Technical Barriers to Trade in “New Generation” RTAs and in the WTO Agreements: Conflict or Complementarity?

Description

This book examines the interplay between cooperation on technical barriers to trade (TBT) in free trade agreements and the multilateral framework of the World Trade Organization. In recent years, TBT, especially differences in standards, have attracted increased interest and have been addressed as part of the WTO+ negotiated agenda in trade agreements. Because of a number of political and legal constraints, the process of further cooperation at the WTO have been stalled, which made free trade agreements a central pillar in setting the agenda of international trade governance. This leads us to rethinking the interrelation between the WTO and free trade agreements and to questioning the role of both fora in the future of trade. The book examines some TBT provisions in free trade agreements and highlights their positive and problematic aspects when it comes to the WTO-consistency and the ideas of open and inclusive trade. It also suggests that a more optimal way forward would be to increase parallel work on TBT cooperation at the WTO, a more inclusive forum that could address issues of global significance, such as environmental protection and regulation of digital goods. The book explores the potential for trade agreements to advance the WTO agenda, but notes that the organization would need to adapt its institutional structure and governance in order to do so. Drawing on the example of the EU and US so-called “new generation” trade agreements, the book provides a detailed analysis of the various methods used to navigate TBT cooperation, and offers insight into how these agreements can serve as inspiration for future multilateral disciplines. This book is a valuable resource for trade law academics, policymakers, and anyone interested in the intersection of technical barriers to trade, regional trade agreements, and the WTO. Contents Chapter 1: Introduction References Books and Book Chapters Journal Articles Chapter 2: ``Deep´´ Trade Agenda and Multilateralism 2.1 Changing Paradigms of Global Commerce: Towards a ``Deep´´ Trade Agenda 2.2 The Diversity of Technical Barriers to Trade 2.2.1 Technical Regulations 2.2.2 Standards 2.2.3 Conformity Assessment 2.3 WTO as a Forum to Address a ``Deep´´ Trade Agenda 2.3.1 Cornerstone of Trade Liberalization at the WTO 2.3.2 Overview of WTO Legal Disciplines Related to TBT 2.3.2.1 The TBT Agreement and the GATT 2.3.2.2 The Relevance of Production Methods 2.3.2.3 Non-discrimination 2.3.2.3.1 ``Likeness´´ 2.3.2.3.2 Non-discrimination vs. Legitimate Policy Considerations 2.3.2.4 ``Necessity´´ 2.3.2.5 Harmonization Based on Relevant International Standards 2.3.2.5.1 ``Relevant International Standard´´ 2.3.2.5.2 International Standards as a Basis for Domestic Technical Regulations 2.3.2.6 Recognition of Equivalence and Mutual Recognition 2.3.2.6.1 TBT Agreement 2.3.2.6.2 GATT 2.3.2.7 Applicability of the Exceptions 2.3.2.8 Regulatory Cooperation and Good Regulatory Practices 2.3.3 Constraints to Furthering Liberalization of TBT at the WTO 2.4 Towards a ``Deep´´ Trade Agenda in RTAs 2.5 Global Trade Governance Structure: An Integrated Approach 2.6 Conclusion References Books and Book Chapters Journal Articles Other Articles Research Papers of International Organizations and Research Institutions Chapter 3: Regionalism and Multilateralism: The WTO Perspective 3.1 Historical Background on Regionalism 3.1.1 Origins 3.1.2 Evolution 3.1.2.1 First Wave 3.1.2.2 Second Wave 3.1.2.3 Third Wave 3.2 Classic Theory of Regionalism 3.2.1 The Static Time-Path Question: Trade Creation, Trade Diversion, ``Spaghetti Bowl´´ 3.2.2 The Dynamic Time-Path Question: ``Building´´ or ``Stumbling´´ Block 3.3 Rethinking the Classic Theory of Regionalism in View of TBT Complexity 3.3.1 The Static Time-Path Question 3.3.2 The Dynamic Time-Path Question and the ``Laboratory Effect´´ 3.4 RTAs´ Limitations in Securing ``Outcome Multilateralism´´ 3.5 Legal Analysis on the Interconnection Between Existing WTO TBT Rules and RTAs 3.5.1 Harmonization and Mutual Recognition: Definitions 3.5.2 RTAs´ Harmonization 3.5.3 Mutual Recognition 3.5.3.1 Mutual Recognition and Non-discrimination 3.5.3.2 Mutual Recognition and ``Necessity´´ 3.5.3.3 SPS Agreement and the GATS: Openness of the Regional Agreements and Arrangements 3.5.4 Is the Regional Exception Clause Available? 