The U.S.-Panama Free Trade Agreement
J. F. Hornbeck
Specialist in International Trade and Finance
October 27, 2011
Congressional Research Service
7-5700
www.crs.gov
RL32540
CRS Report for Congress
Pr
epared for Members and Committees of Congress
The U.S.-Panama Free Trade Agreement
Summary
On June 28, 2007, 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, investment, 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. Neither the 110th nor the 111th Congress took up the agreement.
The U.S. Congress did not consider implementing legislation for over four years after the FTA
was signed, an unprecedented delay reflecting multiple concerns of Congress. In time, the 112th
Congress took up the free trade agreement when congressional leaders and the Obama
Administration came to an understanding on how to proceed. On July 7, 2011, the House Ways
and Means and Senate Finance Committees both held simultaneous “mock markups,” where they
informally approved draft implementing bills. On October 3, 2011, the Obama Administration
transmitted to both houses of Congress final implementing legislation and supporting documents,
as required under TPA. Following committee action, on October 12, 2011, the House agreed to
the implementing bill (H.R. 3079) 300-129, followed by the Senate 77-22. President Obama
signed the bill into law on October 21, 2011 (P.L. 112-43, 125 Stat. 427). The FTA enters into
force by presidential proclamation when Panama completes all legal and regulatory changes
required to meet the obligations of the agreement.
The U.S.-Panama FTA is a comprehensive agreement. Some 88% of U.S. commercial and
industrial exports will become duty-free upon implementation, with remaining tariffs phased out
over a 10-year period. Over 50% of U.S. farm exports to Panama also will 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 (year 20 for rice). 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 telecommunications, services
trade, government procurement, investment, and intellectual property rights.
The final text of the U.S.-Panama FTA incorporates changes based on the bipartisan agreement of
May 10, 2007, crafted by the Bush Administration and leadership in the 110th Congress. These
include adoption of enforceable labor standards, compulsory membership in multilateral
environmental agreements, and an easing of restrictions on developing country access to generic
drugs, provisions that go beyond those in previous U.S. bilateral FTAs and multilateral trade
rules. Concerns raised in Congress on labor and tax transparency issues have also been addressed
by Panama in statute and by ratification of a Tax Information and Exchange Agreement (TIEA)
with the United States. The TIEA provides greater tax transparency in support of curbing illicit
financial transactions associated with money laundering activities.
For more on Panama, see CRS Report RL30981, Panama: Political and Economic Conditions
and U.S. Relations, by Mark P. Sullivan and Donald J. Marples.
Congressional Research Service
The U.S.-Panama Free Trade Agreement
Contents
Background and U.S. Congressional Action.................................................................................... 1
Labor Code Amendments .......................................................................................................... 2
Tax Transparency....................................................................................................................... 2
TAA and Final Congressional Action........................................................................................ 3
Panama’s Canal and Economic Relations with the United States.................................................... 4
Early U.S.-Panama Economic Relations ................................................................................... 4
The Canal and U.S. Trade Policy .............................................................................................. 7
Panamanian Trade Relations............................................................................................................ 9
Structure and Direction of Panamanian Trade........................................................................... 9
The Colón Free Zone......................................................................................................... 10
U.S.-Panama Merchandise Trade ............................................................................................ 11
U.S. Foreign Direct Investment............................................................................................... 12
Summary of Trade Negotiations and the U.S.-Panama FTA ......................................................... 13
Market Access ......................................................................................................................... 14
Agricultural Trade ............................................................................................................. 15
Sanitary and Phytosanitary Standards (SPS)..................................................................... 17
Textiles and Apparel.......................................................................................................... 18
Government Procurement........................................................................................................ 18
Investment ............................................................................................................................... 19
Services ................................................................................................................................... 20
Intellectual Property Rights..................................................................................................... 21
Pharmaceutical Issues ....................................................................................................... 22
Labor and Environment........................................................................................................... 23
Labor Issues ...................................................................................................................... 24
Panama’s Labor Code and Conditions .............................................................................. 25
Environmental Issues ........................................................................................................ 26
Trade Capacity Building.......................................................................................................... 27
Figures
Figure 1. Map of Panama................................................................................................................. 6
Figure 2. Panama Direction of Trade, 2009................................................................................... 10
Tables
Table 1. Panama’s Current Account Balance................................................................................... 9
Table 2. U.S.-Panama Merchandise Trade, 2010........................................................................... 12
Table 3. U.S. Foreign Direct Investment in Panama, Mexico, and Central America..................... 13
Congressional Research Service
The U.S.-Panama Free Trade Agreement
Appendixes
Appendix A. Chronology of U.S.-Panama FTA ............................................................................ 29
Appendix B. Panama: Selected Economic Indicators.................................................................... 31
Contacts
Author Contact Information........................................................................................................... 31
Congressional Research Service
The 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 10 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 chapters would be made
pursuant to future congressional input. These changes were agreed to and 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. Neither the 110th nor
the 111th Congress took up the agreement.
The U.S. Congress did not consider implementing legislation for over four years after the FTA
was signed, an unprecedented delay reflecting multiple concerns of Congress (see below).
