The Regulation of Product Standards in World Trade Law

by Ming Du, Gabrielle Marceau (Editor), Krista Nadakavukaren Schefer (Editor), Federico Ortino (Editor), Gregory Shaffer (Editor)

Overview

This monograph has two central purposes. The first is to provide a critical analysis of how governmental, private and hybrid product standards are regulated in the GATT/WTO legal framework. The second purpose is to explore – both positively and normatively – the impact that WTO disciplines may have on the composition, function and decision-making process of various standard-setting bodies through the lens of a series of selected case studies, including: the EU eco-labelling scheme; ISO standards; and private standards such as the FSC. The book analyses what role, if any, the WTO may play in making product standards applied in international trade embody not only technological superiority but also substantive and procedural fairness such as deliberation, representativeness, openness, transparency, due process and accountability.

Whilst it has been long recognised that voluntary product standards drawn up by both governmental and non-governmental bodies can in practice create trade barriers as serious as mandatory governmental regulations, a rigorous and systematic inquiry into the boundary, relevance and impact of WTO disciplines on product standards is still lacking. Providing a lucid interpretation of the relevant WTO rules and cases on product standards, this book fills this significant gap in WTO law literature.

Definitive and comprehensive, this is an essential reference work for scholars and practitioners alike.

Product Details

ISBN-13:	9781509931132
Publisher:	Bloomsbury Academic
Publication date:	11/12/2020
Series:	Studies in International Trade and Investment Law
Pages:	336
Product dimensions:	6.14(w) x 9.21(h) x 0.75(d)

About the Author

Ming Du is Professor of Law and Director of the Centre for Chinese Law and Policy at Durham University, UK.

Appointed as a lecturer in 2000, Gabrielle Marceau, PhD, became an associate professor in the Department of Public International Law and International Organization at the Faculty of Law at the University of Geneva (UNIGE) in 2005. She teaches World Trade Organization (WTO) law, supervises numerous master's theses and doctoral dissertations, and organizes conferences and research seminars. She also created a doctoral seminar.

She is also visiting professor at the University of Ottawa, Law Faculty - Hyman Soloway Chair, and at other institutions. Professor Marceau serves on several scientific councils promoting international economic law. She has been the president of the Society of International Economic Law, is a member of the board of directors of the Geneva Society for Law and Legislation, and is a Counsellor of the American Society of International Law. Professor Marceau is a specialist in dispute settlement and the legal relationships between international trade and non-commercial considerations (such as environment, human rights, labor, etc.), with more than 125 publications to her name.

Gabrielle Marceau has also worked at the World Trade Organization for over 30 years, serving as a legal adviser in international disputes, in the Cabinet of Director-General Pascal Lamy, and in the Economic Research and Statistics Division.

Krista Nadakavukaren Schefer is Vice Director at the Swiss Institute of Comparative Law, Switzerland.

Federico Ortino is a Reader in International Economic Law at King's College London, UK.

Gregory Shaffer is the Scott K Ginsburg Professor of International Law at Georgetown University Law Center, USA.

