Entangled Relationship between Article 2.1 of the TBT Agreement and Certain Other WTO Provisions

Entangled Relationshipbetween Article 2.1 of theTBTAgreement and CertainOther WTO Provisions

Henry Hailong Jia*

Abstract

Article 2.1 (only the part containing the national treatment obligation) of theAgreement on Technical Barriers to Trade (TBT) has been interpreted andapplied for the first time in three recent TBT disputes since the establishmentof theWorld Trade Organization. This article will illustrate that the interpret-ive approach adopted by the Appellate Body, however, created a complicatedrelationship between TBT Article 2.1 and other WTO provisions. It createdan irreconcilable interpretive conflict between TBT Article 2.1 and GATTArticle III:4. It also introduced one same key test in the analysis of TBTArticle 2.1 and 2.2 under a certain condition while they contain two differentobligations. Finally, it sent out a confusing message concerning the applicabil-ity of GATTArticle XX to TBTArticle 2.1.

I. Introduction1.The interpretation and application ofArticle 2.1 of theAgreement onTechnical Bar-riers to Trade (TBT) in theWorld Trade Organization (WTO) dispute settlement forthe first time about one year ago has generated a number of insightful writings. Becauseof the obvious overlap between TBTArticle 2.1 and Article III:4 of the General Agree-ment on Tariffs and Trade (GATT), the ramifications of the judicial interpretation ofTBTArticle 2.1 onGATTArticle III:4 have receivedmost of the attention. This article

∗ Associate Professor, Faculty of Law, South China University of Technology, Guang-zhou, China; Visiting Scholar, Faculty of Law, University of Illinois at Champaign(February 2013—January 2014) (email: [email protected]). I thankProfessorWilliam J. Davey and Jo McKeagg for inspiring lunch discussions, Professor Daveyalso for his encouragement, advice, and comments on two earlier drafts, andGregoryM. Linde for his comments and language editing. This articlewas completedon 25 July 2013 and all websites cited are current as of this date.

© The Author 2013. Published by Oxford University Press. All rights reserveddoi: 10.1093/chinesejil/jmt040.......................................................................................................................................

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will also include an examination of the relationship between TBT Article 2.1 andGATTArticle III:4, offering further observations on this point which are especially dif-ferent from the findings of other scholars. The ramifications, however, reach beyondGATTArticle III:4. In light of recent TBT disputes, a full examination of the relation-ship between TBTArticle 2.1, on the one hand, and other relevant provisions both intheTBTAgreement and in otherWTOagreements, on the other hand, is needed.Thisarticle will offer such examination, as well.

2.Thedrafting of theTBTAgreement tookplace at a timewhenparties to theGATTAgreement had the luxury of selecting different packages of GATT Agreements toaccede to. Therefore, it is understandable that the TBTAgreement contains a nationaltreatment obligation in Article 2.11 which completely overlaps with that contained inGATTArticle III:4. As the national treatment obligation is one of the cornerstones ofthe multi-lateral trading system, it is important to make sure it is contained in everymajor GATT Agreement. When one party to the TBT Agreement chose not toaccede to the GATTAgreement, this overlap became absolutely necessary.2 After theestablishment of the WTO, however, every Member is required to accede to boththe GATT Agreement and the TBT Agreement. At that point, the overlap betweenthe GATTAgreement and the TBTAgreement with regard to the national treatmentobligation lost its historical justification.

3. This overlap alone may not create any real problem if the application of bothGATT Article III:4 and TBTArticle 2.1 did not generate conflicts. On the contrary,it would have provided panels and the Appellate Body (AB) with the flexibility of

1 Both the national treatment obligation and the most favoured nation treatment obli-gation are contained in TBT Article 2.1, but for the sake of convenience, when thisarticle refers to TBT Article 2.1 without specifying to which obligation(s) it refers,the discussion of this article will be confined only to the part of TBT Article 2.1that is relevant to the national treatment obligation.

2 William J. Davey, Non-discrimination in the World Trade Organization: The Rulesand Exceptions (2012), 114; and that non-GATT Parties were able to accede to TheTBTAgreement after the TokyoRoundwas specifically provided in the final article ofthe Tokyo version of the TBTAgreement. See Article 15 of the Agreement on Tech-nical Barriers to Trade, LT/TR/A/5 :

15.1 This Agreement shall be open for acceptance by signature or otherwise, by governmentscontracting parties to the GATT, and by the European Economic Community.15.2 This Agreement shall be open for acceptance by signature or otherwise by governmentshaving provisionally acceded to the GATT, on terms related to the effective application ofrights and obligations under this Agreement, which take into account rights and obligationsin the instruments providing for their provisional accession.15.3This Agreement shall be open to accession by anyother government on terms, related tothe effective application of rights and obligations under this Agreement, to be agreed betweenthat government and the Parties, by the deposit with the Director-General to the CON-TRACTING PARTIES to the GATT of an instrument of accession which states the termsso agreed.

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two choices in approaching the same disputes. As there is no exception to the nationaltreatment obligation explicitly providedwithin the TBTAgreement, as comparedwiththe GATTAgreement, it would be difficult, when litigating national treatment issuesunder TBT Article 2.1, to strike a balance between trade liberalization and domesticregulatory autonomy. It has been a long-accepted belief that the balance betweentrade liberalization and Members’ right to regulate is a very fundamental and delicateissue that implicates the legality of the multi-lateral trading system.3 Panels had triedto avoid considering the national treatment issues under the TBT Agreementwithout provisions counter-balancing the national treatment obligation.4 It hadbeen a great relief that the overlap between GATT Article III:4 and TBT Article 2.1made it possible for the WTO judiciary to set TBT Article 2.1 aside. The dormancyof TBT Article 2.1 had spared the WTO judiciary the difficult task of striking abalance between trade liberalization and domestic regulatory autonomy within theframework of the TBT Agreement which does not contain an exception provision.Moreover, even if there is a conflict between GATT Article III:4 and TBT Article2.1 in application, the dormancy of TBTArticle 2.1 had kept it from being exposed.4. This dormant provision, however, has recently been awoken by the panels and the

AB in a trilogy of disputes that consists of US—Clove Cigarettes,5 US—Tuna II(Mexico)6 and US—COOL.7 Following 15 years of inaction from the establishmentof theWTO, the panels and the AB decided to salvage TBTArticle 2.1 by attemptingto strike a balance between trade liberalization and domestic regulatory autonomywithin TBTArticle 2.1, itself without resorting to an exception provision. Any creativeinterpretation of TBTArticle 2.1, however, will most definitely have ramifications onGATTArticle III:4.Will the creative approach employed by the AB create any discrep-ancy between TBTArticle 2.1 andGATTArticle III:4? If yes, is the discrepancy recon-cilable? Besides the obvious ramifications on GATT Article III:4, one may also askwhether this awakening will have further ramifications on other provisions in theTBT Agreement and other WTO Agreements. Important relationship establishedbetween TBTArticle 2.1 and other relevant provisions shall be probed as well.5. Firstly, this examination shall compare and contrast the recently awakened TBT

Article 2.1 against the rich jurisprudence ofGATTArticle III:4 (withGATTArticleXXproviding exceptions). TBTArticle 2.1 and GATTArticle III:4 contain the same na-tional treatment obligation, share the same structure and key terms. The interpretation

3 John H. Jackson, World Trade and the Law of GATT (1969), 788.4 William J. Davey, above n.2, 115.5 United States—Measures Affecting the Production and Sale of Clove Cigarettes (US

—Clove Cigarettes), WT/DS406.6 United States—Measures Concerning the Importation, Marketing and Sale of Tuna

and Tuna Products (US—Tuna II (Mexico)), WT/DS381.7 United States—Certain Country of Origin Labeling (COOL) Requirements (US—

COOL), WT/DS384&386.

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of GATTArticle III:4 shall inform the interpretation of TBTArticle 2.1. This exam-ination shall also take special circumstances into consideration, especially the structuraldifference between the TBTAgreement and the GATTAgreement in terms of provi-sions relevant to TBT Article 2.1 and GATT Article III:4 respectively. Different cir-cumstances may warrant different interpretations and applications of the same legaltext. The interpretation of two of the key terms in TBTArticle 2.1 by the Panels andtheABhas deviated fromthat of the same terms inGATTArticle III:4.The comparisonand contrast between TBTArticle 2.1 and GATTArticle III:4 shall reveal, for the firsttime in real disputes, whether the different circumstances justify interpretive discrepan-cies of the same text in the two provisions and how they actually co-exist.

6. Secondly, the relationship betweenTBTArticles 2.1 and 2.2 shall be probed. Thetrilogy is also the first time that TBTArticle 2.2 has been interpreted and applied. TBTArticle 2.2 requires Members not to impose technical regulations that are more trade-restrictive than necessary. This “least trade restrictive” obligation, along with the “har-monization” obligation contained in TBTArticle 2.4, is said to have imposed obliga-tions more burdensome than the non-discrimination obligation with regard toMembers’ domestic regulations and may more seriously intrude upon domestic regu-latory autonomy.8 Since it has been awoken along with TBTArticle 2.1, it is necessaryto clarify how theABhas interpreted and analysed it. In addition, the trilogyprovides anopportunity to clarify the relationship between the national treatment obligation andthe least trade-restrictive obligation under the TBT Agreement. Obviously, they aretwo totally different obligations, but the key test for passing or failing them is not dif-ferent in a certain circumstance as revealed by the trilogy. This is suspicious andmeritsattention.

7. Finally, the approach taken by the AB in interpreting and applying TBTArticle2.1 also bears upon the issue of the applicability of GATTArticle XX to TBTArticle2.1. In the interpretation of TBT Article 2.1, the Panels and the AB did not have achance to resort to introducing GATT Article XX into the TBT Agreement as acounter-balance to trade obligations. On the one hand, the interpretive approachtaken by the AB and parts of its relevant reasoning details can be used to support theapplicability ofGATTArticle XX toTBTArticle 2.1.On the other hand, theweaknessof other parts of the AB’s reasoning and the fact that a balance between trade liberaliza-tion and domestic regulatory autonomywas struck by theAB in the trilogywithinTBTArticle 2.1 without resorting to GATT Article XX make the applicability of GATTArticle XX to TBT Article 2.1 unlikely. Moreover, the existence of a recent negative“precedent” further complicates this issue. The discussion of GATTArticle XX is, ofcourse, part of the comparison and contrast between TBT Article 2.1 and GATT

8 Lori M. Wallach, Accountable Governance in the Era of Globalization: The WTO,NAFTA and International Harmonization of Standards, 50 University of KansasLR (2002), 823, 832.




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Article III:4, but the applicability issue is also an independent questionwhich concernsthe direct relationship between TBTArticle 2.1 and GATTArticle XX.8. As clearly indicated, the primary task of this article is to examine the relationship

between TBT Article 2.1 on the one hand and GATT Article III:4 (with GATTArticle XX providing exceptions), TBTArticle 2.2 and GATTArticle XX on the otherhand. In Part II, this article will recount the trilogy of the three recent TBT disputes,and clarify the frameworks of the interpretation and analysis of both TBT Articles 2.1and 2.2 which were interpreted and analysed for the first time in WTO dispute settle-ment. In Part III, the interpretation and application ofTBTArticle 2.1 will be comparedandcontrastedwith thoseofGATTArticle III:4,withaparticular focusupon thediscrep-ancies between them. Recent views on this point proposed bymy learned fellow scholarswill alsobediscussed. InPart IV, thedivisionof jobbetweenTBTArticles2.1 and2.2willbediscussed. InPartV, the interpretive issues in the trilogy bearingupon the applicabilityofGATTArticle XX toTBTArticle 2.1will be analysed. This analysis will be conductedagainst the backdrop of the interpretive practices concerning the same issues in the recentChinese exportation control dispute. Part VI contains a brief conclusion.9.This article also tentatively suggests that, on thebasis of its examinationof the three

pairs of relationship, the AB has woven an entangled web around TBT Article 2.1,partly because the design defect of the TBT Agreement and partly because the ABcould not fully appreciate the consequences of its interpretation and analysis of TBTArticles 2.1 and 2.2 in the trilogy. Concerning how to straighten the relationshipbetween TBTArticle 2.1 and other relevant TBT and non-TBT provisions, especiallyas to how to avoid conflicts between the concurrent application of GATTArticle III:4andTBTArticle 2.1, this article raisesmore questions than it answers. As will be seen inPart III, it is a little too premature to suggest solutions like introducing regulatory ob-jective consideration back intoGATTArticle III:4. Trying to fully understand thewebof relationships around TBTArticle 2.1, and how this provision became so entangled,might be a humble but steady first step.

II. Analytical frameworks of TBTArticles 2.1 and 2.2 set out in thethree TBT disputesII.A. A brief recount of the trilogy

10. The trilogy of TBT disputes touched—for the first time—on two importantaspects of theTBTAgreement: the national treatment obligation as part of the non-dis-crimination treatment obligation, and the least trade-restrictive obligation. AlthoughEC—Asbestos9 and the EC—Sardines10 had previously dealt with issues concerning

9 European Communities—Measures Affecting Asbestos and Asbestos-ContainingProducts (EC—Asbestos), WT/DS135.

10 EuropeanCommunities—TradeDescription of Sardines (EC—Sardines),WT/DS231.




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the TBTAgreement, it was the first time that the AB interpreted TBTArticles 2.1 and2.2.

11. The first appellate ruling of the trilogy was delivered in US—Clove Cigarettes.This dispute arose out of a ban by the United States on the manufacture and sale ofcigarettes in the United States with “characterizing flavours” that appeal to youth.11

The ban, however, contained an exception. While all other flavoured cigarettes werebanned, menthol cigarettes were allowed to continue to be manufactured and sold inthe United States.12 In this dispute, the Panel regarded clove cigarettes and mentholcigarettes as like products within the meaning of TBT Article 2.1, and found thatimported clove cigarettes were accorded less favourable treatment than menthol cigar-ettes.13 Therefore, there was a violation of the national treatment obligation within themeaning of TBT Article 2.1. The Panel also found “virtually all clove cigarettes”imported into the United States in the three years prior to the ban were from Indo-nesia14; and the Panel did not find that non-clove cigarettes that were banned had“any sizeable market share in the United States prior to the implementation of theban”.15 The United States submitted that menthol cigarettes accounted for about 26per cent of the total US cigarette market and that three domestic brands dominatedthe US market.16

12. The AB agreedwith the Panel’s conclusions, but disagreedwith the Panel on theinterpretation of “like products” and “no less favourable treatment” under TBTArticle2.1. The AB made two important findings. Firstly, the determination of “likeness”should focus on the competitive relationship between and among products insteadof, as the Panel had opined, on the legitimate objectives and purposes of the technicalregulation.17 Secondly, the ABheld that the detrimental impact on competitive oppor-tunities for imports did not necessarily result in “less favourable treatment”, and thatsome seemingly discriminative technical regulations should be upheld if they stem ex-clusively from legitimate regulatory distinctions.18

11 WTO Panel Report, United States—Measures Affecting the Production and Sale ofClove Cigarettes (US—Clove Cigarettes), WT/DS406/R, adopted 24 April 2012,para.2.6.

12 Ibid., para.2.4.13 Ibid., paras.7.248, 7.292.14 Ibid., para.2.26.15 Ibid., para.2.28.16 The United States’ first written submission to the Panel in US—Clove Cigarettes,

paras.27, 29, quoted from WTO Appellate Body Report, United States—MeasuresAffecting the Production and Sale of Clove Cigarettes (US—Clove Cigarettes),WT/DS406/AB/R, adopted 24 April 2012, para.223.

