Sps Agreement Article 2
3. This agreement does not infringe on members` rights under other international instruments, including the right to use good offices or dispute resolution mechanisms of other international organizations or that have been established under an international agreement. Marceau and Trachtman, above in Note 12, in Case 874, refer to the case of EC asbestos and conclude: « Another interesting topic is the coverage of Article 2.1 of the OBT agreement and their relationship with Articles I, M and XX of Gnr. If the scope and meaning of Article 2.1 are similar to those of Articles in and I, a single technical regulation could constitute a violation of prionafacie in Article III, but it could be justified by Article xx of the GATT, in violation of Article 2.1 of the TBT agreement without any justification, even if it has been established that the same regulation does not violate Article 2.2 of the TBT agreement. Article 2.1 cannot be relied upon as a defence to a violation of Article 2.1, which appears to have been accepted by the EC asbestos appeal body when it concluded that the agreement is applicable to the measure at issue, but decided not to finalize the analysis under that agreement (for various reasons, including the judicial economy). In any event, the measure may be justified under Article xx of the GATT. But Canada had asserted a right under Article 2.1 of the Tri Agreement. If the French measure violated article 2.1 of the acceptable defenceless OBT, the appeal body would have committed a miscarriage of justice against Canada by refusing to process its claim under Article 2.1 of the OBT agreement. » (Added highlight) N.b.. The author infers from the context of the paragraphs around the quoted paragraph that the authors of the article might have otherwise used the phrase « It can be argued that Article xx of the 1994 GATT cannot be invoked » instead of the introductory sentence quoted here. The author found this sentence in an updated version of the article sent to him by e-mail on November 23, 2005 by one of the authors, Professor Joel P. Trachtman, page 48.
Professor Trachtman`s email address is email@example.com>. However, in these circumstances, the rapporteur believes that the appeal body could have, in light of the TBT agreement, discuss article xx, sub b independently, whether it had chosen to deal with the substantive issues of the TBT agreement, which the appeal body did not do, because the committee had not discussed the content of the TBT agreement, Article 2, paragraph 1, paragraph 2, paragraph 2, 4 and 2, paragraph 8. For the appellate body, the case remained only a dispute within the meaning of Article 4/xx, point b. Macmillan and Blakeney, supra 36, 112-113, also arguing that a TBT agreement that defeated a section 20 defence fell a section 20 defence: « The waters surrounding the relationship between the TBT agreement and the GATT seem particularly cumbersome. According to the general principles of interpretation of the WTO agreement, the TBT agreement would take precedence over the GATT agreement in the event of a conflict.