Eventually, the 112th Congress took up the free trade agreement when congressional leaders and
the Obama Administration came to an understanding on how to proceed. On July 7, 2011, the
House Ways and Means and Senate Finance Committees both held simultaneous “mock
markups,” where they informally approved draft implementing bills. On October 3, 2011, the
Obama Administration transmitted to both houses of Congress final implementing legislation and
supporting documents, as required under TPA.2 Following committee action, on October 12,
2011, the House agreed to the implementing bill (H.R. 3079) 300-129, followed by the Senate 77-
22. President Obama signed the bill into law on October 21, 2011 (P.L. 112-43, 125 Stat. 427).
The FTA enters into force by presidential proclamation when Panama completes all legal and
regulatory changes required to meet the obligations of the agreement.
Background and U.S. Congressional Action
Congressional action on the U.S.-Panama FTA was delayed over numerous concerns since it was
signed over four years ago. Many issues were addressed by changes to the FTA based on
principles outlined in the bipartisan agreement of May 10, 2007, crafted jointly by leadership in
the 110th Congress and the Bush Administration. These changes include 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, new pharmaceutical intellectual
property rights provisions intended to facilitate Panama’s access to generic drugs, and language
on the investor-state issue clarifying that foreign investors will have no greater rights than U.S.
domestic investors with respect to investment dispute resolution under the FTA.
Other issues, however, cropped up that further hindered congressional action on the agreement,
all falling outside the scope of the FTA. Soon after the May 10 principles were agreed to, the
election of Pedro Miguel González Pinzón as president of Panama’s National Assembly on
September 3, 2007, caused another year of delay.3 Although a deputy in the National Assembly
since 1999, his election to the head of the National Assembly raised his profile and drew the
1 For details, see CRS Report RL33743, Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy,
by J. F. Hornbeck and William H. Cooper.
2 President Obama also submitted separate implementing bills for the free trade agreements with Colombia and South
Korea, as well as legislation that reauthorized trade adjustment assistance. All four bills were considered as part of a
trade bargain struck by Congress and the Administration.
3 Inside U.S. Trade. Committee Chairs Signal FTA Problem Over Panama Assembly Head. September 21, 2007.
Congressional Research Service
1
The U.S.-Panama Free Trade Agreement
attention of Congress to his alleged role in the June 1992 murder of a U.S. serviceman in Panama.
A Panamanian court acquitted him of the charge in 1997, but the United States does not recognize
the verdict and maintains an outstanding warrant for his arrest.4 This issue was effectively
resolved with respect to the FTA on September 1, 2008, when González Pinzón declined to run
for a second term as president of the National Assembly.
Labor Code Amendments
Despite the FTA’s adoption of the May 10, 2007, labor principles, the 112th Congress raised
concerns over four specific labor statutes. First, the labor code prohibited Panamanian workers
from striking against companies that had been in business for less than two years. Second, export
processing zones were covered by separate labor provisions with more restrictive collective
bargaining and right to strike language than existed as part of the national labor code. Third,
Panama, in creating the Barú Special Economic Zone, allowed firms there to (1) have a six-year
moratorium on collective bargaining rights and (2) an extension from two to three years in the use
of temporary workers. The National Assembly repealed these statutes in legislation passed in
April 2011.5 A fourth labor issue involved the statutory limitation on the minimum number of
workers required to start a union. Panama requires 40, the ILO recommends 20. This issue has
been highlighted by the State Department and some Members of Congress.6 The Panamanian
government did not act on the so-called “40/20 Issue” for lack of support by business,
government, or labor constituencies in Panama. Congress did not pursue this issue further.
Tax Transparency
Historically, the United States has had an ongoing concern over problems with drug trafficking
and money laundering through Panama, and critics have pointed to the need for greater tax
transparency to help monitor and control related illicit financial transactions.7 Panama was placed
on the so-called “Gray List” maintained by the Organization of Economic Cooperation and
Development (OECD), which includes jurisdictions that have committed to an internationally-
agreed tax standard, but have yet to implement it.8 The Government Accountability Office (GAO)
also listed Panama as one of 50 countries described as having “tax havens” or “financial privacy
jurisdictions” according to a number of international organizations, and Panama had declined to
enter into any agreements for the exchange of tax information.9
4 U.S. Department of State. Press Statement. Election of Panamanian National Assembly President Pedro Miguel
González-Pinzón. September 1, 2007.
5 Len Bracken and Mike Ceaser, “USTR Finishes Prep Work on Panama FTA, Ready for Technical Talks with
Lawmakers,” BNA International Trade Reporter, April 21, 2011, and correspondence with Embassy of Panama, April
8, 2011.
6 U.S. Department of State. Bureau of Democracy, Human Rights, and Labor. 2010 Country Reports on Human Rights:
Panama. Washington, DC. April 8, 2011.
7 For more details, see, CRS Report RL30981, Panama: Political and Economic Conditions and U.S. Relations, by
Mark P. Sullivan and Donald J. Marples.
