Technical Barriers To Trade Agreement Research Articles

ICT Standards Bodies and International Trade: What Role For The WTO?

Standardization of information and communication technologies (ICT) has become essential for the global economic activity. ICT standards provide for coordination between devices, interfaces, and networks; they support technical infrastructure, bolster e-commerce and rule digital markets. ICT standards also have a profound effect on global trade regulation since they serve both as enablers and barriers for transboundary commercial transactions. Because ICT standards are generally produced by the private sector, their trade-restrictive effects have so far largely managed to escape the purview of the World Trade Organization (WTO). However, due to their growing normative consequences, the status quo of ICT standards and ICT standards bodies in multilateral trade cannot be maintained any longer. This Article argues that the WTO has powerful tools to address trade-restrictive effects of ICT standards, at the very least by giving a normative account to institutional characteristics of ICT standards bodies, but that these tools are not effectively used by Members. Conversely, the current application of the Technical Barriers to Trade (TBT) instruments privileges powerful economic actors, expanding the gap between the developed and developing countries. A new, rule-based approach is required to re-establish the WTO’s relevance in standard setting and address power imbalances brought by technological convergence. ICT standards, TBT Agreement, TBT Committee Decision, TBT Code of Good Practice, technical standardization

The Role of WTO Committees through the Lens of Specific Trade Concerns Raised in the TBT Committee

AbstractThe existing literature shows that transparency and monitoring reduce trade costs, improve regulatory practices and build and sustain trust. In this paper, using 555 specific trade concerns (STCs) raised by the Technical Barriers to Trade (TBT) committee in the period 1995–2018, we develop a novel classification of STCs. We distinguish between STCs aiming to exchange information (transparency STCs) and those aiming to monitor compliance with the TBT agreement (monitoring STCs). We show that: (i) when STCs intend to foster transparency, they are mainly used in relation to notified measures, thus suggesting that they are used to acquire not only new but also higher quality information than that provided merely by notifications; (ii) when STCs intend to challenge the compliance of WTO members with the TBT Agreement, they primarily address draft measures, thus suggesting that they are used to promote accountability and improve good regulatory practices; and (iii) STCs raised at the draft stage are less likely to escalate to a dispute than those raised on adopted measures. Guided by these findings, we suggest the potential for some reforms to improve the efficiency of the system. These include: introducing a reporting system on the outcome of STCs; using STCs raised in committees to fill the gap of missing notifications; systematically using the STC mechanism at the stage of draft measures; and building in the dispute settlement system the requirement to raise the matter and discuss it within the relevant committee before filing a formal dispute settlement case.

Case-Note: European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (EC – Seals) WT/DS400/AB/R WR/DS401/AB/R 22 May 2014

The dispute concerns with discriminatory application of the EC Seal Regime against Canada and Norway. The EC Seal regime consists of an exception (Travelers’ exception) and two derogations (IC and MRM conditions) from the prohibition against the marketing of seal products in the EU. The Appellate Body (AB) report in this dispute is controversial in its interpretation of ‘technical regulation’ under the Technical Barriers to Trade (TBT) Agreement, as it has limited the scope of the Agreement to assess technical regulatory measures impacting trade. Further, such an interpretation is not supported by the previous Appellate Body rulings. From a legal standpoint, the dispute provides key differences between the National Treatment and Most-Favored Treatment principles of GATT 1994 as compared to the TBT Agreement The interpretation of ‘public morals’ makes the dispute a rare decision dealing with both the protection of public morals and animal welfare. It sheds light on the application of the chapeau of Art. XX GATT 1994 as it clarifies the importance of cooperative agreements and negotiations with the affected Members of the WTO prior to the imposition of any measure that may lead to an arbitrary and unjustifiable discrimination. Given the role of WTO as an organization with defined priorities; the AB’s holding that the animal welfare scheme by the EC violates the WTO obligations does not mean that WTO law does not recognize animal welfare as a moral concern. The ruling in this dispute is against the discriminatory application of such a measure. The AB has provided a balanced outcome in this dispute under Art. XX GATT 1994, even though there are some technical inconsistencies in the reasoning as regards the scope of the TBT Agreement.

