The rules of the SPS Chapter confirm and reinforce the rules under the WTO SPS Agreement by incorporating not only relevant provisions of the WTO SPS Agreement but also decisions of the WTO SPS Committee. Although most of the “SPS Agreement plus” rules are procedural in nature, they are expected to contribute to the enhanced governance of SPS measures in the Asia-Pacific region. In particular, the SPS Chapter would improve the transparency regarding the adoption and implementation of SPS measures. While the SPS Chapter requires improved transparency among the TPP parties, TPP parties may consider it more efficient and appropriate to take the same transparency measures to non-parties as well. If they apply the transparency measures required by the SPS Chapter on a nondiscriminatory basis, the impact of the SPS Chapter would extend beyond the region. Moreover, if the SPS Chapter is successfully implemented, it could lead to the creation of new rules on SPS measures under other FTAs and the WTO.

This chapter provides a unique account of the content of discussions in SPS and TBT Committees. Based on an in-depth analysis of Committee meeting minutes over 5 years (2010–2014), it looks into the demand side of information, i.e. in the information sought by WTO Members raising a concern in the SPS and TBT Committees and their purpose in raising such concerns. It finds that Members active in the STC discussions are either after further information or clarification of a measure, they intend to influence draft regulations through inputs to other Members’ regulatory process, or they try to address a problem they face in the implementation of the measure. STCs therefore allow WTO Members to engage in technical dialogue about domestic regulations, against the backdrop of the SPS and TBT Agreements, without there being a legal stake in the discussion. In other words, transparency can be seen as shaping the behaviour of WTO Members without there being new agreements or enforcement.

This part gives an overview of the core legal disciplines of the SPS and TBT Agreements, the transparency obligations and related practices that have developed, as well as the provisions enabling regulatory dialogue and co-operation. It demonstrates that the legal and institutional disciplines of the SPS and TBT Agreements set the ground for a Member-driven implementation process. Because the substantive obligations remain part of ‘incomplete contracts’ with limited information necessary for their operation, the transparency obligations and related committee practices enable regulatory dialogue as a way for Members to work together towards the most appropriate domestic measures. Ultimately, the robust transparency framework of the Agreements places the Members as guardians of legality of each others’ domestic regulations and allows them to cooperate to ensure effective implementation.

This chapter presents the core disciplines under the SPS and TBT Agreements, highlighting how they set requirements for regulators to balance their own public policy objectives with the WTO objectives of trade liberalisation. Such ‘balancing’ requirements result in obligations for regulators to ‘rationalise’ their domestic regulations in order to ensure their quality. This balancing is inherent to all measures under the scope of the SPS and TBT Agreements and stands out in the obligations not to discriminate and to adopt only measures that are necessary and/or based on scientific evidence. Ultimately, the purpose of this chapter is to highlight that transparency and related regulatory dialogue is fundamental to help both regulating Members and complaining parties in determining the consistency of domestic regulation with WTO SPS and TBT Agreements.