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6. Legal and regulatory developments and the facilitation of maritime trade
Public-private dialogue and inter-agency cooperation are often manifested in the port community system
(PCS) as prescribed in TFA Article 8 and Single Window, Article 10.4. The PCS is the electronic exchange
platform that interfaces with existing IT systems within a port environment, including all the stakeholders,
private and public. In the Port of Valencia, Spain the PSC provides for the electronic exchange of supply
chain information for B2B, B2G and G2B. Recently, these systems have started to link up internationally
with port-to-port data exchange- facilitated by the International Port Community Systems Association
Network of Trusted Networks. In addition to pre-arrival and arrival processing this enables greater
transparency in the supply chain through track and trace.
Another critical issue for public-private dialogue is the safety and well-being of workers. Ports and other
actors can for example, cooperate to improve crew changeover processes and ensure standards of
procedure and risk-management protocols at the national level so that imperatives of operational continuity
do not compromise the safety and well-being of workers. This issue has also come to the fore during the
pandemic when seafarers have suffered from blockades on ships for several months and from loss of
employment and were often in desperate conditions.
The benefit of public-private cooperation has been demonstrated in the ‘landlord port’ system. In this
case, border agencies deal with regulatory policies and administer the supply chain while the private
sector oversees the handling and storage of shipments as well as the maintenance of port terminals. This
allows the government to upgrade its systems for customs clearance and other regulatory treatments of
goods while the business sector can improve hard infrastructure, thus boosting the port competitiveness.
4. Improving technology and extending digitalization
Trade facilitation is steadily being transformed by new technology. The TFA encourages smart solutions in
the clearance of goods - as with Article 1.2 on information available through the internet, Article 10.4 on
the electronic single window, or Article 7.2 on electronic payments.
The electronic single window (eSW) has revolutionized supply chains by interconnecting border agencies,
traders, and logistics providers on the same IT platform. It provides a single point of submission for trade
documents and information and allows border agencies to share documents and data electronically and
establish common procedures for processing and control.
Rwanda, for example, has built the Rwanda Electronic Single Window (ReSW) using UNCTAD’s Automated
System for Customs Data (ASYCUDA). Since its introduction in 2012, the ReSW has connected approximately
20 government agencies and now provides more than 12 single window services and applications.
Since 2020, new Partner Governmental Agencies like the Rwanda Agriculture and Livestock Inspection
and Certification Services and the National Agricultural Export Development Board have been benefiting
from automated applications in the single window system. In 2014 alone, the ReSW reduced the average
clearance time from 11 to 1.5 days. In 2020, the total saving for traders on direct cost to buy forms and pay
clearing agents to manually fill the form and follow up the approval in the ministries exceeds 9 million USD.
Rwanda is landlocked, so the Rwanda Revenue Authority uses the ReSW to connect with the Port
Authorities of Mombasa (Kenya) and Dar es Salaam (Tanzania) and has established offices in the East
Africa Community Single Customs Territory. In addition, the ReSW is interlinked with the customs systems
of Uganda and Kenya on the Northern Corridor and with the Tanzanian customs system on the Central
Corridor. Once imports are processed, an exit note is issued through the single window and information
is shared to the ports and the revenue authorities, enabling them to clear the goods. The ReSW relies
on the corridor management institutions and also the Regional Electronic Cargo Tracking System which
since 2020 has helped track and trace goods on the Northern Corridor to and from the Port of Mombasa.
Single windows can also be built for maritime systems. A maritime national single window (MNSW) can
be used to harmonize and exchange data among the relevant port agencies, providing a single point
of electronic document submission for port clearance. In Singapore, for example, the Government, in
partnership with the IMO, has recently launched a Single Window for Facilitation of Trade that is aligned
with the WTO TFA and the IMO FAL Convention recommendations on the electronic exchange of data
(see section F of this chapter).
NTFCs can facilitate communication and coordination among the different stakeholders to create
synergies and ultimately establish single points of access along the supply chain covering transport and
trade procedures.
Other IT applications designed to undertake pre-arrival processing such as ASYHUB expedite customs
clearance procedures, and minimize the time and cost of trade operations (section C of this chapter).