Last Mile for Tuna (to a Safe Harbour): What Is the TBT Agreement All About?

The WTO Agreement on TBT (Technical Barriers to Trade) aims at taming NTBs (nontariff barriers), the main instrument segmenting markets nowadays. Some of the terms used to flesh out the commitments undertaken are borrowed from the GATT, and some originate in the modern regulatory reality as expressed through SDOs (standard-development organizations). It does not share a copy-cat function with the GATT, though. Alas, the WTO Appellate Body, by understanding words as ‘invariances’, e.g., interpreting them out of context (without asking what is the purpose for the TBT?), has not only exported its GATT case law, but also misapplied it into the realm of TBT, and ended up with significant errors. In the most recent report of the tuna-saga, an ongoing dispute between Mexico and the United States, a panel corrected some of the pre-existing misunderstandings regarding the scope and function of TBT. Problems though, persist. Importantly, we cannot rely on instincts of isolated adjudicators to get it right. Only a coherent test for consistency with the TBT can serve this function. This is what we still miss. In what follows, we explain why the current approach is erroneous, and advance an alternative understanding, which could help implement the TBT in a manner faithful to its negotiating intent, and objective function.

Last Mile for Tuna (to a Safe Harbor) What is the TBT Agreement All About?

The WTO Agreement on TBT (Technical Barriers to Trade) aims at taming NTBs (nontariff barriers), the main instrument segmenting markets nowadays. Some of the terms used to flesh out the commitments undertaken are borrowed from the GATT, and some originate in the modern regulatory reality as expressed through SDOs (standard-development organizations). It does not share a copy-cat function with the GATT, though. Alas, the WTO Appellate Body, by understanding words as ‘invariances’, e.g., interpreting them out of context (without asking what is the purpose for the TBT?), has not only exported its GATT case law, but also misapplied it into the realm of TBT, and ended up with significant errors. In the most recent report of the tuna-saga, an ongoing dispute between Mexico and the United States, a panel corrected some of the pre-existing misunderstandings regarding the scope and function of TBT. Problems though, persist. Importantly, we cannot rely on instincts of isolated adjudicators to get it right. Only a coherent test for consistency with the TBT can serve this function. This is what we still miss. In what follows, we explain why the current approach is erroneous, and advance an alternative understanding, which could help implement the TBT in a manner faithful to its negotiating intent, and objective function.

WTO Panel, Australia: CertainMeasures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging,WT/DS435/R, WT/DS441/R, WT/DS4

This case review concerns the long-awaited WTO Panel report in the Australia – Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging dispute, circulated to Members on 28 June 2018. In the first part, it examines the factual background of the case detailing Australia’s reasons for pursuing a legitimate public health objective in the form of tobacco plain packaging legislation as well as a brief summary of the other disputes arising from this measure. The second part discusses whether the measure adopted by Australia is a technical regulation that is ‘more traderestrictive than necessary to fulfil a legitimate objective taking account of the risks non-fulfilment would create’ pursuant to Article 2.2 of the Technical Barriers to Trade (TBT) Agreement. Lastly, it details the way in which the Panel applied its findings relating to Article 2.2 of the TBT Agreement to Article 20 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, pursuant to which ‘the use of a trademark during the course of trade shall not be unjustifiably encumbered by special requirements’.

A Study on the TBT Provisions in RTA and WTO/TBT Agreement: A Comparative Analysis on the Difference and Compatibility

The Steady lowering of non-tarrif measures with technical barriers to trade (TBT) being one of the most important categories. The WTO has engaged in some TBT liberalism, but much greater progress has been made regional and bilateral arrangements. This paper investigates whether TBT provisions include in RTAs differ from those under the WTO TBT agreement, and if they do, whether they entail broader commitments. In this paper we consider the problems of RTA TBT liberalization, and suggest alternatives to harmonize preferential TBT provisions. Finally, mutilateralizing preferential TBT provisions could serve to limit the problems caused by the difference and spaghetti-bowl effects of RTAs, and the most ideal solution to multilateralizing is a liberalization through the MRA and international standard governed by a multilateral agreement. This is the conclusion on my arguments in this paper.

