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/leg
al_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
account technical and economic feasibility
- if scientific evidence is insufficient, members
can adopt provisional measures and review
them in a reasonable period of time
- special consideration for LDCs and longer time
frames
THE SANITARY AND PHYTOSANITARY
AGREEMENT
 Disputes:
- EC – hormones : import ban of beef from US
and Canada because of the use of hormones
- EC – GMOs : moratorium by the EC on the
approval and marketing of GMOs
- one of the main problems is the allocation of
the burden of proof
THE SANITARY AND PHYTOSANITARY
AGREEMENT
 general issues:
- how judges handle scientific uncertainty
- relationship between WTO system and other
norms of international law
- does article 5.7 really make sense?
- Is WTO the right place where to solve
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?