THE%20TECHNICAL%20BARRIERS%20TO%20TRADE%20AGREEMENT

1
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

2
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

3
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

4
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

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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

6
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

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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

8
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

9
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

10
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

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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!

12
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

13
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

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THE TECHNICAL BARRIERS TO TRADE AGREEMENT

• Link to article 2 of the TBT
• http//www.wto.org/english/docs_e/legal_e/17-tbt_e
  .htm

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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

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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

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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)
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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

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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

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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

21
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

22
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 envl/food
  safety disputes?

23
THE SPS AGREEMENT

• The clove cigarettes report
• - import ban by the US of clove cigarettes
• - complaint by Indonesia, main exporter
• - violation of NT gt likeness analysis
• - group of comparison menthol cigarettes
• - they are similar as flavoured cigarettes

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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?