Alan O. Sykes
One of the most challenging tasks for international trade agreements is to distinguish protectionist regulation from legitimate regulatory policies. An important set of tools in this regard may be termed “regulatory consistency requirements.” These include the national treatment obligation of GATT, which requires that imported goods be treated no less favorably than “like” domestic goods by regulators. Further consistency requirements were introduced at the formation of the WTO. These newer consistency requirements allow challenges to domestic regulation based on disparate policies toward different products and industries (such as beef and pork, or salmon and baitfish). This paper explores the economic logic and legal scope of consistency requirements in WTO law. The central claim is that narrow consistency requirements such as the national treatment obligation are helpful in the identification of protectionist regulations, but the broader “inter-industry” consistency obligations that have surfaced in WTO jurisprudence are largely unhelpful for that purpose both in theory and in practice. The many confounding variables in such comparisons make confident inferences impossible.