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Table 6.1
Key performance indicators of the Kenya Trade Information Portal
Kenya Trade Information Portal (52 trade procedures)
• 44 of 52 procedures have been simplified
• 50 steps eliminated
• 20 steps now accessible online
1.1 on average
• 66% of all steps are now online
(baseline: 46%)
• 110 hours saved
• 53,000 KES saved fees ($480 saved)
• 66 documents eliminated
2.5 on average
1,205 KES average reduction ($10.9)
1.5 on average
Source: Kenya Trade Information Portal, https://infotradekenya.go.ke.
Another ICT innovation, based on UNCTAD technology, is the Trade Information Portal (TIP). Governments
can use this online portal to document and publicize trade procedures for export, import and transit.
Each TIP offers step-by-step guides to trade-related procedures. The TIP, which is coordinated by the
Secretariat of the National Trade Facilitation Committee, simplifies and streamlines procedures while
increasing transparency of trade information on export, import and transit requirements. In this way
countries can fulfil their obligations in WTO TFA, article 1.2 on information availability through the internet.
Today, 29 TIPs, based on UNCTAD technology, are being implemented globally by UNCTAD and the International
Trade Centre. Results have been very positive. TIPs are most advanced in East Africa, where in Kenya, for
example, greater transparency and simplification of a total of 52 trade procedures so far have reduced the time
spent waiting in the queue, at the counter and in between steps by 110 hours, and the administrative fees for
these 52 procedures by $482, i.e., about $11 per trade procedure on average (table 6.1).
An essential element of measures to improve trade facilitation is digitalization, which is part of a paperless
environment. All trade procedures can then be carried out online, reducing time and cost for the traders and
increasing transparency and market access. These smart solutions also enable better public administration
of trade and, by minimizing the use of paper and carbon-based activities, can reduce CO2 emissions
(Duval, 2021). However, these benefits will only be achieved through sustained intergovernmental and
public-private sector cooperation at all levels (box 6.1).
Box 6.1
The Framework Agreement on Facilitation of Cross-Border Paperless Trade
in Asia and the Pacific - Maritime implications
The Framework Agreement on Facilitation of Cross-border Paperless Trade in Asia and the Pacific
(ESCAP, 2021) aims to accelerate digitalization of trade in support of sustainable development. After
four years of negotiations, the Economic and Social Commission for Asia and the Pacific (ESCAP)
adopted the treaty in May 2016 and opened it to all its 53 member States.
The Agreement entered into force on 20 February 2021, following accession or ratification of Azerbaijan,
the Philippines, the Islamic Republic of Iran, Bangladesh, and China. Armenia and Cambodia have
also signed the treaty. Several other ESCAP member States are in the process of accession, in time
for the first meeting of the Paperless Trade Council. This body will oversee the implementation of the
Agreement starting in March 2022.
Designed as an enabling rather than a prescriptive instrument, the Agreement is accessible to countries
at all levels of development. It contains general principles and other provisions to facilitate pilot testing and
implementation of paperless trade solutions suitable for each country, while promoting interoperability
across systems and public-private sector collaboration within and across borders. The Agreement
complements the WTO Trade Facilitation Agreement and supports its full digital implementation. Trade
cost reductions expected from the full implementation of cross-border paperless trade are estimated
at 10-30 per cent of existing transactions costs, depending on the current state of paperless trade
development in the participating countries (ESCAP, 2017).
This agreement will boost the digitalization of maritime transport in Asia and the Pacific, which is home
to nine of world's ten busiest ports and has the bulk of global maritime trade. It should also provide a
strong political and institutional basis to improve the interconnectivity of maritime single windows and port
community systems. It will also help digitalize maritime documents such as bills of lading, packing lists and
manifests that are used in governmental trade compliance and in processes agreed between traders and
transport and logistics service providers. As these documents are digitalized, they need to be shared and
legally recognized across both in maritime single window/port community systems and trade single window
systems, and can be shared across all paperless systems along international supply chains. Backed by
this agreement, the Paperless Trade Council can engage relevant international organizations, private sector
stakeholders and development partners to fill the capacity gaps and facilitate interoperable solutions.
Source: ESCAP.