17 WTO Appellate Body Report, US—Clove Cigarettes, above n.16, para.112.18 Ibid., para.175.




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13. As to the claim that the United States also violated the least trade-restrictive ob-ligation contained in TBTArticle 2.2, the Panel found that Indonesia failed tomeet itsburden of proof that the ban on clove cigarettes exceeded the level of protectionintended by the United States,19 or that the ban did not materially contribute to itspolicyobjective20 or that therewas a reasonable alternativewhichwas less trade-restrict-ive.21 The Panel’s findings concerning TBTArticle 2.2 were not appealed, so the ABdid not express its opinion on the interpretation of TBT Article 2.2 in general or theapplication of TBTArticle 2.2 to US—Clove Cigarettes in particular.14. The second AB ruling was in US—Tuna II (Mexico). In this dispute, Mexico

challenged the technical regulations for the use of the “dolphin-safe” label put intoeffect by the United States on tuna and tuna products (“tuna products”) importedinto the United States or marketed or sold in the United States. The US technical reg-ulations at issue were quite complicated. In essence, the United States conditioned eli-gibility for a “dolphin-safe” label on certain documentary evidence that varieddepending on five criteria, including the area where the tuna is caught and thefishing methods used.22 As a result, Mexican tuna products did not have access tothe label because Mexican fleet fished tuna “almost exclusively” in a particular area(the Eastern Tropical Pacific (ETP)) with a particular fishing method (setting on dol-phins), while US tuna products were allowed access to the label because the US fleetfished in both the ETP23 and other areas (outside the ETP) with other fishingmethods (other than setting on dolphins).24

15. There was no dispute that tuna products were to be regarded as like products re-gardless of the area fished or methods used. However, the Panel found that the distinc-tion made between tuna caught with different methods did not, in itself, necessarilyimply Mexican tuna products were accorded less favourable treatment,25 and thatthe adverse impact felt by Mexican tuna products was the result of private choicesmade by the Mexican fishing fleet and processors.26 Thus, in the Panel’s opinion,the United States did not violate the national treatment obligation under TBT

19 WTO Panel Report, US—Clove Cigarettes, above n.11, para.7.375.20 Ibid., para.7.415.21 Ibid., para.7.421.22 WTO Appellate Body Report, United States—Measures Concerning the Import-

ation, Marketing and Sale of Tuna and Tuna Products (US—Tuna II (Mexico)),WT/DS381/AB/R, adopted 13 June 2012, para.172.

23 WTOPanelReport,United States—MeasuresConcerning the Importation,Market-ing and Sale of Tuna and Tuna Products (US—Tuna II (Mexico)), WT/DS381/R,adopted 13 June 2012, para.7.316.

24 This whole sentence contains the finding that the Panel mostly made in ibid.,para.7.279, except the part about the tuna fishing by the US fleet in the EPT.

25 Ibid., para.7.305.26 Ibid., para.7.378.




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Article 2.1.TheABdidnot agree that the adverse impact onMexican tunaproductswasthe result of private choice, and because the different treatment on imported tuna anddomestic tuna did not “stem[s] exclusively from a legitimate distinction”, the conclu-sion that the United States did not violate TBT Article 2.1 was rejected by the AB aswell.27

16.As toMexico’s complaint that theUnitedStates violated the least trade-restrictiveobligation under TBT Article 2.2, the Panel found that the US labelling regulationscould only partially fulfil its objectives and therewas a less trade-restrictive alternative.28

However, the AB disagreed with the Panel about the analysis and the conclusionsduring the appeal, and thePanel’sfindings concerningTBTArticle 2.2were reversed.29

17. The third dispute in the trilogywasUS—COOL. TheUnited States put in placea labelling regime imposing an obligation on retailers selling certain meat products inthe United States—including pork and beef—to label those products with theircountry of origin.30 This labelling regulation defines country of origin differentlyfrom it is defined for tariff purposes. The labels are required to indicate the countrieswhere different production steps (birth, raising and slaughter) take place.31 Therefore,meat products which derive from livestock born, raised and slaughtered in a singlecountry would easily comply with the labelling requirement, while meat productswhich derive from livestock born, raised and slaughtered in different countrieswould incur greater costs to comply.32 Since the majority of Canadian and Mexicanlivestock exports are shipped to theUnited States to be processed intomeat products,33

meat products derived from livestock born and/or raised in Mexico and Canada wereadversely impacted by the US labelling requirements.

18. Just as in the previous dispute, the issue of “likeness” was not in dispute. ThePanel found that the livestock exports from Mexico and Canada were adverselyimpacted in terms of the conditions of competition,34 and it determined that theUnited States was in violation of TBT Article 2.1.35 The AB held that the Panelerred by stopping its TBTArticle 2.1 analysis after it had found that the US labelling

27 WTO Appellate Body Report, US—Tuna II (Mexico), above n.22, paras.284, 297.28 WTO Panel report, US—Tuna II (Mexico), above n.23, paras.7.563, 7.578.29 WTO Appellate Body Report, US—Tuna II (Mexico), above n.22, para.331.30 WTO Panel Report, United States—Certain Country of Origin Labeling (COOL)

Requirements (US—COOL), WT/DS384&386/R, adopted 23 July 2012,paras.7.78, 7.87.

31 Ibid., para.7.89.32 Ibid., paras.7.398–7.403.33 Ibid., para.7.142.34 The Panel did not state this conclusion explicitly, but only said that “the prima facie

case for a negative and significant COOL impact” was not rebutted. See ibid.,para.7.545.

35 Ibid., paras.7.546 and 7.548.




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requirements altered the conditions of competition to the detriment of Mexican andCanadian livestock exports,36 and completed the analysis by further inquiringwhether the detrimental impact would reflect discrimination by not “stem[ming]from a legitimate distinction”.37 As the AB held that the US labelling requirementsimposed a disproportionate burden on upstream producers as compared with thelevel of information communicated to consumers through the labels,38 the US mea-sures were decisively held not to have been applied in an “even-handed”manner, there-fore not to have stemmed from a legitimate distinction.39

19. The Panel, based on the same finding underTBTArticle 2.1, also concluded theUS labelling requirements violated the least trade-restrictive obligation under TBTArticle 2.2.40 The AB, disagreed with the legal analysis of the Panel under TBTArticle 2.2, but made no findings of its own due to the lack of facts necessary for thecorrect legal analysis.41

II.B. Analytical framework of TBTArticle 2.1

20. TBTArticle 2.1 reads:

Members shall ensure that in respect of technical regulations, products importedfrom the territory of anyMember shall be accorded treatment no less favourablethan that accorded to like products of national origin and to like products origin-ating in any other country.

Besides a most-favoured-nation treatment obligation, TBT Article 2.1 contains a na-tional treatment obligation. To establish a violation of the national treatment obliga-tion, three elements must be satisfied: (i) the measure at issue must be a technicalregulation; (ii) the imported and domestic products at issue must be like products;and (iii) the treatment accorded to imported products must be less favourable thanthat accorded to like domestic products.42

21. The analysis and application of the first element was settled first in EC—Asbestosand the definition of themeasures at issue in the recent three TBTdisputes as technicalregulations were not challenged at all. Thus, the focus of the analysis of TBTArticle 2.1in the trilogywas on the other two elements.Comparing the two remaining elements, it

36 WTO Appellate Body Report, United States—Certain Country of Origin Labeling(COOL) Requirements (US—COOL), WT/DS384&386/AB/R, adopted 23July 2012, para.293.

37 Ibid.38 Ibid., para.347.39 Ibid., para.349.40 WTO Panel Report, US—COOL, above n.30, paras.7.573–7.575.41 WTO Appellate Body Report, US—COOL, above n.36, para.491.42 WTO Appellate Body Report, US—Clove Cigarettes, above n.16, para.87.




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is quite natural that peoplewould paymore attention to the “likeness” element than tothe “no less favourable treatment” element, since “likeness” analysis in other WTO/

GATT agreements was the key issue in manyWTO and GATT disputes while the de-termination of “no less favourable treatment” in other WTOAgreements has receivedvery little attention if at all. Especially since GATTArticle III:4 resembles TBTArticle2.1 in text, design and purposes, the long and complicated history of the interpretationof “likeness” in GATT Article III:4 in both the GATT and WTO eras makes it verynatural for people to focus their attention on the interpretation of “likeness” in TBTArticle 2.1 while neglecting the interpretation of “no less favourable treatment” inthe same provision. This is exactly what the US—Clove Cigarettes Panel did.

22. The US—Clove Cigarettes Panel declared that the interpretation of “like pro-ducts” in TBT Article 2.1 should not be approached primarily from a competition-oriented perspective instead of an approach which takes account of the immediate pur-poses of the technical regulations at issue.43 It is clear that the “likeness” analysisadopted by the US—Clove Cigarettes Panel was very much like the “aim and effect”test that was employed in the analysis and application of GATT Article III:4 for aperiod before the establishment of the WTO. The AB in US—Clove Cigarettesstruck down this approach without hesitation and re-instated the competition ap-proach.44 Although this has not been positively confirmed by the AB rulings in laterdisputes, US—Tuna II (Mexico) and US—COOL presented no disagreement on thispoint.

23. The analysis of “no less favourable treatment” adopted by theUS—Clove Cigar-ettes Panel was divided into four steps: (i) determining the products that shall be com-pared45; (ii) determining whether the different groups of products (imports and likedomestic products) are treated differently46; (iii) determining whether the conditionsof competition have been modified to the detriment of the imported products47;and (iv) determining whether the detrimental impact could be explained by factorsor circumstances unrelated to the foreign origin of the products.48 This four-step ana-lysis has a counterpart inGATTArticle III:4 jurisprudence, but the analysis frameworkunder GATTArticle III:4 usually contains only the first three steps. It is true that thefourth step has appeared in a couple of disputes such as Dominican Republic—Importand Sale of Cigarettes,49 but it was only taken when there was a defense by the

43 Ibid., para.107.44 Ibid., para.156.45 WTO Panel Report, US—Clove Cigarettes, above n.11, para.7.270.46 Ibid., para.7.279.47 Ibid., para.7.281.48 Ibid., para.7.282.49 Dominican Republic—Measures Affecting the Importation and Internal Sale of

Cigarettes (Dominican Republic—Import and Sale of Cigarettes), WT/DS302.




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respondent, who claimed that the detrimental impact suffered by the imports did notrelate to themeasures (not the discriminations contained in themeasures but the overallmeasures) complained against, but was instead caused by other factors such as marketfactors or private choices. However, it appears in theUS—Clove Cigarettes Panel’s eyesthat the fourth step, which has its roots in GATTArticle III:4 jurisprudence, could beused in theTBTdisputes involvingTBTArticle 2.1 in order to allow for a considerationof domestic policy objectives because the article requires consideration of “factors orcircumstances unrelated to the foreign origin of the products”.50 The AB, however,clarified that the fourth step in the US—Clove Cigarettes Panel’s “no less favourabletreatment” analysis—originated fromDominican Republic—Import and Sale of Cigar-ettes—is at best a consideration of affirmative defences, if any are offered, rather than aconsideration of domestic policy objectives.51 It is not that the AB was not willing toconsider policy objectives within the element of “no less favourable treatment”. TheAB just did not agree such a policy objective consideration couldn’t be based uponthe element originated in Dominican Republic—Import and Sale of Cigarettes.Instead, it declared that, under TBT Article 2.1, a different inquiry into “whetherthe detrimental impact on imports stems exclusively from a legitimate regulatory dis-tinction” is needed.52 Thus, the AB imported a policy objective analysis into “noless favourable treatment” based on a new element. The AB in US—Clove Cigarettesdid not set out the analytical framework of “no less favourable treatment” in completesteps. It seems that the AB simply accepted the result of the Panel’s analysis for the firstthree steps of its analytical framework.53Then, the inquiry into “whether the detrimen-tal impact on imports stems exclusively from a legitimate regulatory distinction” takesthe place of the fourth step in the US—Clove Cigarettes Panel’s analytical framework.Thus, inUS—Clove Cigarettes, the AB changed the fourth step in the Panel’s analyticalframework from inquiring into the causational relationship between measures at issueand the detrimental impacts on imports to inquiring into the policy objectives of theregulatory measures.24. As to the analytical framework of TBT Article 2.1, the AB in US—Tuna II

(Mexico) stated that “our analysis of this issue” (no less favourable treatment) proceeds

50 This argument is also used to support the proposal to introduce policy objective con-siderations into “no less favourable treatment” inGATTArticle III:4. The logic is thatsince theWTO judiciary has considered other factors and circumstances in a couple ofGATTArticle III:4 disputes, and domestic policy objectives are among these factorsand circumstances, introducing domestic policy objective considerations into GATTArticle III:4 jurisprudence is not a deviation fromWTOcase law though themajorityof GATT Article III:4 disputes did not involve the explicit consideration of otherfactors and circumstances. Part III will discuss this point in more details.

51 WTO Appellate Body Report, US—Clove Cigarettes, above n.16, fn.372.52 Ibid., para.182.53 Ibid., paras.179–180.




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in two parts: (i) “Wewill assess whether themeasure at issuemodifies the conditions ofcompetition… to the detriment of” imported products as compared to like domesticproducts; (ii) “we will review whether any detrimental impact reflects discriminationagainst imported products.”54While the AB inUS—Tuna II (Mexico) strictly followedthe two-step analytical framework, the AB inUS—COOL further divided the first stepinto two sub-steps: an inquiry intodifferent treatmentof imports and likedomestic pro-ducts, and an inquiry into the existence of detrimental impacts on imports.55

25. It is a little confusing if one looks at the analytical framework set out by the AB inthe trilogy. As demonstrated above, the AB seemed unable to set out a consistent ana-lytical framework in three disputes. But the key elements of analysis are actually thesame. The first step of the two-step framework (set out in US—Tuna II (Mexico)and further clarified inUS—COOL) covers the first three steps in the four-step frame-work, and the last step in both the two-step framework and four-step framework areessentially the same. More importantly, it is clear that the interpretation and analysisof “no less favourable treatment” under TBT Article 2.1 has gained a new stepwhich, in application, requires an objective inquiry into the measures at issue. This isimportant and shall be the focus of attention.

26. It is necessary to point out that the test for the new element in the analyticalframework remains somewhat unclear. When discussing the new element, the ABused interchangeable phrases like “whether any detrimental impact reflects discrimin-ation against imports”, “whether the technical regulation is even-handed” andwhetherthe detrimental impact “stems exclusively from legitimate distinction”. In application,“even-handedness” was used as the operative test in US—Clove Cigarettes and US—Tuna II (Mexico), although “arbitrary or unjustifiable discrimination” was also men-tioned. The concept of “even-handedness” has its roots in GATT Chapeau jurispru-dence concerning one version of the test of “arbitrary or unjustifiablediscrimination” as discussed in details later this article,56 and also in GATT ArticleXX(g) jurisprudence referring to the requirement that regulating Members shall“make effective in conjunction with restrictions on domestic production or consump-tion”while imposing on imports certainmeasures.57 InUS—COOL, instead of “even-handedness”, the AB applied the another version of test of “arbitrary or unjustifiablediscrimination” originating from GATTArticle XX Chapeau jurisprudence. The ABdid not clarify the relationship between the two operative tests. The AB in US—COOL seemed to talk about the two tests as if they were interchangeable, but only

54 WTO Appellate Body Report, US—Tuna II (Mexico), above n.22, para.231.55 WTO Appellate Body Report, US—COOL, above n.36, para.273.56 See para.72 of this article.57 WTOAppellate BodyReport, United States—Standards for Reformulated andCon-

ventional Gasoline (US—Gasoline), WT/DS2/AB/R, adopted on 20 May 1996,20.




