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Changes in Transnational Risk Regulation from WTO Law and WTO Consistency
Published online by Cambridge University Press: 20 January 2017
The leaked TTIP documents reveal that the EU and US are discussing the introduction of a detailed set of procedural requirements for the adoption of regulatory measures. Default provisions are set forth in the chapter on regulatory cooperation, applicable to goods and services. More specific provisions are being negotiated in the chapters on technical barriers to trade and on sanitary and phytosanitary measures. If they conflict with the regulatory cooperation chapter, they prevail.
This article analyses the regulatory cooperation chapter insofar as it pertains to trade in goods but to the exclusion of SPS matters and anything provided in the TBT chapter itself. The questions this article examines are to what extent the TTIP proposals expand upon the obligations the two parties have already taken on under WTO law and to what extent the resulting regulatory coordination is consistent withWTO law. It will be shown that the US proposals on procedure may constrain substantive regulatory discretion beyond what applies under the GATT and TBT Agreement of the WTO. It will alsobe shown that the needs to conduct trade impact assessments and a detailed explanation of the necessity of measures anticipate a legal challenge to necessity and will provide information of much use to complainants in meeting their burden of proof.
1 Greenpeace Netherlands, “ Initial Provisions for Chapter [ ] [Eu: Regulatory Cooperation] [US: Regulatory Coherence, Transparency, and other Good Regulatory Practices]” [hereafter: Leaked, consolidated TTIP chapter on regulatory cooperation/good regulatory practices], available on the Internet at https://ttip-leaks.org/ (last accessed on 31 May 2016), Article X.3.
2 Ibid., Article X.4.
3 For an elaborate discussion of the SPS chapter, see Alan Matthew's “Food safety regulation in TTIP: much ado about nothing?” in this volume.
4 Korea–Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Report of the Appellate Body, WTO Doc. WT/DS161, 169/AB/R, 10 January 2001, para. 180, European Communities–Measures Affecting Asbestos and Asbestos–Containing Products, Report of the Appellate Body, WTO Doc. WT/DS135/AB/R, adopted 5 April 2001, paras. 168, 172-174.
5 Leaked, consolidated TTIP chapter on regulatory cooperation/good regulatory practices, supra note 1, Article X.1.
6 Ibid., Article X.5 (b).
7 Ibid., Article X.14(3) creates an obligation for post hoc follow up on the regulatory impact assessments’ estimate of costs and benefits and possibilities for regulatory improvements.
8 Ibid., Article X.14(1) and (2).
9 European Commission, “A New Right for EU Citizens. You can set the Agenda. Guide to the European citizens’ initiative.”, available on the Internet at <http://ec.europa.eu/citizens-initiative/public/welcome?lg=en> (last accessed 31 May 2016), pp. 3 and 26.
10 Leaked, consolidated TTIP chapter on regulatory cooperation/ good regulatory practices, supra note 1, Article X.22(1).
11 Ibid., Article X.18(1) and X.19(2) and (3).
12 Ibid., Article X.21.
13 Ibid., Article X.23.
14 Ibid., Article X.23(2) (a) and (d).
15 Ibid., Article X.23(2)(c).
16 Ibid., Article X.23(5) and X.24.
17 Alemanno, Alberto, “The Regulatory Cooperation Chapter of the Transatlantic Trade and Investment Partnership: Institutional Structures and Democratic Consequences”, 18 Journal of International Economic Law (2015), pp. 624 et sqq, at pp. 627, 635-637.CrossRefGoogle Scholar
18 Ibid., at 636.
19 Wiener, Jonathan B. and Alemanno, Alberto, “The Future of International Regulatory Cooperation: TTIP as a Learning Process Toward a Global Policy Laboratory”, 78 Law and Contemporary Problems (2015), pp. 101 et sqq., at p. 102.Google Scholar
20 More advantageous procedures might violate Article 2.1.
21 Gatt, Article XXIV:5.
22 For an explanation of this requirement in the WTO Turkey–Textiles case, see Howse, Robert, “Regulatory Cooperation, Regional Trade Agreements, and World Trade Law: Conflict or Complementarity?”, 78 Law and Contemporary Problems (2015), pp. 137 et sqq., at 142.Google Scholar
23 Ibid..
24 Ibid., at pp. 143-148.
25 The fact that the Appellate Body crafted the legitimate regulatory distinctions test onto TBT Article 2.1 in United States–Measures Affecting the Production and Sale of Clove Cigarettes, Appellate Body Report, WTO Doc. WT/DS406/AB/R, 4 April 2012, paras. 175, 181-2 suggests that it does not consider that a TBT violation could be ‘cured’ through the application of GATT and in casu Article XX.
26 22 May 1969, in force 27 January 1980, United Nations Treaty Series 331.
27 The list of states which have recognised the compulsory jurisdiction of the ICJ is available at <http://www.icj-cij.org/jurisdiction/?p1=5&p2=1&p3=3> (last accessed 31 May 2016). The scope of application of the TTIP regulatory cooperation chapter is defined in Annex X.A and X.B(1)(b)(ii).
28 Similarly, Christiane Gerstetter, “Regulatory Cooperation under TTIP-A Risk for Democracy and National Regulation?”, Heinrich Böll Stiftung TTIP Series, 2014, available on the Internet at <https://www.boell.de/sites/default/files/ttip_study_regulatory_cooperation_under_ttip_1.pdf> (last accessed 31 May 2016), pp. 2 and 32.
29 Bernard Hoekman, “Trade Agreements and International Regulatory Cooperation in a Supply Chain World”, EUI Working Paper RSCAS 2015/04”, available on the Internet at <http://cadmus.eui.eu/bitstream/handle/1814/34207/RSCAS%202015_04.pdf?sequence=1> (last accessed 31 May 2016) pp. 6-8 argues shared sovereignty is needed because of the internationalization of supply chains.
