The Proposed U.S.-Panama Free Trade
Agreement
J. F. Hornbeck
Specialist in International Trade and Finance
October 15, 2009
Congressional Research Service
7-5700
www.crs.gov
RL32540
CRS Report for Congress
P
repared for Members and Committees of Congress
The Proposed U.S.-Panama Free Trade Agreement
Summary
On June 28, 2007, after two and a half years of negotiation, the United States and Panama signed
a reciprocal free trade agreement (FTA). Negotiations were formally concluded on December 16,
2006, with an understanding that further changes to labor, environment, and intellectual property
rights (IPR) chapters would be made pursuant to future detailed congressional input. These
changes were agreed to in late June 2007, in time for the FTA to be considered under Trade
Promotion Authority (TPA) legislation before it expired on July 1, 2007. TPA allows Congress to
consider trade implementing bills under expedited procedures. Panama’s legislature approved the
FTA 58 to 4 on July 11, 2007. The 110th Congress did not take up the agreement, but
implementing legislation may be introduced in the 111th Congress.
The proposed U.S.-Panama FTA is a comprehensive agreement. Some 88% of U.S. commercial
and industrial exports would become duty-free upon implementation, with remaining tariffs
phased out over a ten-year period. Approximately 50% of U.S. farms exports to Panama also
would achieve immediate duty-free status, with tariffs and tariff rate quotas (TRQs) on select
farm products to be phased out by year 17 of the agreement. Panama and the United States signed
a separate bilateral agreement on sanitary and phytosanitary (SPS) issues that would recognize
U.S. food safety inspection as equivalent to Panamanian standards, which will expedite entry of
U.S. meat and poultry exports. The FTA also consummates understandings on services trade,
telecommunications, government procurement, investment, and intellectual property rights.
The circumstances framing the proposed U.S.-Panama FTA differ considerably from those of two
others that have yet to be considered by Congress. The deep concerns that Congress has
expressed over Colombia’s violence have not been an issue in the Panama FTA debate, which is
framed more by the positive image of a longstanding strategic bilateral relationship based on
Panama’s canal. Nor does Panama compare well with the continuing debate over the proposed
FTA with South Korea, which as a major U.S. trading partner, can affect key industries such as
automobile and beef production. To the contrary, Panama trades little with the United States, even
by Latin American standards, and so the FTA cannot have a major effect on the U.S. economy.
The final text of the proposed U.S.-Panama FTA incorporates specific amendments on key issues
at the behest of congressional leadership. The most significant were adoption of enforceable labor
standards, compulsory adherence to select multilateral environmental agreements (MEAs), and an
easing of restrictions on developing country access to generic drugs. In these cases, the proposed
U.S.-Panama FTA goes beyond provisions in existing bilateral FTAs and multilateral trade rules,
including those contemplated in the Doha Round.
Two other concerns still linger. The first pertains to a Panamanian labor statute, which some
Members of Congress would like to see amended so that the minimum number of workers
required to start a union would be reduced from 40 to 20, per ILO guidelines. The second relates
to questions raised over Panama’s status as a “tax haven” and its refusal to enter into any tax
information exchange treaty. The new government of President Ricardo Martinelli has reportedly
agreed to set up a double taxation treaty commission to rectify the tax legislation problem, and to
change the labor law, raising expectations that Congress may be in a position to consider taking
up implementing legislation for the FTA at some point soon. For more, see CRS Report RL30981,
Panama: Political and Economic Conditions and U.S. Relations, by Mark P. Sullivan.
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The Proposed U.S.-Panama Free Trade Agreement
Contents
Panama’s Canal and Economic Relations with the United States.................................................. 2
Early U.S.-Panama Economic Relations ................................................................................ 2
The Canal and U.S. Trade Policy........................................................................................... 4
Panamanian Trade Relations ....................................................................................................... 6
Structure and Direction of Panamanian Trade ........................................................................ 6
The Colón Free Zone ...................................................................................................... 8
U.S.-Panama Merchandise Trade........................................................................................... 9
U.S. Foreign Direct Investment ........................................................................................... 10
Summary of Trade Negotiations and the Proposed U.S.-Panama FTA........................................ 11
Market Access..................................................................................................................... 12
Agricultural Trade......................................................................................................... 13
Sanitary and Phytosanitary Standards (SPS) .................................................................. 15
Textiles and Apparel...................................................................................................... 15
Government Procurement.................................................................................................... 16
Investment .......................................................................................................................... 17
Services .............................................................................................................................. 18
Intellectual Property Rights ................................................................................................. 18
Pharmaceutical Issues ................................................................................................... 19
Labor and Environment....................................................................................................... 21
Labor Issues.................................................................................................................. 21
Panama’s Labor Conditions........................................................................................... 23
Environmental Issues .................................................................................................... 23
Trade Capacity Building...................................................................................................... 25
Outlook..................................................................................................................................... 26
Figures
Figure 1. Map of Panama ............................................................................................................ 3
Figure 2. Panama Direction of Trade, 2008.................................................................................. 8
Tables
Table 1. Panama’s Current Account Balance................................................................................ 7
Table 2. U.S.-Panama Merchandise Trade, 2008........................................................................ 10
Table 3. U.S. Foreign Direct Investment in Panama, Mexico, and Central America.................... 11
Appendixes
Appendix A. Chronology of U.S.-Panama FTA ......................................................................... 28
Appendix B. Panama: Selected Economic Indicators ................................................................. 29
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Contacts
Author Contact Information ...................................................................................................... 29
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The Proposed U.S.-Panama Free Trade Agreement
n June 28, 2007, the United States and Panama signed a free trade agreement (FTA) after
two and a half years and ten rounds of negotiations (see Appendix A for a chronology of
O events). Negotiations formally concluded on December 16, 2006, with an understanding
that changes to labor, environment, and intellectual property rights (IPR) chapters would be made
pursuant to future congressional input. These changes were agreed to in late June 2007. The FTA
was signed in time to be considered under Trade Promotion Authority (TPA) legislation, which
expired on July 1, 2007. TPA allows Congress to consider certain trade implementing bills under
expedited procedures.1 Panama’s legislature ratified the FTA 58 to 4 on July 11, 2007, but the
110th Congress did not take up the agreement.
The FTA incorporates changes based on principles outlined in the “New Trade Policy for
America,”2 a bipartisan policy crafted jointly by leadership in the 110th Congress and the Bush
Administration. It requires adoption as fully enforceable commitments, the five basic labor rights
defined in the International Labor Organization’s (ILO) Fundamental Principles and Rights at
Work and its Follow-up (1998) Declaration, select multilateral environmental agreements, and
new pharmaceutical IPR provisions that may facilitate Panama’s access to generic drugs. These
changes distinguish the proposed U.S.-Panama agreement from all earlier FTAs that have been
implemented, with the exception of the U.S.-Peru agreement, which has similar language.
A congressionally mandated report by the United States International Trade Commission
(USITC) concluded that the likely main trade effect of the FTA would be to increase U.S. exports,
given that 96% of U.S. imports from Panama already enter duty free. Given the small size of the
Panamanian economy, however, the overall effect on the U.S. economy is expected to be very
small.3 In addition, Panama is largely a services-based economy with a relatively small
merchandise trade relationship with the United States, even by Latin American standards.
Although many policy issues were addressed in the bipartisan compromise, albeit not to the
satisfaction of all Members, the FTA also faced a sensitive political issue that contributed to
delaying congressional action. On September 3, 2007, following an election of his peers, Pedro
Miguel González Pinzón assumed the office of President of the National Assembly for a one-year
term. Although a deputy in the National Assembly since 1999, he is better known in the United
States for his alleged role in the June 10, 1992, murder of a U.S. serviceman in Panama. A
Panamanian court acquitted him of the charge in 1995, but the United States does not recognize
the verdict and maintains an outstanding warrant for his arrest.4 His presence in the National
Assembly leadership position delayed congressional action on the FTA.5 Panama, for its part,
faced a sensitive situation given it did not wish to appear to be compromising its national
sovereignty to accommodate political concerns in the United States. This situation changed on
September 1, 2008, when Raúl Rodríguez Araúz was elected to replace González Pinzón,
removing one obstacle to congressional consideration of the FTA.
1 For details, see CRS Report RL33743, Trade Promotion Authority (TPA): Issues, Options, and Prospects for
Renewal, by J. F. Hornbeck and William H. Cooper.
2 Agreed to on May 10, 2007 and available on the website of the Office of the United States Trade Representative
(USTR).
3 USITC. U.S.-Panama Trade Promotion Agreement: Potential Economy-wide and Selected Sectoral Effects.
September 2007. Publication 3948. pp. 1-1 and 1-5.
4 U.S. Department of State. Press Statement. Election of Panamanian National Assembly President Pedro Miguel
González-Pinzón. September 1, 2007.
5 Inside U.S. Trade. Committee Chairs Signal FTA Problem Over Panama Assembly Head. September 21, 2007.
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Other issues surfaced, however, that have continued to slow action in the 111th Congress. The first
is concern over Panama’s status as a “tax haven.” Many Members of Congress have expressed a
refusal to consider the FTA until Panama changes its tax laws to enhance transparency. The new
government of President Ricardo Martinelli has reportedly agreed to set up a double taxation
treaty commission to rectify the problem. Some Members of Congress also want to see changes to
Panama’s labor code that would reduce the number of employees required to form a union from
40 to 20, per ILO guidelines. Panama appears prepared to make this change as well, raising
expectations in some quarters that Congress may consider taking up FTA implementing
legislation at some point in the near future.6
Panama’s Canal and Economic Relations with the
United States
The United States and Panama have entered into many agreements over the past 150 years, the
most prominent ones defining their relative stake in the famous canal that traverses the Central
American isthmus, bisecting Panamanian territory (see Figure 1). The canal has been a critical
factor influencing Panamanian domestic and foreign affairs, and like earlier U.S.-Panama
agreements, the FTA’s significance is tied to a Panamanian economy that has formed largely
around the canal.
Early U.S.-Panama Economic Relations
Since first explored by the Spanish at the turn of the sixteenth century, interest in Panama has
centered on its unique geographic characteristic: the slender distance separating the Atlantic and
Pacific Oceans. Because of the transit possibilities this presented (first for Peruvian gold and
other colonial trade), Panama was a natural crossroads for the movement of commerce, a strategic
position that grew as the world became ever more traveled and integrated. In fact, Panama’s
destiny became fused to its geography and the foreign interests that sought to take advantage of it,
particularly the United States.
