Recent Technical Barrier Disputes In WTO And National Treatment

This article mainly focuses on certain new changes in the application of nationaltreatment principle under the Agreement on Technical Barriers to Trade(TBTAgreement) and the Agreement on the Application of Sanitary and PhytosanitaryMeasures(SPS Agreement), based on panel reports and Appellate Body reports ofrecent technical barrier disputes.In general, the doctrine of national treatment is fundamental to the WTOmultilateral trading system and has been fully applied in the dispute settlement oftraditional cases relating to trade in goods. However, the situation has changed a lot inrecent years. One of the most significant changes is that a series of technical barrierdisputes has been settled since2010, including three TBT cases and two SPS cases.What’s more, panels and the Appellate Body have to deal with some new issuesarisingfrom these disputes with little guidance from precedents and covered Agreements. Aspointed out by the panel of US-Clove Cigarette, these issuesremain “an issue of firstimpression”.When the doctrine of national treatment first meets technical barrier dispute, it isthen reasonable that the analysis in those reports draws lots of attention. Through themethod of case study, this article thus addresses and discusses these followingaspects:The first chapter briefly introduces the difference between technical barrierdispute and traditional cases relating to trade in goods with respect to nationaltreatment, and the background of these five disputes. This could be helpful for a betterunderstanding of both the cases and the structure of this article. The details of thesedisputes will be presented later in each chapter so as to compare with each other.The second chapter addresses different types of technical barriers, their definitionand identification. A technical regulation or an SPS measure differs from normal measures not only in itsthe form, but also its purpose. Members always assert thatthey enact technical standardswith the object of public health or animal welfare. Thus,the first question a panel or the Appellate Body will deal with in a dispute is whetherthe measure at issue falls within the definition of a technical barrier, i.e. a TBT or SPSmeasure. In this part of the article, related provisions of the Agreements will bediscussed, as well as the analysis and explanation by panels and the Appellate Body inthese reports.The third chapter discusses an important question,namelywhat is the nature ofnational treatment in technical barrier disputes? It is the balance of interests betweenthe freedom to pursue rightful purpose and the obligation as a member of WTO topromote global trade liberalization. Technical barriers are born with acceptable levelof discrimination as long as the measure comply with provisions of TBT/SPSAgreements. What matters is to what extent we can accept it and how to examine it. Itis said that mistakes are inevitable before the right answer finally comes out. Thepanel of US-Clove Cigarette did make a mistake. By analyzing the mistake,this authordiscusses the proper practice to find whether a technical barrier goes against thedoctrine of national treatment.Besides substantial issues, a procedural problem is presented in the fourthchapter. As we can see, it is reasonable that a complaining party always raises asmanyclaims as possible under different Agreements to protect its own interests.However, how to raise claims in the consultation procedure in a proper manner?Whether a measure which has been found against the SPS agreement can be justifiedunder Article20of GATT1994? What is the relationship between claims under theTBT Agreement and those under GATT1994? Although the reports of recent disputeshave provided some answers, these questions still remain unclear to some extent.In summary, a lot of provisions concerning national treatment in TBT/SPSAgreements have been applied and explained by recent technical barrier disputes and DSB will certainly provide moreanalysis in the future.