The Agreement On Technical Barriers To Trade

CHAPTER 8
THE AGREEMENT ON TECHNICAL BARRIERS TO TRADE
Arthur E. Appleton
TABLE OF CONTENTS
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373
II. Brief Historical Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374
A. The GATT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374
B. The Tokyo Round Standards Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375
III. The TBT Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
A. Terminology in the TBT Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
1. Technical Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
2. Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379
3. Conformity Assessment Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
B. Structure and Scope of the TBT Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 380
1. Not Applicable to Trade in Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381
2. TBT Agreement vs. Government Procurement Specications:
Procurement Carved Out . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381
3. SPS vs. TBT Measures: SPS Carved Out . . . . . . . . . . . . . . . . . . . . . . . . 381
4. Probably Inapplicable to Non-Product-Related Processes and
Production Methods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 382
5. Applicability to Import Prohibitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383
6. Retroactive Application of the TBT Agreement . . . . . . . . . . . . . . . . . . 384
IV. Applicability of the TBT Agreement at Various Governmental and
Non-Governmental Levels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385
A. Technical Regulations (Articles 2 and 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385
B. Standards (Article 4 and the Code of Good Practice) . . . . . . . . . . . . . . . . . 386
C. Conformity Assessment Procedures (Articles 59) . . . . . . . . . . . . . . . . . . 386
1. Central Government Bodies (Articles 5 and 6) . . . . . . . . . . . . . . . . . . . 387
2. Local Government Bodies (Article 7) . . . . . . . . . . . . . . . . . . . . . . . . . . . 387
3. Non-Governmental Bodies (Article 8) . . . . . . . . . . . . . . . . . . . . . . . . . . . 387
4. International and Regional Application (Article 9) . . . . . . . . . . . . . . . . 388
V. Major Principles Applicable (in Various Forms) Throughout the TBT
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388
Arthur E. Appleton, J.D., Ph.D., Of Counsel, White & Case. 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 ECSardines 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.
372 THE AGREEMENT ON TECHNICAL BARRIERS TO TRADE
A. The Non-Discrimination Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388

1. Like Products . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389
B. The Prevention of Unnecessary Obstacles to International Trade . . . . . . 390
1. Legitimate Objectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391
2. Necessity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393
C. HarmonizationUse of Relevant International Standards . . . . . . . . . . . . 395
1. The Characterization of Codex Standard 94 as a Relevant International
Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396
2. Whether Codex Standard 94 Was Used as a Basis for the EC
Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397
3. Ineffective or Inappropriate Means . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398
4. Rebuttable Presumption Favoring the Use of Certain Harmonized
Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399
D. Equivalence and Mutual Recognition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400
E. Transparency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
F. Derogations from Transparency in the Event of Urgent Problems . . . . . . 402
VI. Other Important Provisions of the TBT Agreement . . . . . . . . . . . . . . . . . . . . . 402
A. Technical AssistanceArticle 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402
B. Special and Differential TreatmentArticle 12 . . . . . . . . . . . . . . . . . . . . . 403
C. Consultations And Dispute SettlementArticle 14 . . . . . . . . . . . . . . . . . . 405
1. ECAsbestos (Miscellaneous Points) . . . . . . . . . . . . . . . . . . . . . . . . . . . 406
2. ECSardines (Miscellaneous Points) . . . . . . . . . . . . . . . . . . . . . . . . . . . 406
D. Institutional Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407
1. The Work of the Committee on Technical Barriers to Trade . . . . . . . . 407
2. Built-in Reviews of the TBT AgreementArticles 12.10, 15.3
and 15.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 407
3. Web Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408
4. Doha Work Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408
VII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408
THE AGREEMENT ON TECHNICAL BARRIERS TO TRADE 373
I. Introduction
Technical regulations and standards play an important part in everyday life. Govern-
ments 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:
r protect the health and safety of citizens and workers
r preserve the environment
r increase consumer condence
r prevent deceptive marketing practices
r protect national security
r protect animal and plant life and health
r 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 as-
sessment procedures as a means of protecting domestic producers. Such protectionism is
sometimes overtfor 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 Uruguay Round Agreement on Technical Barriers to Trade (TBT Agreement)
is designed to allow WTO Members to pursue what they have agreed are legitimate
regulatory and standardization interests, while at the same time attempting to ensure that
such regulations and standards do not become unnecessary obstacles to international
trade in goods. This is a difcult balance to achieve since regulatory measures may
have legitimate as well as protectionist purposes. The TBT Agreement is also intended
to make the process of formulating, implementing and applying technical regulations,
standards, and conformity assessment procedures transparentso that Members are
aware of regulations and standards that exist in other Members jurisdictions and can
inuence their development and monitor their application.
These competing goals are reected in the TBT Agreements preamble or recitals
which sets forth the philosophy of this Agreement.2 These recitals set the TBT Agreement
1
Large foreign manufacturers with substantial economies of scale might nd it uneconomical to retool their
factories to compete for market share in a small market.
2
In relevant part the TBT Agreements preamble provides:
Recognizing the important contribution that international standards and conformity assessment sys-
tems can make in this regard by improving efciency of production and facilitating the conduct of
international trade;
Desiring therefore to encourage the development of such international standards and conformity
assessment systems;
Desiring however to ensure that technical regulations and standards, including packaging, marking
and labeling requirements, and procedures for assessment of conformity with technical regulations
and standards do not create unnecessary obstacles to international trade;
Recognizing that no country should be prevented from taking measures necessary to ensure the quality
of its exports, or for the protection of human, animal or plant life or health, of the environment, or for
squarely in the context of the Uruguay Round Agreement and the objectives of GATT
1994. However, the recitals go further. They establish the preference, given voice in
the Agreement, for the use of international standards and conformity assessment pro-
cedures. The recitals also establish the important policy objective, again repeated in
the TBT Agreement, of assuring that regulations, standards and conformity assessment
procedures do not create unnecessary obstacles to international trade.3
The preamble evidences that the drafters of the TBT Agreement sought to achieve a
balance between assuring that technical regulations, standards and conformity assessment
procedures do not become unnecessary obstacles to international trade and allowing
Members the regulatory autonomy to protect legitimate interests through the use of
these potential barriers.4 If the TBT Agreement is applied too strictly, the legitimate
policy interests of Members will be thwarted. If the TBT Agreement is applied too laxly,
technical regulations may be used for protectionist purposes and the gains Members have
achieved through progressive rounds of tariff reductions may be lost.
The result is that some sensitivity is required when dealing with TBT issues, in par-
ticular from a developing country viewpoint. Developing countries fear that technical
regulations and standards imposed by developed countries purportedly for social pol-
icy goals may in reality be for protectionist purposes. Developed countries fear that the
TBT Agreement will be applied too strictly and that trade measures designed to pursue
legitimate social policy objectives will be struck down.
This chapter provides a detailed examination of the provisions of the TBT Agreement.
As of August 2004, there have only been two WTO dispute settlement decisions inter-
preting the TBT Agreement. What little experience that exists is incorporated into the
following analysis.
II. Brief Historical Overview

A. The GATT
The 1947 General Agreement on Tariffs and Trade (GATT) does not treat technical
regulations and standards in much detail. Although the term regulation appears in
several places in the GATT Agreement, and the term standards is mentioned in Article
XI, only GATT Articles III:4, XI:2, and Article XX are signicant.5 Article III:4 of
the prevention of deceptive practices, at the levels it considers appropriate, subject to the requirement
that they are not applied in a manner which would constitute a means of arbitrary or unjustiable
discrimination between countries where the same conditions prevail or a disguised restriction on
international trade, and are otherwise in accordance with the provisions of this Agreement;
Recognizing that no country should be prevented from taking measures necessary for the protection
of its essential security interest;
Recognizing the contribution which international standardization can make to the transfer of technol-
ogy from developed to developing countries;
Recognizing that developing countries may encounter special difculties in the formulation and ap-
plication of technical regulations and standards and procedures for assessment of conformity with
technical regulations and standards, and desiring to assist them in their endeavors in this regard . . .
3
Packaging, marking and labeling requirements are singled out for special attention in the preambles fth
recital as potential obstacles to international trade.
4
Based on the Appellate Bodys 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 StatesImport Prohibition of Certain Shrimp and Shrimp Products, Report of the
Appellate Body, WT/DS58/AB/R (1998) (U.S.Shrimp), 152155.
5
Article XXs introductory paragraph (chapeau) uses the term measure which would include a regula-
tion. Article XX(d) specically uses the term regulations.
the GATT Agreement requires that the principle of national treatment be applied to
regulations and requirements affecting the internal sale, offering for sale, purchase,
transportation, distribution or use of like products. It is the GATT Article with the
greatest relevance to the treatment of regulations and standards, as well as procedures for
assessing whether products conform with regulations and standards.6 The basic principle
is that regulations and standards should not be applied so as to discriminate between like
foreign and domestic products, that is to say, similar foreign and domestic products, sold
within a country.7
Article XI:2 of the GATT Agreement applies to commoditiesa term of art among
trade lawyers.8 It permits import and export prohibitions necessary for the application
of standards and regulations for the classication, grading or marketing of commodities
in international trade. It operates as an exception to the general Article XI rule that only
duties, taxes and other charges should be applied to restrict imports and exports.
Lastly, Article XX(b) and (g) of the GATT Agreement establish exceptions to GATT
obligations, in practice often to Article III of the GATT Agreement, that may be applicable
to technical regulations and standards. Among other goals, these exceptions are designed
to offer GATT Contracting Parties, and now WTO Members, a means of protecting,
when necessary, human, animal or plant life and health, as well as enacting regulatory
measures relating to the protection of exhaustible natural resources. They can be used
to justify certain regulatory and standardization measures provided that, in the words of
Article XXs chapeau, the measures do not constitute a means of arbitrary or unjustiable
discrimination or a disguised restriction on international trade.
The above provisions of GATT 1947 do not establish a comprehensive legal structure
for the treatment of technical regulations and standards. However, the important principles
contained in these GATT provisions served as a basis for the Tokyo Round Standards
Code, and later the WTO TBT Agreement. In particular, the TBT Agreement contains
a general obligation of non-discrimination that draws inspiration from GATT Articles I
and III, and provides room for exceptions similar to those present in GATT Articles XX
and XXI.
B. The Tokyo Round Standards Code

This rst step toward the establishment of a more comprehensive legal structure to dis-
cipline the application of technical regulations and standards came with the growing
realization that GATT Article III:4 is subject to abuse. It is not particularly difcult for
6
GATT Article III:4 provides in part that:
The products of the territory of any contracting party imported into the territory of any other contracting
party shall be accorded treatment no less favorable than that accorded to like products of national
origin in respect of all laws, regulations and requirements affecting their internal sale, offering for
sale, purchase, transportation, distribution or use.
In brief, the national treatment principle requires that foreign and domestic like products be subjected
to similar tax and regulatory treatment. The national treatment principle, together with the MFN principle
(Article I), form the principle of non-discrimination that is fundamental to the WTO system. See Chapter 5
of this book.
7
The phrase like product is a term of art. It is discussed infra Part V(A)(1).
8
The term commodity usually refers to food or metal products. Such products are frequently traded by
investors. In Report of the GATT panel, CanadaMeasures Affecting Exports of Unprocessed Herring and
Salmon, L/6268, BISD 35S/98, 112 (1988), 4.24.3, herring and salmon appear to have been accepted by
the panel to be commodities for purposes of Article XI:2(b). The panel report dealt with whether a particular
Canadian law was a marketing regulation for commodities (sh products).
a government to implement technical regulations that comply with Article III:4, but that
nevertheless act as non-tariff barriers. Non-tariff barriers, in the form of domestic regu-
lations, make excellent protectionist tools and were used by certain GATT Contracting
Parties, including Japan,9 to protect domestic producers. The use of non-tariff barriers
to protect domestic manufacturers necessitated the establishment of a stronger regime
governing the application of technical regulations and standards. Negotiations on the re-
duction of non-tariff barriers during the Tokyo Round eventually led to the Tokyo Round
Agreement on Technical Barriers to Trade,10 usually known as the Standards Code, a
title that remains useful because it distinguishes the Tokyo Round TBT Agreement (the
Standards Code) from the Uruguay Round TBT Agreement.
The Standards Code came into effect on January 1, 1980. It was a plurilateral
agreementmeaning that GATT Contracting Parties could but were not required to be-
come members. Nevertheless, 32 Contracting Parties, primarily developed and advanced
developing countries, opted to join. Despite the fact that its membership was limited and
the Standards Code lacked a strong dispute settlement mechanism (which, like much of
the GATT regime, was dependent on a consensus of its members), it provided a good
testing ground for how best to discipline the use of technical regulations and standards.
Signicant portions of the WTO TBT Agreement are drawn from the Standards Code.
III. The TBT Agreement

The Uruguay Round Agreement on Technical Barriers to Trade entered into force on
January 1, 1995. Much was learned from the Tokyo Round experience, and weaknesses
present in the Tokyo Round Standards Code are addressed in the TBT Agreement. Two
examples illustrate this point: (1) the TBT Agreement is an integral part of the single
undertaking that forms the WTO Agreementmeaning that the TBT Agreement is a
multilateral undertaking and as a result all WTO Members are bound by its obligations;
and (2) the TBT Agreement has a much stronger enforcement mechanism, being subject
to the WTO Agreements Dispute Settlement Understanding (DSU) which does not
require consensus for adoption of panel and Appellate Body recommendations.
A. Terminology in the TBT Agreement