Panama was swept to independence from Spain on November 28, 1821, becoming part of the
Gran Colombia regional group. By this point, both the United States and Britain had openly
coveted the prospect of an inter-oceanic connector. Well before construction of a canal could
begin, the United States displaced Britain as the dominant foreign influence and completed a
cross-isthmian railroad in 1855. This project was driven by the westward expansion of the United
States, which included an anticipated southern water route to the west coast. To secure this transit
system, as well as the safety of goods and people using it, the United States resorted to armed
intervention in Panama some 14 times in the 19th century. By the time the United States sought
permission to construct a canal, a precedent had already been set to use military force for defense
of U.S. interests in Panama.7
6 David J Lynch, "U.S.-Panama Trade Deal May Test Obama Goals; Congress Wants to See Bank, Tax Reforms There
First," USA Today, July 31, 2009, p. B1.
7 Conniff, Michael L. Panama and the United States: The Forced Alliance. Athens: the University of Georgia Press,
second edition. 2001. pp. 30-35.
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Figure 1. Map of Panama
Source: Map Resources. Adapted by CRS.
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The Proposed U.S.-Panama Free Trade Agreement
The U.S. effort to build a canal required a concession from Colombia that would allow the United
States to complete the bankrupt French project abandoned in 1889. In early 1903, the details were
set down in a treaty ratified by the U.S. Senate, but unanimously rejected by the Colombian
legislature. The United States responded by reaching out to the growing Panamanian secessionist
movement. On November 3, 1903, in a quick and bloodless move encouraged by the offshore
presence of U.S. warships, Panama separated from Colombia. The United States immediately
recognized Panama as an independent state, and in return, Panama signed the Hay-Buneau-Varilla
Treaty, ceding to the United States the rights to construct a canal and control it “in perpetuity.”8
The Panama Canal opened in 1914, leading to U.S. dominance in the economic and, at times,
political life of Panama. Although both countries benefitted from its operations, the relationship
was far from equal, which along with the perpetual U.S. presence, generated a nagging
resentment, frequent protests, and periodic violence over the tangible loss of national sovereignty.
This tension remained a dominant feature of U.S.-Panamanian relations until the canal was ceded
back to Panama in 1977 under terms defined in the Panama Canal Treaties signed by Presidents
Jimmy Carter and Omar Torrijos. Tensions flared again in 1989 when the U.S. military invaded
Panama to arrest then-chief of state General Manual Noriega on narcotics trafficking charges and
for threatening U.S. personnel and property. The incursion, nonetheless, proved to be a catalyst
for the return of democracy. Perhaps not coincidently, Panama’s decision to promote trade
liberalization followed soon thereafter.9
The Canal and U.S. Trade Policy
The canal solidified Panama as a maritime economy and its return to Panamanian control raised
expectations of greater economic benefits from its ownership. The canal operations by themselves
account for approximately 6% of Panama’s GDP, with the largest and fastest growing traffic
volume generated along the U.S. East Coast-to-Asia trade route (especially U.S.-China). About
one-third of all cargo passing through the canal has its origin or destination in the United States.
The canal’s total economic impact, however, is far greater, supporting income and jobs in various
services industries including warehousing, ship registry and repair, salvage operations, insurance,
banking, and tourism. The two major ports at either end of the canal have been privatized and
modernized, a portion of the canal was widened in 2001, but Panama faces a difficult and
expensive challenge to enhance the capacity of the entire canal to accommodate much larger post-
Panamax ships.10 Panama held a national referendum on the proposed $5.25 billion expansion on
October 22, 2006. It passed by a wide margin and Panama has begun the expansion project.
With transfer of the canal and its operations to Panama, the country also inherited a substantial
amount of land and physical assets. The conversion of these assets to private use has been a boon
to the Panamanian economy, but not without considerable costs and investment, as well.
Privatization efforts eased the transformation of former U.S. government facilities to productive
8 Woodward, Ralph Lee. Central America: A Nation Divided. New York: Oxford University Press, third edition. 1999,
pp. 187-191 and ibid., pp. 63-70.
9 Conniff, Panama and the United States, pp. 134-39 and CRS Report RL30981, Panama: Political and Economic
Conditions and U.S. Relations, by Mark P. Sullivan.
10 The Economist Intelligence Unit. Panama: Country Profile 2003. London, 2003. pp. 16-17 and U.S. Department of
Energy. Energy Information Administration. Panama: Country Analysis Briefs. October 2003; and
http://www.pancanal.com.
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Panamanian use, which has included refurbishing the Panamanian railroad by Kansas City
Southern Railways, transforming the former Albrook base into residential housing, and
developing a small foreign processing zone in the former Ft. Davis.11
The Panama-Pacific Special Economic Area (PPSEA) is perhaps the most ambitious of these
projects. This public-private partnership, established in law, aspires to convert the former Howard
Air Force Base into a “world class business center,” with an emphasis on the export sector.
Existing assets include housing and office buildings, a hospital, transportation infrastructure, fiber
optic cable network, an 8,500-foot runway, and four hangar facilities. The government offers
businesses various fiscal incentives and a streamlined regulatory process. Firms are required to
commit to state-of-the-art practices that include adopting internationally accepted environmental
and labor standards.12
With the assistance of the International Finance Corporation (IFC) of the World Bank, Panama is
relying on a large global financing package to cover the initial investment needs. The project aims
at developing various businesses including computer technology, cell phone manufacturing,
international call centers (Dell already operates one on site), aeronautical industry support, and
others that require a well-trained work force. The IFC supports this project not only for its
prospects as a business venture, but because it is forward looking rather than relying on the
“maquiladora” business model common in much of the region.13
At the start of the 21st century, the canal and close ties with the United States are still defining
features of Panama’s economy, but in the past these traits have hindered Panama’s participation in
regional integration. Although part of the Central American Integration System, a broadly focused
political arrangement, Panama has declined to join the Central American Common Market,
relying instead on the canal and the large U.S. economy as its economic anchors. Panama has had
a fully dollarized monetary system since independence and is a beneficiary of U.S. unilateral
trade preferences defined in the Caribbean Basin Economic Recovery Act (CBERA), the
Caribbean Basin Trade Partnership Act (CBTPA), and the Generalized System of Preferences
(GSP).14 These historical circumstances have given Panama little incentive to become a more
open economy. Only since joining the World Trade Organization (WTO) in 1997 did Panama
begin to reduce tariff rates, an important step in preparation for an FTA with the United States.
Panama’s subregional independence and reliance on U.S. economic ties has suited the United
States as well, given its continuing interest in the Canal. An FTA with Panama may be seen as one
way for the United States to support long-established commercial interests and deepen bilateral
relations, particularly if accepted as a mutually beneficial pact with reasonably balanced political
and economic outcomes. Although many ships have outgrown the canal, its locale and prospects
for enlarging the passageway continue to reinforce Panama’s historic, albeit currently diminished,
importance for the United States as a strategic trade passage.
11 Ibid.
12 Government of Panama. Panama-Pacifico Special Economic Area Agency.
13 Ibid., and discussion with IFC official.
14 Panama’s dollarized economy has been a cornerstone of its long-term economic stability. It has safeguarded Panama
against exchange rate risk, currency mismatches, and speculative attacks experienced in other developing economies,
and eliminated the monetizing of deficits, thereby reinforcing fiscal constraint and price stability. See Moreno-Villalaz,
Juan Luis. Financial Integration and Dollarization: The Case of Panama. Cato Journal, Winter 2005. For more on trade
preferences, see CRS Report RL33951, U.S. Trade Policy and the Caribbean: From Trade Preferences to Free Trade
Agreements, by J. F. Hornbeck.
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A bilateral FTA with Panama also supported the Bush Administration’s “competitive
liberalization” trade strategy, in which negotiations were pursued simultaneously on multilateral,
regional, and bilateral levels. This multi-tiered strategy is predicated on an expectation that gains
on one level of negotiation may encourage, if not compel, breakthroughs on others. Because of
slow progress on the WTO Doha Round and the Free Trade Area of the Americas (FTAA), this
strategy played out through aggressive bilateral trade negotiations, of which the proposed Panama
FTA is one. Some, however, have questioned the bilateral approach for the asymmetrical
negotiation power the United States wields, the negative effects it may have on non-participating
countries, and the one-sided trading system that could be developing around a U.S. hub, as
opposed to a truly large regional or multilateral system.
For Panama, the proposed FTA reinforces its varied trade liberalization goals and supports
continued U.S. foreign direct investment. The services sector is already globally competitive, but
the manufacturing sector is small and the agricultural sector remains protected and uncompetitive
(see below). For Panama, the chief concern was crafting an FTA that would balance the need to
pursue openness for services, export growth and promotion for manufacturing, and adjustment
time for agriculture to become more competitive, while minimizing social displacement. The
incentive to negotiate was perhaps also enhanced by the desire to keep pace with other Latin
American countries that already have or are negotiating FTAs with the United States.
Panamanian Trade Relations
Panama is a country of 3.5 million people with a stable, diversified economy that has experienced
strong growth despite the current global economic downturn. Panama’s gross domestic product
(GDP) expanded by an average of 8.8% over the past five years, and even with the global
recession, is expected to grow by 2.5% in 2009 (see Appendix B for selected macroeconomic
data). With the exception of Costa Rica, Panama has the highest per capita income in the Central
American region, but income distribution is highly skewed, poverty remains a nagging problem,
especially in rural areas, and the unemployment rate has been high, but has also declined steadily
since 2002. Inflation has risen in recent years driven mostly by food and energy prices. Unlike
any other Latin American country, 77% of Panama’s GDP is in services, developed around the
transportation and commerce generated by canal traffic and the Colón Free Zone (CFZ). Industry
is the second most important sector, contributing 17% to GDP followed by agriculture,
contributing 6% to GDP.15
Structure and Direction of Panamanian Trade
Trade is an increasingly important part of this largely services-based economy, but as seen in
Table 1, Panama has a historically large merchandise trade deficit, exporting relatively little
compared to the amount of goods it must import. From 2001 to 2008, Panama’s annual
merchandise trade deficits ranged from $700 million to $4.7 billion. Panama’s declining terms of
trade is one factor affecting the trade balance (see Appendix B), but the large increases beginning
in 2007 reflect two important developments. First, a large rise in oil imports driven by price and
quantity, and an increase in construction machinery imports (derricks, dozers, cranes, etc.) related
15 United Nations. Economic Commission on Latin America and the Caribbean. Estudio económico de América Latina
y el Caribe 2008-2009, July 2009.