3.5.4.1 Article XXIV GATT Legal Test 3.5.4.1.1 Internal Requirement for FTAs Formation (Art. XXIV:8) 3.5.4.1.2 External Requirement for RTAs Formation (Art. XXIV:5) 3.5.4.1.3 The Turkey - Textiles ``Necessity´´ Test 3.5.4.2 Mutual Recognition in RTAs and Article XXIV of the GATT 3.5.4.2.1 Internal Requirement for RTAs Formation: TBT Measures as ORRC 3.5.4.2.2 External Requirement for RTAs Formation: Trade Restrictiveness of Mutual Recognition for Third Countries 3.5.4.2.3 Is Article XXIV GATT Applicable to Violations of the TBT Agreement? Article XXIV and Other Multilateral Agreements The Case of Article XXIV and Mutual Recognition 3.5.5 Proposal to Clarify Recognition Provisions of the TBT Agreement 3.5.6 Interim Conclusion for Sect. 3.5 3.6 From Regional Towards Multilateral Agenda 3.6.1 Why There Is a Need to Multilateralize Regional Cooperation 3.6.2 Options for Multilateralizing RTA Cooperation 3.6.2.1 Plurilateral Route 3.6.2.2 Strengthening the Overall Deliberative Function of the WTO 3.7 Conclusion References Books and Book Chapters Journal Articles Other Articles Research Papers of International Organizations and Research Institutions Chapter 4: Development of TBT Rules in EU and US RTAs 4.1 EU and US ``Deep´´ Trade Agenda and Multilateralism 4.1.1 EU Trade Policy and a ``Deep´´ Trade Agenda 4.1.1.1 Bringing a ``Deep´´ Trade Agenda into EU FTAs 4.1.1.1.1 Moving Away from the ``All-Eggs-in-Multilateral-Basket´´ Approach 4.1.1.1.2 ``Global Europe´´: from a ``Shallow´´ to a ``Deep´´ Trade Agenda in RTAs 4.1.1.2 Complementing the RTA Focus with the Support for Multilateralism 4.1.1.3 In a World of External Economic Challenges, a Search for EU Priorities 4.1.1.3.1 EU: A Regulatory Power 4.1.1.3.2 Support for Multilateralism 4.1.2 US Trade Policy and a ``Deep´´ Trade Agenda 4.1.2.1 Changing Priorities on Trade Governance 4.1.2.1.1 From the Multilateral Focus to the Policy of ``Competitive Liberalization´´ 4.1.2.1.2 Unilateralism and a Return to the Conservative US Trade Policy 4.1.2.2 Reflecting on the Role of Multilateralism in the US System of Priorities 4.2 TBT in the EU FTAs 4.2.1 Mapping the Instruments to Tackle TBT Across EU FTAs 4.2.2 Harmonization and Orientation Towards International Standards 4.2.2.1 The Role of the TBT Committee Decision Concerning ``Relevant International Standards´´ 4.2.2.2 Specific Fora as Relevant International Standard Developing Bodies 4.2.2.3 Harmonization of Standards and Conformity Assessment Procedures 4.2.2.3.1 Automotive Sector 4.2.2.3.2 Electronics and Pharmaceuticals Sectors 4.2.3 Mutual Recognition 4.2.3.1 The Limits of Mutual Recognition in EU ``New Generation´´ FTAs 4.2.3.1.1 Mutual Recognition in the EU Internal Market and the EEA 4.2.3.1.2 Mutual Recognition of Conformity Assessment ``Traditional´´ and ``Enhanced´´ MRAs 4.2.3.2 Mutual Recognition in EU ``New Generation´´ FTAs 4.2.3.2.1 CETA Protocol on the Mutual Acceptance of the Results of Conformity Assessment 4.2.3.3 Mutual Recognition in EU FTAs and the WTO Approach to TBT 4.2.4 Innovative Approaches: Regulatory Cooperation and Good Regulatory Practices 4.2.4.1 Regulatory Cooperation 4.2.4.1.1 Regulatory Cooperation Chapters 4.2.4.1.2 ``Living Agreement´´ 4.2.4.2 Good Regulatory Practices 4.2.5 TBT and Environmental Considerations 4.2.6 TBT and Digital Products 4.3 TBT in US FTAs 4.3.1 KORUS FTA and USMCA 4.3.2 Harmonization and Orientation Towards International Standards 4.3.2.1 Treatment of International Standards 4.3.2.2 Consideration of the Other Party´s Standards 4.3.2.3 Other Harmonization Disciplines 4.3.2.3.1 Energy Performance 4.3.2.3.2 ICT Goods That Use Cryptography and Telecommunication Equipment 4.3.2.3.3 Automotive Sector 4.3.3 Equivalence 4.3.4 Mutual Recognition and Other Conformity Assessment Methods 4.3.4.1 National Treatment of Third-Party Conformity Assessment Bodies 4.3.4.2 Mutual Recognition 4.3.5 Innovative Approaches: Regulatory Cooperation and Good Regulatory Practices 4.3.5.1 Regulatory Cooperation 4.3.5.2 Good Regulatory Practices 4.3.6 TBT and Environmental Considerations 4.3.7 TBT and Digital Products 4.4 Multilateralizing Regional Cooperation 4.4.1 Focusing on Possibilities, Rather Than Impediments 4.4.1.1 Entrenched Regulatory Differences as an Impediment to Cooperation 4.4.1.2 Going Forward on Less Contentious Issues 4.4.2 Multilateral Dimension of Substantive Cooperation 4.4.2.1 Environmental Concerns 4.4.2.2 Digital Goods 4.4.2.3 Regulatory Cooperation and Good Regulatory Practices 4.5 Conclusion References Books and Book Chapters Journal Articles Official Documents Other Articles Research Papers of International Organizations and Research Institutions Chapter 5: Conclusion Bibliography International Agreements Official Documents of Issued by Governments and International Institutions WTO Cases Other Sources