8 This standard “requires exchange of information on request in all tax matters for the administration and enforcement
of domestic tax law without regard to a domestic tax interest requirement or bank secrecy for tax purposes.” Progress
Report on the Jurisdictions Surveyed by the OECD Global Forum in Implementing the International Agreed Tax
Standard, February 18, 2011. The standard has been endorsed by the G20 Finance Ministers and the United Nations
Committee of Experts on International Cooperation in Tax Matters.
9 United States Government Accountability Office (GAO). International Taxation: Large U.S. Corporations and
(continued...)
Congressional Research Service
2
The U.S.-Panama Free Trade Agreement
Although this issue falls outside the purview of the FTA, some Members of Congress and the
Obama Administration wanted to delay consideration of the FTA until Panama signed a Tax
Information and Exchange Agreement (TIEA) with the United States, and took other measures
necessary to be removed from the OECD “Gray List,” including implementing tax agreements
with a minimum of 12 other countries.10 Panama and the United States came to a resolution on
the tax transparency issue by agreeing to a TIEA, which Panama ratified on April 13, 2011. The
TIEA permits either country to request information on most types of federal (U.S.) or national
(Panama) taxes. To address the tax haven issue, Article 7 specifically allows for tax information
exchange “under the existing Treaty on Mutual Legal Assistance in Criminal Matters,” which
covers money laundering among other illicit financial activities.
To address the “Gray List” issue, Panama also entered into 14 double taxation agreements in
addition to the TIEA with the United States. Twelve of these agreements were ratified prior to
congressional action on the FTA, and Panama was formally removed from the OECD “Gray List”
on July 6, 2011.11 Unlike the TIEA, the purpose of the double taxation agreements is to eliminate
double taxation in addition to taking on obligations of tax information and exchange, as set out by
the OECD international tax standard.
TAA and Final Congressional Action
At the beginning of the 112th Congress, consideration of FTA implementing bills for Colombia,
Panama, and South Korea became part of a larger trade legislative agenda that required passage
of trade adjustment assistance (TAA) reauthorization. Two issues had to be resolved if legislation
were to move forward. First, Congress had to write a TAA bill that would garner sufficient
bipartisan support in both houses. Second, because of strong differences of opinion and
increasing distrust between legislative and executive branches, a legislative path was needed that
would ensure passage of all three implementing bills and the TAA legislation, in tandem.12 An
agreement was struck on a compromise TAA bill that both parties and houses of Congress
eventually came to embrace.13
To address myriad concerns over assured passage of all four bills, congressional leaders and the
White House agreed to an elaborate, fast-paced, and nuanced legislative process. The House
began, passing a bill to reauthorize the Generalized System of Preferences (H.R. 2832), which
was then sent to the Senate. The Senate amended the bill with the addition of TAA
reauthorization. On September 22, 2011, the Senate agreed to the amended bill, 70-27, after
(...continued)
Federal Contractors with Subsidiaries in Jurisdictions Listed as Tax Havens or Financial Privacy Jurisdictions. GAO-
09-157. December 2008.
10 So-called “partners of relevance.” 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. Panama agreed to implement the OECD tax standard in 2002 through
agreements on the exchange of tax information, but delayed entering into any such agreements until 2011.
11 Organization for Economic Cooperation and Development (OEDC), Progress Report on the Jurisdictions Surveyed
by the OECD Global Forum in Implementing the International Agreed Tax Standard, July 6, 2011.
12 Inside U.S. Trade, Scope, Timing of TAA Renewal Complicates Path Forward for Trade Deals, April 14, 2011, and
International Trade Reporter, Hatch Challenges Assistance Link to FTAs at Finance Committee Hearing on Panama,
June 2, 2011.
13 For details, see CRS Report R41922, Trade Adjustment Assistance (TAA) and Its Role in U.S. Trade Policy, by J. F.
Hornbeck and Laine Elise Rover.
Congressional Research Service
3
The U.S.-Panama Free Trade Agreement
which it was sent to the House. In separate action, President Obama sent the three FTA
implementing bills to both houses of Congress.14 The House Ways and Means Committee
favorably reported out all three FTA implementing bills on October 3, 2011. On October 6, 2011,
the House Committee on Rules issued a closed rule covering all four bills.15 The U.S.-Panama
FTA implementing bill was agreed to by both houses along with the other trade bills on October
12, 2011.
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 stakes in the canal that traverses the Central American
isthmus, bisecting Panamanian territory. 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 16th century, interest in Panama has centered
on its unique geographic characteristic: the slender distance separating the Atlantic and Pacific
Oceans (see Figure 1). 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.16
14 Because TAA legislation on its own would be considered a revenue bill, it could not originate in the Senate. To have
the Senate act first on TAA required a legislative vehicle originating in the House that could then be amended in the
Senate, in this case, the bill to extend the Generalized System of Preferences.
15 U.S. Congress, House Committee on Rules, Providing for Consideration of the Senate Amendment to the Bill (H.R.
2832) to Extend the Generalized System of Preferences and for Other Purposes, Report to accompany H.Res. 425,
112th Cong., 1st sess., October 6, 2011, H.Rept. 112-240 (Washington: GPO, 2011), pp. 1-3.
