How Regional Trade Agreements Deal With Disputes Concerning Their TBT Provisions?

09/14/2018

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Ana Cristina Molina and Vira Khoroshavina | World Trade Organization |

With the decline of tariffs, concerns about the use of non-tariff measures to restrict imports have grown (Malouche and Cadot 2012). Technical barriers to trade (TBT), which comprise standards, technical regulations, and conformity assessment procedures1 , are one of the types of non-tariff measures that have increased considerably over the past ten years. During the period 2005-2017, 1400 TBT measures were notified on average each year to the WTO, compared to an average of 625 during the period 1995-2005. This rise in the number of TBT measures has been accompanied with a surge in the number of specific trade concerns raised by Members in the WTO TBT Committee since 2005, that went from 128 in 2005 to 548 in 2017. The growing importance of TBT measures is also reflected in the content of regional trade agreements (RTAs). About 77% of RTAs include at least one provision concerning TBT measures and since 2010 the inclusion of such provisions in RTAs has been systematic (McDaniels and al., 2018). Today RTA provisions on TBT cover inter alia the development and application of standards, technical regulations, conformity assessments, but also transparency, equivalence, harmonization, and regulatory co-operation; and while some RTAs include these provisions in the form of single articles, others, especially recent ones, contain a dedicated section or chapter referring to Technical Barriers to Trade. The WTO Agreement has inspired much of the content of RTAs in this area, so that most RTA provisions on TBT tend to mirror the provisions under the WTO TBT Agreement, while few go beyond the latter (Molina and Khoroshavina, 2015). Most RTAs have also their own procedures to resolve disputes, and to the extent that RTA provisions on TBT are the same as (or similar to) provisions under the WTO TBT Agreement, the risk of overlap and conflicting rulings between the WTO and the RTA dispute settlement mechanisms (DSM) is latent. Such overlap, often referred to as jurisdictional overlap, can occur if a dispute can be brought to the RTA DSM and WTO DSM (Marceau, 2015, and Marceau and Wyatt, 2010), and this can happen when the dispute is over a provision that is the same (or similar) under the RTA and the WTO Agreement. This overlap may in turn lead to a conflict of rulings if the WTO Member does bring the dispute to both the RTA DSM (under RTA law) and WTO DSM (under WTO law) and obtains inconsistent or contradictory rulings. To avoid such potential conflicts of rulings, the parties to an RTA can follow different strategies, which can apply to all or some of the matters covered by the RTA. In particular, they can (a) provide for the exclusive use of the WTO DSM, (b) provide for the exclusive use of the RTA DSM, or (c) allow for the selection of the forum while prohibiting recourse to multiple fora. In this paper, we investigate how disputes over an RTA TBT provision (hereafter TBT disputes) are regulated in RTAs, in particular the extent to which RTAs treat such disputes differently from other types of disputes, and how they deal with any potential overlap with the WTO over a measure that is subject to the same (or similar) rules under the RTA and the WTO TBT Agreement. The majority of studies in this area have focused on the characteristics and relationship between the RTA and WTO DSMs (see for instance Chase and all. 2010; Mestral, 2013; Hammond, 2012; Kwak, K. and G. Marceau, 2010, and Marceau and Wyatt, 2009). But they do not specifically look at whether the RTA provisions on dispute settlement vary with the nature of the dispute.  

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