The impact of Chinese technical barriers to trade on its manufacturing imports when exporters are heterogeneous

In the past few decades, China has put substantial efforts into liberalising its trade and economy that accelerated after its accession to the World Trade Organisation (WTO) in December 2001. In this period, China has significantly reduced its tariffs on manufacturing imports. However, the proliferation of non-tariff measures imposed by China has made it the country notifying the second largest number of technical barriers to trade (TBTs) to the WTO after the USA. Nevertheless, there has been no case in the dispute settlement mechanism of the WTO against China violating the TBT agreement. This paper investigates the heterogeneous impact of Chinese TBTs on the imports of manufacturing products at the 6-digit level of the Harmonised System during 2002–2015. Heterogeneity of exporting firms, sample selection bias, multilateral resistances, and endogeneity bias are controlled for according to the recent strands of gravity modelling. Using the disaggregated data and controlling for these problematic issues in the estimations, paper finds no significantly overall impact of Chinese TBT on imports in comparison with earlier studies in the literature. However, the impact differentiated across exporting countries hints at prohibitive effects against few exporters. The impact on traded prices and quantities provide more insights on how these TBTs affect different exporters. The imposed standards and regulations embedded in these trade policy measures allowed the Chinese economy to gain better access to larger exporters from the more developed economies who could easily comply with TBTs without increasing prices but substituting those exporters who did not comply with TBTs, leading to an overall insignificant net impact on imports values to China.

The Practical Countermeasures on Technical Barriers to Trade(TBT) in the WTO System

WTO체제의 안정적인 정착과 FTA의 확대로 가시적인 관세장벽은 철폐되거나 점진적으로 낮아지고 있으나, 미국, EU 등 선진국을 비롯한 개발도상국들의 위장되거나 숨겨진 보호무역주의에 따른 비관세장벽(NTB)은 계속 급증하고 있다. 그동안 무역기술장벽(TBT)은 각국의 국내문제로 인식하여 왔으며, GATT/WTO에서는 크게 논의되지 않았으나, 최근에는 비관세장벽으로서의 역할이 증가함에 따라이를 규율하기 위한 논의가 활발하게 진행되고 있다. WTO협정에 포함된 TBT협정은 기술규정, 표준, 적합성평가절차로 구성되어 있으며, 각국의 기술규제에 대하여 일정한 가이드라인을 제공하고 있다. 따라서 본 논문에서는 TBT협정의 특성과 내용을 이론적으로 분석한 후, 국내업계가 외국정부의 무역제한적인 조치에 직면한 경우 TBT협정을 어떻게 활용하여야 하는지를 실무적으로 설명하고, 또한정부와 공조하여 TBT협정을 효과적으로 활용하는 방법을 모색하였다. 결론적으로 TBT에 관한 연구는 우리나라 기업의 수출증대와 해외시장 개척에 크게 일조할 것이며, 국제표준화에 부합하는 국내표준화정책을 추진하도록 함으로써 수출상대국의 기준·인증제도 등 보호무역주의적인 TBT를 극복하는방안이 될 것이다.With the stable settlement of the WTO system and the extension of the FTA, visible tariff barriers have been either abolished or lowered gradually; however, Non-Tariff Barriers(NTB) have been increasing rapidly and continuously according to the disguised or hidden protectionism of developing countries as well as advanced countries including the US and EU. Previously, Technical Barriers to Trade(TBT) were regarded as domestic matters in each country and hardly discussed by the GATT/WTO; however, as their roles of NTB are increasing lately, they are disusing actively to regulate them. TBT Agreement included in WTO agreements consists of technical regulations, standards, and conformity assessments, and a fixed guideline is provided for technical control in different countries. Accordingly, this researcher here has analyzed the characteristics and contents of TBT Agreement theoretically and then explained how domestic industry should utilize TBT Agreement practically when any facing foreign government’s restrictive trade measures and sought ways to use TBT Agreement effectively through cooperation with the government. In conclusion, it is expected that research on TBT will contribute significantly to the increase of exportation of Korean companies as well as the exploitation of overseas markets. It will also allow us to promote domestic standardization policy conforming to international standardization; therefore, we will be able to overcome the protectionist TBT of our partners in exportation such as their criteria and certificate systems.

