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11 Global Trade & Cust. J. 369 (2016)
Article 2.2 of the TBT Agreement: More Complicated than Necessary

handle is hein.kluwer/glotcuj0011 and id is 379 raw text is: Article 2.2 of the TBT Agreement: More Complicated than Necessary? Alejandro Sanchez' & Karyn Sandra Aneno Article 2.2 of the Technical Barriers to Trade Agreement requires that technical regulations shall not be more trade restrictive than necessary. The legal standard of Article 2.2 is composed of various elements which have been developed in World Trade Organi ation jurisprudence. This article explains the different components of Article 2.2, and presents a critical analysis of the issue of 'risks of non-fulfilment'. I INTRODUCTION Article 2.2 of the Agreement on Technical Barriers to Trade (hereinafter 'TBT Agreement') stipulates the obli- gation that technical regulations shall not be more trade restrictive than necessary to fulfil a legitimate objective. In contrast to Article 2.1 of the TBT Agreement, Article 2.2 does not focus on the discriminatory aspects of a technical regulation, but on the necessity of a measure's trade restrictiveness. This obligation contained in Article 2.2 has been described as 'one of the core objectives of the TBT Agreement'.' This provision lay dormant for more than a decade after the World Trade Organization (WTO) agreements entered into force in 1995. The Appellate Body's first opportunity to address and interpret Article 2.2 arose in 2011, in the context of the US - Tuna II (Mexico) dispute. The Appellate Body's interpretation revealed a complex legal standard, involving a weighing and balancing of various elements, some of which resemble those of Articles XI and XX of the General Agreement on Tariffs and Trade (GATT) 1994. Although various WTO disputes have included claims under Article 2.2, all of these claims have failed. This happened, specifically, in the following disputes: - In US - Clove Cigarettes, the panel rejected Indonesia's claim under Article 2.2 which was not appealed by Indonesia. In US - COOL, US -Tuna II (Mexico), and US - COOL (Article 21.5 - Canada and Mexico), the Appellate Body reversed the panel's findings of inconsistency under Article 2.2. - In EC - Seal Products, the panel found a violation of Article 2.2, which was later declared 'moot and of no legal effect' by the Appellate Body, which ruled that the European Union (EU) measure was not a technical regulation and, thus, fell outside the scope of the TBT Agreement. Therefore, we are yet to see an example of a measure declared inconsistent with Article 2.2 of the TBT Agreement. This article explains the legal standard of Article 2.2, as clarified by panels and the Appellate Body. We examine, in particular, the meaning of the phrase 'taking account of the risks non-fulfilment would create', which is a crucial element of the legal standard of Article 2.2. 2 LEGAL STANDARD UNDER ARTICLE 2.2 OF THE TBT AGREEMENT Article 2.2 of the TBT Agreement states: Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. For this purpose, technical regulations shall not be more Alejandro Sanchez is Counsel at Advisory Centre on WTO Law (ACWL). Email: alejandro.sanchez@acwl.ch. Karyn Sandra Aneno is Senior Legal Officer in the Ministry of Trade, Industry and Cooperatives of Uganda. Email: karynaneno@gmail.com. US Tuna II (Mexico), Panel Report, para. 7.385. 369 Global Trade and Customs Journal, Volume 1 1, Issue 9 S2016 Kluwer Law International BV, The Netherlands

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