Table of Contents

1. Introduction
2. An Overview of Product Standards in International Trade
I. The Definition of 'Standards' in the TBT Agreement
A. Product Characteristics
B. PPMs and Labelling Requirements
C. Recognised Body
D. The Identifiable Requirement
E. The Voluntary Requirement
II. Product Standards and International Trade: Economic Perspectives
A. Market Failures and the Functions of Product Standards
B. The Trade Effects of Product Standards
III. A Taxonomy of Product Standards
IV. The GATT/WTO Legal Framework of Product Standards
A. The Negotiating History of Product Standards in the GATT/WTO System
B. Mapping the WTO Legal Framework of Product Standards
V. Conclusion
3. The Basic WTO Obligations on Product Standards
I. National Treatment
A. The National Treatment Obligation in GATT 1994
B. General Exceptions in GATT Article XX
C. The National Treatment Obligation in the TBT Agreement
II. The Most Favoured Nation Treatment
A. Article I.1 of the GATT 1994
B. MFN in the TBT Agreement
III. Unnecessary Obstacles to International Trade
A. The Evolution of the Necessity Test under GATT Article XX
B. Article 2.2 of the TBT Agreement
C. Article 5.6 of the SPS Agreement
IV. Transparency
A. The Trigger of Transparency Obligation
B. The Content of Transparency Obligation
C. Transparency of Standard-Setting
V. Scientific Evidence
A. The Role of Science in the SPS Agreement
B. The Role of Science in the TBT Agreement and GATT 1994
VI. Conclusion
4. International Regulatory Cooperation in Product Standards
I. The Concept of International Regulatory Cooperation
II. The Role of International Standards in the WTO
A. The Economics of Harmonisation
B. International Standards as Global Public Goods and Global Administrative Law
C. Basic WTO Rules on International Standards
D. What Constitutes a Relevant International Standard?
E. An Analysis of the TBT Committee Decision on Principles for the Development of International
Standards
III. Mutual Recognition and Equivalence
A. The Economics of MRAs and Equivalence
B. The WTO Legal Framework of Mutual Recognition and Equivalence
C. Mutual Recognition and the MFN Obligation
IV. Regulatory Cooperation in Free Trade Agreements (FTAs)
A. General Trends of Regulatory Cooperation in FTAs
B. Regulatory Coherence in FTAs
V. Conclusion
5. The Regulation of Private Standards in the WTO
I. The Definitional Challenge of 'Private Standards'
A. Defining SPS-Related Private Standards in the SPS Committee
B. Private Standards and 'International Standards'
C. Are Private Standards and Public Regulations Two Separate Worlds?
II. The Proliferation of Private Standards and their Trade Implications
A. Explaining the Rise of Private Standards in International Trade
B. The Effects of Private Standards on International Trade
III. Private Standards in the United States, European Union and China: A Comparative Analysis
A. The Standardisation System in the United States
B. The European System of Standardisation
C. The Chinese System of Standardisation
IV. The Status of Private Standards under WTO Law
A. Possible Attribution of Private or Hybrid Standards to Government
B. Private Standards in the SPS Agreement
C. Private Standards in the TBT Agreement
V. The Normative Dimension of Private Standards in the WTO
A. Is there a Normative Case for WTO Oversight over Private Standards?
B. The Prospect of Private Standards Governance in the WTO Framework
VI. Conclusion
6. Case Studies
I. ISO, International Standards and the TBT Agreement
A. An Introduction of the ISO and ISO Standard-setting Processes
B. ISO as an 'International Standardising Body'
C. ISO and WTO TBT Committee Decision
D. Conclusion
II. The Consistency of the EU Ecolabelling Scheme with the TBT Agreement
A. The Role of Ecolabelling in International Trade
B. An Overview of the EU Ecolabelling Scheme
C. The Consistency of the EU Ecolabelling Scheme with the TBT Agreement
D. Conclusion
III. Forest Stewardship Council (FSC) Certification and the WTO Law
A. An Overview of the FSC
B. The FSC Certification in the Eyes of the World Trade Organisation
IV. Conclusion
7. Conclusion

Editorial Reviews

An informative and extremely well supported investigation into the regulation of governmental, private and hybrid product standards within the GATT/WTO legal framework … will support law students and experts in the field … Getting the doctrine right is the foundation of critical legal reasoning, and this book achieves that commendably.” —Kamala Dawar, University of Sussex, Journal of World Investment & Trade

“A timely addition to the growing literature on public and private product standards … By offering a comprehensive assessment of both public and private standards, and covering both public and private bodies, this volume fills a clear gap in WTO literature, and will therefore be read with great interests by scholars and practitioners alike.” —Enrico Partiti, Tilburg Law School, Review of European, Comparative and International Environmental Law

From the Publisher