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The Agreement on Technical Barriers to Trade

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The World Trade Organization: Legal, Economic and Political Analysis

Abstract

Technical regulations and standards play an important part in everyday life. Governments apply “technical regulations” (mandatory measures) and “standards” (voluntary measures), and they rely on measures to assess the conformity of goods with standards and regulations (“conformity assessment procedures”) for many widely accepted domestic policy purposes, among them to:

  • protect the health and safety of citizens and workers

  • preserve the environment

  • increase consumer confidence

  • prevent deceptive marketing practices

  • protect national security

  • protect animal and plant life and health

  • to assure product uniformity, compatibility and interchangeability.

There is however a darker side to the use of technical regulations and standards. With the progressive reduction in tariffs since 1948, WTO Members, like GATT Contracting Parties before them, have turned to technical regulations, standards and conformity assessment procedures as a means of protecting domestic producers. Such protectionism is sometimes overt—for example a requirement that a product sold in a country incorporate an environmental technology only manufactured in that country. At other times it is less overt, as in the case of an economically small country that establishes standards for the dimensions of an appliance that differ from those of other countries, making it harder for foreign manufacturers to supply the domestic market.1

The author wishes to thank Patrick Macrory, Peter Van den Bosche, Marielle Matthee and Veijo Heiskanen for their comments and suggestions on various drafts. Any errors that remain are those of the author. Portions of this chapter draw from a training manual produced by the author for the United Nations Conference on Trade and Development (“UNCTAD”), Course on Dispute Settlement, World Trade Organization, 3.10 Technical Barriers to Trade (2003). The discussion of EC—Sardines is drawn in part from a paper co-authored with Veijo Heiskanen, that was presented in autumn 2002 at the annual conference of the World Trade Law Association in London. It will appear in the World Trade Law Association Yearbook.

Large foreign manufacturers with substantial economies of scale might find it uneconomical to retool their factories to compete for market share in a small market.

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References

  1. Based on the Appellate Body’s decision in U.S.—Shrimp, it can be inferred that both the preamble to the WTO Agreement and the preamble of the TBT Agreement will play a role in the interpretation of the TBT Agreement. United States—Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, WT/DS58/AB/R (1998) (“U.S.-Shrimp”), ¶¶ 152–155.

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  70. No case was ever decided under the Tokyo Round Standards Code. Until recently decisions were also avoided under the Uruguay Round TBT Agreement. See, e.g., United States—Standards for Reformulated and Conventional Gasoline, supra note 71, ¶ 6.43 where, having decided the case based on the provisions of the GATT 1994, the Panel chose not to address the TBT questions that were presented.

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Author information

Authors and Affiliations

  1. White & Case, Switzerland

    Arthur E. Appleton J.D., Ph.D. (Of Counsel)

Authors
  1. Arthur E. Appleton J.D., Ph.D.
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Editor information

Editors and Affiliations

  1. International Trade Law Center, International Law Institute, Washington, D.C.

    Patrick F. J. Macrory (Director) (Director)

  2. White & Case, Geneva

    Arthur E. Appleton (Counsel) (Counsel)

  3. SAIS-Bologna, Johns Hopkins University, Bologna

    Michael G. Plummer (Professor of International Economics) (Professor of International Economics)

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Appleton, A.E. (2005). The Agreement on Technical Barriers to Trade. In: Macrory, P.F.J., Appleton, A.E., Plummer, M.G. (eds) The World Trade Organization: Legal, Economic and Political Analysis. Springer, Boston, MA. https://doi.org/10.1007/0-387-22688-5_8

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