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to Panama’s strong economic growth and canal expansion. In most years, the merchandise deficit
has been offset by a services trade surplus, which has ranged from $900 million in 2001 to $3.3
billion in 2008. Such a large services component of the balance of payments is unusual for a Latin
American country, but reflects the unique aspects of the Panamanian economy. Large trade
deficits may be expected to continue as long as energy and food prices remain high and as the
canal expansion accelerates.
Table 1. Panama’s Current Account Balance
2001
2002
2003
2004
2005
2006
2007
2008
Merchandise Trade Balance ($ million)
-696 -1,035 -1,202 -1,537 -1,558 -1,712 -3,382 -4,714
Services Trade Balance ($ million) 890
968
1,240
1,337 1,420 2,212 2,818
3,262
Source: United Nations Economic Commission on Latin America and the Caribbean. Estudio económico de
América Latina y el Caribe, 2008-2009, July 2009.
Panama places a strong emphasis on increasing exports as a driver of economic growth, pointing
to the Panama Pacific Special Economic Area, Colón Free Zone (see below), and, to a lesser
extent, the small export processing zones and nontraditional agricultural products as opportunities
to execute this vision. Panama is a global trader and since 2002 has ratified FTAs with Singapore,
Taiwan, El Salvador, Chile, the Dominican Republic, Costa Rica, Nicaragua, Guatemala, and
Honduras. In addition to the United States, it is currently negotiating an FTA with Canada.
Panama nonetheless remains closely tied to the United States as its dominant trading partner,
which as a single country is a larger trading partner than any of the world’s major regions.
In 2008, the United States accounted for some 39.2% of Panamanian exports and 29.7% of its
imports (see ). The European Union is the second largest export market with a 30.5% export
share, but accounts for only 6.5% of Panamanian imports. The Latin American countries
collectively are Panama’s third largest export market with 16.2%, and have a 22.0% import share.
Panamanian trade has two distinct elements of importance on the import side, as seen in Figure 2.
Over 9% of imports entered Panama through the Colon Free Zone (CFZ), discussed in detail
below. In addition, another 15.1% of oil imports entered through the Oil Import Zone (OIZ). Most
of these imports originated in the United States, Latin America, and the Caribbean.
Panama is one of the few Latin American countries with which the United States has a
merchandise trade surplus, and although relatively small, it is by far the largest in the region.
Panama runs a sizeable trade deficit with Latin America; its largest Latin American trade partners
are Honduras, Mexico, and Colombia. Panama also imports significant quantities of oil from
Trinidad and Tobago. Asia accounts for 10.0% of Panama’s exports, but 14.3% of its imports,
dominated by China, Japan, and South Korea.
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Figure 2. Panama Direction of Trade, 2008
Asia
United
14.3%
United
States
States
CFZ
39.2%
29.7%
9.3%
Asia
10.0%
OFZ
EU-27
Other
15.1%
6.5%
4.1%
Other
LAC
EU-27
3.2%
LAC
16.2%
30.5%
22.0%
Panama Exports, Total = $1,126 million
Panama Imports, Total = $8,896
million
Data Source: Global Trade Atlas.
The Colón Free Zone
A distinct feature of Panama’s trade regime is the Colón Free Zone (CFZ), which with the
exception of Hong Kong, is the largest duty free zone in the world. The vast trade volume that
traverses the Panama Canal, multimodal transportation infrastructure, modern financial sector,
and Panama’s central location in the Americas make Colón a logical, if not ideal, place for a duty
free zone. It serves as a “one stop shop” for both Latin American buyers, and sellers from the rest
of the world, including Asia and the United States. Sellers operate showrooms targeted at small-
and medium-sized buyers, who make wholesale purchases of goods for retail sale in their
respective countries. Goods are typically repackaged in smaller lots, priced in the local market
currency, and transferred to the purchasing country without incurring income, value added, or
transfer taxes. Most CFZ trade is in electronics, clothing, jewelry, and other luxury goods.
Buyers benefit from the ability to purchase in small lots, reduced travel costs, consolidated
shipping, improved shipping times, and credit offered by sellers. The sellers benefit from
reaching smaller Latin American markets in one location and reduced tax and transaction costs.
Panama benefits from the 20,000 direct jobs the CFZ creates and the public revenue they
generate. CFZ trade is reported as a separate component of Panama’s trade statistics and only
those goods entering the Panamanian economy are recorded as imports. In 2008, CFZ trade added
a net $807 million to the Panamanian trade balance.16
The CFZ is frequently associated with a number of illicit activities including money laundering,
illegal transshipment, trademark and other intellectual property violations. In part, this is a
16 Data from Global Trade Atlas. Discussion based on U.S. Department of Commerce. U.S. Commercial Service.
Doing Business In Panama: 2008 Country Commercial Guide for U.S. Companies. February 21, 2008 and author’s
interviews with CFZ representatives, September 21, 2005.
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reputation that Panama as a whole has been fighting since the military dictatorship, which was
widely known for its flagrant disrespect of the law, if not outright corruption. Panama’s proximity
to Colombia and headquarters as a transshipment point helped fuel this perception.
The CFZ has attempted to counter this reputation. The zone itself is an enclosed commercial area,
encircled by and under the supervision of, customs and other law enforcement agencies of the
Republic of Panama. In addition, both the Colón Free Zone User’s Association and the CFZ
Administration have a strict code of conduct and argue that illicit activity is also policed by
individual companies because a bad reputation hurts those dedicated to making the CFZ a world
class trading center. Even the accusation of an infraction can lead to a suspension of the license
needed to operate in the zone. Cash accounts for only 10% of transactions and there is careful
monitoring of all goods that move in and out of the zone through electronic tracking systems.17
U.S.-Panama Merchandise Trade
U.S.-Panamanian merchandise trade is small.18 In 2008, the United States exported $4,913
million worth of goods and imported $377 million, producing a U.S. trade surplus of $4,536
million, the largest in the Western Hemisphere. Still, Panama ranked as only the 40th largest
export market for U.S. goods and 97th for imports. Major U.S. exports, as seen in Table 2, include
oil and mostly capital- and technology-intensive manufactured goods such as aircraft,
pharmaceuticals, machinery, medical equipment, and motor vehicles.
The United States imports relatively little from Panama, accounting for the growing U.S.
merchandise trade surplus. Most imports are primary products; 26% is seafood, mostly fresh fish
and shrimp. Repaired goods are number two accounting for 25% of total imports from Panama.19
Commodity trade includes crude oil, precious metal (mostly gold), fruit, sugar, and coffee, which
together account for one-third of total imports. Unlike the Central American countries, where
U.S. sensitivities to textile and apparel trade run high, Panama trades little in this sector.
Panama’s agricultural exports, particularly sugar, presented the more difficult negotiation issue.
17 Colón Free Zone User’s Association. Rules of Conduct for the Members of the Colón Free Zone Users’ Association,
1995; and author’s interviews with representatives from agencies mentioned.
18 Services trade data are not available for smaller U.S. trading partners, including Panama.
19 Technically classified in the Harmonized Tariff System (HTS) as “products of the United States when returned after
having been exported, without having been advanced in value or improved in condition by any process.”
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Table 2. U.S.-Panama Merchandise Trade, 2008
(top ten U.S. exports and imports by $ value)
U.S. Exports
$ Value
% of
% of
million
Total
U.S. Imports
$ Value
million
Total
1. Oil (not crude)
1,820.8
37.0
1. Fish/Seafood:
97.3
25.8
2. Machinery
537.8
11.0
2. Repaired Goods
93.1
24.7
3. Electrical mach.
329.0
6.7
3. Gold
44.2
11.7
4. Vehicles
227.3
4.6
4. Crude Oil
34.9
9.2
5. Repaired Goods
218.3
4.5
5. Sugar
16.2
4.3
6. Aircraft
188.2
3.8
6. Coffee
15.4
4.1
7. Cereals
160.3
3.3
7. Edible Fruit
13.9
3.7
8. Perfume
116.2
2.4
8. Aluminum
5.5
1.5
9. Optical/Med. Equip
108.1
2.2
9. Elec. Mach.
4.6
1.2
10. Plastics
90.5
1.8
10. Copper
4.5
1.2
Other 1,117.7
22.7
Other
329.5
12.6
Total 4,913.3
100.0
Total
377.0
100.0
Source: Global Trade Atlas.
U.S. Foreign Direct Investment
Panama has no formal restrictions on capital flows, does not discriminate between foreign and
domestic investment, and maintains bilateral investment treaties with the United States and many
European countries. Critics have pointed out, however, that the legal environment can be
cumbersome and that Panama’s relatively high labor costs (for the hemisphere) and inflexible
labor laws can be a frustration if not an impediment to U.S. foreign direct investment (FDI).20
Still, U.S. companies are well represented in Panama, including the largest container port facility
in the region, multiple financial institutions, transportation firms, and manufacturing facilities
from various sectors. Like other countries pursuing an FTA with the United States, Panama seeks
closer ties for the continued FDI that may be generated from having a permanent rules-based
trade relationship with a large trading partner.
U.S. FDI represents over a third of total FDI in Panama. Table 3 compares U.S. FDI in Panama to
other regional destinations. The dollar value of U.S. investment in Panama is often nearly equal to
or higher than that in the five Central American countries combined, and amounts to some 28% of
Panama’s GDP, compared to only 6% for Central America. Plans to widen and improve the canal
will likely provide an opportunity for some $5 billion of investment in the canal itself, and
perhaps related large amounts of FDI for other sectors of the economy with a significant U.S.
presence.
20 U.S. Department of Commerce, Doing Business In Panama: 2008 Country Commercial Guide for U.S. Companies.
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Table 3. U.S. Foreign Direct Investment in Panama, Mexico, and Central America
($ millions)
2001 2002 2003 2004 2005 2006 2007 2008
Panama
5,141 5,842 5,409 4,919 4,826 4,636 6,509 7,243
Mexico
52,544 56,303 59,851 63,384 73,687 82,965 91,259 95,618
Central
America 2,994 3,199 2,333 4,884 3,902 3,595 5,315 7,515
Source: U.S. Department of Commerce. Bureau of Economic Analysis. BEA website. Data are stock of foreign
direct investment (FDI) presented on a historical-cost basis.
