Undesigned Parallelism

• Author: Jon R. Johnson
• Pages: 170-214

CHAPTER

UNDESIGNED

As

discussed

in

chapter

1,

Canada

is

bound under

the WTO

agreements

and

NAFTA

by

parallel sets

of

somewhat

different

obligations

in

respect

of

sanitary

and

phytosanitary

measures, technical barriers

to

trade, intel-

lectual

property,

and

government procurement.

The

NAFTA

trade-in-

goods provisions also have counterparts

in

GATT

1994 with

the

result

that parallel obligations exist with trade

in

goods. However, with these

provisions there

was a

conscious

effort

by the

drafters

of

NAFTA

and its

predecessor,

CUFTA,

to

incorporate certain

GATT

obligations

as a

start-

ing

point

and to

improve upon them.

With

sanitary

and

phytosanitary

measures,

technical barriers, government procurement,

and

intellectual

property,

parallel obligations evolved

not

through

a

conscious

effort

to

improve

upon

a

pre-existing

set of

obligations but, rather,

as the

result

of

obligations

in

each

of

these areas being negotiated contemporaneously

in

separate negotiations.

The

Uruguay Round negotiations clearly

influ-

enced

the

outcome

of the

NAFTA

negotiations,

but the

NAFTA

outcome

cannot

be

seen

as an

improvement upon

the

corresponding

WTO

agree-

ments.

In

some instances

the

NAFTA

regime

is

more rigorous

but in

some other instances,

the WTO

regime

is

clearly more stringent.

The SPS

Agreement

and the

TBT

Agreement, both multilateral agree-

ments

by

which

all

NAFTA

countries

are

bound, have their parallels

in

Section

B of

NAFTA

Chapter Seven (Sanitary

and

Phytosanitary Mea-

sures)

and in

NAFTA

Chapter Nine (Standards-Related Measures)

respectively.

The

TRIPS

Agreement,

also

a

multilateral agreement,

is

par-

alleled

by

NAFTA

Chapter Seventeen (Intellectual Property)

and the

170

PARALLELISM

H

Undesigned Parallelism

171

plurilateral Government

Procurement

Agreement

(by

which Canada

and

the

United States

but not

Mexico

are

bound)

is

matched

by

NAFTA

Chapter

Ten

(Government Procurement).

As

to

which agreement applies

in any

given instance

is

governed

by

the

considerations discussed

in

chapter

1

under "Inconsistencies

between Agreements: Which Agreement Prevails?"

The

practical result

for

lawmakers

is

that laws must conform

to the

more stringent

of the

two

sets

of

parallel

but

somewhat

differing

norms.

CIFTA

does

not

create parallel obligations but, rather, provides that

the

rights

and

obligations

of

Canada

and

Israel

are to be

governed

in

each

of

these areas

by the

relevant

WTO

agreement.1

CCFTA does

not

provide

for

rights

and

obligations

in any of

these areas.

The

rights

and

obligations

of

Canada

and

Chile

in

respect

of

sanitary

and

phytosanitary

measures, technical barriers

to

trade,

and

intellectual property

are

gov-

erned

by the

relevant

WTO

agreements.

As

Chile

is not a

signatory

to

the

Government

Procurement

Agreement, there

is no

agreement respect-

ing

government procurement between Canada

and

Chile.

While clearly necessary,

standards2

can be

turned into

effective

trade

barriers, particularly

if

they

are

applied

in a

discriminatory manner

or if

they

are not

transparent.

The

Tokyo Round

of

GATT

negotiations pro-

duced

a

single code that applied

to

"technical barriers

to

trade."

The

Uruguay

Round negotiators carried

forward

and

elaborated upon

the

Tokyo Round code

in the

TBT

Agreement

and

created

an

entirely

new

Article

4.2, referring

to the

Agreement

on

Technical

Barriers

to

Trade,

set out in

Annex

1A

of the

Agreement

Creating

the

World

Trade

Organization,

15

April 1994

(Dobbs

Ferry, N.Y.: Oceana Publications, 1997) [WTO

Agreement]

[TBT

Agreement];

art. 4.3, referring

to the

Agreement

on the

Application

of

Sanitary

and

Phytosanitary

Measures,

set out in

Annex

1A of the WTO

Agreement,

ibid.,

[SPS

Agreement]',

art.