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applied one of them. As will be discussed in Part IV, their respective history and the ac-tually application in the trilogy suggest that these two tests actually focus their analysison different aspects of the newelement of “no less favourable treatment” inTBTArticle2.1. Moreover, it is the test applied by the AB in US—COOL that reveals the overlapbetween the national treatment obligation under TBTArticle 2.1 and the least trade-restrictive obligation under TBTArticle 2.2.

II.C. Analytical framework of TBTArticle 2.2

27. TBTArticle 2.2 reads:

Members shall ensure that technical regulations are not prepared, adopted orappliedwith a view to or with the effect of creating unnecessary obstacles to inter-national trade. For this purpose, technical regulations shall not bemore trade-re-strictive than necessary to fulfill a legitimate objective, taking account of the risksnon-fulfillment would create. Such legitimate objectives are, inter alia: nationalsecurity requirements; the prevention of deceptive practices; protection ofhuman health or safety, animal or plant life or health, or the environment. Inassessing such risks, relevant elements of consideration are, inter alia: available sci-entific and technical information, related processing technology or intended en-uses of products.

28. In US—Clove Cigarettes, the Panel divided the analysis of TBT Article 2.2 into atwo-step framework drawing lessons from jurisprudence concerning “necessity” inGATT Article XX (b) and (d) (without mentioning other subparagraphs), and fromArticle XIV of the General Agreement on Trade in Services (GATS): (i) whether thetechnical regulations at issue pursue a legitimate objective; (ii) whether the technicalregulations at issue are more trade-restrictive than necessary to fulfil that legitimate ob-jective (taking into account of the risks non-fulfilment would create).58 This was notdisturbed in the appellate proceeding since neither party appealed the panel’s rulingon this point. It also seemed to have been followed by the US—Tuna II (Mexico)Panel. The AB, inUS—Tuna II (Mexico), refined this framework into a four-step ana-lytical process: (i) the interpretationof the term “legitimate objective”; (ii) the interpret-ation of the term “fulfillment”; (iii) the interpretationof the phrase “not…more trade-restrictive than necessary”; and (iv) the phrase “taking account of the risks non-fulfill-ment would create”.59 It is hard to say that the AB established a new analytical frame-work in US—Tuna II (Mexico), because the two-step analysis adopted by the US—Clove Cigarettes Panel contains all the four processes of analysis proposed by the ABin US—Tuna II (Mexico). The AB also stated in US—Tuna II (Mexico) that the con-templation of the notion of “necessity”—as embodied in the phrase “unnecessary

58 WTO Panel Report, US—Clove Cigarettes, above n.11, para.7.333.59 WTO Appellate Body Report, US—Tuna II (Mexico), above n.22, para.312.




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obstacles to international trade” of the first sentence of TBTArticle 2.2 and the phrase“not…more trade-restrictive than necessary” in the second sentence of TBT Article2.260—includes three elements: (i) the degree of contribution made by the measureat issue to the legitimate objective; (ii) the trade-restrictiveness of the measure; and(iii) the nature of the risks at issue and the gravity of consequences that would arisefrom non-fulfilment of the objective(s) pursued by the Member through themeasure.61 It is clear that the last three processes in the AB’s analytical framework inUS—Tuna II (Mexico) are actually three elements for determining the “necessity” ofthe challengedmeasure, which is the essence of the second step of the Panel’s analyticalframework in US—Clove Cigarettes. Furthermore, the last three processes establishedby the AB inUS—Tuna II (Mexico) are actually three elements thatmust be consideredtogether in a single analytical step when determining the “necessity” of the disputedtechnical regulation.

29. InUS—COOL, TheUnited States did not agreewith this borrowing of the ana-lytical framework fromother similar provisions, especially fromGATTArticleXX(b).62

TheUnited States “highlights three ‘important contextual differences’” between TBTArticle 2.2 and other similar provisions underGATTArticle XX.Themost compellingone of these differences is that “while the question under Article XX is whether themeasure itself is necessary, Article 2.2 asks whether the amount of trade-restrictivenessis necessary” (emphasis original).63 Regardless of the US argument, however, the ABheld that the “necessity” test inTBTArticle 2.2was integratedwith the “necessity” jur-isprudence development under GATTArticle XX and GATS Article XIV.64

30. In assessing whether the policy objectives of the disputed technical regulationsare legitimate or not, the AB in US—Tuna II (Mexico) articulated a two-stepprocess. The first step is to discern the objective of the disputed technical regulations.The second step is to determine its legitimacy.Discerning the objectives of the disputedtechnical regulations requires a consideration of “the texts of the statues, legislativehistory, and other evidence regarding the structure and operation of the measure”.65To determine the legitimacy of the objective, the third sentence of TBT Article 2.2,the sixth and seventh recitals of the preamble of the TBT Agreement, and objectivesrecognized in the provisions of other covered Agreements could provide guidance for

60 Ibid., para.318.61 Ibid., para.322.62 The “necessity” jurisprudence has been built on moreWTO provisions than GATT

Article XX(b), but the United States, in its appeal inUS—COOL, did not list all rele-vant articles. See United States’ appellant’s submission, para.159 (quoting WTOPanel Report, US—COOL, above n.30, para.7.670), quoted fromWTO AppellateBody Report, US—COOL, above n.36, para.42.

63 WTO Appellate Body Report, US—COOL, above n.36, para.42.64 Ibid., para.374.65 WTO Appellate Body Report, US—Tuna II (Mexico), above n.22, para.314.




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or inform the determinationof the legitimacyof the objectives of the disputed technicalregulations.66

31. The assessment of “necessity” involves a relational analysis of the degree of con-tribution that it makes to the achievement of a legitimate objective, the trade-restrict-iveness of the technical regulation, and the risks non-fulfilment would create.67 This isusually conducted by a comparison with a possible alternative in all the three aspects.68

It is in this overall comparison, the three elements of “fulfillment”, “trade restrictive-ness” and “non-fulfillment risks” are contemplated.32. According to the AB, the question of whether a technical regulation fulfils an ob-

jective should be transformed into a question of how much a technical regulation or areasonably available alternative could contribute to the achievement of the regulatoryobjective. The standard adopted by the Panel that required the regulation to meettheMember’s chosen level69was unambiguously dismissedby theAB.TheABempha-sized that “fulfillment”was concernedwith the degree of contribution a technical regu-lation had made toward the achievement of the legitimate objective.70 AMember, “bypreparing, adopting, and applying a measure in order to pursue a legitimate objective,articulates either implicitly or explicitly the level at which it seeks to pursue that particu-lar legitimate objective”,71 but it does not mean the Member’s measures have to meetthe level of achievement set by itself. As to how to determine the degree of achievementof a particular objective, the design, structure, and operation of the measure at issuealong with evidence relating to the application of the measure must be considered.72

33. As to the element of “trade restrictiveness”, the US—Tuna II (Mexico) Panelagreed that measures that are “trade-restrictive” include those that impose any formof limitation on imports, discriminate against imports or deny competitive opportun-ities to imports, and that a measure that imposes limits upon or discriminates againstimports would meet the definition of a measure that is “trade-restrictive”.73 The US—COOL Panel further regarded “‘trade-restrictive” under Article 2.2 as affectingthe competitive conditions of imported livestock”.74 The US—COOL Panel foundthat the scope of the term “trade-restrictive” is broad75 and “does not require the dem-onstration of any actual trade effects, as the focus is on the competitive opportunities

66 Ibid., para.313.67 Ibid., para.318.68 Ibid., para.320.69 WTO Panel Report, US—Tuna II (Mexico), above n.23, paras.7.563–7.564.70 WTO Appellate Body Report, US—Tuna II (Mexico) above n.22, para.315.71 Ibid., para.316.72 Ibid., para.317.73 WTO Panel Report, US—Tuna II (Mexico), above n.23, para.7.455.74 WTO Panel Report, US—COOL, above n.30, para.7.575.75 Ibid., paras.7.567–7.572.




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available to imported products”.76 TheUS—COOL Panel’s conclusion indicated thechallenged US labelling regulations were “trade-restrictive” to a considerable degree.77

The AB did not uphold this finding, but only because the facts found by the Panel didnot warrant such a finding.78 The AB, however, left the abstract analysis of “trade-re-strictive” by the Panel undisturbed.

34. In the analysis of “taking account of the risks non-fulfillmentwould create”, rele-vant elements of consideration are “inter alia: available scientific and technical informa-tion related to processing technology or intended end-uses of products”.79 The ABfurther explained that this requires that the comparison of the challenged technicalregulation with a possible alternative measure should be conducted “in the light ofthe nature of the risks at issue and the gravity of the consequences that would arisefrom non-fulfillment of the legitimate objective”, which suggests a “further elementof weighing and balancing” in the analysis under TBTArticle 2.2.80 This explanationwas emphasized again by theAB inUS—COOL.81ThePanel and theAB,however, didnot conduct such an assessment in US—COOL when it made the comparison asrequired by the second step of analysis of TBTArticle 2.2. Moreover, the AB replacedit in US—COOL with another element.

35. In the appellate proceeding of US—COOL, the United States drew examplefrom the jurisprudence of Article 5.6 of the WTO Agreement on the Application ofSanitary and Phytosanitary Measures (SPS) and proposed a new analytical frameworkfor “more trade-restrictive than necessary to fulfill a legitimate objective”. The analyt-ical framework calls for a “single analysis, containing three elements that are to bejudged cumulatively”, which seemed not to change the second step of the analyticalframework adopted in US—Clove Cigarettes or the last three steps of the analyticalframework in US—Tuna II (Mexico).82 However, the three elements the UnitedStates advocated are different, and the AB in US—COOL also proposed its versionof the three elements: (i) whether these alternative measures are less trade-restrictivethan the COOL measure; (ii) whether they would make an equivalent contributionto the relevant objective, taking account of the risks non-fulfilment would create;and (iii) whether they are reasonably available in the United States.83 In the proposed

76 Ibid., para.7.572.77 Ibid., paras.7.356, 7.375–7.380.78 WTO Appellate Body Report, US—COOL, above n.36, para.479.79 WTO Appellate Body Report, US—Tuna II (Mexico), above n.22, para.321.80 Ibid.81 WTO Appellate Body Report, US—COOL, above n.36, para.377.82 Ibid., paras.455, 481.83 Ibid., para.481.




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framework, the element “taking account of the risks non-fulfillment would create”wasmerged with the element “fulfillment”. A new element “reasonable availability” wasadded. Thus, the AB, in US—COOL, also adopted a four step analytical frameworkbut different form that adopted inUS—Tuna II (Mexico). In the analysis of this frame-work, the AB did not really discuss the element “taking account of the risks non-fulfill-ment would create”, but discussed “reasonable availability” at length instead whendiscussing the four possible alternatives.84 Actually, the element of “reasonable avail-ability” was not foreign in the analysis in US—Clove Cigarettes and US—Tuna II(Mexico), but neither thePanels nor theAB included it explicitly in the analytical frame-work in US—Clove Cigarettes and US—Tuna II (Mexico). The test for “reasonableavailability” consists of simple elements, mostly technical and economic feasibility.85

However, whether this is a complete list for the determination of “reasonable availabil-ity” under TBTArticle 2.2 remains unclear.36. Although this article uses the “least trade restrictive” obligation to refer to the

norm contained in TBT Article 2.2, there have been different tests for the identicalnorm in different disputes and different scholarly interpretations concerning thesetests in theWTOjurisprudence.86 It is too early to decide, however, how to characterizethe tests used in the trilogy. One may draw support from the analytical framework fordifferent characterizations, but no actual application of any test has yet been upheld bythe AB.More importantly, for the purpose of this article, it is enough to know that theanalysis inTBTArticle 2.2 follows the development of the generalWTO jurisprudenceconcerning “necessity”.

84 Ibid., paras.482–490.85 Ibid., para.45.Thiswas explicitly proposed by theUnited States. Although theABdid

not repeat this in its own analysis, but it did not reject it and seemed to have acceptedarguments based on elements in it. InUS—COOL, the AB said: “We note, however,that the mere fact that an alternative measure would entail some additional cost doesnot, alone, mean that such a measure is not reasonably available to a Member.” Thisstatement indicates theABconsidered economic feasibility as an element to determine“reasonable availability”while the AB cautioned the over-reliance of a single elementto make the determination. See WTO Appellate Body Report, US—COOL, aboven.36, fn.1013.

86 See e.g. Gisele Kapterian, ACritique of the WTO Jurisprudence on “Necessity”, 59ICLQ (2010), 89; Benn McGrady, Necessity Exceptions in WTO Law: RetreadedTyres, Regulatory Purpose and Cumulative Regulatory Measures, 12 JIEL (2008),153; Donald H. Regan, The Meaning of “necessary” in GATT Article XX andGATS Article XIV: The Myth of Cost-benefit Balancing, 6 WTR (2007), 347; JanNeumann and Elisabeth Turk, Necessity Revisted: Proportionality in World TradeOrganization Law After Korea—Beef, EC—Asbestos and EC—Sardine, 37 JWT(2003), 199; Alan O. Sykes, The Least Restrictive Means, 70 U. Chicago LR(2003), 403.




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III. The discrepancy between TBTArticle 2.1 and GATTArticleIII:437. As the AB recognized inUS—Clove Cigarettes, TBTArticle 2.1 and GATTArticleIII:4 have very similar formulations, contain the same core terms and overlap in theirscope of application while sharing the same objective.87 It is natural to assume thatthey should be interpreted and applied consistently and coherently, both in terms ofjurisprudential technicality and in terms of objective achievement.Owing to the differ-ent structure of the TBTAgreement and the GATTAgreement, however, “no less fa-vourable treatment”—one of the two common core terms of TBT Article 2.1 andGATTArticle III:4—has been interpreted differently.

III.A. The obvious different interpretation of “no less favourable treatment”

38. In the first dispute of the trilogy, both the Panel and the AB had realized the struc-tural defect of the TBTAgreement: it does not contain a general exception provision tocounter-balance the obvious trade liberalization objectives in TBT Article 2.1. Thisproblem may have long been recognized. In the first WTO dispute—US—Gasoline—which could have been litigated under the TBTAgreement, the Panel exercised ju-dicial economy and refused to rule under the TBTAgreement. Although there was noevidence officially documented to prove that theWTO judiciary avoided to rule underTBTArticle 2.1 because of its structural defect, Hudec reported that the Panel and theparties inUS—Gasoline agreed not to proceed in applying theTBTAgreement becausetheTBTAgreement “maynot [have] provide[d] a full set of rules” for thedeterminationof discrimination as argued in that dispute.88Hudec’s anecdotal reportmaynot be veryreliable, but it is true, asHudec predicted, that the national treatment obligation as oneof the major TBT obligations should provide a model to deal with the same balancingproblem.89 In fact, the Panel and the AB in US—Clove Cigarettes had felt the need sostrongly that theydiscussed at length that a delicate balanceneeded tobe struckbetweentrade liberalization and national right to regulate.

39. The AB inUS—Clove Cigarettes pointed out that the balance between trade lib-eralization and domestic regulatory autonomy to be set out in TBTArticle 2.1 shouldbe the same as the balance set out in theGATT1994.90 The Panel held that the secondrecital of the TBTAgreement links the TBTAgreement to the GATT 1994 and it sug-gests that the TBTAgreement is a “development” or a “step forward” from the disci-plines of the GATT 1994.91 The AB agreed and added that the two agreements

87 WTO Appellate Body Report, US—Clove Cigarettes, above n.16, paras.91, 100.88 Robert E. Hudec, GATT/WTOConstraints on National Regulations: Requiem for

an “Aim and Effects” Test, 32 International Lawyer (1998), 619, 644.89 Ibid.90 WTO Appellate Body Report, US—Clove Cigarettes, above n.16, para.96.91 WTO Panel Report, US—Clove Cigarette, above n.11, para.7.112.




