This chapter provides a unique account of the content of discussions in SPS and TBT Committees. Based on an in-depth analysis of Committee meeting minutes over 5 years (2010–2014), it looks into the demand side of information, i.e. in the information sought by WTO Members raising a concern in the SPS and TBT Committees and their purpose in raising such concerns. It finds that Members active in the STC discussions are either after further information or clarification of a measure, they intend to influence draft regulations through inputs to other Members’ regulatory process, or they try to address a problem they face in the implementation of the measure. STCs therefore allow WTO Members to engage in technical dialogue about domestic regulations, against the backdrop of the SPS and TBT Agreements, without there being a legal stake in the discussion. In other words, transparency can be seen as shaping the behaviour of WTO Members without there being new agreements or enforcement.

Using the framework exposed in Chapter 6, this chapter presents how the SPS and TBT transparency mechanisms serve to address a number of the factors needed by WTO Members to adjudicate. In particular, it shows the extent to which SPS and TBT transparency allows to gain access to information about other Members’ regulations, to reduce some resource inequalities through equal access to information and to offer alternative fora to discuss conflicts and work towards a mutually acceptable solution. Still, this chapter underlines inequalities that remain in the access to WTO transparency, suggesting some explanations for unequal access to dispute settlement.

This part presents the uses made by WTO Members of the SPS and TBT Transparency tools, to demonstrate that transparency can – and does – substitute the dispute settlement procedure. To do so, it gives an overview of both the ‘supply side’ of information, i.e. the volume of information that is shared by WTO Members, and the ‘demand side’ of information, i.e. the information sought by WTO Members that raise concerns about other WTO Members’ measures. The part shows that despite active sharing of information about domestic measures by WTO Members, there is still much higher demand than supply of information. The possibility to raise Specific Trade Concerns (STCs) in SPS and TBT Committees allows to bridge this gap and obtain information, contributes to Members regulatory process and addresses practical impediments to trade. As a result, STCs play an important role in addressing trade conflicts and preventing them from being raised as formal disputes.

Domestic regulations cannot – and should not – be eliminated in the same way as tariffs have been. In many cases, regulatory heterogeneity is justified by specific domestic needs, and the SPS and TBT Agreements grant WTO Members the competence to determine their preferred regulations, subject to certain conditions.

Chapter 4 shows the information that is made available to WTO Members through transparency in the SPS and TBT context – the ‘supply side’ of information. In this regard it presents information made available through notifications, bilateral and multilateral regulatory dialogue, through dialogue with the private sector. The SPS and TBT Agreements enable Members to obtain a considerable volume of information on each others’ domestic measures. The high volume of information about SPS and TBT measures shows that the transparency tools are made use of substantively. Information, however, remains limited on whether this information matches the information needs. The main indication in this regard, i.e. the STC discussions, suggests that Members still have a high demand for further information including about measures that have not been notified, and therefore the overall level of disclosure of SPS and TBT measures remains insufficient.

This part gives an overview of the core legal disciplines of the SPS and TBT Agreements, the transparency obligations and related practices that have developed, as well as the provisions enabling regulatory dialogue and co-operation. It demonstrates that the legal and institutional disciplines of the SPS and TBT Agreements set the ground for a Member-driven implementation process. Because the substantive obligations remain part of ‘incomplete contracts’ with limited information necessary for their operation, the transparency obligations and related committee practices enable regulatory dialogue as a way for Members to work together towards the most appropriate domestic measures. Ultimately, the robust transparency framework of the Agreements places the Members as guardians of legality of each others’ domestic regulations and allows them to cooperate to ensure effective implementation.

As we have seen, only a very small fraction of specific trade concerns (STCs) eventually end up in formal disputes, arguably because the transparency framework has allowed Members to effectively manage conflicts at an informal level. The majority of all SPS and TBT disputes are discussed in the SPS and TBT Committees before, during or after the formal dispute is raised, and this is especially true of disputes that focus on SPS or TBT issues. Developing countries in particular tend to launch STCs before or in parallel to dispute settlement procedures, whereas the EU and the United States raise formal requests for consultations in the TBT Committee without first passing through Committee discussions. This confirms that WTO Members truly view the Committees as a valuable forum in which to work through disputes regarding domestic regulatory matters and, often, a privileged space with regard to costly formal dispute settlement procedures. The behaviour of the EU and United States confirms that they may have other means of managing trade conflicts or gaining information to build disputes that does not require them to raise STCs as systematically as other Members.

Part II offered an overview of how WTO Members use the SPS and TBT transparency tools, and how these constitute the very basic levels of the SPS and TBT ‘disputing pyramid’. The notifications centralised by the WTO are generally an important source of the information of which WTO Members – including a number of developing countries – make extensive use, but specific trade concerns (STCs) are still needed alongside these notifications if Members are to obtain further insights on the impacts of measures and in instances of non-notified measures. The ‘cross-notification’ that raising STCs in the SPS and TBT Committees grants to Members allows them to perform a monitoring role, ensuring that the measures of their trading partners are consistent with their WTO obligations. Scott refers to this as ‘mutual accountability through mutual oversight’. The technical and informal quality of the discussions in Committee largely allow this oversight to be non-confrontational, and this allows Members to co-operate towards mutually acceptable implementation of the SPS and TBT Agreements.

Chapter 6 compares specific trade concerns and dispute settlement, demonstrating that both fora are used in a complementary manner, mostly one after the other or in parallel. This is true looking at all requests for consultations that mention the SPS and TBT Agreements, but even more so when the main subject matter of the dispute is the SPS or TBT Agreement. Generally speaking, STCs serve as a forum for dialogue to reach a common understanding of WTO compliant measures, whereas formal disputes are raised when agreement cannot be reached and a clear and authoritative interpretation is needed from a third party. All country groups tend to participate in both fora, while developing countries are most active in trying to first solve an issue through an STC before going to dispute settlement. Overall, through an empirical study of WTO Member practice, this chapter confirms the importance of regulatory co-operation between WTO Members for the effective implementation of the SPS and TBT Agreements.