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Identifying non-tariff barriers: evolutionof multilateral instruments and evidencefrom the disputes (1948−2011)

ROY SANTANA AND LEE ANN JACKSON*

Agriculture and Commodities Division, World Trade Organization

Abstract: The multilateral trading system has continuously evolved to takeaccount of the changing nature of non-tariff barriers (NTBs). This paper contrastsGATT terminology with the definitions frequently found in the literature anddescribes the multilateral tools that were used in the past to identify NTBs.The latter includes an overview of inventories based on ‘reverse’ notifications and,more recently, the ‘specific trade concerns’ raised in WTO Committees. The paperalso looks at the provisions cited by complainants in more than 60 years ofmultilateral disputes as a proxy for identifying the most relevant NTBs affectingtrade in goods, as well as the manner in which they have evolved over time.It concludes that agricultural and non-agricultural products face very differentNTBs, and observes that while disputes involving agricultural products areincreasingly about ‘behind-the-border’ NTBs, those involving non-agricultural ormixed products are not. Finally, the paper proposes the establishment of a newmultilateral instrument to collect and classify information on NTBs based onspecific trade concerns raised in the context of the ordinary WTO bodies.

1. Introduction

The WTO and its predecessor, the GATT 1947, have historically sought to concen-trate the use of trade barriers into a single measure, tariffs, as a way of providingtransparency and predictability to traders, as well as facilitating their progressiveliberalization over time (Daly and Kuwahara, 1998). At the same time, the WTOrecognizes that governments need to be able to retain their right to pursue otherobjectives – such as the protection of the health of their citizens or the protection ofthe environment – and these interventions may require the use of measures otherthan tariffs and have an impact on trade. Because the world of ‘non-tariff measures’(NTMs) is complex, highly country-specific, and constantly changing, craftingmethods to minimize their potential trade-distorting effects is not only difficult, but

* Email: [email protected] authors would like to thank Marisa Goldstein, Suja Rishikesh, Gretchen Stanton and Erik Wijkstromfor their comments on an earlier version of this paper, and Miriam Rosaldo and Emily Schwartz for theirassistance in the gathering of information.

World Trade Review (2012), 11: 3, 462–478© Roy Santana and Lee Ann Jackson doi:10.1017/S1474745612000316

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also essential for the multilateral trading system (MTS) to respond to the needs ofits Members and remain relevant.

From its inception, the text of the GATT 1947 regulated and prohibited a vastarray of NTMs, in particular quantitative restrictions (QRs), as a mean of pro-tecting the value of tariff concessions which had been negotiated (Jackson, 1967).Had the GATT been strictly limited to an exchange of tariff concessions, their valuecould have easily been impaired, or even lost, through a number of ‘border’ policyinstruments. The literature commonly asserts that tariffs were systematicallyreduced through multilateral rounds of negotiations and that NTMs became a‘more evident’ or ‘more predominant’ instrument of protection in the 1970s andthe 1980s (Daly and Kuwahara, 1998). This renewed focus does not mean,however, that the MTS woke up late to the importance of these measures.

GATT Contracting Parties devised a number of instruments to continuouslyidentify the main problems affecting trade, including a series of inventories basedon ‘reverse’ notifications. These played a key role in determining the negotiatingagenda. While the Uruguay Round (UR) resulted in a comprehensive set of rulesin this area, NTMs have continued to evolve. The WTO’s Doha DevelopmentAgenda (DDA) was launched in 2001 precisely as an effort to improve existingrules and to discipline new areas. Notwithstanding these ongoing negotiations,the question remains: Is the WTO equipped to systematically identify and tacklenew problem areas?

This paper seeks to provide an overview of the multilateral instruments that havebeen used to identify NTMs acting as barriers to trade (NTBs). Because of thebroad nature of the subject matter, the paper will not address in detail the myriad oflegal and economic issues surrounding the specialized disciplines. Section 2describes the terminology used with an emphasis on the context provided by thelegal framework of the GATT. Section 3 describes the use of NTB inventories in theGATT and concludes that a compilation of the specific trade concerns raised incertain WTO bodies could serve to develop a new instrument for NTB identific-ation. Section 4 looks at the provisions cited by complainants in multilateraldisputes as proxy of the most important NTBs that have been challenged and theirevolution from 1948 to 2011. Evidence shows that while the core principles of theGATT (i.e. elimination of quantitative restrictions, national treatment, and MFNclause) remain relevant in challenging NTBs, new specialized disciplines have alsoproven useful. It also shows that agricultural and non-agricultural products havetraditionally faced different types of barriers. Moreover, while disputes concerningagricultural products are increasingly about ‘behind-the-border’ NTBs, thereappears to be a reverse situation for non-agricultural products.

2. Tariffs, measures, restrictions, and barriers in the GATT

The selection of tariffs and other tax-based measures as the ‘policies of choice’ isapparent from Paragraph 1 Article XI of the GATT 1947, which states that ‘[n]o

Identifying non-tariff barriers 463



prohibitions or restrictions other than duties, taxes or other charges, shall beinstituted or maintained by any contracting party on the importation of any pro-duct of the territory of any other contracting party’ (emphasis added) The decisionby GATT negotiators to favor tariffs over QRs was not only important from thepolicy point of view, but it was also a crucial element in normalizing post-war traderelations.

Against this background, it is perhaps surprising that the term ‘tariff’ is notdefined in the GATT. Article II:1(b), the main provision governing schedulesof tariff concessions, makes a distinction between ‘ordinary customs duties’(first sentence) and ‘other duties and charges’ (second sentence), which are knownin the jargon as ‘ODCs’ or ‘para-tariffs’. While there is no doubt that the ordinarymeaning of the term ‘tariff’ includes the ‘ordinary customs duties’, it is not apparentfrom this provision alone whether the term could also encompass ODCs. The factthat ODCs were not included in the schedules of concessions annexed to the GATT1947, a requirement that first appeared in paragraph 1 of the UR Understanding onthe Interpretation of Article II:1(b) of the GATT 1994, strongly suggests that ODCswere not meant to be considered ‘tariffs’. Article II:2 of the GATT provides that,notwithstanding the tariff concession in the schedules, Members are allowed toimpose internal taxes (Article III:2), AD or CVDs (Article VI), as well as fees andcharges commensurate with the cost of the service rendered (Article VIII). In otherwords, there are a number of duties, taxes, and charges that can be levied onimports on top of the tariffs and that are ‘non-tariff’ in nature.

The GATT refers to certain policy actions as ‘measures’, ‘restrictions’, and‘barriers’, depending upon the context. The term ‘measure’ is used on more than 90occasions throughout it to denote government actions or omissions in general,irrespective of whether they are permitted, used with protectionist intent, or havethe effect of limiting imports. The term ‘non-tariff measures’ is preferred by some inthe literature to refer to all government actions, because it conveys more clearly thefact that many of them do not discriminate or put the imported good at a dis-advantage (see, for example, Goode, 2007). Certain NTMs, such as standards, mayeven have a positive effect on trade if harmonized across countries.

The terms ‘prohibition’ and ‘restriction’ also arise in the GATT and typicallyrefer to a direct or indirect limitation on imports. While the ordinary meaning ofthe term prohibition is relatively straightforward, disputes have had to clarify whatis meant by ‘restriction’. The panel in Colombia – Ports of Entry found that, in thecontext of Article XI:1, the term ‘restriction’ relates to measures imposing a ‘limit-ing condition’ or a ‘limitation on action’ (i.e. the importation is technically allowed,but subject to conditions that make it onerous) (WTO 2009b). This panel alsoobserved that Article XI is meant to protect ‘competitive opportunities’ of importedproducts and, therefore, includes measures that have an indirect effect on imports,such as those that create uncertainties that would affect investment plans, restrictmarket access for imports, or make importation prohibitively costly (WTO, 2009:paras. 7.232–7.240).

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The WTO Agreements do not define the term ‘non-tariff barrier’ (NTB), but theconcept can be inferred from the third tiret of the preamble of the GATT whichspeaks of ‘tariffs and other barriers’. No consensus exists in the literature as to whattransforms an NTM into an NTB. Part of the literature puts the emphasis on thefact that barriers are measures that restrict access or put the imported product at adisadvantage (Goode, 2007), which could lead to the impression that the term‘NTB’ is always synonym of ‘non-tariff restriction’. However, others have observedthat the term may also be used to refer to ‘interferences’ with trade, such as exportsubsidies, that promote trade, but ‘distort’ the international markets (Deardorffand Stern, 2000: 4). From a historical perspective, GATT inventories consideredthat ‘government aids’ were ‘NTBs’. Definitions could also be construed based ongovernments’ ‘intent’ (i.e. NTBs are those introduced for protectionist reasons or toplease domestic lobbies) or even the ‘legality’ of the measure (i.e. NTBs are thosethat are in breach of WTO rules). Lang (2011: 170) observes that categorizinggovernment actions is not a self-evident exercise, so is not always clear whether aparticular measure can be considered a ‘distortion’ or a ‘market failure’. Further-more, Howse (2002: 104) considers that the existence of a ‘barrier’ is given by an‘intuitive understanding’ of trade policy makers; that is, NTBs are measuresconsidered to be ‘abnormal’ at a certain point in time.

Over time, work within the MTS treated sub-categories of NTBs separately,often transforming the reference to ‘NTBs’ into a residual category. Thus, as themultilateral system evolved, the use of the term also transformed, with a scope thatwould expand or contract depending on the priorities of those involved in thediscussions. For the purposes of this paper, the term NTB is adopted as the primarycategory of analysis. It is understood to be a broad term that includes all govern-ment imposed and sponsored actions or omissions that act as prohibitions orrestrictions on trade, other than ordinary customs duties in the sense of Article II:1(b) of the GATT, plus all other measures that distort international trade withoutnecessarily restricting it (e.g. subsidies). Rather than attempting to identify themfrom an objective perspective, the paper will focus on those measures that countrieshave considered to act as NTBs in the context of the MTS (i.e. from a subjectivepoint of view).

3. Identification and classification of NTBs for the purpose of negotiations

3.1 GATT (1948–1994)

The GATT relied for almost four decades on a number of ‘inventories’ for theidentification of problems. Contracting Parties would compile information on thebasis of ‘reverse’ notifications, where exporting countries were asked to notifybarriers affecting their exports into other markets. They would, in a second stage,and often based on compilations or analysis prepared by the Secretariat, review theinformation available with a view to identifying general trends and problems.Finally, in a third stage, they would draw conclusions and make recommendations




pointing the way forward (GATT, 1987a). These recommendations were usuallynot implemented in the short-term, but eventually led to new rules in those areas.

Inventories played a special role in understanding trade in agricultural products.As early as 1958, during the ‘Programme for Expansion of International Trade’, aCommittee was tasked with assembling data, in collaboration with FAO, based onnotifications relating to: (1) subsidies, including all forms of income and pricesupport; (2) mixing regulations; (3) import restrictions; (4) state-trading oper-ations; and (5) a description of national agricultural policies (GATT, 1960, 1961).Questionnaires and inventories were used in the Kennedy and Tokyo Rounds, andcontributed to clarifying the situation of NTBs affecting agricultural trade. Whilethe results of the Kennedy and Tokyo Rounds were modest (e.g. the plurilateralagreements on cereals and bovine meat), the technical work undertaken con-tributed in significant ways to the outcomes of the Uruguay Round (UR). Forexample, a working document prepared by the Secretariat in 1972 (GATT,1972) reflects most of the elements now contained in the UR Agreement onAgriculture (AoA).