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overlap in scope and have similar objectives and it is thus clear that the TBTAgreementis an expansion on pre-existingGATTdisciplines.92 The AB also agreed with the Panelon its observation with regard to other recitals of the TBTAgreement. It accepted thatthe aim set out in the fifth recital of the TBTAgreement is to reduce obstacles to tradeand limit Members’ right to regulate.93 It also accepted that the sixth recital wasintended, one the other hand, to qualify the trade liberalization objective by the explicitemphasis of Members’ right to regulate in order to pursue certain legitimate objec-tives.94 Since the TBT Agreement does not contain a general exception provision,whereas the GATT Agreement contains a general exception provision as a counter-balance to the national treatment obligation in GATT Article III:4,95 and sinceneither part of “the dual objective—free trade and regulatory autonomy” of theTBT Agreement can be neglected,96 there must be a balance, and this balance is tobe found in TBTArticle 2.1 itself.40. The AB disagreed, however, with the Panel as to where the balance should be

struck within TBT Article 2.1. The Panel opted for a return to the “aim and effects”test while interpreting “like products” to introduce regulatory objective considerationsintoTBTArticle 2.1 as a counter-balance to the national treatment obligation.TheAB,instead, proposed a new interpretation of “no less favourable treatment” in the sameprovision to allow a consideration of policy justifications for technical regulationswhich treat imports more detrimentally than like foreign products.41. The choicesmade by the Panel and the AB can achieve the same outcome.Why,

then, did theABchoose adifferent approach fromthePanel?TheABbased its choice ona couple of reasons beyond the same “have no choice but must strike a balance withinTBT 2.1” rationale used by the Panel to support an “aim and effects” reading of “likeproducts”. The “have no choice but must strike a balance within TBT 2.1” reasoncannot dictate which choice is better, but other reasons supporting the choice by theAB, in its own eyes, are able to demonstrate the superiorityof its choice over the Panel’s.42. Firstly, the AB emphasized that technical regulations are measures that, by their

very nature, establish distinctions between products according to their characteristics ortheir related processes and production methods.97 According to the AB, this suggeststhat Article 2.1 should not be read to mean that any distinction would per se accordless favourable treatment within the meaning of TBT Article 2.1.98 Secondly, it also

92 WTO Appellate Body Report, US—Clove Cigarettes, above n.16, paras.90, 91.93 Ibid., para.92.94 Ibid., para.95.95 Ibid., para.101.96 Michael Ming Du, Domestic Regulatory Autonomy under the TBT Agreement:

FromNon-discrimination toHarmonization, 6 Chinese JIL (2007), 269, 269–271.97 WTO Appellate Body Report, US—Clove Cigarettes, above n.16, para.169.98 Ibid.




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drew inspiration from TBTArticle 2.2. In the AB’s opinion, TBTArticle 2.2 suggeststhat “obstacles to international trade”may be permitted insofar as they are not found tobe “unnecessary”. It can be inferred that Article 2.1 does not operate to prohibit prioriany obstacle to international trade. The AB forcefully concluded that if any obstacle tointernational trade is in violation of Article 2.1, Article 2.2would be deprived of its effetutile.99

43. Assuming the above reasons given by the AB are persuasive enough to justify itschoice to interpret “no less favourable treatment” in TBT Article 2.1 creatively, oneobvious problem still exists: the discrepancy between the two versions of interpretationof the same termwithinTBTArticle 2.1 andGATTArticle III:4 respectively. This dis-crepancy was exacerbated by the AB’s comprehensive reasoning that “like products” inboth TBT Article 2.1 and GATT Article III:4 should be interpreted in the samemanner.100

44. Interestingly, since the new interpretation of “no less favourable treatment” inthe trilogy definitely tilted the scale in favour of the reservation of domestic regulatoryautonomy, Weihuan Zhou argued that the WTO judiciary should interpret “no lessfavourable treatment” in Article III:4 in accordance with the new approach.101 Itseems that, in addition to solving the discrepancy between the interpretation of thesame term “no less favourable treatment” in TBT Article 2.1 and GATT ArticleIII:4, this proposal is in line with the claim that the WTO judiciary has graduallypaidmore attention to the importance ofWTOMembers’ domestic regulatory auton-omy as an essential guarantor for the long term success of the WTO itself.102

45. As it is clear that GATT Article XX only includes a limited number of policyobjectives that may be used as defenses to what would otherwise be violations ofGATTobligations (especially the national treatment obligation violations as concernedin this article), domestic regulations with objectives outside the scope articulated inGATT Article XX will be struck down. If the WTO judiciary could introduce apolicy objective consideration, as in the new interpretation of “no less favourable treat-ment” in TBT Article 2.1 into GATT Article III:4, more legitimate domestic policyobjectives without the limit of a closed list would be upheld as valid defenses for thenational treatment obligation violations under GATT Article III:4. This is truebecause the AB emphasized that “the use of the words ‘inter alia’ in Article 2.2… sig-nifies that the list of legitimate objectives is not a closed one”.103 As TBTArticle 2.2 is

99 Ibid., para.171.100 Ibid., paras.107–156.101 See, e.g., Weihuan Zhou,US—Clove Cigarettes andUS—Tuna II (Mexico): Implica-

tions for the Role of Regulatory Purpose under Article III:4 of the GATT, 15 JIEL(2012), 1075, 1078.

102 MichaelMingDu, The Rise ofNational Regulatory Autonomy in theGATT/WTORegime, 14 JIEL (2011), 639, 641.

103 WTO Appellate Body Report, US—COOL, above n.36, para.370.




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the most important context for the analysis of TBT Article 2.1, legitimate objectivesrecognized in the analysis of “no less favourable treatment” in TBT Article 2.1 willnot be limited to a closed list either. As a result, once the new interpretation of “noless favourable treatment” is introduced into GATT Article III:4 jurisprudence,more domestic regulations will be held to be WTO consistent than when only thepolicy justifications under GATT Article XX are available. This rings even truerupon an examination of the portions of the AB reports in the trilogy concerning theanalysis and application of TBT Article 2.1. The AB did not even bother to set arough parameter to examine the technical regulations at issue before they simplyassumed they were legitimate.46. The new interpretation also granted domestic regulations another privilege by

exempting the regulating Members from bearing the burden of proof that their regula-tions have legitimate objectives since the text to which the new interpretation adds apolicy objective element is not located in an exception provision. Instead, the TBTArticle 2.1 analysis requires a complaining Member to bear the burden of proving thata regulating Member’s policy objectives are not legitimate. Compared with dispute set-tlements under GATT Article III:4, the complaining Members have to bear an extraburden before they can establish a prima facie case. The defending Members seem tohave lost an affirmative defense they might otherwise have under GATT Article XX,but they actually benefit from shifting the burden of proof in the affirmative defense tothe complaining Members in the establishment of a prima facie case.47. As the GATT Agreement was drafted and signed at a very early time, it can be

accepted that the drafters probably had only de jure violations of the national treatmentobligation in mind under GATTArticle III:4, so the violations are treated stringentlybecause they are outright violations of the national treatment obligation under GATTArticle III:4.104 If they are to be justified, it shall only be through limited number ofnational regulatory policy exceptions. The TBTAgreement was drafted and signed ata much later time with de facto violations of the national treatment obligation inmind. De facto violations, which probably do not have evident discriminativeintent,105 do not look like deliberate violations of WTO obligations. As a result, theTBT Agreement uses a moderate framework to deal with de facto violations. Thissounds quite fair and logical. Now, as de facto violations within the meaning ofGATT Article III:4 have proliferated, the proposal to introduce the policy objectiveconsideration into GATT Article III:4 analysis seems sensible.106 Otherwise, theywill be dealt with by a too stringent GATTArticle III:4.

104 Douglas A. Irwin, Petros C.Mavroidis and AlanO. Sykes, The Genesis of the GATT(2008), 163.

105 Robert E. Hudec, above n.88, 622.106 TheWTOdispute settlement experience underGATTArticle III:4 has suggested the

WTO judiciary has been reluctant to declare de facto discriminative measures are inviolation of GATT Article III:4, partly because GATT Article III:4 was designed to




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48. The proposal byWeihuan Zhou has a fundamental defect, however. If a regula-tion could be justified by its regulatory policy objectives under GATT Article III:4,GATT Article XX would be rendered redundant. This is very different from addingan element without any obvious textual source through the interpretation of a phrasein TBT Article 2.1. Putting a complete article out of job is a more serious violationof interpretative canons in general and rules of public international law interpretationin particular. Plus, GATTArticle XX is quite a long article.

49. Moreover, the AB has quite clearly indicated that it would not interpret GATTArticle III:4 in the samemanner as it interprets TBTArticle 2.1.107 As a matter of fact,GATT/WTO panels and the WTO AB have had difficulty accepting an “aim andeffects” test when interpreting “like products” in the GATTArticle III national treat-ment obligation. Evenwith regard toGATTArticle III:2, the second sentence ofwhichcalls for application of a policyobjective consideration contained inArticle III:1with itsAd Note, it is difficult to incorporate a policy element into the overall analytical frame-workof “like products”.108 As toArticle III:4, since it does not have any textual basis fora consideration of policy objectives in its analysis, it should be more difficult to incorp-orate a policy element. And as to adding a policy objective consideration specifically tothe interpretation of “no less favourable treatment” in Article III:4, nobody had eversuggested it before US—Clove Cigarettes.

50. In hindsight, Weihuan Zhou suggests that the AB had created the flexibility inGATTArticle III:4 jurisprudence for “purpose inquiries under the ‘treatment no lessfavourable’ test” in two disputes.109 Themost noticeable one of the two disputes isDo-minican Republic—Import and Sale of Cigarettes.This dispute was also quoted and dis-cussed in a footnote of the AB report in US—Clove Cigarettes.110 As mentioned inparagraph 23 of this article, the AB in that lengthy footnote explicitly refused toinquire into the “rationale” for the detrimental impact and made it clear that the ana-lytical element of “factors or circumstances unrelated to the foreign origin of the pro-ducts” from Dominican Republic—Import and Sale of Cigarettes AB report should beunderstood only as an inquiry into whether the detrimental impact was “attributableto” the measures at issue while not a “function of” some other factor(s) such as sales

combat de jure discrimination and hence a blunt weapon to combat de facto discrimi-nations. See FedericoOrtino, Basic Legal Instruments for the Liberalization of Trade:A comparative Analysis of EC and WTO law (2004), 12.

107 WTO Appellate Body Report, US—Clove Cigarettes, above n.16, fn.372.108 Robert E. Hudec, above n.88, 628.109 Weihuan Zhou, above n.101, 1088.110 The quote reads: “… the existence of a detrimental effect on a given imported product

resulting from a measure does not necessarily imply that this measure accords less fa-vourable treatment to imports if the detrimental effect is explained by factors or circum-stances unrelated to the foreign of the product…” (emphasis added). WTO AppellateBody Report, US—Clove Cigarettes, above n.16, fn.372.




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volume.111 In the latest dispute concerning GATTArticle III:4, the AB explained thatthe determination of “no less favourable treatment” must include a determination ofthe existence of “genuine relationship between the measure at issue and its adverseimpact on competitive opportunities for imported products versus like domestic pro-ducts”.112 So, according to a reading of the Thailand—Cigarettes (Philippines) ABruling, an examination of causation between detrimental impact and measure(s) atissue is needed at most, although, if read literally, it might put more burdens ofproof on the complaining Member. And according to the understanding of the ABin US—Clove Cigarettes, the AB in Thailand—Cigarettes (Philippines) had “eschewedan additional inquiry as to whether such detrimental impact was related to the foreignorigin of the products or explained by other factors or circumstances”.113 If one readsDominican Republic—Import and Sale of Cigarettes closely, one could see that the ABreport for that dispute was correctly understood by the AB in Thailand—Cigarettes(Philippines) and later inUS—Clove Cigarettes. The most powerful reason is the appli-cation of the quote inDominican Republic—Import and Sale of Cigarettes itself. TheABheld that Dominican Republic’s measure did not cause the detrimental effect sufferedby Honduran cigarettes because that harm can be “explained by the fact that the im-porter of Honduran cigarettes has a smaller market share than two domestic produ-cers”.114 It is quite clear that the AB did not have regulatory objective considerationsinmindwhen it said“detrimental impactwas… explainedbyother factors andcircum-stances” in Dominican Republic—Import and Sale of Cigarettes. As a result, inserting aregulatory objective into the “no less favourable treatment” analysis has no basis inGATTArticle III:4 jurisprudence. As to the speculation that the analytical frameworkof “no less favourable treatment” in GATT Article III:4 might incorporate consider-ation of policy objectives as an excuse for detrimental impact on imports,115 it isclear that the AB has rejected that position in the above-mentioned footnote in US—Clove Cigarettes.51. It is clear so far that the AB does not want to re-introduce the pre-WTOGATT

Article III “aim and effects” test of “like products” into both GATTArticle III:4 andTBTArticle 2.1; then if the AB does not want to introduce the new interpretation of“no less favourable treatment” in TBT Article 2.1 which requires a consideration ofregulatory objectives into GATTArticle III:4, it appears that the obvious discrepancy

111 Ibid.112 WTO Appellate Body Report, Thailand—Customs and Fiscal Measures on Cigar-

ettes from the Philippines (Thailand—Cigarettes (Philippines)), WT/DS371/AB/R, adopted 15 July 2011, para.134.

113 WTO Appellate Body Report, US—Clove Cigarettes, above n.16, fn.372.114 WTO Appellate Body Report, Dominican Republic—Measures Affecting the Im-

portation and Internal Sale of Cigarettes (Dominican Republic—Import and Saleof Cigarettes), WT/DS302/AB/R, adopted 19 May 2005, para.96.

115 Weihuan Zhou, above n.101, 1087, 1091, 1092.




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between TBT Article 2.1 on the one hand and GATT Article III:4 (and even GATTArticle III:2) on the other hand, will remain until legislative action is taken.

III.B. Meaningless development?

52. Since there is noway to eliminate the discrepancy due to the structural defect in theTBTAgreement, if the discrepancy between the interpretation of TBTArticle 2.1 andGATTArticle III:4 is created and maintained so as to allow the two provisions to bestachieve their objectives, it has to be accepted. As this part will show, however, TBTArticle 2.1, as it is interpreted now, cannot possibly play any real role in trade disputeswhereGATTArticle III:4might be concerned.Nomatter how hard the panels and theAB have tried to interpret TBT Article 2.1 so as to make it achieve the desirableoutcome, the painful twists in and the final niceties of the interpretative workwouldn’t be appreciated because it is of no practical use.

53. The TBT Agreement is usually considered lex specialis, as compared with theparts of the GATT Agreement, overlapping with it, which are often considered as lexgeneralis. As the WTO judiciary sees it, the second recital of the TBT Agreementmay be read to suggest that the TBT Agreement is a “development” or a “stepforward” from the disciplines of the GATT Agreement.116 The AB also makes itclear that the two agreements overlap in scope and have similar objectives.117 Statedin another way, the second recital indicates that the TBT Agreement expands on thepre-existing GATT disciplines.118 It appears that the WTO judiciary accepts that theTBTAgreement is lex specialis while the GATTAgreement is lex generalis.

