Post on 03-Jun-2018
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Technical Barrier to Trade
Agreement
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TBT AgreementObjective and scope of application
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General objective of the TBTAgreement
Recognizes
But, at the
same time
The right of WTO Members to adopt
Technical Regulations, Standards and
Conformity Assessment Procedures
Ensures that such measures do not
create unnecessary obstacles to trade
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TBT AgreementObjective and scope of application
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The TBT Agreement seeks to ensure that:
mandatory product regulations,
voluntary product standards, and
conformity assessment procedures (i.e., proceduresdesigned to test a products conformity with mandatoryregulations or voluntary standards)
do not become unnecessary obstacles tointernational trade and are not employed byWTO Members to obstruct trade.
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TBT AgreementObjective and scope of application
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Scope of the TBT Agreement:
Technical Regulations;
Standards; and
Conformity assessment procedures.
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TBT AgreementObjective and scope of application
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Temporal Scope of Application:
The TBT Agreementapplies to measures adopted priorto the entry into force of the WTO Agreement(1 January1995) provided that the trade measure at issue has not ceasedto exist.
This was confirmed by the EC Sardines Appellate Bodydecision.
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TBT AgreementObjective and scope of application
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Technical Regulation:
Document which lays down productcharacteristics or their related processes and
production methods, including the applicableadministrative provisions, with which compliance ismandatory.
It may also include or deal exclusively withterminology, symbols, packaging, marking or labellingrequirements as they apply to a product, process orproduction method.
DefinitionsAnnex 1
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A law stating that only
refrigerators that areone meter high can be
sold in State X
A law stating
that all product
packaging mustbe recyclable
Examples of Technical Regulations
TBT AgreementObjective and scope of application
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TBT AgreementObjective and scope of application
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In theEC Sardines dispute, the AppellateBody made reference to its previous decision intheEC Asbestos dispute, wherea three-parttest for determining if a measure is a technicalregulation had been established:
the document applies to an identifiable product orgroup of products;
the document must lay down one or more productcharacteristics; and
compliance with these characteristics must bemandatory.
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TBT AgreementObjective and scope of application
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Standard:
Document approved by a recognized body, thatprovides, for common and repeated use, rules,guidelines or characteristics for products or related
processes and production methods, with whichcompliance is not mandatory.
It may also include or deal exclusively withterminology, symbols, packaging, marking or labellingrequirements as they apply to a product, process or
production method.
DefinitionsAnnex 1
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A government guideline
saying that all eggs
weighing 62 grams or
more are entitled to be
labelled Grade Ais astandard (provided that
eggs weighing less may
still be sold).
A guideline defining the
products that may
display a recyclable
symbolis a standard(provided that the
products not bearing the
symbol may still be sold).
Examples of Standards
TBT Agreement3. Objective and scope of application
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TBT AgreementObjective and scope of application
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DefinitionsAnnex 1
StandardsTechnical Regulations
Technical Requirements
Mandatory Voluntary
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TBT AgreementObjective and scope of application
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Conformity Assessment Procedure:
Any procedure used, directly or indirectly, todetermine whether the relevant requirements laid outin technical regulations or standards are met.
DefinitionsAnnex 1
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TBT AgreementObjective and scope of application
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The TBT Agreement applies to allproducts, including industrial andagricultural products
Except to:-Sanitary and phytosanitary measures;
-Regulations and standards related to services;
-Purchasing specifications for production or consumption by
governments.
SPS
TBT
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TBT AgreementObjective and scope of application
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The main differences between the SPS andTBT Agreements reside in:
the scope of their application;
the use of international standards;
the reasons that call for the application andmaintenance of the measures.
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TBT AgreementObjective and scope of application
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Scope of the TBT and SPS Agreements:
The TBT Agreement
covers:
technical regulations;
voluntary standards;
and
conformity assessment
procedures.
Except when these are SPS measures as
defined by the SPS Agreement.
The SPS Agreement covers all measures
whose purpose is to protect:
human or animal health from so called food-borne risks;
human health from animal or plant diseases;
and
plants and animals from pests or diseases.
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TBT AgreementObjective and scope of application
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Examples of TBT and SPS measures:
TBT measures typically deal with:
labelling of composition or quality of
food, drink and drugs;
quality requirements for fresh food;
volume, shape and appearance of
packaging;
testing of vehicles and accessories;
regulations for ships and related
equipment;
safety regulations for toys and
others.