Inventories also played a more critical role in identifying and solving problemsaffecting industrial products. In the Kennedy Round, Contracting Parties decidedto establish a Committee on Trade in Industrial Products that would be in charge ofelaborating an inventory of ‘non-tariff and para-tariff measures’ faced in othermarkets (GATT, 1968a, 1968b). This preparatory work was particularly impor-tant for the Tokyo Round and resulted in a number of plurilateral agreements onNTMs often referred to as the ‘Tokyo Round Codes’. These codes provided moredetail and guidance on how to implement certain GATT provisions in the areas ofsubsidies and countervailing measures (SCM), AD, customs valuation, technicalbarriers to trade (also known as the ‘Standards’ code), import licensing procedures,and government procurement.

As the work based on inventories advanced, the process of classification andanalysis became more sophisticated. A dedicated ‘Group on Quantitative Restric-tions and Other Non-Tariff Measures’ was established in 1983 to manage theprocess of collecting information from Contracting Parties (GATT, 1983). Thistechnical work provided the basis for preparing reports and recommendations on anumber of NTBs and laid down the basis for launching the UR (see, for example,GATT, 1986).

3.2 WTO Agreements resulting from the Uruguay Round

While some of the Agreements that resulted from the UR, such as the Agreement onImport Licensing Procedures and Agreement on Subsidies and CountervailingMeasures, allow for reverse notifications as a surveillance mechanism, the idea ofhaving a comprehensive inventory of NTBs was abandoned in the WTO. Memberspreferred instead a piecemeal approach whereby reverse notifications are made inthe context of each Agreement or, residually, in the context of the Committee onMarket Access.




Nevertheless, the WTO has progressively evolved to include mechanisms otherthan inventories for identifying NTBs in some areas. In fact, a large part of thework undertaken by certain WTO bodies, such as the TBT and SPS Committees,revolves around the discussion of ‘specific trade concerns’ (STCs). The limited useof reverse notifications, coupled with the considerable increase in the number ofSTCs in certain committees, suggests that Members now prefer this route tohighlight problems faced in other markets. For example, by the end of 2010, morethan 312 STCs had been raised in the SPS Committee (WTO, 2011a) and 286 inthe TBT Committee (WTO, 2011b). This preference may be explained by itseffectiveness: approximately 82 of the STC raised in the SPS Committee have beenreported as ‘resolved’. There is, unfortunately, no equivalent information availablefor the TBT Committee. STCs are also responsive to shifts in national priorities andregulatory approaches resulting both from the WTO legal framework andchanging economic conditions. Unfortunately, these are the only two WTO bodiesthat systematically compile and report this type of information.

Amid the financial crisis of 2008–2009, WTO Members were concerned bythe increased pressure to introduce protectionist measures. They requested theDirector-General to produce a report under the Trade Policy Review Body thatwould summarize trade-related developments with a view to monitoring thesituation. These ‘DG Monitoring’ reports are based on Members’ notifications ofnew measures introduced, as well as a variety of public and unofficial sources ofinformation that the WTO Secretariat then verified for accuracy. The reports stressthat the inclusion of a measure ‘does not imply a judgment by the WTO Secretariaton whether such measure is protectionist in nature’ (WTO, 2009a: para. 12).

In the context of the Doha Development Agenda (DDA), the Negotiating Groupon Market Access for Non-Agricultural Products (NAMA) revived the idea of aninventory as a way of identifying the NTBs to be negotiated (WTO, 2003). Whencompared to the inventories used during the GATT, this first NAMA inventoryshowed a significant increase in the number of barriers related to standards andtechnical regulations (both TBT and SPS), which would suggest that these are themain types of measures affecting trade in non-agricultural products. This alsoexplains why a large number of TBT-related proposals are being discussed in thecontext of the NAMA negotiations (WTO, 2011b) (see Box 1).

The World Bank, UNCTAD, and the International Trade Centre (ITC) havemade efforts in order to establish inventories of government ‘measures’ incoordination with the WTO, as well as business surveys with problems faced bythe private sector. Data have been compiled in UNCTAD’s TRAINS and the WorldBank’s Transparency in Trade (‘TNT’) databases, and the WTO recently launchedan ‘Integrated Trade Intelligence Portal’ (I-TIP), which compiles information con-tained in the traditional ‘self’ notifications. While many of these efforts may providea useful complement to information collected through WTO processes, theinformation collected is not publicly available, tends to be limited in terms ofcountry coverage, includes only one point in time, and there are no plans for




systematically updating the data. Similarly, a number of countries prepare annualreports compiling information about the ‘barriers’ being faced in other markets,which focus on problems that are relevant to their own exporters. This means theyare not necessarily representative of barriers faced by other exporters.

To conclude, there is no multilateral instrument that would allow a globaloverview of all perceived ‘barriers’ affecting world trade in goods nor the manner inwhich they evolve over time. This situation creates uncertainty on what are theemerging problems or trends that may need to be tackled by the multilateral tradingsystem. This is not necessarily a problem for those with sufficient analyticalcapacity to identify problems of interest to their constituencies, but it may pose aserious constraint to those unable to do so, and in particular the least-developedcountries. Bearing in mind that reverse notifications have been replaced to a largeextent by specific trade concerns, an effort could be made to systematically compileand classify specific trade concerns raised in the various WTO bodies.

4. GATT and WTO disputes as a proxy of NTBs faced

Disputes are arguably one of the best sources for identifying barriers faced bytraders, in particular because they represent the measures governments consideredimportant enough to challenge. However, Nottage (2009) observes several prob-lems that may prevent WTO developing country Members from bringing disputesto the MTS, including lack of technical capacity and resources, which means that anumber of NTBs have gone unchallenged. Because barriers differ widely dependingon the products and exporting country involved, the measures that have beenchallenged may not be statistically representative of all NTBs faced by all countries.Most importantly, although the disputes can serve as a proxy of NTBs that fallwithin the scope of the existing rules, nothing can be inferred about the measuresthat fall outside of that framework.

With these caveats in mind, this section will explore: (1) what are the main typesof NTBs that have been challenged multilaterally, as inferred from the provisionsused to challenge them; (2) the role played by the specialized NTB provisions thatwere progressively negotiated over time; and (3) whether the type of measurechallenged varies according to the type of product being affected (agricultural andnon-agricultural products), and whether these have changed over time. The resultspresented in this section are based on two specially designed datasets: one forGATT disputes (1948–1994) and another one for disputes for the first 17 years ofthe WTO (1995–2011). Together, these datasets compile detailed information for aperiod of more than 60 years.

The analysis reported in this paper was complicated by the fact that, for anydispute, complainants tend to cite a large number of provisions which have beenallegedly breached by the respondent. Some of those provisions are in factduplicates or intimately related to other provisions in the GATT, which means thatone cannot simply rely on frequency counts of provisions cited to infer the number




and types of NTBs that have been challenged. Mindful of this situation, amethodology was developed on the basis of the lex specialis principle in order toadjust the data and to take account of the most evident situations, e.g. theAgreement on Antidumping and Article VI of the GATT 1947. Annex 1 provides adetailed explanation of the manner in which the two datasets were developed, aswell as the methodology used to adjust the frequency counts presented in the tablesand figures which are contained in the web-appendix.1

4.1 Types of NTBs challenged in disputes

During 1948–1994, a large proportion of disputes under the GATT focused onNTBs. In a pioneering work, Hudec (1993: 344–345) found that only 44 out of207 GATT disputes had involved tariff issues (i.e. 21.3%), whereas the remaining163 (i.e. 78.7%) involved various forms of NTBs, e.g. 20 relating to AD and CVDs,33 relating to subsidies, and 108 relating to other NTBs. While largely rep-resentative of the overall situation, approximately 55 subsequent disputes were not

Box 1. Inventories of reverse notifications concerning non-agricultural products:evolution of top-five categories, 1968, 1973, 1989, and 2003 (inventory categoryand share of measures notified)

GATT 1968 GATT 1973 GATT 1989WTO-NAMA (1stnotification) 2003

1. Quantitative restrictions20.7%

1. Quantitativerestrictions15.6%


1. Standards/Tech.Reg.30%

2. Surcharges, port taxes,statistical taxes13.5%

2. Border taxadjustments11.2%

2. Surcharges, porttaxes, statistical taxes10.5%


3. Discriminatory filmtaxes, use taxes, etc.11.1%

3. Surcharges, porttaxes, statistical taxes10.5%

3. Border taxadjustments8.6%

3. Other specificlimitations11.6%

4. Standards/Tech. Reg.6.2%



4. Customs formalities9.1%

5. Customs valuation5.5%

5. Government aids6.6%

5. Government aids7.3%

5. Rules of origin7.4%

Note: The GATT estimates are based on reverse notification by Contracting Parties in the context ofdiscussions of ‘industrial goods’. The figures were adjusted to take account of changes over time in thecategories (see WTO, 2002). The 2003 figures relate to the first set of notifications in the context of theNAMA negotiations.Source: Authors’ own calculation. See Table A.1 for more details.

1 All tables and figures referenced in this paper are contained in a web-appendix. This web appendixcan be found at: http://journals.cambridge.org/.


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taken into account by this work. According to our analysis, only two of those 55additional disputes dealt with tariff-related issues, including TRQs, which meansthat approximately 82.5% of all GATT disputes involved NTBs.

A large number of measures questioned during the 1948–1994 period involvedthe three core principles of the GATT. The bulk of these disputes involved theelimination of QRs (30% of the disputes involved Article XI), as well as allegedviolations of the national treatment principle (21% invoked Article III)2 and theMFN clause (16% invoked Article I and 13% Article XIII) (see Figure B.1).Although Article VI was rarely invoked during the early years, trade remedy andsubsidy issues quickly gained importance after the Tokyo Round Codes wereadopted. When taken together, cases involving AD (8.4% of the cases), CVD(7.3%), and subsidies (12.6%) comprised almost 28.3% of the GATT disputes,most of which were filed during the negotiations of the UR. Approximately 32% ofthe GATT disputes involved at least one ‘behind-the-border’NTB, defined as thoseinvolving Article III, subsidies, or standards (see Table A.5).

The importance of NTBs has intensified under the WTO. Of the 427 request forconsultations filed by 31 December 2011, only 32 out of the 393 disputes on goods(i.e. 8.1%) involved tariff-related issues, including tariff-rate quotas.3 The types ofNTBs challenged has also changed. Our analysis suggests that while 35.8% of theWTO disputes have been based on the three core principles of the GATT,4 traderemedies and subsidies have become the largest areas of litigation. When takentogether, and excluding overlaps, AD (22.6%), subsidies (19.6%), safeguards(9.9%), and CVDs (8.4%) account for more than half of the WTO disputes ongoods thus far.

This change in the composition of the types of NTBs being challenged suggeststhat the MTS has progressively moved from disputes dealing with blunt barriersapplied at the border (e.g. tariffs and QRs), to more nuanced situations involvingthe national treatment principle (III:4 in particular), trade remedies, subsidies, anddomestic regulation in respect of standards (i.e. TBT and SPS). According to thisanalysis, behind-the-border NTBs5 have been an issue for 49% of the WTO dis-putes on goods and appear to be increasingly important for agricultural products(see Table A.5).

2 Approximately 9.5% of the disputes questioned internal taxes based on Article III.2 and 12.6%internal regulations covered by Article III:4.