Summary of Trade Negotiations and the Proposed
U.S.-Panama FTA21
Panama approached the United States for a stand-alone FTA, preferring to avoid a direct link to
the U.S.-Dominican Republic-Central America Free Trade Agreement (CAFTA-DR).22 Panama
wanted to maximize an FTA’s potential to win U.S. congressional approval by emphasizing the
historical and strategic nature of the U.S.-Panamanian relationship, while separating the
negotiations from the divisive CAFTA-DR accord. Panama’s service economy, small textile and
apparel industry, and limited integration with the Central American economies also bolstered the
case for separate negotiations.23 Another unique feature of the FTA negotiations was the treatment
of business issues with respect to the Panama Canal Area. Its status as an autonomous legal entity
under the Panamanian Constitution required separate negotiations for government procurement,
labor, investment, and other areas. The United States is the only country with which Panama has
been willing to negotiate issues related to the canal area in an FTA.
The proposed agreement was completed in ten rounds of negotiation, concluding on December
16, 2006 and in general follows the text framework of earlier FTAs. It was signed on June 28,
2007 following some significant last minute changes to the labor, environment, intellectual
property rights, and government procurement chapters to accommodate new commitments agreed
to by the USTR and bipartisan congressional leadership. Market access schedules, drawn from
previous FTA templates, reflect both U.S. and Panamanian interests, as do other market access
provisions.
Congress requires that the United States International Trade Commission (USITC) make an
economic assessment of the potential impact of an FTA on the U.S. economy. The analysis
usually is done with both a general equilibrium model to estimate economy-wide changes and a
partial equilibrium model to estimate sector or industry-level changes. In Panama’s case, there
was insufficient data to make a meaningful estimate from a general equilibrium model, and so
detailed estimates of how the FTA might affect U.S. economic growth, employment, trade, and
21 This summary reflects information in the final text of the proposed FTA, released on July 2, 2007.
22 For a discussion of the CAFTA-DR and a deeper understanding of the regional economic implications of freer trade,
see CRS Report RL31870, The Dominican Republic-Central America-United States Free Trade Agreement (CAFTA-
DR), by J. F. Hornbeck.
23 Inside U.S. Trade. Panama FTA Unlikely To Be Docked Into CAFTA as Talks Set to Begin. April 23, 2004.
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income were not offered. In general, however, through other quantitative and qualitative
indicators, the USITC concluded that because Panama’s economy is very small relative to that of
the United States, the likely overall effect on the U.S. economy will be similarly very small.24
At the sector level, the USITC finds that the “main effect” of the FTA would likely be to increase
U.S. exports, while causing little growth in U.S. imports from Panama. In general, the estimates
are in line with general expectations based on: (1) the small amount of goods imported from
Panama; (2) the small production capacity of Panama; and, (3) the fact that most imports from
Panama (96% by value) already enter the United States duty free through either normal trade
relations (NTR) or preferences provided by the Caribbean Basin Initiative (CBI) programs or the
Generalized System of Preferences (GSP).25
Specific estimates suggest that when fully implemented, the largest growth potentially will accrue
to U.S. exports of rice (145%), pork (96%), beef (94%), and passenger vehicles (43%). Again,
these would amount to a very small dollar value increase given that, with the exception of rice,
the U.S. exports of these goods to Panama represent less than two-tenths of one percent (0.2%) of
U.S. exports to the world and even a smaller portion of U.S. production. With respect to the
services provisions in the FTA, they exceed WTO commitments, but the gains for U.S. providers
are also expected to be small, with the potential for further gains once the Panama Canal
expansion project is fully underway.26
Below is a more detailed discussion of the major negotiation areas and a description of the issues
that have been of particular interest to Panama and the United States, including the U.S.
Congress. Where relevant, changes made pursuant to the May 10, 2007 bipartisan “New Trade
Policy for America” are discussed.
Market Access
Market access (chapter 3 of the FTA) covers provisions that govern barriers to trade such as
tariffs, quotas, safeguards, other nontariff barriers, and rules of origin (chapter 4). The proposed
U.S.-Panama FTA would replace unilateral trade preferences provided to Panama under the
Caribbean Basin Economic Recovery Act (CBERA), the Caribbean Basin Trade Partnership Act
(CBTPA), and the Generalized System of Preferences (GSP), under which most imports from
Panama enter the United States duty free along with those entering under the normal trade
relations schedule. Panamanian agricultural products face some of the highest barriers,
particularly sugar, which is subject to a tariff rate quota (TRQ). U.S. exports face tariffs, with
most falling in the range of 3-10%, plus the additional 5% transfer tax, which applies to domestic
goods as well.
Market access provides for national treatment for traded goods of both parties, with a detailed
schedule defining the progressive elimination of customs duties for manufactured and agricultural
goods. There are nine staging categories that classify each country’s goods based on the time to
tariff elimination, with the most sensitive products given lengthier phase out of tariffs. The USTR
reports that tariffs on 88% of industrial and commercial goods would go to zero immediately,
24 USITC, U.S.-Panama Trade Promotion Agreement: Potential Economy-wide and Selected Sectoral Effects, pp. 1-1
and 1-5.
25 Ibid., pp. 1-5, 2-1, and 2-7.
26 Ibid., pp. 2-1 and 2-7.
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with the remaining tariffs phased out over a ten-year period. Similarly, over half of U.S. farm
exports would receive immediate duty free treatment.27 Tariffs on some agricultural goods would
remain in place longer, with some taking up to 17 years to be completely eliminated. Safeguards
have been retained for many products only for the period of duty phase out, but antidumping and
countervailing duties were not addressed, leaving these trade remedy laws fully operational, as
required under TPA.
Rules of origin define which goods would be eligible for duty-free treatment based on the country
of origin of their content. Rules of origin are intended to prevent transshipment of goods made
from materials originating in countries outside the agreement. They are particularly pertinent to
apparel and textile trade. Apparel products made in Panama would be given duty-free treatment if
they are made from U.S. or Panamanian fabric and yarns (under the yarn forward rule).
Agricultural Trade
U.S. domestic agricultural support programs are not addressed in the proposed FTA, which
focused on reducing tariffs, adjusting quota levels, and cooperating more closely on sanitary and
phytosanitary (SPS) rules and enforcement. Market access was particularly difficult for four
highly protected products: pork; poultry; rice; and sugar. The United States was basically
“offensive” on pork, poultry, and rice, expecting to open further Panama’s markets as soon as
possible. It was “defensive” on sugar, attempting to limit increases in the sugar quota that might
disrupt operations of the sugar program as defined in legislation. Panama’s position was the
reverse, pressing to minimize increases in U.S. exports of pork, poultry, and rice, and to increase
its U.S. sugar export quota.
The U.S. sugar program reflects a historical commitment to protect the income of sugar beet,
sugar cane, and sugar processing firms with below-prime-rate loans, limitations on sales in the
domestic market, and tariff rate quotas (TRQs). TRQs restrict imports with prohibitively high
tariffs on imports above a defined quota amount, as defined in WTO rules agreed to by the United
States. In fiscal year 2008, the above-quota tariff rate on sugar was estimated to be 86%.28 For
comparative purposes, on average, Panama harvests only a quarter of the sugar produced by each
of the five Central American countries, but it still plays a disproportionally important role in the
agricultural sector. Sugar constitutes: 1) a third of Panama’s total agricultural exports, compared
to less than 10% for the Central American countries, and; 2) 41% of agricultural exports to the
United States. The U.S. market consumes 76% of Panamanian sugar exports, compared to less
than 10% of sugar exports from Central America.
Given the dependence of sugar producers on the U.S. market, in part driven by Panama’s
relatively high wage rates that make it cost prohibitive to produce for the world market, the
Panamanians argued that even a relatively small quantitative increase in their portion of the U.S.
sugar quota would have a large benefit for their industry. The U.S. sugar industry, however,
27 Office of the United States Trade Representative. Free Trade with Panama: Summary of the Agreement. January
2007.
28 CRS derived this effective ad valorem equivalent by applying the current U.S. over-quota tariff of 33.87 cents per
kilogram for “raw cane sugar” against the FY2008 import unit value for such imports entering under HTS 17011110.
The economic effect is to raise the price of sugar in the United States above the world price, increasing income to
sugar-producing industries, but raising costs to sugar-using firms and consumers. See: CRS Report RL33541,
Background on Sugar Policy Issues, by Remy Jurenas. p. 7.
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continued to resist the inclusion of sugar in bilateral FTAs, arguing that the WTO is the forum for
addressing domestic support programs and TRQs in the agricultural sector.
For Panama, pork, rice, and poultry were the most sensitive products. These are also protected by
TRQs, with in-quota tariffs of 15% and out-of-quota tariffs rising to 74%, 103%, and 273%,
respectively. Pork and poultry have a special issue related to the consumption of white versus
dark meat. The United States consumes considerably more white meat than dark, leaving a
disproportional amount of dark cuts for export, which face the highest tariffs. In Panama, as with
much of the world, dark meat is preferred. The concern revolved around U.S. producers’
willingness to sell dark meat cuts at a low price in foreign markets, putting downward pressure on
prices and hurting domestic producers in those countries. The Panamanians argued that because
of the relatively high profit margins on white meat in the United States, on a cost allocation basis,
U.S. producers can actually afford to sell the dark meat at below cost. The cost accounting can be
debated, but concerns over the price effect in the Panamanian market remained unchanged.
Panama’s rice industry, which supplies over 90% of the domestic demand, also argued that
opening the market to U.S. subsidized rice would decimate their industry, which, because of its
protection, sells rice considerably above the world price. In fact, the USITC report estimates that
when fully implemented, the FTA will have the greatest impact on U.S. rice exports. Although the
rice provisions will not be fully implemented until year 20 of the agreement, for milled rice, the
TRQ for the first year will be 20 times the current level of U.S. exports to Panama, which may be
expected to affect rice growers shortly after implementation, perhaps causing them to shift
production to other crops, or leave farming for alternative employment.29
Panamanian agriculture represents only 6% of GDP, but 17% of employment. These numbers
point to both an inherent inefficiency, due in part to protection, but also the strong role agriculture
plays in supporting rural employment and social stability. Agriculture’s 17% of national
employment actually supports 40% of the country’s population living in rural areas, most of
whom exist at or below the poverty line. Given the potential to dislocate much of the poor in the
country, the Panamanians argued that opening the agricultural sector too quickly to the large
production capacity of the United States would have been highly detrimental to the social
structure of the rural economy, leading to increased unemployment, poverty, and rural-urban
migration. For these reasons, Panama wanted a slow transition to open markets in the agriculture
sector, as well as an increase in the sugar quota to boost employment. This would also buy time
for Panama to develop its non-traditional export crops, such as melons, palm oil, and pineapples,
which some view as the future of this sector.
