Reach Revisited: A Framework for Evaluating Whether a Non-Tariff Measure Has Matured into an Actionable Non-Tariff Barrier to Trade

By Kogan, Lawrence A. | American University International Law Review, March 15, 2013 | Go to article overview

Reach Revisited: A Framework for Evaluating Whether a Non-Tariff Measure Has Matured into an Actionable Non-Tariff Barrier to Trade


Kogan, Lawrence A., American University International Law Review


I. INTRODUCTION

This article outlines a possible analytical framework employing recent and relevant World Trade Organization ("WTO") jurisprudence for evaluating whether technical regulations such as the European Union's ("EU's")/European Community's ("EC's")1 regulatory regime for the Registration, Evaluation, Authorisation and Restriction of Chemicals ("REACH"),2 as adopted and/or as applied, are WTO-consistent. The focus of this legal review is limited3 to two "covered"4 agreements: the Agreement on Technical Barriers to Trade ("TBT Agreement")5 and General Agreement on Tariffs and Trade 1994 ("GATT 1994").6 Both the GATT 1994 and the TBT Agreement are multilateral treaties7 that "form part of Annex 1A to the [Marrakesh Agreement establishing the World Trade Organization]"8 and may potentially apply to REACH. Whereas the GATT 1994 is concerned generally with trade in goods, the TBT Agreement is more specialized and establishes rules and procedures regarding the development, adoption, and application of mandatory technical regulations and voluntary standards for products and the procedures (such as testing or certification) for determining whether a particular product meets such regulations or standards ("conformity assessment procedures").9 WTO jurisprudence holds that "when the GATT 1994 and another Agreement in Annex 1A appear a priori to apply to the measure in question, the latter should be examined on the basis of the Agreement that deals 'specifically, and in detail,' with such measures."10 Consequently, if REACH is determined to constitute "a 'technical regulation' within the meaning of the TBT Agreement, then the latter [the TBT Agreement] would deal with the measure [REACH] in the most specific and most detailed manner."11

The TBT Agreement applies to all technical measures addressing industrial and agricultural products, except those properly characterized as sanitary and phytosanitary ("SPS") measures,12 or as specifications for government procurement,13 which are instead covered under separate WTO agreements.14 "[T]he object and purpose of the TBT Agreement is to strike a balance between, on the one hand, the objective of trade liberalization and, on the other hand, Members' right to regulate."15 One of the TBT Agreement's primary objectives is to prevent WTO Members from using regulations as unnecessary barriers to trade while ensuring that they retain their sovereign right to regulate "for the protection of human, animal or plant life or health, of the environment, or for the prevention of deceptive practices, at the levels [they] consider appropriate."16

The EU REACH regulation can be described as a behind-the- border17 technical measure intended to address regional health and environmental concerns and impacts. It can be appropriately classified18 as a type of non-tariff measure ("NTM")19 that falls within the scope of the TBT Agreement because it arguably distorts and creates uncertainty surrounding international trade flows of chemical substance-based products.20 As the WTO itself acknowledges, "While the application of NTMs does not always restrict trade, they often result in unnecessary restrictions or undue barriers, which explains" why they are frequently and interchangeably referred to as non-tariff barriers ("NTBs").21 NTBs are "barriers to trade that are not tariffs," which may, in certain instances, include health and consumer safety technical regulations to the extent they are misused.22

The WTO Committee on Technical Barriers to Trade (the "TBT Committee")23 regularly compiles statistics24 about GATT 1994/WTO Member NTB notifications submitted pursuant to TBT Article 2.9.25 "Transparency" is one of the core obligations imposed generally on all GATT 1994/WTO Members, and specifically for TBT Agreement Parties. Article 2.9 requires that "[wjhenever a relevant international standard does not exist or the technical content of a proposed technical regulation is not in accordance with the technical content of relevant international standards,"26 Members must:

promptly] publi[sh proposed] laws, regulations, judicial decisions and administrative rulings affecting trade in such a manner as to enable governments and traders to become acquainted with them. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Reach Revisited: A Framework for Evaluating Whether a Non-Tariff Measure Has Matured into an Actionable Non-Tariff Barrier to Trade
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.