A Closer Look At WTO’s Third Pillar: How WTO Committees Influence Regional Trade Agreements

This paper illustrates how the work of World Trade Organization’s (WTO) standing bodies—its ‘Third Pillar’, as we will call it—is inspiring parties in regional trade agreements (RTA) negotiations and contributing to deeper integration. We focus on the work of the WTO technical barriers to trade (TBT) Committee and explore, as a case study, the extent to which the Committee's decision on principles for development of international standards (the Six Principles) has shaped provisions in RTAs. This Decision, arguably the most important decision taken by the TBT Committee, is meant to clarify which international standards may be a relevant basis for TBT measures; an issue that has been left undefined under the WTO TBT Agreement. Our analysis covers 260 RTAs, and shows that one quarter of RTAs has sharpened and hardened the Committee’s decision by making it directly applicable to Parties (in RTAs) whereas under the WTO they are ‘merely’ recommendations. A small number of RTAs follow a different approach and explicitly name the sources of relevant international standards.

Disciplining Private Standards Under the SPS and TBT Agreement: A Plea for Market-State Procedural Guidelines

This article shows that, although private standards could fall within the scope of the Sanitary and Phytosanitary(SPS) or Technical Barriers to Trade(TBT) Agreement, the responsibility of WTO Members to effectively ensure that private standard-setters are not more trade-restrictive than necessary is limited under the respective frameworks. Other mechanisms, rooted in a commercial disguise, would be more effective as they could incentivize private standard-setters to comply with the WTO legal system. It is argued that WTO Members worried about the trade-restrictive nature of private standards should draft procedural guidelines in collaboration with intergovernmental organizations(IGOs) and private multi-stakeholder standard-setting bodies. Such procedural guidelines should be aimed at simplifying the certification process and making it easier for farmers and producers to comply with the private standard.

On the Bottle: Health Information, Alcohol Labelling and the WTO Technical Barriers to Trade Agreement

Since 2010, the World Health Organization has advocated the use of health information labelling to inform consumers of the health risks related to alcohol consumption. The alcohol industry oscillates between opposing and supporting alcohol labelling. This article reviews the minutes of the meetings of the World Trade Organization’s Committee on Technical Barriers to Trade (TBT) (from 2010 to the present day) to garner unique insights into the specific features of alcohol health information labelling that are opposed by the alcohol industry. The article also identifies and analyses the trade law arguments that are made against these contested labelling measures. These arguments primarily come from the WTO’s TBT Agreement. Our view is that the TBT Agreement will provide little comfort to alcohol exporting members who seek to rely on it to challenge alcohol health labelling measures, such as those discussed in the TBT Committee.

Trade, Testing and Toasters: Bringing Conformity Assessment Procedures into the Spotlight

Even if firms adapt to technical regulations and standards in an export market, they still must prove compliance by undergoing conformity assessment procedures (CAPs), such as testing, inspection or certification. Duplication, delays or discrimination in CAPs can significantly increase trade costs, and this risk is reflected in their growing importance in World Trade Organization (WTO) discussions and bilateral and regional free trade agreements. This article conducts an empirical study of the trade issues that WTO Members encounter with CAPs as described in specific trade concerns (STCs) raised in the WTO Committee on Technical Barriers to Trade (TBT) during 2010– 2014. We observe that CAPs raise proportionally more concern among WTO Members than technical regulations do, and that testing and certification are the procedures that most frequently give rise to trade problems. The authors present the legal discipline applicable to CAPs under the TBT Agreement, describe the actors involved in their implementation as well as the common features of CAPs, and finally present with case studies how Members characterize CAP-related trade concerns in light of the framework of the TBT Agreement.