The compromise struck in the proposed FTA would provide duty-free treatment for over half of
U.S. farm exports to Panama including high quality beef, poultry products, soybeans, most fresh
fruits, and a number of processed goods. Remaining tariffs would be phased out between years 7
and 17 of the FTA. Rice tariffs, which protect one of Panama’s most sensitive products, would
remain in place until year 20 of the FTA. U.S. exports of rice and other products would receive
expanded quotas under the Panamanian tariff rate quota system. The United States agreed to give
Panama an additional 7,000 metric tons of sugar imports in the first year under a three-tiered
TRQ system, which would grow by 1% per year, capped eventually for some types of sugar.30
29 USITC, U.S.-Panama Trade Promotion Agreement: Potential Economy-wide and Selected Sectoral Effects, pp. 2-7,
2-10, and 2-18 through 2-19.
30 Inside U.S. Trade. Panama FTA Offers Limited Sugar Access; Labor Changes Possible. December 22, 2006.
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Other protective measures for agriculture were negotiated. Whereas export subsidies, voluntary
restrain agreements (VREs), and import licensing are generally prohibited, TRQs, safeguards, and
a sugar compensation mechanism would be allowed. The sugar mechanism gives the United
States the option to compensate Panamanian sugar producers in lieu of giving Panamanian their
exports duty-free treatment. This provision might be used if the U.S. sugar program were
threatened with disruption.
Sanitary and Phytosanitary Standards (SPS)
SPS was one of the most difficult issues to resolve. Although understood as necessary to ensure
the safety of agricultural imports, SPS standards can be a burden, and are often denounced as a
veiled form of protectionism. Panama’s SPS standards, on the whole, are considered to be very
high and meet or exceed WTO standards. The USTR, however, has long raised concerns over
procedural transparency with respect to phytosanitary permits and also Panama’s requirement that
imports of poultry, beef, and pork, its most protected products, come from processing plants that
have been individually inspected by Panamanian officials. The United States contends that this
process has often been cumbersome, drawn out, and ultimately very costly to U.S. producers.31
The United States wanted Panama to recognize the USDA certification process as equivalent to
Panamanian standards for the purpose of securing unimpeded entry of U.S. meat exports. This
issue became highly controversial during the ninth round of negotiations, when U.S. negotiators
proposed this agreement be put into a formal side letter. Panama responded by noting that the SPS
chapter had already been closed, that its meat inspection standards are among the highest in the
world, and that a last minute effort to change SPS provisions raised sovereignty issues in Panama
by potentially requiring Panama to lower its standards in some cases.32
As part of the resolution, Panamanian officials visited the United States to review the food safety
inspection system for meat and poultry and found that accepting the U.S. system would pose no
sanitary threat to Panama. This understanding was formalized in a separate bilateral agreement
between the two countries, along with a streamlined import documentation system. Signed and
entered into force on December 20, 2006, the agreement states that for meat, poultry, dairy, and
other processed products, Panama agrees to accept U.S. sanitary, phytosanitary, and regulatory
systems as equivalent to those of Panama and will no longer require individual plant inspections.
Panama has since amended its laws accordingly.33
Textiles and Apparel
In general, textiles and apparel make for difficult market access negotiations, but Panama
produces very little of these goods. The proposed FTA would provide immediate duty-free access
for all textile and apparel goods, subject to rules of origin. The permanence of the provisions and
more accommodating measures provide a benefit to the small Panamanian industry. Safeguard
31 United States Trade Representative. 2007 National Trade Estimate Report on Foreign Trade Barriers. Washington,
D.C. March 2007. p. 452.
32 Berrocal, Rafael E. Panamá Reconoce Sistema Sanitario de Estados Unidos. Presna.com. February 22, 2006 and
Inside U.S. Trade. Dispute Over Agriculture Inspections Holding up U.S.-Panama FTA Talks. January 23, 2006. Also
see USTR Press Release, February 13, 2006.
33 United States-Panama Agreement Regarding Certain Sanitary and Phytosanitary Measures and Technical Standards
Affecting Trade in Agricultural Products. December 20, 2006.
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measures would allow duties to increase on imports in which a sudden increase in volume either
threatens or actually harms U.S. producers. The text also provides for short supply lists of fabrics,
yarns, and fibers that otherwise would face duties. The market access provisions were not the
major apparel issue. Because Panama is a huge transshipment point for international trade and has
its own duty free zone, the main concern was to assure U.S. apparel producers that there would be
effective customs cooperation to deter illegal transshipment of goods that do not meet rules of
origin. There is an extensive provision on consultation, monitoring, and onsite visit procedures in
support of adhering to the rules of origin.34
Government Procurement
Transparency in the bidding process for government contracts was listed as one of the most
important issues by the U.S. Chamber of Commerce in Panama.35 Some of the concerns
expressed were addressed in the 2006 amendments to the procurement law, which modernized
(e.g., through the use of Internet procurement system) and made more transparent procurement
regulations and government purchasing information. A separate administrative court for public
contracting disputes was also created. These changes enhanced Panamanian laws that already
require transparency in the bidding process. Panama has not acceded to the WTO Government
Procurement Agreement, which the United States has encouraged.36
The government procurement chapter differs from earlier FTAs by stating that a firm’s adherence
to “acceptable” environmental and labor standards may be included as a standard in the bidding
and procurement process. The technical specifications article states that it is not intended to
preclude a procuring entity from using technical specifications to promote conservation of natural
resources, or to require a supplier to comply with generally applicable laws regarding
fundamental principles and rights to work; and acceptable conditions of work with respect to
minimum wages, hours of work and occupation safety and health in the territory in which the
good is produced or the service is performed.
Government procurement takes on a greater importance when considered in light of the proposed
expansion of the Panama canal and related prospects for large long-term investments. The
Panama Canal Authority (PCA) operates independently of the national government and Panama
required separate negotiation apart from the regular government procurement chapter. Panama
negotiated to maintain the canal authority dispute settlement system within the proposed FTA, as
well as to keep small business set aside provisions for Panamanian firms. In addition, for 12 years
after the agreement takes effect, Panama may set aside contracts let by the PCA to Panamanian
firms subject to clear notice of intent to do so and limitations on the size of contracts. The text
otherwise addresses U.S. concerns over nondiscriminatory, fair, and open government
procurement procedures for all national government authorities. Like the PCA, subnational
governments (e.g. states and municipalities) are not required to uphold the government
procurement provisions, but those willing to do so appear in an appendix of the proposed FTA.
34 Inside U.S. Trade. U.S. Panama FTA Includes Restrictive Textile Rules of Origin. January 5, 2007 and USTR, Free
Trade with Panama, p. 2.
35 Panamcham. Issues of Importance in the U.S.-Panama FTA Negotiations, March 12, 2004.
http://www.panamcham.com/business_center/FTA.asp.
36 USTR, 2007 Foreign Trade Barriers, p. 503.
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Investment
Panama has a well-developed financial services industry to support the flow of capital and is an
important regional financial center. U.S. firms invest heavily in Panama relative to other Latin
American countries and a permanent rules-based trade agreement may be seen as enhancing this
relationship. Panama signed a bilateral investment treaty with the United States in 1991, the first
in the region, which includes investor-state provisions and further guarantees of the free flow of
transfers under a 1998 law. Although the Panamanian government has been responsive to U.S.
foreign investment interests, concerns have arisen in particular cases involving investment in
highly regulated industries. Resolution of these concerns facilitated the FTA negotiations and the
potential exists for further significant foreign investment in Panama, including the canal
expansion and reverted areas of the former canal zone.37
The FTA text provides for clear and enforceable rules for foreign investments, which is largely
accomplished by “standard” language (identical to the CAFTA-DR) requiring national and most-
favored-nation (nondiscriminatory) treatment. It further clarifies rules on expropriation and
compensation, investor-state dispute settlement, and the expeditious free flow of payments and
transfers related to investments, with certain exceptions in cases subject to legal proceedings
(e.g., bankruptcy, insolvency, criminal activity). Transparent and impartial dispute settlement
procedures provide recourse to investors.
Two investment issues stand out. First is the investor-state provision, which was controversial
during the CAFTA-DR debate, but is commonly used in U.S. bilateral investment treaties (BITs)
and in earlier FTAs. It allows investors alleging a breach in investment obligations to seek
binding arbitration against the state through the dispute settlement mechanism defined in the
Investment Chapter. U.S. investors have long supported the inclusion of investor-state rules to
ensure that they have recourse in countries that may lack the institutional capacity to adequately
protect the rights of foreign investors. Since bilateral investment treaties are usually made with
developing countries that have little foreign investment in the United States, it was not anticipated
that these provisions would be applied in the United States. Circumstances changed under
NAFTA, when investor-state provisions gave rise to numerous “indirect expropriation” claims
against subnational (state) governments in the United States, Mexico, and Canada over
environmental and other regulations.38
Although none of the claims filed against the United States has prevailed, Congress instructed in
Trade Promotion Authority (TPA) legislation that future trade agreements ensure “that foreign
investors in the United States are not accorded greater substantive rights with respect to
investment protections than United States investors.” In response, Annex 10-B of the proposed
U.S.-Panama FTA states that “except in rare circumstances, nondiscriminatory regulatory actions
by a Party that are designed and applied to protect legitimate welfare objectives, such as public
health, safety, and the environment, do not constitute indirect expropriations.” This provision,
along with one that allows for early elimination of “frivolous” suits, is intended to address
congressional concerns.
37 Ibid., p. 475.
38 Indirect expropriation refers to regulatory and other actions that can adversely affect a business or property owner in
a way that is “tantamount to expropriation.” This issue and many cases are discussed in CRS Report RL31638, Foreign
Investor Protection Under NAFTA Chapter 11, by Robert Meltz.
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Second, Annex 10-F of the proposed FTA seeks to reserve certain rights with respect to disputes
filed under Section - B of the investment chapter that may affect the Panama Canal Authority
(PCA). First, it clarifies that Panama has sole authority over the canal and its operations, and
should a claim be made against the PCA, the dispute tribunal “may not order attachment or enjoin
the application of a measure that has been adopted or maintained by the Panama Canal Authority
in pursuance of ...” its responsibility for the canal. Second, a claim arising from acts of the PCA
that alleges a breach of the investment agreement must first be made to the PCA, where it will
have three months to respond before the claim may be made to the dispute settlement panel under
the proposed FTA.
