Regulatory Consistency Requirements in International Trade

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, requiring among other things that importing nations not make arbitrary distinctions in their regulatory approaches to similar problems in a manner that disadvantages imports. These 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, and argues that inter-industry consistency obligations are largely unhelpful both in theory and in practice for the identification of protectionist regulation