Abstract
The proliferation of private standards in international trade raises concerns regarding the possibility of these measures be creating a new type of protectionism at the fringes of the WTO. WTO rules apply to actions undertaken by its Members and therefore they do not cover this type of private protectionism, which is characterized by trade restrictive measures adopted by private entities, such as an association of retailers, among other non-governmental entities. The non-application of WTO rules to private entities can contribute to private regulation, since governments may create incentives for the regulation by non-governmental entities so as to circumvent multilateral trade rules. In this context, to what extent are governments involved in private certification schemes so that WTO law could legitimately apply? Based on the analysis of three case studies, it was found that, in many situations, governments may be involved in private regulation in different levels. Therefore, in some cases, it is possible to attribute responsibility to the State for the conduct of private entities in its territory. However, in other situations, the clarification of some terms in the TBT Agreement remains as an important issue for a final decision regarding the application of WTO law to private standards.
Private Standards; WTO; State Responsibility; Protectionism; TBT Agreement