Worth Shopping Around? Defending Regulatory Autonomy under the SPS and TBT Agreements

Abstract

AbstractWith its stringent requirements for scientific evidence, the SPS Agreement is commonly considered a greater constraint on WTO Members' regulatory autonomy than the TBT Agreement. It is consequently feared that Members may ‘forum shop’ by reconstructing SPS measures as TBT regulations and hereby circumvent WTO obligations. This article revisits these assumptions in the light of recent TBT jurisprudence and explores the respective challenges of defending policy preferences under the two technical regimes. It argues that in some respects – the characterization of a measure and the chosen level of protection – the SPS Agreement provides a securer basis for Members to defend regulatory choices. While evidential burdens are more explicitly demanding under SPS rules, the challenge of justifying a TBT measure's rationality should not be understated. In light of these reflections, this article concludes that ‘forum shopping’ is an unpromising strategy for protecting controversial SPS measures.