6.1,

referring

to the

Agreement

on

Government

Procurement,

set out

in

Annex

4 of the WTO

Agreement,

ibid.,

[Government

Procurement

Agreement];

and

art.

9.1,

referring

to the

Agreement

on

Trade-Related

Aspects

of

Intellectual

Property

Rights,

set out in

Annex

1C of the WTO

Agreement,

ibid.,

[TRIPS

Agreement].

This

expression

is

used

here

in a

generic

sense.

As

discussed

below,

the

expression

"standards"

has a

defined

and

narrower meaning

in the

TBT

Agreement,

ibid.,

and

in

Chapter Nine

of the

North American

Free

Trade

Agreement,

17

December 1992,

Can.

T.S. 1994

No. 2

[NAFTA].

1

2

A.

SANITARY

AND

PHYTOSANITARY

MEASURES

AND

TECHNICAL

BARRIERS

TO

TRADE

172

INTERNATIONAL

TRADE

LAW

set of

rules

for

sanitary

and

phytosanitary

measures

in the

SPS

Agreement.

NAFTA

also contains

two

separate sets

of

rules, with Section

B of

Chapter

Seven

applying

to

sanitary

and

phytosanitary measures

and

Chapter Nine

(Technical

Barriers

to

Trade) applying

to

"standards-related measures."

The

correct categorization

of a

measure

is

critical

to

applying these

WTO and

NAFTA

provisions.

The

first

question

to ask in

applying these

provisions

is

whether

the

measure

is a

"sanitary

or

phytosanitary mea-

sure"

as

defined

in the SPS

Agreement

and

NAFTA.

If it is, the SPS

Agreement

and

Section

B of

NAFTA

Chapter Seven apply

to the

exclu-

sion

of the

TBT

Agreement

and

NAFTA

Chapter

Nine.3

If the

measure

is

not a

sanitary

or

phytosanitary measure,

the

next question

to ask is

whether

the

measure

is a

"technical regulation,"

a

"standard,"

or a

"con-

formity

assessment procedure"

as

defined

in the TBT

Agreement

and

NAFTA

Chapter

Nine.

If it is, the TBT

Agreement

and

NAFTA

Chapter

Nine

apply.

If the

measure does

not

fall

within

any of

these definitions,

neither

of

these

WTO

agreements

nor

these

NAFTA

provisions apply.

1)

Definition

of a

Sanitary

and

Phytosanitary Measure

Annex

A of the SPS

Agreement

defines

a

"sanitary

and

phytosanitary

measure"

as any

measure applied:

(a)

to

protect animal

or

plant

life

or

health

within

the

territory

of the

member

from

risks arising

from

the

entry, establishment

or

spread

of

pests, diseases, disease-carrying organisms,

or

disease-causing

organisms;

(b) to

protect human

or

animal

life

or

health within

the

territory

of the

member

from

risks

arising

from

additives, contaminants, toxins,

or

disease-causing organisms

in

foods,

beverages

or

feedstuffs;

(c)

to

protect human

life

or

health within

the

territory

of the

member

from

risks arising

from

diseases carried

by

animals, plants

or

prod-

ucts

thereof,

or

from

the

entry, establishment,

or

spread

of

pests;

or

(d)

to

prevent

or

limit other damage

in the

territory

of the

member

from

the

entry, establishment,

or

spread

of

pests.

The

definition

of

"sanitary

or

phytosanitary measure"

in

NAFTA

Article

724 is

based

on the SPS

Agreement

definition,

with similar

branches (a), (b), (c),

and

(d),

but

there

are

wording

differences.

For

example,

branch

(c) of the

NAFTA

definition reads:

3 See

art.

10,

para.

1.5 of the

TBT

Agreement,

ibid.,

and

NAFTA,

ibid.,

art. 901.