On Friday, ICTSD and WTI Adivisors hosted an excellent discussion of the US - Tuna II WTO Appellate Body report, with Lorand Bartels, Joel Trachtman, Iain Sandford, David Agnew, and Matthew Owens as speakers. You can view the recording here.
Via twitter, I asked the following questions: "The AB focused its findings of violation/lack of justification on the determination provisions. Is the AB imposing too high a standard on legislators/regulators for the effectiveness of domestic laws and regulations? Is it really possible for measures to be so closely calibrated to the risks they address and their overall goals? Should we allow more leeway for imperfect laws and regulations?"
The answers came at about 1:40:20 of the recording.
-- Lorand started it off by noting that this is "exactly what proportionality analysis gives you -- it gives you a tool for figuring out when a measure is properly calibrated." He emphasized that when he referred to proportionality, he had in mind an examination of "necessity."
-- Joel then noted that once we start weighing costs and benefits, we are asking tribunals to replicate a very complex national regulatory process. He said that perhaps we need a threshold determination of protectionist intent.
-- Iain suggested that identifying intent is a challenging task. He also said he was wary of deference here, and was not sure too much deference should be given to national government regulation.
-- Matthew added that the measure here was not protectionist, and that it is applied "relatively evenly" to all producers.
-- Finally, Lorand weighed in one more time, in response to Joel, noting that the WTO does more than stop protectionism, and this is a good thing. It also addresses dumb rules that harm exports, and that it promotes good regulation.
I'm going to declare a partial victory here, in the sense that my questions generated exactly the kind of debate I was hoping for, with the different views set out clearly. On the other hand, I feel like a lost a bit as well, given that two of the speakers had views that seem very different than mine on this issue, so I still have a lot of work to do!
But regardless of who is right and wrong, I think this is the discussion government officials should be having when crafting trade agreement rules. Are trade/investment rules about stopping protectionism? Or are they about promoting good regulation? Those are very different ideas, with enormously different impacts on domestic regulation: Think about how much regulation could be considered protectionist, as compared to how much regulation could be considered dumb.