3WTO disputes identified with the following symbols: DS6, DS16, DS27, DS62, DS67, DS68, DS72,DS77, DS103, DS105, DS111, DS143, DS148, DS150, DS180, DS188, DS201, DS269, DS286, DS289,DS305, DS329, DS339, DS340, DS342, DS360, DS361, DS364, DS375, DS376, DS377, and DS411.Information on these disputes can be found on: http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm.

4 In order of importance: national treatment (22.1% of the cases invoked Article III, with 6.6% citingIII:2 and 14.8% citing III:4), MFN clause (13% of the cases cited Article I and 8.4% cited Article XIII), andelimination of QRs (13% citied Article XI:1).

5 Defined as those involving Article III of the GATT, subsidies or technical regulations/standards.


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4.2 Are the new rules being used to challenge NTBs?

The core principles embodied in the GATT remain crucial in challenging today’sNTBs. As of 31 December 2011, 84% of the 393 WTO disputes on goods havecited at least one provision of GATT 1994. Although this share reduces to 53.4%after the adjustment described in Annex 1, and further to 45.8% if Article Xreferences are not taken into account, the GATT remains the most frequently citedAgreement in goods’ disputes (see Table A.2). If the GATT remains so important,what has then been the role played by the specialized Agreements? Because many ofthese disciplines find their origins in the Kennedy, Tokyo, and Uruguay Rounds,this analysis grouped the disputes around these time periods in order to get a senseof whether, and if so when, the new rules had been used. The results are mixed.

Some of the new agreements have rarely been used in disputes. For example, nodispute was ever brought under the 1967 Anti-dumping Code, and there were onlytwo AD disputes based on Article VI before the Tokyo Round.6 Similarly, only oneGATT dispute was based on the TR Import Licensing Code7, and the WTO’sAgreement on Government Procurement has only been cited in four disputes (seeTable A.2). While an assessment of the reasons for such limited use goes wellbeyond the scope of this paper, it may be explained by a number of reasonsincluding full compliance with the new disciplines, lack of sufficient motivation tochallenge a measure on that basis, the plurilateral nature of these constructs, orsimply that the new rules did not provide a good basis for a dispute.

There are, on the other hand, several specialized disciplines that have provenpopular in the context of the disputes. While the Tokyo Round Codes on SCM(9.3% of the disputes, 5% relating to CVDs and 5% to subsidies) and Anti-dumping (3.8%) were of limited importance during the GATT, the multilateralequivalents of the UR are fundamental to WTO litigation (see Figure B.2).Similarly, the WTO AoA (16.8% of the disputes on goods), TBT (10.2%),Safeguards (9.9%), SPS (9.4%), and Import Licensing Procedures (8.9%) havebeen frequently used to challenge a number of measures. The increased importanceof some of these Agreements in comparison to the Tokyo Round equivalents maybe explained not only by an increased use of those measures, but also by themultilateral nature of the UR Agreements.

4.3 Evolution of NTBs facing agricultural and non-agricultural products

Do different types of products face different NTBs? To explore this question in thecontext of the disputes, and inspired by Hudec (1993) and Reinhardt (1996), the393 requests for consultations relating to goods were classified in three categoriesaccording to the type of product involved: (i) agricultural (as defined in Annex 1 of

6 Swedish Anti-Dumping Duties, BISD 3S/81; and Exports of Potatoes to Canada, BISD 11S/88(GATT, 1955 and 1962).

7 India – Import Licenses on Almonds, C/M/211 (GATT, 1987b).




the AoA), (ii) non-agricultural, and (iii) generic/mixed. Our analysis suggests thatthe types of problems affecting each product category is not only different, but hasevolved over the years.

The analysis indicates that there were more disputes involving agricultural(44.7% of the disputes) than non-agricultural (41.2%) or mixed/generic products(14.1%) under the GATT 1947. In contrast, most of the 393 WTO disputes ongoods have involved non-agricultural products (51.4%) rather than agricultural(34.6%) or mixed/generic (14%) products. This variation may be partiallyexplained by the reduced importance of trade in agricultural products since the1950s (Figure B.3). The single most important type of NTB faced by agriculturalproducts during the 1948–1994 period was QRs (39.3% of disputes involvingagricultural products cited Article XI), followed by alleged violations of thenational treatment principle (28% cited Article III, mainly paragraph 4), anddiscrimination in the administration of restrictions (14.5% cited Article XIII). Thishas changed considerably under the WTO, where 35 of the 136 disputes involvingagricultural products (i.e. 25.7%) involved the national treatment principle ofArticle III (mostly paragraph 4), and only 10.3% of them challenged QRs throughArticle XI. Interestingly, the GATT remains the most frequently cited Agreementfor these products, even after adjusting the references (55.9% of the disputesinvolving agricultural products) and excluding references to Article X (50%).

The specialized agreements have, however, also proven crucial in challengingNTBs affecting trade in agricultural products. The most important ones have beenthe AoA (cited in 36% of the relevant disputes), SPS (19.9%), TBT (14.7%), andImport Licensing Procedures (13.2%) (see Figure A.4). Article 4 of the AoAwas themost frequently cited provision of this specialized agreement (25% of the relevantdisputes) and was often mentioned in relation to the schedules of concessions andthe tariffication process. One conspicuously absent agreement in the list is the SCMAgreement, which many expected would result in an avalanche of disputes challen-ging agricultural subsidies provided by developed countries. While the expirationof the so-called ‘peace clause’ (Article 13 of the AoA) on 1 January 2004 explainsthe reduced number of disputes up to this year, its relatively low number thereafteris probably explained by the considerable increase in prices of agricultural com-modities since 2007 which would make it very difficult to prove ‘injury’. Thisanalysis suggests the prevalence of a wide array of measures affecting trade in theseproducts, but, most importantly, that NTBs affecting trade in these products aremoving behind the border (see Figure B.6). Very few disputes involving agriculturalproducts have dealt with AD or CVDs.

Disputes on NTBs affecting trade in non-agricultural products also involved thecore principles of the GATT during the 1948–1994 period. Of the 108 disputesinvolving these types of products, 25% challenged QRs based on Article XI:1 and21.3% alleged a breach of the national treatment principle under Article III.However, this situation started evolving with the introduction of the Tokyo RoundCodes, where the codes on AD (14 disputes) and SCM (10 disputes) began to be




used. These non-agricultural cases involved not only industrial products, but alsofish and fish products. This trend has been reinforced since the establishment of theWTO where most of the 202 WTO disputes involving non-agricultural productshave involved anti-dumping (33.2% of the relevant disputes), subsidies (23.3%),and the UR Agreement on Safeguards (11.9%) (see Figure B.5).

In spite of the considerable importance of the specialized agreements in disputesinvolving non-agricultural products, the GATT remains the most frequently citedAgreement (46% after adjustment and 37.1% if Article X is not taken intoaccount). The national treatment principle in Article III (17.8%) and elimination ofQRs under Article XI (9.9%) have considerably declined in importance withrespect to the GATT, but this is probably explained by the equivalent provisions inthe specialized agreements. One unexpected finding is that the importance of‘behind-the-border’NTBs in disputes involving non-agricultural products has beenconsistently decreasing since the year 2000 (see Figure B.6).

While the TBT Agreement was the third-most relevant specialized agreement fornon-agricultural products between 1995 and 2001, its prominence in the requestsfor consultations fell considerably following the launch of the DDA. The fact thatthese products account for more than 90% of world trade in goods calls intoquestion the view that technical regulations and conformity assessment proceduresact as one of the main ‘barriers’ to this kind of products (see Box 2). Reasons forthis discrepancy could include: (1) lack of resources by those affected to bring adispute, (2) that these measures are not restricting trade to the point where a disputeis warranted; (3) that the current rules are insufficient for dispute purposes; or (4)that the TBT Committee is being successful in preventing disputes throughthe discussion of specific trade concerns, etc. In contrast, the TBT Agreementcontinues to be important to trade in agricultural products where recent casesinclude US–COOL (DS384 and DS386) and United States –Measures Affectingthe Production and Sale of Clove Cigarettes (DS406).8

5. Conclusion and recommendations

The three core principles of the GATT 1994 remain relevant in challenging anumber of traditional NTBs. While border measures remain the most relevant inthe context of disputes for non-agricultural products, ‘behind the border’measuresare increasingly relevant for agricultural products. The increasing reliance onspecialized agreements to challenge measures that are not, or are not sufficientlycovered, by the WTO Agreement demonstrates the value of clarifying existing rulesand developing new ones. This is not only useful but necessary to allow the MTS toremain relevant. However, because disputes only allow countries to attack barriers

8 Information on these disputes can be found on: http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm.







of the type that can be challenged, they are not necessarily a good indicator ofemerging problem areas. Beyond the individual requests by Members to tackle aspecific problem in the Committees or the DSU, the WTO does not have in placetools that would allow it to systematically detect new types of problems.

The MTS should go beyond the current efforts of identifying ‘measures’ anddevise new ways to detect new ‘barriers’ at an early stage. While going back to asystem based on reverse notifications may prove difficult in the WTO context, stepscould be taken for the systematic compilation and classification of all the ‘specifictrade concerns’ raised in the various WTO bodies (e.g. SPS and TBT). Finally, areasof future work could include an identification of patterns in the inventories anddisputes based on the level of development of those involved, as well as the role thatspecific trade concerns may be playing in preventing disputes.

References

Bown, C. (2002), ‘The Economics of Trade Disputes, The GATT’s Article XXIII, and the WTO’s DisputeSettlement Understanding’, Economics and Politics, 14(3): 283–323.

Daly, M. and H. Kuwahara (1998), ‘The Impact of the Uruguay Round on Tariff and Non-Tariff Barriersto Trade in the “Quad”’, The World Economy, 21(2): 207–234.

Deardorff, A. and R. M. Stern (2000), ‘Typology and Characteristics of NTBs’, in A. Deardorff and R. M.Stern, Measurement of Nontariff Barriers, Ann Arbor, MI: University of Michigan Press.

GATT (1960), ‘Second Report of Committee II: Note by the Chairman of Committee II’, L/1192, GATTSecretariat, Geneva.

——– (1961), ‘Third Report of Committee II: Note by the Chairman’, L/1461, GATT Secretariat, Geneva.——– (1962), Panel Report in Exports of Potatoes to Canada, BISD 11S/88-94, General Agreement on

Tariffs and Trade, Geneva.——– (1968a), ‘Inventory of Non-Tariff Barriers’, COM.IND/4 Document Series, GATT Secretariat,

Geneva.——– (1968b), ‘Committee on Trade in Industrial Products: Report on First Meeting of the Committee’, L/

3083, GATT Secretariat, Geneva.——– (1972), ‘Working Paper Prepared by the Secretariat’, COM.AG/W/77, GATT Secretariat, Geneva.——– (1974), ‘Group 3(e) –Work on Task 3: Documentation – Progress Report: Note by the Secretariat’,

MTN/3E/W/16, GATT Secretariat, Geneva.——– (1980), ‘Updating of documentation on Non-Tariff Measures: Note by the Secretariat’, L/5053,

GATT Secretariat, Geneva.——– (1983), ‘Past GATT Activities Relating to Quantitative Restrictions and other Non-Tariff Measures:

Background Note by the Secretariat’, NTM/W/2, GATT Secretariat, Geneva.——– (1986), ‘Report of the Group on Quantitative Restrictions and other Non-Tariff Measures’, L/6073,

GATT Secretariat, Geneva.——– (1987a), ‘Group on Quantitative Restrictions and Other Non-Tariff Measures, Meeting of 10 March

1983: Note by the Secretariat’, NTM/2, GATT Secretariat, Geneva.——– (1987b), India – Import Licenses on Almonds: Recourse to Article XXlll:1 by the United States,

Communication by the United States of 2 July 1987, L/6197, General Agreement on Tariffs andTrade, Geneva.

