States’ regulatory autonomy to protect societal values by legitimate regulatory distinctions: Finding the balance in the WTO Agreement on Technical Barriers to Trade through adjudication

Research output: Chapter in Book/Report/Conference proceedingChapterAcademic


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
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
Body's 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 Body's exclusion of cases of de jure
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.
Original languageEnglish
Title of host publicationJudging the state in international trade and investment law
Subtitle of host publicationSovereignty modern, the law and the economics
EditorsLeila Choukroune
Place of PublicationSingapore
Number of pages21
ISBN (Electronic)978-98-1102-360-6
ISBN (Print)978-98-1102-358-3
Publication statusPublished - 2016

Publication series

SeriesInternational Law and the Global South

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