SPS measures typically deal with:
additives in food or drink;
contaminants in food or drink;certification: food safety, animal or
plant health;
processing methods with implications
for food safety;
other sanitary requirements for
imports;
labelling requirements directly related
to food safety and others.
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TBT AgreementObjective and scope of application
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The use of international standards for TBTand SPS measures:
Under the SPS Agreement, WTO Members are
compelled to use international standards unless theycan show a specific scientific justification based on anassessment of the possible risk.
WTO Members may set TBT measures that deviate
from the international standards for other reasons,including technological difficulties or geographicaldifferences.
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TBT AgreementObjective and scope of application
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The reasons behind the application andmaintenance of SPS and TBT measures:
SPS measures may only be applied to the extentnecessary to protect human, animal or plant life orhealth, based on scientific principles and notmaintained without sufficient scientific evidence.
TBT measures may be applied and maintained for otherreasons, including national security or to preventdeceptive practices, as long as they do not create
unnecessary obstacles to international trade and are notmore trade-restrictive than necessary to fulfill alegitimate objective.
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TBT AgreementMain principles
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Main principles of the TBTAgreement:
1. Non-discrimination;2. Avoidance of unnecessary obstacles to trade;
3. Harmonization;
4. Equivalence;
5. Mutual recognition;
6. Transparency.
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The principle of non-discrimination is found in thefollowing provisions of the TBT Agreement:
For technical
regulations
Article 2.1
For standards
Annex 3(D)(Code of Good
Practice)
For conformity
assessment
procedures
Article 5.1.1.
TBT Agreement4.1. Non - discrimination
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TBT AgreementNon discrimination
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The non-discrimination principle is anobligation not to discriminate between importedand domestic like productsnor amongimported like products.
The principle of non-discrimination has twoelements:
The most-favoured-nation(MFN) treatment - an obligation not todiscriminate between like productsimported from different WTOMembers; and
National treatment- an obligation not to discriminate between domesticand imported like products.
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TBT AgreementNon discrimination
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The non-discrimination principle is only applicableto like products. If two products are not likeproducts, the non-discrimination principle doesnot apply.
Whether two products are like productsis one ofthe most difficult legal problems in the WTOAgreement.
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What is a like productfor thepurposes of the TBT Agreement?
Likeness is determined on a case-by-case basis
4 criteria
Physical characteristics;
Tariff classification;
Product end-users.
Consumerstastes and habits;
TBT AgreementNon - discrimination
TBT A t
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TBT Agreement4Avoidance of unnecessary obstacles to trade
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The obligation to prevent unnecessary obstaclesto international trade is set forth in the
following provisions of the TBT Agreement:
For technical
regulations
Article 2.2
For standards
Annex 3(E)(Code of Good
Practice)
For conformity
assessment
procedures
Article 5.1.2.
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TBT AgreementAvoidance of unnecessary obstacles to trade
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For technical
regulations:
[Article 2.2]
They must not be more trade-
restrictive than necessary to
achieve a policy goal (the
least-trade-restrictive
measure), and
The must fulfill a legitimate
objective, taking into accountthe risks that non-fullfilment
would create.
TBT A t
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TBT Agreement4.2. Avoidance of unnecessary obstacles to trade
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For standards:
[Annex 3(E) tothe Code of
Good Practice]
The prevention of unnecessary
obstacles to international trade is not
defined in either Article 3 of the TBT
Agreement nor in the Code of GoodPractice. It has also not been defined
or interpreted in any WTO panel or
Appellate Body decision relating to
the TBT Agreement.
Given the similarities between technical regulations and standards it is probable
that the same definition that is applicable to technical regulations would also be
applied in the case of standards, but this remains to be proven.
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TBT AgreementAvoidance of unnecessary obstacles to trade
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For conformityassessment
procedures:
[Article 5.1.2]
conformity assessment
procedures shall not be more strict
or be applied more strictly than isnecessary to give the importing
Member adequate confidence that
products conform with the
applicable technical regulations or
standards, taking account of therisks non-conformity would
create.
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TBT AgreementAvoidance of unnecessary obstacles to trade
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The understanding of the concepts of:
necessity;legitimate objective; and
changed circumstances
is essential to comprehend what constitutes anunnecessary obstacle to international trade.
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TBT Agreement4.2. Avoidance of unnecessary obstacles to trade30
Necessityfor the purposes of Article 2.2
can be interpreted as having no other alternativemeasure consistent with the TBT Agreement, orless inconsistent with it, which a WTO Membercould reasonablybe expected to employ toachieve its legitimate regulatory objective (forexample, health policy).
