Mysteries of the TBT Agreement Resolved? Lessons to Learn for Climate Policies and Developing Country Exporters from Recent TBT Disputes

Abstract

In 2012, the Appellate Body delivered its reports on three disputes dealing with yet unresolved issues of the Agreement on Technical Barriers to Trade, such as its applicability to non-product related processes and production methods and the interpretation of its non-discrimination clause and its so-called necessity requirement. The reports in US - Clove Cigarettes, US - Tuna II and US - COOL inform future policies pursued to achieve non-trade objectives. On a broader picture, they contribute to the debate on preserving policy space for non-trade concerns. The paper outlines conclusions to be drawn from these reports for climate policy-makers and their consequences to exporting interests of developing countries. Particular focus is put on the interpretation given to the non-discrimination clause.