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6. Legal and regulatory developments and the facilitation of maritime trade
F. FAL CONVENTION
The WTO TFA addresses issues in relation to the clearance of goods. The Convention on Facilitation
of International Maritime Traffic (FAL Convention), on the other hand, which is managed by the IMO,
focuses on the formalities and procedures for ships calling in ports, including those related to the arrival
and departure of seafarers. Trade facilitation initiatives are likely to involve both agreements, so careful
coordination and integration will be needed at the national level in order to ensure that regulations and
procedures are aligned.
1. Main provisions of the Convention
The FAL Convention has both compulsory and recommended provisions. Contracting governments can
thus comply to the extent they are able to. One of its most important measures concerns the number
of documents that shore authorities can require, which it limits to 12. For the first seven of these, the
IMO has developed standardized forms, widely known as FAL forms, which include General Declaration
(FAL Form 1), and Cargo Declaration (FAL Form 2). Nevertheless authorities can also require other
documentation pertaining, for example, to the ship’s registration, measurement, safety, pollution prevention,
or safe manning. The FAL Convention also contains provisions to prevent, report on, and resolve stowaway
incidents, as well and standards and recommendations on treatment of stowaways while on board ships.
For the FAL Convention, significant efforts have been made to promote digitalization, with new provisions
to allow for data to be submitted and shared electronically. Since 2019, public authorities in ports must set
up the electronic exchange of information, and may only use paper forms in exceptional circumstances.
To reduce duplication, the FAL Convention also recommends the single window approach, aligned with
Article 10.4 of the TFA, whereby ship reporting parties can fulfil the requirements of the various authorities
by providing information once to a single entry point.
In 2021, the FAL Committee approved amendments to the Convention that further promote digitalization.
Once these are formally adopted, the FAL Convention will no longer refer to paper forms but to a list
of data requirements. In addition, the single window will become mandatory. These amendments are
expected to be adopted by the FAL Committee in 2022 and to enter into force in January 2024.
The FAL Committee also aims to improve the quality of data exchange between ships and ports. An
important contribution to this is the IMO Compendium on Facilitation and Electronic Business which
provides a common terminology so that shipping and ports use the same definitions and formats. The
IMO Compendium can also be used by other IMO Committees when preparing their requirements on
electronic reporting and information exchange.
Box 6.2
IMO Compendium on Facilitation and Electronic Business
The IMO Compendium on Facilitation and Electronic Business aims to harmonize the essential standards
for ship clearance and to support electronic data exchange between ships and ports. It was developed
by the IMO in partnership with ECE, WCO and ISO.
The Compendium has two critical components: the IMO Data Set (IDS) and the IMO Reference Data
Model (IRDM). The IDS provides unique identification, and a common definitions and representations/
formats for all the data elements. The IRDM defines how the data elements relate to each other - reflecting
the relationships between the different areas of information.
Initially, the IMO Compendium was limited to the FAL Convention (i.e., FAL forms). This led to a
partnership agreement between ECE, WCO and ISO to develop and maintain the IRDM. To ensure full
interoperability between the most relevant standards, the data elements are mapped across the main
models - UN/CEFACT, WCO Data Model and ISO. The data exchange syntax for electronic messages,
is provided by the corresponding organizations.
Since 2019, the scope of the IMO Compendium has been extended. It now covers other IMO instruments
(e.g., MARPOL and SOLAS) and other data specifications related to the ship/shore interface. Since 2020,
the IMO Compendium has included the Maritime Declaration of Health (MDH), a requirement of the
International Health Regulations (IHR) under the purview of the WHO. The IMO Compendium also
includes IMO data on stowaways as well as operational and real-time data to help optimize port calls and
decarbonize shipping. More data sets are currently being prepared by the IMO Expert Group on Data
Harmonization, a group of Member States and industry experts set up to maintain the IMO Compendium.
Data sets related to shipping certificates, ship registry and company details, ballast water reporting, and
the verified gross mass of containers are being considered for inclusion in 2022.
Source: IMO.
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In 2021, having learned from the COVID-19 pandemic, Member States are adding a new section addressing
a public health emergencies of international concern (PHEIC) to the FAL Convention. To help sustain global
supply chains during a PHEIC, contracting governments and their relevant public authorities must ensure
that ships and ports remain fully operational. And they should designate port workers and crew members
who are in their territory as key workers or equivalent, regardless of their nationalities or the flag of their ship.
