EXAMPLES OF TECHNICAL BARRIERS TO TRADE  one of the main TBT issue at the moment is labelling (see Tuna report)  brief overview of marks and rules of origin in the WTO system (unrelated to TBT): -Article IX GATT -Agreement on rules of origin -TRIPs agreement

ARTICLE XI GATT: MARKS OF ORIGIN  MFN as regards marks requirements  balancing consumer protection and trade liberalisation (necessity principle)  marks must no damage the product  no misrepresentation of origin

AGREEMENT ON RULES OF ORIGIN  long-term harmonization of ROO  no unnecessary obstacle to trade  Committee on ROO (WTO) and Technical Committee on ROO (Customs Cooperation Council)  transparency; no trade distortion; based on positive standards; reasonable and fair administration

TRIPs AGREEMENT  Article 22: definition of GI prohibition of misrepresentation or unfair competition  Article 23: additional protection of GI for wines and spirits negotiations in the TRIPs Council for the establishment of a multilateral system of notification and registration

GEOGRAPHICAL INDICATIONS  no uniform definition  it is a type of intellectual property  3 conditions: - good/service - origin in an area - quality/reputation linked to geographical origin

THE US AND EU SYSTEM FOR GI PROTECTION: A COMPARISON  The EU system - sui generis system for GI since link between the characteristics of the product and the place it comes from protected geographical indication protected designation of origin - IP of a community - conditions for registration

THE US AND EU SYSTEM (CONTINUED) - scope of the protection - addressees : consumer, small farmers and DCs traditional speciality guaranteed  The US system - part of the general IP system - trademarks: the owner of the mark safeguards its interest

THE US AND EU SYSTEM (CONTINUED) - rights and resp'ties entrusted to interested parties - a TM generally does not refer to a geographical area - it is an individual right - advantages: economic and administrative because the TM system already exists

THE US AND EU SYSTEM (CONTINUED)  EU system: public policy for consumers rights and security  US system: producers' needs, tool for private parties to protect competition

THE US-TUNA DISPUTE  US -Tuna: TBT measure about fishing methods -tuna fished by “setting on dolphins” cannot receive the “dolphin-safe” label on the basis of a US law -the panel says it is a NT violation because this rule just works in a part of the Pacific Ocean -in the other part setting on dolphins is allowed + the US imports tuna from there

THE US-TUNA DISPUTE  the tuna- dolphins association does not always exist a dolphin safe label does not always correspond to reality because the underlying problem does not exist  the label does not carry out the function it is conceived for: informing the consumer!

THE US-TUNA DISPUTE  likeness analysis focussed on process/production method  the fishing method is not able to alter the competitive relationship  consumers preferences are taken into account but not enough to make the two products different

THE TECHNICAL BARRIERS TO TRADE AGREEMENT  main rules: -non discrimination (MFN and NT) -necessity of the measure -conformity to international standards -“soft” mutual recognition of other members’ standards -longer time limits for LDCs and taking into account of their needs

THE TECHNICAL BARRIERS TO TRADE AGREEMENT  Link to article 2 of the TBT al_e/17-tbt_e.htm

THE SANITARY AND PHYTOSANITARY AGREEMENT  Main rules: -an SPS is a measure used in order to protect human, plant of animal life from pests or diseases -Example : risk assessment procedures, quarantine treatment, labelling related to food safety, inspections

THE SANITARY AND PHYTOSANITARY AGREEMENT Relevant articles: Article 2 par.1-4 Article 3 par.1-4 Article 5 par.1,2,3,4,7 15sps_01_e.htm

THE SANITARY AND PHYTOSANITARY AGREEMENT - States can adopt SPS measures if they comply with the Agreement - SPS measures are necessary, based on scientific principles and maintained only with sufficient scientific evidence - non discrimination - measures compliant with the SPS agreement are presumed to be compliant with GATT article XX b)

THE SANITARY AND PHYTOSANITARY AGREEMENT -conformity to international standards and presumption of conformity to the SPS Agreement and the GATT - States can pursue a higher level of protection than international standards if there is a scientific basis -mutual recognition of other States’ standards if the exporting member demonstrates that the standard is adequate

THE SANITARY AND PHYTOSANITARY AGREEMENT  SPS measures are based on risk assessment -in assessing the risks members must take into account economic factors (?!) -in setting the level of protection States must minimize trade effects -coherence in setting the level of protection

THE SANITARY AND PHYTOSANITARY AGREEMENT -SPS measures are necessary, taking into account technical and economic feasibility -if scientific evidence is insufficient, members can adopt provisional measures and review them in a reasonable period of time -special consideration for LDCs and longer time frames

THE SANITARY AND PHYTOSANITARY AGREEMENT  Disputes: -EC – hormones : import ban of beef from US and Canada because of the use of hormones -EC – GMOs : moratorium by the EC on the approval and marketing of GMOs -one of the main problems is the allocation of the burden of proof

THE SANITARY AND PHYTOSANITARY AGREEMENT  general issues: -how judges handle scientific uncertainty -relationship between WTO system and other norms of international law -does article 5.7 really make sense? -Is WTO the right place where to solve env’l/food safety disputes?

THE SPS AGREEMENT  The clove cigarettes report - import ban by the US of clove cigarettes - complaint by Indonesia, main exporter - violation of NT > likeness analysis - group of comparison: menthol cigarettes - they are similar as flavoured cigarettes

THE SPS AGREEMENT - menthol cigarettes are not banned = violation of NT - according to the US heavy consequences because many people smoke them - what is the consequence of this report? banning all flavoured cigarettes in the US?