The Agreement on Technical Barriers to Trade the “TBT Agreement”

avoidance of unnecessary obstacles to international trade allowing for regulatory autonomy to protect legitimate interests promotion of international standards

Non-tariff barriers to trade (NTBs)

Trade Rounds Year Place / name Subjects covered # 1947 Geneva Tariffs 23 1949 Annecy 13 1951 Torquay 38 1956 26 1960-1961 Geneva (Dillon Round) 1964-1967 Geneva (Kennedy Round) Tariffs and anti-dumping measures 62 1973-1979 Geneva (Tokyo Round) Tariffs, NTBs, “framework agreements” 102 1986-1994 Geneva (Uruguay Round) Tariffs, NTBs, rules, services, IP, DSU, textiles, agriculture, creation of WTO, etc. 123 2001 - Geneva (DDA) (the above) + environment, + ? 148 Source: WTO

Overall, import weighted tariff on Tariffs (1) Overall, import weighted tariff on industrial products ≈ 40% > 4%

(Nevertheless, tariffs are still an issue ...) In the negotiations (Agriculture and NAMA): Peaks, escalation, preferences In agriculture + tariff rate quotas Also preferences and compound / mixed tariffs As long as subsidies persist... Use of tariffs to protect markets ... But, nevertheless, in relative terms: less of an issue today

Doha Ministerial Declaration (para 16) negotiations In the negotiations (Agriculture and NAMA): Peaks, escalation, preferences In agriculture + tariff rate quotas Also preferences and compound / mixed tariffs As long as subsidies persist... Use of tariffs to protect markets ... But, nevertheless, in relative terms: less of an issue today

“July Package” 1 August 2004 (para B-3, Para 14) intensify In the negotiations (Agriculture and NAMA): Peaks, escalation, preferences In agriculture + tariff rate quotas Also preferences and compound / mixed tariffs As long as subsidies persist... Use of tariffs to protect markets ... But, nevertheless, in relative terms: less of an issue today

Hong Kong Ministerial Declaration (para 22) need for proposals .. quickly In the negotiations (Agriculture and NAMA): Peaks, escalation, preferences In agriculture + tariff rate quotas Also preferences and compound / mixed tariffs As long as subsidies persist... Use of tariffs to protect markets ... But, nevertheless, in relative terms: less of an issue today

Scope of TBT Agreement

TBT Agreement is applicable to: “1.3 All products, including industrial and agricultural products, shall be subject to the provisions of this Agreement.”

What is the TBT Agreement is not applicable to ?

TBT Agreement is not applicable to .... “The provisions of this Agreement do not apply to sanitary and phytosanitary measures as defined in Annex A of the Agreement on the Application of Sanitary and Phytosanitary Measures.” TBT Agreement, Article 1:5 (General Provisions)

Protection of the environment Invasive species GMOs? quality - safety

SPS measures TBT Agreement Services Government procurement Import bans

What is a TBT measure?

Conformity Assessment Procedures Technical Regulations Standards

Technical Regulation “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 labelling requirements as they apply to a product, process or production method.” TBT Agreement, Annex 1, para 1 Jump to PPM

Technical Regulation document which lays down product characteristics or their related processes and production methods with which compliance is mandatory … TBT Agreement, Annex 1, para 1 (words) Jump to PPM

“characteristics” size shape colour texture hardness tensile strength flammability conductivity density or viscosity

“related characteristics” terminology symbols packaging marking or labelling requirements

Technical Regulations Standards Conformity Assessment Procedures

Conformity Assessment Procedures “Any procedure used, directly or indirectly, to determine that relevant requirements in technical regulations or standards are fulfilled.” TBT Agreement, Annex 1, para 3

Technical Regulations Standards Conformity Assessment Procedures

Definition of a “standard” “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 labelling requirements as they apply to a product, process or production method.” TBT Agreement, Annex 1, para 2

Definition of a “standard” 1 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 TBT Agreement, Annex 1, para 2 2 3 4

“International Body or System” (Annex 1, para 4) “Body or system whose membership is open to the relevant bodies of at least all Members.”

TBT Agreement Basic principles ? Note: the SPS Agreement has particular and unique provisions with respect to science and risk assessment. SPS Agreement

Three Key Principles

non-discrimination unnecessary obstacle harmonization

Non-discrimination (MFN, NT)

Article III:4 of GATT 1994 “The products of the territory of any Member imported into the territory of any other Member shall be accorded treatment no less favourable 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.” …

Article 2.1 of the TBT Agreement “Members shall ensure that in respect of technical regulations, products imported from the territory of any Member shall be accorded treatment no less favourable than that accorded to like products of national origin and to like products originating in any other country.”

“like products” “treatment no less favourable”

What is a “like product”

In respect of non-discrimination, is there a difference between TBT and SPS?

Article 2.3 of the SPS Agreement no unjustifiable discrimination between Members where identical or similar conditions prevail including own territory and other Members no disguised restrictions on international trade

non-discrimination unnecessary obstacle harmonization

Unnecessary obstacles to international trade

Article 2.2 (TBT) (technical regulations) “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 fulfil a legitimate objective, taking account of the risks non-fulfilment would create. .. .” (emphasis added)

“unnecessary obstacle” “not more trade-restrictive than necessary” “taking into account risk of non-fulfillment”

Case-by-case

Choice of measure

non-discrimination unnecessary obstacle harmonization

The use of international standards = ≈ The use of international standards “harmonization”

Article 2.4 – 2.6 of the TBT Agreement = ≈ Article 2.4 – 2.6 of the TBT Agreement

explain / presumption (2.5) = ≈ Three issues use ! (2.4) explain / presumption (2.5) participation (2.6)

= ≈ EC – Sardines (2002) EC – Trade Description of Sardines (Peru) (first TBT case) ... look at this later ...

explain / presumption (2.5) = ≈ Three issues use ! (2.4) explain / presumption (2.5) participation (2.6)

= ≈ What are the key differences between the TBT and SPS Agreements with respect to Harmonization?

= ≈

= ≈ non-discrimination unnecessary obstacle Standards “like products” requirements? situations (SPS) unnecessary obstacle “new” policy objective choice of measure case-by-case = ≈ Standards Qualified obligation to use TBT open / SPS closed exceptions sardines

What I said at outset ...