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49 Ariz. St. L.J. 821 (2017)
Regulatory Consistency Requirements in International Trade

handle is hein.journals/arzjl49 and id is 851 raw text is: REGULATORY CONSISTENCY REQUIREMENTS IN INTERNATIONAL TRADE Alan 0. Sykes* ABSTRACT One of the most challenging tasks for international trade agreements is to distinguish protectionist regulation from legitimate regulatory policies. An important set of tools in this regard may be termed regulatory consistency requirements. These include the national treatment obligation of GATT, which requires that imported goods be treated no less favorably than like domestic goods by regulators. Further consistency requirements were introduced at the formation of the WTO. These newer consistency requirements allow challenges to domestic regulation based on disparate policies toward different products and industries (such as beef and pork, or salmon and baifish). This paper explores the economic logic and legal scope of consistency requirements in WTO law. The central claim is that narrow consistency requirements such as the national treatment obligation are helpful in the identification of protectionist regulations, but the broader inter-industry consistency obligations that have surfaced in WTO jurisprudence are largely unhelpful for that purpose both in theory and in practice. The many confounding variables in such comparisons make confident inferences impossible. INTRODUCTION International trade agreements such as those of the WTO reduce barriers to trade among member nations. Seven decades ago when the General Agreement on Tariffs and Trade (GATT, predecessor to the WTO) was negotiated, the principal barriers to international trade were border instruments-tariffs and quotas. But the drafters anticipated that as a consequence of the tariff ceilings negotiated under GATT Article I and the general prohibition of quotas in GATT Article XI, domestic political pressures for protectionism would spill over into other policy instruments, * Stanford Law School. I am grateful to Bob Staiger and Mark Wu for thoughtful comments and suggestions, and to conference and workshop participants at Arizona State, Georgetown, Stanford, and Washington & Lee.

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