Lecture 8

Question 1

Health and Safety Standards in Trade Regulation

Answer 1

• increasing source of tension in international trade relations
• non-tariff barrier to trade

Question 2

What is the effect of lax h and s standards in trade?

Answer 2

Creates health and safety risks

Question 3

Did GATT originally contain h and s provisions?

Answer 3

No, however Article XI (quanititative restrictions), Article I (MFN) and Article 111.4 (National Treatment Principle) assist in this.

Question 4

Where does a country look to justify restrictions?

Answer 4

Article XXb (necessary to protect human/animal/plant health)

Question 5

What does article xxb provide?

Answer 5

exceptions from the disciplines of the GATT for trade measures necessary to protect human, animal or plant life for health, or relation to the conservation of natural resources

Question 6

Tokyo Round

Answer 6

Standards Code was adopted, signed by 46 members

- criticized for failing to distinguish adequately between necessary and unnecessary restrictions on trade.

Question 7

Uruguay Round

Answer 7

two new agreements were negotiated: SPS and TBT, which are binding to all members

Question 8

What is the SPS agreement?

Answer 8

measures that protect animal/plant health within a territory from risks arising from the entry of other disease carrying organisms, and to protect human life within the territory of the member from risk arising from additives, food toxins ect

Question 9

Who does SPS apply to?

Answer 9

Members, who must ensure that measures are applied only to the extent necessary to protect life, based on scientific principles, and is not maintained without sufficient scientific evidence (Article 5.7 (Article 2.2)

Question 10

What is the second things that members must ensure about SPS application?

Answer 10

that measures do not arbitrarily or unjustifiably discriminate bw members where identical/similar conditions prevail (Article 2.3)

Question 11

What is the SPS risk assessment process?

Answer 11

members shall ensure that their sps measures are based on assessment of risks, taking into account risk assessment techniques (article 5.1) and avoiding arbitrary or unjustifiable distinctions in levels of sps protection (Article 5.5)

Question 12

SPS trade restrictions

Answer 12

Members must ensure that measures are not more trade restrictive than required to achieve their appropriate level of sps protections, taking into account technical and economic feasibility (Article 5.6)

Question 13

SPS acceptance of other member measures

Answer 13

Members shall accept the SPS measures of other members as equivalent. Reasonable access shall be given, upon request, to the importing member for inspection, testing, and other relevant procedures. Multilateral approach (Article 4)

Question 14

TBT Agreement

Answer 14

Covers all technical product regulations and standards not in the SPS agreement. Cannot be applied in an arbitrary/unjustifiable way between countries where the same conditions prevail

Question 15

TBT 2.1

Answer 15

with regard to technical regulations, treatment no less favourably than like domestic products.

Question 16

TBT 2.2

Answer 16

obligation on members to ensure that technical regulations are not more trade restrictive than necessary to fulfill a legitimate objective.

Question 17

TBT 2.4

Answer 17

members must use international technical standards as the basis for their own regulations, except where such international standards would be an ineffective or inappropriate means for the fulfillment of the legitimate objectives

Question 18

What are international standards

Answer 18

They are not defined in the tbt agreement and there is no list of international standard setting bodies whose standards are recognized as to section 2.4

Question 19

TBT 2.7

Answer 19

accepting the technical regulations of other countries as equivalent to their own, provided that the foreign regulations accomplish the same objectives

Question 20

TBT 2.8

Answer 20

regulations based on product performance

Question 21

Articles 2.5, 2.9 and 2.11

Answer 21

notification and publication requirements on members enacting new technical regulations

Question 22

SPS Caselaw: Beef Hormones (1998)

Answer 22

• EU’s regulatory measures did not conform to international standards, risk assessment did not conform to WTO
• endorsed scientific evidence that is “reasonably sufficient”
• Deferential approach

Question 23

Japan- Apples (2003)

Answer 23

• less deferential approach

- assessment of rational connection bw science and impugned SPS measure did not require deference

Question 24

Beef Hormones (2008)

Answer 24

criticized the Panel in the Japan Apples (2003) proceedings for somewhat peremptorily deciding what is considered the best science.

Question 25

Australia: Measures affecting the importation of Apples from New Zealand (2010)

Answer 25

risk assessment base its conclusions on the available scientific evidence, use of expert judgement had not been sufficiently transparent and therefore was not considered proper.

Question 26

EC-Biotech (2006)

Answer 26

• EC country bans on certain GMO crops did not meet the requirements of Article 5.7 of SPS.
• Studies carried out on the banned GMO crops by the EC scientific committee and by other competent national authorities constituted sufficient risk assessment, therefore the requirement for ‘insufficient scientific information’ was not met.

Question 27

EC- Trade Description of Sardines (2002)

Answer 27

AB held that regulation was not based on relevant international standards
- Peru did not meet the burden of proof in demonstrating that the int standards would be effective in achieving all three EC measure objectives

Question 28

What are the three objectives advanced for the EC measure?

Answer 28

1. market transparency
2. consumer protection
3. fair competition

Question 29

US- Clove Cigarettes (2012)

Answer 29

• less favourable treatment of like product

- AB found for Indonesia

Question 30

US- Tuna Labelling II (2012)

Answer 30

Dolphin safe labelling on tuna products.

The panel found that the measure was a technical regulation because it had some mandatory features

AB reversed finding, US provisions were inconsistent with TBT 2.1

Question 31

What is a technical regulation according to TBT?

Answer 31

To be mandatory, a technical regulation must regulate the characteristics of products in a binding or compulsory fashion, as was the case of requirements for use of dolphin safe labels.

Question 32

US- COOL 2012

Answer 32

• Mandatory labelling for pork and beef from Canada and Mexico
• regulating state must define its objectives in a coherent manner

Question 33

EC- Seal Products (2014)

Answer 33

Norway and Canada, nature of the seal hunt
- AB ruled technical regulation, identity of hunter or purpose of the hunt are not characteristics of the product itself.