‘No safe haven’: Why the GATT ‘regional exception’ does not apply to technical barriers to trade

Abstract

During the last two decades, Preferential Trade Agreements (PTAs) have increased in quantity and broadened in scope. Far from merely reducing tariffs, they now set out a detailed discipline also on behind-the-border measures. Due to their trade-restrictive potential, technical barriers to trade (TBTs) are now systematically regulated in PTAs. Since PTAs discriminate by definition, it is pivotal to understand whether their regulation of TBTs may be reconciled with the multilateral non-discrimination obligation. Against this backdrop, this article aims to assess whether WTO-incompatible TBT provisions in PTAs may benefit from the GATT 1994 ‘Regional Exception’, that is, Article XXIV. I will argue that, by virtue of the lex specialis principle, Article XXIV may not shield violations of the TBT Agreement. The impact of this study is two-fold. First, it shows that Members of the World Trade Organization (WTO) must respect the Most-Favoured Nation (MFN) clause when integrating their domestic policies. Second, using TBTs as a case study, it proposes some crucial adjustments to WTO case law, that should be considered also when deciding on the interplay between the GATT 1994 and WTO Agreements other than the TBT Agreement.