Services
Services trade was negotiated in multiple chapters and includes financial services, shipping,
telecommunications, professional services, and e-commerce. Panama is a service-based economy,
has many competitive services industries, and is known for its “open regulatory environment for
services.” In general, the FTA provides for market access commitments in services that exceeds
the WTO General Agreement on Trade in Services (GATS). With the possible exception of future
canal expansion projects, the USITC estimates that the new commitments, although important
changes, will have only a small economic impact on U.S. provides.39
Panama does require local licensing for many professionals to practice in the country, which the
United States wanted to change, but was only partially successful in some cases (e.g., lawyers).
Panama was the first country in Latin America to pass e-commerce legislation. It recognizes the
legal standing of electronic transactions and provides for the creation of an oversight agency. The
United States pressed for even greater transparency in regulatory procedures and U.S. business
groups identified services as a critical negotiating area given U.S. competitive advantages and the
large services sector in Panama.40
Equal ability to compete in retail trade, express delivery, and financial services, including
insurance and portfolio management, was achieved in the proposed FTA, an issue of primary
importance to the United States. In particular, restrictions on investment in retail trade and access
to contracts let by the Panama Canal Authority were either eliminated or reduced. Greater access
to other professional services and transparency in licensing and other accreditation were clarified.
To the extent that restrictions in these areas are reduced, U.S. firms are better able to compete in
the largest sector of the Panamanian economy, the one most likely to grow with canal expansion
and increased merchandise trade through the canal. Panama wanted greater transparency in the
U.S. state-level financial services regulatory system to help ease the possible opening of
Panamanian banks in select U.S. states. The United States government argued, however, that it
was unable to make commitments on state-level financial services regulatory matters.
Intellectual Property Rights
Strengthening intellectual property rights (IPR) was a major U.S. priority, in particular by having
Panama’s standards approximate more closely those of the United States and by securing
Panama’s commitment to join an array of international agreements related to IPR protection. The
39 USITC, U.S.-Panama Trade Promotion Agreement: Potential Economy-wide and Selected Sectoral Effects, p. 3-1.
40 USTR, 2007 Foreign Trade Barriers, pp. 455-456.
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most contentious IPR issues revolved around patent and data exclusivity issues related to
pharmaceutical products.
The USTR reports that Panama’s IPR laws and institutional support have improved with the
creation of courts dedicated specifically to IPR cases. Panama updated its patent law in 1996 and
has a law governing trademark protection. Panama signed on to the World Intellectual Property
Organization (WIPO) Copyright Treaty and Performances and Phonographs Treaty. The 1994
copyright law improved protection and increased the options to prosecute violators. The United
States continues to encourage Panama to accede to additional IPR treaties, as now required in the
proposed FTA, and to remain vigilant in its antipiracy commitment, a primary concern given the
large amount of goods that are shipped through the Canal Free Zone.41
IPR provisions in the proposed FTA exceed those in the WTO. They provide that all businesses
receive equal treatment and that Panama ratify or accede to various international IP agreements.
Trademark registration is better enforced through a transparent online process and special system
to resolve disputes over internet domain issues, among other requirements. Copyright provisions
clarify use of digital materials (exceeding TRIPS standards) including rights over temporary
copies of works on computers (music, videos, software, text), sole author rights for making their
work available online, extended terms of protection for copyrighted materials, strong anti-
circumvention provisions to prohibit tampering with technologies, the requirement that
governments use only legitimate computer software, the prohibition of unauthorized receipt or
distribution of encrypted satellite signals, and rules for liability of internet service providers for
copyright infringement. Patents and trade secrets rules conform more closely with U.S. norms.
End-user piracy is criminalized and all parties are required to authorize the seizure, forfeiture, and
destruction of counterfeit and pirated goods. The text also mandates statutory damages for abuse
of copyrighted material.42
Pharmaceutical Issues
The proposed U.S.-Panama FTA adopts new IPR pharmaceutical standards that reflect a
bipartisan understanding as developed by congressional leadership and the USTR in the May 10,
2007 “New Trade Policy for America.” They affect three important issues. The first and perhaps
most complicated issue is data exclusivity. To bring a patented drug to market, a drug company
must demonstrate through clinical trials that the drug is both safe and effective, a time-consuming
and costly process. Under U.S. law, the data used to establish these claims are protected for a
period of five years from the time the patented drug is approved for use in a country’s market, the
so-called data exclusivity term. Under this protection, regulatory agencies cannot use these data
or rely on references to such data in the certification of a generic version of the medicine or drug
until the data exclusivity period ends. This issue was raised by Members of Congress during the
CAFTA-DR debate, but was only partially addressed in a side agreement (“understanding”)
assuring that relevant WTO rules would be in force. Critics, however, wanted the side agreement
to include an explicit exception to the data protection requirement for cases where compulsory
licensing under the WTO rules might be invoked, and to include the language in the body of the
FTA.43
41 USTR, 2007 Foreign Trade Barriers, p. 454.
42 U.S.-Panama FTA, Chapter 15.
43 U.S. Congress. House of Representatives. Committee on Ways and Means. Dominican Republic-Central America-
(continued...)
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Congressional input led to significant changes to the Panama text. The IPR chapter provides that
if a company files to bring to market a new drug in a foreign country (e.g., Panama), and the
foreign regulatory agency relies on marketing approval of the initial filing in the home country
(e.g., the United States) for approval in Panama, and the Panamanian regulatory agency approves
the drug within six months of that filing, the data exclusivity term begins at the time the drug was
approved in the United States, not Panama. This provision is intended to speed the entry of
generic drugs into Panama’s market by encouraging both drug companies and foreign
governments to engage in the approval process as efficiently as possible. Because the six-month
rule effectively reduces the data exclusivity term in Panama, drug companies are encouraged to
file as soon as feasible to maximize the time their data may be protected in Panama after
receiving market approval. Because countries must approve within the sixth-month rule to benefit
from it, they are encouraged to put in place an efficient drug certification process.44
In addition, there is language in the IPR chapter stating that in cases such as epidemics extreme
urgency or national emergency, and other cases of public non-commercial use, a waiver from the
data exclusivity laws would be allowed. The WTO public health provisions allow for compulsory
licensing, circumventing patents in public health emergencies or other circumstances of pubic use
deemed necessary. In the case of the U.S.-Panama FTA, which requires a period of data
exclusivity not mandated by the WTO, the waiver is extended to the data exclusivity term, as
well.
A second issue is patent term restoration, which allows for the retroactive application of patents
in cases where the approval process for a patent extends beyond some legal- or regulatory-
determined standard period of time. Although there are provisions that require term restoration for
patents in general, in the case of pharmaceutical products, term extension is only optional.
The third issue is patent linkage. This term refers to linking the sanitary registration process
(done, for example, by the Food and Drug Administration in the United States) with the patent
registration process. U.S. firms effectively wanted mandatory linkage that would automatically
check for patent infringement when an application for bringing a drug to market is made in a
foreign country sanitary registration office. The Panama agreement was amended to make patent
linkage voluntary, and allows for administrative or judicial remedies to expedite patent
challenges.
Public health advocates have long pushed for re-balancing international rules in ways that would
facilitate the introduction of lower cost generic equivalents into developing countries. The revised
IPR chapter in the Panama FTA supports congressional interest in pursuing this goal, although not
to the full satisfaction of some public health advocates. Pharmaceutical companies, by contrast,
lobbied against these changes, arguing that they bear their full cost through cumbersome
administration and lost revenue by the earlier introduction of generic competition. They further
argued that they count on this revenue to offset the high costs of research and development that
allows new drugs to be properly tested and approved in the first place.
(...continued)
United States Free Trade Agreement Implementation Act. H.Rept. 109-182. pp. 50-51. The side agreement is available
at http://www.ustr.gov and for a summary of the debate, see Brevetti, Rosella. CAFTA Opponents Blast U.S. Stance on
Guatemalan Data Protection Law. International Trade Reporter. BNA, Inc. March 10, 2005.
44 There are further complicated implications. This process is useful for countries with weak drug certification
mechanisms, but for those that have developed such capability, it may encourage hasty responses or circumventing the
process all together to qualify for the six-month time constraint.
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Labor and Environment
Labor and environment provisions have been highly contentious issues in trade agreements, with
considerable disagreement in Congress and elsewhere over how aggressive language in trade
agreements should be in accommodating these concerns. An important aspect of the proposed
U.S.-Panama FTA is that it adopts new standards for both the labor and environment chapters that
reflect a bipartisan understanding as developed by congressional leadership and the USTR in the
“New Trade Policy for America.” Despite the bipartisan nature of the agreement, many Members
continue to express reservations about the effectiveness of labor provisions, as well as the overall
benefits of bilateral FTAs.
The debate over labor and environmental standards reflects differences in both economic and
political perspectives. From an economic perspective, it has been argued that developing country
firms may have an “unfair” competitive advantage because their lower standards are a basis for
their lower costs, which in turn are reflected in lower prices for goods that compete with those
produced in developed countries.45 It follows from this argument that the difference in costs may
be an inducement to move U.S. investment and jobs abroad. In addition, critics have also argued
that trade agreements should not support a status quo in production standards that leads to
unacceptable working conditions and severe environmental degradation.
On the other hand, some studies have suggested that cost differentials are usually not high enough
to determine business location alone, and that productivity is the more important factor.46 Further,
many economists view trade liberalization as part of the overall development process that, in and
off itself, can promote improved social and economic conditions over the long run.47 Developing
countries are concerned with the loss of sovereignty should specific standards be defined in trade
agreements, as well as with the possibility that such provisions can be misused as a disguised
form of protectionism.
Labor Issues
Preliminary drafts of the U.S.-Panama FTA adopted the CAFTA-DR labor chapter language
verbatim. Many Members of Congress and others objected to four key aspects of this language.
First, it emphasized that a country must effectively “enforce its own labor laws,” rather than
define specific labor standards to be codified and enforced. Second, this was the only provision in
the labor chapter subject to the FTA’s labor dispute resolution process (other commitments were
45 The difference is that in most developing countries, the social costs associated with environmental degradation,
pollution, and poor working conditions may not be captured in the market price of goods (so-called external costs).
