Regulatory convergence and dispute settlement in the WTO
Journal of International Trade Law and Policy
ISSN: 1477-0024
Article publication date: 21 September 2015
Abstract
Purpose
This paper aims to examine the issues faced by the World Trade Organization (WTO) dispute settlement system in disputes involving questions of regulatory convergence. The traditional focus of the WTO has been on increasing market access and eliminating discrimination in trade. Now, as tariffs have been all but eliminated and Members rarely impose obviously discriminatory trade barriers, attention increasingly turns to questions of regulatory convergence. Leaving aside questions as to the overall benefits of regulatory convergence between markets, these developments pose a significant challenge to the organs of the WTO dispute settlement – and it is here that this paper focuses.
Design/methodology/approach
While General Agreements on Tariffs and Trade (GATT)/WTO law has fairly well-developed tools for identifying discrimination in trade, the tools necessary for assessing whether regulatory measures maintain the requisite balance or proportionality between sovereign/domestic concerns and trade concerns are less clear. The paper discusses this latter point.
Findings
The WTO agreements are frequently not clear on where or how this balance between sovereign/domestic concerns and trade concerns is to be determined. To date, WTO panels and the Appellate Body have preferred to focus on whether they can identify any discriminatory aspects of a measure. However, they will increasingly be called to pronounce on non-discriminatory regulatory policy choices of Members.
Originality/value
This paper contributes to the literature on the Appellate Body, and argues that Members will need to develop a credible and consistent balance between policy space and trade restrictiveness.
Keywords
Acknowledgements
The views expressed in this paper, and any errors, are those of the author alone. The author would like to thank Peter van den Bossche, Bernard Hoekman and Petros Mavroidis for the opportunity to participate in the conference on The WTO @ 20: Taking Stock and Looking Forward at the European University Institute, Florence, 15 May 2015, at which the presentation on which this note is based was made.
Citation
Meagher, N. (2015), "Regulatory convergence and dispute settlement in the WTO", Journal of International Trade Law and Policy, Vol. 14 No. 3, pp. 157-162. https://doi.org/10.1108/JITLP-11-2015-0041
Publisher
:Emerald Group Publishing Limited
Copyright © 2015, Emerald Group Publishing Limited