Driftin’ too far from shore – Why the test for compliance with the TBT Agreement developed by the WTO Appellate Body is wrong, and what should the AB have done instead

Following years of silence, the WTO Appellate Body (AB) issued almost simultaneously three reports dealing with issues coming under the aegis of the WTO Agreement on Technical Barriers to Trade (TBT). The three Panel reports were hard to reconcile, and this feature in and of itself made the task of the AB quite onerous. Some progress has been made and some clarifications have been introduced, but overall the AB has yet to come to grips with a coherent approach regarding the understanding of the TBT Agreement. The main argument in this paper is that the AB, in designing its test for consistency with the TBT Agreement, did not do any different than it would have done had no TBT Agreement existed. It is, nevertheless, response to the question ‘what has the TBT added to the pre-existing legislative arsenal’ that should point to the elements that must be included in developing a test of consistency against which disputes coming under the aegis of the TBT Agreement should be discussed. The suggested approach consists of a two-tier test whereby Panels would first inquire into the innate characteristics of a measure coming under the aegis of the TBT Agreement, before asking the question whether it has also been applied in non-discriminatory manner.