EXAMPLES OF TECHNICAL BARRIERS TO TRADE

one of the main TBT issue at the moment is labelling (see Tuna report)

brief overview of marks and rules of origin in the WTO system (unrelated to TBT):

- Article IX GATT- Agreement on rules of origin- TRIPs agreement

ARTICLE XI GATT: MARKS OF ORIGIN

MFN as regards marks requirements balancing consumer protection and trade

liberalisation (necessity principle) marks must no damage the product no misrepresentation of origin

AGREEMENT ON RULES OF ORIGIN

long-term harmonization of ROO no unnecessary obstacle to trade Committee on ROO (WTO) and

Technical Committee on ROO (Customs Cooperation Council)

transparency; no trade distortion; based on positive standards; reasonable and fair administration

TRIPs AGREEMENT

Article 22: definition of GI

prohibition of misrepresentation or unfair competition

Article 23: additional protection of GI for wines and spirits

negotiations in the TRIPs Council for the establishment of a multilateral system of notification and registration

GEOGRAPHICAL INDICATIONS

no uniform definition it is a type of intellectual property 3 conditions:

- good/service

- origin in an area

- quality/reputation linked to geographical origin

THE US AND EU SYSTEM FOR GI PROTECTION: A COMPARISON

The EU system

- sui generis system for GI since 1992

- link between the characteristics of the product and the place it comes from

protected geographical indication

protected designation of origin

- IP of a community

- conditions for registration

THE US AND EU SYSTEM (CONTINUED)

- scope of the protection

- addressees : consumer, small farmers and DCs

traditional speciality guaranteed The US system

- part of the general IP system

- trademarks: the owner of the mark safeguards its interest

THE US AND EU SYSTEM (CONTINUED)

- rights and resp'ties entrusted to interested parties

- a TM generally does not refer to a geographical area

- it is an individual right

- advantages: economic and administrative because the TM system already exists

THE US AND EU SYSTEM (CONTINUED)

EU system: public policy for consumers rights and security

US system: producers' needs, tool for private parties to protect competition

THE US-TUNA DISPUTE

US -Tuna: TBT measure about fishing methods- tuna fished by “setting on dolphins” cannot

receive the “dolphin-safe” label on the basis of a US law

- the panel says it is a NT violation because this rule just works in a part of the Pacific Ocean

- in the other part setting on dolphins is allowed + the US imports tuna from there

THE US-TUNA DISPUTE

the tuna- dolphins association does not always exist

a dolphin safe label does not always correspond to reality because the underlying problem does not exist

the label does not carry out the function it is conceived for: informing the consumer!

THE US-TUNA DISPUTE

likeness analysis focussed on process/production method

the fishing method is not able to alter the competitive relationship

consumers preferences are taken into account but not enough to make the two products different

THE TECHNICAL BARRIERS TO TRADE AGREEMENT

main rules:- non discrimination (MFN and NT)- necessity of the measure- conformity to international standards- “soft” mutual recognition of other members’

standards- longer time limits for LDCs and taking into

account of their needs

THE TECHNICAL BARRIERS TO TRADE AGREEMENT

Link to article 2 of the TBT

http://www.wto.org/english/docs_e/legal_e/17-tbt_e.htm

THE SANITARY AND PHYTOSANITARY AGREEMENT

Main rules:

- an SPS is a measure used in order to protect human, plant of animal life from pests or diseases

- Example : risk assessment procedures, quarantine treatment, labelling related to food safety, inspections

THE SANITARY AND PHYTOSANITARY AGREEMENT

Relevant articles:

Article 2 par.1-4

Article 3 par.1-4

Article 5 par.1,2,3,4,7

http://www.wto.org/english/docs_e/legal_e/15sps_01_e.htm

THE SANITARY AND PHYTOSANITARY AGREEMENT

- States can adopt SPS measures if they comply with the Agreement

- SPS measures are necessary, based on scientific principles and maintained only with sufficient scientific evidence

- non discrimination- measures compliant with the SPS agreement

are presumed to be compliant with GATT article XX b)

THE SANITARY AND PHYTOSANITARY AGREEMENT

- conformity to international standards and presumption of conformity to the SPS Agreement and the GATT

- States can pursue a higher level of protection than international standards if there is a scientific basis

- mutual recognition of other States’ standards if the exporting member demonstrates that the standard is adequate

THE SANITARY AND PHYTOSANITARY AGREEMENT

SPS measures are based on risk assessment - in assessing the risks members must take into

account economic factors (?!)- in setting the level of protection States must

minimize trade effects- coherence in setting the level of protection

THE SANITARY AND PHYTOSANITARY AGREEMENT

- SPS measures are necessary, taking into SPS measures are necessary, taking into account technical and economic feasibilityaccount technical and economic feasibility

- if scientific evidence is insufficient, members if scientific evidence is insufficient, members can adopt provisional measures and review can adopt provisional measures and review them in a reasonable period of timethem in a reasonable period of time

- special consideration for LDCs and longer time special consideration for LDCs and longer time framesframes

THE SANITARY AND PHYTOSANITARY AGREEMENT

Disputes:Disputes:- EC – hormones : import ban of beef from US EC – hormones : import ban of beef from US

and Canada because of the use of hormonesand Canada because of the use of hormones- EC – GMOs : moratorium by the EC on the EC – GMOs : moratorium by the EC on the

approval and marketing of GMOsapproval and marketing of GMOs- one of the main problems is the allocation of one of the main problems is the allocation of

the burden of proofthe burden of proof

THE SANITARY AND PHYTOSANITARY AGREEMENT

general issues:general issues:- how judges handle scientific uncertainty how judges handle scientific uncertainty - relationship between WTO system and other relationship between WTO system and other

norms of international law norms of international law - does article 5.7 really make sense?does article 5.7 really make sense?- Is WTO the right place where to solve Is WTO the right place where to solve

env’l/food safety disputes?env’l/food safety disputes?

THE SPS AGREEMENT

The clove cigarettes report

- import ban by the US of clove cigarettes

- complaint by Indonesia, main exporter

- violation of NT > likeness analysis

- group of comparison: menthol cigarettes

- they are similar as flavoured cigarettes

THE SPS AGREEMENT

- menthol cigarettes are not banned = violation of NT

- according to the US heavy consequences because many people smoke them

- what is the consequence of this report? banning all flavoured cigarettes in the US?