Prior to EC – Seal Products, in all World Trade Organization (WTO) disputes involving claims under the Agreement on Technical Barriers to Trade (hereinafter ‘TBT Agreement’), the Appellate Body deemed every contested measure to be a ‘technical regulation’ within the meaning of the TBT Agreement. The interpretation of the term ‘technical regulation’ is very important to WTO Members seeking market access. It serves as a gateway to the TBT Agreement, which offers complainants litigation avenues different from, and additional to, those available under the General Agreement on Tariffs and Trade 1994. This article analyses the evolution of the Appellate Body’s interpretation and application of the term ‘technical regulation’ from EC – Asbestos to EC – Seal Products, particularly in respect of ‘product characteristics’. The Appellate Body’s ruling in EC – Seal Products may reflect certain misgivings about the inclusion of prohibited product characteristics within the scope of a ‘technical regulation’, in the EC – Asbestos ruling. At the same time, the EC – Seal Products approach appears to introduce a greater degree of case-specific weighing and balancing of a rule versus exceptions to arrive at a characterization of the measure as a whole. This arguably reduces the predictability as to whether a measure as a whole will qualify as a technical regulation under the ‘product characteristics’ criterion. Given this greater flexibility and the resulting uncertainty, a clarification of the term ‘their related process and production methods’ in the definition in Annex 1.1 to the TBT Agreement, as an alternative to the ‘product characteristics’ criterion, would have been helpful. However, in EC – Seal Products, the Appellate Body did not avail itself of the opportunity to provide this clarification.
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