16 Michael L. Conniff, Panama and the United States: The Forced Alliance, 2nd ed. (Athens: University of Georgia
Press, 2001), pp. 30-35.
Congressional Research Service
4
The 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.”17
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. Panama’s decision to promote trade liberalization soon followed.18
17 Ralph Lee Woodward, Central America: A Nation Divided, 3rd ed. (New York: Oxford University Press, 1999), pp.
63-70.
18 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 and Donald J. Marples.
Congressional Research Service
5
The U.S.-Panama Free Trade Agreement
Figure 1. Map of Panama
Source: CRS.
CRS-6
The U.S.-Panama Free Trade Agreement
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, and a portion of the canal was widened in 2001, and Panama has undertaken a
difficult and expensive challenge to enhance the capacity of the entire canal to accommodate
much larger post-Panama ships.19 Panama held a national referendum on the $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
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.20
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 environment
and labor standards.21
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.22
19 The Economist Intelligence Unit. Panama: Country Profile 2003. London, 2003. pp. 16-17; U.S. Department of
Energy. Energy Information Administration. Panama: Country Analysis Briefs. October 2003; and
http://www.pancanal.com.
20 Ibid.
21 Government of Panama. Panama-Pacifico Special Economic Area Agency.
22 Ibid., and discussion with IFC official.
Congressional Research Service
7
The U.S.-Panama Free Trade Agreement
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).23 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.
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 failure of the Free Trade Area of the Americas
(FTAA), this strategy played out through aggressive bilateral trade negotiations, of which the
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 FTA reinforces its many trade policy 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.
23 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 Juan Luis
Moreno-Villalaz, “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.
Congressional Research Service
8
The U.S.-Panama Free Trade Agreement
Panamanian Trade Relations
Panama is a country of 3.5 million people with a stable, diversified economy that has experienced
strong growth despite the 2007-2008 global economic downturn. Panama’s gross domestic
product (GDP) expanded by an annual average of over 8% for the five years ending 2010. The
economy grew by 7.5% in 2010 (see Appendix B for selected macroeconomic data). 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 moderately high. Inflation rose significantly in 2007-2008, but retreated in the following
years. 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.24
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 imports. From 2001 to 2010, Panama’s annual merchandise
trade deficits ranged from $696 million to $4.6 billion. Panama’s declining terms of trade are one
factor affecting the trade balance (see Appendix B), but the large increases beginning in 2007
reflect two 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 to Panama’s
strong economic growth, canal expansion, and other infrastructure investment. In most years, the
merchandise deficit has been offset by a services trade surplus, which has ranged from $890
million in 2001 to $3.3 billion in 2010. 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 merchandise trade deficits may continue as long as energy and food
prices remain volatile and as the canal expansion accelerates.
Table 1. Panama’s Current Account Balance
(U.S. $ millions)
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
Merchandise Trade Balance
-696 -1,035 -1,202 -1,537 -1,558 -1,712
-3,190
-4,546
-2,143
-4,616
Services Trade Balance
890
968
1,240
1,337
1,420
2,273
2,836
3,155
3,328
3,333
Source: United Nations Economic Commission on Latin America and the Caribbean. Economic Survey of Latin
America and the Caribbean, 2010-2011, July 2011, p. 72.
Panama’s trade policy emphasizes increased 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 Canada,
Chile, Costa Rica, Cuba, the Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua,
24 United Nations Economic Commission on Latin America and the Caribbean, Statistical Yearbook for Latin America
and the Caribbean 2009 (Washington, DC: United Nations, 2010) and press release December 13, 2010.
Congressional Research Service
9
The U.S.-Panama Free Trade Agreement
Singapore, and Taiwan. It is also a party to an Association (limited) agreement between Central
America and the European Union. Trade agreement negotiations are in process with Colombia,
Peru, and the European Free Trade Association (EFTA) countries. Panama has also expressed
interest in negotiating agreements with South Korea, the Caribbean Community (CARICOM)
countries, and Gulf Cooperation Council.25
Figure 2. Panama Direction of Trade, 2009
Source: CRS, from Global Trade Atlas data.
In 2009, the United States accounted for 42.6% of Panamanian exports and 29.1% of its imports
(see Figure 2). The EU is the second-largest export market with a 20.7% export share, but
accounts for only 6.4% of Panamanian imports. The Latin American countries collectively are
Panama’s third-largest export market with 20.1% share of the total, and have a 23.1% import
share. Panamanian trade has two distinct elements of importance on the import side. Nearly 12%
of imports entered Panama through the Colon Free Zone (CFZ), discussed in detail below. In
addition, another 14.0% 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 closely tied to the United States as its dominant trading partner, and is one of the few
Latin American countries with which the United States has a merchandise trade surplus. 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 Costa Rica, Mexico, and Colombia.
Panama also imports significant quantities of oil from Trinidad and Tobago. Asia accounts for
7.4% of Panama’s exports, but 12.7% of its imports, dominated by China, Japan, and South
Korea.