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TBT AgreementAvoidance of unnecessary obstacles to trade
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Legitimateobjectives
Protection of animal life or health;
Prevention of deceptive practices;
Protection of human health or safety;
National security requirements;
Protection of the environment;
Other undefined objectives.
TBT A t
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TBT AgreementAvoidance of unnecessary obstacles to trade
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Changed circumstances:
In order to ensure that unnecessary obstacles tointernational trade are avoided, Article 2.3 of the TBT
Agreement provides that, with respect to technicalregulations,if circumstances change or an objective can be
addressed in a less trade-restrictive manner, the morerestrictive trade measure must be removed.
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TBT AgreementHarmonization
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Harmonization is a central pillar of the TBTAgreement.
The emphasis on harmonization is based on theview that:
trade is less disrupted if WTO Members use internationallyagreed standards as a basis for their domestic regulations andstandards; and
producers and consumers benefit from a degree ofharmonization (because of economies of scale and questionsof technical compatibility, respectively).
TBT A
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TBT AgreementHarmonization
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The relevant provisions of the TBT Agreementrelating to harmonization and the use of
relevant international standards are:
For technical
regulations:
[Articles 2.4-2.6]
For standards:
[Annex 3(F)-(G) to the
Code of Good Practice]
For conformity
assessment
procedures:
[Articles 5.4-5.5]
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TBT Agreement4.3. Harmonization
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WTO Members are encouraged:
to participate in the process of international
harmonization of standards, and
to use recognized international standards as a basis fortheir domestic technical regulations and standards.
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TBT Agreement4.3. Harmonization
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The provisions of the TBT Agreement relatingto an obligation to participate in the work ofinternational standardization organizations
are:
For technical
regulations:
[Article 2.6]
For standards:
[Annex 3(G) to the
Code of Good Practice]
For conformity
assessment
procedures:
[Article 5.5]
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TBT AgreementHarmonization
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International Standardizing Bodies:
International Organization for Standardization (ISO);
International Telecommunications Union (ITU);
International Electro-Technical Commission (IEC);
Codex Alimentarius Commission.
However, these international organizations are not explicitly
recognized by the TBT Agreement.
TBT A t
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TBT AgreementHarmonization
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International standards may not be used ifthey were to be ineffective or inappropriatemeans for the fulfilment of the legitimateobjective pursued because of:
Climatic factors;
Geographical factors; and
Technological problems.
TBT A t
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TBT AgreementHarmonization
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Principles for the Development of InternationalStandards, Guides and Recommendations
Openness
CoherenceTransparency
Impartiality and consensus
Effectiveness
and relevance
Development dimension
TBT Agreement
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TBT Agreement
Equivalence
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What is equivalence?
Technical barriers to international trade could be eliminatedif WTO Members were to accept that technical regulationsdifferent from their own fulfill the same policy objectives
even if through different means.
TBT A t
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TBT AgreementEquivalence
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The provisions of the TBT Agreement onequivalenceare:
For technical
regulations:
[Article 2.7]
For standards:
[Article 2.7]
For conformity
assessment
procedures:
[Article 6]
A
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TBT AgreementMutual recognition
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WTO Members are encouraged to enter intonegotiations for the mutual recognition of theresults of conformity assessment procedures.
By accepting the results of another WTOMembers conformity assessment procedures,testing costs are reduced and less time is lost
in administrative and technical inspections.
TBT Agreement
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TBT Agreement4.6. Transparency
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Transparency:
Transparency is the process whereby the creation, terms, andapplication of technical regulations, standards and
conformity assessment procedures are made public, andopportunities are provided for the public (including otherWTO Members) to comment on proposed technicalregulations, standards and conformity assessmentprocedures.
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TBT AgreementTransparency
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The provisions of the TBT Agreement ontransparency are:
For technical
regulations:
[Articles 2.9 and 10]
For conformity
assessment procedures:
[Articles 5.5 and 10]
For standards:[Annex 3(J)-(Q) of the
Code of Good
Practice and Article
10]
TBT Agreement
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TBT Agreement
Transparency
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Transparency
Notifications
Enquiry Points
TBT Committee
TBT A t
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TBT AgreementNotifications
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Notifications
What doWTO
Members
have to
notify?
Implementation and administration of
the Agreement;
Draft technical regulations and adopted
urgent measures;
Bilateral and multilateral agreements;
Adherence or withdrawal to the Code of
Good Practice and work programme.
