Document Type

Working Paper

Publication Date

2016

Center/Program

European Legal Studies Center

Abstract

Trade agreements increasingly contain provisions concerning ‘behind-the-border’ barriers to trade, often beyond current World Trade Organization (WTO) commitments (Dur, Baccini and Elsig 2014). Today’s preferential trade agreements (PTAs) may include, for instance, rules regarding ‘technical’ barriers to trade that go beyond the WTO’s Agreement on Technical Barriers to Trade (TBT Agreement), accelerating the replacement of differing national product safety standards with common international standards and thus reducing the trade-inhibiting effect of regulatory measures (Buthe and Mattli 2011; World Trade Organization 2012). Today’s PTAs may also go beyond WTO rules in prohibiting preferences for domestic producers in government procurement (Arrowsmith and Anderson 2011; Dawar and Evenett 2011), although here the effectiveness of the PTA provisions is in question (Rickard, Chapter 11 in this volume). PTA provisions concerning trade in services (Trebilcock and Howse 2005: 349ff.), restrictions on the use of trade remedies and anti-dumping (Bown 2011; Bown and Wu 2014) and provisions concerning the treatment of foreign investment (Buthe and Milner 2014; United Nations Conference on Trade and Development 2006) have similarly attracted substantial attention, as they often go beyond the rules in the multilateral trade regime. All of these measures involve governments committing to adopt – or to refrain from – particular policies. The stated objective of such commitments usually is to eliminate or at least reduce the trade-distorting effects of domestic policies (Bhagwati and Hudec 1996), though linking particular policy choices to trade might also serve other purposes. Linkage may, for instance, increase the bargaining space for ‘getting to yes’ on trade liberalisation (see Axelrod and Keohane 1986; Davis 2004) or reduce the bargaining space, arguably with the intent of retaining a higher level of protectionism (e.g. Salazar-Xirinachs 2000). PTA commitments on behind-the-border measures may also be adopted to ‘lock in’ policies by making it politically and economically more costly for the current government or its successors to depart from the policy choices specified in the trade agreement (Buthe and Milner 2008; Mansfield and Milner 2012; Moe 2005).?

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