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-
25 Correspondence with Embassy of Panama, December 2010.
Congressional Research Service
10
The U.S.-Panama Free Trade Agreement
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.26
The CFZ is frequently associated with a number of illicit activities including money laundering,
illegal transshipment, and trademark and other intellectual property violations. In part, this is a
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 increased transshipment of illegal drugs in the region also fueled 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.27
U.S.-Panama Merchandise Trade
U.S.-Panamanian merchandise trade is small, as seen in Table 2.28 In 2010, the United States
exported $6,068 million worth of goods and imported $379 million, producing a U.S. trade
surplus of $5,690 million, the largest in the Western Hemisphere. Still, Panama ranked as only the
36th-largest export market for U.S. goods and 93rd for imports. Major U.S. exports include oil and
mostly capital- and technology-intensive manufactured goods such as aircraft, pharmaceuticals,
machinery, medical equipment, and motor vehicles.
26 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.
27 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.
28 Services trade data are not available for smaller U.S. trading partners, including Panama.
Congressional Research Service
11
The U.S.-Panama Free Trade Agreement
Table 2. U.S.-Panama Merchandise Trade, 2010
(top 10 U.S. exports and imports by $ value and as % of total)
$ Value
% of
$ Value
% of
U.S. Exports
million
Total U.S.
Imports million
Total
1. Oil (not crude)
2,459.9
40.5
1. Repaired Goods
131.1
34.6
2. Machinery
532.9
8.8
2. Fish/Seafood
85.4
22.5
3. Electrical mach.
426.6
7.0
3. Gold
59.8
15.8
4. Aircraft
396.7
6.5
4. Edible Fruit
20.6
5.4
5. Repaired Goods
272.8
4.5
5. Sugar
18.1
4.8
6. Vehicles
229.4
3.8
6. Perfume
8.5
2.2
7. Cereals
145.0
2.4
7. Coffee
7.9
2.1
8. Optical/Med. Equip
130.7
2.2
8. Electrical mach.
5.7
1.5
9. Perfume
107.9
1.8
9. Aluminum
5.1
1.4
10. Plastics
98.5
1.6
10. Machinery
5.1
1.4
Other 1,268.4
20.9
Other
31.5
8.3
Total 6,068.9
100.0
Total
378.8
100.0
Source: U.S. Department of Commerce data presented by Global Trade Atlas.
The United States imports relatively little from Panama, accounting for the growing U.S.
merchandise trade surplus. Most imports are primary products; 23% is seafood, mostly fresh fish
and shrimp. Repaired goods account for 35% of total imports from Panama.29 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.
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).30
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.
29 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.”
30 U.S. Department of Commerce, Doing Business In Panama: 2008 Country Commercial Guide for U.S. Companies.
Congressional Research Service
12
The U.S.-Panama Free Trade Agreement
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 over 25% 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 $5 billion of investment in the canal itself, and
perhaps related large amounts of FDI for other sectors of the economy with a significant U.S.
presence.
Table 3. U.S. Foreign Direct Investment in Panama, Mexico, and Central America
($ millions)
2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
Panama 5,141 5,842 5,409 4,919 4,826 4,636 6,509 6,236 6,871 6,040
Mexico 52,544 56,303 59,851 63,384 73,687 82,965 91,259 89,610 89,419 90,304
Central
2,994 3,199 2,333 4,884 3,902 3,595 5,315 8,282 7,220 7,783
America
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 U.S.-
Panama FTA31
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). 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.32 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 agreement was completed in 10 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
Bush Administration and bipartisan congressional leadership (the May 10th agreement). Market
access schedules, drawn from previous FTA templates, reflect both U.S. and Panamanian
interests, as do other market access provisions.
31 This summary reflects information in the final text of the FTA, released on July 2, 2007.
32 Inside U.S. Trade. Panama FTA Unlikely To Be Docked Into CAFTA as Talks Set to Begin. April 23, 2004.
Congressional Research Service
13
The U.S.-Panama Free Trade Agreement
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
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.33
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).34
Detailed 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.35
Below is a more detailed discussion of the major negotiation areas and an analysis 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 bipartisan agreement are
highlighted.
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 U.S.-
Panama FTA replaces duty-free treatment extended selectively by 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 some Panamanian goods enter the United States duty free.36 Most goods entering into the
United States duty free do so under normal trade relations (NTR).
33 USITC, U.S.-Panama Trade Promotion Agreement: Potential Economy-wide and Selected Sectoral Effects, pp. 1-1
and 1-5.
34 Ibid., pp. 1-5, 2-1, and 2-7.
35 Ibid., pp. 2-1 and 2-7.
36 The USITC estimated that 96% of Panamanian exports entered the United States duty free in 2006 under these
various preferential arrangements as under normal trade relations (MFN) treatment. Ibid., pp. 1-5.
