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Research Handbook on Environment, Health and the WTO

Research Handbook on Environment, Health and the WTO

Research Handbooks on the WTO series

Edited by Geert Van Calster and Denise Prévost

This Handbook provides state-of-the-art analysis by leading authors on the links between the international trade regime and health and environment concerns – concerns that make up an increasing proportion of WTO dispute settlement. Research Handbook on Environment, Health and the WTO surveys fields as diverse as climate change mitigation, non-communicable diseases, nanotechnology and public health care. The volume brings to the fore the debates and complexities surrounding these issues and their implications for the international trading system.

Chapter 2: Regulatory purpose in GATT Article III, TBT Article 2.1, the Subsidies Agreement, and elsewhere: Hic et ubique

Donald H. Regan

Subjects: environment, environmental law, law - academic, environmental law, health law, international economic law, trade law


There are many areas of WTO law where it seems clear that the legality of a challenged measure depends on whether it was motivated by some type of prohibited purpose. And yet the Appellate Body has been very loath to discuss the cases in those terms. GATT Article III (as applied to origin-neutral measures) is the paradigmatic example; but there are many other examples, including GATT Article I (as applied to origin-neutral measures), Article 5.5 of the Agreement on Sanitary and Phytosanitary Measures (SPS), and certain provisions of the Subsidies Agreement, such as Article 1.1(a)(1)(ii) (foregoing revenue “otherwise due”) and Article 3.1(a) (“contingent . . . on export performance”). There are hopeful signs in the recent trilogy of cases on Article 2.1 of the Agreement on Technical Barriers to Trade (TBT). That is not because the Appellate Body talks explicitly about prohibited purpose as the core of a violation of TBT 2.1; it does not. Rather, it is because in these cases the Appellate Body is explicit and emphatic about the role of justification by a legitimate regulatory purpose in preventing the finding of a violation. If we cannot be candid about the role of prohibited purpose, then emphasizing justification by a legitimate purpose may be the next best thing. Indeed, the new cases raise important issues about the relationship between the presence of prohibited purpose and the absence of legitimate justification.

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