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EXAMPLES OF TECHNICAL BARRIERS TO TRADE

EXAMPLES OF TECHNICAL BARRIERS TO TRADE. one of the main TBT issue at the moment is labelling (see Tuna report) brief overview of marks and rules of origin in the WTO system ( unrelated to TBT): Article IX GATT Agreement on rules of origin TRIPs agreement. ARTICLE XI GATT: MARKS OF ORIGIN.

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EXAMPLES OF TECHNICAL BARRIERS TO TRADE

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  1. EXAMPLES OF TECHNICAL BARRIERS TO TRADE • one of the main TBT issue at the moment is labelling (see Tuna report) • brief overview of marks and rules of origin in the WTO system (unrelated to TBT): • Article IX GATT • Agreement on rules of origin • TRIPs agreement

  2. ARTICLE XI GATT: MARKS OF ORIGIN MFN as regards marks requirements balancing consumer protection and trade liberalisation (necessity principle) marks must no damage the product no misrepresentation of origin

  3. AGREEMENT ON RULES OF ORIGIN long-term harmonization of ROO no unnecessary obstacle to trade Committee on ROO (WTO) and Technical Committee on ROO (Customs Cooperation Council) transparency; no trade distortion; based on positive standards; reasonable and fair administration

  4. TRIPs AGREEMENT Article 22: definition of GI prohibition of misrepresentation or unfair competition Article 23: additional protection of GI for wines and spirits negotiations in the TRIPs Council for the establishment of a multilateral system of notification and registration

  5. GEOGRAPHICAL INDICATIONS no uniform definition it is a type of intellectual property 3 conditions: - good/service - origin in an area - quality/reputation linked to geographical origin

  6. THE US AND EU SYSTEM FOR GI PROTECTION: A COMPARISON The EU system - sui generis system for GI since 1992 - link between the characteristics of the product and the place it comes from protected geographical indication protected designation of origin - IP of a community - conditions for registration

  7. THE US AND EU SYSTEM (CONTINUED) - scope of the protection - addressees : consumer, small farmers and DCs traditional speciality guaranteed The US system - part of the general IP system - trademarks: the owner of the mark safeguards its interest

  8. THE US AND EU SYSTEM (CONTINUED) - rights and resp'ties entrusted to interested parties - a TM generally does not refer to a geographical area - it is an individual right - advantages: economic and administrative because the TM system already exists

  9. THE US AND EU SYSTEM (CONTINUED) EU system: public policy for consumers rights and security US system: producers' needs, tool for private parties to protect competition

  10. THE US-TUNA DISPUTE • US -Tuna: TBT measure about fishing methods • tuna fished by “setting on dolphins” cannot receive the “dolphin-safe” label on the basis of a US law • the panel says it is a NT violation because this rule just works in a part of the Pacific Ocean • in the other part setting on dolphins is allowed + the US imports tuna from there

  11. THE US-TUNA DISPUTE the tuna- dolphins association does not always exist a dolphin safe label does not always correspond to reality because the underlying problem does not exist the label does not carry out the function it is conceived for: informing the consumer!

  12. THE US-TUNA DISPUTE likeness analysis focussed on process/production method the fishing method is not able to alter the competitive relationship consumers preferences are taken into account but not enough to make the two products different

  13. THE TECHNICAL BARRIERS TO TRADE AGREEMENT • main rules: • non discrimination (MFN and NT) • necessity of the measure • conformity to international standards • “soft” mutual recognition of other members’ standards • longer time limits for LDCs and taking into account of their needs

  14. THE TECHNICAL BARRIERS TO TRADE AGREEMENT • Link to article 2 of the TBT http://www.wto.org/english/docs_e/legal_e/17-tbt_e.htm

  15. THE SANITARY AND PHYTOSANITARY AGREEMENT • Main rules: • an SPS is a measure used in order to protect human, plant of animal life from pests or diseases • Example : risk assessment procedures, quarantine treatment, labelling related to food safety, inspections

  16. THE SANITARY AND PHYTOSANITARY AGREEMENT Relevant articles: Article 2 par.1-4 Article 3 par.1-4 Article 5 par.1,2,3,4,7 http://www.wto.org/english/docs_e/legal_e/15sps_01_e.htm

  17. THE SANITARY AND PHYTOSANITARY AGREEMENT - States can adopt SPS measures if they comply with the Agreement - SPS measures are necessary, based on scientific principles and maintained only with sufficient scientific evidence - non discrimination - measures compliant with the SPS agreement are presumed to be compliant with GATT article XX b)

  18. THE SANITARY AND PHYTOSANITARY AGREEMENT • conformity to international standards and presumption of conformity to the SPS Agreement and the GATT • States can pursue a higher level of protection than international standards if there is a scientific basis • mutual recognition of other States’ standards if the exporting member demonstrates that the standard is adequate

  19. THE SANITARY AND PHYTOSANITARY AGREEMENT • SPS measures are based on risk assessment • in assessing the risks members must take into account economic factors (?!) • in setting the level of protection States must minimize trade effects • coherence in setting the level of protection

  20. THE SANITARY AND PHYTOSANITARY AGREEMENT • SPS measures are necessary, taking into account technical and economic feasibility • if scientific evidence is insufficient, members can adopt provisional measures and review them in a reasonable period of time • special consideration for LDCs and longer time frames

  21. THE SANITARY AND PHYTOSANITARY AGREEMENT • Disputes: • EC – hormones : import ban of beef from US and Canada because of the use of hormones • EC – GMOs : moratorium by the EC on the approval and marketing of GMOs • one of the main problems is the allocation of the burden of proof

  22. THE SANITARY AND PHYTOSANITARY AGREEMENT • general issues: • how judges handle scientific uncertainty • relationship between WTO system and other norms of international law • does article 5.7 really make sense? • Is WTO the right place where to solve env’l/food safety disputes?

  23. THE SPS AGREEMENT The clove cigarettes report - import ban by the US of clove cigarettes - complaint by Indonesia, main exporter - violation of NT > likeness analysis - group of comparison: menthol cigarettes - they are similar as flavoured cigarettes

  24. THE SPS AGREEMENT - menthol cigarettes are not banned = violation of NT - according to the US heavy consequences because many people smoke them - what is the consequence of this report? banning all flavoured cigarettes in the US?

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