Goode, W. (2007),Dictionary of Trade Policy Terms, Adelaide: Centre for International Economic Studiesand Geneva: World Trade Organization.

Horn, H. and P. Mavroidis (2011), The WTO Dispute Settlement System 1995–2010: Some DescriptiveStatistics, Washington, DC: World Bank.

Howse, R. (2002), ‘From Politics to Technocracy –And Back Again: The Fate of the Multilateral TradingRegime’, American Journal of International Law, 94–117.




Hudec, R. E. (1993), Enforcing International Trade Law: The Evolution of the Modern GATT LegalSystem, London: Butterworth Legal Publishers.

Nottage, H. (2009), ‘Developing Countries in the WTO Dispute Settlement System’, Global EconomicGovernance’, Working Paper 2009/47, University College, Oxford.

Jackson, J. (1967), ‘The Puzzle of GATT’, Journal of World Trade Law, 1(2): 131–161.Lang, A. (2011), World Trade Law After Neoliberalism: Re-Imagining the Global Economic Order,

Oxford: Oxford University Press.Leitner, K. and S. Lester (2009), ‘WTO Dispute Settlement 1995–2008 –A Statistical Analysis’, Journal of

International Economic Law, 12(1): 195–208.Reinhardt, E. (1996), ‘Posturing Parliaments: Ratification, Uncertainty, and International Bargaining’, Ph.

D. dissertation, chapter 4, Columbia University, New York, http://userwww.service.emory.edu/~erein/data/#GATT.

WTO (1994), ‘Marrakesh Agreement Establishing the World Trade Organization’, World TradeOrganization, Geneva.

——– (2002), ‘Table of Contents of the Inventory of Non-Tariff Measures’, TN/MA/S/5, World TradeOrganization, Geneva.

——– (2003), ‘Non-Tariff Barrier Notifications’, TN/MA/W/25 and addenda, World Trade Organization,Geneva.

——– (2009a), ‘Report to the TPRB from the Director-General on the Financial and Economic Crisis andTrade-Related Developments’, WT/TPR/OV/W/1, World Trade Organization, Geneva.

——– (2009b), Panel Report in Colombia – Indicative Prices and Restrictions on Ports of Entry, WT/DS366/R and Corr.1., World Trade Organization, Geneva.

——– (2011a), ‘Specific Trade Concerns –Note by the Secretariat’, G/SPS/GEN/204/Rev.11, World TradeOrganization, Geneva.

——– (2011b), ‘Specific Trade Concerns Raised in the TBT Committee: Note by the Secretariat’, G/TBT/GEN/74/Rev.9, World Trade Organization, Geneva.

Annex 1: Data sets and methodology for the adjustment of citations to agreementsand articles in the GATT

1. Data sets

The analysis presented in this paper is based on two separate datasets. The first onerelates to GATT disputes and is largely based on a dataset of 241 requests forconsultations by Reinhardt (1996), who in turn is based on Hudec’s work (1993)and comprised information on 207 GATT Panels for the period 1948–1989. Itshould, however, be noted that our dataset was reviewed and substantiallycomplemented to include a total of 262 requests for consultations.9

The second data set is for WTO disputes and is largely based on the database onrequests for consultations maintained by the Legal Division of the WTO and theWTO website. It has information on 427 requests for consultations circulatedunder the document series beginning with the symbol WT/DS series as of

9One problem faced by the authors is that there is no agreed number of disputes under the GATT forthe 1948–1994 period. The WTO webpage only keeps a list of those disputes that resulted in a panelreport. While Reinhardt considered there had been 241 disputes (seven he did not take into account 7 fromHudec’s work plus 40 that he added), Bown (2002) considered there had been 254.


http://userwww.service.emory.edu/~erein/data/#GATT





31 December 2011. This dataset was checked for consistency with the WorldBank’s database on WTO disputes maintained by Professors Horn andMavroidis.10 Because the paper focuses on NTBs, which is a concept only relevantfor trade in goods, the analysis focused on 393 of the 427 requests for consultationsfiled, and excluded 25 requests for consultations relating mainly to intellectualproperty issues,11 as well as nine requests relating mainly to the GATS.12 This issuewas, for obvious reasons, not relevant for the GATT 1947 dataset.

Inspired by Hudec (1993) and Reinhart (1996), this analysis classified the disputesin both datasets according to the product at issue in three mutually exclusivecategories: agricultural, non-agricultural, and generic/mixed products. Unlikethem, and in order to allow for a better understanding of the legally relevantdefinitions in the WTO, the classification is based on the definition of agriculturalproducts in Annex 1 of the AoA.

2. Rationale for adjusting the frequency count of GATT Articles

Complainants tend to cite a large number of Agreements and specific provisions intheir requests for consultations when bringing a dispute to the WTO. Because ofthe manner in which the provisions relate to one another, an identification of NTBsbased on such citations will inevitably lead to an overestimation of certain NTBs.For example, a complainant in a typical anti-dumping case will normally argue thatthe respondent is in breach of some substantive and procedural rules of theAgreement on Anti-dumping, together with a reference to Article VI of the GATT(the original legal foundation of anti-dumping claims). Complainants will probablyalso argue that the additional duty being imposed is in excess of the tariff binding(Article II:1(b) of the GATT). And because it is only applied on imports from aspecific company exporting from a certain country, it will probably also argue thatit is in violation of the MFN clause (Article I of the GATT). It is obvious that, in thistype of case, any frequency count should try to minimize the incidence of theserelationships.

This paper assumes that the two main types of relationships that need to be takeninto account are those of ‘specialization’ (e.g. several agreements develop furtherthe disciplines of a GATT Article) and ‘subsidiarity’ between them (e.g. a claimciting both Articles II and XIX of the GATT (1947), as well as the Agreement on

10 See www.worldbank.org/trade/wtodisputes11WTO disputes: DS28; DS36; DS37; DS42; DS50; DS79; DS82; DS83; DS86; DS114; DS115;

DS124; DS125; DS153; DS160; DS170; DS171; DS174; DS176; DS196; DS199; DS224; DS290; DS362;and DS363. Information on these disputes can be found on: http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm.

12WTO disputes: DS45; DS80; DS117; DS204; DS285; DS372; DS373; DS378; and DS413.Information on these disputes can be found on: http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm.


http://www.worldbank.org/trade/wtodisputes









Safeguards (WTO, 1994), is almost certainly about a safeguard and not abouttariffs). It is noted that the WTO Agreement itself recognizes the possibility of thefirst type of relationship and adopts the principle of lex specialis.13

3. Assumptions and adjustment methodology

Because the purpose of this paper is not to have a statistical analysis of allprovisions cited in the disputes, but rather to identify the types of NTBs affectingtrade, references to GATTArticles XX, XXI, XXII, XXIII, XXIV, and XXVIII wereexcluded. The duplication problem was addressed through a two-step approachwhich began by filtering out the reference to certain GATT Articles beforecalculating the overall frequency counts of Agreements. GATTArticles were filteredas follows:

While Table A.3 of the web-appendix presents the frequency count of GATTArticles without filtering, Table A.4 presents the results after the application of thefilters. The second step consisted in calculating the frequency counts of the GATTexcluding the Articles that were identified in the first step. Both the adjusted andunadjusted frequency count of the Agreements for both datasets are presentedin Table A.2 of the web-appendix. While these adjustments result in a slightlydifferent picture than the one presented by other studies, the unadjusted results are

GATTArticle Excluded if cited in the same request for consultation with a reference to:

I WTO Agreement/Tokyo Round Code: AD, Safeguards, SCM (CVD related), SPS, or TBTOther GATT Articles: VI (i.e. CVD or Anti-dumping related)

II WTO Agreement/Tokyo Round Code: AD, Customs Valuation, Safeguards or SCM(CVD related), Article 22 of the DSU. Other GATTArticles: VI (i.e. CVD or Anti-dumpingrelated) or XIX (safeguards).

III WTO Agreement/Tokyo Round Code: SPS or TBTVI WTO Agreement/Tokyo Round Code: AD or CVD.VII WTO Agreement/Tokyo Round Code: Customs ValuationXI WTO Agreement/Tokyo Round Code: BOP, Safeguards, SPS, or TBT. Other GATT

Articles: XII and XIX.XVI WTO Agreement/Tokyo Round Code: SCM or Arts 3, 6–11 of the AoA.XIX WTO Agreement: Safeguards

13 The General Interpretative Note to Annex IA of the Marrakesh Agreement Establishing the WTO(WTO, 1994) provides that in the event of conflict between the GATT 1994 and a provision of anotheragreement in Annex IA of the WTO Agreement, the provision of the other agreement shall prevail.




largely in tune with them.14 The adjustment appears to be considerably less rele-vant for disputes under the GATT 1947, which may be a reflection of modernlitigation tactics.

The methodology has limitations and occasionally yields unwanted results forsome cases. For example, in US–Gasoline the panel preferred to have an analysisbased on Article III than the TBT Agreement. However, it appears to yield rea-sonably sound results which are considerably more accurate in identifying NTBsthan unadjusted frequency counts.

14 See for example Horn and Mavroidis (2011), and Leitner and Lester (2009).



Identifying NonTariff Barriers: Evolution of Multilateral Instruments and Evidence from the Disputes (19482011)

Roy Santana and Lee Ann Jackson*

WEB-APPENDIX

* The authors are members of the WTO Secretariat. The views expressed here are their own and

should not be attributed to Members of the WTO or to the Secretariat. Corresponding author: Lee Ann Jackson, [email protected], +41 22 739 6907 (phone), +41 22 739 5760 (fax), Agriculture and Commodities Division, World Trade Organization, 154 Rue de Lausanne, 1211 Geneva, Switzerland. The authors would like to thank Marisa Goldstein, Suja Rishikesh, Gretchen Stanton and Erik Wijkstrom for their comments on an earlier version of this paper, and Miriam Rosaldo and Emily Schwartz for their assistance in the gathering of information.