Congressional Research Service
14
The U.S.-Panama Free Trade Agreement
Panamanian agricultural products, however, do face some of the highest barriers, particularly
sugar, which is subject to a tariff rate quota (TRQ). Panama levies an average tariff of 7% on U.S.
industrial and consumer goods, with tariff peaks of 81% for some goods. The average tariff on
U.S. agricultural goods is 15%, with peaks as high as 260% on one product.37 Imports also face
an 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. Tariffs on
88% of industrial and commercial goods go to zero immediately, with the remaining tariffs
phased out over a 10-year period. Similarly, up to two-thirds of U.S. farm exports receive
immediate duty free treatment.38 Tariffs on some agricultural goods remain in place longer, with
some taking up to 17 years to be completely eliminated (20 years for rice). 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 negotiating objectives.
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, of which there is very little exported from Panama.
Agricultural Trade
The United States has a small, but positive agricultural trade balance with Panama. Agriculture
accounts for 9% of total U.S. merchandise exports to Panama, and the United States captures
some 51% of the Panamanian agricultural import market. While the average tariff on U.S.
agricultural products is 15%, tariffs can peak as high as 260% for chicken leg quarters.39 Because
both countries had products they wished to protect, agriculture market access was one of the most
difficult issues to resolve.
U.S. domestic agricultural support programs are not addressed in the FTA, which focuses on tariff
reduction, quota definitions, and sanitary and phytosanitary (SPS) rules and enforcement
measures. 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 Panama’s markets further. It was “defensive” on sugar, attempting to limit
increases in the sugar quota that might disrupt operations of the U.S. 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 sugar export quota.
37 Office of the United States Trade Representative, 2011 National Trade Estimates Report on Foreign Trade Barriers,
Washington, DC, March 2011, p 281.
38 Office of the United States Trade Representative. Free Trade with Panama: Summary of the Agreement. January
2007.
39 CRS Report R40622, Agriculture in Pending U.S. Free Trade Agreements with South Korea, Colombia, and
Panama, by Remy Jurenas.
Congressional Research Service
15
The U.S.-Panama Free Trade Agreement
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 permitted under WTO rules. In FY2008, the
above-quota tariff rate was estimated to be 86% on raw cane sugar and 76% on refined sugar.40
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 Panamanian agricultural sector. Sugar constitutes a third of Panama’s total agricultural
exports, compared to less than 10% for the Central American countries, and 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 Panamanian sugar producers on the U.S. market, in part driven by the
industry’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,
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.41
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
40 CRS derived this effective ad valorem equivalent by applying the current U.S. over-quota tariffs against the FY2008
import unit value for such imports. 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 R40995, Sugar Market Developments and Policy Issues, by Remy Jurenas.
41 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.
Congressional Research Service
16
The U.S.-Panama Free Trade Agreement
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 FTA provides 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 will be phased out between years 7 and 17 of the
FTA. Rice tariffs, which protect one of Panama’s most sensitive products, will remain in place
until year 20 of the FTA. U.S. exports of rice and other products 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 will
grow by 1% per year, capped eventually for some types of sugar.42
Other protective measures for agriculture were negotiated. Whereas export subsidies, voluntary
restrain agreements (VREs), and import licensing are generally prohibited, the FTA allows for
TRQs, safeguards, and a sugar compensation mechanism. The sugar mechanism gives the United
States the option to compensate Panamanian sugar producers in lieu of giving their exports duty-
free treatment. This option could be employed 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 contended that this
process has often been cumbersome, drawn out, and ultimately very costly to U.S. producers.43
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
42 Inside U.S. Trade. Panama FTA Offers Limited Sugar Access; Labor Changes Possible. December 22, 2006.
43 United States Trade Representative. 2007 National Trade Estimate Report on Foreign Trade Barriers. Washington,
DC. March 2007. p. 452.
Congressional Research Service
17
The U.S.-Panama Free Trade Agreement
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.44
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.45
Textiles and Apparel
In general, textiles and apparel make for difficult market access negotiations, but Panama
produces very little of these goods. The FTA would provide immediate duty-free access for all
textile and apparel goods, subject to rules of origin (requiring use of fabric and yarn produced in
Panama or the United States).46 The permanence of the provisions and more accommodating
measures provide a benefit to the small Panamanian industry. Safeguard 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.47
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.48 Some of the concerns
expressed were addressed in the 2006 amendments to the procurement law, which codified
advancements such as allowing use of Internet procurement. These changes modernized and
made more transparent procurement regulations, government purchasing information, and
transactions. A separate administrative court for public contracting disputes was also created.
These changes enhanced Panamanian laws that already require transparency in the bidding
44 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.
45 United States-Panama Agreement Regarding Certain Sanitary and Phytosanitary Measures and Technical Standards
Affecting Trade in Agricultural Products. December 20, 2006.
46 USTR, 2011 Foreign Trade Barriers, p. 282.
47 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.
48 Panamcham. Issues of Importance in the U.S.-Panama FTA Negotiations, March 12, 2004.
http://www.panamcham.com/business_center/FTA.asp.
Congressional Research Service
18
The U.S.-Panama Free Trade Agreement
process. Panama has not acceded to the WTO Government Procurement Agreement, which the
United States has encouraged.49
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 Panama
Canal expansion 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 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 FTA.