The TBT Agreement is applicable to technical regulations, standards, and con-
formity assessment proceduresprocedures used to assess compliance with techni-
cal regulations and standards. Each of these terms is dened in Annex 1 of the TBT
Agreement.
1. Technical Regulation
A technical regulation is dened in Annex 1 Paragraph 1 of the TBT Agreement as a:
Document which lays down product characteristics or their related processes and production
methods, including the applicable administrative provisions, with which compliance is
mandatory. It may also include or deal exclusively with terminology, symbols, packaging,
marking or labeling requirements as they apply to a product, process or production method.
9
Jackson singles out the case of Japan. JOHN H. JACKSON, THE WORLD TRADING SYSTEM: LAW AND POLICY
OF INTERNATIONAL ECONOMIC RELATIONS 222 (1997).
10
The (Tokyo Round) Agreement on Technical Barriers to Trade, GATT, BISD, 26/S 8 (1980), (entered into
force January 1, 1980), reprinted in 18 ILM 1079 (1979).
In ECAsbestos the Appellate Body set forth a three-part test, derived from Annex 1.1
of the TBT Agreement, for a document to be classied as a technical regulation:
1) The document must apply to an identiable product or group of products,
2) The document must lay down one or more product characteristics, and
3) Compliance with the product characteristics must be mandatory.11
One example of a technical regulation would be a law stating that only kitchen ovens that
are one meter wide may be sold in State X. A second example would be a law stating that
toys could not be sold in State X unless their packaging was recyclable. Kitchen ovens
or toy packaging that do not comply with the terms of these technical regulations would
not be permitted to be sold in State X, whether produced in State X or imported.
Being mandatory, technical regulations have the greatest potential to restrict interna-
tional trade. This is because the sale of products with characteristics that do not meet
applicable technical regulations will be prohibited by law.
The three criteria presented in ECAsbestos were reiterated and applied in EC
Sardines where both the Panel and the Appellate Body examined as a threshold issue
whether a particular trade measure was a technical regulation within the sense of Annex
1.1 of the TBT Agreement.12 Since this important TBT case is referred to several times
in this chapter, a brief description of the facts is provided below.
ECSardines concerned a complaint by Peru against the European Communities.
The case involved the marking or labeling for sale of preserved and canned sh products
made from two small and rather similar sh speciesSardina pilchardus Walbaum which
is primarily found in the Eastern North Atlantic, Mediterranean and Black Seas, and
Sardinops sagax sagax, which is found off the Peruvian and Chilean coasts. Both belong
to the same family and sub-family, but to a different genus.13
In June 1989 the European Union adopted Council Regulation (EEC) No. 2136/89
(EC Regulation), which lays down common marketing standards for preserved sar-
dines.14 The EC Regulation reserved the use of the name sardines to Sardina
pilchardus, a species found in or near European waters, thereby effectively prohibiting
Peru from marketing its Sardinops sagax sagax as preserved sardines in the European
Union.
The Panel found that . . . the EC regulation is a technical regulation as it lays down
product characteristics for preserved sardines and makes compliance with the provisions
contained therein mandatory.15 The EC appealed this decision, arguing that the mea-
sure is not a technical regulation based on the test established in ECAsbestos since
the regulation allegedly failed to meet the rst and second criteria of the test.16 More
specically the EC argued that the product was not identiable since the product coverage
11
European CommunitiesMeasures Affecting Asbestos and Asbestos-Containing Products, Appellate
Body Report, WT/DS135/AB/R (2001) (ECAsbestos), 6670 (emphasis added).
12
European CommunitiesTrade Description of Sardines, Report of the Panel, WT/DS231/R,
7.247.35; and European CommunitiesTrade Description of Sardines, Report of the Appellate Body,
WT/DS 231/AB/R (2002) (ECSardines), 173195.
13
Sardina pilchardus Walbaum and Sardinops sagax sagax both belong to the Clupeidae family and the
Clupeinae sub-family. They belong to the genus Sardina and Sardinops respectively. ECSardines, Report
of the Panel, supra note 12, 2.12.2.
14
Council Regulation (EEC) 2136/89 of June 21, 1989 Laying Down Common Marketing Standards for
Preserved Sardines. The EC Regulation is appended to the Panel Report, Annex 1. See ECSardines,
Report of the Panel, supra note 12, 2.52.6.
15
ECSardines, Report of the Panel, supra note 12, 7.35.
16
ECSardines, Report of the Appellate Body, supra note 12, 173174 (citing ECAsbestos).
of its regulation is limited to preserved Sardina pilchardus, and the EC measure does
not regulate sh made from Sardinops sagax or any other species.17 Second, it argued
that the requirement to state a certain name on the label does not involve just a labeling
requirement but also a substantive naming rule. It sought to draw a distinction between
labeling requirements, which it accepted are covered by the TBT Agreement, and naming
rules, which it argued do not reect product characteristics and are therefore not covered
by the TBT Agreement.18
The Appellate Body rejected both arguments. With respect to the rst argument the
Appellate Body found that a product does not have to be mentioned explicitly in a
document for the product to be identiable, and that identiable does not mean expressly
identied.19 The Appellate Body upheld the Panels nding that the EC Regulation is
applicable to an identied product, preserved sardines. More importantly it rejected the
ECs contention that preserved sardines only referred to Sardina pilchardus. In doing so,
it followed its reasoning in ECAsbestos, that product identication relates to aspects
of compliance and enforcement; since the EC Regulation had been enforced against
imports of Sardinops sagax, Sardinops sagax was an identiable product for purposes
of the EC regulation.20
Next the Appellate Body turned to the question of whether the EC Regulation laid down
product characteristics. Again turning to its ndings in ECAsbestos the Appellate Body
reiterated that product characteristics include not only features and qualities intrinsic to
the product, but also those that are related to it, such as the means of identication.21
It found it unnecessary to determine whether the TBT Agreement distinguishes between
labeling and naming, holding instead that the requirement that preserved sardines
be prepared exclusively from Sardina pilchardus establishes a product characteristic
intrinsic to preserved sardines. Further, it agreed with the Panels nding that a means
of identication is a product characteristic.22
The Appellate Bodys decision in ECSardines is signicant as it claries what is a
technical regulation for TBT purposesa threshold issue that will arise in other TBT
cases. The ECs position was untenable, both legally and from a policy perspective.
In effect the EC argued that product identication should be determined based on a
strict reading of the text of its regulation and not based on the legal consequences of
its regulation for imports. Had the ECs position prevailed, it would have become far
easier to use product names to evade the classication of a trade measure as a technical
regulation. The Appellate Bodys decision thus helped preserve the effectiveness of the
TBT Agreement.
The denition in the TBT Agreement of a technical regulation is broad. Nevertheless,
Article 2.8 of the TBT Agreement does establish a preference for specifying technical
17
Id. 173.
18
Id. 174.
19
Id. 180.
20
Id. 185186, citing ECAsbestos, 70 which states:
A technical regulation must, of course, be applicable to an identiable product, or group of products.
Otherwise, enforcement of the regulation will, in practical terms, be impossible [ . . . ] Although the
TBT Agreement clearly applies to products generally, nothing in the text of that Agreement suggests
that those products need be named or otherwise expressly identied in a technical regulation.
Moreover, there may be perfectly sound administrative reasons for formulating a technical regulation
in a way that does not expressly identify products by name, but simply makes them identiablefor
instance, through the characteristic that is the subject of regulation.
21
ECSardines, Report of the Appellate Body, supra note 12, 189 (citing ECAsbestos 67).
22
ECSardines, Report of the Appellate Body, supra note 12, 190.
regulations based on product requirements rather than design or descriptive standards. By

so doing, the Agreement leaves the Members with the maximum discretion to determine
how to address legitimate TBT objectives. An example of a technical regulation based
on a product requirement would be a provision requiring that a car bumper be able to
withstand an impact at a speed of six kilometers/hour without damage. The same type of
requirement based on a design or descriptive standard might require that car bumpers be
made of a certain grade of steel and be mounted on specic springs designed to recoil a
minimum amount upon impact.
2. Standard
The TBT Agreement is also applicable to standards. A standard is dened in Annex 1
Paragraph 2 of the TBT Agreement as a:
Document approved by a recognized body, that provides, for common and repeated use,
rules, guidelines or characteristics for products or related processes and production methods,
with which compliance is not mandatory. It may also include or deal exclusively with
terminology, symbols, packaging, marking or labeling requirements as they apply to a
product, process or production method.23
The critical distinction between a technical regulation and a standard is that a technical
regulation is mandatory and a standard is voluntary. A merchant can still try to sell a
product that does not meet an applicable standard. Likewise an importer can import
products that do not meet an established standard.
An example of a standard would be a guideline issued by a standardizing body es-
tablishing a common format for DVDs (digital video disks). Manufacturers whose DVD
players use the common format would be able to advertise their conformity with the
standard. Such DVD players would probably be more attractive to consumers given that
consumers want to be able to rent DVDs that will work on their players. DVD players that
use a different format could still be sold but the manufactures would lose any marketing
benets conferred by using the common standard. A familiar example of standards that
illustrates how important standards can be, is the competition that occurred between two
video standardsVHS and Betamax. The VHS standard triumphed over Betamax. Con-
sumers who had purchased a video-recorder that used the Betamax standard eventually
found that they were unable to rent movies recorded using the Betamax standard.
Another example of a standard would be rules or guidelines governing the use of a
recyclable symbol. Products conforming to the rules, guidelines or characteristics for
products established by the standardizing authority would be able to bear the recyclable
symbol.24 Products that do not meet these criteria would not be permitted to bear the
symbol, but would still be permitted to be sold.
Voluntary standards are used for many reasons, chief among them to assure proper
performance, uniformity and interchangeability of a particular good. For example, man-
ufacturers of products requiring batteries usually adapt their products to standardized
voltages, and manufacturers of machines benet by using standardized nuts and bolts
so that repairs are more easily made. In the latter example, the manufacturers benet
by being able to buy standard nuts and bolts instead of producing them themselves; the
users benet by being able to make repairs more easily.
Neither a WTO panel nor the Appellate Body has had the opportunity to rule in a case
involving a Members standards. A dispute involving standards also never arose under
the Tokyo Round Standards Code.
23
TBT Agreement, Annex 1.2.
24
See TBT Agreement, Annex 1 2.
3. Conformity Assessment Procedure

Lastly, the TBT Agreement is applicable to conformity assessment procedures. A con-
formity assessment procedure is dened in Annex 1 Paragraph 3 of the TBT Agreement
as:
Any procedure used, directly or indirectly, to determine that relevant requirements in tech-
nical regulations or standards are fullled.
Explanatory note:
Conformity assessment procedures include, inter alia, procedures for sampling, testing and
inspection; evaluation, verication and assurance of conformity; registration, accreditation
and approval as well as their combinations.
Conformity assessment procedures are, as the term suggests, procedures for determining
whether a given product conforms to an applicable technical regulation or standard. For
example, if a WTO Member requires as a condition for the sale of a machine tool that a
special guard be present to protect the hands of users, an inspection to determine if the
guard is in place would be a conformity assessment procedure implemented to verify
compliance with a technical regulation.
Likewise, if a WTO Member establishes standards whereby certain products may bear
a recyclable symbol, a test to make sure that a product meets the standards required
to bear the symbol would be a conformity assessment procedure implemented to verify
compliance with a standard. Regardless of whether the product conforms to the standard,
it can be sold. The question is only whether or not the product will be permitted to bear
the symbol.
B. Structure and Scope of the TBT Agreement

The scope of the TBT Agreement is set forth in TBT Article 1, and by reference to
Annex 1 which denes the key terms, including: technical regulations, standards and
conformity assessment procedures. Technical regulations, standards, and conformity
assessment procedures are treated in separate portions of the TBT Agreement. Technical
regulations are dealt with in Articles 23. Standards are governed by Article 4 and
Annex 3the Code of Good Practice for the Preparation, Adoption and Application
of Standards. This Code sets forth almost all of the substantive provisions governing
the treatment of standards. Conformity assessment procedures fall under Articles 59.
The remainder of the Agreement, Articles 1014, deals with transparency, technical
assistance, special and differential treatment, institutional issues and dispute settlement.
Pursuant to the respective denitions set forth in Annex 1, technical regulations and
standards are given form in documents. Written form is thus implied. Technical regu-
lations and standards may relate to product characteristics, terminology, symbols, pack-
aging, marking or labeling requirements. As the principal difference between a technical
regulation and a standard is that compliance with a technical regulation is mandatory
while compliance with a standard is voluntary, technical regulations require a certain de-
gree of product standardization, while standards merely encourage standardization. Con-
formity assessment procedures serve to verify whether this standardization has occurred
through sampling, testing, inspection, evaluation, verication, registration, accreditation
and approval procedures.
The TBT Agreement does not apply to all technical regulations, standards and confor-
mity assessment procedures. Several provisions within the WTO Agreement, and more
specically the TBT Agreement, limit its scope. They are described in the rst ve
subsections below. One Appellate Body decision establishes the retroactive scope of the
TBT Agreement. It is described in the sixth subsection.
1. Not Applicable to Trade in Services

The TBT Agreement is a portion of Annex 1A of the WTO Agreement. Annex 1A
contains the Multilateral Agreements on Trade in Goods. These covered agreements,
including the TBT Agreement, do not apply to trade in services. As a result, trade in
services does not fall within the TBT Agreement.
2. TBT Agreement vs. Government Procurement Specications:

Procurement Carved Out
Pursuant to Article 1.4 of the TBT Agreement, the TBT Agreement is not applica-
ble to government procurement activitiesmore specically purchasing specications
prepared by governmental bodies for the production or consumption requirements of
governmental bodies. Government purchasing specications may fall instead under the
WTO Agreement on Government Procurement (AGP). The AGP is a plurilateral agree-
ment and the majority of developing countries, as well as a few developed countries, have
not joined the AGP. Their procurement activity falls neither under the TBT Agreement
nor under the AGP.
3. SPS vs. TBT Measures: SPS Carved Out

