Abstract
The negotiators and drafters of the Agreement establishing the World Trade Organization(WTO), which includes the General Agreement on Tariffs and Trade 1947(GATT) and the Agreement on Technical Barriers to Trade(TBT), as well as other subagreements dealing with domestic regulation, such as the Agreement on Sanitary and Phytosanitary Measures(SPS), did not do a great job of doctrinal integration among the different documents that comprise the WTO Agreement. To be fair, at the end of the Uruguay Round, the hour was late and they may have felt that the basic ideas were sufficiently clear that it could all be sorted out in litigation. But in several contexts, including within the original GATT, the text of which dates from 1947, they covered the same ground in multiple places, without stating clearly how the different norms relate to one another,and without articulating plausible reasons for different treatment. For example, why is different language used for national treatment in three different places within Article III of GATT, and why is that language different from the language that appearsto have the same purpose in the TBT Agreement or in the SPS Agreement?
Highlights
The negotiators and drafters of the Agreement establishing the World Trade Organization (WTO)[1], which includes the General Agreement on Tariffs and Trade 1947 (GATT)[2] and the Agreement on Technical Barriers to Trade (TBT)[3], as well as other subagreements dealing with domestic regulation, such as the Agreement on Sanitary and Phytosanitary Measures (SPS)[4], did not do a great job of doctrinal integration among the different documents that comprise the WTO Agreement
Why is different language used for national treatment in three different places within Article III of GATT, and why is that language different from the language that appears to have the same purpose in the TBT Agreement or in the SPS Agreement?
One is the principle of cumulative application, which, while it does not apply in every context, generally applies to say that a particular national measure must comply with all applicable WTO rules
Summary
The negotiators and drafters of the Agreement establishing the World Trade Organization (WTO)[1], which includes the General Agreement on Tariffs and Trade 1947 (GATT)[2] and the Agreement on Technical Barriers to Trade (TBT)[3], as well as other subagreements dealing with domestic regulation, such as the Agreement on Sanitary and Phytosanitary Measures (SPS)[4], did not do a great job of doctrinal integration among the different documents that comprise the WTO Agreement. The principle of cumulative application says that there is no need to choose the most suitable norm and exclude others, and is a deferential way for panelists and Appellate Body members to approach the treaties: if the Member States included multiple rules purporting to apply to the same thing, and did not specify how they relate to one another, the judge applies them all. According to this approach, there is no need for the judge to exercise judgment to select the applicable rule.
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