Non-Tariff
Barriers
Malcolm Langford
Senior Researcher, Chr. Michelsen Institute (CMI)
Co-Director, Centre for Law & Social Transformation
CMI & University of Bergen
What are non-tariff barriers?
 Quantitative restrictions
 Other non-tariff barriers
What are the main types
of non-tariff barriers ?
 Prohibitions – Absolute or conditional
 Quotas – Global or Bilateral
 Licensing – Automatic or Non-Automatic, and usually
contain some form of quota.
 Indirect: e.g. State trading operations, mixing
regulations; minimum price, voluntary export
constraint
Council for Trade in Goods,
1996, Annex

Prohibition

CP
Prohibition except under defined conditions

GQ
Global quota

GQC Global quota allocated by country

BQ
Bilateral quota (i.e. anything less than a global quota)

AL
Automatic licensing

NAL Non-automatic licensing

STR

MXR Mixing regulation

MPR Minimum price, triggering a quantitative restriction

VER "Voluntary" export restraint

add the following suffixes to the above as appropriate:

-S
Seasonal restriction

-X
Export restriction
Quantitative restriction made effective through state-trading operations
Wikipedia
Non-tariff barriers to trade can be the following:

Import bans

General or product-specific quotas

Rules of Origin

Quality conditions imposed by the
importing country on the exporting
countries
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Sanitary and phytosanitary conditions
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Packaging conditions
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Labeling conditions
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Product standards
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Complex regulatory environment
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Determination of eligibility of an
exporting country by the importing
country
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Determination of eligibility of an
exporting establishment (firm, company)
by the importing country.
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Additional trade documents like
Certificate of Origin, Certificate of
Authenticity etc.
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Occupational safety and health regulation
Employment law
Import licenses
State subsidies, procurement, trading, state ownership
Export subsidies
Fixation of a minimum import price
Product classification
Quota shares
Foreign exchange market controls and multiplicity
Inadequate infrastructure
"Buy national" policy
Over-valued currency
Intellectual property laws (patents, copyrights)
Restrictive licenses
Seasonal import regimes
Corrupt and/or lengthy customs procedure
Notification Regime
 States must notify the WTO Secretariat
Why are custom duties preferred over
quantitative restrictions?
 Tariffs are more transparent
 Price increases with tariffs go to government but with
quantitative restrictions they go to importers (‘quota
rent’)
 Open to less corruption in the setting
 They do not impose absolute limits on trade
What is a tariff quota? Is it a quantitative
restriction?
Relation to non-discrimination
 Non-discrimination at the core?
 Additional elements
 Quantitative restrictions (border measures?)
 Customs formalities (border measures, not in focus)
 Market access – unnecessary trade barriers
 Market access – harmonization of technical regulations
and standards
 The range of domestic measures covered
 The issue of «attribution»
 The role of external actors and additional
commitments
Quantitative restrictions
 Elimination of quantitative restrictions – GATT
Art. XI
 Equally applicable to import and export
 Broad range of measures
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Minimum import and export prices
Restrictions on points of entry
Non-mandatory measures covered
Also indirect («de facto»)
 The special issue of «sensitive» products
 Primary products – extending to fish, textiles
 Art. XIII: Non-discrimination, distribution
Scope of the TBT
Agreement
 Relationship to GATT, the SPS and GP
Agreements (art. 1.4 and 1.5)
 Technical regulations (Annex)
 «Mandatory»
 Standards
 Voluntary, but de facto mandatory(?) National
standards vs. international standards
 Conformity assessment procedures
 Processes and production methods
 Non-product-related, an issue of scope?
 Which actors? Non-governmental?
Non-discrimination, art.
2.1
 Note: only very recent case law!
 Same as GATT Arts. I and III?
 «Like products»? Too early to tell?
 «Treatment no less favourable»?
 The fact that GATT Art. XX is not available
 Preamble to the TBT Agreement
 Legitimate distinction
 Even-handedness
Unnecessary obstacle,
art. 2.2
 Applies also to standards (Annex 3.E) and
conformity assessment (art. 5.1.2)

Why has it not yet been applied?
 Complex provision
1. Trade restrictive – how restrictive?
2. Legitimate objective – which objectives? Link to
measure
3. Not more trade restrictive than necessary to achieve
objective + risk of non-fulfilment
Harmonization, art. 2.4
 Pros and cons of harmonization
 Applies also to standards (Annex 3.F) and conformity
assessment (art. 5.4)
 Which standardizing bodies? Open-ended?
 ISO and IEC + SPS Agreement bodies
 Openness and recognition
 Which standards
 State consent/majority decisions? Performance (art. 2.8)
 Used as basis – shifting burden of proof
 The presumption art. 2.5.
 Effectiveness and appropriateness of standard
Harmonization –
equivalence
 Particularly sensitive under the SPS Agreement
 Conformity assessment procedures
 Accept conformity assessments conducted elsewhere
(art. 6)
 Negotiations (art. 2.7)
 Bilateral vs. multilateral
 The vulnerability of developing countries