Denise Prévost

Transparency obligations under the TBT Agreement

A relatively new frontier for legal and policy analysis, technical barriers to trade (TBT’s) have become more common as traditional border barriers have been reduced. This comprehensive Handbook comprises original essays by eminent trade scholars exploring the implications of the WTO’s TBT Agreement.

Netherlands Yearbook of International Law 2017 : Shifting Forms and Levels of Cooperation in International Economic Law: Structural Developments in Trade, Investment and Financial Regulation

This Volume of the Netherlands Yearbook of International Law explores emerging trends and key developments in international economic law. It examines shifts in the levels of cooperation (from multilateral to plurilateral, regional or bilateral—or vice versa), and shifts in the forms of cooperation (new types of actors and instruments). These trends are analysed both from a conceptual and a practical perspective, with contributions addressing drivers for change, historical perspectives, future developments, and evolutions in specific policy fields. While a focus on international economic law may certainly not tell the whole story in relation to shifts in levels and forms of international cooperation, it does allow for a more detailed analysis of some of the important trends we currently witness. The Netherlands Yearbook of International Law was first published in 1970. It offers a forum for the publication of scholarly articles in a varying thematic area of public international law.

States’ Regulatory Autonomy to Protect Societal Values by Legitimate Regulatory Distinctions

Trade disputes in which public policy regulation is challenged have been among the most difficult and controversial of those before the adjudicatory bodies of the WTO. They have showcased the crucial role of adjudication in achieving an appropriate balance between the sovereign autonomy of States to regulate to protect important societal values on the one hand and trade liberalization on the other.Nowhere is this more clearly apparent than in the line of case law by the WTO Appellate Body, interpreting the non-discrimination obligation in Article 2.1 of the WTO Agreement on Technical Barriers to Trade (TBT Agreement). Despite its limited mandate, the Appellate Body has shouldered its responsibility to give appropriate meaning to this badly drafted provision. Thereby it has averted the risk of unacceptable limitations on the regulatory autonomy of states.However, since in order to do so, the Appellate Body has had to read into this provision a flexibility not apparent in its wording, no negotiated criteria for its availability exist. Thus, to ameliorate the risk of abuse of this new flexibility, the Appellate Body has itself established some criteria limiting its use.This contribution examines these legal developments against the background of the limited mandate of the adjudicatory bodies of the WTO. After sketching the new legal framework for technical regulations resulting from the Appellate Bodys case law on Article 2.1, it illustrates the dangers of such case law driven solutions to legal problems. It does so by focusing on one of the criteria laid down by the Appellate Body for the availability of the flexibility it has carved out of Article 2.1, namely the Appellate Bodys exclusion of cases of de sure discrimination from the possibility to use this flexibility is examined to determine whether it has the potential to close the door to legitimate public policy regulation. A way forward is then proposed.

National treatment in the SPS Agreement: A sui generis obligation

The national treatment principle, as one would expect of one of the core non-discrimination principles in WTO law, plays a key role in disciplining WTO Members’ exercise of their regulatory capacity in the area of sanitary and phytosanitary (SPS) protection, through its incorporation in the WTOs SPS Agreement. This agreement covers a sensitive area of regulation, broadly speaking that of measures to protect human, animal or plant health from food-borne risks or risks from pests and diseases of plants or animals, which may directly or indirectly affect international trade. It lays down what may be seen as a ‘best-practices’ regulatory model to ensure that SPS regulation must comply, in order to minimise its trade restrictive effects while leaving sufficient room for effective health protection. A national treatment rule is an essential part of this model in order to prevent the misuse of health regulation for protectionist purposes. However, the way in which the obligation of national treatment is given form in the SPS Agreement goes beyond an anti-protectionism discipline and is thus rather different from the traditional GATT national treatment rule. One could speak of a sui generis national treatment rule in the SPS Agreement, crafted to meet the exigencies of SPS regulation. This contribution examines the differences in scope and content between the GATT national treatment rule and that contained in the SPS Agreement, in order to elucidate the effect of the national treatment rule in the SPS Agreement on WTO Members’ regulatory autonomy in the politically sensitive area of SPS protection. It starts by identifying the context and scope of application of the SPS Agreement in order to understand the reasons for the particular formulation of the national treatment rule in this agreement, and the circumstances in which it has effect. Thereafter, the framing of the national treatment principle in the SPS Agreement is examined to identify its particularities. The specific elements of the national treatment obligations in the SPS Agreement and their clarification in the case law are discussed to provide more insight into the workings of this obligation in practice. This analysis is conducted against the background of the national treatment obligation in the GATT, in order to highlight the differences. Finally, conclusions are drawn relating the unique nature of the national treatment principle in the SPS Agreement to the particular objectives of this Agreement.

The EU legislation regarding GMOs and its implications for trade

The drafting of the new regulations on genetically modified organisms (GMOs) in the European Union (EU) has been a difficult and controversial task. EU regulators have been faced with the challenge of creating rules that address the possible risks to health and the environment from GMOs, in the face of scientific uncertainty regarding these risks. They have also had to ensure that the new rules will give consumers confidence in the safety of those GMOs that are approved for use in the EU. This is part of a general effort to address the erosion of consumer confidence in the EU regulatory system following several recent food-safety crises. As the European Commissioner for Health and Consumer Protection, ...