Pursuant to Article 1.5 of the TBT Agreement, the TBT Agreement is not applicable
to sanitary and phytosanitary measures as dened in Annex A of the Agreement on
Sanitary and Phytosanitary Measures (SPS Agreement). This is an explicit carve-out
of SPS measures from the purview of the TBT Agreement. As a result, to understand
the scope of the TBT Agreement, one must review Annex A(1) of the SPS Agreement.
This provision denes an SPS measure as any measure applied:
(a) to protect animal or plant life or health within the territory of the Member from risks
arising from the entry, establishment or spread of pests, diseases, disease-carrying
organisms or disease-causing organisms;
(b) to protect human or animal life or health within the territory of the Member from risks
arising from additives, contaminants, toxins or disease-causing organisms in foods,
beverages or feedstuffs;
(c) to protect human life or health within the territory of the Member from risks arising from
diseases carried by animals, plants or products thereof, or from the entry, establishment
or spread of pests; or
(d) to prevent or limit other damage within the territory of the Member from the entry,
establishment or spread of pests.
Sanitary or phytosanitary measures include all relevant laws, decrees, regulations, require-
ments and procedures including, inter alia, end product criteria; processes and production
methods; testing, inspection, certication and approval procedures; quarantine treatments
including relevant requirements associated with the transport of animals or plants, or with
the materials necessary for their survival during transport; provisions on relevant statistical
methods, sampling procedures and methods of risk assessment; and packaging and labeling
requirements directly related to food safety.
Despite the fact that Article 1.3 of the TBT Agreement provides that the TBT Agreement
is applicable to agricultural products, it is the SPS Agreement and not the TBT Agreement
that applies when a Member is protecting animal, plant or human health from the entry,
spread or establishment of pests, diseases, additives, contaminants, toxins or disease

carrying organisms within its territory.
Cases do exist where different aspects of a products life-cycle may fall under the
coverage of both agreements. For example, agricultural products might be subject to an
SPS inspection for pests at the border, then incorporated into a canned soup that is subject
to labeling requirements requiring (1) the specication of the products nutritional content
and (2) whether the container is recyclable (both falling under the TBT Agreement).25
However, it is virtually impossible that the two agreements would apply simultaneously
to the same subject matter. A hypothetical instance where the distinction is somewhat
blurred could be the case of hormone-treated meat. If an SPS measure is introduced to
prevent health risks allegedly associated with the consumption of hormone-treated meat,
the SPS Agreement would apply. If there are no health risks, the TBT Agreement might
still be applicable, for example to a technical regulation introduced to prevent deceptive
practices (arguably a labeling requirement intended to alert consumers to the fact that they
are purchasing meat from an animal that was treated with hormones). Admittedly this
example does raise questions related to the treatment of non-product-related production
methods which are discussed in the following section.
4. Probably Inapplicable to Non-Product-Related Processes and Production Methods

The denitions of a technical regulation and a standard quoted above are ambiguous
as to whether the TBT Agreement applies to technical regulations and standards reg-
ulating manufacturing processes and production methods (PPMs) when the PPMs
utilized are not detectable in the nal productso-called non-product-related processes
and production methods (NPR-PPMs). This is a controversial issue. The view gener-
ally held in the trade community is that the TBT Agreement was not intended to apply
to PPMs, unless the PPM is product-related (detectable in the nal product).26
For example, it is highly unlikely that the TBT Agreement would apply to a law
prohibiting the importation of aluminum produced using electricity derived from nuclear
power. Instead, it is probable that GATT Article XI would be applied in a challenge to
such a regulation on the grounds that generally only duties, taxes and other charges may
be applied to restrict imports.
Nevertheless, there is one slight uncertainty. As just noted, an ambiguity exists in the
denitions of technical regulation and standard in Annex 1 of the TBT Agreementit
is somewhat unclear whether NPR-PPMs were meant to be excluded from the denitions
of technical regulations and standards, and thus from the TBT Agreement. As a result,
and although highly improbable, room may exist to argue that the TBT Agreement could,
in certain instances, also be applied to NPR-PPMs.
It bears noting that WTO Members have notied certain NPR-PPMs to the TBT
Committee (for example, eco-labeling schemes based on a life-cycle analysis).27 Such
25
The SPS Agreement and not the TBT Agreement would apply to a labeling requirement if the intent or
purpose of the labeling requirements is sanitary or phytosanitary in nature within the meaning of Annex A
1 of the SPS Agreement.
26
See generally ARTHUR E. APPLETON, ENVIRONMENTAL LABELLING PROGRAMMES: INTERNATIONAL TRADE
LAW IMPLICATIONS 9294 (1997).
27
Notication in the TBT sense of the term means to inform ofcially other WTO members of a particular
action through the WTO Secretariat. Eco-labeling schemes are usually voluntary labeling programs where a
label is awarded to environmentally friendlier products based on an environmental assessment of all phases
of a products life-cycleincluding, production, use, and disposal.
notications do not seem to be evidence that a particular Member believes the TBT
Agreement applies to NPR-PPMs. They are instead indicative of the efforts that
certain WTO Members have made to ensure the transparency of their eco-labeling
schemes.
Some may argue that the Appellate Bodys decisions in U.S.Shrimp suggests a
willingness of the Appellate Body to close its eyes to the NPR-PPM debate, and from
this draw the conclusion that the TBT Agreement should be applied to NPR-PPMs.
In U.S.Shrimp, the Appellate Body found (without discussing the PPM issue) that a
U.S. regulatory measure, applicable to an NPR-PPM, and which violated GATT Article
XI, satised an exception to GATT Article XX, but failed to meet the conditions of
Article XXs chapeau.28 In a subsequent proceeding under Article 21.5 of the DSU,29 the
Appellate Body ruled that a modied version of the U.S. measure met the conditions of
Article XXs chapeau. This latter decision allowed the United States to impose an import
ban based on an NPR-PPM.
The relevance of U.S.Shrimp for purposes of the TBT Agreement has not been
established. U.S.Shrimp did not involve the TBT Agreement and the provisions at
issue are not the same. It is doubtful that U.S.Shrimp lends much legal support for
the argument that the TBT Agreement should be applied to NPR-PPMs, although from
a policy perspective U.S.Shrimp does seem to take a friendlier view of trade-related
environmental measures based on NPR-PPMs.30
5. Applicability to Import Prohibitions

The denition of technical regulation contained in Annex 1 to the TBT Agreement
does not list import prohibitions or bans among the covered measures. However, the
ECAsbestos decision established that the TBT Agreement is applicable to import pro-
hibitions and bans that are based on product characteristics, and exceptions to the pro-
hibition or ban (based also on particular product characteristics) exist. In EC- Asbestos
the Appellate Body found:
Like the Panel, we consider that, through these exceptions, the measure sets out the ap-
plicable administrative provisions, with which compliance is mandatory for products with
certain objective characteristics. The exceptions apply to a narrowly dened group of
products with particular characteristics. Although these products are not named, the mea-
sure provides criteria which permit their identication, both by reference to the qualities the
excepted products must possess and by reference to the list promulgated by the Minister.
Viewing the measure as an integrated whole, we see that it lays down characteristics
for all products that might contain asbestos, and we see also that it lays down the applicable
administrative provisions for certain products containing chrysotile asbestos bers which
are excluded from the prohibitions in the measure. Accordingly, we nd that the measure is a
document which lays down product characteristics . . . including the applicable admin-
istrative provisions, with which compliance is mandatory. For these reasons, we conclude
that the measure constitutes a technical regulation under the TBT Agreement. 31
28
U.S.Shrimp, supra note 4, 125145.
29
United StatesImport Prohibition of Certain Shrimp and Shrimp Products (Recourse to Article 21.5 of
the DSU by Malaysia), WT/DS58/AB/RW (2001), 9193.
30
Notication in the TBT sense of the term means to inform ofcially other WTO members of a particular
action through the WTO Secretariat. Eco-labeling schemes are usually voluntary labeling programs where a
label is awarded to environmentally friendlier products based on an environmental assessment of all phases
of a products life-cycleincluding, production, use, and disposal.
31
ECAsbestos, supra note 11, 7475. (footnote omitted)
6. Retroactive Application of the TBT Agreement

In ECSardines the Appellate Body dealt with whether the TBT Agreement applies to
technical regulations adopted before the entry into force of the Uruguay Round Agree-
ment on January 1, 1995. More specically, the question posed was whether the EC had
an obligation pursuant to Article 2.432 of the TBT Agreement to reassess its existing
technical regulations in light of the adoption of new international standards.
The Appellate Body recalled that under Article 28 of the Vienna Convention treaties
do not generally apply retroactively. According to the Appellate Body, this principle
of interpretation was relevant to the interpretation of the covered agreements.33 The
Appellate Body then examined the ECs argument that the TBT Agreement applied only
to the preparation and adoption of technical regulations, but not to their maintenance. The
Appellate Body found that the text of Article 2.4 of the TBT Agreement did not support the
ECs contention. The Appellate Body referred to its reasoning in ECHormones, where
it addressed the temporal scope of the SPS Agreement. There, the Appellate Body stated:
We agree with the Panel that the SPS Agreement would apply to situations or measures that
did not cease to exist, such as the 1981 and 1988 Directives, unless the SPS Agreement
reveals a contrary intention. We also agree with the Panel that the SPS Agreement does not
reveal such an intention. The SPS Agreement does not contain any provision limiting the
temporal application of the SPS Agreement, or of any provision thereof, to SPS measures
adopted after 1 January 1995. In the absence of such a provision, it cannot be assumed
that central provisions of the SPS Agreement, such as Articles 5.1 and 5.5, do not apply to
measures which were enacted before 1995 but which continue to be in force thereafter. If
the negotiators had wanted to exempt the very large group of SPS measures in existence on
1 January 1995 from the disciplines of provisions as important as Articles 5.1 and 5.5, it
appears reasonable to us to expect that they would have said so explicitly.34
Like the trade measure in ECHormones, the EC Regulation at issue in ECSardines

was an existing regulation that had not ceased to exist. Nothing in Article 2.4 of the TBT
Agreement suggested that there was a contrary intention to exclude the applicability
of the Agreement to existing measures. Article 2.4 was a central provision of the TBT
Agreement, and in the Appellate Bodys view it could not just be assumed that such a
central provision does not apply to existing measures.35
32
Article 2.4 of the TBT Agreement provides:
Where technical regulations are required and relevant international standards exist or their completion
is imminent, Members shall use them, or the relevant parts of them, as a basis of their technical
regulations except when such international standards or relevant parts would be an ineffective or
inappropriate means for the fulllment of the legitimate objectives pursued, for instance because of
fundamental climatic or geographical factors or fundamental technological problems.
33
34
European CommunitiesMeasures Concerning Meat and Meat Products (ECHormones), Report of
the Appellate Body, WT/DS26/AB/R and WT/DS48/AB/R (1998), 128. (footnote omitted)
35
ECSardines, Report of the Appellate Body, supra note 12, 208. The Appellate Body also rejected
the ECs argument that the Appellate Bodys ruling in ECHormones was not relevant to Article 2.4
of the TBT Agreement because, unlike Articles 2.2, 2.3, 3.3 and 5.6 of the SPS Agreement, Article 2.4
of the TBT Agreement did not contain the word maintain. The Appellate Body noted that its analysis in
ECHormones focused on Article 5.1 and 5.5 of the SPS Agreement, which also did not include the word
maintain. Similarly, the Appellate Body rejected the ECs argument that the context of Article 2.4 of the TBT
Agreement demonstrates that it was not intended to cover the application of technical regulations because,
when a provision was intended to do so, this was specically mentioned. The Appellate Body agreed with the
Panels analysis, noting that the title of Article 2 specically mentioned the term application (Preparation,
Adoption and Application of Technical Regulations by Central Government Bodies). Id. 20912.
The Appellate Body also noted that Article XVI:4 of the WTO Agreement required
each Member to ensure the conformity of its laws, regulations and administrative pro-
cedures with its obligations as provided in the [covered] agreements.36 The Appellate
Body stated that this provision established a clear obligation on all WTO Members to
ensure the conformity of their existing laws, regulations and administrative procedures
with the obligations in the covered agreements. Indeed, in the Appellate Bodys view,
the ECs reading of Article 2.4 of the TBT Agreement [ew] in the face of the object
and purpose of the TBT Agreement.37 The TBT Agreement is replete with provisions
recognizing the important role of international standards in the promotion of harmo-
nization and facilitation of trade. The Appellate Body specically noted the obligations
established in Article 2.5 and 2.6 of the TBT Agreement.38 The Appellate Bodys deci-
sion in ECSardines means that Article 2.4 of the TBT Agreement applies to technical
regulations that were adopted prior to January 1, 1995 and which have not ceased to
exist.39
IV. Applicability of the TBT Agreement at Various Governmental

and Non-Governmental Levels
The TBT Agreement sets forth rules and disciplines applicable to international, regional,
governmental and non-governmental organizations at different levels of society. Within
the limits of what is politically acceptable, the TBT Agreement has a wide eld of
application. This is in response to the fact that technical regulations, standards, and
conformity assessment procedures are not only administered by national authorities,
but also by international, regional and local authorities, as well as non-governmental
organizations (all dened in Annex 1 of the Agreement). The TBT Agreement thus seeks
to bring discipline to technical barriers established and applied at many different levels
of society. The application of the basic TBT rules differs slightly depending on the level
of application, e.g., whether by a governmental versus non-governmental organization,
and whether technical regulations, standards, or conformity assessment procedures are
involved. These distinctions are addressed in the following sections.
A. Technical Regulations (Articles 2 and 3)

