Recent WTO case law has blurred the distinction between Technical Regulations and Standards as defined under the WTO Agreement on Technical Barriers to Trade (TBT Agreement). The main issue concerns the interpretation of "mandatory compliance".
This paper examines the analysis undertaken by the Panel and Appellate Body in US-Tuna II ( Mexico) in assessing the difference between mandatory and voluntary compliance. It demonstrates that there are certain threshold questions implicit in the reasoning employed by the Panel and Appellate Body that provide guidance in assessing the mandatory character of a measure. Although not dispositive, this guidance helps to distinguish between a Technical Regulation and a Standard.Global Trade and Customs Journal