WTO Regional Seminar1 RTA Regulatory Provisions: The Boundaries of GATT Article XXIV Dr. James H. Mathis Department of International Law Amsterdam Law School University of Amsterdam, NL.

WTO Regional Seminar2 Two Questions: Must an RTA member eliminate regulatory barriers to trade to form an Article XXIV compatible free trade area or customs union? Can an RTA member make a domestic regulatory requirement more restrictive as to other WTO Members?

WTO Regional Seminar3 Governing Legal provisions: XXIV, para. 8 - definitional and internal - FTA or CU understood to mean a formation whereby other restrictive regulations of commerce (ORRCs) are eliminated… XXIV, para. 5 - operational and external - exception provided that other regulations of commerce (ORCs) not on whole more restrictive than general incidence prior to the formation.

WTO Regional Seminar4 Context of a legal test: (AB in Turkey-Textiles): Article XXIV is a conditional exception –Part 1. Measure introduced on formation meeting the requirements of Article XXIV:8 and XXIV:5 –Part 2. Formation prevented if the party were not allowed to introduce the inconsistent measure.

WTO Regional Seminar5 ORRCs in paragraph 8 context: Refers backward to the elimination of duties and other RRCs, –(duties plus something else) forward to Articles listing, except where necessary, Arts. XI-XV and XX… –(suggesting examples of ORRCs)

WTO Regional Seminar6 Narrow view - ORRCs, limited to Article XI Measures GATT regime - internal and external –N.T. IIIBQRs (XI) BDuties (II) –TBTB –SPSB –MFN (I)BMFN (I)

WTO Regional Seminar7 ORRCs - narrow view (pro) Places para. 8 within GATT context of border measures. Art. XI cases apply Avoids inventory of domestic regulations as to plan and schedule Lower barrier to formation, but no XXIV defence for regulatory measures (Art. I) Avoids XXIV preemption of TBT recognition provisions. (compare GATS VII)

WTO Regional Seminar8 Problems with a narrow view: Why should ORRCs require elimination of what is already prohibited among all GATT parties by Article XI? Terminology. Art. XI does not use the term regulation nor ORRCs. –The term regulation is used by Article III for internal treatment. CU practice, QRs not eliminated (Benelux)

WTO Regional Seminar9 Broader view - ORRCs include restrictive domestic regulations restricting commerce is an affecting or hindering trade standard –Compare TBT Art. 2.2 unnecessary obstacles to international trade –ORRC standard is even higher if restrictive is more like affecting then unnecessary

WTO Regional Seminar10 Broader view: discussion What historical / state practice for elimination of regulatory ORRCs? –EC practice until Dassonville (1974) Viner - custom union is tariff removal Havana - no regulatory mandates, positive or negative GATS V context. Non-discrimination standard

WTO Regional Seminar11 ORRCs - alternative approaches Trachtman - unnecessary and discriminatory to cover by ORRCs Against whom? Paragraph 8 is internal, not external –Suggests ORRCs to capture less favourable treatment to an RTA member…

WTO Regional Seminar12 Protectionism or commercial policy (Mathis approach) Articles listing: VI and XIX are not listed, IF these are ORRCs, then eliminate: 1. duties (legal but protectionist) 2. Border measures of a protectionist nature (not BOP, food shortages, Art. XX, etc) 3. Discriminatory regulations, dom/rta 4. Rules of Origin?

WTO Regional Seminar13 GATT Regime: GATT regime - internal and external –N.T. IIIBQRs (XI) BDuties (II) –TBTBA.D. (VI) –SPSBSafeguards (XIX) –MFN (I)BMFN (I)

WTO Regional Seminar14 ORCs as in paragraph 5 AB endorsed panels broad scope for this ORC term as, any trade or regulatory measure affecting the trade of other WTO Members. –regulations as covered by WTO (SPS, valuation, A.D, technical barriers), and, –other trade related regulation, environment, export credit schemes, and evolving.

WTO Regional Seminar15 ORCs equal to ORRCs? Consider the context Paragraph 5 proviso, provided no raising of new trade barriers for an RTA –Any trade barrier should be considered Paragraph 8 context, threshold level of liberalisation to reach –separates CUs and FTAs from all other preferential schemes

WTO Regional Seminar16 Q: Single more restrictive ORC? Single ORC is more restrictive, but assessment of ORCs overall (on average) is not more restrictive? –Turkey test part 1 is met, measure upon formation complying with paras. 8 and 5 –Turkey test part 2 ? How could a formation be prevented by non-introduction of a single measure?

WTO Regional Seminar17 For CUs: para. 5 and para. 8 ORCs Applying para 5, then anything affecting trade of third parties would require harmonisation Note. ECJ granted external competence for technical barriers in Opinion 1/94, Same term, different context

WTO Regional Seminar18 Conclusion XXIV and the intricate draftmanship: Havana modifications with 29 subcommittee meetings XXIV purpose - not pure economic objective. partial preferential systems Distinct paragraph 8 and paragraph 5 analysis, in SEQUENCE