1

mailto:[email protected]

Table of Abbreviations and Acronyms

AD Anti-dumping

ADA WTO Agreement on Anti-dumping

AoA WTO Agreement on Agriculture

BISD Basic Instruments and Selected Documents

BOP Balance of Payments

CVD Countervailing duties

DDA Doha Development Agenda

DSU WTO Dispute Settlement Understanding

GATS General Agreement on Trade in Services

GATT General Agreement on Tariffs and Trade

ILA WTO Agreement on Import Licensing Procedures

Inv. Inventory

ITC International Trade Centre

MTS Mulitlateral Trading System

NAMA Negotiating Group on Market Access for Non-Agricultural Products

NTB Non-tariff barrier

NTM Non-tariff measure

ODCs Other duties and charges

QR Quantitative restriction

SCM WTO Agreement on Subsidies and Countervailing Measures

SGA WTO Agreement on Safeguards

SPS WTO Agreement on Sanitary and Phytosanitary Measures

STC Specific Trade Concern

Standards Code Tokyo Round Agreement on Technical Barriers to Trade

Subs. Subsidies

TBT WTO Agreement on Technical Barriers to Trade

TR Tokyo Round

TRIMS WTO Agreement on Trade-Related Investment Measures

TRIPS WTO Agreement on Trade-Related Aspects of Intellectual Property Rights

UR Uruguay Round

WTO World Trade Organization

2

Table of Contents

A. DATA TABLES ............................................................................................................................4

Table A.1. Inventories of Non-Tariff Measures for Non-Agricultural Products, Share of NTMs by Inventory Category (percentage) (1968, 1973, 1989, 2003 and 2005) ..............................................................................................................................4

Table A.2. Number of Agreements Cited in GATT and WTO Disputes on Goods, By Type of Product, and Time Period (1948-2011) ............................................................6

A. Number of disputes citing the Agreement ..............................................................6

B. Share of relevant disputes (percentage)..................................................................8

Table A.3. Articles of the GATT Cited in GATT and WTO Disputes on Goods, By Type of Product, and Time Period (Unadjusted) (1948-2011).....................................10

A. Number of disputes citing the Agreement ............................................................10

B. Share of relevant disputes (percentage)................................................................12

Table A.4. Articles of the GATT Cited in GATT and WTO Disputes on Goods, By Type of Product, and Time Period (Adjusted according to Annex 1 of the Main Paper) (1948-2011) .............................................................................................14

A. Number of disputes citing the Agreement ............................................................14

B. Share of relevant disputes (percentage)................................................................16

Table A.5. Disputes Making Reference to "Behind-the-Border" NTBs (1948-2011) ...............18

A. Number of Disputes on Goods .............................................................................18

B. Number of Disputes with "Behind-the-Border" NTBs (SPS, TBT, Subsidies, Article III of the GATT)......................................................................18

C. Share of Relevant Disputes Dealing with "Behind-the-Border" NTBs (percentage) ..........................................................................................................18

B. FIGURES.....................................................................................................................................19

Figure B.1. Share of Disputes Involving the "Core Principles" of the GATT, Adjusted (1948-2011)..................................................................................................................19

Figure B.2. Top-5 Type of Provisions Cited in GATT and WTO Disputes (1948-2011) .........19

Figure B.3. Evolution of Trade in Agricultural Products, As Share of World Merchandise Trade (1950-2011).................................................................................20

Figure B.4. Top-5 Types of Provisions Cited in Disputes Involving Agricultural Products (1948-2011)..................................................................................................20

Figure B.5. Top-5 Types of Provisions Cited in Disputes Involving Non-Agricultural Products (1948-2011)..................................................................................................21

Figure B.6. Share of Disputes Dealing with "Behind-the-Border" NTBs, by type of product (1948-2011)....................................................................................................21

3

A. DATA TABLES

Table A.1. Inventories of Non-Tariff Measures for Non-Agricultural Products,

Share of NTMs by Inventory Category (percentage) (1968, 1973, 1989, 2003 and 2005)

NAMA, NAMA, Parts and

Sections Category description

Inventory (1968) /1

Inventory (1973) /2

Inventory (1989) /3 1st Inv.

(2003) /4

2nd Inv.

(2005) /5

Part I Government Participation in Trade and Restrictive Practices Tolerated by Governments

11.9 15.3 20.9 7.1 7.0

A Government aids 2.7 6.6 7.3 1.8 1.7 B Countervailing duties 0.6 0.4 0.5 0.2 0.0 C Government procurement 3.7 3.4 6.4 0.9 0.7

D Restrictive practices tolerated by governments

0.0 0.8 2.0 3.8 4.3

E State trading, government monopoly practices, etc.

4.9 4.1 4.6 0.4 0.3

Part II Customs and Administrative Entry Procedures

14.8 14.6 11.9 23.5 26.2

A Anti-dumping duties 1.1 1.5 2.3 1.5 2.3 B Valuation 5.5 4.8 4.1 2.3 5.3 C Customs classification 1.3 0.7 0.5 0.7 3.3 D Consular formalities and documentation 4.7 6.4 3.4 2.3 3.0 E Samples 0.7 0.4 0.2 0.1 0.0 F Rules of origin 1.3 0.0 0.4 7.4 2.6 G Customs formalities 0.2 0.8 1.1 9.1 9.6

Part III Technical Barriers to Trade 6.1 9.2 8.2 29.9 37.1 A General 0.0 9.2 1.6 3.2 8.9 B Technical regulations and standards 5.2 0.0 3.0 15.8 13.2 C Testing and certification arrangements 0.9 0.0 3.6 11.0 14.9

Part IV Specific Limitations 36.7 31.5 31.7 34.9 26.8 A Quantitative restrictions and import licensing 20.7 15.6 13.9 12.8 7.0

B Embargoes and other restrictions of similar effect

5.0 5.6 5.3 0.8 4.0

C Screen-time quotas and other mixing regulations

1.9 3.6 1.6 0.0 0.7

D Exchange control 2.3 1.2 1.2 1.3 1.3

E Discrimination resulting from bilateral agreements

0.8 1.5 1.1 0.1 0.7

F Discriminatory sourcing 0.5 1.0 0.0 0.3 1.7 G Export restraints 1.6 0.4 0.4 0.2 1.0 H Measures to regulate domestic prices 1.6 0.5 1.2 0.2 0.3 I Tariff quotas 0.2 0.3 0.5 0.3 1.3 J Export taxes 0.0 0.0 2.1 0.2 1.0

K Requirements concerning marking, labeling and packaging

1.6 1.6 2.1 7.2 6.3

L Other specific limitations 0.3 0.1 2.1 11.5 1.7 Part V Charges on Import 29.2 29.4 27.3 4.4 1.7

A Prior import deposits 1.9 1.9 1.6 0.2 0.0 B Surcharges, port taxes, statistical taxes, etc. 13.5 10.5 10.5 3.0 1.3 C Discriminatory film taxes, use taxes, etc. 11.1 4.0 4.5 0.2 0.3 D Discriminatory credit restrictions 1.3 1.4 1.2 0.2 0.0 E Border tax adjustments 0.9 11.2 8.6 0.2 0.0 F Emergency action 0.5 0.4 0.9 0.8 0.0 Other 1.4 0.0 0.0 0.2 1.3 Total 100.0 100.0 100.0 100.0 100.0 Memo: No. of items in the categories 873 731 561 2556 302

Source: Own calculation based on GATT and WTO documents (see below). Note: The information presented in this table is largely based on "reverse" notifications which have been classified according to the inventory categories in WTO document TN/MA/S/5. Because the categories used in each of the inventories differ, several elements had to be adjusted. Where a notified item corresponds to two or more inventory categories, it was counted under all the relevant categories. This means that the number of items used for this table overestimates the actual number of items contained in some of the inventories.

4

5

/1 Based on the Inventory on Non-Tariff Measures of the Committee on Industrial Products, GATT document COM.IND/6 and Addenda, of 11 December 1968. The categories used in this inventory diverge considerably from the ones used in this table. The frequency of measures were grouped and reassigned accordingly. These include inter alia: countervailing duties were classified under Part II (customs and administrative procedures) and not under Part I; the category "customs classification" of II.B did not exist, but data were taken from the categories "harmonization of nomenclature" and "arbitrary classification"; "consular formalities" were included under Part II and not in Part I; QRs and licensing requirements were separated as two separate items; marking and packaging requirements were classified under Part III (Technical Barriers to Trade); the "restrictive practices tolerated by governments" were included and the "other" category, etc.

/2 Based on the Note by the Executive Secretariat of the GATT entitled "Inventory of Non-Tariff Measures - Balance sheet of notifications", document COM.IND/W/102 of 11 April 1973. The inventory categories differ slightly from the ones used in this table. For example, in the 1973 inventory, Part III was entitled "Standards" and was subdivided in: A) Industrial Standards; B) Health and safety standards; C) Other standards concerning product contents; and D) Requirements concerning marking, labelling and packaging; the category on "export taxes" did not exist, etc.

/3 Based on GATT's Secretariat Analysis of the documentation of the Technical Group on Quantitative Restrictions and other Non-Tariff Measures, GATT Document NTM(TG)/W/5 of 28 February 1989, Annex 10 (QRs) and 12 (NTMs other than QRs).

/4 The summary is based on WTO Secretariat's report JOB(03)/128, which compiled information of notifications in the TN/MA/W/25 series. Data was processed and rearranged in a manner that would allow for the counting of individual measures as per the inventory categories. The WTO Secretariat noted in this report that information contained in the notifications was often inaccurate or incomplete. The authors add that the manner in which products were grouped also diverged across notifications, ranging from grouping of categories of products to identifying tariff lines at the 10-digit level. This summary should, therefore, be interpreted with caution.

/5 The summary is based on WTO Secretariat's report JOB(04)/62/Rev.7, which compiled information of notifications in the TN/MA/W/46 series. The summary includes Brazil's notification in TN/MA/W/46/Add.16 which was not taken into account in the Secretariat's report. The same processing notes of document JOB(03)/128 apply. The shares presented in Part III include both notifications under the category "SPS" and TBT of TN/MA/S/5/Rev.1 .

Table A.2. Number of Agreements Cited in GATT and WTO Disputes on Goods,

By Type of Product, and Time Period (1948-2011)

A. Number of disputes citing the Agreement

GATT (1948-1994)/1 WTO (1995-2011)/2

Pro

d. T

ype

Agreement or Code 1.Earlier days

(1948-1963)

2. During Kennedy R.(1964-1967)

3. Post- Kennedy R.(1968-1972)

4. During Tokyo. R.

(1973-1979)

5 .Post- Tokyo. R.

(1980-1985)

6. During U. R.

(1986-1995)

GATT 1947

TOTAL 7.Pre-DDA (1995-2001) 8.During DDA

(2002-2011)

WTO TOTAL

Total number of disputes on Goods 59 0 9 24 53 117 262 216 177 393

1. GATT 59 0 9 24 40 90 222 164 166 330

A. Adjusted (see Annex 1) 59 0 9 24 36 82 210 109 101 210 B. Adjusted less Article X n.a. n.a. n.a. n.a. n.a. n.a. n.a. 100 80 180 2. Agriculture n.a. n.a. n.a. n.a. n.a. n.a. n.a. 39 27 66

3. Anti-dumping n.a. n.a. n.a. n.a. 1 14 15 37 52 89

4. Customs Valuation n.a. n.a. n.a. n.a. 0 0 0 10 5 15

5. Government Procurement n.a. n.a. n.a. n.a. 3 4 7 4 0 4

6. Import Licensing n.a. n.a. n.a. n.a. 0 1 1 28 7 35

7. Safeguards n.a. n.a. n.a. n.a. n.a. n.a. n.a. 19 20 39

8. Subsidies and CVDs n.a. n.a. n.a. n.a. 11 15 26 42 46 88

A. CVDs n.a. n.a. n.a. n.a. 2 11 13 14 19 33 B. Subsidies n.a. n.a. n.a. n.a. 9 4 13 38 39 77 9. Standards Code / TBT n.a. n.a. n.a. n.a. 3 2 5 27 13 40

10. SPS n.a. n.a. n.a. n.a. n.a. n.a. n.a. 19 18 37

All

Goo

ds

11. Other legal provisions /3

3 0 2 3 3 14 25 71 50 121

Number of disputes 19 0 5 13 22 58 117 69 67 136

1. GATT 19 0 5 13 16 48 101 55 63 118










I. A

gric

ult

ura

l Pro

du

cts

(AoA

def

init

ion

)


1 0 0 1 0 10 12 10 13 23

6

GATT (1948-1994)/1 WTO (1995-2011)/2

Pro

d. T

ype


(1948-1963)


3. Post- Kennedy R.(1968-1972)

4. During Tokyo. R.

(1973-1979)

5 .Post- Tokyo. R.