TBT Agreement
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TBT AgreementTBT Committee
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TBT Committee
Composition Representatives of each WTO Member
ObjectiveConsulting on any matters relating to
the operation of the TBT Agreement
Chairperson Elected by the TBT Committee
Meetings
[Articles 13,15.3 and 15.4]
As necessary, but not less than once
a year
TBT Agreement
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TBT Agreement4.6. Transparency
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Review of the TBT Committee:
The TBT Committee must review annually the operationand implementation of the TBT Agreement.
Every three years, the TBT Committee must review theimplementation and operation of the TBT Agreementwith a view to recommending an adjustment of therights and obligations of the Agreement, wherenecessary to ensure mutual economic advantage and
balance of rights and obligations.
TBT Agreement
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TBT Agreement5. Provisions for Developing Countries
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Provisions for Developing Countries:
Technical Assistance; and
Special and Differential Treatment
Technical assistance can be defined as theprovision of expert assistance by other WTOMembers, the WTO Secretariat, or third parties.
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TBT Agreement
Provisions for Developing Countries50
Technical assistance if requested and
on mutually agreed terms
Preparation oftechnical regulations
Facilitate access to
systems
Priority to the needs
of least-developed
country Members
Facilitate participation in
international system
Establishment of
standardizing bodies
and regulatory bodies
TBT Agreement
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TBT Agreement5. Provisions for Developing Countries
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Special and Differential Treatment:
Pursuant to Article 12 of the TBT Agreement, WTOMembers are required to provide special and differential(i.e., more favourable treatment) to Developing Country
Members in a number of different forms.
TBT Agreement
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TBT AgreementProvisions for Developing Countries
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Shall only use
international norms
appropriate to their
needs
Can be granted specified,
time-limited exceptions
from obligations of the TBT
Agreement
Developing Country Members
TBT Agreement
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TBT AgreementProvisions for Developing Countries
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All WTO Members must:
Take into account the special needs of
Developing Country Members
Avoid creating unnecessary obstacles to the exports of
Developing Country Members (through regulatory activities)
Facilitate active and representative participation of Developing
Country Members in international standardizing bodies
Facilitate preparation of international standards concerning
products of special interest to Developing County Members
TBT Agreement
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TBT AgreementDispute settlement
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EC - Butter (WT/DS72)
The dispute concerned the tariff treatment by the
EC Commission and the Customs and ExciseDepartment of the United Kingdom of certain butterproducts from New Zealand. However, since the partiesnotified the DSB that they had reached a MutuallyAgreed Solution, the Panel only issued a report
containing a brief description of the case.
TBT Agreement
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TBT AgreementDispute settlement
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EC Scallops (WT/DS7, 12, 14)
The dispute concerned the official names and
permitted trade descriptions of scallops in France.Canada, Chile and Peru challenged the French Ordergoverning this issue under Article 2 of the TBTAgreement and Articles I and III of the GATTAgreement. The DSB established a single panel for thethree complaints. Since the parties notified the DSB
that they had reached a Mutually Agreed Solution, thePanel issued a report containing a brief description ofthe case.
TBT Agreement
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g
Dispute settlement
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EC Asbestos (WT/DS135)
Canada claimed that the French measure banning
any product containing asbestos created anunnecessary obstacle to international trade contrary tothe Article 2.2 and 2.4 of the TBT Agreement. The Panelreport confirmed that the ban was justified on healthgrounds. The prohibition of asbestos can be maintainedas such. Canada appealed. The AB report upheld that
the French ban is not in violation of the WTOagreements.
TBT Agreement
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TBT Agreement6. Dispute settlement
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EC - Sardines (WT/DS231)
The dispute concerned the trade description of
"sardines" made by the EC which could only be used forthe type of sardine namedSardina pilchardusWalbaumand consequently not for the type of sardinenamedSardinops sagaxsagax.Peru requested thePanel to find that the EC measure was inconsistent withArticles 2.1, 2.2 and 2.4 of the TBT Agreement. ThePanel and the Appellate Body found that the EC
Regulation 2136/89 was in breach of Article 2.4 of theTBT Agreement.
TBT Agreement
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TBT AgreementTBT and Doha
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Doha Implementation Decision and the TBTAgreement:
Technical assistance;
Time to adjust to new regulations;
Participation of Developing Countries in the work ofinternational standards-setting organizations;
Technical assistance for Least-Developed Countries.
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Terima Kasih
Thank You