54. As generally accepted, lex specialis excludes the application of lex generalis.119

However, this is not necessarily true in the WTO. Particularly with regard to the rela-tionshipbetweenTBTArticle 2.1 andGATTArticle III:4, it is not the case at all. Firstly,there is no clear language in either the TBTor theGATTAgreement to dictate that theapplication of the TBT Agreement excludes the application of the GATTAgreementwithin their overlapping scope. Secondly, in US—Gasoline, it is obvious that thereexisted an TBTArticle 2.1 issue, but the Panel, and later the AB, chose not to litigateunder TBT Article 2.1, but under GATT Articles III and XX.120 Regardless of thereason for the arrangement, it does indicate that the applicability of TBT Article 2.1does not exclude the application of GATTArticle III. On the contrary,US—Gasoline,and a number of later disputes in which national treatment issues arose both under

116 WTO Panel Report, US—Clove Cigarettes, above n.11, para.7.112.117 WTO Appellate Body Report, US—Clove Cigarettes, above n.16, para.91.118 Ibid.119 C. Wilfried Jenks, The Conflict of Law-making Treaties, 30 British YBIL (1953),

401, 425–427; Joost Pauwelyn, Conflict of Norms in Public International Law:HowWTO Law Relates to other Rules of International Law (2003), 212.

120 Robert E. Hudec, above n.88, 644.




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GATTArticle III andTBTArticle 2.1,were only decidedunderGATTArticle III, withGATTArticleXXas anexceptionprovision.Lastly, because theABstated inUS—TunaII (Mexico) that “it would have been necessary for the Panel to address Mexico’s claimunder theGATT1994 given the Panel foundnoviolation underArticle 2.1 of theTBTAgreement”, it is clear that GATT provisions remain relevant to the analysis under theTBTAgreement.121 In US—Clove Cigarettes, the AB also said that “technical regula-tions are in principle subject not only to Article 2.1 of the TBT Agreement, but alsoto the national treatment obligation of Article III:4 of theGATT1994, as ‘laws, regula-tions and requirements affecting he internal sale, offering for sale, purchase, transpor-tation, distribution or use’ of products”.122 It is obvious that, even if the disputedregulatory measures had survived TBTArticle 2.1, it does not mean they would havebeen exempted from being scrutinized under GATT Article III:4 and GATT ArticleXX.123 This is in conflict with the belief that lex specialis excludes the application oflex generalis. In such case, there exists a danger of conflict between TBT Article 2.1and GATTArticle III:4, with GATTArticle XX as an exception provision.55.Logically, there are twodirections of further development fromtheGATTAgree-

ment with regard to the obligations disciplining technical regulations. Focusing onGATT Article III:4 and GATT Article XX together as a balanced national treatmentobligation, a further development could either take a more pro trade liberalization dir-ection by tightening the obligation, or go the otherway givingmore respect to domesticregulatory autonomyby loosening the obligation.Themessagewe can discern from theTBT Agreement is confusing. On the one hand, there exist the least trade-restrictiveobligation and the harmonization obligation, which do not exist in the GATTAgree-ment, independent of the national treatment obligation.124 On the other hand, regu-latingMembers can justify their trade-restrictive measures with more policy objectivesand be relieved of the burden of proving the legitimacy of those policy objectives andtheir real relationship with trade-restrictive measures.125 As regards the direction of

121 WTO Appellate Body Report, US—Tuna II (Mexico), above n.22, para.405.122 WTO Appellate Body Report, US—Clove Cigarettes, above n.16, para.100.123 As it was suggested by one commentator that there shall be a division of work between

GATTArticles III:4 and XX on the one hand and TBTArticle 2.1 on the other hand,with the former only disciplines de jure national treatment obligation violation whilethe former only discipline de facto national treatment obligation violation. See RobertE. Hudec, above n.88, 622. However, this suggestion would apparently not beadopted by the AB, given the quote from theUS—Tuna II AB ruling. More import-antly, this division of work will leave some types of de facto national treatment obliga-tion violations—other laws which are not technical regulations for instance—undisciplined, since TBT Article 2.1 only disciplines technical regulations whichare de facto in violation of national treatment obligation while GATT Articles III:4and XX will not touch de facto national treatment obligation violations.

124 Michael Ming Du, above n.96, 274.125 Ibid., 279.




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development of a single article, TBTArticle 2.1 may not necessarily reflect the confus-ing relationship between the TBTAgreement and the GATTAgreement, but it is ne-cessary to bear inmind the complicated relationship between the two agreementswheninterpreting TBTArticle 2.1. Fortunately, as regards the direction TBTArticle 2.1 hastaken in the trilogy, all evidence points to the loosening of the obligation. It is true thatthe first draft of TBTArticle 2.1 and the structure of the TBTAgreement suggests thatthe regulating Members are deprived of the affirmative defense with legitimate regula-tory objectives if they have violated national treatment obligation under TBT Article2.1. However, the interpretation of “no less favourable treatment” in TBT Article2.1 not only introduced the domestic policy justifications onmore legitimate objectivegrounds,126 but also imposed a new burden upon complainingMembers to prove thatthe objective justifications should fail.

56. On the other hand, it is worth noting that, because the AB suggested in US—Tuna II (Mexico) that the legitimate objectives under TBT Article 2.2 should beguidedor informedby theother legitimate objectives listed in the sixth and seventh reci-tals of the TBT Agreement preamble and in other provisions of other covered agree-ments,127 the AB seems quite cautious about expanding the scope of legitimateobjectives.128At least, itwill be reluctant to include thehighly controversial labour stan-dards or human rights objectives. Otherwise, technical regulations would be turnedinto a proxy of interference with sovereignty in very sensitive areas. Although in thetrilogy, the panels and the AB simply assumed the legitimacy of the technical regula-tions at issue under TBT Article 2.1, the scope of legitimate objectives under TBTArticle 2.1 shares the same scope of legitimate objectives under TBT Article 2.2.But, compared with GATTArticle XX, it remains a fact that TBTArticle 2.1 providesa larger scope in terms of legitimate objectives than TBTArticle 2.2 does.

57. So, after so much trouble has been taken in the interpretation, TBTArticle 2.1should be understood as developing in thedirectionof loosening thenational treatmentobligation.This hard-earned loosening bywayof an abrupt and awkward insertion into

126 As mentioned earlier, there was no discussion of the “legitimacy” of objectives of thetechnical regulations taken. The legitimacy of the objectives seems to have beenassumed by the AB. The only “legitimacy” discussion is about whether the detrimen-tal impact “stems exclusively from a legitimate regulatory distinction”, where “legit-imacy” was thought to be dependent on the “even-handedness” of the technicalregulations. No discussion about the “legitimacy” of the objectives exists. See,WTO Appellate Body Report, US—COOL, above n.36, para.271.

127 WTO Appellate Body Report, US—Tuna II (Mexico), above n.22, para.313.128 While recognizing “providing consumer informationonorigin” as a legitimate object-

ive, which is not listed in TBT Article 2.2 TBT or anywhere in the WTO coveredagreements, the AB rejected the ejusdem generis principle in US—COOL as a limitto the scope of the legitimate objectives. See WTO Appellate Body Report, US—COOL, above n.36, paras.443–444. However, this does not necessarily suggestthe AB will engage in very liberal expansion of scope for legitimate objectives.




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TBTArticle 2.1, however, will conflict with GATTArticle III:4 with Article XX as anexception provision in certain circumstances, and will not affect any dispute over na-tional treatment violations through technical regulations simply because the applica-tion of TBTArticle 2.1 will not exclude the application of its GATT counterpart.58. In all three disputes of the trilogy, the AB found that the technical regulations at

issue violated the national treatment obligation underTBTArticle 2.1. The uselessnessofTBTArticle 2.1with its new interpretationhas thus not been revealed. If in anyof thethree disputes, theABwould have found that the technical regulation at issuewas not inviolation of TBT Article 2.1, it would be necessary to scrutinize the same regulationunder the similar national treatment obligation contained in GATT Article III:4 andArticle XX again, as required by the AB in US—Tuna II (Mexico).129 In such a case,it is very likely the Panel and the AB would find that the disputed technical regulationis in violation of GATTArticle III:4 and not exempted by GATTArticle XX when, atleast, one of the two following possible scenarios is present. Thefirst possible scenario isthat the disputed technical regulation is not in violation of the national treatment ob-ligation under TBTArticle 2.1 because it has a legitimate objective recognized by theTBTAgreement, butwhich is not included in the listed objectives inGATTArticleXX.The secondpossible scenario is that a complainingMember is unable tomeet its burdenof proof underTBTArticle 2.1 as it is interpreted, and the regulatingMember is unableto establish an affirmative defense under GATT Article XX to justify its violation ofGATTArticle III:4 once the burden of proof has shifted to it under theGATTnationaltreatment obligation. As the scope of TBTArticle 2.1 is completely within the scope ofGATT Article III:4 in terms of domestic measures, it is impossible for any technicalregulation to undergo only the national treatment check under the TBT Agreement.Every technical regulation has to go through the double check under both TBTArticle 2.1 and GATT Article III:4 with GATT Article XX providing exceptions.Either one of these two scenarios could possibly arise in the double check. A risk forthese TBT Article 2.1 consistent regulations to fail GATT Article III:4 and ArticleXX does exist. This will create a conflict between TBT Article 2.1, on the one hand,and GATTArticle III:4 with Article XX, on the other.59. The outcome of this possible conflict is obvious. The GATT Agreement will

prevail and the result of TBTArticle 2.1’s application will be nullified even if the ap-plication ofTBTArticle 2.1 is not outright excluded. Any technical regulation that vio-lates theGATTnational treatment obligation will need to be brought into conformity,even if thedisputed regulation is upheldunderTBTArticle 2.1.Toavoid conflicts, “Lexspecialis derogat legi generali” requires that the application of lex specialis excludes the ap-plication of lex generalis in the event that lex specialismodifies or nullifies lex generalis.130

The outcomeof the conflict betweenTBTArticle 2.1 andGATTArticle III:4 is a result

129 WTO Appellate Body Report, US—Tuna II (Mexico), above n.22, para.405.130 C. Wilfried Jenks, above n.119, 425–427.




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of a failure to complywith this canon.Thepotential conflict between lex specialis and lexgeneralis is not avoidable in the case of conflict between TBT Article 2.1 and GATTArticle III:4. As a practical result in dispute settlement, the niceties of the developmentof TBTArticle 2.1 in the twisted and complicated efforts of interpretation will be en-tirely unable to relieve any technical regulation from themore stringent scrutiny underthe GATT national treatment obligation.

60. Hypothetically, in any dispute where neither scenario occurs, TBT Article 2.1may provide national treatment scrutiny at the same level as or stricter than that pro-vided under GATTArticle III:4 and Article XX. If TBTArticle 2.1 were to provide anational treatment obligation at the same level as GATTArticle III:4 and Article XX,technical regulations would inevitably be accorded the same legal status under boththe TBT and GATT national treatment obligations. TBTArticle 2.1 becomes a repe-tition of Article III:4 and GATTArticle XX, with a smaller scope. As to dispute settle-ment, it will notmatter which option is applied: TBTArticle 2.1 orGATTArticle III:4with Article XX. This is, at best, to be thought of as another relationship between lexspecialis and lex generalis, which may be called “accumulation”.131 In the event of “ac-cumulation”, lex specialis is usually an elaboration, instead of a development, modifica-tion or nullification, of lex generalis. Therefore, they won’t generate different outcomesif both are applied to the same case.132 This seems to be good news for TBTArticle 2.1.However, it still fails to provide real grounds for the usefulness of TBTArticle 2.1. Al-though some have argued that the TBT Agreement could be thought of as a moredetailed and precise elaboration of the tests under GATT Article III:4 and ArticleXX,133 this opinion cannot withstand a closer examination. Both TBT Article 2.1(with creative interpretation) andGATTArticle III:4 (withArticleXX) are comprehen-sive national treatment obligations. TBTArticle 2.1 does not elaborate in places whereGATTArticle III:4 with Article XX only provide general or abstract guidelines. Exceptfor the fact that TBTArticle 2.1 applies to a smaller scope, they are simply repetitive.

61. If, in some other hypothetical circumstances, TBTArticle 2.1 were to provide amore stringent national treatment obligation than that under GATTArticles III:4 andXX,TBTArticle 2.1 andGATTArticle III:4withArticleXXwill not be in conflict, andTBTArticle 2.1 would acquire independent legal significance. However, as discussedearlier, this is not likely to happen. As interpreted in the trilogy, TBTArticle 2.1 pro-vides more policy objectives as justifications for trade-restrictive technical regulationsand places a greater burden of proof on complaining Members than under GATTArticles III:4 and XX. The only possibility is that the national treatment obligationunder TBTArticle 2.1 is more relaxed than that under GATTArticles III:4 and XX.

131 Joost Pauwelyn, above n.119, 161–164.132 Ibid.133 Douglas A. Kysar, Preference for Processes: The process/Product Distinction and the

Regulation of Consumer Choice, 118 Harvard LR (2004), 526, 550.




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62. To sumup, TBTArticle 2.1 seems to be like a vermiform appendix in the face ofGATTArticles III:4 and XX, while the TBTAgreement, as a whole, may be a compre-hensive and meaningful development of the relevant part of the GATT Agreement,though the direction of development is confusing. This vermiform appendix wasuseful to provide the national treatment obligation when non-GATT Parties wouldaccede to the early version of the TBT Agreement before the establishment of theWTO,134 but now, it causes much pain in interpretation and application. Moreover,the painful efforts taken by the Panels and AB are all in vain in terms of practical effect.

IV. Division between TBTArticle 2.1 and TBTArticle 2.263. The least trade-restrictive obligation contained in TBT Article 2.2 is supposed to bedifferent from the national treatment obligation under TBT Article 2.1. According tothe AB in the trilogy, however, both the national treatment obligation and the leasttrade-restrictive obligation under the TBTAgreement must be interpreted in light of do-mestic regulatory objectives. It is natural to suspect that the same analysis, i.e., the consid-erationofpolicyobjectives,woulddetermineboth theoutcomes in twoshould-be-differentdeliberative processes. Upon closer examination, this suspicion becomes real. The “neces-sity” test under TBTArticle 2.2 found its way into the analysis under TBTArticle 2.1 incertain situations, and plays a critical role in the determination of discrimination.

IV.A. Conceptual overlap

64. In order more clearly to present the overlap between the national treatment obliga-tion and the least trade-restrictive obligation, all technical regulations will be dividedinto three groups. The first group includes measures which treat “like products” or dir-ectly competitive products differently according to their origins, with foreign productsbeing treated less favourably. The second group includes measures which differentiate“like products” or directly competitive products based on a certain domestic policy ob-jective and accord them different treatment. The third group includes measures whichare not only origin-neutral but also accord all “like products” or directly competitiveproducts the same treatment in view of domestic policy objectives.65. Measures in the first group are de jure violations of the national treatment obli-

gation under the TBT Agreement. Measures in the first group are restrictive towardimports with a blunt discriminative intent. At the same time, since they don’t haveany real legitimate policy objective, they will automatically violate the least trade-re-strictive obligation if analysed under TBT Article 2.2. As far as measures in the firstgroup are concerned, they violate the national treatment obligation and the leasttrade-restrictive obligationwith a single commonelement: they donot have a legitimatepolicy objective. As discussed in Part II, the legitimacy of policy objectives seems not to

134 William J. Davey, above n.2, 114.




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be an element considered in theTBTArticle 2.1 analysis, but it is literally impossible foran illegitimate objective to justify otherwise discriminative measures, especially whenthe objective is to discriminate against imports. Although de jure discrimination is nolonger common, and thus the overlap it causes between the national treatment obliga-tion and the least trade-restrictive requirement does not pose a real problem to the co-herence of the TBTAgreement, it theoretically still exists.

