NTBs and the WTO Agreement on Technical Barriers to Trade: The Case of PPM-Based Measures Following US – Tuna II and EC – Seal Products

Abstract

This chapter deals with the applicability of the TBT Agreement to trade measures specifying processes and production methods (PPMs) – and in particular, so-called non-product-related PPMs. The agreement’s coverage of these measures has been a controversial question ever since its negotiation and remains uncertain following the Appellate Body’s rulings in US – Tuna II (2012) and EC – Seal Products (2014). It is argued that the interpretative approach being adopted by the WTO dispute settlement organs, which seemingly differentiates between labelling requirements and other regulatory measures in relation to non-product-related PPMs, is not supported, and is indeed rather counter-intuitive, in light of the object and purpose of the TBT Agreement. It is further suggested that whether or not the TBT Agreement applies to npr-PPM-based product regulation needs to be evaluated on the basis of the ‘technical’ content of the measure at issue and the extent to which it is amenable to scrutiny under the GATT-plus disciplines of the TBT Agreement.