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Project Details
Funding Scheme : General Research Fund
Project Number : 443911
Project Title(English) : Product Standards in International Trade: Toward A Synergetic Approach to Global Economic Governance and National Regulatory Autonomy  
Project Title(Chinese) : 国际贸易中的产品标准:全球经济治理和主权政府自主管制的一种协同性进路 
Principal Investigator(English) : Prof Du, Ming  
Principal Investigator(Chinese) :  
Department : Faculty of Law
Institution : The Chinese University of Hong Kong
E-mail Address : ming.du@cuhk.edu.hk 
Tel :  
Co - Investigator(s) :
Panel : Humanities, Social Sciences
Subject Area : Professional & Vocational Subjects
Exercise Year : 2011 / 12
Fund Approved : 323,893
Project Status : Completed
Completion Date : 31-7-2014
Project Objectives :
• To provide a comprehensive and detailed analysis of how product standards, as possible non-tariff barriers to trade, are regulated under GATT/WTO law;
• To evaluate to what extent the WTO law, as interpreted by its dispute settlement body, has constrained WTO Members’ regulatory autonomy in setting product standards;
• To reflect whether the current extent of intrusion into the domestic regulatory autonomy is justified in view of the WTO texts, the nature of the legal devices that the WTO employs, the institutional arrangements of the WTO and its implications to the world trade system;
• To draw comparative insights from other entities with multilevel trade governance structures such as the European Union and United States and to evaluate to what extent their experiences might be applicable to the GATT/WTO context;
• to explore the policy implications of different approaches in balancing trade liberalization obligations and national regulatory autonomy in the GATT/WTO regime;
• to contribute to the understanding of some fundamental themes in public international law.
Abstract as per original application
(English/Chinese):
With tariffs and quotas becoming increasingly less important as the main trade barriers, the focus of the international trade community has shifted to non-tariff regulations that exist ‘behind the border’, especially heterogeneous product standards enacted by different countries purportedly for various social regulation purposes. To curtail the adverse effects of divergent product standards on international trade, a sophisticated GATT/WTO legal framework was concluded at the end of the Uruguay Round, imposing a range of disciplines on WTO Members in setting national product standards. The WTO's shift in focus toward regulating behind-the-border product standards has profound implications to WTO Members’ domestic regulatory processes, the consumers’ consumption choices in a globalizing world and to the WTO itself. On the one hand, there are protectionist elements at force in setting domestic trade policies and product standards may be contrived to shield domestic production from import competition. A failure to seriously consider the existence of covert protectionism undermines the integrity of international trade disciplines and provides a ready means of cheating with impunity. On the other hand, product standards are frequently set to protect important social values of the highest level such as human health and safety, consumer welfare and environment. From a WTO Member's perspective, the power to set product standards is inherent and inseparable for any democratic and accountable government and is at the social and political heart of their sovereignty. A broad intrusion into WTO Members' regulatory autonomy might place undue limits on non-protectionist regulatory processes and bring the WTO in direct conflict with domestic democracy. Indeed, the perception that the WTO has unreasonably constrained the ability of democratic communities to make unfettered choices about policies that affect the fundamental welfare of their citizens has generated much hostility towards the WTO and represents one of the most serious threats facing the international trade regime. This project intends to answer one fundamental question: to what extent should the WTO penetrate into the domestic regulatory order in the realm of product standards? Firstly, I will provide a comprehensive and detailed analysis of how product standards are regulated under GATT/WTO law. Secondly, I will evaluate to what extent the WTO has constrained WTO Members’ autonomy in setting product standards and whether such constraints are justified. Thirdly and finally, I will explore the policy implications of different approaches in balancing trade liberalization obligations and WTO Members's regulatory autonomy within the GATT/WTO framework.