Through legal and regulatory measures, developed countries require that businesses correct for many of these social
costs, thereby internalizing them to the business, where they are then reflected in the final (relatively higher) price of
the good in the market place.
46 See Perkins, Dwight H., Steven Radelet, and David L. Lindauer. Economics of Development, Sixth Edition. New
York: W. W. Norton Company. 2006. pp. 745-746. Productivity and wage levels are highly correlated, suggesting that
lower productivity jobs gravitate toward countries with a relative abundance of low-skilled (and hence low-wage)
workers. See also Rodrik, Dani. Sense and Nonsense in the Globalization Debate. Foreign Policy. Summer 1997. pp.
30-33.
47 Some broader evidence suggests that FTAs have not “forced a race to the bottom of regulatory standards,” but rather
to the contrary, that policy convergence is affected more by countries agreeing to “norms of governance” via
cooperation through international agreements. See Drezner, Daniel W. Globalization and Policy Convergence.
International Studies Review. Vol. 3, Issue 1, Spring 2001. pp. 75 and 78.
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unenforceable). Third, labor (and environment) provisions had their own dispute settlement
mechanism separate from the process used for commercial and other disputes. Critics argued that
the labor dispute mechanism was inferior for many reasons. Fourth, language that required Parties
to the agreement only to “strive to ensure” that they do not waive or derogate from their labor law
commitments was considered both inadequate and unenforceable.48
In short, there existed a basic criticism that the labor provisions in the bilateral FTAs did not
reflect the intent of Congress in defining labor negotiating objectives in Trade Promotion
Authority (TPA) legislation, were a step backward in U.S. policy on this issue that conditions
trade benefits on meeting basic ILO labor commitments as defined in the Caribbean Basin
Initiative (CBI) and the Generalized System of Preferences (GSP), and were effectively
meaningless without a credible enforcement mechanism.49
Although supporters of the CAFTA-DR model prevailed in earlier agreements, a new bipartisan
consensus emerged with the 110th Congressional leadership that led to a significantly changed
model for bilateral FTA labor chapters. The principles of this change, as defined in the May 10,
2007 “New Trade Policy for America,” were incorporated into the labor chapters for proposed
U.S. bilateral FTAs with Panama , Peru, and Colombia. The major changes from the CAFTA-DR
model state that each country:
• shall adopt and maintain in its statutes, regulations and practices as rights, the
five core ILO labor principles: freedom of association; the effective recognition
of the right to collective bargaining; the elimination of all forms of compulsory or
forced labor; the effective abolition of child labor and, for purposes of this
Agreement, a prohibition on the worst forms of child labor; and, the elimination
of discrimination in respect of employment and occupation;
• shall not waive or otherwise derogate from, or offer to do so, in a manner
affecting trade or investment between the countries in implementing the above
commitment;
• shall not fail to effectively enforce its labor laws in accordance with the above
commitment and that each party retains the right to the reasonable exercise of
discretion in using resources to achieve this goal, provided the exercise of such
discretion is not inconsistent with the obligations of the chapter, and;
• will be required to use the dispute settlement process defined for the entire
agreement (rather than a separate process for labor disputes as defined in the
CAFTA-DR).
The change in language is intended to make commitments to ILO basic principles binding and
enforceable to the same extent as all other commitments in the proposed FTA, including having
recourse to trade sanctions. The rest of the labor chapter conforms largely to commitments in
previous bilateral FTAs. These include procedural guarantees of transparency and fairness in the
use of tribunals to enforce a Party’s labor laws and institutional arrangements that include
48 As defined by the United Nations International Labor Organization (ILO) in the Fundamental Principles and Rights
at Work and its Follow-up (1998) Declaration.
49 U.S.-Panama Free Trade Agreement. Report of the Labor Advisory Committee for Trade Negotiations and Trade
Policy (LAC). April 25, 2007. pp. 3-7, and U.S. Congress. House of Representatives. Committee on Ways and Means.
Dominican Republic-Central America-United States Free Trade Agreement Implementation Act. H.Rept. 109-182. pp.
47-50.
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creation of a joint Labor Affairs Council to oversee implementation and review of commitments
made in the Labor Chapter. A new Labor Cooperation and Capacity Building Mechanism is also
to be established.
Panama’s Labor Conditions
Panama has higher wage rates, stronger labor laws, and fewer impediments to union formation
than many countries in the region. The business community, including U.S. firms operating in
Panama, argue that the labor laws are too generous with respect to firing or downsizing the labor
force, which can actually encourage unintended responses by business, such as extended use of
temporary workers. In 1970, Panama created the Tripartite Council on Union Freedom and
Participation in Economic and Social Development with representatives from the government,
labor, and business. Its primary function is to oversee that workers’ rights are being observed in
Panama.
The U.S. Department of State has pointed out that Panama’s labor laws guarantee all the ILO
basic principles. All private-sector and most public-sector employees have the right to organize,
bargain collectively, and strike (limited for the public sector). In general, major violations of labor
laws have not been found. Nonetheless, the ILO has raised concerns about a number of ongoing
practices. These include the widespread use of temporary workers to circumvent the labor code,
the minimum requirement of 40 workers to form a union, and the use of child labor, particularly
in agricultural areas during harvest times and for domestic employment. Lax enforcement of
health and safety standards was also cited as a continuing problem.50 These issues were cited by
some Members of Congress as needing to be addressed before the FTA could be considered.51
The Colón Free Zone and the small export processing zones are all subject to national labor laws.
The Panama Canal Area presents a unique issue. Although the Canal Zone has separate statutes
governing labor, they tend to be more generous with respect to workers’ rights and compensation.
For this and other reasons, jobs in the Canal Zone are highly coveted. Workers may organize and
exercise their rights to collective bargaining, but they are prohibited from striking because of
commitments under the Panama Canal Treaties, which stipulate that the canal must be operated
without interruption.52
Environmental Issues
Environmental specialists have stressed the need to achieve multiple goals in U.S. reciprocal
FTAs. These include protecting and assuring strong enforcement of existing domestic
environmental standards, ensuring that multilateral environmental agreements are not undermined
by trade rules, promoting strong environmental initiatives to evaluate and raise performance,
developing a systematic program of capacity-building assistance, and assuring that environmental
50 U.S. Department of State. Bureau of Democracy, Human Rights, and Labor. 2008 Human Rights Report: Panama.
Washington, D.C. February 25, 2009 and American Federation of Labor and Congress of Industrial Organizations
(AFL-CIO). Panama: Labor Rights and Child Labor Reports. Washington, D.C. August 9, 2004. p. 3.
51 David J Lynch, "U.S.-Panama Trade Deal May Test Obama Goals: Congress Wants to See Bank, Tax Reforms There
First," USA Today, July 31, 2009, p. B1.
52 Panama Legislative Assembly. Law No. 19—“Whereby the Panama Canal Authority is Organized.” Chapter V—
Personnel Administration and Labor Relations. June 11, 1997.
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provisions in FTAs are subject to the same dispute resolution and enforcement mechanisms as are
other aspects of the agreements.53
At issue is identifying and attempting to ameliorate the environmental effects of trade,
particularly in developing countries that may have weak laws and lax enforcement mechanisms.
Even among environmental experts, opinions vary. Some have suggested that thus far trade
agreements have not led to catastrophic pollution nor encouraged a “regulatory race to the
bottom.” There has also been a certain acknowledged degree of success in having environmental
issues addressed in the body of FTAs, in side agreements on environmental cooperation, and
through technical assistance programs, which developing countries can use to respond to specific
problems. Advocates and many Members of Congress still note that much can be improved, such
as clarifying obligations, tightening enforcement language, and ensuring that the United States
allocates financial resources to back up promises of technical assistance.54
As with the proposed FTA labor chapter, revisions made pursuant to ideas outlined in the “New
Trade Policy for America,” reflect a bipartisan sense of that although the text recognizes
sovereign rights and responsibilities with respect to the management of natural resources, that
trade and environmental policies should be mutually supportive and dedicated to the objective of
sustainable development. The new language, therefore, strengthens the commitments to
environmental obligations and their enforcement, requiring that each country:
• adopt, maintain, and implement laws, regulations, and other measures to fulfill
their obligations under selected multilateral environmental agreements (MEAs)
listed in Annex 18.2;
• shall not fail to effectively enforce environmental laws and regulations, including
those adopted as signatories to the MEAs;
• shall not waive or otherwise derogate from, or offer thereto, from such laws
(replacing the “strive to ensure” language with “shall not”);
• adopt a commitment to policies that will promote conservation and sustainable
use of biological diversity;
• subject disputes to the FTA’s overall dispute settlement mechanism rather that a
mechanism developed solely to deal with labor and environmental disagreements
that was used in previous FTAs, and;
• meet obligations for formal cooperation among governments on environmental
issues and use of the consultation and dispute resolution mechanism in a way that
is transparent and involves public input.55
As required under TPA, the USTR conducted an environmental review of the potential
environmental effects possibly attributable to the proposed FTA. It noted that Panama “faces a
53 See http://www.sierraclub.org/trade/fasttrack/letter.asp, Principles for Environmentally Responsible Trade. Another
important issue for the United States is ensuring that its higher environmental standards defined in law and regulation
not be compromised by challenges of protectionism. See CRS Report RL31638, Foreign Investor Protection Under
NAFTA Chapter 11, by Robert Meltz.
54 See Audley, John. Environment and Trade: The Linchpin to Successful CAFTA Negotiations? Carnegie Endowment
for International Peace. Washington, D.C. July 2003.
55 U.S.-Panama FTA, Chapter 17, The Environment.
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number of challenges in protecting its environment as it supports its economic and population
growth.” Deforestation, land degradation, loss of wildlife, and threats to water quality and
wetlands, among other problems are serious issues for Panama. The Panama Canal also places
severe water use requirements on the country. Panama has responded through the public policy
process, establishing environmental standards in law and entering into international and U.S.
bilateral environmental cooperation agreements.56 These issues were already factors in Panama’s
development process prior to the negotiation of the proposed FTA. Thus, the environmental
review maintains that the marginal effects of the proposed FTA on environmental standards
would be small, whether in terms of projected impacts on the United States or on Panama.
