Nontariff barriers (NTBs) are the main market-segmentation factor. The WTO Agreement on Technical Barriers to Trade (TBT) is a key agreement aiming to tame NTBs. Unlike the GATT, where the main commitment was the tariff concession (and remaining obligations, including disciplines regarding domestic policies, aimed to support it), the commitment in TBT is ‘rational’ domestic regulation (in the sense, international standards are observed and measures are based on science, when warranted, and they do not result in unnecessary cost-shifting). Alas, the WTO Appellate Body (AB), by understanding words as ‘invariances’, e.g., interpreting them out of context (without asking what is the purpose for the TBT if GATT could have done the job anyway?), has exported its GATT case law into the realm of TBT, and ended up with significant Type I errors. In the most recent report of the tuna-saga, an ongoing dispute between Mexico and the United States, a panel corrected many of the pre-existing misunderstandings regarding the scope and function of TBT. We are almost there, but not there yet. In what follows, we explain why the current approach is erroneous, and advance an alternative understanding, which could help implement the TBT in the future in a manner faithful to its negotiating intent.
Petros C. Mavroidis
Petros C. Mavroidis is Edwin B. Parker Professor of Law at Columbia Law School New York City