Nature and Enforceability of WTO-plus SPS and TBT Provisions in Canada's PTAs: FromNAFTAtoCETA

Abstract

Safety standards can function as non-tariff barriers to trade. Canada is a large exporter of goods and so it has an interest in the regulation of safety standards, both at the multilateral level through its membership of the World Trade Organization (WTO) and, most especially, at the bilateral and regional level through its Preferential Trade Agreements (PTAs). Canada has signed PTAs with provisions that go beyond the obligations of WTO Members under the Agreement on the Application of Sanitary and Phytosanitary Measures and the Agreement on Technical Barriers to Trade. This article analyses the nature and enforceability of WTO-plus provisions on sanitary and phytosanitary standards (SPS) as well as product standards (TBT) in Canada's PTAs, from the North American Free Trade Agreement (NAFTA) between Canada, Mexico, and the United States to the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union. First, it finds that the inclusion of WTO-plus SPS and TBT provisions in Canada's PTAs is a relatively recent practice that is still in development. Only about half of Canada's PTAs contain WTO-plus SPS and TBT provisions and, those treaties that do, commonly concern institutions for regulatory cooperation and information exchange arrangements, without much commitment to harmonization. Secondly, it finds that nearly half of the SPS and TBT provisions in Canada's PTAs are unenforceable. They either are in a language that is too imprecise for enforcement or do not allow access to a dispute settlement mechanism. Thirdly, it finds that, by global standards, most of Canada's PTAs are modest in their approach to SPS and TBT issues, with NAFTA and CETA as key exceptions. The article concludes that the extent to which regulatory convergence occurs on safety standards for Canada is dependent more on political cooperation between the parties than on the nature and enforceability of SPS and TBT provisions in its PTAs.

International Standardization and Trade Regulation

“…The literature on the institutional design of SPS chapters includes both, detailed case studies and large-N studies. The case studies often focus on specific countries or regions such as the EU (Rudloff and Simons, 2004), Canada (Puig and Dalke, 2016), or Asia (Kleimann, 2014) as well as cross-regional comparisons such as, for instance, between North American and European PTAs (von Lampe and Jeong, 2013).…”

“…Similarly to the literature on SPS measures in PTAs, the literature on the governance of TBT-related issues in PTAs includes regional case studies on, for instance, African PTAs (Meyer et al, 2010), Asian PTAs (Kleimann, 2014), and Canadian PTAs (Puig and Dalke, 2016) as well as large-N studies.…”

The Content of Preferential Trade Agreements

“…to what extent the PTAs create rules that go beyond the WTO legal status quo 8 . Villalta Puig and Dalke (2016) apply the HMS methodology to analyze the legal enforceability of sanitary and phytosanitary measures (SPS) and technical barriers to trade (TBT) provisions in Canada's PTAs. Kohl et al (2016) focus on 13 WTO+ and 4 WTO-X provisions identified by HMS and expand the coverage of preferential trade agreements to 296 9 .…”

“…Differently from HMS and WTR 2011, we investigate a much broader sample of PTAs. Also differently from Kleimann (2014), Villalta Puig and Dalke (2016), and Kohl et al (2016), the new database assesses the coverage of an extended set of policy areas in PTAs, and is not focused on a selected number of provisions. This latter feature allows us to investigate in Sections 3 and 4 the non-core provisions in PTAs, the broader scope of trade agreements, the similarities/differences in content across PTAs by income and geography groups, and the impact of deep PTAs on trade flows.…”