Pursuant to Article 2 of the TBT Agreement, Members have an obligation to ensure that
central government bodies abide by the provisions of the TBT Agreement governing
technical regulations. A central government body is dened in Annex 1 of the Agreement
as the Central government, its ministries and departments or any body subject to the
36
Id. 213. There is a similar provision in Article 15.2 of the TBT Agreement, not noted by the Panel,
imposing an obligation upon each Member, promptly after the date on which the WTO Agreement enters
into force for it, [to] inform the Committee [on Technical Barriers to Trade] of measures in existence or
taken to ensure the implementation and administration of this Agreement. The provision appears to have
an object only if the TBT Agreement is interpreted to require Members to bring their existing technical
regulations into conformity with their obligations under the TBT Agreement.
37
Id. 214.
38
In 214 the Appellate Body noted that Article 2.5 of the TBT Agreement establishes a rebuttable pre-
sumption that technical regulations that are in accordance with relevant international standards do not create
unnecessary obstacles to trade. The Appellate Body also noted in the same paragraph that Article 2.6 en-
courages Members to participate in international standardizing bodies with a view to harmonizing technical
regulations on as wide a basis as possible.
39
Id. 216.
control of the central government in respect of the activity in question. The denition
of central government bodies is very wide with control being the important element.
With only very minor exceptions, pursuant to Article 3 of the TBT Agreement Mem-
bers also have an obligation to take reasonable measures to ensure that local governmen-
tal40 and non-governmental bodies41 within their territories comply with the rules set
forth in the TBT Agreement governing technical regulations. In addition, Members are
not allowed to take measures that would require or encourage local government or non-
governmental bodies to act inconsistently with the rules governing technical regulations.
Article 3.1 of the TBT Agreement establishes two exceptions. A Member is not re-
sponsible for taking reasonable measures to ensure that non-governmental bodies, and
local governmental bodies beyond the level directly below the central government body,
comply with the requirement to notify a technical regulation to other Members through
the WTO Secretariat (1) when an international standard does not exist or a measure is
not in conformity with an international standard, or (2) when urgent problems of safety,
health, environmental protection or national security arise or threaten to arise.42
B. Standards (Article 4 and the Code of Good Practice)

Article 4 of the TBT Agreement references the Code of Good Practice for the Prepa-
ration, Adoption and Application of Standards (Code of Good Practice). The Code
of Good Practice is found in Annex 3 of the TBT Agreement. The Code is designed to
regulate the use of voluntary standards. It is open for acceptance by standardizing bodies
within a WTO Member, whether at the central, local or non-governmental level. It is also
open to regional standardizing bodies.
Standardizing bodies that accept the Code of Good Practice assume the well-known
obligations discussed in Part V of this chapter, including most-favored-nation treatment,
national treatment, harmonization, mutual recognition and transparency obligations. Pur-
suant to Article 4(1) of the TBT Agreement, Members must ensure that central govern-
ment standardizing bodies accept and comply with the Code of Good Practice. Members
must also take such reasonable measures as may be available to them to ensure that
local governmental, non-governmental and regional standardizing bodies (of which they
are a member) accept and comply with the Code. As with technical regulations, Members
are not permitted to take measures that would require or encourage local government or
non-governmental bodies to act inconsistently with the Code.43 Article B of the Code
requires standardization organizations accepting or withdrawing from the Code to notify
the International Standardization Organization.
C. Conformity Assessment Procedures (Articles 59)

Articles 59 of the TBT Agreement set forth provisions relevant to determining the
scope and applicability of the TBT Agreement to conformity assessment procedures.
40
A local government body is dened in Annex 1 as a Government other than a central government (e.g.
states, provinces, Lander, cantons, municipalities, etc.) its ministries or departments or any body subject to
the control of such a government in respect of the activity in question.
41
A non-governmental body is dened in Annex 1 as a Body other than a central governmental body or a
local governmental body, including a non-governmental body which has legal power to enforce a technical
regulation.
42
These exceptions are provided rather clumsily in Article 3.1 which contains a cross-reference to Article 2
specically paragraphs 9.2 and 10.1.
43
TBT Article 4(1).
Article 5 provides for most-favored-nation treatment, national treatment, harmonization

of assessment procedures, notice, transparency, equivalence, and exceptions in case of
urgent problems. Article 6 provides for equivalence, accreditation, mutual recognition,
and foreign participation in conformity assessment procedures. These principles are
discussed in Part V of this chapter.
Articles 5 and 6 govern conformity assessment by central government bodies and are
particularly importantthey set out the applicable legal obligations. They also provide
a reference point for Articles 79 which govern the application of the TBT Agreement
to local government bodies, non-governmental bodies and international and regional
systems.
1. Central Government Bodies (Articles 5 and 6)

Members have an obligation pursuant to Articles 5 and 6 to ensure that central government
bodies abide by the provisions of the TBT Agreement governing conformity assessment.
Not only does Article 5 implement many of the general principles applicable throughout
the TBT Agreement to conformity assessment procedures, it also establishes very de-
tailed procedural obligations governing transparency, notice, harmonization, procedural
requirements and condentiality.
2. Local Government Bodies (Article 7)

Members are required pursuant to Article 7 to take reasonable measures to assure that
local government bodies within their territory comply with Articles 5 and 6 of the TBT
Agreement. No indication is given in the TBT Agreement as to what measures would be
considered reasonable.44 Article 7.1 provides an exception with respect to the obligation
to notify proposed procedures not in accordance with the relevant guidelines of interna-
tional standardizing bodies, as well as an exception to notify urgent problems of safety,
health, environmental protection, and national security that arise or threaten to arise.45
Members must also ensure that the conformity assessment procedures of local gov-
ernment bodies on the level directly below the central government body are notied in
accordance with Articles 5.6.2 and 5.7.1, except when the technical content of the local
procedures is substantially the same as that previously notied by the central government
body.
Members must not take measures that encourage local government bodies within their
territories to act inconsistently with Articles 5 and 6 of the TBT Agreement. This obli-
gation mirrors the obligation established at the central government level. Furthermore,
Article 7.5 of the TBT Agreement makes Members fully responsible for the observance
of Articles 5 and 6 by local government bodies. Members are required to implement a
legal mechanism to support the observance of the provisions of Articles 5 and 6 by
other than central government bodies.
3. Non-Governmental Bodies (Article 8)

Pursuant to Article 8 Members must take reasonable measures to ensure that non-
governmental bodies within their territories that operate conformity assessment pro-
cedures comply with the provisions of Articles 5 and 6 of the TBT Agreement. As with
the treatment of local government bodies described above, no indication is given in the
TBT Agreement as to what measures would be considered reasonable. Members are not
44
Possibly relevant Appellate Body and GATT decisions do exist. They dene reasonable but in a different
context. See infra Part V(B)(2).
45
TBT Articles 5.6.2 and 5.7.1 respectively.
required to ensure that non-governmental conformity assessment bodies comply with the
requirement to notify proposed measures. However, Members are not permitted to take
measures that have the effect of requiring or encouraging non-governmental conformity
assessment bodies to act inconsistently with Articles 5 and 6.
Members must also ensure that central government bodies do not rely on conformity
assessment procedures operated by non-governmental bodies unless these bodies comply
with the legal obligations set forth in Articles 5 and 6 (except for the obligation to notify
proposed conformity assessment procedures).
4. International and Regional Application (Article 9)

Article 9 encourages Members to formulate and adopt international systems for confor-
mity assessment, become members of such systems, and participate in these systems.
Members must also take reasonable measures to assure that international and regional
conformity assessment bodies in which relevant bodies within their territory participate,
comply with the obligations set forth in Articles 5 and 6, and that central government
bodies only rely on international and regional assessment systems to the extent that these
systems comply with Articles 5 and 6.
V. Major Principles Applicable (in Various Forms) Throughout

the TBT Agreement
There are common principles that are applicable throughout the TBT Agreement whether
technical regulations, standards or conformity assessment procedures are involved. An
understanding of these principles, many of which appear in other covered agreements and
in GATT 1947, is required to comprehend the TBT Agreement. The following principles
are analyzed in turn:
(A) Non-discrimination
(B) The Prevention of Unnecessary Obstacles to International Trade
(C) Harmonization
(D) Equivalence and Mutual Recognition
(E) Transparency
(F) Derogations from TBT Disciplines in the Event of Urgent Circumstances
A. The Non-Discrimination Principle

As applied in the GATT, the non-discrimination obligation contains two elements: most-
favored-nation treatment (MFN treatment), and national treatment. MFN treatment
is an obligation not to use customs duties, charges, rules, regulations and formalities
to discriminate between like products imported from different WTO Members.46 Na-
tional treatment is similarly an obligation not to use taxes, charges and regulations to
discriminate between domestic and imported like products.47
An example will help to illustrate the non-discrimination obligation. State A manu-
factures televisions, and also imports televisions from States B and C. All three States
are WTO Members. Assuming that all televisions in question are like products, State
A has an obligation to apply the same taxes, duties and regulatory treatment to television
46
See generally GATT Article I.
47
See generally GATT Article III.
imports from States B and C (MFN treatment); and an obligation not to apply taxes,
charges and regulations to favor domestic televisions over television imports from States
A or B (national treatment).
Turning more specically to the TBT Agreement, the non-discrimination obligation
is an obligation to ensure that technical regulations, standards and conformity assess-
ment procedures are not applied to favor domestic over imported like products, or like
products from one Member over those from another Member.48 If two products are not
like products, the non-discrimination principle does not apply as between those prod-
ucts. This raises the important question of what constitutes a like product for TBT
purposes.
1. Like Products
Whether two products are like products and thus require similar or identical treatment
is one of the more perplexing legal questions arising under the WTO Agreement. In part
this is because the term like product is not dened in the WTO Agreement. As a result,
product likeness is determined on a case-by-case basis. In what has become a famous but
unhelpful passage, the Appellate Body noted in its interpretation of GATT Article III:2
(a taxation provision) that:
The concept of likeness is a relative one that evokes the image of an accordion. The
accordion of likeness stretches and squeezes in different places as different provisions of
the WTO Agreement are applied. The width of the accordion in any one of those places
must be determined by the particular provision in which the term like is encountered as
well as by the context and the circumstances that prevail in any given case to which that
provision may apply.49
The two most important WTO Appellate Body decisions interpreting product likeness
are Japan Alcoholic Beverages50 and ECAsbestos.51 They set forth four factors that
are relevant in varying degrees:
(1) physical characteristics (the properties, nature and quality of a product),
(2) HS classication,52
(3) consumers tastes and habits (perception and behavior), and
(4) product end uses.53
At the time of writing there has not been a TBT case in which the term like product has
been interpreted or dened. WTO cases interpreting GATT Article III have examined the
phrase like product, but their relevance to the interpretation of the TBT Agreement has
not been formally established. In both JapanAlcoholic Beverages and ECAsbestos
the Appellate Body even warned against the automatic transposition of the interpretation
of likeness under the rst sentence of Article III:2 to other provisions where the phrase
48
The principle of non-discrimination is found in the following provisions of the TBT Agreement: Article
2.1 (technical regulations); D of the Code of Good Practice (standards), and Article 5.1.1 (conformity
assessment procedures).
49
JapanTaxes on Alcoholic Beverages, Report of the Appellate Body, WT/DS8/AB/R, WT/DS10/AB/R,
WT/DS11/AB/R (1996) (JapanAlcoholic Beverages), Part H(1)(a).
50
Id. This case involved a tax scheme that was found by the Appellate Body to violate GATT Article III:2.
51
ECAsbestos, supra note 11. This case involved a regulatory measure that was found to violate GATT
Article III:4.
52
HS is the Harmonized System of tariff classication administered by the World Customs Organization. It
is used by countries to classify products for tariff purposes. See Chapter 36 of this book.
53
ECAsbestos, supra note 11, 101.
like products is used.54 Given however that the like product provisions of the TBT
Agreement appear to be a logical extension of the non-discrimination obligations, and
that GATT Article III:4 specically deals with regulatory discrimination, it is probable
that GATT non-discrimination disputes, in particular those dealing with GATT Article
III:4, will provide guidance in the interpretation of the term like product which appears
in various places in the TBT Agreement, in particular Article 2.1.55 There is no reason
why the same four factors should not receive consideration in a TBT dispute.
B. The Prevention of Unnecessary Obstacles to International Trade

