Agreement on Technical Barriers to Trade

The Agreement on Technical Barriers to Trade, commonly referred to as the TBT Agreement, is an international treaty administered by the World Trade Organization. It was last renegotiated during the Uruguay Round of the General Agreement on Tariffs and Trade, with its present form entering into force with the establishment of the WTO at the beginning of 1995, binding on all WTO members.

Purpose

The TBT exists to ensure that technical regulations, standards, testing, and certification procedures do not create unnecessary obstacles to trade. The agreement prohibits technical requirements created in order to limit trade, as opposed to technical requirements created for legitimate purposes such as consumer or environmental protection.[1] In fact, its purpose is to avoid unnecessary obstacles to international trade and to give recognition to all WTO members to protect legitimate interests according to own regulatory autonomy, although promoting the use of international standards. The list of legitimate interests that can justify a restriction in trade is not exhaustive and it includes protection of environment, human and animal health and safety.[1]

Structure of the agreement on technical barriers to trade

The TBT Agreement can be divided into five parts. The first part defines the scope of the Agreement which includes "[a]ll products, including industrial and agricultural" but not sanitary and phytosanitary measures. The second part sets out the obligations and principles concerning technical regulations. The third part addresses conformity and assessments of conformity. The fourth part deals with information and assistance, including the obligation of nations to provide assistance to each other in drafting technical regulations. Lastly the fifth part provides for the creation of the Committee on Technical Barriers to Trade and sets out the dispute settlement procedures.

Scope of application

According to Art.1, this agreement covers all industrial and agricultural products, with the exception of services, sanitary and phytosanitary measures (as defined by Agreement on the Application of Sanitary and Phytosanitary Measures) and "purchasing specifications prepared by governmental bodies for production or consumption requirements of governmental bodies" (Art. 1.4).[2]

The scope of the TBT consists of substantive scope (what measures are included), personal scope (to whom the measures apply), and temporal scope.

Substantive scope

There are three categories of substantive measures found in Annex 1 of the TBT; technical regulations, standard, and conformity assessment. The Appellate Body in EC-Asbestos held these to be a limited class of measures.[3]

Technical regulation: annex 1.1

A technical regulation is a document stipulating conditions that is mandatory. The measures may include terminology, symbols, packaging or labelling requirements, and may apply to a product, process or production method.

The Appellate Body in EC-Sardines found there to be a three-step test for determining whether a measure is a technical regulation:

a) The measure applies to an identifiable product or group of products;
b) It lays down one or more characteristics of the product; and
c) Compliance with the product characteristic is mandatory.

If a measure is found to be a technical regulation, it will be regulated by Article 2 TBT.

Standard: annex 1.2

A standard is a document approved by a recognized body that stipulates guidelines or characteristics that are not mandatory. It may include terminology, symbols, packaging or labelling requirements, and may apply to a product, process or production method. Standards are distinct from technical regulation in that they are not mandatory. Despite being voluntary, producers often have no choice but to comply with them for commercial practicality.[4]

Standards are guided by Article 4 TBT and Codes of Good Practice.

Conformity assessment: annex 1.3

A conformity assessment is a direct or indirect procedure used to determine the fulfillment of requirements in a technical regulation or standard. Conformity assessments may include sampling, testing, and inspections.

The rules for conformity assessment are outlined in Articles 5, 6, 7, 8 and 9 TBT.

Issues of scope

Determining whether a measure is a technical regulation or a standard

Whether a measure is a technical regulation as opposed to a standard centers on whether it is "mandatory."

The Panel and Appellate Body in Tuna-Dolphin GATT Case (I and II) held that the US labeling measures for dolphin-safe tuna was a technical regulation. The requirements were not compulsory for the sale of tuna in the US, however the requirements were compulsory for dolphin-safe certification. The Appellate Body stated that because the US provided no other methods of obtaining the dolphin-safe label, the requirement was binding, and therefore de jure mandatory. It appears from this decision that measures that attempt to obtain a monopoly over a specific label will be deemed technical regulations, but the test is ultimately on a case-by-case basis.[5]

This decision has been criticised for construing the term "mandatory" too broadly, rendering the distinction between technical regulations and standards meaningless.[6]

Application to non-product related processes

Labels such as "free-range," "organic," or "fair trade," denote a quality in the product that has no tangible effects. Whether labels regarding non-product related process ("NPRP") are technical regulations is the subject of controversy.

