Document Type

Working Paper

Publication Date

2018

Abstract

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.

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