National authorities are also advised not to introduce obstacles to crew movements for repatriation, crew
changes or travel. The new amendments to be adopted in 2022 also encourage governments to disseminate
information about public health matters and the protection measures expected from ship operators.
2. FAL Convention requirements for maritime single windows and port
community systems
When a ship calls at a port, the master or the shipping agent has to fulfil regulatory and port entry
requirements - for purposes of safety, security, and environmental protection. This includes submitting
information on the ship, and its voyage, cargo, crew, and passengers. This information is used for
various clearance and port call processes - including pre-arrival, arrival, berthing, loading/unloading,
embarkation/disembarkation, clearance, and departure/unberthing.
Since 2019, the IMO has required this information to be exchanged electronically. On the ship this
could involve the master, ship agents, and shipping lines, while those involved ashore include maritime
administrations, and the authorities concerned with customs, police/law enforcement, immigration, public
health, port administration, and agriculture.
The IMO also recommends that data is submitted through a single window using software that distributes
the information to relevant stakeholders according to the system rules and user agreements. The single
window in port covers business-to-government and government-to-business exchanges.
In 2019, IMO produced guidelines for setting up a maritime single window (MSW) to help Member States
and software developers, with examples of different approaches in existing systems. (FAL.5/Circ.42/Rev.1).
Developing such systems is complex and involves multiple stakeholders based on an appropriate legal
framework for data requirements and sharing.
Other forms of eSW include national single windows (NSW) or customs or trade single windows (TSW).
Possible gateways into the various systems are port community systems (PCS). As defined by International
Port Community Systems Association (IPCSA), a PCS is a neutral and open electronic platform enabling
the intelligent and secure exchange of information between public and private stakeholders.
Since 2019, IMO has encouraged Member States that are more advanced in MSW implementation
to exchange know-how and experiences with other Member States seeking assistance. Norway, for
example, has made available the source code of a generic maritime single window system developed
as part of a project with the IMO. Its design is of particular interest to SIDS and it has been implemented
in Antigua and Barbuda. It is accessible at https://github.com/Fundator/IMO-Maritime-Single-Window.
In 2021, the IMO launched two technical cooperation initiatives. One aims to develop and implement a
maritime single window in a medium-size port based on Singapore's experience - the Single Window
for Facilitation of Trade (SWiFT). In April 2021, there was call for interest to identify the pilot country. The
second project is the ‘World Bank Group/IMO maritime single window for SIDS’ which will provide Fiji
with technical support to adopt and implement an MSW based on the source code from Norway, and the
experience of Antigua and Barbuda.19
The amendments to the FAL Convention approved in 2021 will make the use of the single window
mandatory. Public authorities must also try to ensure that the information is submitted electronically only
once and re-used as much as possible.
During the COVID-19 pandemic, a group of global industry associations in consultative status with the IMO
representing the maritime transportation and port sectors agreed on a joint statement calling for intergovernmental
collaboration to accelerate the digitalization of maritime trade and logistics. The IMO supported the joint
statement and has encouraged collaboration between maritime supply chain industry stakeholders and
Member States and called for intergovernmental collaboration at local, national, and regional levels.20
19
Antigua-and-Barbuda-.aspx.
20
adds/Circular%20Letter%20No.4204-Add.20%20-%20Coronavirus%20(Covid-19)%20-%20Accelerating%20
Digitalization%20Of%20Maritime%20Trade.pdf.
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6. Legal and regulatory developments and the facilitation of maritime trade
G. ASYCUDA ASYHUB CASE STUDIES
The WTO TFA and the FAL Convention recognize the importance of automating and digitalizing
customs and trade procedures - by focusing on issues such as eSW, port community systems, and
overall interconnectivity and interoperability at national levels and across borders. This section provides
examples of the practical implementation of these aspects based on experience from UNCTAD’s
ASYCUDA.
ASYCUDA is a computerized customs management system that covers most foreign trade procedures.
It handles manifests and customs declarations, accounting procedures, and transit and suspense
procedures. It also generates trade data that can be used for statistical analysis.
Many customs administrations have introduced procedures for submitting cargo information in advance,
in line with the obligations of the WTO TFA. However, this is typically submitted only 24 hours before
arrival, leaving customs administrations little time for risk assessment and processing - and potentially
increasing turnaround times for traders, logistics operators and freight forwarders.