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.50
The FTA text provides for clear and enforceable rules for foreign investments, which is largely
accomplished by “standard” language requiring national and most-favored-nation
(nondiscriminatory) treatment. It further clarifies rules on expropriation (including indirect
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.
49 USTR, 2011 Foreign Trade Barriers, pp. 282-283.
50 Ibid.
Congressional Research Service
19
The U.S.-Panama Free Trade Agreement
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 legal rights of foreign investors. Since bilateral investment treaties usually have been
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 “indirect expropriation” claims against
subnational (state) governments in the United States over environmental and other regulations.51
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 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 these concerns,
although some stakeholders remain skeptical.52
Second, Annex 10-F of the 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,
Annex 10-F 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
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. providers.53
51 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.
52 Washington Trade Daily, “Labor’s View of US Trade Policy,” Trade Reports International Group, March 18, 2011.
53 USITC, U.S.-Panama Trade Promotion Agreement: Potential Economy-wide and Selected Sectoral Effects, pp. 3-1.
Congressional Research Service
20
The U.S.-Panama Free Trade Agreement
Panama requires 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.54
Equal ability to compete in retail trade, express delivery, and financial services, including
insurance and portfolio management, was achieved in the 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
harmonizing standards at U.S. levels, and by securing Panama’s commitment to join an array of
international agreements related to IPR protection. The most contentious IPR issues revolved
around patent and data exclusivity issues related to pharmaceutical products, but Internet piracy
also became a serious problem.
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
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.55
IPR provisions in the 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
54 USTR, 2007 Foreign Trade Barriers, pp. 455-456.
55 USTR, 2011 Foreign Trade Barriers, p. 284.
Congressional Research Service
21
The U.S.-Panama Free Trade Agreement
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.56
Pharmaceutical Issues
The 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,
agreement. 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 and others 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.57
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 quickly and 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.58
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
56 U.S.-Panama FTA, Chapter 15.
57 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. 50-51. The side agreement is available
at http://www.ustr.gov and for a summary of the debate, Rosella Brevetti, “CAFTA Opponents Blast U.S. Stance on
Guatemalan Data Protection Law,” BNA International Trade Reporter, March 10, 2005.
58 There are further complicating 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.
Congressional Research Service
22
The U.S.-Panama Free Trade Agreement
licensing, circumventing patents in public health emergencies or other circumstances of public
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. Drug originating 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.
Labor and Environment
Labor and environmental 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 U.S.-Panama
FTA is that it adopts new standards for both the labor and environment chapters that reflect a
2007 bipartisan understanding as developed by congressional leadership and the USTR. Despite
the bipartisan nature of the agreement, some 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 may compete with
those produced in developed countries.59 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
59 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.
Congressional Research Service
23
The U.S.-Panama Free Trade Agreement
argued that trade agreements should not support production standards that lead to unacceptable
working conditions or 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.60 Further,
many economists view trade liberalization as part of the overall development process that, in and
of itself, can promote improved social and economic conditions over the long run.61 Developing
countries are also concerned with the possible 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.62 Second, this was the only provision
in the labor chapter subject to the FTA’s labor dispute resolution process (other commitments
were unenforceable). Third, labor (and environment) provisions had their own dispute settlement
mechanism separate from the process used for commercial and other disputes. Critics charged
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.
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.63
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, agreement, were incorporated into the labor chapters for U.S. bilateral FTAs with Panama,
60 Dwight H. Perkins, Steven Radelet, and David L. Lindauer, Economics of Development, 6th ed. (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 Dani Rodrik, “Sense and Nonsense in the Globalization Debate,” Foreign Policy, Summer 1997, pp. 30-33.
61 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. Daniel W. Drezner, “Globalization and Policy Convergence,”
International Studies Review, vol. 3, no. 1 (Spring 2001), pp. 75 and 78.
62 As defined by the United Nations International Labor Organization (ILO) in the Fundamental Principles and Rights
at Work and its Follow-up (1998) Declaration.
63 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.
Congressional Research Service
24
The U.S.-Panama Free Trade Agreement
Peru, Colombia, and South Korea. 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 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 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 Code and 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. State Department notes 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, but 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
Congressional Research Service
25
The U.S.-Panama Free Trade Agreement
areas during harvest times and for domestic employment. Lax enforcement of health and safety
standards was also cited as a continuing problem.64 Some of these issues were cited by Members
of Congress as needing to be addressed before the FTA could be considered (see “Background
and U.S. Congressional Action”).65
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
provisions in FTAs are subject to the same dispute resolution and enforcement mechanisms as are
other aspects of the agreements.66
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.67
As with the FTA labor chapter, revisions made pursuant to ideas outlined in the arrangement of
May 10, 2007, 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;
64 U.S. Department of State. Bureau of Democracy, Human Rights, and Labor. 2010 Country Reports on Human
Rights: Panama. Washington, DC. April 8, 2011, and American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO). Panama: Labor Rights and Child Labor Reports. Washington, DC. August 9, 2004. p. 3.
65 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.
66 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.
