Edited by Tracey Epps and Michael J. Trebilcock
Chapter 4: Transparency obligations under the TBT Agreement
An important, and perhaps underestimated, aspect of the Agreement on Technical Barriers to Trade (TBT Agreement) is its insistence on the transparency of WTO Members’ technical regulations, standards and conformity assessment procedures (hereafter referred to as TBT measures). The TBT Committee has stressed that transparency is a ‘fundamental pillar’ in the implementation of the TBT Agreement and a key element of good regulatory practice. In a recent OECD study on the importance of transparency in the area of non-tariff barriers to trade, it was concluded that: [T]ransparency mechanisms applied at different stages of the design, finalisation and implementation of domestic regulation significantly contribute in identifying and addressing potential barriers to domestic economic activity and international trade and investment. Recently, in the US – Clove Cigarettes dispute, the Appellate Body ruled for the very first time on the interpretation of the transparency provisions of the TBT Agreement. The fact that the transparency obligations of the TBT Agreement have now formed the basis of one of the claims in a WTO dispute highlights the importance of these disciplines for technical barriers to trade. This chapter aims to sketch the transparency framework for technical barriers to trade as laid down in the TBT Agreement and further fleshed out in decisions of the TBT Committee. It begins by explaining the benefits of transparency in disciplines on technical barriers to trade, in order to elucidate the gains to be achieved through full implementation of the transparency obligations.
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