Annex 1.1 states that technical regulations apply to "product characteristics or their related process and production methods", implying that this does not extend to NPRPs. However the second sentence of Annex 1.1 and 1.2 omits the word "related", suggesting that technical regulations may apply to labelling. Some academics argue that sentence 2 is read in context of sentence 1, and should therefore be given narrower scope.[3]

The Panel in Tuna-Dolphin GATT Case (I and II) did not clarify this issue, but held in that case that the dolphin-safe labeling was a technical regulation by reason of the second sentence. Accordingly, it may be assumed that labeling of NPRP-PPM products now fall under the scope of technical regulations.[5]

Key principles & obligations

Non-discrimination

Members must ensure that technical regulations and standards do not accord treatments less favorable to imported products compared to the ones granted to like products of national origin or creating in any other country, as established respectively in Art. 2.1 and Annex 3.D. This principle applies also to conformity assessment procedures, that have to "grant access for suppliers of like products originating in the territories of other members under conditions no less favorable than those accorded to suppliers of like products of national origin or originating in any other country in a comparable situation" (Art. 5.1 and 5.1.1).[2]

Avoidance of unnecessary barriers to trade

Article 2.2 obliges Members not to create unnecessary obstacles to international trade and, on this basis, to ensure that "technical restrictions are not more trade restrictive than necessary to fulfil a legitimate objective". The Article provides an inclusive list of legitimate objectives including national security requirements and the protection of animal or plant life or health.

However Article 2.5 provides that where technical standards are for the purpose of one of the legitimate objectives listed in Article 2.2 and in accordance with relevant international standards they are presumed not to violate Article 2.2.[2] (PDF here.)

Harmonization around international standards

When international standards exist, members shall use them as a basis for their technical regulations, standards and conformity assessment procedures, unless their use seems inappropriate or ineffective in certain circumstances (for example, for climatic or technological reasons) for achieving the pursued objective (Art. 2.4, 5.4 and Annex 3.D).[2]

Notification requirements

The TBT Agreement also obliges States to notify each other of proposed technical barriers to trade. To give States the opportunity to raise their concerns before the measures come into force, members must allow reasonable time for Members to make comments, discuss their comments and to have their comments considered. Members must notify each other in relation to proposed TBT provisions when the following three conditions are satisfied:

  • The measure must be a technical regulation or an evaluation of a conformity assessment procedure.
  • There must either be no relevant international standard or, if there is, the measure must not conform to it.
  • The technical regulation must have a considerable effect on international trade.

These criteria are broader than any of the obligations regarding the content of technical regulations which ensures that any issues which will subsequently be litigated can be identified at the earliest stage possible. However, in the case of "urgent problems of safety, health, environmental protection or national security" Article 2.10 provides an alternate procedure to expedite the process.

Other informations

Adjudication of disputes

Under Article 14.1 disputes regarding the TBT Agreement are to be resolved by the Dispute Settlement Body in accordance with Articles XXII and XXIII of GATT. This requires parties to undergo the same consultation process as they would for issues arising under GATT and allows disputes involving issues arising under both the TBT Agreement and GATT to be resolved simultaneously. In spite of this very few cases concerning the TBT Agreement have been brought to the Panel.

The following list is an overview of the mechanisms that promote the TBT's mission:

A. All TBT members are required to establish "enquiry points" also known as "TBT Window" – offices that provide information about the country's technical regulations, test procedures, and adherence to various international standards.

B. A technical assistance program helps developing countries meet international standards and helps them get involved in the establishment of such standards.[7]

See also

References

  1. ^ a b "Technical Barriers to Trade". www.wto.org. World Trade Organization. Retrieved 2019-01-21.
  2. ^ a b c d "Legal Texts - Marrakesh Agreement". www.wto.org. World Trade Organization. Retrieved 2019-01-21.
  3. ^ a b Van den Bossche, Peter; Zdouc, Werner (2017). The Law and Policy of the World Trade Organization (Fourth ed.). Cambridge, United Kingdom: Cambridge University Press. ISBN 9781107157989. OCLC 981761533.
  4. ^ Eric R. Lowe, "Technical Regulations to Prevent Deceptive Practices: Can WTO Members Protect Consumers from [un] Fair-Trade Coffee and [Less-Than] Free-Range Chicken?" (2014) 48(3) Journal of World Trade, p. 593–628.
  5. ^ a b Laurens J. Ankersmith, Jessica C. Lawrence, "The future of environmental labelling: US-Tuna II and the scope of the TBT" (2012) 39(1) Legal Issues of Economic Integration, p. 127-147.
  6. ^ Keigan Tyler Mull, "Making sense of "mandatory" measures in the TBT Agreement: why the majority panel's determination in U.S. Tuna II rendered the distinction between technical regulations and standards to be meaningless" (2013) 25(2) Georgetown International Environmental Law Review, p. 367-387.
  7. ^ "Technical Barriers to Trade - Technical Information". www.wto.org. World Trade Organization. Retrieved 2019-01-21.