The information pertaining to a shipment is logged many weeks in advance but this data may not be
accessible to all the organizational entities needed to grant customs clearances. ASYCUDA facilitates the
sharing of this information in advance to enable customs to clear goods upon arrival, generally plan better,
and reduce overall clearance times.
1. Digitizing Global Maritime Trade
To enhance further risk-based pre-arrival/pre-departure processing, the Digitizing Global Maritime Trade
(DGMT) project21 focuses on enabling customs authorities to gain advance digital access to sea cargo
information (PAP/PDP) - as stipulated in WTO TFA Articles 7.1 and 7.4.
Started by UNCTAD/ASYCUDA in December 2019 in partnership with Deutsche Gesellschaft für
Internationale Zusammenarbeit (GIZ) and the shipping industry in the context of the German Trade Alliance
for Trade Facilitation, the DGMT project aims at:
• Increasing efficiency in the international transport documentation process
• Reducing the time and costs of maritime trade for importers and exporters
• Streamlining risk management by increasing digital access by customs authorities to advance sea
cargo information during clearance processes
Box 6.3
Components of the Digitizing Global Maritime Trade project
1. Development of ASYHUB Maritime, a standardized data exchange and data integration platform
between ASYCUDAWorld and international standards-compliant shipping data platforms.
The objective of component 1 is to harmonize and streamline information exchange between
international standards-compliant data platforms and customs administrations. This allows for the
efficient transfer of advanced cargo information and for existing data to be reused to complete the
entry/exit customs formalities. The ASYHUB Maritime platform is now ready for piloting.
2. Enhance the capacity of customs authorities in Sri Lanka and Cambodia to apply ASYHUB Maritime
to improve pre-arrival and pre-departure processing and risk management. This component aims
to improve their risk management systems by using new datasets and new technology solutions.
Customs authorities can then conduct risk assessments and process cargo and customs
declarations prior to the arrival of goods at the port of entry/port of exit. This will enable the release
of the cleared goods shortly after arrival.
3. Outreach to create demand and initiate upscaling to at least five further countries during or shortly
after the successful conclusion of the first two pilots.
The two pilot countries will share their experiences with the network and receive advice and expertise
from their peers. The five early adopter countries can take steps towards pre-arrival and pre-departure
processing and risk management through ASYHUB Maritime and international standards-compliant
shipping data providers.
Source: UNCTAD ASYCUDA.
21
Grant Agreement #81249048 between GIZ and UNCTAD/ASYCUDA signed in October 2019.
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This project involves the development of ASYHUB Maritime, a standardized data exchange and integration
platform. Currently, the project is in phase two of a three-phase process and is being testing in two pilot
countries. This will be followed by the creation of a virtual community of practice consisting of countries
using ASYCUDA World, to enable its potential replication or upscaling in over 90 countries.
2. ASYHUB and single window integration
ASYHUB Maritime is an open, standardized platform for data processing and data integration between
ASYCUDAWorld and other external systems. The platform is designed to be cloud-native using micro
service-centred principles. It will simplify and automate the submission of sea cargo manifest information
through a system-to-system interface, providing customs authorities with richer information that can be
used to make informed risk assessments and better decisions on which shipments to inspect. This will
reduce the administrative burden for ship data providers, increase trade facilitation, ensure a quicker
release of goods, and improve risk management, security, and revenue collection.
The ASYHUB Maritime platform enables ship data providers to re-use the existing data to complete the
entry/exit formalities and exchange advanced electronic cargo information with port authorities, customs,
and other border agencies (box 6.4). This will also ensure better interconnectivity and interoperability
between countries.
Box 6.4
Customs formalities concerning entry or exit
• Entry of goods
• Customs Cargo Manifest (at arrival)
• Arrival notification
• Presentation notification
• Temporary Storage Declaration
• Exit of goods
• Customs Cargo Manifest (at departure)
• Exit notification.
Source: UNCTAD ASYCUDA.
H. SUMMARY AND POLICY CONSIDERATIONS
Ensuring maritime cybersecurity
The maritime sector is increasingly structured around online and automated systems. Recently updated
industry guidelines offer shipowners and operators information on procedures and actions to maintain
cybersecurity in their companies and ships - adopting cyber-risk management approaches that take
account of IMO requirements and other relevant guidelines. Implementing cybersecurity not only helps
shipowners avoid having their ships detained by port State control authorities, it also makes economic
sense, and helps protect shipping assets and technology from increasing cyber-threats.
