Remarks by Federico Ortino. (22nd March 2019)

• Record Type: Journal Article
• Authors: Ortino, Federico
• Is Part Of: Proceedings of the ... Annual Meeting. Volume 112(2018)
• Page Start: 66
• Page End: 67
• Publication Date: 2019-03-22
• Subjects: International law -- Congresses -- Periodicals; Congresses; 341.05
• DOI: 10.1017/amp.2019.68
• Languages: English
• ISSNs: 0272-5037

Abstract

Abstract : When it comes to trade law, it is true that there appear to be certain signs that we are moving back to non-discrimination and away from deeper forms of integration. However, this is possibly (and hopefully) only a limited and temporary shift. The strongest evidence of such a shift regards the apparent interpretation by the WTO Appellate Body (AB) of the key provisions in the TBT Agreement in such a way as to give prevalence to the national treatment standard in Article 2.1 over the necessity requirements in Article 2.2. For example, in US – Tuna II (Mexico) the AB found the U.S. dolphin-safe regulations under review inconsistent with Article 2.1, while also reversing the panel finding that the U.S. dolphin-safe regulations were inconsistent with Article 2.2. Such a result is surprising if one considers the general agreement among commentators that the disciplines embodied in the TBT Agreement (as well as in the SPS Agreement) went beyond the non-discrimination obligation of the GATT.