasonableness analysis will not be conducted.
  • Final Resolution: If a barrier complained of in a proceeding initiated at the request of a party is found to be unlawful or unreasonable, the Commission shall order the non-tariff trade barrier to be inapplicable to the complaining economic operator and where appropriate, also to the third parties involved in the proceeding. In the case of guilds or associations, the non-application of the barrier denounced applies to all their associates or members. If applicable, the Commission may recommend the modification of the barrier to the public entity, which will have a maximum period of 90 calendar days to decide on the recommendation.
• Evidentiary means: During the procedure, only documents, expert reports and inspections may be presented as evidence. Exceptionally, the Commission may admit evidence other than these, provided that they are appropriate and relate to the subject matter at issue.
• Interim measures: This expressly stipulates that at any stage of the proceedings, the Commission or the Chamber may issue precautionary measures, either ex officio or at the request of a party. For these purposes, a Resolution must be issued within a maximum period of 30 working days, analyzing: (i) the non-tariff trade barrier sought to be inapplicable; (ii) the likelihood of the illegality or lack of reasonableness of such barrier; and (iii) the possibility of irreparable damage occurring during the time between the filing of the application and the termination of the proceeding. 
• Validity: The Decree applies immediately to applications from parties that have not been accepted for processing.

Finally, we share a table with relevant information about the procedure:

We trust that this information will be relevant to you. If you need to delve into the subject, please contact us.