As a general rule, technical regulations, standards and conformity assessment proce-
dures must not be prepared, adopted or applied so as to create unnecessary obstacles to
international trade. This provision lies at the heart of the TBT Agreement. The preven-
tion of unnecessary obstacles to international trade is a principle applicable to technical
regulations, standards and conformity assessment procedures,56 but its application is not
necessarily identical in all three areas. The treatment of technical regulations receives
considerable attention below. The treatment of standards and conformity assessment
procedures, where different from that of technical regulations, is indicated.
The prevention of unnecessary obstacles to international trade is set forth within the
context of technical regulations in Article 2.2 of the TBT Agreement:
Members shall ensure that technical regulations are not prepared, adopted or applied with a
view to or with the effect of creating unnecessary obstacles to international trade. For this
purpose, technical regulations shall not be more trade-restrictive than necessary to fulll a
legitimate objective, taking account of the risks non-fulllment would create. Such legiti-
mate objectives are, inter alia: national security requirements; the prevention of deceptive
practices; protection of human health or safety, animal or plant life or health, or the environ-
ment. In assessing such risks, relevant elements of consideration are, inter alia: available
scientic and technical information, related processing technology or intended end-uses of
products.
As dened in Article 2.2, technical regulations must:
r not be more trade restrictive than necessary to achieve a policy goal (the least
trade restrictive measure), and
r fulll a legitimate objective, taking into account the risks that non-fulllment
would create.
With respect to standards, the phrase prevention of unnecessary obstacles to international
trade is not dened in either Article 3 or in the Code of Good Practice. Nor is it
dened in any WTO panel or Appellate Body decision considering the TBT Agreement.
Given the similarities between technical regulations and standards (the primary regulatory
difference is that one is mandatory and the other voluntary), it is probable that the same
54
ECAsbestos, supra note 11, 88 n.60 (citing the Appellate Body Report in JapanAlcoholic Beverages
at 113).
55
Article 2.1 of the TBT Agreement provides:
Members shall ensure that in respect of technical regulations, products imported from the territory
of any Member shall be accorded treatment no less favorable than that accorded to like products of
national origin and to like products originating in any other country.
56
The prevention of unnecessary obstacles to international trade is set forth in Article 2.2 (technical regula-
tions); E of the Code of Good Practice (standards); and Article 5.1.2 (conformity assessment procedures).
denition applicable to technical regulations would also apply in the case of standards,
but this remains to be proven.
With respect to conformity assessment procedures, the phrase unnecessary obstacles
to international trade is dened in Article 5.1.2:
. . . inter alia, that conformity assessment procedures shall not be more strict or be applied
more strictly than is necessary to give the importing Member adequate condence that
products conform with the applicable technical regulations or standards, taking account of
the risks non-conformity would create.
Articles 2.2 and 5.1.2 of the TBT Agreement suggest a multi-part test wherein the
following factors, analyzed below, must be considered:
(1) legitimacy of the objective, and the
(2) necessity of the measureincluding:
(a) its reasonableness, and
(b) the risk of non-fulllment of the legitimate objective.
1. Legitimate Objectives
Technical regulations must fulll a legitimate objective. Examples of legitimate objec-
tives are set forth in a non-exclusive list in Article 2.2. Legitimate objectives for technical
regulations include:
r National security requirements
r Prevention of deceptive practices
r Protection of human health or safety
r Protection of animal life or health
r Protection of the environment
The phrase legitimate objective is not used in the analogous provision relating to
standards.57 However, there is no reason to believe that the objectives enumerated for
technical regulations would not be considered legitimate for standards. This point has
not yet been addressed in a dispute settlement proceeding.
Many of the objectives deemed legitimate for the purpose of technical regulations will
be familiar to readers as exceptions under GATT Article XX (General Exceptions) and
Article XXI (National Security).58
Other objectives that are probably legitimate for TBT purposes but are not listed in
Article 2.2 include:
(1) Product quality: regulations and standards establishing quality norms are widely
applied to grade and standardize products, including agricultural products and
consumer goods.
(2) Product compatibility/uniformity: Regulations and standards establishing
norms regarding voltage, amperage, wattage, bandwidth, size, form, unit of
57
E of the Code of Good Practice.
58
Some of the panel reports interpreting Article XX of GATT 1947 may have inuenced the development of
the legitimate exceptions contained in Article 2.2 of the TBT Agreement. See, e.g., ThailandRestrictions
on Importation of and Internal Taxes of Cigarettes, Report of the Panel, BISD 39S/155 (1990); United
StatesRestrictions on Imports of Tuna, Report of the Panel, BISD 40S/155, reprinted in 30 ILM 1594
(1991) (unadopted); United StatesRestrictions on Imports of Tuna, Report of the Panel, reprinted in 33
ILM 842 (1994) (unadopted); and United StatesTaxes on Automobiles, Report of the Panel, reprinted in
33 ILM 1399 (1994) (unadopted).
measurement, etc. are widely applied to household appliances, communica-

tions gear (radios and televisions), computer equipment, automobiles, and many
other technical products. Such product standardization facilitates economies of
scale, and may also serve to improve consumer condence.
Regulations and standards furthering product quality and product compatibil-

ity/uniformity exist throughout the developed world, and increasingly in developing coun-
tries. They have not been the subject of a panel proceeding under the TBT Agreement.
The drafters failure to specically identify these objectives in Article 2.2 of the TBT
Agreement as legitimate objectives may have been an oversight given that their impor-
tance as objectives of the TBT Agreement is suggested in the Agreements preamble.59
A much more controversial question at the outer limits of an analysis of the TBT
Agreement is whether labor and human rights objectives should be considered among
the legitimate objectives for purposes of Article 2.2 of the TBT Agreement. At the
root of this question one nds other additional and controversial WTO issues, such as
the applicability of the TBT Agreement to NPR-PPMs, and the relationship between
the TBT Agreement and international labor and human rights conventions. One also
nds other questions including whether human rights and labor norms are the type of
standardization activity the Members intended to regulate when they negotiated the TBT
Agreement, and whether the TBT Agreement is really the right legal instrument for
addressing cross-border human rights and labor norms.60
Labor and human rights objectives are not specically mentioned in Article 2.2 of
the TBT Agreement as legitimate objectives. Nevertheless, the protection of human life
and health is deemed a legitimate objective. Just conceivably this provision might be
stretched to encompass certain labor and human rights objectives. Although from a
trade-policy perspective it was once easy to argue that when NPR-PPMs are at issue the
TBT Agreement does not apply, this question seems to have become more complicated in
light of the Appellate Bodys decision in U.S.Shrimp (Article 21.5 proceeding) wherein
the United States successfully invoked GATT Article XX to justify import restrictions
against shrimp that were not caught in conformity with U.S. environmental laws (an
NPR-PPM).61 U.S.Shrimp was, of course, not a TBT decision, and any such argument
would only be by analogy.
The relationship between the WTO Agreement and human rights and labor norms is the
subject of several chapters in this book.62 It need only be pointed out here that including
labor and human rights norms in the WTO framework is controversial, and opposed by
many developing country Members. Developing country Members tend to view labor and
human rights norms, and their application and supervision, as being within the scope of
59
The preamble of the TBT Agreement is reproduced supra note 2.
60
Many other unanswered questions exist. Are U.N. organizations, such as the International Labor Orga-
nization, international standardizing bodies within the meaning of the TBT Agreement? Annex 1 4 of
the TBT Agreement denes an international body or system as a [b]ody or system whose membership
is open to the relevant bodies of at least all Members. More generally, how should principles of public
international law, such as the primacy of certain human rights norms, and the responsibility of States under
certain international human rights treaties and labor agreements, be treated from the perspective of the TBT
Agreement?
61
See supra note 28 and accompanying text. The U.S. measure was only authorized after Malaysias continued
refusal to enter into an international cooperative arrangement that would have protected certain endangered
sea turtles from being killed when shrimp are netted.
62
See Chapters 5962 of this book, where these subjects are addressed in detail.
other international agreements and organizations.63 Many developing countries also fear
that labor and human rights norms will be invoked by developed countries for protectionist
purposes, and that the labor and human rights practices of certain developing countries
may make them particularly vulnerable to cross-border trade measures, enacted for what
developed countries allege to be human rights and labor motives.
2. Necessity
The concept of necessity is found in the provisions applicable to regulations, stan-
dards and conformity assessment procedures.64 Article 2.2 of the TBT Agreement pro-
vides that technical regulations shall not be more trade-restrictive than necessary to
fulll a legitimate objective, taking account of the risks non-fulllment would create.
It is probable that the negotiators were inuenced by language in panel reports dening
necessary within the context of GATT Article XX (General Exceptions). In the Thai
Cigarettes dispute a GATT Panel concluded that a measure could be considered to be
necessary in terms of GATT Article XX(b) only if there were no alternative measure
consistent with the General Agreement, or less inconsistent with it, which a contracting
party could reasonably be expected to employ to achieve its regulatory (health policy)
objective.65
The term reasonable does not appear in the denition of necessary in the TBT
Agreement, but without the requirement that a less restrictive trade measure be reasonably
available, the necessity test would be unworkableestablishing a standard that would
be extraordinarily difcult to meet. Legitimate TBT measures might be found to violate
the TBT Agreement too easily, and as a result the regulatory autonomy and sovereignty of
WTO Members could come under considerable challenge.66 Therefore, it seems certain
that a requirement of reasonableness will be read into TBT Article 2.2, as it was into
GATT Article XX by GATT panels and the Appellate Body.
In both the KoreaBeef 67 and the ECAsbestos68 decisions the Appellate Body ex-
amined what constitutes a reasonably available measure for purposes of the exceptions
set forth in GATT Article XX(b) and (d). The Appellate Body found that: (1) a determi-
nation of whether a WTO consistent alternative measure is reasonably available requires
a weighing and balancing process in which an assessment is made as to whether the
alternative measure contributes to the realization of the end pursued;69 (2) the more
vital or important the common interests or values pursued, the easier it would be to ac-
cept as necessary measures designed to achieve those ends;70 (3) a measure should be
sufcient to achieve a members chosen level of health protection;71 and (4) a measure
does not cease to be reasonably available simply because it involves administrative
63
For example the International Labor Organization, the various United Nations human rights organizations,
and the instruments produced by these organizations.
64
Article 2.2, E of the Code of Good Practice, and Article 5.1.2 respectively.
65
ThailandTaxes On Cigarettes, supra note 57, 7475. The least restrictive trade measure test is
given voice in the Article 2.2 denition of necessary.
66
See generally REGULATORY BARRIERS AND THE PRINCIPLE OF NON-DISCRIMINATION IN WORLD TRADE LAW
(Thomas Cottier and Petros C. Mavroidis eds. 2000).
67
KoreaMeasures Affecting Imports of Fresh, Chilled and Frozen Beef, Report of the Appellate Body,
WT/DS161/AB/R, WT/DS169/AB/R (2001) (KoreaBeef), 159166.
68
ECAsbestos, supra note 11, 169175.
69
Id. 171 (citing Korea-Beef, supra note 66, 166 and 163).
70
Id. 172 (citing Korea-Beef, supra note 66, 162.)
71
Id. 174.
difculties for a Member.72 It is probable that a panel or the Appellate Body would read
a similar test into the TBT Agreement.
The evaluation of whether a technical regulation is more trade-restrictive than neces-
sary to fulll a legitimate objective requires consideration of the risks non-fulllment
[of the legitimate objective] would create. A non-exclusive list of elements that can be
considered in an examination of the risk of not fullling a legitimate objective is provided
in Article 2.2 of the TBT Agreement:
r available scientic and technical information,
r related processing technology, and
r intended end-uses of products.
This assessment of risk is different from the formal science-based risk assessment re-
quired in the SPS Agreement,73 as science if relevant is only one component to be taken
into account. Furthermore, many of the matters for which technical regulations and stan-
dards are applied are not closely related to scientic considerations (e.g., consumer and
worker protection). Although it would seem that this examination of risk should be re-
lated to the reasonableness of the TBT measure and therefore its necessity, like most of
the TBT Agreement, no decisions interpreting this provision exist.
No mention of an analysis of the risks of non-fulllment is present in the analagous
provisions of the TBT Agreement governing standards and conformity assessment pro-
ceedings, but the derogations discussed in Part V(F), which are related to urgent problems
of safety, health or environment, may imply examining the risk of not fullling a legiti-
mate objective.
The necessity test is further elaborated in Article 2.3 of the TBT Agreement which
sets forth provisions governing changed circumstances. Article 2.3 provides that:
Technical regulations shall not be maintained if the circumstances or objectives giving
rise to their adoption no longer exist or if the changed circumstances or objectives can be
addressed in a less trade-restrictive manner.
This provision implies, among other things, a continuing obligation to review techni-
cal regulations in light of new objectives, new circumstances and new technological
developments.
Changed circumstances are not mentioned in the Code of Good Practice, but the
concept nevertheless seems implicit in assuring that standards do not become unnecessary
obstacles to international trade. This is further illustrated by Article 5.2.7 (applicable to
conformity assessment procedures) which limits the conformity assessment procedures
employed to verify that a standard is met when product specications have been changed.
If a products specications are changed after the product has been found to conform with
a technical regulation or standard, pursuant to Article 5.2.7 the conformity assessment
procedure for the modied product is to be limited to what is necessary to provide
adequate condence that the product still conforms with the technical regulation or
standard. This provision assures that only necessary conformity assessments will be
conducted and reduces the potential that conformity assessments will be applied to
impede trade.74
72
Id. 169 (citing United StatesStandards for Reformulated and Conventional Gasoline, Report of the
Panel, WT/DS2 (1995)).
73
See Chapter 7 of this book.
74
Instances may nevertheless arise when signicant changes in a products specications necessitate a
complete conformity reassessment.
To summarize this rather long discussion of necessity, the necessity test requires
that a given trade measure be the least trade-restrictive measure that would achieve a
legitimate policy goal. A requirement of reasonableness should be read into this test,
thereby allowing a weighing and balancing of the measure in terms of the end pursued
and the risk of non-fulllment of the legitimate objective.75 There is also a continuing
obligation to assess changed circumstances, and to alter a TBT measure in the event of
changed circumstances to assure that the trade measure remains the least trade-restrictive.
C. HarmonizationUse of Relevant International Standards