(1980-1985)

6. During U. R.

(1986-1995)

GATT 1947


(2002-2011)

WTO TOTAL


1. GATT 22 0 2 8 19 35 86 78 88 166

A. Adjusted (see Annex 1) 22 0 2 8 17 28 77 45 48 93 B. Adjusted less Article X n.a. n.a. n.a. n.a. n.a. n.a. n.a. 42 33 75 2. Agriculture n.a. n.a. n.a. n.a. n.a. n.a. n.a. 1 1


4. Customs Valuation n.a. n.a. n.a. n.a. 0 0 0 2 2

5. Government Procurement n.a. n.a. n.a. n.a. 2 3 5 2 2






II. N

on-A

gric

ult

ura

l Pro

du

cts

11. Other legal provisions /3 0 0 1 1 3 4 9 44 32 76


1. GATT 18 0 2 3 5 7 35 31 15 46










III.

Gen

eric

/ M

ix o

f p

rod

uct

s

11. Other legal provisions /3 2 0 1 1 0 0 4 17 5 22

7

B. Share of relevant disputes (percentage)

GATT (1948-1994)/1 WTO (1995-2011)/2 P

rod

. Typ

e


(1948-1963)


3.Post- Kennedy R.(1968-1972)

4.During Tokyo. R.

(1973-1979)

5.Post- Tokyo. R.

(1980-1985)

6.During U. R.

(1986-1995)

GATT 1947


(2002-2011)

WTO TOTAL

Total number of disputes on Goods 100 n.a. 100 100 100 100 100 100 100 100

1. GATT 100 n.a. 100 100 75.5 76.9 84.7 75.9 93.8 84.0

A. Adjusted (see Annex 1) 100 n.a. 100 100 67.9 70.1 80.2 50.5 57.1 53.4 B. Adjusted less Article X n.a. n.a. n.a. n.a. n.a. n.a. n.a. 46.3 45.2 45.8 2. Agriculture n.a. n.a. n.a. n.a. n.a. n.a. n.a. 18.1 15.3 16.8

3. Anti-dumping n.a. n.a. n.a. n.a. 3.8 3.8 3.8 17.1 29.4 22.6

4. Customs Valuation n.a. n.a. n.a. n.a. 0.0 0.0 0.0 4.6 2.8 3.8

5. Government Procurement n.a. n.a. n.a. n.a. 5.7 3.4 2.7 1.9 0.0 1.0

6. Import Licensing n.a. n.a. n.a. n.a. 0.0 0.9 0.4 13.0 4.0 8.9

7. Safeguards n.a. n.a. n.a. n.a. n.a. n.a. n.a. 8.8 11.3 9.9

8. Subsidies and CVDs n.a. n.a. n.a. n.a. 20.8 12.8 9.9 19.4 26.0 22.4

A. CVDs n.a. n.a. n.a. n.a. 3.8 9.4 5.0 6.5 10.7 8.4 B. Subsidies n.a. n.a. n.a. n.a. 17.0 3.4 5.0 17.6 22.0 19.6 9. Standards Code / TBT n.a. n.a. n.a. n.a. 5.7 1.7 1.9 12.5 7.3 10.2

10. SPS n.a. n.a. n.a. n.a. n.a. n.a. n.a. 8.8 10.2 9.4

All

Goo

ds


5.1 n.a. 22.2 12.5 5.7 12.0 9.5 32.9 28.2 30.8

Number of disputes 100 n.a. 100 100 100 100 100 100 100 100

1. GATT 100 n.a. 100 100 72.7 82.8 86.3 79.7 94.0 86.8










I. A

gric

ult

ura

l Pro

du

cts

(AoA

def

init

ion

)


5.3 n.a. 0.0 7.7 0.0 17.2 10.3 14.5 19.4 16.9

8

GATT (1948-1994)/1 WTO (1995-2011)/2

Pro

d. T

ype


(1948-1963)


3.Post- Kennedy R.(1968-1972)

4.During Tokyo. R.

(1973-1979)

5.Post- Tokyo. R.

(1980-1985)

6.During U. R.

(1986-1995)

GATT 1947


(2002-2011)

WTO TOTAL


1. GATT 100 n.a. 100 100 79.2 67.3 79.6 72.9 92.6 82.2










II. N

on-A

gric

ult

ura

l Pro

du

cts

11. Other legal provisions /3 0.0 n.a. 50.0 12.5 12.5 7.7 8.3 41.1 33.7 37.6


1. GATT 100 n.a. 100 100 71.4 100 94.6 77.5 100 83.6

A. Adjusted (see Annex 1) 100 n.a. 100 100 71.4 100 94.6 70.0 86.7 74.5 B. Adjusted less Article X n.a. n.a. n.a. n.a. n.a. n.a. n.a. 65.0 73.3 67.3 2. Agriculture n.a. n.a. n.a. n.a. n.a. n.a. n.a. 27.5 33.3 29.1









III.

Gen

eric

/ M

ix o

f p

rod

uct

s

11. Other legal provisions /3 11.1 n.a. 50.0 33.3 0.0 0.0 10.8 42.5 33.3 40.0

Source: Own calculation. Notes: n.a. not available or not applicable. /1 Based on 262 disputes under the GATT. /2 Based on 393 disputes on goods under the WTO. It excludes 25 requests for consultations relating mainly to intellectual property issues and 9 relating mainly to the GATS. See Annex 1 of the main paper. /3 For the GATT 1947 includes references to the Protocol of Provisional Application, the Multifiber Agreement, and Agreement on Civil Aircraft. For the WTO, it includes the Agreements on Textiles and Clothing, Rules of Origin, and TRIMS.

9

Table A.3.

Articles of the GATT Cited in GATT and WTO Disputes on Goods, By Type of Product, and Time Period (Unadjusted)

(1948-2011)


GATT (1948-1994)/1 WTO (1995-2011)/2

Pro

d.

Typ

e

GATT Article 1.Earlier days

(1948-1963)

2. During Kennedy R. (1964-1967)

3.Post- Kennedy R. (1968-1972)

4.During Tokyo. R.

(1973-1979)

5.Post- Tokyo. R.

(1980-1985)

6.During U. R.

(1986-1995)

GATT 1947

TOTAL 7.Pre-DDA (1995-2001)

8.During DDA(2002-2011)

WTO TOTAL

Total number of disputes on Goods

59 0 9 24 53 117 262 216 177 393

16 0 1 3 7 29 56 70 57 127 III 10 0 3 5 8 21 47 57 46 103 I 14 0 5 9 16 45 89 59 33 92 XI

20 58 45 36 81 II 17 0 2 5 14 VI 2 0 2 4 15 23 26 54 80 X 1 0 2 2 8 13 30 46 76

XIX 4 0 1 2 3 1 11 17 21 38 XIII 4 0 1 5 9 15 34 18 15 33 VIII 2 0 1 2 1 5 11 9 3 12 XVI 4 0 7 5 4 20 2 9 11

All

Goo

ds

1 0 1 5 4 9 VII 0 1 1 2 4 4 8 V 1 0 2 2 3 8 5 2 7 XVII 1 0 5 6 6 0 6 XVIII 2 0 1 3 1 1 2 XV 1 0 1 2 0 2 2 IX 6 0 1 1 8 0 0 0 XII

Number of disputes 19 0 5 13 22 58 117 69 67 136 III 2 0 3 2 17 24 23 33 56 XI 5 0 4 6 2 29 46 19 22 41 II 5 0 1 4 8 15 33 21 17 38 I 2 0 4 3 7 16 18 20 38 X 1 0 6 7 12 11 23 VI 1 0 4 5 6 9 15

XIX 1 0 1 1 1 4 11 3 14 XIII 1 0 1 2 1 12 17 3 6 9 XVI 4 0 3 5 3 15 1 4 5 VII 1 0 1 3 2 5 VIII 0 2 2 4 3 0 3 XVII 1 0 2 1 4 1 2 3

IX 1 0 1 2 0 2 2 XV 0 1 1 0 1 1

XVIII 0 4 4 0 0 0 I. A

gric

ult

ura

l Pro

du

cts

(AoA

def

init

ion

)

XII

1 0 1 2 0 0 0

10

GATT (1948-1994)/1 WTO (1995-2011)/2

Pro

d.

Typ

e


(1948-1963)



4.During Tokyo. R.

(1973-1979)

5.Post- Tokyo. R.

(1980-1985)

6.During U. R.

(1986-1995)

GATT 1947


8.During DDA(2002-2011)

WTO TOTAL


VI 1 0 4 11 16 15 43 58

III 9 0 4 10 23 36 17 53

I 5 0 1 1 2 11 20 30 21 51

X 0 2 2 2 6 10 30 40

XI 4 0 1 3 11 13 32 22 8 30

II 4 0 1 4 4 13 12 15 27

XIX 3 0 2 2 7 6 18 24

XIII 1 0 3 6 3 13 12 7 19

XVI 0 3 1 4 0 5 5

VIII 0 1 1 2 2 3 5

XVII 0 1 2 3 2 0 2

XII 2 0 1 3 0 0 0

II. N

on-A

gric

ult

ura

l Pro

du

cts

XVIII 1 0 1 2 0 0 0


XI 5 0 3 3 11 18 3 21

III 5 0 1 1 2 9 11 7 18

II 8 0 1 2 1 12 12 4 16

I 3 0 2 3 3 11 9 5 14

VI 0 2 2 5 2 7

XVIII 0 6 0 6

XIII 2 0 2 4 3 2 5

VIII 2 0 1 2 5 4 0 4

V 0 1 1 2 1 1 2

XVII 0 1 1 2 2

XV 2 0 2 1 0 1

XVI 0 1 1 1 0 1

III.

Gen

eric

/ M

ix o

f p

rod

uct

s

XII 3 0 3 0 0 0

11


GATT (1948-1994)/1 WTO (1995-2011)/2

Pro

d. T

ype


(1948-1963)



4.During Tokyo. R.

(1973-1979)

5.Post- Tokyo. R.

(1980-1985)

6.During U. R.