Technical barriers to trade notifications and dispute settlement within the WTO

The aim of this paper is to verify empirically whether the Specific Trade Concerns (STCs) regarding Technical Barriers to Trade (TBTs) notifications by WTO members can serve as an early warning system for past and future disputes (DS) covering allegedly trade restricting TBTs. WTO members, in order to increase transparency of trade policies, have made efforts to compile data on notified TBTs. For several years the WTO provides a TBT dataset, used in our paper, which covers the STCs raised by its members (“reverse” notifications). From 1995-2011, there have been 45 requests for consultation under the Dispute Settlement (DS) Body of the World Trade Organization (WTO) in order to identify possible violations of the technical barriers to trade (TBT) agreement. This paper attempts to find the linkages between DS cases citing the TBT agreement and the STC data regarding TBTs. The DS Body’s decisions regarding possible violations of the TBT agreement are discussed in detail. Afterwards, we analyze, descriptively and econometrically, the relationship between notified STCs and DS consultations regarding TBTs.

Measures with Multiple Competing Purposes afterEC – Seal Products: Avoiding a Conflict between GATT Article XX-Chapeau and Article 2.1 TBT Agreement: Table 1.

One of the issues on which the report of the Appellate Body in EC – Seal Products has stirred considerable debate among legal academics is how to deal with product regulations allegedly having multiple policy purposes under World Trade Organization (WTO) law. For the most part, academic discussions have focused on the Appellate Body’s analysis of this issue under the chapeau of Article XX of the General Agreement on Tariffs and Trade (GATT). This article seeks to contribute to this debate by taking a more systemic perspective and considering also how this type of measure would be appraised under Article 2.1 Agreement on Technical Barriers to Trade (TBT). It begins by examining why measures purportedly balancing multiple competing purposes, as in the EC - Seal Products case, may necessitate justification under WTO law and why the Appellate Body’s self-imposed rational connection requirement is not appropriate to that end. A second argument advanced in this article is that, contrary to what the Appellate Body appeared to suggest in EC – Seal Products, the legal standards for justifying discrimination under the GATT Article XX-chapeau and Article 2.1 TBT Agreement should be essentially the same, and thus conflicting interpretations avoided in relation to the rational connection standard. A two-tier test for bringing in line these justification provisions is suggested which enquires, first, into whether there is a genuinely legitimate rationale for the discrimination, and secondly, whether the discriminatory impact is necessary to achieve that legitimate purpose.

Sustainable Standard-Setting, Climate Change and the TBT Agreement

The increased importance of environmental protection led to the introduction of sustainability-related criteria in standard-setting practices. A discomfort with the functioning, working methods and certain rigidities of the global standardizing bodies such as the ISO led to a mushrooming of a new generation of private standard-setters at the transnational level that wanted to have a more direct influence over global production and supply chains. Many of these initiatives started as coalitions of relatively powerful downstream retailers or as domestic hybrid initiatives that went global due to their good reputation in setting standards for business conduct. Against this background, this paper reviews the current landscape of voluntary sustainability standards (VSS) globally as a means to organize, coordinate and manage efforts for corporate responsibility as well as climate change mitigation and adaptation. As these schemes grow in prominence, their effects on trade flows also become more visible and sometimes even worrisome. The paper analyses in particular whether the rules set out in the WTO Agreement on Technical Barriers to Trade (TBT) and the Code of Good Practice can tame this increasingly important form of transnational rule-making.

Is the ISO/IEC OOXML Standard an International Standard under the TBT Agreement?

The Technical Barriers to Trade (TBT) Agreement requires that national regulations and standards are based on international standards; however, it fails to define the terms international standard and international standardizing body (ISB). As of today, the panels and the Appellate Body of the World Trade Organization (WTO) have put more emphasis on the requirement that a standard is adopted by an ISB than the process through which it is adopted to be considered as ‘international' for the TBT Agreement. This article shows, using the standardization process of the OOXML in the ISO/IEC JTC1 as an example, that an ISB may adopt standards that are not necessarily international for the Agreement purposes. Hence, the importance that in future disputes the panels and the Appellate Body follow the path opened in the US-Tuna II case in which the Appellate Body stated that there may be additional procedural conditions that must be met for a standard to be considered international for the TBT Agreement.

