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.

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