(1986-1995)

GATT 1947


8.During DDA(2002-2011)

WTO TOTAL


100 n.a. 100 100 100 100 100 100 100 100

III 27.1 n.a. 11.1 12.5 13.2 24.8 21.4 32.4 32.2 32.3

I 16.9 n.a. 33.3 20.8 15.1 17.9 17.9 26.4 26.0 26.2

XI 23.7 n.a. 55.6 37.5 30.2 38.5 34.0 27.3 18.6 23.4

II 28.8 n.a. 22.2 20.8 26.4 17.1 22.1 20.8 20.3 20.6

VI 3.4 n.a. 0.0 8.3 7.5 12.8 8.8 12.0 30.5 20.4

X 1.7 n.a. 0.0 8.3 3.8 6.8 5.0 13.9 26.0 19.3

XIX 6.8 n.a. 11.1 8.3 5.7 0.9 4.2 7.9 11.9 9.7

XIII 6.8 n.a. 11.1 20.8 17.0 12.8 13.0 8.3 8.5 8.4

VIII 3.4 n.a. 11.1 8.3 1.9 4.3 4.2 4.2 1.7 3.1

XVI 6.8 n.a. 0.0 29.2 9.4 3.4 7.6 0.9 5.1 2.8

VII 1.7 n.a. 0.0 0.0 0.0 0.0 0.4 2.3 2.3 2.3

V 0.0 n.a. 0.0 0.0 1.9 0.9 0.8 1.9 2.3 2.0

XVII 1.7 n.a. 0.0 8.3 3.8 2.6 3.1 2.3 1.1 1.8

XVIII 1.7 n.a. 0.0 0.0 0.0 4.3 2.3 2.8 0.0 1.5

XV 3.4 n.a. 0.0 4.2 0.0 0.0 1.1 0.5 0.6 0.5

IX 1.7 n.a. 0.0 0.0 0.0 0.9 0.8 0.0 1.1 0.5

All

Goo

ds

XII

10.2 n.a. 0.0 4.2 1.9 0.0 3.1 0.0 0.0 0.0


III 10.5 n.a. 0.0 23.1 9.1 29.3 20.5 33.3 49.3 41.2

XI 26.3 n.a. 80.0 46.2 9.1 50.0 39.3 27.5 32.8 30.1

II 26.3 n.a. 20.0 30.8 36.4 25.9 28.2 30.4 25.4 27.9

I 10.5 n.a. 0.0 30.8 13.6 12.1 13.7 26.1 29.9 27.9

X 5.3 n.a. 0.0 0.0 0.0 10.3 6.0 17.4 16.4 16.9

VI 5.3 n.a. 0.0 0.0 0.0 6.9 4.3 8.7 13.4 11.0

XIX 5.3 n.a. 20.0 0.0 4.5 1.7 3.4 15.9 4.5 10.3

XIII 5.3 n.a. 20.0 15.4 4.5 20.7 14.5 4.3 9.0 6.6

XVI 21.1 n.a. 0.0 23.1 22.7 5.2 12.8 1.4 6.0 3.7

VII 5.3 n.a. 0.0 0.0 0.0 0.0 0.9 4.3 3.0 3.7

VIII 0.0 n.a. 0.0 15.4 0.0 3.4 3.4 4.3 0.0 2.2

XVII 5.3 n.a. 0.0 15.4 0.0 1.7 3.4 1.4 3.0 2.2

IX 5.3 n.a. 0.0 0.0 0.0 1.7 1.7 0.0 3.0 1.5

XV 0.0 n.a. 0.0 7.7 0.0 0.0 0.9 0.0 1.5 0.7

XVIII 0.0 n.a. 0.0 0.0 0.0 6.9 3.4 0.0 0.0 0.0

I. A

gric

ult

ura

l Pro

du

cts

(AoA

def

init

ion

)

XII

5.3 n.a. 0.0 7.7 0.0 0.0 1.7 0.0 0.0 0.0

12

GATT (1948-1994)/1 WTO (1995-2011)/2

Pro

d. T

ype


(1948-1963)



4.During Tokyo. R.

(1973-1979)

5.Post- Tokyo. R.

(1980-1985)

6.During U. R.

(1986-1995)

GATT 1947


8.During DDA(2002-2011)

WTO TOTAL


VI 4.5 n.a. 0.0 0.0 16.7 21.2 14.8 14.0 45.3 28.7

III 40.9 n.a. 0.0 0.0 16.7 19.2 21.3 33.6 17.9 26.2

I 22.7 n.a. 50.0 12.5 8.3 21.2 18.5 28.0 22.1 25.2

X 0.0 n.a. 0.0 25.0 8.3 3.8 5.6 9.3 31.6 19.8

XI 18.2 n.a. 50.0 37.5 45.8 25.0 29.6 20.6 8.4 14.9

II 18.2 n.a. 0.0 12.5 16.7 7.7 12.0 11.2 15.8 13.4

XIX 13.6 n.a. 0.0 25.0 8.3 0.0 6.5 5.6 18.9 11.9

XIII 4.5 n.a. 0.0 37.5 25.0 5.8 12.0 11.2 7.4 9.4

XVI 0.0 n.a. 0.0 37.5 0.0 1.9 3.7 0.0 5.3 2.5

VIII 0.0 n.a. 0.0 0.0 4.2 1.9 1.9 1.9 3.2 2.5

XVII 0.0 n.a. 0.0 0.0 4.2 3.8 2.8 1.9 0.0 1.0

XII 9.1 n.a. 0.0 0.0 4.2 0.0 2.8 0.0 0.0 0.0

II. N

on-A

gric

ult

ura

l Pro

du

cts

XVIII 4.5 n.a. 0.0 0.0 0.0 1.9 1.9 0.0 0.0 0.0


XI 27.8 n.a. 0.0 0.0 42.9 42.9 29.7 45.0 20.0 38.2

III 27.8 n.a. 50.0 0.0 14.3 28.6 24.3 27.5 46.7 32.7

II 44.4 n.a. 50.0 0.0 28.6 14.3 32.4 30.0 26.7 29.1

I 16.7 n.a. 100 0.0 42.9 42.9 29.7 22.5 33.3 25.5

VI 0.0 n.a. 0.0 66.7 0.0 0.0 5.4 12.5 13.3 12.7

XVIII 0.0 n.a. 0.0 0.0 0.0 0.0 0.0 15.0 0.0 10.9

XIII 11.1 n.a. 0.0 0.0 28.6 0.0 10.8 7.5 13.3 9.1

VIII 11.1 n.a. 50.0 0.0 0.0 28.6 13.5 10.0 0.0 7.3

V 0.0 n.a. 0.0 0.0 14.3 14.3 5.4 2.5 6.7 3.6

XVII 0.0 n.a. 0.0 0.0 14.3 0.0 2.7 5.0 0.0 3.6

XV 11.1 n.a. 0.0 0.0 0.0 0.0 5.4 2.5 0.0 1.8

XVI 0.0 n.a. 0.0 33.3 0.0 0.0 2.7 2.5 0.0 1.8

III.

Gen

eric

/ M

ix o

f p

rod

uct

s

XII 16.7 n.a. 0.0 0.0 0.0 0.0 8.1 0.0 0.0 0.0 Source: Own calculation. Notes: References to GATT Articles XX, XXI, XXII, XXIII, XXIV and XXVIII were excluded. n.a.: not available or not applicable. /1 Based on 262 disputes under the GATT. /2 Based on 393 disputes on goods under the WTO. It excludes 25 requests for consultations relating mainly to intellectual property issues and 9 relating mainly to the GATS. See Annex 1 of the main paper.

13

Table A.4. Articles of the GATT Cited in GATT and WTO Disputes on Goods,

By Type of Product, and Time Period (Adjusted according to Annex 1 of the Main Paper)

(1948-2011)


GATT (1948-1994)/1 WTO (1995-2011)/2

Pro

d.

Typ

e


(1948-1963)



4.During Tokyo. R.

(1973-1979)

5.Post- Tokyo. R.

(1980-1985)

6.During U. R.

(1986-1995)

GATT 1947


8.During DDA(2002-2011)

WTO TOTAL


59 0 9 24 53 117 262 216 177 393

III 16 0 1 3 6 29 55 44 43 87 X 1 0 0 2 2 8 13 30 46 76 I 10 0 3 5 7 18 43 34 17 51

XI 8 0 4 7 14 45 78 34 17 51 II 14 0 2 5 13 18 52 25 21 46

XIII 4 0 1 5 9 15 34 18 15 33 VIII 2 0 1 2 1 5 11 9 3 12 VII 1 0 0 0 0 0 1 5 3 8 V 0 0 0 0 1 1 2 4 4 8

XVII 1 0 0 2 2 3 8 5 2 7 XXVIII 0 0 0 0 0 0 0 3 4 7 XVIII 1 0 0 0 0 5 6 6 0 6

VI 2 0 0 2 2 7 13 2 0 2 XIX 4 0 1 2 3 1 11 1 1 2 XVI 4 0 0 7 3 2 16 0 2 2 XV 2 0 0 1 0 0 3 1 1 2 IX 1 0 0 0 0 1 2 0 2 2

All

Goo

ds

XII

6 0 0 1 1 0 8 0 0 0

Number of disputes 19 0 5 13 22 58 117 69 67 136 III 2 0 0 3 1 17 23 13 22 35 II 3 0 1 4 7 14 29 11 12 23 X 1 0 0 0 0 6 7 12 11 23 I 2 0 0 4 3 7 16 7 8 15

XI 4 0 3 5 2 29 43 7 7 14 XIII 1 0 1 2 1 12 17 3 6 9

XXVIII 0 0 0 0 0 0 0 2 4 6 VII 1 0 0 0 0 0 1 3 2 5 VIII 0 0 0 2 0 2 4 3 0 3 XVII 1 0 0 2 0 1 4 1 2 3

VI 1 0 0 0 0 3 4 2 0 2 IX 1 0 0 0 0 1 2 0 2 2 XV 0 0 0 1 0 0 1 0 1 1 XIX 1 0 1 0 1 1 4 0 0 0 XVI 4 0 0 3 3 2 12 0 0 0

XVIII 0 0 0 0 0 4 4 0 0 0 I. A

gric

ult

ura

l Pro

du

cts

(AoA

def

init

ion

)

XII

1 0 0 1 0 0 2 0 0 0

14

GATT (1948-1994)/1 WTO (1995-2011)/2

Pro

d.

Typ

e


(1948-1963)



4.During Tokyo. R.

(1973-1979)

5.Post- Tokyo. R.

(1980-1985)

6.During U. R.

(1986-1995)

GATT 1947


8.During DDA(2002-2011)

WTO TOTAL


X 0 0 0 2 2 2 6 10 30 40

III 9 0 0 0 4 10 23 21 15 36

I 5 0 1 1 1 8 16 18 4 22

XI 2 0 1 2 9 13 27 12 8 20

XIII 1 0 0 3 6 3 13 12 7 19

II 3 0 0 1 4 3 11 9 8 17

VIII 0 0 0 0 1 1 2 2 3 5

XIX 3 0 0 2 2 0 7 1 1 2

XVI 0 0 0 3 0 0 3 0 2 2

XVII 0 0 0 0 1 2 3 2 0 2

XXVIII 0 0 0 1 1 0 2 1 0 1

VI 1 0 0 0 2 4 7 0 0 0

XII 2 0 0 0 1 0 3 0 0 0

II. N

on-A

gric

ult

ura

l Pro

du

cts

XVIII 1 0 0 0 0 1 2 0 0 0


XI 2 0 0 0 3 3 8 15 2 17

III 5 0 1 0 1 2 9 10 6 16

I 3 0 2 0 3 3 11 9 5 14

II 8 0 1 0 2 1 12 5 1 6

XVIII 0 0 0 0 0 0 0 6 0 6

XIII 2 0 0 0 2 0 4 3 2 5

VIII 2 0 1 0 0 2 5 4 0 4

V 0 0 0 0 1 1 2 1 1 2

XVII 0 0 0 0 1 0 1 2 0 2

XV 2 0 0 0 0 0 2 1 0 1

VI 0 0 0 2 0 0 2 0 0 0

XVI 0 0 0 1 0 0 1 0 0 0

III.

Gen

eric

/ M

ix o

f p

rod

uct

s

XII 3 0 0 0 0 0 3 0 0 0

15


GATT (1948-1994)/1 WTO (1995-2011)/2 P

rod

. T

ype


(1948-1963)



4.During Tokyo. R.

