Sultans of swing? : the emerging WTO case law on TBT

Abstract

Following years of silence after EC-Sardines1, three cases were adjudicated by Panels under the WTO Agreement on Technical Barriers to Trade (TBT) in 2011 : US Clove Cigarettes, US-Tuna II (Mexico), and US-COOL. These three cases dealt with key provisions of the Agreement, but the Panels adopted irreconcilable approaches. All three decisions were appealed before the Appeliate Body (AB), but even the latter failed to apply a coherent methodology to adjudicate similar disputes. In Section II, we provide a brief account of the facts and the outcomes of the cases, whereas, in Section III we discuss the methodology applied by the WTO judiciary in the three cases.