Repairing the Defects’ of Article 2.1 of the WTO Technical Barriers to Trade Agreement: An Amendment Proposal

Abstract:

After years of dormancy, Article 2.1 of the Technical Barriers to Trade Agreement (TBT Agreement) finally came into the picture with the trilogy cases and EC – Seals.

The interpretations of the panels and the Appellate Body (AB) have however raised more questions than they have answered with the most confusing elements being the cumulative application of the TBT Agreement and the General Agreement on Tariffs and Trade 1994 (GATT), the definition of technical regulations, the inclusion of the core-principles of Most-Favoured-Nation (MFN) and national treatment in both Agreements, the ‘legitimate regulatory distinction’ that has been read into Article 2.1 and the role of Article 2.2 TBT Agreement.

This analysis will demonstrate that Article 2.1 has been reduced to redundancy as it is interpreted in the exact same manner as Articles I:1 and III:4 GATT when taken together with Article XX GATT. It will be argued that the additional value of the TBT Agreement lies, inter alia, in Article 2.2 and its ‘least-trade-restrictiveness’ obligation, which should be given a more prominent role. This study will also propose amendments to Article 2.1 in order for it to represent the aim of the TBT Agreement to combat ‘unnecessary’ obstacles to international trade.

The proposed amendments to the provision include the ‘tying’ of Articles 2.1 and 2.2, the change of sequence in the analysis of Articles 2.1 and 2.2 and the inclusion of a separate justifications clause under Article 2.1.

• Primary Source