(1973-1979)

5.Post- Tokyo. R.

(1980-1985)

6.During U. R.

(1986-1995)

GATT 1947


8.During DDA(2002-2011)

WTO TOTAL


100 n.a. 100 100 100 100 100 100 100 100

III 27.1 n.a. 11.1 12.5 11.3 24.8 21.0 20.4 24.3 22.1

X 1.7 n.a. 0.0 8.3 3.8 6.8 5.0 13.9 26.0 19.3

I 16.9 n.a. 33.3 20.8 13.2 15.4 16.4 15.7 9.6 13.0

XI 13.6 n.a. 44.4 29.2 26.4 38.5 29.8 15.7 9.6 13.0

II 23.7 n.a. 22.2 20.8 24.5 15.4 19.8 11.6 11.9 11.7

XIII 6.8 n.a. 11.1 20.8 17.0 12.8 13.0 8.3 8.5 8.4

VIII 3.4 n.a. 11.1 8.3 1.9 4.3 4.2 4.2 1.7 3.1

VII 1.7 n.a. 0.0 0.0 0.0 0.0 0.4 2.3 1.7 2.0

V 0.0 n.a. 0.0 0.0 1.9 0.9 0.8 1.9 2.3 2.0

XVII 1.7 n.a. 0.0 8.3 3.8 2.6 3.1 2.3 1.1 1.8

XXVIII 0.0 n.a. 0.0 0.0 0.0 0.0 0.0 1.4 2.3 1.8

XVIII 1.7 n.a. 0.0 0.0 0.0 4.3 2.3 2.8 0.0 1.5

VI 3.4 n.a. 0.0 8.3 3.8 6.0 5.0 0.9 0.0 0.5

XIX 6.8 n.a. 11.1 8.3 5.7 0.9 4.2 0.5 0.6 0.5

XVI 6.8 n.a. 0.0 29.2 5.7 1.7 6.1 0.0 1.1 0.5

XV 3.4 n.a. 0.0 4.2 0.0 0.0 1.1 0.5 0.6 0.5

IX 1.7 n.a. 0.0 0.0 0.0 0.9 0.8 0.0 1.1 0.5

All

Goo

ds

XII 10.2 n.a. 0.0 4.2 1.9 0.0 3.1 0.0 0.0 0.0


III 10.5 n.a. 0.0 23.1 4.5 29.3 19.7 18.8 32.8 25.7

II 15.8 n.a. 20.0 30.8 31.8 24.1 24.8 15.9 17.9 16.9

X 5.3 n.a. 0.0 0.0 0.0 10.3 6.0 17.4 16.4 16.9

I 10.5 n.a. 0.0 30.8 13.6 12.1 13.7 10.1 11.9 11.0

XI 21.1 n.a. 60.0 38.5 9.1 50.0 36.8 10.1 10.4 10.3

XIII 5.3 n.a. 20.0 15.4 4.5 20.7 14.5 4.3 9.0 6.6

XXVIII 0.0 n.a. 0.0 0.0 0.0 0.0 0.0 2.9 6.0 4.4

VII 5.3 n.a. 0.0 0.0 0.0 0.0 0.9 4.3 3.0 3.7

VIII 0.0 n.a. 0.0 15.4 0.0 3.4 3.4 4.3 0.0 2.2

XVII 5.3 n.a. 0.0 15.4 0.0 1.7 3.4 1.4 3.0 2.2

VI 5.3 n.a. 0.0 0.0 0.0 5.2 3.4 2.9 0.0 1.5

IX 5.3 n.a. 0.0 0.0 0.0 1.7 1.7 0.0 3.0 1.5

XV 0.0 n.a. 0.0 7.7 0.0 0.0 0.9 0.0 1.5 0.7

XIX 5.3 n.a. 20.0 0.0 4.5 1.7 3.4 0.0 0.0 0.0

XVI 21.1 n.a. 0.0 23.1 13.6 3.4 10.3 0.0 0.0 0.0

XVIII 0.0 n.a. 0.0 0.0 0.0 6.9 3.4 0.0 0.0 0.0

I. A

gric

ult

ura

l Pro

du

cts

(AoA

def

init

ion

)

XII

5.3 n.a. 0.0 7.7 0.0 0.0 1.7 0.0 0.0 0.0

16

17

GATT (1948-1994)/1 WTO (1995-2011)/2

Pro

d.

Typ

e


(1948-1963)



4.During Tokyo. R.

(1973-1979)

5.Post- Tokyo. R.

(1980-1985)

6.During U. R.

(1986-1995)

GATT 1947


8.During DDA(2002-2011)

WTO TOTAL


X 0.0 n.a. 0.0 25.0 8.3 3.8 5.6 9.3 31.6 19.8

III 40.9 n.a. 0.0 0.0 16.7 19.2 21.3 19.6 15.8 17.8

I 22.7 n.a. 50.0 12.5 4.2 15.4 14.8 16.8 4.2 10.9

XI 9.1 n.a. 50.0 25.0 37.5 25.0 25.0 11.2 8.4 9.9

XIII 4.5 n.a. 0.0 37.5 25.0 5.8 12.0 11.2 7.4 9.4

II 13.6 n.a. 0.0 12.5 16.7 5.8 10.2 8.4 8.4 8.4

VIII 0.0 n.a. 0.0 0.0 4.2 1.9 1.9 1.9 3.2 2.5

XIX 13.6 n.a. 0.0 25.0 8.3 0.0 6.5 0.9 1.1 1.0

XVI 0.0 n.a. 0.0 37.5 0.0 0.0 2.8 0.0 2.1 1.0

XVII 0.0 n.a. 0.0 0.0 4.2 3.8 2.8 1.9 0.0 1.0

XXVIII 0.0 n.a. 0.0 12.5 4.2 0.0 1.9 0.9 0.0 0.5

VI 4.5 n.a. 0.0 0.0 8.3 7.7 6.5 0.0 0.0 0.0

XII 9.1 n.a. 0.0 0.0 4.2 0.0 2.8 0.0 0.0 0.0

II. N

on-A

gric

ult

ura

l Pro

du

cts

XVIII 4.5 n.a. 0.0 0.0 0.0 1.9 1.9 0.0 0.0 0.0


XI 11.1 n.a. 0.0 0.0 42.9 42.9 21.6 37.5 13.3 30.9

III 27.8 n.a. 50.0 0.0 14.3 28.6 24.3 25.0 40.0 29.1

I 16.7 n.a. 100 0.0 42.9 42.9 29.7 22.5 33.3 25.5

II 44.4 n.a. 50.0 0.0 28.6 14.3 32.4 12.5 6.7 10.9

XVIII 0.0 n.a. 0.0 0.0 0.0 0.0 0.0 15.0 0.0 10.9

XIII 11.1 n.a. 0.0 0.0 28.6 0.0 10.8 7.5 13.3 9.1

VIII 11.1 n.a. 50.0 0.0 0.0 28.6 13.5 10.0 0.0 7.3

V 0.0 n.a. 0.0 0.0 14.3 14.3 5.4 2.5 6.7 3.6

XVII 0.0 n.a. 0.0 0.0 14.3 0.0 2.7 5.0 0.0 3.6

XV 11.1 n.a. 0.0 0.0 0.0 0.0 5.4 2.5 0.0 1.8

VI 0.0 n.a. 0.0 66.7 0.0 0.0 5.4 0.0 0.0 0.0

XVI 0.0 n.a. 0.0 33.3 0.0 0.0 2.7 0.0 0.0 0.0

III.

Gen

eric

/ M

ix o

f p

rod

uct

s

XII 16.7 n.a. 0.0 0.0 0.0 0.0 8.1 0.0 0.0 0.0

Source: Own calculation. Notes: n.a.: not available or not applicable. References to GATT Articles XX, XXI, XXII, XXIII, XXIV and XXVIII were excluded. Adjusted according to the methodology in Annex 1 of the main paper. /1 Based on 262 disputes under the GATT. /2 Based on 393 disputes on goods under the WTO. It excludes 25 requests for consultations relating mainly to intellectual property issues and 9 relating mainly to the GATS. See Annex 1 of the main paper.

Table A.5. Disputes Making Reference to "Behind-the-Border" NTBs

(1948-2011)

A. Number of Disputes on Goods

Product type Instit. Period I. Agricultural

Products (AoA definition)

II. Non-Agricultural Products

III. Generic / Mixed

of products

All Goods

1948-1949 0 4 4 8 1950-1959 14 18 13 45 1960-1969 5 0 2 7 1970-1979 18 10 4 32 1980-1989 58 48 10 116 1990-1994 22 28 4 54 G

AT

T 1

947

/1

GATT 1947 Total 117 108 37 262 1995-1999 51 84 28 163 2000-2004 50 64 19 133 2005-2009 30 35 8 73 2010-2011 5 19 0 24 W

TO

/2

WTO Total 136 202 55 393

B. Number of Disputes with "Behind-the-Border" NTBs (SPS, TBT, Subsidies, Article III of the GATT)





of products

All Goods

1948-1949 0 0 2 2 1950-1959 5 9 3 17 1960-1969 1 0 1 2 1970-1979 6 3 1 10 1980-1989 21 13 3 37 1990-1994 10 6 1 17 G

AT

T 1

947

/1

GATT 1947 Total 43 31 11 85 1995-1999 25 46 16 87 2000-2004 28 24 8 60 2005-2009 21 12 5 38 2010-2011 4 5 0 9 W

TO

/2

WTO Total 78 87 29 194

C. Share of Relevant Disputes Dealing with "Behind-the-Border" NTBs (percentage)





of products

All Goods

1948-1949 n.a. 0.0 50.0 25.0 1950-1959 35.7 50.0 23.1 37.8 1960-1969 20.0 n.a. 50.0 28.6 1970-1979 33.3 30.0 25.0 31.3 1980-1989 36.2 27.1 30.0 31.9 1990-1994 45.5 21.4 25.0 31.5 G

AT

T 1

947

/1

GATT 1947 Total 36.8 28.7 29.7 32.4 1995-1999 49.0 54.8 57.1 53.4 2000-2004 56.0 37.5 42.1 45.1 2005-2009 70.0 34.3 62.5 52.1 2010-2011 80.0 26.3 n.a. 37.5 W

TO

/2

WTO Total 57.4 43.1 52.7 49.4 Source: Own calculation. Notes: n.a.: not available or not applicable. References to GATT Articles XX, XXI, XXII, XXIII, XXIV and XXVIII were excluded. Adjusted according to the methodology in Annex 1 of the main paper. /1 Based on 262 disputes under the GATT. /2 Based on 393 disputes on goods under the WTO. It excludes 25 requests for consultations relating mainly to intellectual property issues and 9 relating mainly to the GATS. See Annex 1 of the main paper.

18

B. FIGURES

Figure B.1. Share of Disputes Involving the "Core Principles" of the GATT, Adjusted

(1948-2011)

Figure B.2. Top-5 Type of Provisions Cited in GATT and WTO Disputes

(1948-2011)

19

Figure B.3. Evolution of Trade in Agricultural Products,

As Share of World Merchandise Trade (1950-2011)

Figure B.4. Top-5 Types of Provisions Cited in Disputes Involving

Agricultural Products (1948-2011)

20

Figure B.5. Top-5 Types of Provisions Cited in Disputes Involving

Non-Agricultural Products (1948-2011)

Figure B.6.

Share of Disputes Dealing with "Behind-the-Border" NTBs, by type of product

(1948-2011)

21

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