As a general rule, Members are encouraged to participate in the international harmoniza-
tion of standards, and to use agreed international standards as a basis for domestic techni-
cal regulations, standards and conformity assessment procedures.76 The use of technical
regulations that are in accordance with relevant international standards to achieve one of
the legitimate objectives explicitly mentioned in Article 2.2 of the TBT Agreement77 is
rebuttably presumed not to create an unnecessary obstacle to international trade.
The emphasis on harmonization in the TBT Agreement is based on the view among
WTO Members that (a) trade is disrupted less if Members use internationally-agreed
standards as a basis for domestic regulations and standards, (b) producers and consumers
benet from a degree of harmonization (in part because of economies of scale and
technical compatibility), and that (c) conformity assessments are facilitated if Members
follow international guidelines and procedures for such assessments.
With respect to technical regulations, there are three provisions that will be referred
to in the following discussion. These provisions are set forth in their entirety:
2.4 Where technical regulations are required and relevant international standards exist or
their completion is imminent, Members shall use them, or the relevant parts of them, as a
basis for their technical regulations except when such international standards or relevant
parts would be an ineffective or inappropriate means for the fulllment of the legitimate
objectives pursued, for instance because of fundamental climatic or geographical factors or
fundamental technological problems.
2.5 A Member preparing, adopting or applying a technical regulation which may have a
signicant effect on trade of other Members shall, upon the request of another Member,
explain the justication for that technical regulation in terms of the provisions of paragraphs
2 to 4. Whenever a technical regulation is prepared, adopted or applied for one of the
legitimate objectives explicitly mentioned in paragraph 2, and is in accordance with relevant
international standards, it shall be rebuttably presumed not to create an unnecessary obstacle
to international trade.
2.6 With a view to harmonizing technical regulations on as wide a basis as possible, Members
shall play a full part, within the limits of their resources, in the preparation by appropriate
international standardizing bodies of international standards for products for which they
either have adopted, or expect to adopt, technical regulations.
In general, analogous provisions exist and have already been noted for standards and
conformity assessment procedures.78
Turning to the last and least complicated provision rst, Article 2.6 requires Mem-
bers, within the limits of their resources, to participate in the work of international
75
This may be one step closer to a requirement that a trade measure be proportional and adequate.
76
The following provisions govern harmonization: Article 2.42.6 (technical regulations); Paragraphs FG
of the Code of Good Practice (standards); and Articles 5.4 and 5.5 (conformity assessment procedures).
77
See supra Part V(B)(1).
78
Id.
standardization organizations with respect to products for which they have adopted or
expect to adopt technical regulations and standards. Members also have a similar partic-
ipation obligation with respect to the preparation of standards and guides and recom-
mendations for conformity assessment procedures.79
The remaining provisions, Articles 2.4 and 2.5, were the subject of the ECSardines
dispute and merit considerable attention. Pursuant to Article 2.4, the use of relevant
international standards, or the relevant parts of an international standard, as a basis for
domestic technical regulations, is required except when such international standards
or relevant parts would be an ineffective or inappropriate means for the fulllment of
the legitimate objectives pursued. Thus, even a measure that is non-discriminatory may
violate the TBT Agreement if it is not based on international standards. Article 2.4
provides three examples of when it might not be appropriate to use international stan-
dards as a basis for domestic technical regulations: (1) fundamental climatic factors,
(2) fundamental geographical factors, and (3) fundamental technological problems.
The Panel and the Appellate Body decisions in ECSardines addressed many points
(underlined above) relevant to the interpretation of TBT Article 2.4. The decision exam-
ined whether the standard at issue was relevant; whether the international standard was
used as a basis for the ECs technical regulations; and what is meant by the Article 2.4
phrase ineffective or inappropriate means . . . . These three points are addressed in the
rst three subsections below, and Article 2.5 is addressed in the fourth subsection.
1. The Characterization of Codex Standard 94 as a Relevant International Standard
Perus complaint against the EC measure was predicated on its position that CODEX
STAN 94-1981, Rev.1-1995 (Codex Standard 94) was a relevant international standard
for purposes of Article 2.4 of the TBT Agreement. A contrary nding would have meant
that Article 2.4 of the TBT Agreement would not have applied. The EC argued that only
standards adopted by consensus are relevant international standards. Second, it argued
that even if Codex Standard 94 is a standard, it is not relevant since the EC Regulation
only covers preserved sardines and Codex Standard 94 covers sardine-type products
as well as preserved sardines.80
With respect to the ECs contention that only standards adopted by consensus are
relevant, the Appellate Body found that the Explanatory Note to Annex 1.2 supports the
conclusion that consensus is not required for the adoption of a standard.81
With respect to the ECs second argument, that Codex Standard 94 was not a relevant
international standard, both Parties accepted that the ordinary meaning of the term rel-
evant is bearing on or relating to the matter in hand; pertinent.82 The EC sought to
convince the Appellate Body that the broader scope of Codex Standard 94 meant that it
was not relevant to the dispute.83 The Appellate Body reasoned instead that the Codex
standard was relevant because it applies to Sardina pilchardus.84 Therefore the standard
can be said to bear upon, relate to, or be pertinent to the EC Regulation because both
refer to preserved Sardina pilchardus.85 It further reasoned that the standard was relevant
79
These provisions are located in the following TBT provisions: Article 2.6 (technical regulations); 3(G)
of the Code of Good Practice (standards); and Article 5.5 (conformity assessment procedures).
80
81
Id. 222. In relevant part the Explanatory Note to Annex 1.2 of the TBT Agreement provides: This
Agreement covers also documents that are not based on consensus.
82
Id. 227.
83
Id. 230.
84
Id. 231.
85
Id.
because twenty sh species specied in the standard, in addition to Sardina pilchardus,

were legally affected by the exclusion in the EC Regulation.86
2. Whether Codex Standard 94 Was Used as a Basis for the EC Regulation

The EC also appealed the Panels nding that Codex Standard 94 was not used as a
basis for the EC Regulation. Section 6.1.1(ii) of Codex Standard 94 provides:
The name of the product shall be:
...
(ii) X Sardines where X is the name of a country, a geographic area, the species, or the
common name of the species in accordance with the law and custom of the country in which
the product is sold, and in a manner not to mislead the consumer. (emphasis added)
The EC, relying on the ambiguity of the English language version of this provision,
argued that paragraph 6.1.1(ii) of Codex Standard 94 gives each country the option of
designating the product at issue X sardines or using the common name of the species.87
More specically, the EC argued that the phrase: the common name of the species in
accordance with the law and custom of the country in which the product is sold, should
be interpreted as a self-standing option for naming independent of the formula X
sardines.88 This would have allowed the EC to restrict the use of the term Sardines to
Sardina pilchardus.
The Appellate Body rejected the EC argument, favoring instead the textual inter-
pretation put forth by the Panel.89 The Appellate Body found that paragraph 6.1.1(ii)
envisages combining the term sardines with one of the four alternatives (the X in X
sardines) presented in paragraph 6.1.1(ii), stating that section 6.1.1(ii) permits the mar-
keting of non-Sardina pilchardus as sardines with one of four qualiers.90 A review
of the French version of the provision, which was also authentic, further conrmed the
Appellate Bodys interpretation.91
The Appellate Body next examined whether the EC used section 6.1.1(ii) as a basis
for its technical regulation.92 The EC argued that interpretation of this phrase required
consideration of the text as a whole, and that the criterion to be applied is not whether the
standard is the principal constituent of the technical regulation, but instead whether
there is a rational relationship between the standard and the technical regulation as
regards the substantive aspects of the standard at issue.93
The Appellate Body rejected this argument. In seeking to establish the proper meaning
of the phrase as a basis for, which appears in Article 2.4 of the TBT Agreement,the
Appellate Body turned rst to its decision in ECHormones where a similar issue was
addressedthe meaning of the phrase based on which appears in Article 3.1 of the
SPS Agreement. This phrase was interpreted in ECHormones to mean stands or is
founded or built upon or is supported by the latter.94 The Appellate Body went on
86
Id. 232.
87
Id. 236.
88
Id. 236.
89
Id. 238239.
90
Id. 239.
91
Id. 239.
92
Id. 240258.
93
Id. 241.
94
Id. 242 (citing ECHormones, supra note 34, 166). In 163166 of ECHormones the Appellate
Body concluded that based does not mean conform to. In ECSardines the Appellate Body refrained
from deciding whether as a basis in Article 2.4 of the TBT Agreement has the same meaning as based
on in Article 3.1 of the SPS Agreement. ECSardines, 244, n.169.
to uphold the Panels nding that basis means principal constituent and fundamental
principal or theory,95 adding that basis also means the main constituent, [a] thing
on which anything is constructed, and a determining principle.96 The Appellate Body
concluded that there must be a very strong and very close relationship between two
things in order to be able to say that one is the basis for the other.97
The Appellate Body found no support in Article 2.4 of the TBT Agreement for the
ECs rational relationship standard,98 and further found that an international standard
cannot be considered the basis for a technical regulation if the two are contradictory.99
The Appellate Body next identied a manifest contradiction between the international
standard and the EC Regulation, noting that the effect of Article 2 of the EC Regulation
was to prohibit preserved sh products prepared from twenty species from being labeled
as sardines, while Codex Standard 94 permits these same sh products to be labeled as
X sardines, where X stands for one of four qualiers.100 Based on these determinations,
the Appellate Body concluded that the Codex standard had not been used as a basis for
the EC Regulation.101
3. Ineffective or Inappropriate Means

Article 2.4 of the TBT Agreement provides an exception to the obligation to use relevant
international standards when such international standards or relevant parts would be
an ineffective or inappropriate means for the fulllment of the legitimate objectives
pursued. . . . In its analysis of Article 2.4, the Appellate Body examined the meaning
of ineffective or inappropriate means as well as the meaning of the term legitimate
objectives.102 With respect to the rst examination, the Appellate Body upheld the
Panels ndings that:
. . . the term ineffective or inappropriate means refers to two questionsthe question of the
effectiveness of the measure and the question of the appropriateness of the measureand
that these two questions, although closely related, are different in nature. The Panel pointed
out that the term ineffective refers to something which is not having the function of
accomplishing, having a result, or brought to bear, whereas [the term] inappropriate
refers to something which is not specially suitable, proper, or tting.103
The Appellate Body also reafrmed the Panels nding that:

. . . in the context of Article 2.4, an ineffective means is a means which does not have
the function of accomplishing the legitimate objective pursued, whereas an inappropri-
ate means is a means which is not specially suitable for the fulllment of the legitimate
objective pursued. . . . The question of effectiveness bears upon the results of the means
employed, whereas the question of appropriateness relates more to the nature of the means
employed.104
95
96
Id. 244.
97
Id.
98
Id. 247.
99
Id. 248249. The Appellate Body also found that the relevant parts of the international standard
are all of those that relate to the subject-matter of the challenged prescriptions or requirements. Id.
250251.
100
Id. 257258.
101
Id.
102
Id. 285291.
103
Id. 285 (citing Report of the Panel, 7.116).
104
Id. (citing Report of the Panel, 7.116).
In the Appellate Bodys view, an international standard is effective if it has the capacity
to accomplish the legitimate objectives set forth, and it is appropriate if it is suitable
for the fulllment of these objectives.105 Ineffective and inappropriate thus have
different meanings and it is conceptually possible that a measure could be effective but
inappropriate, or appropriate but ineffective.106
With respect to the second question, the meaning of the term legitimate objec-
tives as used in Article 2.4, the Appellate Body upheld the Panels nding that the
legitimate objectives referred to in Article 2.4 must be interpreted in the context of
Article 2.2 which also refers to legitimate objectives.107 The Appellate Body noted two
implications of this nding: (1) the legitimate objectives within Article 2.4 covered
those enumerated in Article 2.2 (national security requirements; the prevention of de-
ceptive practices; protection of human health or safety, animal or plant life or health, or
the environment), and that (2) the use of the term inter alia in Article 2.2 means that the
legitimate objectives in Article 2.4 extend beyond the list of specic objectives listed in
Article 2.2.108
Applying these ndings to the facts before it in ECSardines, the Appellate Body
determined that the Complainant had the burden of establishing that the international
standard was an effective and appropriate means for the fulllment of the legitimate
objectives pursued through the EC Regulationnamely market transparency, consumer
protection, and fair competition.109 To satisfy this burden of proof the Complainant
must establish a prima facie case.110 If the Complainant succeeds in doing so, then a
presumption arises that the Respondent must rebut in order for its defense to prevail.111
If the Complainant establishes a prima facie case that the Respondent is unable to rebut,
the Respondent must, consistent with its obligation under the TBT Agreement, use the
international standard as a basis for its regulations as the international standard will
have been shown to be both effective and appropriate to fulll the legitimate objectives
being pursued by the Respondent.112
The Appellate Body thus found that the burden of proof standard enunciated in EC
Hormones,113 an SPS dispute, should also be applied in ECSardines. The Complainant
challenging a measure as inconsistent with Article 2.4 of the TBT Agreement bears the
burden of proving that: (1) the standard was not used as a basis for the challenged
regulation, and (2) the international standard is not ineffective and inappropriate to fulll
the legitimate objectives at issue.114
4. Rebuttable Presumption Favoring the Use of Certain Harmonized Standards

Pursuant to Article 2.5 a Member that prepares, adopts or applies a technical regu-
lation that may have a signicant effect on the trade of other Members shall upon
the request of another Member explain the justication of the regulation in terms of
105
Id. 288.
106
Id. 289 (citing Report of the Panel, 7.116).
107
Id. 286.
108
Id.
109
Id. 287. Note that fair competition (in particular) is not a legitimate objective explicitly set forth in
Article 2.2.
110
Id.
111
Id.
112
Id.
113
ECHormones, supra note 34.
114
Articles 2.22.4 of the TBT Agreement. In ECSardines the Appellate Body notes that
the Panel was concerned the Complainant might not be in a position to spell out the
legitimate objectives of the technical regulation and to assess the appropriateness of the
relevant international standard.115 The Appellate Body found that this concern was not
justied since the TBT Agreement established a mechanism in Article 2.5 for Members to
seek information about the objectives of technical regulations.116 Members were bound
to abide by their obligation to provide information pursuant to this provision in good
faith and in accordance with the principle of pacta sunt servanda embodied in Article 26
of the Vienna Convention, and it could not be assumed that they would not comply with
their obligation.117 In addition, Article 10.1 of the TBT Agreement requires Members
to establish an enquiry point for purposes of addressing queries from other Members.
This serves as a further mechanism for Members to obtain information about the ob-
jectives of particular technical regulations, and the appropriateness and effectiveness of
international standards to serve as a basis for these technical regulations.118
If a Member bases a domestic regulation (1) on an international standard, and if (2) the
domestic regulation is for one of the legitimate objectives explicitly mentioned in Article
2.2, pursuant to Article 2.5 it is rebuttably presumed not to create an unnecessary
obstacle to international trade.119 This presumption makes it more difcult for a Member
challenging the WTO-consistency of a technical regulation based on an international
standard to make a prima facie case that the trade measure at issues creates an unnecessary
obstacle to international trade. This portion of Article 2.5 has not yet been tested. In EC
Sardines both the Panel and the Appellate Body found that the technical regulation at
issue was not based on an international standard so this presumption was inapplicable.
It is conceivable that the rebuttable presumption that a measure does not create an
unnecessary obstacle to international trade will provide a mild incentive for international
harmonization as well as for reliance on international standards. It would however appear
that as a result of the Appellate Bodys decision to graft the ECHormones interpretation
of how the burden of proof should be applied into the TBT Agreement, the Complainant
already shoulders a sizable burden of proof. It is unclear how Article 2.5 affects or alters
the application of this burden of proof.
D. Equivalence and Mutual Recognition

