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Chinese Journal of International Law Advance Access originally published online on June 27, 2007
Chinese Journal of International Law 2007 6(2):269-306; doi:10.1093/chinesejil/jmm022
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© The Author 2007. Published by Oxford University Press. All rights reserved

Domestic Regulatory Autonomy under the TBT Agreement: From Non-discrimination to Harmonization

Michael Ming Du*

Correspondence: * Associate, Fried, Frank, Harris, Shriver and Jacobson LLP New York Office. D.Phil Candidate, Oxford Faculty of Law. LL.M, Harvard law School. LL.B, LL.M, Tsinghua Law School (email: ming.du{at}law.ox.ac.uk). I would like to thank Professor Dan Sarooshi for his superb supervision. Professor Vaughan Lowe and Mr Dapo Akande have made insightful comments on earlier drafts. Thanks are also due to the anonymous reviewers of the Chinese JIL. The usual disclaimer applies.

Compared with other World Trade Organization (WTO) Agreements, the Technical Barriers to Trade (TBT) Agreement has received relatively little scholarly attention. This paper will illustrate that the TBT agreement has already exhibited potential to penetrate inappropriately into the domestic regulatory order and threaten domestic regulatory autonomy in unexpected ways, even if many important provisions are still to be elucidated in follow-up dispute settlement practice. This unwarranted intrusion into domestic regulatory autonomy is largely due to the reluctance of WTO panels and the AB to explore the telos of the TBT Agreement. Under the TBT Agreement, not only the conflict between trade liberalization and regulatory autonomy of WTO Members is intensified, but also the legitimacy of the WTO as a powerful regulator in the increasingly globalized world is itself being put to question.


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