Technical Regulations and Standards under the WTO Agreement on Technical Barriers to Trade

Abstract

When applying the World Trade Organization (WTO) Agreement on Technical Barriers to Trade (TBT), an initial issue is whether the challenged instrument should be classified as a technical regulation or as a standard. Under the relevant Treaty language, both instruments can set product characteristics such as marking or labelling requirements with the distinction turning on the phrase 'with which compliance is mandatory'. The meaning of this phrase was contested in US-Tuna II, with the matter eventually being resolved in Mexico's favour. A rare panel dissent classified the dolphin-safe labelling scheme as a voluntary standard based on a clear test leading to definite outcomes. However, the panel majority and Appellate Body preferred a more flexible and less predictable approach under which the measure was classified as a mandatory technical regulation. This article questions whether this is an area in which flexibility plays a useful role, or one in which clarity and predictability are preferred. The article is informed by an obvious consideration which is nevertheless almost absent from the case law and academic debate. The classification of the measure at issue is important to the extent that the TBT adopts a differentiated approach towards technical regulations and standards in terms of the applicable substantive obligations and the manner of their enforcement.