Regulatory convergence and dispute settlement in the WTO

• Pages: 157-162
• DOI: https://doi.org/10.1108/JITLP-11-2015-0041
• Published date: 21 September 2015
• Date: 21 September 2015
• Author: Niall Meagher
• Subject Matter: Strategy,International business,International business law

Regulatory convergence and

dispute settlement in the WTO

Niall Meagher

Advisory Centre on WTO Law, Geneva, Switzerland

Abstract

Purpose – This paper aims to examine the issues faced by the World Trade Organization (WTO)

dispute settlement system in disputes involving questions of regulatory convergence. The traditional

focus of the WTO has been on increasing market access and eliminating discrimination in trade. Now,

as tariffs have been all but eliminated and Members rarely impose obviously discriminatory trade

barriers, attention increasingly turns to questions of regulatory convergence. Leaving aside questions

as to the overall benets of regulatory convergence between markets, these developments pose a

signicant challenge to the organs of the WTO dispute settlement – and it is here that this paper focuses.

Design/methodology/approach – While General Agreements on Tariffs and Trade (GATT)/WTO

law has fairly well-developed tools for identifying discrimination in trade, the tools necessary for

assessing whether regulatory measures maintain the requisite balance or proportionality between

sovereign/domestic concerns and trade concerns are less clear. The paper discusses this latter point.

Findings – The WTO agreements are frequently not clear on where or how this balance between

sovereign/domestic concerns and trade concerns is to be determined. To date, WTO panels and the

Appellate Body have preferred to focus on whether they can identify any discriminatory aspects of a

measure. However, they will increasingly be called to pronounce on non-discriminatory regulatory

policy choices of Members.

Originality/value – This paper contributes to the literature on the Appellate Body, and argues that

Members will need to develop a credible and consistent balance between policy space and trade

restrictiveness.

Keywords WTO, GATT, Appellate body, Harmonization, Regulatory convergence, WTO policy

Paper type Research paper

The World Trade Organisation (WTO) dispute settlement system has been a great

success. It is therefore an honour to participate in a conference marking the 20th

anniversary of the system. In the past year or two, however, we have heard much about

the increasing complexity of WTO disputes. Some of this is undoubtedly an inevitable

consequence of the enthusiasm with which disputes are frequently litigated. Some of it,

however, reects the changing nature of the issues arising in disputes. The traditional

focus of the General Agreement on Tariffs and Trade (GATT) and the WTO was on

increasing market access and eliminating discrimination in trade. Now, as tariffs have

been all but eliminated and Members rarely impose obviously discriminatory trade

barriers, the subject matter of disputes increasingly turns to questions of Members’

The views expressed in this paper, and any errors, are those of the author alone. The author would

like to thank Peter van den Bossche, Bernard Hoekman and Petros Mavroidis for the opportunity

to participate in the conference on The WTO @ 20: Taking Stock and Looking Forward at the

European University Institute, Florence, 15 May 2015, at which the presentation on which this

note is based was made.

The current issue and full text archive of this journal is available on Emerald Insight at:

www.emeraldinsight.com/1477-0024.htm

Regulatory

convergence

and dispute

settlement

157

Journalof International Trade Law

andPolicy

Vol.14 No. 3, 2015

pp.157-162

©Emerald Group Publishing Limited

1477-0024

DOI 10.1108/JITLP-11-2015-0041