Analysis To2012Awards To The Three Cases Relating To The TBT By The AB Of WTO/DSB

Among the awards made by the WTO Appellate Body in2012, there are threecases related to the TBT Agreement. These three cases are: Indonesia v. UnitedStates-measures affecting the production and sale of clove cigarettes(US-CloveCigarettes, DS406), after the panel report was adopted in September2,2011, the U.S.appealed and the Appellate Body report was adopted in April24,2012; Mexico v.United States-measures concerning the importation, marking and sale of tuna andtuna products(US-Tuna Ⅱ(Mexico), DS381), after the panel report was adopted inSeptember15,2011, both U.S. and Mexico appealed and the Appellate Body reportwas adopted in June13,2012; Canada, Mexico v. United States certain country oforigin labeling(COOL) requirements(US-COOL, DS384/DS386), after the panelreport was adopted in November18,2011, all parties appealed and the AppellateBody report was adopted in July13,2012.These three cases are mainly related to the three provisions of the TBTAgreement, namely article2.1,2.2and2.4. The Art2.1prohibits discriminatorytechnical regulation by carrying out national treatment and most favored nationtreatment. Art2.2prohibits technical regulation which are more trade-restrictive thannecessary, necessary is the test. Art2.4is about relevant international standards as abasis for technical regulation.In all three cases, United States is defendant and the questioned measures areadopted by United States concerned technical barriers. In US-Clove Cigarettes, themeasure at issue is a provision of the Family Smoking Prevention Tobacco ControlAct of2009that bans clove cigarettes; In U.S. tuna Ⅱ, the measure at issue are U.S."dolphin safe" tuna labeling requirements contained in several documents; InUS-COOL, the measure at issue are rules of origin labels for meat. Although theUnited States succeed in some claims, in each case, the panel noted that the UnitedStates was violated at least one of the core provisions of the TBT Agreement. U.S.has appealed in all three cases, but losing important issues in all three cases.According to the TBT Agreement, Annex1.1, the measure at issue must meet the following three criteria before they can be identified as the technical regulations: theproducts to which the measure applies must be identifiable; the measure must laydown certain characteristics for those products; the measure must be mandatory. Theawards to the three cases indicates that, Compulsory compliance is the key issue todistinguish between technological standards and regulation, voluntary for former andcompulsory use for latter. The two are governed by different rules and obligation.Having impacts to market access and conditions for implementation all constitutetechnological regulation. There is no doubt on this issue in all three cases.The points at issue are around the TBT art2.1and2.2, where the key point of art2.1are "like product" and "treatment no less favorable"; the key point of art2.2is"necessary ", depend on four factors: the trade-restrictiveness of the technicalregulations; the degree of contribution that the technical regulations make toward theachievement of the legitimate objective; the risk non-fulfilment would create; andwhether there exist reasonably available alternative measures.Both GATT1994and the TBT Agreement applies to product standards andlabeling, they all prohibit discrimination (i.e. the requirement of national treatmentand most favored nation treatment), therefore in assessing the U.S. ban under TBTarticle2.1, the Appellate Body drew significantly from its previous jurisprudenceregarding the national treatment obligation in article Ⅲ:4of GATT1994. But one ofthe significant differences between GATT1994and TBT agreements is that there aregeneral exceptions such as health and safety measures in GATT1994, and there is nosuch provisions in TBT Agreement, only in the preamble. Nevertheless, the AppellateBody concluded that the balance that the preamble of the TBT Agreement strikesbetween the pursuit of trade liberalization and Member’s right to regulate, is not, inprinciple, different from the balance that exists between the national treatmentobligation of Article Ⅲ and the general exceptions provided under Article XX of theGATT1994. When judging "treatment no less favorable" in the US-Clove Cigarettesand the US-Tuna Ⅱ(Mexico), the Appellate Body also introduces two new concepts:"legitimate regulatory distinction" and "in an even-handed manner". The treatment noless favorable standard of Article2.1, prohibits both de jure and de facto lessfavorable treatment for like imported produces, it does not prohibit detrimental impact on imports that stems exclusively from a legitimate regulatory distinction, aslong as this regulatory distinction is designed or applied in an even-handed manner.This should arise our concern.The great significance of these three cases is that they provide valuable insightsinto how WTO tribunals perceive the evolving relationship between a sovereignWTO Member’s right to regulate and its simultaneous obligation to prevent the use oftechnical requirements as discriminatory or unnecessary barriers to trade.