Introduction

Introduction

Description

Although originally seen as one of the main achievements of the Uruguay Round, the Technical Barriers to Trade (TBT) Agreement made little contribution to the jurisprudence of the World Trade Organization (WTO) in the first decade or so of the WTO’s existence. But this is changing. Recently, in a range of important and sensitive disputes, the rights and obligations of the TBT Agreement have been a central focus, and in 2012 the Appellate Body decided a trilogy of cases where it gave strong indications of its overall jurisprudential approach to the TBT Agreement. At the same time, the committee responsible for TBT issues in the WTO has begun to succeed in significant ‘rule-making’ activity, on issues such as the use of international standards. This watershed period for the TBT Agreement is the context for the present volume, where a distinguished and diverse group of scholars address many of the central doctrinal, conceptual, and policy challenges presented by the TBT Agreement. In thinking about the TBT Agreement, a logical point of departure is to consider whether and how it represents a different approach to the GATT in managing the interface between liberalized trade and domestic regulation. As Michael Trebilcock and I have observed, the GATT is premised upon the acceptance of regulatory diversity, limited only by requirements of non-discrimination (MFN and national treatment) and transparency. A common view of the TBT Agreement has been that the Agreement reflects a choice to go beyond non-discrimination toward the encouragement of what is sometimes called ‘positive integration’ or harmonization, imposing disciplines even on non-discriminatory regulations that have trade-restrictive effects. As Trebilcock and I have explored, the welfare calculus of going beyond the discipline of what Sykes calls ‘regulatory protectionism’ toward positive integration are complex. As Markus Wagner notes in Chapter 7 on harmonization, regulatory diversity undoubtedly increases the costs of trade, because producers must adapt to different regulatory requirements in different markets. But there can also be benefits from regulatory diversity, especially if preferences for regulation differ significantly from jurisdiction to jurisdiction. As is reflected in the (qualified) requirement that WTO Members use international standards as a basis for their regulations, unquestionably the TBT Agreement goes some distance in the direction of positive integration. The question is: how far does it and ought it? An alternative vision of the TBT Agreement, which stresses continuity with GATT, is that the Agreement offers a more refined or at least additional set of tools for addressing ‘regulatory protectionism,’ rather than striking out boldly in the direction of positive integration. On this view, under the TBT Agreement, domestic regulations must jump through a different set of hoops, but in the end if they are genuinely non-protectionist they should be able to land on their feet; on such a view one needs to pay attention to the limited, balanced, and qualified manner in which the GATT-plus obligations of the TBT Agreement are often expressed. The Appellate Body, in the US—Clove Cigarettes case, has taken the view that the overall balance between the right to regulate and trade liberalization should be viewed as the same under the TBT Agreement as that established under GATT through the interplay of, for example, the national treatment obligation with the Article XX general exceptions. This is a very important philosophical statement that affects the interpretation of the TBT Agreement as a whole; the Appellate Body would seem to be adopting the view that the TBT Agreement has the same aim as GATT, while simply adopting a different set of tests or balancing concepts. In other words, the TBT Agreement ought not to be read, overall, as a more liberalizing or integrating instrument than GATT. Since the TBT Agreement was negotiated, at a time when what is sometimes called neo-liberalism was at or near its peak, it is fair to say there has been increasing controversy about the merits of deregulation and growing concern about the capacity of the WTO regime to preserve ‘policy space’ for domestic authorities, especially in developing countries. While in the past mostly complaining about regulatory barriers in developed country markets, developing countries have been increasingly concerned with the preservation of their own policy space. Events as diverse as financial crises and outbreaks of food-borne illnesses have created a sense that cautious or strict regulatory approaches need not be seen as protectionist gestures to rent-seeking interests. In this emerging overall context, the Appellate Body’s approach to the TBT Agreement may well make sense from the perspective of the legitimacy of the WTO system, or at least that of the dispute settlement organs. Whether it is justified as a reading of the treaty under the interpretative principles of public international law or can be sustained by economic analysis (as Trebilcock and I would suggest, based upon the benefits of regulatory diversity) are questions. The answers can only be found based upon an in-depth examination of the text of the TBT Agreement and of how the dispute settlement organs, the TBT Committee, WTO Members, and other international organizations have engaged with and been affected by the Agreement. This is the task that the contributors to this volume have set for themselves.

Source Publication

Research Handbook on the WTO and Technical Barriers to Trade

Source Editors/Authors

Tracey Epps, Michael J. Trebilcock

Publication Date

2013

Introduction

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