Measures with Multiple Competing Purposes after EC – Seal Products: Avoiding a Conflict between GATT Article XX-Chapeau and Article 2.1 TBT Agreement

Gracia Marín Durán

Journal of International Economic Law, 2016, vol. 19, issue 2, 467-495

Abstract: One of the issues on which the report of the Appellate Body in EC – Seal Products has stirred considerable debate among legal academics is how to deal with product regulations allegedly having multiple policy purposes under World Trade Organization (WTO) law. For the most part, academic discussions have focused on the Appellate Body’s analysis of this issue under the chapeau of Article XX of the General Agreement on Tariffs and Trade (GATT). This article seeks to contribute to this debate by taking a more systemic perspective and considering also how this type of measure would be appraised under Article 2.1 Agreement on Technical Barriers to Trade (TBT). It begins by examining why measures purportedly balancing multiple competing purposes, as in the EC - Seal Products case, may necessitate justification under WTO law and why the Appellate Body’s self-imposed rational connection requirement is not appropriate to that end. A second argument advanced in this article is that, contrary to what the Appellate Body appeared to suggest in EC – Seal Products, the legal standards for justifying discrimination under the GATT Article XX-chapeau and Article 2.1 TBT Agreement should be essentially the same, and thus conflicting interpretations avoided in relation to the rational connection standard. A two-tier test for bringing in line these justification provisions is suggested which enquires, first, into whether there is a genuinely legitimate rationale for the discrimination, and secondly, whether the discriminatory impact is necessary to achieve that legitimate purpose.

Date: 2016
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