External links

Agreement on the Application of Sanitary and Phytosanitary Measures

The Agreement on the Application of Sanitary and Phytosanitary Measures, also known as the SPS Agreement, is an international treaty of the World Trade Organization (WTO). It was negotiated during the Uruguay Round of the General Agreement on Tariffs and Trade (GATT), and entered into force with the establishment of the WTO at the beginning of 1995. Broadly, the sanitary and phytosanitary ('SPS') measures covered by the agreement are those aimed at the protection of human, animal or plant life or health from certain risks.Under the SPS agreement, the WTO sets constraints on member-states' policies relating to food safety (bacterial contaminants, pesticides, inspection and labelling) as well as animal and plant health (phytosanitation) with respect to imported pests and diseases. There are 3 standards organizations who set standards that WTO members should base their SPS methodologies on. As provided for in Article 3, they are the Codex Alimentarius Commission (Codex), World Organization for Animal Health (OIE) and the Secretariat of the International Plant Protection Convention (IPPC).

The SPS agreement is closely linked to the Agreement on Technical Barriers to Trade, which was signed in the same year and has similar goals. The TBT Emerged from the Tokyo Round of WTO negotiations and was negotiated with the aim of ensuring non-discrimination in the adoption and implementation of technical regulations and standards.

Australia–United States Free Trade Agreement

The Australia – United States Free Trade Agreement (AUSFTA) is a preferential trade agreement between Australia and the United States modelled on the North American Free Trade Agreement (NAFTA). The AUSFTA was signed on 18 May 2004 and came into effect on 1 January 2005.

Cartagena Protocol on Biosafety

The Cartagena Protocol on Biosafety to the Convention on Biological Diversity is an international agreement on biosafety as a supplement to the Convention on Biological Diversity effective since 2003. The Biosafety Protocol seeks to protect biological diversity from the potential risks posed by genetically modified organisms resulting from modern biotechnology.

The Biosafety Protocol makes clear that products from new technologies must be based on the precautionary principle and allow developing nations to balance public health against economic benefits. It will for example let countries ban imports of genetically modified organisms if they feel there is not enough scientific evidence that the product is safe and requires exporters to label shipments containing genetically altered commodities such as corn or cotton.

The required number of 50 instruments of ratification/accession/approval/acceptance by countries was reached in May 2003. In accordance with the provisions of its Article 37, the Protocol entered into force on 11 September 2003. As of February 2018, the Protocol had 171 parties, which includes 168 United Nations member states, the State of Palestine, Niue, and the European Union.

Index of Sri Lanka-related articles (A)

This page lists Sri Lanka-related articles with titles beginning with an alphabet letter A.

List of Australian bilateral treaties on commerce, trade and arbitration

Australian bilateral treaties on commerce, trade and arbitration are Australian treaties concerning trade, commercial matters, arbitration – they also include shipping and air service related treaties.

List of multilateral free-trade agreements

This is a list of multilateral free-trade agreements, between several countries all treated equally. For agreements between two countries, between a bloc and a country, or between two blocs, see list of bilateral free-trade agreements; these are not listed below.

Every customs union, common market, economic union, customs and monetary union and economic and monetary union is also a free-trade area; these are listed on these separate articles and are not included below.

For a general explanation, see free-trade area.

Market access

Market access for goods means the conditions, free trade and fair trade barriers, set by countries for the entry of specific goods into their markets. In the WTO (World trade organisation), tariff commitments for goods are agreed upon and set out in each member's schedules of concessions on goods. The schedules represent commitments not to apply tariffs above the listed rates — these rates are “bound”. Under WTO rules, bound rates may not be raised without compensating the affected members.

Non-tariff measures (NTMs) are non-tariff policy measures that affect international trade. NTMs cover a broad range of measures both directly and indirectly related to trade, and their use has risen as tariff rates have fallen under subsequent WTO negotiation rounds. In many cases, NTMs can be classified as non-tariff barriers to trade (NTBs). Some areas of NTMs are dealt with under specific WTO agreements, notably the Agreement on the Application of Sanitary and Phytosanitary Measures, the Agreement on Technical Barriers to Trade, the Anti-dumping agreement, the Agreement on Subsidies and Countervailing Measures and the Agreement on Safeguards. WTO Members seek to continually improve market access through the regular WTO work programme and through negotiations such as those launched at the Doha Ministerial Conference in November 1752.