66.Measures belonging to the second group are not de jure violations of the nationaltreatment obligation. Somemeasures treat all products equally, even from the perspec-tive of domestic policyobjectives, but if the applicationof thesemeasure differs, theyarestill within the second group instead of the third group. Like inUS—COOL, applica-tion of one uniform labelling rule has different practical implications with regard torecord-keeping of the processing history of meat products. Measures in the secondgroup may violate the national treatment obligation if two conditions are met: firstly,the effects of domestic measures prove to be adverse to the competitiveness ofimports; secondly, the adverse effects on imports can’t be explained by legitimatepolicy rationales declared.135 If one domestic measure satisfies both conditions, itmeans that the declared legitimate policy objectives function only as a disguise tocover their true discriminatory nature. For those measures that are in violation of thenational treatment obligation to violate the least trade-restrictive obligation at thesame time, one more condition must be met, which is that the treatment on importsis able to achieve the policyobjective at a higher level than the appropriate level explicitlyor implicitly set by the regulatingMembers. This condition has two variations. One isthat treatment on imports and like domestic products are both able to achieve the policyobjective at a higher level than the appropriate level set by the regulating Members,while treatment of imports is able to achieve the policy objective at a comparativelyhigher level than the level achieved by treatment of like domestic products. Theother is that only treatment of imports is able to achieve the policy objective at ahigher level than the appropriate level set by the regulating Members. Measures thatfall into the second group and satisfy the single condition with two variations ofbeing more than necessary are most common and, therefore, are our primaryconcern when discussing the overlap between the national treatment obligationunder TBTArticle 2.1 and the least trade-restrictive obligation under TBTArticle 2.2.

67. The above single condition for discriminative measures in the second group toviolate the least trade-restrictive obligation, is a novel idea but has its origin in US—COOL and earlier disputes. The “necessity” jurisprudence has seldom questionedwhether the disputed measures are able to achieve a policy objective at the appropriatelevel set by the regulating Member. What is often disputed is whether these measures

135 Of course, the causal relationship between the measures and the adverse impact onimports is a necessary requirement to rule out the possibilities that the adverseimpact is caused by other factors other than the measures at issue. And this require-ment is included in the first condition.




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are more trade-restrictive than is necessary even while achieving the policy objective atthe appropriate level, or whether there is a reasonable alternative that is able to achievethe policyobjective at the same appropriate level with less trade-restrictive effects.US—COOL provides inspiration for asking a different question: would a measure be moretrade-restrictive than is necessary if it were capable of achieving the policy objectiveat a level higher than the appropriate level set by the regulating Member? Abstractlyspeaking, the answer should be yes. There always seems to exist a reasonable alternativewith less trade-restrictive effects. For example, inUS—COOL, the United States couldrelieve producers from keeping records of information not needed for the label.136 Aswill be discussed in the following sections, this new idea has further support in GATTArticle XX jurisprudence besides in US—COOL.68. However, in circumstances where the measures at dispute treat like domestic pro-

ducts in an overly relaxed manner—which can’t possibly contribute to, or even goagainst, the achievement of the policy objective at the appropriate level set by the regulat-ingMember—and treatment of imports is not at issue in terms of the level at which theyare able to achieve their policy objectives,measures in the second group do not satisfy thesingle condition of being more than necessary. That is to say, when discrimination isfound only because treatment of domestic products is not able to contribute to theachievement of the policyobjective at the appropriate level or is not related to the achieve-ment of the policy objective, it will not violate the least trade-restrictive obligation.69. Measures belonging to the third group are origin-neutral and treat all products

equally even when applied from the perspective of domestic policy objectives. Theyonly become questionable in terms of both the national treatment obligation and theleast trade-restrictive obligation when the level of achievement of certain policy objec-tives is set to be extremely high. It can be imagined that, for example, by imposing anextremely high technical standard, the market for a certain group of products disap-pears, but only imports which have taken the lion’s share in domestic market sustainsubstantial losses. Also in such hypothetical situation, the high level of achievementset for technical regulations can be reasonably suspected to be more than necessary.An examination of the appropriate level of achievement of the policy objective iscapable of finding a double violation. It has to be admitted that in disputes where im-portant non-trade values, such as human life and health are concerned, panels and the

136 TheUnited States government, however, plans to require retailers to printmore infor-mation on the labels. See PeterWoriskey,U.S.Meat Labels toDetail Animal’sOrigin,The Washington Post, 24 May 2013 (www.washingtonpost.com/business/economy/us-meat-labels-to-detail-animals-origin-canada-mexico-raise-concern/2013/05/24/ca1091c0-c47f-11e2-914f-a7aba60512a7_story.html. This way, theUS labelling measure shall be deemed to be aimed at the proper level of achievement.However, another interesting question arises. That is whether Members can changethe proper level of achievement of their measures like the United States is going todo in US—COOL.




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ABhave been very reluctant to second-guess the level of achievement for domesticmea-sures set by regulating Members.137 The AB, however, has left room in dispute settle-ments for questioning the appropriate level of the achievement for domestic measureswhen non-trade values that are relatively unimportant are concerned.138 If the WTOjudiciary determines that the appropriate level of achievement for measures at issueshould not be too high, a less trade-restrictive and reasonably available alternative,able to achieve the policy objective at the appropriate level that is lower, can probablybe found. Thus, these measures shall become more than necessary. Once a measureis held by the WTO judiciary to have tried to realize an inappropriately high level ofachievement, it is probable that such a measure would violate the national treatmentobligation as well. After all, the detrimental effects on imports are quite obvious.The market shares lost by imports will probably be taken by domestic productswhich may have been regarded as only indirectly competitive or not in a competitiverelationship with imports in the past. If the WTO judiciary is willing to expand thescope of products that are competitive in special circumstances, measures setting avery high level of achievement of policy objectives shall be found to violate the nationaltreatment obligation. Furthermore, the detrimental effects on imports caused by do-mestic measures aimed at realizing a level of achievement more than appropriate canhardly be justified by either the exceptions in GATTArticle XX or the “rights to regu-late” inTBTArticle 2.1with its new interpretation.However, it is not clearwhether theWTO judiciary would expand the scope for competitive products that far. Thus theoverlap between the national treatment obligation violation and the least trade-restrict-ive obligation violation created bymeasures belonging to the third group has not comeinto existence in a strictly legal sense.

70. At this stage of the development of the WTO jurisprudence, however, it is tooeasy to prove measures in the first group are discriminative and simultaneously morethan necessary, but it is too difficult to prove that measures in the third group are dis-criminative and simultaneously more than necessary. Only measures in the secondgroup merit a comprehensive probe in the case law.139

IV.B. The trilogy experience

71. In the trilogy, although there has been no final finding of the least trade-restrictiveobligation violation under TBTArticle 2.2,140 technical regulations that belong to the

137 Alan O. Sykes, above n.86, 416–417.138 Ibid.139 Not many types of measures in the second group will simultaneously violate both TBT

Articles 2.1 and 2.2, but the overlap between TBTArticles 2.1 and 2.2 is still importantin terms of WTO jurisprudence, especially in terms of the important “necessity” test.

140 In US—Clove Cigarettes, the Panel found that Indonesia failed to meet its burden ofproof that the ban on clove cigarettes exceeded the level of protection intended by theUnited States, or that the ban did not materially contribute to its policy objective, or




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second group remain capable of triggering both the national treatment obligation vio-lation and the least trade-restrictive obligation violation.As it is clear that the least trade-restrictive requirement under TBTArticle 2.2 does not incorporate any element of thedetermination of the national treatment obligation violation in its stated form, thissection will focus on whether theWTO judiciary has incorporated “necessity” analysisoriginally under TBTArticle 2.2 when applying the element of “stem[ing] exclusivelyfrom a legitimate regulatory distinction” under TBTArticle 2.1 in the trilogy.72. InUS—CloveCigarettes, theABdrew the conclusion that theUSmeasure at issue

was not “even-handed” based on a comparison between clove cigarettes (primarilyimported products which are banned) andmenthol cigarettes (primarily domestic pro-ducts which are not banned) from the perspective of regulatory objective (reducingyouth smoking). The AB held that the two groups of products had the same character-istics (contained flavours that are attractive to young people) from the regulatory per-spective, and that menthol cigarettes should be treated the same as clove cigarettes ifthe United States really wanted to achieve its announced policy objective.141 Thus,the “even-handedness” test in this dispute requires that imports and like domestic pro-ducts be treated equally even in the policy perspective. This test will warrant afinding ofdiscriminationwithin themeaning ofTBTArticle 2.1when treatment of like domesticproducts is so favourable that it is not possible for treatment of domestic products tocontribute to the achievement of the policy objective. The focus of analysis is on thetreatment on like domestic products. In other words, the test of “even-handedness”inUS—Clove Cigarettes was in line with one version of the test of “arbitrary or unjus-tifiable discrimination” in one important dispute which will be discussed in paragraph79of this article and alsowith the test of “mak[ing] effective in conjunctionwith restric-tions on domestic production or consumption”underGATTArticle XX(g). As regardsthe questionwhether the less favourable treatment on imports is necessary or not, thereis no serious analysis. It was quickly but implicitly accepted as necessary to achieve thetechnical regulatory objective. It is clear that no chance existed for a “necessity” analysisunder the TBTArticle 2.1 inUS—Clove Cigarettes. The possible overlap between the

that there was a reasonable alternative which was less trade-restrictive. The Panel’sfindings concerning TBT Article 2.2 were not appealed, so the AB did not expressits opinion on this point. In US—Tuna II (Mexico), the Panel held the UnitedStates violated TBT Article 2.2 by failing to impose a less trade-restrictive measurewhich could achieve the same level of protection of dolphin, but the AB reversedthis finding by stating the alternative measure could not achieve the level of objectivethat the United States measure could achieve. In US—COOL, the Panel held theUnited States violated TBT Article 2.2 by not being able to fulfil the objectivethrough its technical regulation, but the AB held that the measure at issue was notrequired to completely achieve its objective and the plaintiff didn’t establish thatthere was a less trade-restrictive measure which was equivalent in other aspects tothe US measure.

141 WTO Appellate Body Report, US—Clove Cigarettes, above n.16, para.225.




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national treatment obligation under TBTArticle 2.1 and the least trade-restrictive ob-ligation under TBTArticle 2.2 was not revealed.

73. In US—Tuna II (Mexico), the AB, which consisted of three differentmembers,142 quoted faithfully from theUS—CloveCigarettesAB report on the require-ment of “even-handedness”.143 The AB did discuss whether the measure at issue was“calibrated”,144 but that was not a new test. In application, the AB drew the conclusionthat theUS technical regulationwas not “even-handed”because it failed to address “therisks to dolphins arising from different fishing techniques in different areas of theocean”.145 To be more specific, in the AB’s opinion, the US technical regulation“fully” (emphasis original) addressed the adverse effects on dolphins suffered from“setting on dolphins” fishing methods in the ETP, but did not address adverseeffects on dolphins of other fishing techniques outside the ETP.146 In this dispute,the protection of dolphins was assumed to be legitimate when the technical regulationwas scrutinized underTBTArticle 2.1. And there is no negativefinding concerning theappropriate level of protection afforded to dolphins affected by the setting-on-dolphinsmethod in the ETP. The protective level afforded to dolphins affected by other fishingtechniques outside the ETP was found to be lower than that afforded to dolphinsaffected by the setting-on-dolphins method in the ETP. As a result, it is impossiblefor any part of the technical regulation to be more than necessary to achieve itspolicy objective. Just as in US—Clove Cigarettes, US—Tuna II (Mexico) focused onthe too favourable treatment on domestic products instead of on whether treatmenton imports is “more than necessary” or not. As a result, US—Tuna II (Mexico) doesnot reveal the possible overlap between the national treatment obligation under TBTArticle 2.1 and the least trade-restrictive obligation under TBTArticle 2.2, either.

74. US—COOL is the most illuminating dispute in terms of the relationshipbetween TBTArticles 2.1 and 2.2. Two of the three members of the AB hearing thiscase were also members hearing US—Clove Cigarettes.147 After having repeated thatthe WTO judiciary should examine the particular circumstances to determinewhether the different treatments on imports and like domestic products are “even-handed”,148 however, theAB substituted the test of “even-handedness”with “arbitrary

142 Yuejiao Zhang, as presiding member, Ujal Singh Bhatia and Thomas R. Graham sitfor US—Tuna II (Mexico), while Shotaro Oshima, as presiding member, RicardoRamirez—Hernández and Peter Van den Bossche sit for US—Clove Cigarettes.

143 WTO Appellate Body Report, US—Tuna II (Mexico), above n.22, para.225.144 Ibid., para.282.145 Ibid., para.298.146 Ibid., para.297.147 Ujal Singh Bhatia, Ricardo Ramirez-Hernández and Peter Van denBossche sit forUS

—COOLwithUjal Singh Bhatia as the presidingmember, Ujal Singh Bhatia had alsosit for US—Tuna II (Mexico) and Ricardo Ramirez- Hernández and Peter Van denBossche had also sit for US—Clove Cigarettes.




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or unjustifiable discrimination”.149 According to the AB in US—COOL, if the detri-mental impact on imports is arbitraryor unjustifiable, the technical regulation at issue isnot even-handedly designed or applied or does not “stem exclusively from a legitimateregulatory distinction”. This “arbitrary or unjustifiable discrimination” test was a newone under the TBTAgreement, but it has a long history in the GATTArticle XX jur-isprudence. The relevant GATT Article XX jurisprudence will be discussed in moredetail in the next section. For now, it is only necessary to bear in mind that “arbitraryor unjustifiable discrimination” had been clearly applied to refer to measures that wereaimed to achieve the policy objective at a higher level than the appropriate level set byregulating Members, although it had also been interpreted to mean something else.75. The facts of US—COOL are also different from facts of the previous two dis-

putes. In the previous two disputes, the part of the technical regulation concerning do-mestic products was more favourable in terms of market competition but could notcontribute to the achievement of the regulatory policy objectives at the level set bythe regulating Members. They even went against the achievement of the regulatorypolicy objectives. In US—COOL, all parts of the technical regulation contributed tothe regulatory objective, but the part concerning imports was able to achieve the regu-latory objective at a higher level. Therefore, the logic employed in the previous two dis-putes was not applicable inUS—COOL. To prove discrimination against imports, onecannot argue that a part of the overall technical regulation—which happens to be thepart imposed on domestic products—is not relevant or not able to contribute to theachievement of regulatory objectives at the appropriate level. Rather, one can onlyargue that a part of the overall technical regulation—which happens to be the partimposed on imports—is aimed to achieve regulatory objectives at a too high level.The AB clearly saw the difference between US—COOL and the other two disputesin the trilogy and held that the regulatory requirements imposed on imports in US—COOLwere disproportionately high as compared to the level of achievement appro-priate for the policy objective.150

148 WTO Appellate Body Report, US—COOL, above n.36, para.341.149 Ibid.150 The AB stated in US—COOL:

The informational requirements imposed on upstream producers under the COOLmeasureare disproportionate as compared to the level of information communicated to consumersthrough the mandatory retail labels. That is, a large amount of information is tracked andtransmitted by upstream producers for purposes of providing consumers with informationon origin, but only a small amount of this information is actually communicated to consu-mers in an understandable manner, if it is communicated at all. Yet, nothing in the Panel’sfindings or on the Panel record explains or supplies a rational basis for this disconnect. There-fore, we consider the manner in which the COOL measure seeks to provide information toconsumers onorigin, through the regulatory distinctions described above, tobe arbitrary, andthe disproportionate burden imposed on upstream producers and processors to be unjustifi-able.




