'Importing’ Regulatory Standards and Principles into WTO Dispute Settlement: The Challenge of Interpreting the GATS Arrangements on Telecommunications
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Description
This chapter examines the importation of regulatory standards and principles from other specialized international regimes into the World Trade Organization (WTO). It reflects on the systemic issues that must be taken note of in such importation and the administrative challenges that these create for the WTO adjudicator, who has to define, in context, the appropriate relationship between the specialized regimes and the WTO and adapt the external standards and principles to the purposes of the WTO—it cannot simply apply external norms in the WTO as if they were treaty norms, to be interpreted in accordance with the Vienna Convention on the Law of Treaties. The case I have chosen to illustrate these challenges is telecommunications, where the market access supposedly guaranteed by WTO free trade disciplines depends crucially on the shape of the domestic regulatory landscape, as well as institutions and norms of international regulatory cooperation. During the earlier era of the multilateral trading system, based on the General Agreement on Tariffs and Trade (GATT) of 1947, the concern with domestic regulation was largely focused on discrimination problems: against imports in favour of domestic products (National Treatment) and between imports from different Members (Most-Favoured Nation). The multilateral trading system was viewed mostly as a framework for negotiated bindings on the reduction or elimination of discriminatory border measures restricting trade, such as tariffs or quotas. In order to sustain such a bargain, it was necessary to ensure that Members did not ‘cheat’ on, or circumvent, these commitments through reintroducing measures amounting to import-discrimination in their domestic policies. The official theology of the trading system sanctioned complete regulatory autonomy and wide regulatory diversity: as long as they did not discriminate, Members were free to adopt whatever approach to domestic regulation they saw as appropriate. This outlook was well suited to an international regime like the GATT, which lacked the institutions, expertise or explicit mandate to engage in ‘positive integration’ through regulatory rapprochement or harmonization. It is notable, however, that not even the non-discrimination norm is an absolute constraint on regulatory autonomy in the GATT regime. In practice, it is largely impossible to determine, in a given case, which regulatory distinctions amount to impermissible ‘discrimination’, and which do not, without reference to some benchmarks or standards for, crudely speaking, ‘legitimate’ regulation. This has been clearly seen in the debates about the meaning of ‘like’ products in the National Treatment obligation, such as whether social, environmental, ethical and health considerations may be taken into account in determining whether products are ‘like’ for purposes of domestic regulatory treatment. Moreover, policies that violate National Treatment or Most-Favoured Nation might be justified, under certain conditions, where necessary or rationally related to particular policy objectives, such as public morals, health and the conservation of exhaustible natural resources. While it is often suggested that in such cases the adjudicative exercise is limited to considering the relationship between means and objectives, and thus involves no substantive judgments about the purposes of regulation or its desirability, in practice judging the necessity or rationality of a particular regulatory device necessarily entails second-guessing a set of domestic regulatory choices informed by diverse concerns (culture, social and community structures, administrability, the constitutional system, etc.) and representing a balance of values. Without some conception, at least implicit, of best or acceptable regulatory practices, it is hard to make fine judgments about whether a given instrument choice is really the necessary or rational means to a particular objective. In part due to recognition of this difficulty, as well as the related instability of the non-discrimination norm as a means of disciplining domestic policy, two of the specialized agreements that emerged out of the Uruguay Round gave a significant role to international standards as a means of managing the interface between domestic regulation and trade liberalization in the case of trade in goods. These were the Agreement on Technical Barriers to Trade (TBT) and the Agreement on Sanitary and Phytosanitary Measures (SPS). The international standards were imported in various ways from non-WTO standardization regimes, such as the International Standards Organization (ISO) or the Codex Alimentarius, as normative benchmarks for judging the acceptability of WTO Members’ domestic regulations from the viewpoint of trade liberalization.
Source Publication
Regulating Trade in Services in the EU and the WTO: Trust, Distrust and Economic Integration
Source Editors/Authors
Ioannis Lianos, Okeoghene Odudu
Publication Date
2012
Recommended Citation
Howse, Robert L., "'Importing’ Regulatory Standards and Principles into WTO Dispute Settlement: The Challenge of Interpreting the GATS Arrangements on Telecommunications" (2012). Faculty Chapters. 851.
https://gretchen.law.nyu.edu/fac-chapt/851
