Domestic Regulatory Autonomy Under the TBT Agreement: From Non-Discrimination to Harmonization

Abstract

Compared with other World Trade Organization (WTO) Agreements, the Technical Barriers to Trade (TBT) Agreement has received relatively little scholarly attention. This paper will illustrate that the TBT agreement has already exhibited potential to penetrate inappropriately into the domestic regulatory order and threaten domestic regulatory autonomy in unexpected ways, even if many important provisions are still to be elucidated in follow-up dispute settlement practice. This unwarranted intrusion into domestic regulatory autonomy is largely due to the reluctance of WTO panels and the AB to explore the telos of the TBT Agreement. Under the TBT Agreement, not only the conflict between trade liberalization and regulatory autonomy of WTO Members is intensified, but also the legitimacy of the WTO as a powerful regulator inthe increasingly globalized world is itself being put to question.

Keywords: Technical Barriers to Trade, TBT Agreement, WTO