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76. Now it is clear that the fact that treatment on imports was aimed at a too high alevel was the reason why the AB held that the US technical regulation inUS—COOLviolatedTBTArticle 2.1. As has been discussed in the previous section, if the treatmentof imports is able to achieve the policy objective at a higher level than the appropriatelevel set by regulating Members, it also fails the “necessity” test.

77. What is regrettable is that the AB could not make a finding of whether the fouralternatives proposed by the complaining Members were less trade-restrictive whilebeing able to contribute to the achievement of the regulatory objective at the samelevel as the disputed regulation, taking account of the risks non-fulfilment wouldcreate, and being reasonably available.151 The reasons why AB was unable to makesuch a finding include the lack of facts concerning the degree of contribution madeby theUS—COOLmeasure, the degree of contribution that could bemade by the pro-posed alternatives and thedegree of trade-restrictiveness of the proposed alternatives.152

Thus, thepossibilityof afinding anTBTArticle 2.2 violationwasnotdenied. It is ratherstrange that the AB could notmake a determination in this regard because it found thattheUS labelling requirementswere disproportionately too burdensome for the little in-formation communicated to the consumers.153 Logically, since the requirementsimposed on imports in this dispute were disproportionately high compared to thelevel of achievement appropriate for the policy objective,154 it is reasonable that thereexists a less burdensome alternative which can achieve the same level of fulfilment.

IV.C. The GATT experience

78. After the circulation of the first two AB reports of the trilogy,Weihuan Zhou com-mented that “although the AB did not make reference to the normative approach to‘arbitrary or unjustifiable discrimination’ under Article XX Chapeau, its assessmentsof the policy claims (under TBTArt 2.1) raised in these cases have essentially followed

See ibid., para.347.

151 Ibid., paras.476, 491.152 Ibid., paras.482–490.153 TheAB seemed to define two close but different policy objectives when discussing the

discrimination issue and the necessity issue. When discussing the discriminationissue, the AB paid attention to the amount of information on the label. It concludedthat the US Measures concerning imports imposed more requirements than was ne-cessary considering the amount of information needed to appear on the label. Seeibid., para.347. However, when discussing the necessity issue, the AB paid attentionto the percentage of themeat products which would be labelled as required. It did notconclude that the treatment on imports imposed more requirements than necessary.Instead, it concluded that the measure made some contribution to the policy object-ive, though it could not know the degree of the contribution based on the incompletefacts found by the Panel. See ibid., para.476.

154 Ibid., para.347.




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that approach”.155 This comment is very interesting, because it turns out to be a seem-ingly precise prediction rather than an accurate summary of the first two disputes of thetrilogy, and also because it accidentally helps to identify “necessity” as an analyticalelement in the analysis of “stem[ming] exclusively from a legitimate distinction” in acertain circumstance.79. In Brazil—Retreaded Tyres, the AB viewed “arbitrary or unjustifiable discrimin-

ation” as that “the alleged rationale for discriminating does not relate to the pursuit of orwould go against the objective that was provisionally found to justify ameasure under aparagraph of Article XX”.156 In application, to determine whether “the alleged ration-ale for discriminating… [would] relate to the pursuit of or would go against the object-ive”, the analysis focusedon the two exceptions to the banof re-treaded tyres.These twoexceptions both resulted in amore favourable treatment on domestic re-treaded tyres interms of market competition, and the AB held that they bore no relationship to the le-gitimate objective and that they even went against it.157 As discussed earlier, the appli-cation of the “even-handedness” test focused on the treatment of domestic productsthat was more favourable in terms of market competition and did not contribute tothe achievement of the regulatory objective or even went against it. The “arbitrary orunjustifiable discrimination” test in Brazil—Retreaded Tyres was in line with the ana-lysis of the “even-handedness” test in the first two disputes of the trilogy and inGATT Article XX(g) jurisprudence. It can be provisionally accepted, in light ofBrazil—Retreaded Tyres, that because the “even-handedness” test the AB employedin the first two disputes of the trilogy resembles the test of “arbitrary or unjustifiablediscrimination” in application, the AB followed the approach to “arbitrary or unjusti-fiable discrimination” underGATTArticle XX in thefirst two disputes of the trilogy. Ifthis summary is conclusive for all the three disputes in the trilogy, it will be impossiblefor the national treatment obligation under TBTArticle 2.1 and the least trade-restrict-ive obligation under TBTArticle 2.2 to overlap.80. Brazil—Retreaded Tyres, however, only involved one hypothetical situation pre-

viously depicted in the second group of measures which did not meet the single condi-tion for discriminative measures in the second group to constitute more than necessarymeasures.Themore favourable treatment afforded todomestic productswas not relatedto, or went against, the achievement of the policy objectives, whereas the less favourabletreatment afforded to importswas at least related to the achievement of the policyobjec-tives would. In such a situation, the overall measures or any part of the measures werenot found to be more than necessary to achieve the policy objectives. If the situation

155 Weihuan Zhou, above n.101, 1100.156 WTO Appellate Body Report, Brazil—Measures Affecting Imports of Retreaded

Tyres (Brazil — Retreaded Tyres), WT/DS332/AB/R, adopted 17 December2007, para.226.

157 Ibid., paras.228, 246.




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were different, however,where themore favourable treatment afforded todomestic pro-ducts relates to the achievement of the policy objectives, while the less favourable treat-ment afforded to imports is capable of achieving the policy objectives at a higher levelthan the appropriate level, the analysis of “arbitrary or unjustifiable discrimination”would focus on the treatment on imports and become a “necessity” analysis.

81. In US—COOL, the AB stated: “we must examine, based on the particular cir-cumstances of this case, whether these distinctions are designed and applied in aneven-handed manner, or whether they lack even-handedness, for example, becausethey are designed or applied in a manner that constitutes arbitrary or unjustifiable dis-crimination.”158 The “prediction” that the AB would follow the “arbitrary or unjusti-fiable discrimination” approach when considering regulating Members’ policyobjectives seems to have come true. The “prediction”, however, is also only literallyprecise for the commentator who “made” the “prediction” understood the test of “ar-bitrary or unjustifiable discrimination” in a way as embodied in Brazil—RetreadedTyres. The AB actually employed it in a different way in US—COOL.

82. If one looks back at the history of the GATTArticle XX jurisprudence beyondBrazil—Retreaded Tyres, a different version of analysis of “arbitrary or unjustifiable dis-crimination” employed by the AB inUS—COOL is apparent in the case law. InUS—Gasoline, the imported gasoline had to be subjected to a single statutory baseline limit-ing pollutantswhile domestic refinerswere allowed tohave individualizedbaseline.TheAB held this constituted “unjustifiable discrimination”159 because the United Statesdid not explore other adequate means that were less burdensome or costly for foreignrefiners.160 In this dispute, it is obvious that the analysis of “unjustifiable discrimin-ation” focused on the possibility of the existence of reasonable alternatives that couldachieve the policy objectives with less trade-restriction. This is also the typical “neces-sity” test.

83. Case law on “arbitrary or unjustifiable discrimination” among imports can alsohelp to illustrate this point. InUS—Shrimp, theABdidnot discuss the favourable treat-ment of imported shrimp from certified countries. The analysis focused on the less fa-vourable treatment of imported shrimp from uncertified countries. The AB held thatthe United States’ measure constituted “unjustifiable discrimination” under GATTArticleXXchapeaubecauseuncertifiedMemberswere required to adopt the same regu-latory program while a comparable regulatory program might have achieved the same

158 WTO Appellate Body Report, US—COOL, above n.36, para.341.159 TheABdid not hold that theUnited States’measurewas “arbitrary discrimination” at

the same time because the AB had not concluded that “arbitrary discrimination” and“unjustifiable discrimination” were equivalent, but it did think “arbitrary discrimin-ation” and “unjustifiable discrimination” were overlap to a considerable degree. SeeWTO Appellate Body Report, US—Gasoline, above n.57, 25.

160 Ibid., 27.




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policy objective.161 The AB also held that the US measure constituted “arbitrary dis-crimination” on similar grounds, finding that a single, rigid and unbending require-ment might not be appropriate for the conditions in the uncertified exportingMembers.162 US—Shrimp does not concern discrimination between domestic pro-ducts and imports, but it illustrates that more burdensome treatment which is not “ne-cessary” on imports from certain origins constitutes “arbitrary or unjustifiablediscrimination”.84.US—Gasolineprovides a perfect example ofwhere a part of the disputedmeasure

exceeded what is appropriate for the achievement of policy objectives. In disputes likethis, the analysis and application of “arbitrary and unjustifiable discrimination” do notexamine whether the treatment of domestic products relates to or even goes against theachievement of policyobjectives. Instead, the analysis focuses onwhether the treatmentof imports (and all products in a sense) is more than what is necessary to achieve thepolicy objectives. The test that this dispute actually employed was the “necessity”test, which compares the disputed measure with an alternative. It is in such a sensethat theABexplicitly introduced the test of “arbitrary andunjustifiable discrimination”into US—COOL. It is in the light of US—Gasoline that US—COOL can serve as anexample to illustrate that the “arbitrary or unjustifiable discrimination” test incorpo-rated into TBT Article 2.1 is actually a “necessity” test, and therefore there is overlapbetween the national treatment obligation violation and the least trade-restrictive obli-gation violation under the TBTAgreement.

V. Applicability of GATTArticle XX to TBTArticle 2.185. The applicability of GATT Article XX is relevant to the TBT Agreement on theissue of how to strike a balance between trade liberalization and domestic regulatory au-tonomy. Regrettably, neither the Panels nor the AB directly discussed this questionwhether GATT Article XX was applicable to TBT Article 2.1 in the trilogy becausethe United States did not invoke GATT Article XX as an affirmative defense. Evenmore regrettably, although the trilogy has undoubtedly touched upon this issue, themessages sent out by the AB in the trilogy concerning this issue are unclear and evencontradictory. On the one hand, the purposive interpretation approach adopted bythe AB in the trilogy and parts of the reasoning details can be used to support the ap-plication of GATTArticle XX to TBTArticle 2.1. On the other hand, not only someother parts of the reasoning by theAB in the trilogy negatively influence the persuasive-ness of thepurposive interpretation approach that theyare supposed to support, but also

161 WTOAppellate BodyReport,United States—Import Prohibition ofCertain Shrimpand Shrimp Products (US—Shrimp), WT/DS58/AB/R, adopted 6 November1998, para.163.

162 Ibid., para.177.




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the fact that the AB struck the balance between trade liberalization and domestic regu-latory autonomy without resorting to GATT Article XX sends out a very confusingmessage. Moreover, the relationship between TBTArticle 2.1 and GATT Article XXis further complicated when this issue is considered against the background of relevantcase law.

V.A. Purposive/teleological interpretation of TBTArticle 2.1

86. Before examining the interpretation approach and supporting reasoning details inthe trilogy, it has to be emphasized that the purposive interpretation approach wasemployed by the AB in the trilogy to justify its proposition to strike a balancebetween trade liberalization and domestic regulatory autonomy within TBT Article2.1. This approach is, however, very helpful when one argues for the applicability ofGATT Article XX into TBT Article 2.1. Resorting to GATT Article XX is, at least,one of the choices to strike a balance between trade liberalization and domestic regula-tory autonomy when determining TBTArticle 2.1 issues.

87.As recognized by theViennaConvention on the LawofTreaties (VCLT), textualinterpretation emphasized that the intention of the parties expressed in the text shall bethe best interpretive guide163; the WTO judiciary therefore, in striking a balancebetween trade liberalization and domestic regulatory autonomy, should look forsupport in the text of TBT Article 2.1. The problem is that there is no such textualsupport. In the textual approach of the interpretation, the remaining text in a provisionshould normally be understood by itself in the absence of certain language. Allapproaches to striking a balance between trade liberalization and domestic regulatoryautonomy including resorting to GATT Article XX become unnecessary and impos-sible. But this is not always necessarily true. As the VCLT recognizes the importanceof purposive interpretation,164 silence in treaty text is not always dispositive. Althoughthe VCLTArticle 31 seems to allow interpreters to discern treaty objects and purposesonly within the text and its context,165 the VCLTadmits that themeaning of the treatyterms can still be interpreted otherwise through supplementary means when the

163 James Crawford, Brownlie’s Principles of Public International Law (8th edn., 2012),379.

164 The Vienna Convention on the Law of Treaties (VCLT), done at Vienna, 23 May1969, 1155 UNTS. 331; 8 I.L.M. 679, art. 31.1; in public international law litera-tures, purposive interpretation is often referred to as “teleological interpretation”,see e.g. James Crawford, above n.167.

165 VCLT, above n.164, art. 31.1 reads: “A treaty shall be interpreted in good faith in ac-cordance with the ordinary meaning to be given to the terms of the treaty in theircontext and in the light of its object and purpose.”Although purposive interpretationseems to be accepted in this article, textual interpretation is the only focus in themindof the drafters. Formoredetailed discussionon this point, seeMyres S.Mcdougal,TheInternational LawCommission’s Draft Articles upon Interpretation: TextualityRedi-vivus, 64 AJIL (1967), 992, 992–1000.




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interpretative result under Article 31 “(a) leav[ing] themeaning ambiguous or obscure;or (b) lead[ing] to a result which is manifestly absurd or unreasonable.”166 In practice,purposive interpretation based on supplementary sources in the event of textual silencehas been recognized by the AB in previous disputes. The AB once said clearly: “the taskof ascertaining the meaning of a treaty provision with respect to a specific requirementdoes not end once it has been determined that the text is silent on that requirement.Such silence does not exclude the possibility that the requirement was intended tobe included by implication.”167 The AB also said: “omission in different contextsmay have different meanings, and omissions, in and of itself, is not necessarily disposi-tive”.16888. Even if everyone agrees on the importance of purposive interpretation in the

event of textual silence, there still remains a problem. People sometimes have differentopinions on whether the meaning of certain text is ambiguous or obscure, or absurd orunreasonable. Logically, this is the threshold question when people are willing toemploy the purposive interpretation approach. If the text is not regarded to be ambigu-ous orobscure, or absurdorunreasonable, theplainmeaningof the text counts, probingthe objects or purposesmay not change the literal interpretation.Only when the text isregarded to be ambiguous or obscure, or absurd or unreasonable, purposive interpret-ation shall prevail over plain meaning interpretation of the text.89. In the trilogy of TBT disputes, the ordinary meaning of TBTArticle 2.1—with

the absence of any text referring to any right or exception to justifyotherwise prohibitedtechnical regulations—wouldwarrant a ban on all technical regulations that have a det-rimental impact on imports. The AB, however, stated in US—Clove Cigarettes that“technical regulations are measures that, by their very nature, establish distinctionsbetween products according to their characteristics or their related processes and pro-duction methods”.169 Based upon this allegation, the AB concluded that “Article2.1 should not be read to disallow any distinction”.170 Thus, a literal reading ofTBT Article 2.1 would be absurd or unreasonable. Interestingly, this conclusion isnot based upon any supplementary sources of interpretation. It is only based uponthe nature of domestic regulations observed by the AB. To further support its position,the AB held inUS—Clove Cigarettes that the balance between trade liberalization anddomestic regulatory autonomy is so important that the ordinarymeaning of a provision

166 VCLT, above n.164, art. 32.167 WTO Appellate Body Report, United States—Countervailing Duties on Certain

Corrosion—Resistant Carbon Steel Flat Products from Germany (US—CarbonSteel), WT/DS213/AB/R, adopted 27 September 2002, para.65.

