Harmonisation, equivalence and mutual recognition of standards: an analysis from a trade law perspective
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Date
2009Author
Zúñiga Schroder, Humberto Angel
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Abstract
Standards are necessary for an efficient functioning of the market and their
regulation is an increasingly important area of law. Such is their importance that
today it is possible to find thousands of standards developed by international
standardising bodies, governmental agencies and even private companies in
products that range from SIM cards and medical devices, to the pasteurisation of
milk and computer protocols. Reasons that justify their widespread use are not
difficult to ascertain: they play, for example, an important role in the achievement
of economies of scale in manufacturing and in the attainment of compatibility of
products and processes. However, together with these positive effects, standards can
also have discriminatory consequences for trading partners, especially in cases in
which they are badly designed and applied (for example, when they are introduced
with the real purpose of creating an artificial comparative advantage for domestic
producers). Given the existence of these ambivalent effects, three different policy
tools have been developed within the World Trade Organisation (WTO) legal
regime, aimed at maximising the benefits derived from the use of standards:
harmonisation, equivalence and mutual recognition. The present thesis investigates
the way in which both the WTO Technical Barriers to Trade (TBT) and Sanitary
and Phytosanitary Measures (SPS) Agreements regulate these three instruments,
and also, the potential shortcomings of the system from a trade law perspective. For
that purpose, it studies relevant legal provisions of both Agreements, WTO
jurisprudence and guidelines issued by international standardising bodies, among
other topics.