随着关税和进出口配额逐渐不再是主要的国际贸易壁垒,国际贸易界的焦点转移到了国家内部的非关税管制制度上来,尤其是为了社会管理目的而实施的不同的产品标准。为了消减不同的产品标准给国际贸易带来的负面影响,世界贸易组织的成员方在乌拉圭回合结束的时候建立了一个复杂的法律体系,为世界贸易组织成员方政府制定国内产品标准制定了一系列的法律规则。 然而,世界贸易组织对其成员方内部的产品标准进行管制对其成员方内部的管制制度,消费者在一个全球化世界中的选择以及世界贸易组织本身带来了极为深远的影响。一方面,保护主义的幽灵在国内贸易政策中仍然存在,产品标准会被巧妙设计,从而对国内产业免遭进口产品的竞争进行保护。如果对这种隐藏的贸易保护主义没有严肃的考虑,则多边贸易纪律会遭到削弱,同时也提供了一种背离贸易纪律而不受到惩罚的方法。从另一个方面考虑, 产品标准的制定目的往往是为了保护一些极为重要的社会价值,例如国民的健康和安全, 消费者福利和环境保护。从世界贸易组织成员方的角度来看, 制定产品标准的权力是一个负责任民主政府内在的,不可分割的权力之一。实质上,这种权力是国家主权最核心的部分。对一个主权政府的管制自主权进行大幅度的干预有可能会对成员方非基于保护主义的管制施加不适当的限制,同时亦使世界贸易组织和成员方的国内民主程序发生直接冲突。在现实中已经产生了这一认识,即世界贸易组织不合理的限制了其成员方不受任何限制的选择影响市民根本福利的政策的能力。这一认识带来了对世界贸易组织的许多敌意。这也是世界贸易体系面临的最大威胁之一。这一认识同时也对世界贸易组织的合法性提出了质疑。 本项目旨在回答一个根本性的问题,即世界贸易组织的法律规则应该在何种程度内对国内产品标准的管制秩序进行干预?我将首先对世界贸易组织法如何管制国际贸易中的产品标准进行完整详细的法律分析;其次,我会讨论世界贸易组织法在何种程度上对世贸成员方政府制定产品标准的自主权进行了限制,以及这些限制是否合理。最后,我将对平衡贸易自由化和成员方政府管制自由的各种途径的政策意义进行探讨。
Realisation of objectives: The first three objectives have been achieved fully. I have examined how product standards are regulated under the GATT 1994, the TBT and the SPS Agreement. By examining both the WTO Agreements and the case law, I have provided an up-to-date and critical analysis of both the legal rules and the WTO court's interpretation of the legal rules. This analysis has provided a solid foundation for the last three objectives. The objectives 4, 5 and 6 have also been successfully achieved. I compared the EU case law to the WTO case law to see if the WTO has exceeded its mandate and become a global mega-regulator as many people suggested. I explored the different approaches that the WTO panels have adopted in balancing trade liberalization and national regulatory autonomy and the policy implications of such approaches. I also tried to relate the project to some fundamental themes in public internation law. For example, the project is an integral part of the scholarship on the allocation of power between sovereign states and international organizations, or the clash between ‘sovereignty’ and ‘globalization'. Another example is that many product standards setters in international trade are non-governmental entities. This project discusses how these NGOs set up product standards and the legitimacy of such product standards setting. This analyais is instrumental to the more broader topic of the place of non-state actors in international law. Admittedly, more could be done on objectives 4, 5 and 6. These objectives were set very broadly in the project proposal and the PI is reluctant to claim that these objectives have been achieved 'fully'. For example, the EU has a complicated regulatory system for product standards (including product eco-labels etc). Due to time constraints, the PI could not conduct a full analysis of all the relevant EU law and regulations. Instead, the PI only selected the issues that are most relevant to the main research question of this project. In addition, other than sovereignty and globalization, non-state actors and constitutionalization of international economic law, this project is also related to other more general PIL themes. Again, it is not realistic for the PI to conduct a thorough discussion of all relevant general PIL themes. Still, the PI is m satisfied that the most important questions closely related to this research project have been thoroughly addressed.
Summary of objectives addressed:
Objectives Addressed Percentage achieved
1.To provide a comprehensive and detailed analysis of how product standards, as possible non-tariff barriers to trade, are regulated under GATT/WTO law;Yes100%
2.To evaluate to what extent the WTO law, as interpreted by its dispute settlement body, has constrained WTO Members’ regulatory autonomy in setting product standards; Yes100%
3.To reflect whether the current extent of intrusion into the domestic regulatory autonomy is justified in view of the WTO texts, the nature of the legal devices that the WTO employs, the institutional arrangements of the WTO and its implications to the world trade system; Yes100%
4.To draw comparative insights from other entities with multilevel trade governance structures such as the European Union and United States and to evaluate to what extent their experiences might be applicable to the GATT/WTO context;Yes70%
5.to explore the policy implications of different approaches in balancing trade liberalization obligations and national regulatory autonomy in the GATT/WTO regime;Yes100%
6.to contribute to the understanding of some fundamental themes in public international law. Yes100%
Research Outcome
Major findings and research outcome: The GATT/WTO regime has incorporated a sophisticated toolkit to tackle the underlying tension between trade liberalization and domestic regulatory autonomy. These tools include the national treatment principle, weighing and balancing test, international standards, scientific evidence, permission for precautionary action, internal regulatory consistency, the least trade restrictive test and standard of review. I analyzed how these legal tools are interpreted by WTO tribunals in dealing with various categories of product standards (e.g., mandatory/voluntary; government/private and non-product-related production and process methods). In answering the central research question of this project: to what extent has GATT/WTO intruded into its Members’ domestic regulatory autonomy? I put forward four major findings. First, in a globalized world, it is not possible to delineate a clear contour for the 'sovereignty sphere'. The only feasible way is to assess the scope of domestic regulatory autonomy under the WTO Agreements by closely reading the WTO case law and to analyze its policy implications. My research further showes that to a very large extent it is unjustified to claim that the WTO has inappropriately