The TBT Panels: US–Cloves, US–Tuna, US–COOL

Abstract

In a series of controversial 2011 decisions, WTO DSM Panels sought to reconcile legitimate regulatory interests of the state with various obligations to treat imported products in an even-handed and not unnecessarily trade-restrictive manner. Among the key points of contention were which obligation pertained in each case – national treatment, limits on technical regulations, or rules governing standards. In each case, the Panel imposed significant restrictions on national regulatory practices, and in each case the Panel reasoning was challenged by the Appellate Body. This paper addresses some of the key legal and economic issues raised in the original Panel decisions, leaving the late-breaking Appellate Body decisions for future analysis. Given the unsettled nature of the terrain, the economic analysis focuses primarily on the question of national treatment, while the legal analysis deals with other interesting points that emerge from these rulings, such as the appropriate level of deference to international standards and the legitimacy of labeling requirements.

Smoke screen? The globalization of production, transnational lobbying and the international political economy of plain tobacco packaging

“…Indonesia’s complaint targeted a US ban on the sale of flavoured cigarettes, aimed at reducing tobacco consumption amongst young people, by eliminating flavorings, although importantly, menthol cigarettes were not banned. Indonesia argued that the legislation unfairly discriminated against their exports of clove cigarettes, compared to menthol cigarettes, which were primarily made in the US (Howse and Levy 2013). The core of this case was therefore, not the question of whether the US had the right to ban certain tobacco products, but whether menthol and clover cigarettes are ‘like products’ and thus should be accorded equal treatment (Flett 2013).…”

“…The core of this case was therefore, not the question of whether the US had the right to ban certain tobacco products, but whether menthol and clover cigarettes are ‘like products’ and thus should be accorded equal treatment (Flett 2013). Although Indonesia did indeed supply the vast majority of clove cigarettes to the US market prior to the ban (Howse and Levy 2013), the market for clove cigarettes in the US was tiny (Jarman et al 2012). At their peak in 2007, ITC figures indicate that US imports of clove cigarette from Indonesia were $16,6m, a rather low level of trade to justify such a costly undertaking as a WTO challenge.…”

US–COOL Retaliation: The WTO's Article 22.6 Arbitration

“…Shortly before the final COOL rule was implemented, the Canadian and Mexican governments filed a request for consultations at the WTO in December 2008 and June 2009 respectively, and both countries requested a panel in October 2009. The subsequent Panel Report and Appellate Body Report found that the COOL regulation breached the TBT agreement by offering less favorable treatment to foreign goods (Howse and Levy, 2013;Mavroidis and Saggi, 2014). In July 2012, the DSB adopted the Appellate Body's Report.…”

Sorting Out Mixed Messages under the WTO National Treatment Principle: A Proposed Approach

“…However, as stated by Howse and Levy, ‘the perfect ought not to be the enemy of the good’ (Howse and Levy, 2013: 341). The recommendations made here are based in a slightly different universe, in which Panels are always supplied with sufficient and high-quality evidence from the Parties and WTO Panels have sufficient economic expertise to evaluate this evidence in a rigorous manner.…”