Hostname: page-component-586b7cd67f-rdxmf Total loading time: 0 Render date: 2024-11-23T20:42:39.490Z Has data issue: false hasContentIssue false
  • English
  • Français

The Legitimate Regulatory Distinction Test: Incomplete and Inadequate for the Particular Purposes of the TBT Agreement

Published online by Cambridge University Press:  13 June 2016

JASON HOUSTON-MCMILLAN
JASON HOUSTON-MCMILLAN*
Affiliation:
Rhodes University
*
*Email: [email protected]
Get access Rights & Permissions [Opens in a new window]

Abstract

Prior to 2011, the Agreement on Technical Barriers to Trade had been somewhat neglected as a dispute-settlement mechanism, due in part to the lack of previous interpretation of the Agreement by WTO DSB Panels. In 2012, the Appellate Body adjudicated on three TBT disputes: US–Clove Cigarettes, US–Tuna II, and US–COOL, aiming to officially interpret and clarify Articles 2.1 and 2.2 of the Agreement by creating a distinct test for a measure's consistency with these Articles. This paper explores the relevant decisions of both the Panel and Appellate Body in the three disputes which led to the creation of the ‘legitimate regulatory distinction’ test. The substance behind this phrase, placed in context, is dissected along with the associated idea of ‘even-handedness’. The test attempts to simplify future interpretations regarding what will constitute unjustifiable discrimination, but at the cost of the necessary distinction between the GATT and the TBT Agreement being blurred. The result is a test which is incomplete and which fails to take account of the special circumstances surrounding the TBT Agreement.

Type
Review Article
Information
World Trade Review , Volume 15 , Issue 4 , October 2016 , pp. 543 - 562
Copyright
Copyright © Jason Houston-Mcmillan 2016 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Baldwin, R. E. (1970), Non-Tariff Distortions in International Trade, Washington, DC: Brookings Institution.Google Scholar
Carlone, J. (2014), ‘An Added Exception to the TBT Agreement after Clove, Tuna II, and Cool ’, Boston College International and Comparative Law Review, 37(1): 103–138.Google Scholar
Horn, H. and Weiler, J. H. H. (2005), ‘European Communities – Trade Description of Sardines: Textualism and its Discontent’, in Horn, H. and Mavroidis, P. (eds.), The WTO Case Law of 2002, Cambridge: Cambridge University Press, pp. 248–275.Google Scholar
Marceau, G. (2013), ‘The New TBT Jurisprudence in US–Clove Cigarettes, WTO US–Tuna II, and US–Cool ’, Asian Journal of WTO and International Health Law and Policy, 8(1): 2–39.Google Scholar
Mavroidis, P. C. (2004), ‘Developments of WTO Dispute Settlement Procedures Through Case-Law – Burden of Proof’, in Ortino, F. and Petersmann, E.-U. (eds.), The WTO Dispute Settlement System, 1995–2003, Netherlands: Kluwer Law International, pp. 160–172.Google Scholar
Mavroidis, P. C. (2013), ‘Driftin’ Too Far From Shore – Why the Test for Compliance with the TBT Agreement Developed by the WTO Appellate Body is Wrong, and What Should the AB Have Done Instead’, World Trade Review, 12: 509–531.Google Scholar
Meltzer, J. and Porges, A. (2013), ‘Beyond Discrimination? The WTO Parses the TBT Agreement in US — Clove Cigarettes, US — Tuna II (Mexico), and US—COOL ’, Melbourne Journal of International Law, 14: 2–28.Google Scholar
Motaal, D. A. (2011), ‘Overview of the World Trade Organization Agreement on Technical Barriers to Trade’, WTO Working Paper, April 2011.Google Scholar
Office of the United States Trade Representative (2014), ‘2014 Report On Technical Barriers To Trade’, Washington, DC: Office of the United States Trade Representative.Google Scholar
Pauwelyn, J. (2002) ‘Cross-Agreement Complaints before the Appellate Body: A Case Study of the EC–Asbestos Dispute’, World Trade Review, 1: 63–87.Google Scholar
Van den Bossche, P. and Zdouc, W. (2013), The Law and Policy of the World Trade Organization: Text, Cases, and Materials, 3rd edn, Cambridge: Cambridge University Press.Google Scholar
Voon, T. (2012), ‘International Decision: United States–Measure Affecting the Production and Sale of Clove Cigarettes ’, American Journal of International Law, 106(4): 219.Google Scholar
Weiler, J. H. H. (2000), ‘The Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal and External Legitimacy of WTO Dispute Settlement’, Harvard Jean Monnet Working Paper 9/00, www.jeanmonnetprogram.org/archive/papers/00/000901.rtf.Google Scholar