Critical Review of Jurisprudence

• Mavroidis, Petros C 1

Abstract

The WTO Agreement on Technical Barriers to Trade (TBT Agreement) aims to tame non-tariff barriers, the main instrument segmenting markets nowadays. Some of the terms used in the TBT Agreement to flesh out the commitments undertaken are borrowed from the General Agreement on Tariffs and Trade (GATT), and some originate in the modern regulatory reality as expressed through standard-development organizations. The TBT Agreement does not share a copycat function with the GATT though. Alas, the World Trade Organization’s Appellate Body, by understanding words as ‘invariances’ – for example, interpreting them out of context (without asking what is the purpose for the TBT Agreement) – has not only exported its GATT case law but also misapplied it into the realm of the TBT Agreement, and ended up with significant errors. This article explains why the current approach is erroneous, and advances an alternative understanding, which could help implement the TBT Agreement in a manner faithful to its negotiating intent and objective function.

• 1Edwin B. Parker Professor of Law, Columbia Law School, New York, USA