An Added Exception to the TBT Agreement After Clove,Tuna II, and Cool

Abstract

In three 2012 cases, the World Trade Organization (WTO) found a United States regulation inconsistent with Article 2.1 but consistent with Article 2.2 of the Agreement on Technical Barriers to Trade (TBT Agreement). Article 2.1 contains the TBT Agreement’s non-discrimination obligations and Article 2.2 requires regulations to not be more trade restrictive than necessary. Despite the fact that violating Article 2.1 does not necessarily implicate Article 2.2, international trade theorists questioned whether the Appellate Body purposely avoided finding any of the regulations more trade restrictive than necessary. This Note argues that the Appellate Body showed its preference for finding violations under Article 2.1, as opposed to Article 2.2, by making it difficult for complainants to succeed with an Article 2.2 claim. Because it was more comfortable finding violations under the guise of discrimination, however, the Appellate Body added a necessity test to Article 2.1. Although this reading of Article 2.1 limits the regulatory authority of WTO Members, it successfully tests necessity and thus gives the TBT Agreement force, while also showing deference to regulatory sovereignty by functioning like an exception provision.