1. The WTO-SPS and TBT Agreements and the Multilateral Trading System of the WTO
Workshop of the Confederation of Nepalese Industries (CNI)
Patan, July 20th/21st
Achim Seiler,
Trade Consultant and Capacity Building Specialist
EU-Project: Trade and Private Sector Development (TPSD)
TPSD is implemented by
in cooperation with
and

2. The Process leading to the WTO
The Kennedy Round ( ) - achieved substantial reductions of tariff barriers The Tokyo Round ( ) - first negotiations on non-tariff barriers - creation of plurilateral codes - establishment of the enabling clause The Uruguay Round ( ) - creation of the WTO - transformation of Tokyo Round plurilateral codes into multilateral agreements - streamlining of the dispute settlement system - incorporation of new agreements on trade in services and trade-related aspects of IPRs

3. The Structure of the WTO
Ministerial Conference
General Council
General Council (Dispute Settlement Body)
General Council (Trade Policy Review Body)
Council for Trade in Goods
Council for Trade in Services
Council for TRIPs

4. The Structure of the WTO (II)
General Council
Council for Trade in Goods
Council for Trade in Services
Council for TRIPs
Committees on Market Access, SPS, TBT, RoO, Subsidies, etc.
Committees on Trade in Financial Services, etc.

5. The Multilateral Agreements of the WTO
GATT 1994
Agreement on Agriculture
Agreement on Sanitary and Phytosanitary Measures
Agreement on Technical Barriers to Trade
Anti-Dumping Agreement
Agreement on Investment Measures
Agreement on Customs Valuation
Agreement on Pre-Shipment Inspection
Agreement on Import Licencing
Agreement on Rules of Origin
Agreement on Subsidies and Countervailing Measures
Safeguards Agreement

6. The Multilateral Agreements of the WTO
GATS Agreement
TRIPs Agreement
Dispute Settlement Mechanism
Newly added: Trade Facilitation Agreement

7. Functions of the WTO The main functions of the WTO are to:
administer trade agreements
serve as a forum for trade negotiations
settle trade disputes
review member´s trade policies
assist developing countries with trade policy issues, through technical assistance and training programs
cooperate with other international organizations

8. Fundamental principles of the WTO
Non-discrimination is the fundamental principle of the multilateral trading system. It is embodied by the most favoured nation (MFN) treatment obligation and the national treatment (NT) obligation MFN: every favor granted to another country (such as lower customs duties on a specific product) must be granted immediately and unconditionally to all other WTO members. NT: The National Treatment principle prohibits a Member from favouring its domestic products over the imported products of other Member countries

9. Coverage TBT
Measures necessary to ensure the quality of exports, or for the protection of human, animal or plant life and health, of the environment, or for the prevention of deceptive practices, at the levels considered appropriate (…) necessary for the protection of essential security interests (preamble)

10. Coverage SPS
Measures to protect human, animal or plant life or health, subject to the requirement that these measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between Members where the same conditions prevail or a disguised restriction on international trade (preamble)

11. Interface between SPS and TBT
TBT: The provisions of the Agreement do not apply to sanitary and phytosanitary measures as defined in Annex A of the Agreement on the Application of Sanitary and Phytosanitary Measures (Art. 1.5)
SPS: Nothing in this Agreement shall affect the rights of Members under the Agreement on Technical Barriers to Trade with respect to measures not within the scope of the Agreement (Art. 1.4)

12. SPS-Measures Protection of: Against risks arising from:
Diseases carried by animals, plants or their products
Additives, contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs
Diseases, disease-carrying organisms or disease-causing organisms
Entry, establishment or spread of pests
Human Life
or Health
Animal Life
Plant Life
Member’s Territory

13. Against risks arising from:
Protection of:
Against risks arising from:
Diseases carried by animals, plants or their products
Additives, contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs
Diseases, disease-carrying organisms or disease-causing organisms
Entry, establishment or spread of pests
Human Life
or Health
Animal Life
Plant Life
Member’s Territory

14. Against risks arising from:
Protection of:
Against risks arising from:
Diseases carried by animals, plants or their products
Additives, contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs
Diseases, disease-carrying organisms or disease-causing organisms
Entry, establishment or spread of pests
Human Life
or Health
Animal Life
Plant Life
Member’s Territory

15. SPS and/or TBT
Source: Codex

16. Common Features Harmonization
Establishment, recognition and application of common measures by different Members
Equivalence
Acceptance of another country’s procedures as equivalent whenever the same level of protection is achieved
Transparency
Designation of a national notification point, establishing one (or more) enquiry points
Technical Assistance
Assistance to Developing Country Members to enable their compliance with the stipulations of the SPS and TBT agreements.
S+D
Longer transitional periods
Dispute Settlement
Unified WTO dispute settlement procedure (additional options under SPS)

17. Based on.... Technical Regulation Regulation Int. Standard
TBT
SPS

18. In Conformity/Harmony with...versus Based on...
Regulation
Technical
Regulation
1:1
Int. Standard
Int. Standard
Int. Standard
TBT
SPS

19. Based on.... Technical Regulation Regulation Int. Standard
TBT AND SPS

20. Mandatory or voluntary
Main Differences (I)
Mandatory or voluntary
voluntary
VC Operators
mandatory
‚SHALL‘
‚SHALL‘
Regulators/
Legislators
SPS
TBT

21. Int. Standards and the appropriate level of protection (ALOP)
a) b) c)

22. Main Differences (II)
Members shall ensure that their sanitary and phytosanitary measures do not arbitrarily or unjustifiably discriminate between Members where identical or similar conditions prevail, including between their own territory and that of other Members. Sanitary and phytosanitary measures shall not be applied in a manner which would constitute a disguised restriction on international trade
(SPS-Agreement, Art. 2.3)

23. Main Differences (III)
With the objective of achieving consistency in the application of the concept of appropriate level of sanitary or phytosanitary protection against risks to human life or health, or to animal and plant life or health, each Member shall avoid arbitrary or unjustifiable distinctions in the levels it considers to be appropriate in different situations, if such distinctions result in discrimination or a disguised restriction on international trade.
(SPS-Agreement, Art. 5.5)

24. Identical or Similar Conditions
Main differences (IV)
Measures (ALOP)
Identical or Similar Conditions

25. Main differences (V)
ALOP
ALOP
Different Situations

26. Pertinent case law
The Appellate Body adressed the question of how to ascertain the level of sanitary protection chosen by a Member and found that:
Members have an implicit obligation under the SPS Agreement to positively determine their appropriate level of protection;
There is no obligation to determine it in quantitative terms;
In cases where a member does not determine its appropriate level of protection, or does so with insufficient precision, such level may be established by panels on the basis of the level reflected in the SPS measure actually applied

27. The Panel had noted that „imposing the same sanitary measure for different situations does not necessarily result in the same level of protection“. The Appelate Body did not disagree with this observation
Different Situations

28. Thank You (