In the context of multilateral trading, there is a historical tension between economically oriented, laissez-faire, pro-trade concerns as they are juxtaposed with social, environmental, and health concerns. These conflicting values are inextricable from one another in a world that encourages, and quite frankly mandates, a high level of economic interdependency. But what if institutional actors could reconcile these conflicting values—at least toward the more efficient and practical goals of alleviating (rather than eliminating) the underlying tension? This Note argues that Article 2.2 of the World Trade Organization’s Technical Barriers to Trade Agreement operates to reconcile these fundamental tensions to some degree. The outcomes of three recent Article 2.2 cases suggest that the appropriate analysis is one of deference to regulating states’ social values, and simultaneously illustrates that such deference does not displace economic concerns. Furthermore, this Note argues that these concepts will likely shape the outcome of the currently pending dispute arising from Australia’s Tobacco Plain Packaging Act.
The Technical Barriers to Trade Agreement: A Reconciliation of Divergent Values in the Global Trading System,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol91/iss1/11