Exploring the Meaning of Trade-Restrictiveness in the WTO

(2015) World Trade Review; Available on CJO 2015 doi:10.1017/S1474745614000512 (published online 14 January 2015)

23 Pages Posted: 23 Nov 2014 Last revised: 16 Jan 2015

See all articles by Tania Voon

Tania Voon

University of Melbourne - Law School

Date Written: November 21, 2014

Abstract

Trade-restrictiveness is a familiar concept across various provisions and agreements of the World Trade Organization (WTO), but its precise meaning remains vague. In many WTO disputes, the existence or degree of trade-restrictiveness of a challenged measure is simply assumed or addressed in a few brief sentences. Yet whether a measure is more trade-restrictive than necessary, or more trade-restrictive than a proposed alternative measure, is crucial to the legality of a range of measures currently in place around the world, some under challenge in the WTO. A careful analysis of the existing caselaw and treaty text — focusing on Article 2.2 of the Agreement on Technical Barriers to Trade and the general exceptions in the General Agreement on Tariffs and Trade 1994 and the General Agreement on Trade in Services — demonstrates that while the existence of discrimination is likely to restrict trade, discrimination is not necessary to establish trade-restrictiveness, which also necessarily arises from direct barriers to market access such as import bans. In the absence of an explicit barrier to imports, a WTO panel is likely to focus on the extent to which a challenged measure negatively affects the competitive opportunities of imported products vis à vis domestic products.

Keywords: international trade law, TBT, exception, discrimination, trade restriction

JEL Classification: K33, F15

Suggested Citation

Voon, Tania, Exploring the Meaning of Trade-Restrictiveness in the WTO (November 21, 2014). (2015) World Trade Review; Available on CJO 2015 doi:10.1017/S1474745614000512 (published online 14 January 2015). Available at SSRN: https://ssrn.com/abstract=2529276

Tania Voon (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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