What Use Is an Unloaded Gun? The Substantive Disciplines of the WTO TBT Code of Good Practice and Its Application to Private Standards Pursuing Public Objectives

Abstract

The proliferation and diffusion of private standards in the domain of social and environmental sustainability has raised a host of complex questions concerning the role that the WTO and the WTO Agreements should play vis-à-vis private standards affecting trade. While a common approach has been the claim of regulatory space for such private standards, this article attempts to take stock of the underdevelopment of the provisions of the Technical Barriers to Trade (TBT) Agreement addressing standards, and in particular the TBT Code of Good Practice for the Preparation, Adoption and Application of Standards. It clarifies the scope of application of the TBT Code and the extent of the obligation imposed on WTO Members to ensure that private standards are in compliance with its requirements. It subsequently attempts to interpret the TBT Code’s crucial provisions of non-discrimination, necessity and to base standards on international standards, in a manner that mediates between private autonomy, and the need to ensure that the most serious trade restrictive effects of private standards pursuing public policy objectives are remedied.

Keywords: WTO law; private standards; private regulation; sustainability standards

JEL Classification: K19, K29