WTO Discussions on Technical Barriers to Trade and Implications for Asia-Pacific Regional Economic Integration

As tariff barriers, of traditional and typical policy instruments in international trade, have been reduced significantly under preferential trade agreements as well as the multilateral trading system, non-tariff measures (NTMs), especially those of technical barriers to trade (TBT), become more and more important as means to control international trade. This study is to analyze and better understand TBT or more accurately, technical measures. Based on the analysis, it will attempt to identify some implications and ways to reduce TBT or to facilitate international trade, and ultimately contribute to enhancing economic integration in the Asia-Pacific region.The characteristics and trends of technical measures can be best identified and evaluated by the notifications of WTO members according to the Agreement on Technical Barriers to Trade (TBT Agreement), discussions in the WTO TBT Committee - especially specific trade concerns (STCs), and dispute settlement cases in TBT related issues. In fact, the number of TBT notifications have surged as various and comprehensive legitimate objectives of technical regulations were allowed and on other backgrounds since the launch of the WTO in 1995. It is noted, however, that TBT notifications are not regarded as TBT itself but as “potential” TBTs in this study. To analyze the trends and characteristics of TBT measures, this study utilizes the information in the WTO TBT notifications, STCs, and dispute settlement cases related to the TBT Agreement. Focus will be on the APEC member economies. Some trends and characteristics of TBT measures by the objective of regulation, by commodity, and by the country notified (e.g., developed and developing economies) will be analyzed and identified. Some of implications from the results are as follows. Due to the fact that technical measures are mostly domestic regulations but controlled at the border to restrict market access, there needs to be consultation, cooperation and harmonization of regulation rather than competition and retaliation. There also needs to be developed a system for information and experience exchange, capacity building including on development and implementation of standards, technical regulation, and conformity assessment procedures, especially for developing economies. APEC is well positioned to lead international cooperation in TBT with its diverse members and related specific institutions.

A Comment on the Appellate Body Report in EC‐Seal Products in the Context of the Trade and Environment Debate

The Appellate Body (AB) Report in EC‐Seal Products has potential ramifications for the environmental or social concerns in the World Trade Organization. It refines the jurisprudence on the balance between members' market access obligations and their right to give priority consideration to non‐trade concerns under the General Agreement on Tariffs and Trade (GATT) and the Agreement on Technical Barriers to Trade (TBT). This article outlines the main points of the AB Report, particularly related to what measures constitute technical regulations within the scope of the TBT Agreement, and the relationship between the GATT and TBT Agreement in the context of the pursuit of legitimate non‐trade concerns. It further highlights one of the issues raised in the report concerning processes and production methods (PPMs). In particular, it offers comments on what could constitute product‐related and non‐product related PPMs – a categorization that has emerged in the trade‐environment doctrine over the last 40 years and that should now be informed by the AB's interpretation of the TBT Agreement in this case.

Relevant International Standardss and Recognized Standardization Bodiess under the TBT Agreement

Owing to innovations and a growing consumer demand for better and safer products, the number of technical standards has been steadily increasing in recent years. As standardization is a major catalyst to global commerce, The World Trade Organization (WTO), a typical consensus-driven organization, exercises a high level of deference towards technical rationality as expressed through international standards. The WTO Agreement on Technical Barriers to Trade (TBT) even requires WTO Members to use relevant international standards and presumes compliance with the TBT when such standards are used. Nonetheless, practice shows that several international standards are adopted through processes which do not appear to respect the fundamental tenets of transparency and due process. Representativeness and inclusiveness are not guaranteed in several international standard-setting bodies (ISSBs) and power politics seem to prevail over good governance practices. Through recourse to negotiating history and case-law, this paper aims to analyse the origins of the WTO approach vis-a-vis standards and examine, from a normative perspective, what procedural and substantive guarantees an international standard and an international standard-setter will have to comply with in a era of increased legalization of international rule-making. Conceptually, the paper aims at the tentative identification of an analytical framework that would lead to a gradual democratization of international standardization.