Now, we have a trio of TBT-related Appellate Body reports (Clove; Tuna II; COOL), all of which have been issued quite recently. Is this a harbinger for a more sophisticated set of jurisprudence unique to the TBT Agreement? The answer depends on what you expect from the TBT jurisprudence. If you expect something radically different from the traditional GATT jurisprudence, you would be disappointed. Nonetheless, I believe the recent series of AB decisions at least have made one point clear: a doctrinal shift from a “product”- oriented interpretation to a “measure”- oriented
one. In other words, at least as far as TBT Article 2.1 (textually very similar to GATT Article III:4) is concerned, the AB’s interpretation will focus more on the (de facto) disparate impacts (“less favorable treatment”) than on the traditional “like product” test. Here, the new buzzword, “evenhandedness” is worth our attention. To me, this is a hermeneutical recycling of the long-forgotten, and more importantly, highly under-appreciated, “chapeau” test under GATT Article XX.
So, why is the chapeau so important? As witnessed in Gasoline and Turtle, the chapeau can play a very useful role in reconciling between two ostensibly conflicting goals, i.e., free trade and regulatory
protection. The chapeau test probes HOW a measure is actually applied, rather than WHAT the measure is. Therefore, the AB can still strike down a measure while it upholds the legitimacy of its regulatory objective. This is good news to everyone involved. Both parties (complainant and defendant)
might declare a victory. (In fact, that’s what the U.S. did in the Turtle case.) In terms of compliance, you might not need to repeal the law itself; you can just change the way in which you execute the law
(guidelines etc.). Naturally, the executive might not need to deal with the Congress (National Assembly). In this regard, we can see that the AB was quite lenient to defendants (regulating states) in terms of TBT Article 2.2, which is textually similar to GATT Article XX (minus the chapeau).
From a broader perspective, this course of TBT jurisprudence might be pre-ordained. To me, this is a vindication of the “Common Law of International Trade.” Go and check out the case law of the ECJ on Free Movement of Goods as well as the U.S. Supreme Court’s Dormant Commerce Clause. You will find a very similar (converging) pattern of hermeneutics. All these courts tend to focus on the “manner” in which a measure is applied in practice. After all, all these courts, the ECJ, the U.S. Supreme Court and the AB, engage in “constitutional adjudication” in the sense that they attempt to strike a balance between market and state. (In fact, the U.S. Supreme Court actually used the word “evenhanded.”)
Finally, one might anticipate the “less,” not more, TBT case law in the future. Considering this “process” –oriented jurisprudence as well as many procedural requirements in the TBT that can play a similar
balancing role, potential disputants might want to fully take advantage of the TBT Committee (“specific trade concerns”), rather than having recourse to litigation. Of course, it would depend on what kind of dispute is involved.