What is a Technical Regulation in the TBT Agreement? Some Reflections on EC-Seal Products

Abstract

The definition of technical regulation in Annex 1.1 of the TBT Agreement is not free from ambiguity. In EC-Seal Products, the Appellate Body held that in determining whether a measure is a technical regulation, a panel must seek to identify the measure’s ‘integral and essential’ aspects, and then analyze the weight and relevance of the essential and integral elements of the measure as an integrated whole. I submit that this seemingly sound analytical approach has led to an arbitrary conclusion in EC-Seal Products. Despite its arbitrariness, the Appellate Body’s approach in characterizing the EC-Seal regime shows its efforts to put some limit to what product characteristic means, especially when the term is followed by another category of measures, PPMs, which are also covered by the definition of technical regulation. In turn, the TBT Agreement will likely apply to a narrower set of measures than people previously assumed.

Keywords: Technical Regulation, PPM, Product Characteristic, TBT Agreement