intruded into WTO Members' domestic regulatory order. Second, despite textural and structural differences between the GATT, the TBT and the SPS Agreement, a jurisprudential cross-fertilization amongst the three Agreements has happened to the extent that, an emerging consistent approach has been developed in the WTO law in adjudicating the legality of product standards as well as in balancing trade and non-trade values. Third, in balancing free trade and the right to regulate, the GATT/WTO case law has oscillated between phases of varying severity and modesty. On the surface, the interpretive cycles may be explained by different interpretative methods. At a deeper level, however, the interpretative oscillation is due to a fundamental confusion of the purpose of the WTO. Fourth, the recent WTO case law has pointed to a growing consensus that the WTO epitomizes an anti- discrimination model, as opposed to a regulatory model. As a result, the early domestic regulatory autonomy unfriendly approach has been replaced by a more deferential approach which is far more respectful of domestic regulatory autonomy. This trend is illustrated, inter alia, by the partial resurrection of aim and effects test under Article III, a more nuanced weighing and balancing test under Article XX of the GATT and a much more deferential standard of review under the SPS Agreement. In view of these recent developments, it may be argued that the respect for domestic regulatory autonomy has come back with stronger force to the GATT/WTO system.
Potential for further development of the research
and the proposed course of action:
The project has analyzed all the WTO case law on product standards to date and made some bold and potentially contentious conclusions. One further development of the research is to keep tracking the new WTO cases and to predict the likely outcomes of the disputes by referring to the conclusions drawn from this project. This exercise is very useful in testing the validity of the conclusions of this research project. The second possible development is to further theorize the concluisons of this research project by exploring the changing political, economic and philosophical foundations of the GATT/WTO system. Possible questions for further research include: why did the GATT/WTO tribunals interprete the same texts differently in different times? How were these interpretations influenced by the prevailing political economy ideas at different times? To answer these questions, it is essential to move beyond the legal texts and case law to international political economy. I will try to familiarize myself with the relevant IPE work on the GATT/WTO system (especially how ideas shape the current legal rules) and work with an IPE scholar to deal with these new questions.
Layman's Summary of
Completion Report:
Increasingly, the focus of WTO law has shifted from tariff barriers at the national borders to heterogeneous product standards that exist ‘behind the border’. This shifting focus of the WTO law has profound implications to both Member States’ domestic regulatory process and the WTO. Frequently states set product standards to protect important social values of the highest level such as human health and safety, consumer welfare and environment protection.How should the GATT/WTO regime regulate heterogeneous product standards as potential trade barriers behind the borders of WTO members, whilst striking a proper balance between trade liberalization and domestic regulatory autonomy? As the WTO has admitted, this is one of the most fundamental questions facing the international trade law community and may represent one of the most serious threats to the GATT/WTO regime. This research project explores the interaction between global economic governance and national regulatory autonomy through the lens of WTO's regulation of heterogeneous product standards. The project is both practically and theoretically valuable. Practically, it offers the first comprehensive analysis of WTO's regulation of product standards in international trade. Theoretically, it contributes to the arguably the most important debate of our times: how does economic globalization affect the national sovereignty?
Research Output
Peer-reviewed journal publication(s)
arising directly from this research project :
(* denotes the corresponding author)
Year of
Publication
Author(s) Title and Journal/Book Accessible from Institution Repository
2013 Ming DU  Standard of Review in TBT Cases, in Michael Trebilcock (eds), Research Handbook on WTO and Technical Barriers to Trade, Edward Elgar Publishing (forthcoming in November 2013).  No 
Recognized international conference(s)
in which paper(s) related to this research
project was/were delivered :
Month/Year/City Title Conference Name
February 2012 Oxford The Place of National Preferences in International Trade Law  Oxford Faculty of Law Public International Law Visiting Speaker Series 
September 2011 Consumer Sovereignty or Start of The ‘Slippery Slope’? The Place of Voluntary Eco-Labels in International Trade Law  Colloquium on Environmental Scholarship 
July 2012 Singapore National treatment under the TBT Agreement  Society of International Economic Law Conference 
Other impact
(e.g. award of patents or prizes,
collaboration with other research institutions,
technology transfer, etc.):
The conference papers listed above are being revised in light of the new WTO case law (especially the three new TBT cases) and will be submmitted to peer-reviewed journals soon. Another article discussing the role of scientific evidence is being revised and will be submitted to peer-reviewed journals as well. Based on the research findings, I am working on a monograph on products standards in the WTO.

  SCREEN ID: SCRRM00542