168 WTOAppellate Body Report, Canada—Certain measures Affecting the AutomotiveIndustry (Canada—Autos), adopted 19 June 2000, WT/DS139 and 142/AB/R,para.138.

169 WTO Appellate Body Report, US—Clove Cigarettes, above n.16, para.169.170 Ibid.




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is absurd or unreasonable if it neglects the balance without providing any counter-balance to trade disciplines.171 This line of reasoning was followed by the AB in US—Tuna II (Mexico) and US—COOL.172 The need for a balance between trade liber-alization and domestic regulatory autonomy is not only used to prove the absurdityor unreasonableness of a literal reading of TBT Article 2.1, but also a declaration ofthe object and purpose of TBTArticle 2.1.

90. To further establish the object and purpose that it imputed to TBTArticle 2.1,theAB resorted to context. Preambles andgeneral provisionsprovidehelpful context forattributing objects and purposes to specific provisions of a treaty. The second recital oftheTBTAgreement states: “Desiring to further the objective ofGATT1994.” InUS—Clove Cigarettes, this was regarded both by the Panel and the AB as suggesting that theGATT 1994 and the TBT Agreement overlap and “have similar objectives”.173 As aresult, the TBTAgreement allows a balance between trade liberalization and domesticregulatory autonomyas theGATTAgreement doeswith its exceptionprovisions. InUS—Clove Cigarettes, the AB also read the fifth and sixth recitals together to reflect abalance between the trade liberalization objective and Members’ right to regulate.174

The AB then drew from these recitals to support its conclusion that the object andpurpose of the TBT Agreement is to strike a balance between trade liberalization andMembers’ right to regulate.175 In US—Tuna II (Mexico) and US—COOL, theabove reasons were employed again by the AB to support the same position.176

91. In US—Clove Cigarettes, and later in US—Tuna II (Mexico) and US—COOL,the AB also resorted to using TBT Article 2.2 to prove that an ordinary meaning ap-proach to the interpretation of “treatment no less fovourable” would create a discrep-ancybetweenTBTArticles 2.1 and2.2.177TheABclearly said inUS—CloveCigarettes:

The context provided by Article 2.2 suggests that “obstacles to internationaltrade” may be permitted insofar as they are not found to be “unnecessary”,that is, “more trade-restrictive than necessary to fulfill a legitimate objective”.To us, this supports a reading that Article 2.1 does not operate to prohibit apriori any obstacle to international trade. Indeed, if any obstacle to international

171 Ibid.172 WTOAppellate Body Report, US—Tuna II (Mexico), above n.22, para.211; WTO

Appellate Body Report, US—COOL, above n.36, para.268.173 WTO Appellate Body Report, US—Clove Cigarettes, above n.16, para.91.174 Ibid., paras.92–95.175 Ibid., para.174.176 WTOAppellate Body Report, US—Tuna II (Mexico), above n.22, para.213; WTO

Appellate Body Report, US—COOL, above n.36, para.268.177 WTO Appellate Body Report, US—Clove Cigarettes, above n.16, para.171; WTO

Appellate Body Report, US—Tuna II (Mexico), above n.22, para.212;WTOAppel-late Body Report, US—COOL, above n.36, para.268.




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trade would be sufficient to establish a violation of Article 2.1, Article 2.2 wouldbe deprived of its effet utile.178

92. This is not true, however. Suppose a Member imposes a more than necessarytechnical regulation that applies to all products. This regulation may have a moreserious impact on domestic products if imports only have a small market share. It is dif-ficult to say that the market competitiveness of imports has been adversely influenced,but the regulation still violates the least trade-restrictive obligation under TBTArticle2.2. Obviously, the use of TBT Article 2.2 in its contextual interpretation by the ABcannot add to the persuasiveness of its purposive interpretation.93. As mentioned earlier, the more disturbing fact is that the AB struck a balance

between trade liberalization and domestic regulatory autonomy within TBT Article2.1 itself without recourse to GATT Article XX. Suppose the applicability of GATTArticle XX to TBTArticle 2.1 is brought up by the parties in the next dispute concern-ing TBTArticle 2.1, what would the Panel and the AB do? On the one hand, it is notlikely for the WTO judiciary to abandon its choice of striking a balance within TBTArticle 2.1 and the jurisprudence built upon this choice. On the other hand, theWTO judiciary can hardly rebut the arguments, which are drawn from the AB’sown purposive interpretation, for the applicability of GATT Article XX to TBTArticle 2.1. After all, the AB did not say anything in the trilogy for choosing to strikethe balance between trade liberalization and domestic regulatory autonomy withinTBTArticle 2.1 over resorting to GATTArticle XX.

V.B. A recent negative “precedent”

94. The AB issued its report in China—Raw Materials179 about four months earlierthan the circulation of the AB Report inUS—Clove Cigarettes.China—RawMaterialsdealtwith a similar issue in a similar situation, i.e., the applicabilityofGATTArticleXXto paragraph 11.3 ofChina’s Accession Protocol which contains no textual reference tothe GATTAgreement in general and GATTArticle XX in particular. The interpretiveapproach adopted by theAB in that dispute and the reasoning details, however, are verydifferent. This further complicates the relationship between TBT Article 2.1 andGATTArticle XX.95. In China—RawMaterials, China was accused of violating paragraph 11.3 of its

Accession Protocol by imposing export duties, among other measures, on exports ofcertain raw materials not listed in Annex 6 to China’s Accession Protocol.180 In its

178 WTO Appellate Body Report, US—Clove Cigarettes, above n.16, para.171.179 China—Measures Relating to the Exportation of Various Raw Materials (China—

Raw Materials), WT/DS394, 395 & 398.180 WTO Panel Report, China—Measures Relating to the Exportation of Various Raw

Materials (China—RawMaterials), WT/DS394, 395 & 398/R, adopted 22 Febru-ary 2012, para.2.1.




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defense, China contended that the export duties could be justified underGATTArticleXX.ThePanel held that exceptionsunderGATTArticleXX“applyonly toviolations ofthe GATT 1994”,181 unless specifically incorporated into a non-GATT provision orinstrument.182 The Panel found no text in paragraph 11.3 of China’s Accession Proto-col thatwould allow recourse toGATTArticleXX,183 and thus heldChinawas not ableto invokeGATTArticle XX to justify its violation of paragraph 11.3.184 The AB agreedwith the Panel on both its primary reasons and its conclusion on this issue.185

96. Paragraph 11.3 of China’s Accession Protocol reads: “China shall eliminate alltaxes and charges applied to exports unless specifically provided for in Annex 6 ofthe Protocol or applied in conformity with the provisions of Article VIII of theGATT 1994.” It is clear that, in terms of text, like TBT Article 2.1, paragraph 11.3of China’s Accession Protocol does not contain any explicit reference to the GATTAgreement in general or GATT Article XX in particular. Unlike in the trilogy ofTBT disputes, the AB in China—Raw materials dwelt on this point, devoting morethan four pages186 to stressing it and explaining away any possible textual referenceto the GATT Agreement in general or GATT Article XX in particular.187 Moreover,based on the ordinary meaning of the paragraph 11.3, the AB held that it was totallyacceptable to forbid China to take any restraining measures—no matter what thepolicy objectives are—on any raw materials not listed in an annex to its Accession

181 Ibid., para.7.153.182 Ibid., para.7.156.183 Ibid., para.7.129.184 Ibid., para.7.158.185 WTO Appellate Body Report, China—Measures Relating to the Exportation of

Various Raw Materials (China—Raw Materials), WT/DS394, 395 & 398/AB/R,adopted 22 February 2012, para.307.

186 It can hardly be said that the AB used even one complete paragraph in the trilogy toanalyse the absence of text in a textual perspective.

187 The obvious reference to GATTArticle VIII in para.11.3 was held by the Panel andthe AB to be of no help to link para.11.3 to the GATT Article XX in China—RawMaterials. The AB held that the export duties at issue in China—Raw Materialswere outside the reach of GATT Article VIII, because the latter is concerned onlywith “[a]ll fees and charges” instead of export duties. See WTO Appellate BodyReport,China—RawMaterials, above n.185, paras.289, 290.Annex 6ofChina’s Ac-cession Protocol specifies 84 products subject to export duties with a cap allowingChina to increase these duties under “exceptional circumstances”. China arguedthat this provides exceptions in the same spirit as contained in GATT Article XX,sinceGATTArticle XX also provides exceptions toGATTobligations in “exceptionalcircumstances”. This attempt to link para.11.3 to GATT Article XX was also dis-missed by the AB. See WTO Appellate Body Report, China—Raw Materials,above n.185, paras.282, 287.




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Protocol.188 No absurdity or unreasonableness was found by the AB for such a com-plete ban. This is a very sharp contrast with the trilogy.97.To support its readingof its ownAccession Protocol,China stressed that the policy

consideration of respectingMembers’ “inherent right” to regulate trade had been expli-citly recognized by the AB inChina—Publications and Audiovisual Products.189 The AB,however, did not agree that every provision of Accession Protocols or otherWTOAgree-ments shouldmerit a policy consideration of domestic regulatory autonomy inChina—RawMaterials.190 According to the AB, inChina—RawMaterials, the language of a par-ticular provision is the key to determining whether a non-trade concern should be takeninto consideration.191What is more impressive is that the AB declared, in China—RawMaterials, that “[h]owever, none of the objectives listed above, nor the balance struckbetween them [trade and non-trade-related concerns], provides specific guidance onthe question of whether Article XX of the GATT 1994 is applicable to Paragraph 11.3of China’s Accession Protocol”.192 This, again, provides another very sharp contrastwith the importance accorded to objective considerations in the TBT trilogy.98. Context was discussed in China—Raw Materials, but only to support a literal

reading of paragraph 11.3. China’s Accession Protocol provides, in paragraph 1.2,that the Protocol “shall be an integral part” of the WTO Agreement. Relying onthis, the AB held without hesitation that Article 3.2 of the Understanding on Rulesand ProceduresGoverning the Settlement ofDisputes (DSU)would apply when inter-preting paragraph 11.3 of China’s Accession Protocol, thereby introducing customaryrules of public international law interpretation—codified in the VCLT—into the in-terpretation of paragraph 11.3. However, the AB did not even discuss paragraph 1.2in terms of its function of linking GATT Article XX to China’s Accession Protocolin general or paragraph 11.3 in particular. On the one hand, it is true that paragraph1.2 is more abstract than the preamble to the TBTAgreement, and it is also true thatparagraph 1.2 does not mention Members’ right to regulate at all. On the otherhand, although in order to establish a link between GATT Article XX and paragraph11.3 of China’s Accession Protocol, one has to use the entire spectrum of the WTOAgreement as a proxy and argue that both the GATTAgreement and the TBTAgree-ment are integral parts of the WTO Agreement,193 this argument at least merits a

188 Ibid., para.291.189 WTOAppellate Body Report, China—Measures Affecting Trading Rights and Dis-

tribution Services for Certain Publications and Audiovisual Entertainment Products(China—Publications and Audiovisual Products), WT/DS363/AB/R, adopted 19January 2010, para.222.

190 WTO Appellate Body Report, China—Raw Materials, above n.185, para.306.191 Ibid., paras.304, 305.192 Ibid., para.306.193 BinGu, Applicability of GATTArticle XX inChina—RawMaterials: AClash within

the WTO Agreement, 15 JIEL (2012), 1007, 1027.




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discussion. This treatment of the general provision inChina—RawMaterials, obvious-ly, is one more sharp contrast with the trilogy. In China—Raw Materials, the AB alsofound support in sister provisions of paragraph 11.3 for refusing to impute a balancebetween trade liberalization and domestic regulatory autonomy to paragraph 11.3.The AB agreed with the Panel that since some provisions, including paragraphs 5.1,11.1 and 11.2 of China’s Accession Protocol contained explicit reference to GATT1994, the absence of such text in paragraph 11.3 suggests that paragraph 11.3 doesnot incorporate GATT 1994 in general or GATTArticle XX in particular.194 This isalso a contrast with the trilogy. The AB resorted to TBT Article 2.2 that contains abalance between trade liberalization and domestic regulatory autonomy in the trilogyto support the importance of that balance within the TBT Agreement in general andTBT Article 2.1 in particular. But according to the logic of the AB in China—RawMaterials, TBT Article 2.2 can only be used to demonstrate that TBT Article 2.1,given the absence of reference to non-trade concerns, cannot possibly contain abalance between trade liberalization and domestic regulatory autonomy.

99. If onewould say that the trilogy of TBTdisputes does not rule out the possibilityof resorting toGATTArticle XX to provide a counter-balance to the national treatmentobligation under TBTArticle 2.1 in future disputes, China—Raw Materials seems tohave made that possibility more unlikely. One may say the AB implicitly overturnedChina—RawMaterials in the trilogy on this issue, but it has to wait to see which “pre-cedent” will get the upper hand in the future. Anyway, China—RawMaterials at leastfurther complicates the relationship between TBTArticle 2.1 and GATTArticle XX.

VI. Conclusion100. If it is true that the negotiators in the Tokyo Round, and later in the UruguayRound, intended to provide a non-trade counter-balance only to the least trade-restrict-ive obligation under TBTArticle 2.2 within the TBTAgreement, they definitely over-looked the importance of striking a balance between trade liberalization and domesticregulatory autonomy under TBTArticle 2.1. It is this birth defect that created most ofthe problems in the interpretation and application of TBTArticle 2.1. To remedy thisdefect, the AB refused to introduce the “aim and effects” test into the determination ofthe scope of “like products” within TBT Article 2.1. This avoids disturbing the nowsettled WTO jurisprudence on the issue of “like products”. However, the approachchosen by the AB, which is to add the “stems exclusively from legitimate distinction”element to the determination of “detrimental impact on imports”, may have inflictedmore damage on theWTO jurisprudence. It has obviously complicated the interpret-ation of the “detrimental impact on imports” in GATT Article III:4 which does not

194 WTOPanel Report, China—RawMaterials, above n.180, para.7.124;WTOAppel-late Body Report, China—Raw Materials, above n.185, paras.291, 293.




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contain the element of “stems exclusively from legitimate distinction”. The AB alsofailed to identify the problem of the overlap between the national treatment obligationunder TBTArticle 2.1 and the least trade-restrictive obligation under TBTArticle 2.2.The AB did not draw a clear boundary between these two obligations within the TBTAgreementwhen thefirst opportunity presented itself.Moreover, theABhas employedone same key test in the determination of both the national treatment obligation vio-lation under TBT Article 2.1 and the least trade-restrictive obligation violationunder TBTArticle 2.2. The trilogy also sent out mixed messages concerning the rela-tionship between TBTArticle 2.1 and GATTArticle XX. On the one hand, the inter-pretive approach andparts of the relevant reasoning details can support the applicabilityofGATTArticle XX toTBTArticle 2.1.On the other hand, the applicability ofGATTArticle XX to TBTArticle 2.1 seems unlikely because of the combination of the weak-ness of the AB’s reasoning, the fact that a balance between trade liberalization and do-mestic regulatory autonomy was struck within TBTArticle 2.1, and the existence of anegative “precedent”. It seems that the AB awoke TBT Article 2.1, along with TBTArticle 2.2, without proper preparation. When suddenly arising from more than 15years of dormancy since the establishment of the WTO, TBT Article 2.1 stumbledand plunged into an entangled web of relationship with one of its sister TBT articlesand two other articles in the GATTAgreement.




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Entangled Relationship between Article 2.1 of the TBT Agreement and Certain Other WTO Provisions

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