The environmental review further notes that Panama’s service-oriented economy and the small
trade volume with the United States are unlikely to be greatly affected by the proposed FTA and
so will change production and trade little. Still, the FTA may have both positive and negative
effects. The negative effects of pollution, environmental degradation, and endangering wildlife
would come mostly from increased agricultural trade and production, which might be addressed
with increased environmental oversight and policies. The positive effect of the FTA could include
improvements in environmental standards that may be encouraged by the provisions of the
agreement and the consultative and cooperation agreements attached to the proposed FTA.57
Panama’s environmental regulatory agency points out that Panama is increasingly using
environmental impact studies, but realizes it has enforcement capacity issues that may require
time to remedy, which could be accommodated in the FTA.
Trade Capacity Building
The proposed FTA would create a Committee on Trade Capacity Building (TCB) designed to
assist Panama with the transition to freer trade with the United States. In general, the committee’s
mission includes providing technical assistance and coordinating financing to accelerate the
transition period in expectation of increasing the gains of trade while minimizing the adjustment
costs. The TCB Committee would help coordinate technical assistance provided by U.S.,
regional, and multilateral agencies in helping Panama meet its obligations under the FTA.
Panama prioritized TCB needs in its national trade capacity building strategy. The overriding goal
is to formulate a strategy that would allow Panama to assume all the commitments under the
proposed FTA, in the context of also meeting the country’s development needs. The National
TCB Strategy places strong emphasis on sectoral adjustment strategies, recognizing that some
industries are already competitive by international standards (e.g., financial services), whereas
others will need considerable assistance when faced with increased competition from the United
States (e.g., agriculture). Emphasis is also placed on supporting existing and potentially new
micro, small, and medium-sized businesses, which may need the most assistance and constitute a
significant portion of the Panamanian economy, as well as government capacity to administer
trade-related activities.58
56 Office of the United States Trade Representative. Interim Environmental Review: U.S.-Panama Free Trade
Agreement. June 2004. pp. 7-9.
57 Ibid., pp. 15-20.
58 Government of Panama. Ministry of Trade and Industry. Panama’s National Strategy for Trade Capacity Building
(TCB) in Light of the Free Trade Agreement with the United States. Panama, March 4, 2005. pp. 20-23.
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The major goals identified include inter-sectoral coordination, increasing exports to the United
States, enhancing the investment climate, better integrating education and innovation into the
business community, and improving government trade facilitation (processing imports and
exports.) The strategy identifies 18 action plans covering major trade and trade-related issues,
ranging from market access and rules of origin, to labor, environment, transparency, and trade
agreement administration. In each case, the status of Panama’s commitments under the proposed
FTA is identified along with action items that may need to be pursued to improve capacity in the
respective area.
Successful implementation of the strategy, however, requires financial and technical resources
coordinated among international and U.S. aid agencies. Already in place is a U.S. Agency for
International Development (USAID) project to support Panama’s transition to more open trade. It
has two major initiatives: supporting implementation of the proposed FTA and assisting Panama
with sectoral adjustment to the increased competitiveness arising from international trade. In the
first case, the USAID project has helped prepare and disseminate a product that explains the
benefits of the proposed FTA and how Panama might better access the U.S. market with its
specific products.
The second initiative focuses on helping three major sectors of the economy, each with a differing
level of product complexity, to increase their exposure and market share in the United States.
Specifically, agro-industry, information and communications technology, and artisan products
were identified as sectors with potential to benefit from the proposed FTA. Sector strategies range
from targeted product design, to “hands on” assistance in participating in trade fairs, and building
contacts and linkages with venture capitalists and other key business facilitation professionals.59
Outlook
On June 28, 2007, representatives of Panama and the United States signed a reciprocal bilateral
free trade agreement, establishing a commitment, subject to congressional approval, to more
liberalized rules on trade and investment between the two countries. Panama’s National Assembly
ratified the FTA by a vote of 58 to 4 on July 11, 2007. The United States has yet to take up the
FTA, but implementing legislation may be introduced in the 111th Congress. Trade policy and
agreements affect more than commercial ties between countries. For Latin America, and in
particular for countries in the Caribbean Basin region, U.S. trade arrangements historically have
been an important part of U.S. foreign economic policy. The proposed U.S.-Panama FTA is no
exception and presents the U.S. Congress with a complex policy challenge.
The significance of the proposed U.S.-Panama FTA has not been lost on Congress, as exemplified
by a vigorous ongoing debate. Votes on FTAs, as on many trade policy matters, present difficult
choices because they have become increasingly complex and can pit interest groups within a state
or district against one another. This challenge is made even more difficult at a time when doubts
over “globalization” and the world economic downturn have created widespread anxiety. To the
extent that a bilateral FTA may be viewed as compromising or directly hurting certain industries,
firms, or jobs, the arguments favoring specific economic interests face off against those
emphasizing broader foreign and economic policy goals.
59 Miller, Eric. USAID/Panama-Supported TCB Programs. Summary chapter. Nathan and Associates. May 9, 2007.
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Often, the significance of such a trade off depends on the specifics of a particular trade
agreement. The circumstances framing the Panama FTA differ considerably from those of two
other FTAs that have yet to be considered by Congress. For example, the deep concerns that
Congress has expressed over Colombia’s violence have not been an issue in the Panama FTA
debate, which is framed more by the positive image of a longstanding strategic bilateral
relationship based on Panama’s canal. Nor does Panama compare well with the lingering debate
over the proposed FTA with South Korea, which as a major U.S. trading partner, can affect key
industries such as automobile and beef production. To the contrary, Panama trades little with the
United States, even by Latin American standards, and so the FTA cannot have a major economic
effect on the U.S. economy.
Congress is still debating the important FTA issues of labor rights and the environment. In the
case of Panama, the final text of the proposed FTA incorporates specific amendments on these
topics at the behest of congressional leadership. The most significant were adoption of
enforceable labor standards, compulsory adherence to select multilateral environmental
agreements (MEAs), and an easing of restrictions on developing country access to generic drugs.
In these cases, the proposed U.S.-Panama FTA goes beyond provisions in existing multilateral
trade rules and even those contemplated in the Doha Round. Members of Congress perhaps now
face an even more difficult choice, in part depending on how important they view these changes.
Two other concerns still linger in the congressional debate over whether to consider
implementing legislation for the proposed U.S.-Panama FTA. The first issue concerns certain
Panamanian labor statutes, particularly the law requiring a minimum of 40 workers to start a
union, which was criticized by the ILO.60 The second issue relates to questions raised over
Panama’s banking and Colon Free Zone financial operations, which some suggest may present
transparency issues with respect to tax laws and money laundering.61 Panama was listed in a
recent GAO report, which lists 50 tax haven or financial privacy jurisdictions around the world
according to a number of international organizations.62 In addition, Panama has declined to enter
into any tax information exchange treaties. Some Members of Congress want to see Panama
address both these issues, in legislation where appropriate, before considering the FTA.
60 U.S. Department of State. Bureau of Democracy, Human Rights, and Labor. 2008 Human Rights Report: Panama.
Washington, D.C. February 25, 2009.
61 Inside U.S. Trade. Administration Signals Panama Issues Not Major FTA Obstacles. March 13, 2009 and Schatz,
Joseph J. Pending Panama Trade Agreement No Sure Thing as Opponents Mobilize. CQ Today. March 11, 2009. p. 6.
62 United States Government Accountability Office (GAO). International Taxation: Large U.S. Corporations and
Federal Contractors with Subsidiaries in Jurisdictions Listed as Tax Havens or Financial Privacy Jurisdictions. GAO-
09-157. December 2008.
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Appendix A. Chronology of U.S.-Panama FTA
Date Milestone
November 18, 2003
The USTR notifies Congress of President George W. Bush’s intent to enter into
negotiations on a free trade agreement (FTA) with the Republic of Panama.
April 26-29, 2004
First round of negotiations occurs in Panama City.
June 11-15, 2004
Second round of negotiations takes place in Los Angeles.
July 12-16, 2004
Third round of negotiations held in Panama City.
August 9-12, 2004
Fourth round of negotiations held in Tampa.
October 18-22, 2004
Fifth round of negotiations takes place in Panama City.
December 6-10, 2004
Sixth round of negotiations held in Washington, DC.
January 10-15, 2005
Seventh round of negotiations held in Washington, DC.
Jan. 31-Feb. 6, 2005
Eighth round of negotiations occurs in Washington, DC.
Jan. 17-20, 2006
Ninth round of negotiations held in Washington, DC.
Dec. 16, 2006
Tenth and final round of negotiations concludes in Washington, D.C. Chapters on labor
and environment left open.
March 27, 2007
Bipartisan “New Trade Policy for America” released.
March 30, 2007
President Bush formal y notifies Congress of his intention to sign the proposed U.S.-
Panama FTA.
April 27, 2007
USTR transmits to the White House and Congress 27 trade advisory reports on the
U.S.-Panama FTA.
May 10, 2007
Congressional leadership and Bush Administration agree to change labor, environment,
and intel ectual property rights chapters in this and other FTAs based on principles
outlined in the bipartisan “New Trade Policy for America.”
June 28, 2007
The United States and Panama sign a free trade agreement at the Organization of
American States in Washington, D.C.
July 2, 2007
USTR releases final text of proposed U.S.-Panama FTA.
July 11, 2007
Panama’s National Assembly approves U.S.-Panama FTA 58-4.
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Appendix B. Panama: Selected Economic Indicators
2000 2001 2002 2003 2004 2005 2006 2007 2008
GDP Growth (%)
2.7
0.6
2.2
4.2
7.5
7.2
8.5
11.5
9.2
Per Capita GDP Growth (%)
0.8
-1.3
0.4
2.3
5.6
5.4
6.7
9.7
7.4
Unemployment Rate (urban %)
13.5
14.0
13.5
13.1
11.8
9.8
8.7
6.4
5.6
Inflation – CPI (%)
0.7
0.0
1.9
1.5
1.5
3.4
2.2
6.4
6.8
Current Acct. Bal. (% GDP)
-5.8
-1.4
-0.8
-4.5
-7.1
-4.9
-3.1
-7.3 -12.1
Terms of Trade (2000=100)
100.0
102.7
101.6
97.2
95.3
93.5
90.8
90.0
85.9
Foreign Direct Invest. ($ mil)a
624
467
99 818 1,019 918 2,498 1,907 2,402
Source: United Nations Economic Commission on Latin America and the Caribbean. Estudio económico de
América Latina y el Caribe, 2008-2009. July 2009.
a. FDI = net investment or direct foreign investment in Panama minus Panamanian direct investment abroad.
Author Contact Information
J. F. Hornbeck
Specialist in International Trade and Finance
jhornbeck@crs.loc.gov, 7-7782
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