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A Comment and Epilogue

Published online by Cambridge University Press:  20 January 2017

Rob Howse
Rob Howse*
Affiliation:
NYU Law School, howserob@gmail.com
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Extract

The Appellate Body report in EC-Seal Products is a landmark decision in several respects: for its recognition that animal welfare is a matter of public morality that may justify a trade ban in response to cruelty; for the AB's new–found clarity with respect to the irrelevance of regulatory purpose in the determination of “treatment no less favourable” under the National Treatment and MFN provisions of the GATT; for its suggestion that trade measures not defined by product–related distinctions but other criteria are not covered by the TBT Agreement; and for its partial acknowledgement that a Member may maintain a measure consistent with Article XX even if the measure represents a complex trade–off between a main purpose and other purposes that may limit the extent the main purpose can be furthered. But the decision arguably raises as many questions as it answers, and some have already complained about the rather sphinx–like quality of the judgment.

Type
Symposium on the EU–Seal Products Case
Information
European Journal of Risk Regulation , Volume 6 , Issue 3 , September 2015 , pp. 418 - 422
Copyright
Copyright © Cambridge University Press 2015

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References

1 European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, Reports of the Appellate Body, WTO Doc. WT/DS400/AB/R and WT/DS401/AB/R, 18 June 2014, para. 5.167.

2 Howse, Langille and Sykes, “Pluralism in Practice”, supra note 1.

3 Brazil — Measures Affecting Imports of Retreaded Tyres, Report of the Appellate Body, WTO Doc. WT/DS332/AB/R, 12 June 2007, para. 143.

4 China – Measures Related to the Exportation of Various Raw Materials, Reports of the Appellate Body, WTO Doc. WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R, 22 February 2012, para. 306.

5 Howse, and Langille, “Permitting Pluralism”, supra note 1, at pp. 423-424.

6 Canada – Certain Measures Affecting the Renewable Energy Generation Sector / Canada – Measures Relating to the Feed–in Tariff Program, Reports of the Appellate Body, WTO Doc. WT/DS412/AB/R / WT/DS426/AB/R, 24 May 2013, paras. 5.163-5.164.