Risk and Regulatory Calibration: WTO Compliance Review of the U.S. Dolphin-Safe Tuna Labeling Regime

22 Pages Posted: 2 Dec 2016 Last revised: 28 Apr 2018

See all articles by Cary Coglianese

Cary Coglianese

University of Pennsylvania Law School

André Sapir

Université Libre de Bruxelles (ULB) - European Center for Advanced Research in Economics and Statistics (ECARES); Bruegel; Centre for Economic Policy Research (CEPR)

Date Written: 2018

Abstract

In a series of recent disputes arising under the TBT Agreement, the Appellate Body has interpreted Article 2.1 to provide that discriminatory and trade-distortive regulation could be permissible if based upon a “legitimate regulatory distinction.” In its recent compliance decision in the US-Tuna II dispute, the AB reaffirmed its view that regulatory distinctions embedded in the U.S. dolphin-safe tuna labeling regime were not legitimate because they were not sufficiently calibrated to the risks to dolphins associated with different tuna fishing conditions. This paper analyzes the AB’s application of the notion of risk-based regulation in the US-Tuna II dispute and finds the AB’s reasoning lacking in coherence. Although risk analysis and calibration can in principle play useful roles in TBT cases, the AB needs to provide more explicit and careful guidance to WTO members and to panels to avoid the kind of ad hoc decision-making exhibited throughout the US-Tuna II dispute.

Keywords: WTO, TBT, regulation, risk

Suggested Citation

Coglianese, Cary and Sapir, Andre, Risk and Regulatory Calibration: WTO Compliance Review of the U.S. Dolphin-Safe Tuna Labeling Regime (2018). World Trade Review, Vol. 16, p. 327, 2017; U of Penn, Inst for Law & Econ Research Paper No. 16-31; Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2016/66. Available at SSRN: https://ssrn.com/abstract=2879323 or http://dx.doi.org/10.2139/ssrn.2879323

Cary Coglianese (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-6867 (Phone)

HOME PAGE: http://www.law.upenn.edu/coglianese

Andre Sapir

Université Libre de Bruxelles (ULB) - European Center for Advanced Research in Economics and Statistics (ECARES) ( email )

Ave. Franklin D Roosevelt, 50 - C.P. 114
Brussels, B-1050
Belgium
+32 2 650 2345/4 (Phone)
+32 2 650 4475 (Fax)

Bruegel ( email )

Rue de la Charité 33
B-1210 Brussels Belgium
Belgium

Centre for Economic Policy Research (CEPR)

London
United Kingdom

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