A Critical Assessment of the WTO’s SPS Agreement
Elgar International Economic Law series
Chapter 4: Looking to the Future: Forces of Change
4.1 INTRODUCTION This chapter examines emerging forces that are contributing or are likely to contribute to an increase in the number and/or complexity of disputes over trade-restrictive SPS measures. The forces identified are: (i) the increasing use of non-tariff barriers in lieu of direct tariffs (referred to as the ‘substitution effect’); (ii) new and increasing food safety risks; (iii) an increasing emphasis in Western democracies on public participation in regulatory decision-making; (iv) differing approaches between countries to regulatory decision-making; and (v) North–South conflicts. 4.2 TARIFF SUBSTITUTION Given the GATT’s success over the years in reducing tariffs, some commentators expect that countries will seek to substitute repealed tariffs with non-tariff barriers such as health regulations that are capable of achieving the same result of protecting domestic interests.1 This is especially a concern in the case of agricultural goods where the 1994 Agreement on Agriculture required Members to convert all non-tariff barriers into tariff equivalents and to begin to reduce tariff levels.2 It has also been argued that because domestic regula1 In the context of the North American Free Trade Agreement (NAFTA), for example, Julie Soloway, ‘Institutional Capacity to Constrain Suboptimal Welfare Outcomes from Trade – Restricting Environmental, Health and Safety Regulation under NAFTA’ (University of Toronto, 2000, unpublished) finds that of 25 environmental, health, and safety-related trade irritants or disputes, there was evidence in 24 cases that the regulation was disguised protection. There was only one case in which it was definitely established that there was an actual, serious environmental, health...
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