67 See Audley, John. Environment and Trade: The Linchpin to Successful CAFTA Negotiations? Carnegie Endowment
for International Peace. Washington, DC. July 2003.
Congressional Research Service
26
The U.S.-Panama Free Trade Agreement
• 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.68
As required under TPA, the USTR conducted an environmental review of the potential
environmental effects possibly attributable to the FTA. It noted that Panama “faces a 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.69 These issues were already factors in Panama’s
development process prior to the negotiation of the FTA. Thus, the environmental review
maintains that the marginal effects of the 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 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 FTA.70 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 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
68 U.S.-Panama FTA, Chapter 17, The Environment.
69 Office of the United States Trade Representative. Interim Environmental Review: U.S.-Panama Free Trade
Agreement. June 2004. pp. 7-9.
70 Ibid., pp. 15-20.
Congressional Research Service
27
The U.S.-Panama Free Trade Agreement
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 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.71
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 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 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 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 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.72
71 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.
72 Miller, Eric. USAID/Panama-Supported TCB Programs. Summary chapter. Nathan and Associates. May 9, 2007.
Congressional Research Service
28
The U.S.-Panama Free Trade Agreement
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, DC. Chapters on labor
and environment left open.
March 30, 2007
President Bush formal y notifies Congress of his intention to sign the 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,
investment, and intellectual property rights chapters in this and other FTAs based on
principles outlined in a bipartisan agreement.
June 28, 2007
The United States and Panama sign a free trade agreement at the Organization of
American States in Washington, DC.
July 2, 2007
USTR releases final text of U.S.-Panama FTA.
July 11, 2007
Panama’s National Assembly approves U.S.-Panama FTA, 58-4.
November 30, 2010
United States and Panama sign a Tax Information and Exchange Agreement (TIEA).
January 25, 2011
House Ways and Means Committee holds hearing on U.S. free trade agreements with
Colombia, Panama, and South Korea.
March 9, 2011
Senate Finance Committee holds hearing on U.S. free trade agreements with Colombia,
Panama, and South Korea.
March 30, 2011
House Ways and Means Committee Subcommittee on Trade holds hearing on U.S. free
trade agreement with Panama.
April 5, 2011
Panama enacts labor code changes requested by the U.S. Congress and the Obama
Administration.
April 18, 2011
Tax Information and Exchange Agreement (TIEA) enters into force in Panama.
May 25, 2011
Senate Finance Committee holds hearing on the Panama FTA.
July 6, 2011
Panama removed from OECD “Gray List” of countries in noncompliance with
international tax standard.
July 7, 2011
House Ways and Means and Senate Finance Committees hold “mock markups” on draft
implementing bills for U.S.-Panama Free Trade Agreement. House Ways and Means
approves 22-2. Senate Finance approves 22-15.
Congressional Research Service
29
The U.S.-Panama Free Trade Agreement
Date Milestone
October 3, 2011
President Obama formal y submits implementing legislation and required supporting
documents to Congress.
October 3, 2011
Identical bills are introduced in the House (H.R. 3079) and the Senate (S. 1643).
October 5, 2011
House Ways and Means Committee orders H.R. 3079 favorably reported by rol cal
vote, 32-3 (H.Rept. 112-238).
October 6, 2011
House Committee on Rules provides closed rule (H.Res. 425) for consideration of H.R.
3079 under which debate is limited to 90 minutes and all points of order against
consideration of H.R. 3079 are waived.
October 11, 2011
Senate Finance Committee orders S. 1643 favorably reported by voice vote, with no
written report.
October 12, 2011
H.R. 3079 agreed to in the House, 300-129.
October 12, 2011
H.R. 3079 agreed to in the Senate, 77-22.
October 21, 2011
President Obama signs H.R. 3079 into law (P.L. 112-43, 125 Stat. 427).
Congressional Research Service
30
The U.S.-Panama Free Trade Agreement
Appendix B. Panama: Selected Economic Indicators
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010
GDP Growth (%)
2.7
0.6
2.2
4.2
7.5
7.2
8.5
12.1
10.1
3.2
7.5
Per Capita GDP Growth (%)
0.8
-1.3
0.4
2.3
5.6
5.3
6.7
10.2
8.3
1.6
5.8
Unemployment Rate (urban %)
13.5
14.0
16.5
15.9
14.1
12.1
10.4
7.8
6.5
7.9
7.7
Inflation – CPI (%)
0.7
0.0
1.9
1.4
-0.2
3.4
2.2
6.4
6.8
1.9
4.9
Current Acct. Bal. (% GDP)
-5.8
-1.4
-0.8
-4.5
-7.1
-4.9
-3.1
-7.3 -11.5
0.0 -11.4
Terms of Trade (2000=100)
na
na
108.7
103.9
101.9
100.0
97.1
96.2
91.8
96.3
94.4
Source: United Nations Economic Commission on Latin America and the Caribbean. Economic Survey of Latin
America and the Caribbean, 2010-2011, July 2011.
Author Contact Information
J. F. Hornbeck
Specialist in International Trade and Finance
jhornbeck@crs.loc.gov, 7-7782
Congressional Research Service
31