The TBT Agreement incorporates provisions on both equivalence and mutual recogni-
tion.120 Members are encouraged to accept foreign technical regulations as equivalent
to their own technical regulations (even if they differ) provided that they fulll the same
objectives.121 Likewise, Members are encouraged to accept foreign conformity assess-
ment procedures as equivalent to their own procedures provided that they are assured
of conformity with standards and technical regulations equivalent to their own.122 The
notion of equivalence is not mentioned in the Code of Good Practice (applicable to
standards), nor is it dened in the TBT Agreement.
115
Id. 276.
116
Id. 277.
117
Id. 278.
118
Id. 279.
119
These legitimate objectives are discussed supra Part V(B)(1).
120
The provisions on equivalence and mutual recognition are found in the following TBT articles: equivalence
for technical regulationArticle 2.7; equivalence for conformity assessment procedures Article 6.1; mutual
recognition for conformity assessment proceduresArticle 6.3.
121
TBT Article 2.7.
122
TBT Article 6.1.
Members are encouraged to enter into negotiations for the mutual recognition of
the results of conformity assessment procedures.123 By accepting the results of another
Members conformity assessment procedures, testing costs are reduced and less time is
lost. Condence in a trading partners testing procedures would seem to be a prerequisite
for the acceptance of a mutual recognition agreement.124
Although mutual recognition and equivalence may be worthwhile objectives, there is
skepticism among some WTO Members concerning the effectiveness of international
standardization efforts, and the extent to which equivalence, mutual recognition (and
for that matter harmonization) can be increased between countries at different levels of
development.
E. Transparency
Transparency is the process whereby the creation, terms, and application of technical
regulations, standards and conformity assessment procedures are made public, and oppor-
tunities are provided for the public (including other Members) to comment on proposed
technical regulations, standards and conformity assessment procedures. Transparency
obligations are found throughout the TBT Agreement.125 They take several different
forms and are applicable at different points in the promulgation and application of a TBT
measure. With respect to standards, some of these obligations are only applicable to Mem-
bers when the relevant standardizing bodies have accepted the Code of Good Practice.
Transparency obligations generally include the following requirements:
1) Pre-enactment publication: A WTO Member is required to publish a notice prior
to the enactment of a technical regulation, standard or conformity assessment
procedure (measure).126 The publication and timing of the notice must be
sufcient to allow interested parties to become acquainted with the proposed
measure at an early appropriate stage.The TBT Agreement does not specify
where the notice must be published.
2) Notication: A Member is required to notify other WTO Members through the
WTO Secretariat prior to the enactment of a technical regulation or a conformity
assessment procedure (when amendments to the measure can still be introduced).
This notication must include the products to be covered and a brief indication
of the objective and rationale for the technical regulation or procedure.127 No
such obligation is imposed with respect to standards.
3) Provision of copies: Upon request, a WTO Member must provide other Members
with copies of draft technical regulations, standards, and conformity assessment
procedures.128
4) Allowance of time for comments: Prior to the enactment of a measure, a Member
must allow other Members a reasonable time for written comment, and for
123
TBT Article 6.3.
124
TBT Article 6.
125
Transparency provisions are found in: Articles 2.9, 10 (technical regulations); Article 10 and Paragraphs
J-Q of the Code of Good Practice (standards); and Articles 5.5 and 10 (conformity assessment procedures).
126
Pre-implementation notice provisions are contained with respect to technical regulations in Article 2.9.1;
with respect to standards in L of the Code of Good Practice; and with respect to conformity assessment
procedures in Article 5.6.1.
127
Notication is required by: Article 2.9.2 (technical regulations); and Article 5.6.2 (conformity assessment
procedures).
128
The provision of copies is required by Article 2.9.3 (technical regulations), M of the Code of Good
Practice (Standards); and Article 5.6.3 (conformity assessment procedures).
discussions concerning proposed measures.129 For draft standards, a sixty day

period must be provided for comments.130
5) Publication of measures: WTO Members are obliged to publish or otherwise
make available technical regulations, standards and conformity assessment pro-
cedures to other Members and to interested parties.131
6) Creation of inquiry points: Members are required to establish inquiry points
to answer reasonable inquiries from and provide relevant documents to Mem-
bers and other interested parties concerning technical regulations, standards and
conformity assessment procedures.132 Inquiry points have the responsibility to
provide information concerning a WTO Members participation in regional and
international standardization and conformity assessment bodies. Inquiry points
also have the responsibility of providing certain information concerning the
activities of non-governmental standardization organizations.133
For example, a Member seeking to enact an environmental law regulating engine exhaust
(a technical regulation) would be required, prior to enactment of the law, to provide drafts
of the measure to other Members, allow comments from them, publish the measure, and
notify Members through the WTO Secretariat of the measure. A Members inquiry point
would be responsible for providing information and relevant documents relating to the
law.
F. Derogations from Transparency in the Event of Urgent Problems

Transparency measures applicable prior to the adoption of technical regulations and con-
formity assessment procedures may be omitted in the event of urgent problems related
to safety, health, the environment or national security.134 In such cases, post-facto obli-
gations exist to notify Members of the measures enacted, make copies available upon
request, and to consider comments from other Members. With respect to draft stan-
dards, the sixty day period allowed for comment may be shortened in the event of urgent
problems related to safety, health, or the environment.
For example, if State A discovers that a type of packing material produces deadly
emissions when burned and immediately outlaws its production and use within its ter-
ritory, it must immediately notify other WTO members of the ban, make copies of the
ban available upon request, and permit comments from all Members on the regulatory
measure.
VI. Other Important Provisions of the TBT Agreement

A. Technical AssistanceArticle 11
Technical assistance is the provision of expert assistance to developing countries by other
Members, the WTO Secretariat, or third parties. TBT Article 11 sets forth a broad range
129
Written comments must be permitted with respect to technical regulations in Article 2.9.4; standards:
Paragraphs L and N of the Code of Good Practice; and conformity assessment procedures: Article 5.6.4.
130
L of the Code of Good Practice (standards).
131
Publication is required with respect to technical regulations in Article 2.11; standards in O of the Code
of Good Practice, and in Article 5.8 for conformity assessment procedures.
132
Article 10.
133
Article 10.1.4 and 10.3.
134
Provisions applicable to urgent problems appear in the following provisions: Technical Regulations:
Article 2.10; Standards: Annex 3, L, Code of Good Practice; Conformity Assessment Procedures:
Article 5.7.
of technical assistance provisions. WTO Members are required to:

r Advise other Members, especially developing country Members on the prepara-
tion of technical regulations.
r Provide technical assistance, in particular to developing countries, regarding the
establishment of national standardizing bodies, and participation in these bodies,
and encourage their national standardizing bodies to do likewise.
r Take reasonable measures to arrange for regulatory bodies within their territories
to advise other Members, in particular developing country members. Provide
technical assistance on agreed terms regarding the establishment of regulatory
and conformity assessment bodies, and assistance on the methods by which their
technical regulations can best be met.
r Take reasonable measures, in particular with respect to developing country Mem-
bers, to advise on the establishment of bodies for the assessment of conformity
with standards.
r Grant technical assistance, especially to developing country Members, regarding
the steps that should be taken by foreign producers seeking access to conformity
assessment systems operated by governmental and non-governmental bodies.
r Encourage organizations within their territory which are members of, or partici-
pants in, international or regional conformity assessment systems to advise other
Members, and consider requests for technical assistance from other Members (in
particular developing countries) regarding the establishment of institutions which
would enable relevant organizations within their territories to fulll the obliga-
tions of membership or participation in international and regional conformity
assessment systems.
r Grant other Members, especially developing country Members, technical assis-
tance on the institutions and legal framework of international and regional systems
for conformity assessment sufcient to enable them to fulll the obligations of
membership or participation in such systems.
r Give priority to the needs of the least-developed country Members.
B. Special and Differential TreatmentArticle 12

The TBT Agreement requires Members, in particular developed country Members, to
provide more favorable treatment to developing countries based on the nancial and
trade needs of the developing country in question. Article 12 of the TBT Agreement
sets forth a broad range of provisions intended to provide more favorable treatment
to developing countries.135 Although Article 12 does not provide developing countries
135
More specically, Article 12 requires that Members provide differential and more favorable treatment to
developing countries by:
Giving particular attention to the provisions of this Agreement concerning the rights of developing
country Members.
Taking into account the special development, nancial and trade needs of developing country
Members in the implementation of the TBT Agreement at the national level.
Taking into account the special development, nancial and trade needs of developing country
Members in the implementation of the TBT Agreement s institutional arrangements.
Assuring that technical regulations, standards and conformity assessment procedures do not create
unnecessary obstacles to exports from developing country Members. Members are to do this by
taking into account the special development, nancial and trade needs of developing country
Members in the preparation and application of technical regulations, standards and conformity
assessment procedures.
with permanent derogations to the substantive provisions of the TBT Agreement, the
pro-developing country character of Article 12 is unambiguous although not particularly
meaningful. Many of the provisions are non-binding and probably not enforceable.
The provisions set forth in Article 12 related to special and differential treatment
(SDT) take several different forms. They require Members to:
(a) Recognize and to take into account the special needs of developing countries
in the promulgation and application of technical regulations, standards and
conformity assessment procedures. Factors to be recognized include the devel-
opmental, nancial and trade needs of developing country Members, and the
preservation of indigenous technology and production methods.
(b) Facilitate the participation of developing countries in international standard-
ization and conformity assessment bodies. One means of facilitation is to en-
courage developing country participation in the standardization and conformity
assessment process; a second means is to take measures to ensure that interna-
tional standards are prepared for products of interest to developing countries.
Recognizing that developing country Members may adopt certain technical regulations, standards
or conformity assessment procedures aimed at preserving indigenous technology and production
methods and processes compatible with their development needs.
Recognizing that developing country Members should not be expected to use international stan-
dards as a basis for their technical regulations or standards, including test methods, which are not
appropriate to their development, nancial and trade needs.
Recognizing and taking fully into account that developing country Members may face special prob-
lems, including institutional and infrastructure problems, in the eld of preparation and application
of technical regulations, standards and conformity assessment procedures.
Recognizing and taking fully into account that the special development and trade needs of develop-
ing country Members, as well as their stage of technological development, may hinder their ability
to discharge fully their obligations under this Agreement.
Taking reasonable measures to ensure that international standardizing bodies and international
systems for conformity assessment are organized and operated in a way which facilitates active
and representative participation of relevant bodies in all Members, taking into account the special
problems of developing country Members.
Taking reasonable measures to ensure that international standardizing bodies, upon request of
developing country Members (if practicable) prepare international standards concerning products
of special interest to developing country Members.
Providing, in accordance with TBT Article 11, technical assistance to developing country Members
to ensure that the preparation and application of technical regulations, standards and conformity
assessment procedures do not create unnecessary obstacles to the expansion and diversication
of exports from developing country Members. In determining the terms and conditions of the
technical assistance, Members are required to take into account the stage of development of the
requesting Members, in particular least-developed country Members. This requirement is found
in Article 12.7.
Bearing in mind during consultations the special difculties experienced by developing country
Members in formulating and implementing standards and technical regulations and conformity
assessment procedures.
Granting time-limited exceptions to obligations arising under the TBT Agreement. (This is poten-
tially a very important form of special and differential treatment.)
Taking into account, during consultations, the special difculties experienced by developing coun-
tries in regard to formulating and implementing technical regulations, standards, and conformity
assessment procedures; taking into account the special needs of developing countries with respect
to nancing, trade and development. This last requirement, which appears in TBT Article 12.9, is
not well drafted. Some may seek to argue that assistance concerning nancing, trade and develop-
ment is only required during consultations. If so, such assistance would be too late to be of much
use.
(c) Provide technical assistance.136

(d) Grant time-limited exceptions:137 pursuant to Article 12.8, the TBT Committee
is authorized to grant a time-limited exception to obligations under the TBT
Agreement in order to ensure that developing countries are able to comply with
the TBT Agreement. In granting such exceptions the Committee is to consider:
The special problems experienced by developing countries in the prepa-
ration and application of technical regulations, standards and conformity
assessment procedures,
The special development and trade needs of the developing country Member,
and
The stage of technological development of the particular developing country.
C. Consultations And Dispute SettlementArticle 14

Pursuant to Article 14.1 of the TBT Agreement, alleged violations of the TBT Agree-
ment are treated pursuant to the provisions of Articles XXII and XXIII of GATT 1994,
as elaborated and applied in the WTO Agreements Dispute Settlement Understanding
(DSU).138 This is the normal manner in which WTO disputes are handled.
Under Article 14.2 of the Agreement parties to a TBT dispute or panels hearing a TBT
dispute may establish a technical expert group to assist in questions requiring technical
expertise. Annex 2 of the TBT Agreement sets forth a procedure governing the role of
experts. In particular, it provides who may serve as an expert, establishes the authority
of experts to seek information and advice, protects condential information, and allows
the Members concerned (parties and third parties to a dispute) to comment on the draft
report developed by a Technical Expert Group.
Article 14.4 provides that the dispute settlement provisions can be invoked when a
Member considers that another Member has not achieved satisfactory results under TBT
Articles 3,139 4,140 7, 8 and 9141 and its trade interests are signicantly affected. Each of
these ve provisions impose an obligation on Members to take reasonable measures to
ensure that local government bodies, non-government bodies, and international and re-
gional systems, comply with the terms of the TBT Agreement. In the event that Members
do not take reasonable measures to ensure compliance with the applicable provisions,
they are responsible for the acts of the various bodies mentioned in Articles 3, 4, 7, 8 and
9 as if the bodies were themselves Members of the WTO
As of the time of writing,142 there have only been two disputes where the TBT Agree-
ment received signicant attention, ECAsbestos and ECSardines. However only
ECSardines was decided based on the TBT Agreement. These decisions have been
discussed throughout this chapter. Some miscellaneous points not treated above are dis-
cussed in the two subsections that follow.
136
See TBT Article 11 and Article 12.7.
137
See Article 12.8 and the discussion of Article 13 infra Part VI(D).
138
The DSU is contained in Annex 2 of the WTO Agreement.
139
Article 3 governs the Preparation, Adoption and Application of Technical Regulations by Local Govern-
ment Bodies and Non-Governmental Bodies.
140
Article 4 governs the Preparation, Adoption and Application of Standards.
141
Article 7, 8 and 9 govern respectively: Procedures for Assessment of Conformity by Local Government
Bodies, Procedures for Assessment of Conformity by Non-Governmental Bodies and International and
Regional Systems.
142
August 2004.
1. ECAsbestos (Miscellaneous Points)

