Measures with multiple competing purposes after EC seal products: Avoiding a conflict between Gatt article XX-Chapeau and article 2.1 TBT agreement

Gracia Marin-Duran

Research output: Contribution to journalArticlepeer-review

Abstract

One of the issues on which the report of the Appellate Body in EC – Seal Productshasstirred considerable debate among legal academics is how to deal with product regulationsallegedly having multiple policy purposesunder World Trade Organization (WTO) law.For the most part, academic discussions have focused on the Appellate Body’s analysis ofthis issue under the chapeau of Article XX of the General Agreement on Tariffs and Trade (GATT). This article seeks to contribute to this debate by taking a more systemic perspec-tive and considering also how this type of measure would be appraised under Article 2.1Agreement on Technical Barriers to Trade (TBT). It begins by examining why measurespurportedly balancing multiple competing purposes, as in theEC - Seal Productscase, maynecessitate justification under WTO law and why the Appellate Body’s self-imposed ra-tional connection requirement is not appropriate to that end. A second argument advanced in this article is that, contrary to what the Appellate Body appeared to suggest inEC –Seal Products, the legal standards for justifying discrimination under the GATT ArticleXX-chapeau and Article 2.1 TBT Agreement should be essentially the same, and thusconflicting interpretations avoided in relation to the rational connection standard. A two-tier test for bringing in line these justification provisions is suggested which enquires,first, into whether there is a genuinely legitimate rationale for the discrimination, and sec-ondly, whether the discriminatory impact is necessary to achieve that legitimate purpose.
Original languageEnglish
Pages (from-to)467-495
Number of pages28
JournalJournal of International Economic Law
Volume19
Early online date26 May 2016
DOIs
Publication statusE-pub ahead of print - 26 May 2016

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