Regulating maritime autonomous surface ships
The industry is advancing rapidly with the technology for maritime autonomous surface ships (MASS)
and is now conducting trials. In May 2021, the IMO Maritime Safety Committee completed a regulatory
scoping exercise which highlighted high-priority issues that cut across several instruments and will need
policy decisions to determine future work. This could result in a MASS instrument or code, with goals,
functional requirements and corresponding regulations. Developing countries representatives and other
stakeholders are encouraged to contribute to future discussions.
Reducing greenhouse gas emissions and adapting to climate change
Mitigation and adaptation to global climate change are increasingly urgent imperatives. Resilience-building
is especially important for seaports that are exposed to sea-level rise and related extreme weather events.
The 2021 IPCC report warns of increasingly extreme heatwaves, droughts, and flooding. Nevertheless,
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6. Legal and regulatory developments and the facilitation of maritime trade
rising temperatures could be stabilized by deep cuts in emissions of GHGs in which shipping must play its
part. In June 2021, the IMO adopted mandatory regulations that aim to cut the carbon intensity of ships
and their carbon emissions. These include requirements to measure the energy efficiency of all ships and
set the required attainment values. Adaptation remains a particular concern for vulnerable developing
countries, including SIDS.
Reducing pollution from shipping
In 2020 the IMO set a 0.5 per cent sulphur limit on ship fuel oils. Flag and Port State controls need to make
sure ships are compliant. During 2020 and the first half of 2021, implementation was relatively smooth with
VLSFO as the preferred solution, and compliant fuel oil was widely available globally. Another major fuel oil
concern is the risk of oil spills which can have devastating consequences for ecosystems and biodiversity
and for the economies and tourist industries of coastal countries, which should be able to claim adequate
compensation. Unfortunately, the very comprehensive international regime on liability and compensation
for tanker oil spills (CLC-IOPC Fund regime), does not apply to bunker oil spills from other types of ship.
Given the continuing growth in the size of vessels of any type and the associated potential for significant
bunker oil pollution, with devastating consequences for vulnerable coastal developing countries and SIDS,
the issue of liability for bunker oil spills from ships other than tankers may need to be revisited. The IMO
is developing a claims manual for the Bunker Oil Pollution Convention, 2001 which addresses liability for
bunker oil spills.
Commercial law implications of the pandemic, and the use of electronic
trade documents
The COVID-19 pandemic continues to interfere with international trade, creating inefficiencies, delays
and supply-chain disruptions on an unprecedented scale. This also has implications for contractual
performance with potential legal consequences and litigation involving complex international jurisdictional
issues. Resolving these problems will require collective and coordinated action by governments and
industry. This could involve, for example agreeing contract extensions, showing restraint in pursuing rights
and legal claims, and resolving disputes through mediation and informal mechanisms. It could also involve
commercial risk allocation through standard clauses to address contractual rights and obligations in the
light of the circumstances associated with the pandemic. Recent UNCTAD reports provide analytical
guidance to commercial parties and governments on some of the key legal issues arising.
Digitalizing trade facilitation
Maritime transport can be impeded by regulatory requirements and slow clearance procedures at ports.
Trade facilitation can, however, be improved by digitalization and automation of customs and other
compliance processes, single window implementation, ensuring that formalities are increasingly paperless.
Frameworks and common standards and regulations for these systems can be based on multilateral
agreements, e.g., through the WTO TFA and the IMO FAL Convention.
Connectivity requires cooperation and coordination
New technologies and smart solutions raise questions of interconnectivity and interoperability and the
need for international standards. When digitalizing and automating their systems, developing and least
developed countries can take advantage of the experiences of other countries and follow good practices
already available, such as those of the ASYCUDA system.
National trade facilitation committees
Any successful trade reform relies on cooperation between public administrations and the business
community. For this purpose, each country should set up an NTFC comprising public and private
stakeholders at national levels who should devise a coherent and coordinated strategy and champion and
drive the trade facilitation agenda. The NTFC membership should represent all the businesses involved
in maritime trade and port operations who can work with the government authorities to make logistics
supply chains more efficient and boost national trade performance.
143
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