The Asbestos decision examined the applicability of the TBT Agreement, and more
particularly what constitutes a technical regulation, but did not examine substantive issues
involving the TBT Agreement. What constitutes a technical regulation has already been
examined in Part III(A)(1).
ECAsbestos also dealt with the relationship between the GATT 1994 and the TBT
Agreement and the order of analysis in a dispute settlement proceeding when both GATT
1994 and the TBT Agreement are applicable to a particular trade measure. The Panel in
ECAsbestos found:
Both the GATT 1994 and the TBT Agreement form part of Annex 1A to the WTO Agreement
and may apply to the measures in question. Consequently, although we do not in principle
exclude application of the TBT Agreement and/or the GATT 1994 to the Decree, we have to
determine the order in which we should consider this case. According to the Appellate Body
in European CommunitiesRegime for the Importation, Sale and Distribution of Bananas,
when the GATT 1994 and another Agreement in Annex 1A appear a priori to apply to the
measure in question, the latter should be examined on the basis of the Agreement that deals
specically, and in detail, with such measures.143
The Panel rst examined whether the trade measure at issue was a technical regulation.
If it were a technical regulation within the meaning of the TBT Agreement, the TBT
Agreement would apply, since it is the agreement that deals with the measure in the
most specic and most detailed manner.144 The Panel however ruled that the portion
of the decree containing the import ban was not a technical regulation pursuant to the
TBT Agreement.145 Although this nding was reversed by the Appellate Body,146 the
Appellate Body chose not to complete the TBT analysis based on the unavailability
of undisputed facts and sufcient factual ndings at the Panel level, and based on its
determination that the novel TBT claims had not been explored in depth before the
Appellate Body.147
2. ECSardines (Miscellaneous Points)

ECSardines was the rst dispute decided entirely based on the TBT Agreement. It will
almost certainly encourage further TBT disputes. Recalling the Appellate Bodys decision
in ECBananas III wherein the Appellate Body stated that when two agreements apply
simultaneously, a Panel should consider the more specic agreement before the more
general agreement,148 the Panel acceded to Perus request to examine its TBT claim
before its GATT Article III claim.149
Perus primary argument, and the one that prevailed before both the Panel and the
Appellate Body, was that the EC measure was inconsistent with Article 2.4 of the TBT
Agreement because the EC did not use Codex Standard 94 as a basis for its technical reg-
ulation despite the fact that the standard would be an effective and appropriate means to
143
European CommunitiesMeasures Affecting Asbestos and Asbestos-containing Products, Report of the
Panel, WT/DS135/R (2001) 8.16.
144
Id. 8.17.
145
Id. 8.728.73.
146
ECAsbestos, Report of the Appellate Body, supra note 11, 76.
147
Id. 7983.
148
European CommunitiesRegime for the Importation, Sale and Distribution of Bananas, WT/DS27/R
(1997), 204.
149
ECSardines, Report of the Panel, supra note 12, 7.15.
fulll the legitimate objectives of the EC Regulation.150 Neither the Panel nor the Appel-
late Body reached Articles 2.1 and 2.2 of the TBT Agreement or Article III of the GATT.
As a result, and a point worthy of emphasis, each made a nding of a violation of Article
2.4 of the TBT Agreement without a formal nding that the ECs trade measure was
discriminatory. The important TBT issues in this decision have already been examined
in depth above.
D. Institutional Considerations
1. The Work of the Committee on Technical Barriers to Trade
Article 13 of the TBT Agreement creates a Committee on Technical Barriers to Trade.
Representatives of each of the Members are entitled to participate. The Committee meets
as necessary, but at least once a year. The TBT Committee has numerous responsibil-
ities: (1) it provides Members with an opportunity to consult on TBT issues; (2) it
carries out whatever responsibilities the Members may assign to it, and establishes work-
ing parties and other bodies to carry out these responsibilities; (3) it works to avoid
duplication between its activities and the work of governments in other technical bod-
ies; and (4) it grants time-limited exceptions to obligations arising under the TBT
Agreement.151
2. Built-in Reviews of the TBT AgreementArticles 12.10, 15.3 and 15.4.

The TBT Agreement contains many provisions that mandate its review by the Members.
Article 15.3 of the TBT Agreement requires that the TBT Committee annually review the
implementation and operation of the TBT Agreement taking into account the objectives
of the Agreement. Article 15.4 requires that every three years the TBT Committee must
conduct a review of the implementation and operation of the TBT Agreement, with a
view to recommending adjustments of the rights and obligations of the Agreement where
necessary. This review is designed to ensure mutual economic advantage and the balance
of rights and obligations, without prejudice to the provisions concerning special and
differential treatment contained in Article 12. Based on the implementation experience,
the TBT Committee is entitled to submit proposals to amend the TBT Agreement to
the Council. Two triennial reviews have been held, the rst in 1997,152 and the second
in 2000.153 These documents, referenced by number, are available on the WTOs web
site. They offer a somewhat critical review of the successes and failures under the TBT
Agreement.154
The TBT Committee is also required pursuant to TBT Article 12.10 to examine
periodically the special and differential treatment, as laid down in this Agreement, granted
150
Id. 3.1(a).
151
See TBT Articles 12.8 and 13. This point is mentioned supra Part V(B) in the discussion of special and
differential treatment.
152
WTO Document No. G/TBT/5 (975092) November 19, 1997.
153
WTO Document No. G/TBT/9 (004811) November 13, 2000.
154
The rst report noted, among other ndings, that the status of implementation of the TBT Agreement
was not satisfactory. Transparency and developing country concerns (including the need for more technical
assistance, and the need to make operational the special and differential treatment provisions) are also set
forth. The second report provides a list detailing which Members have notied inquiry points and measures
taken to ensure the implementation of the TBT Agreement. Activities organized by the TBT Committee
are also listed. Information exchange, capacity building, technical assistance and special and differential
treatment were also concerns. Again, the TBT Committee found that the status of implementation needed
to be improved.
to developing country Members on national and international levels. It has done so in

each of two triennial reviews conducted pursuant to Article 15.4.
3. Web Resources
The WTO maintains a comprehensive website at <www.wto.org>. One can nd back-
ground information concerning the TBT Agreement, the complete text of the TBT
Agreement, the results of the annual and triennial TBT Committee Reviews, Mem-
ber notications, training information, national TBT inquiry points, minutes of TBT
Committee meetings, working documents of the TBT Committee, a list of standardiz-
ing bodies that have accepted the Code of Good Practice, and many other TBT-related
documents.
4. Doha Work Program

The TBT Agreement was not the subject of major attention during the Doha Ministe-
rial meeting. The Decision on Implementation-Related Issues and Concerns155 does
however dene the reasonable interval between publication and entry into force of a
technical regulation as a period of not less than six months (except in certain specied ur-
gent circumstances).156 In addition, one crosscutting issue present in the same instrument
may have implications for the TBT Agreement. The Decision on Implementation-Related
Issues and Concerns instructs the Committee on Trade and Development to identify
mandatory and non-binding provisions governing special and differential treatment and
to consider the implications of converting non-binding SDT provisions into mandatory
provisions, as well as to consider how SDT provisions can be made more effective. Given
that the SDT provisions in the TBT Agreement are not particularly meaningful for de-
veloping countries, and since the TBT Agreements preamble does hold out some hope
of benets for developing countries,157 these provisions may be ripe for review during
the negotiations on the Doha Work Program.
VII. Conclusion
The TBT Agreement seeks to achieve a balance between permitting Members the regu-
latory autonomy to protect legitimate interests (through the use of technical regulations,
standards and conformity assessment procedures), and assuring that technical regula-
tions, standards and conformity assessment procedures do not become unnecessary ob-
stacles to international trade. The TBT Agreement cannot be applied too strictly or the
legitimate interests of Members will be thwarted. But it cannot be applied too laxly or
the value achieved through progressive rounds of tariff reductions will be lost.
Further complicating this ne balance are various actors in civil society with divergent
interests. For example, the environmental community is afraid that the TBT Agreement
will be applied narrowly and that what they view as legitimate environmental measures
will not meet the requirements of the TBT Agreement. Likewise, labor and human rights
155
Implementation-Related Issues and Concerns, Decision of November 14, 2001, WTO/MIN(01)/17,
November 20, 2001, 5.2.
156
See Transparency, supra Part V(E).
157
Recital seven of the TBT Agreements preamble suggests that international standardization can facilitate
the transfer of technology to developing countries, but fails to explain how or why. Recital eight expresses
the desire of the Members to assist developing countries in formulating and applying technical regulations,
standards and conformity assessment procedures.
organizations are concerned that these items are not specically mentioned in the TBT
Agreementeven though the protection of human life and health is deemed a legitimate
interest in Article 2.2.
On the other side, developing countries are often suspicious that trade measures (tech-
nical regulations and standards) allegedly taken by developed countries for social policy
goals are in reality for protectionist purposes. Likewise, many in the business community
react negatively to the possibility that trade measures will be applied to further social
policy objectives for fear of being economically disadvantaged by protectionist measures.
Perhaps as a result of these competing interests, and a desire not to subject the GATT
and later the WTO to criticism, until recently panels avoided applying the Tokyo Round
Standards Code and now the TBT Agreement, tending to resolve potential TBT cases
under GATT rules.158 With the Appellate Bodys decision in the Asbestos case holding
that the TBT Agreement was applicable to the import ban in question and that it is proper
to begin the analysis of a trade measure with the most specic agreement, as well as the
2002 decision in the Sardines dispute, this situation is changing. We can expect to see
more panels and the Appellate Body deciding regulatory disputes involving trade in goods
through the application of the TBT Agreement. We can also expect to see an increase
in TBT disputes, primarily because, despite the need for domestic policy autonomy to
address legitimate interests, technical regulations, standards, and conformity assessment
procedures are sometimes used as protectionist devices.
Since it is probable that TBT disputes will increase, it is time to address another prob-
lem during the Doha Round. Although the TBT Agreement contains provisions in favor
of developing countries concerning the grant of special and differential treatment and
technical assistance, there is a need to increase the level of technical assistance available,
and to evaluate whether the provisions governing special and differential treatment are
sufcient and effective. It is also time to ascertain whether international standardiza-
tion efforts have been effective, and the extent to which harmonization, equivalence and
mutual recognition can or should be increased.
158
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 StatesStandards 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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The Agreement On Technical Barriers To Trade

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CHAPTER 8

THE AGREEMENT ON TECHNICAL BARRIERS TO TRADE

A. The Non-Discrimination Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388

II. Brief Historical Overview

B. The Tokyo Round Standards Code

III. The TBT Agreement

A. Terminology in the TBT Agreement

regulations based on product requirements rather than design or descriptive standards. By

3. Conformity Assessment Procedure

B. Structure and Scope of the TBT Agreement

1. Not Applicable to Trade in Services

2. TBT Agreement vs. Government Procurement Specications:

3. SPS vs. TBT Measures: SPS Carved Out

spread or establishment of pests, diseases, additives, contaminants, toxins or disease

4. Probably Inapplicable to Non-Product-Related Processes and Production Methods

5. Applicability to Import Prohibitions

6. Retroactive Application of the TBT Agreement

Like the trade measure in ECHormones, the EC Regulation at issue in ECSardines

IV. Applicability of the TBT Agreement at Various Governmental

A. Technical Regulations (Articles 2 and 3)

B. Standards (Article 4 and the Code of Good Practice)

C. Conformity Assessment Procedures (Articles 59)

Article 5 provides for most-favored-nation treatment, national treatment, harmonization

1. Central Government Bodies (Articles 5 and 6)

2. Local Government Bodies (Article 7)

3. Non-Governmental Bodies (Article 8)

4. International and Regional Application (Article 9)

V. Major Principles Applicable (in Various Forms) Throughout

A. The Non-Discrimination Principle

B. The Prevention of Unnecessary Obstacles to International Trade

measurement, etc. are widely applied to household appliances, communica-

Regulations and standards furthering product quality and product compatibil-

C. HarmonizationUse of Relevant International Standards

because twenty sh species specied in the standard, in addition to Sardina pilchardus,

2. Whether Codex Standard 94 Was Used as a Basis for the EC Regulation

3. Ineffective or Inappropriate Means

The Appellate Body also reafrmed the Panels nding that:

4. Rebuttable Presumption Favoring the Use of Certain Harmonized Standards

D. Equivalence and Mutual Recognition

discussions concerning proposed measures.129 For draft standards, a sixty day

F. Derogations from Transparency in the Event of Urgent Problems

VI. Other Important Provisions of the TBT Agreement

of technical assistance provisions. WTO Members are required to:

B. Special and Differential TreatmentArticle 12

(c) Provide technical assistance.136

C. Consultations And Dispute SettlementArticle 14

1. ECAsbestos (Miscellaneous Points)

2. ECSardines (Miscellaneous Points)

2. Built-in Reviews of the TBT AgreementArticles 12.10, 15.3 and 15.4.

to developing country Members on national and international levels. It has done so in

4. Doha Work Program

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