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date: 09 December 2019

Abstract and Keywords

This article explores regulatory measures in the World Trade Organization (WTO), showing how it is extremely difficult to distinguish between measures that are a legitimate exercise of domestic regulatory autonomy from others which may be seen as a form of protectionism. Even in the early years of the regime, when the reach of the General Agreement on Tariffs and Trade behind the borders was minimal, there were difficulties associated with determining impermissible versus permissible discrimination, without reference to some standards. The article then goes on to address agreements that deal with these concerns, including the Sanitary and Phytosanitary Measures Agreement and the General Agreement on Trade in Services. It also discusses the National Treatment obligation with respect to non-fiscal laws, regulations, and requirements that affect imported products; the product–process distinction; the concept of public morals; the ‘necessity’ test; the requirements of the chapeau; the Agreement on Technical Barriers to Trade and the role of international standards; and food and agriculture regulation. Finally, the article investigates the implications that the WTO's regulatory measures generate for the organization's democratic deficit.

Keywords: regulatory measures, World Trade Organization, protectionism, Tariffs and Trade, Phytosanitary Measures Agreement, Trade in Services, National Treatment, public morals, necessity test, chapeau

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