Plain tobacco packaging

Plain tobacco packaging, also known as generic, neutral, standardised or homogeneous packaging, refers to packaging that requires the removal of all branding (colours, imagery, corporate logos and trademarks), permitting manufacturers to print only the brand name in a mandated size, font and place on the pack, in addition to the health warnings and any other legally mandated information such as toxic constituents and tax-paid stamps. The appearance of all tobacco packs is standardised, including the colour of the pack.

The removal of branding on cigarette packaging aims to deter smoking by removal of positive associations of brands (including design and symbol) with the consumption of tobacco. It also aims to remove an available avenue of brand advertising for cigarette companies.

Australia was the first country in the world to introduce plain packaging, with all packets sold from 1 December 2012 being sold in logo-free, drab dark brown packaging. There has been opposition from tobacco companies to plain packaging laws, some of which have sued the Australian government. Since the Australian government won the court cases, several other countries have enacted plain packaging laws.

Plain packaging was included in guidelines to the WHO Framework Convention on Tobacco Control (WHO FCTC). On 31 May 2016, on World No Tobacco Day, the WHO called on governments to get ready for plain packaging of tobacco products.

Technical barriers to trade

Technical barriers to trade (TBTs), a category of nontariff barriers to trade, are the widely divergent measures that countries use to regulate markets, protect their consumers, or preserve their natural resources (among other objectives), but they also can be used (or perceived by foreign countries) to discriminate against imports in order to protect domestic industries.

The 2012 classification of non-tariff measures (NTMs) developed by the Multi-Agency Support Team (MAST), a working group of eight international organisations, classifies TBTs as one of 16 non-tariff measures (NTMs) chapters. In this classification, TBTs are classified as chapter B and defined as "Measures referring to technical regulations, and procedures for assessment of conformity with technical regulations and standards, excluding measures covered by the SPS Agreement". Here, technical barriers to trade refer to measures such as labelling requirements, standards on technical specifications and quality standards, and other measures protecting the environment. Chapter B also includes all conformity-assessment measures related to technical requirements, such as certification, testing and inspection. Other examples of TBTs are rules for product weight, size, or packaging; ingredient or identity standards; shelf-life restrictions; and import testing and certification procedures.

The Agreement on Technical Barriers to Trade gives rules for the use of such barriers. However, trade experts widely view TBTs as having great potential for being misused by importing countries as nontransparent (disguised or unclear) obstacles to trade. (See Transparency.).

The OECD has been working to make common standardization easier with the ISTR Template allowing common standards to aid in the implementation of the WTO Agreement.

World Trade Organization

The World Trade Organization (WTO) is an intergovernmental organization that is concerned with the regulation of international trade between nations. The WTO officially commenced on 1 January 1995 under the Marrakesh Agreement, signed by 124 nations on 15 April 1994, replacing the General Agreement on Tariffs and Trade (GATT), which commenced in 1948. It is the largest international economic organization in the world.The WTO deals with regulation of trade in goods, services and intellectual property between participating countries by providing a framework for negotiating trade agreements and a dispute resolution process aimed at enforcing participants' adherence to WTO agreements, which are signed by representatives of member governments and ratified by their parliaments. The WTO prohibits discrimination between trading partners, but provides exceptions for environmental protection, national security, and other important goals. Trade-related disputes are resolved by independent judges at the WTO through a dispute resolution process.The WTO's current Director-General is Roberto Azevêdo, who leads a staff of over 600 people in Geneva, Switzerland. A trade facilitation agreement, part of the Bali Package of decisions, was agreed by all members on 7 December 2013, the first comprehensive agreement in the organization's history. On 23 January 2017, the amendment to the WTO Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement marks the first time since the organization opened in 1995 that WTO accords have been amended, and this change should secure for developing countries a legal pathway to access affordable remedies under WTO rules.Studies show that the WTO boosted trade, and that barriers to trade would be higher in the absence of the WTO. The WTO has highly influenced the text of trade agreements, as "nearly all recent [preferential trade agreements (PTAs)] reference the WTO explicitly, often dozens of times across multiple chapters... in many of these same PTAs we find that substantial portions of treaty language—sometime the majority of a chapter—is copied verbatim from a WTO agreement."

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