[WTO Case Review Series No.5] United States—Measures Affecting the Production and Sale of Clove Cigarettes (DS406):The Relationship between Article 2.1 of TBT Agreement and GATT Article III:4

There have been very few World Trade Organization (WTO) dispute settlement cases based on the Agreement of the Technical Barriers to Trade (TBT Agreement). While the rulings of the European Communities-Measures Affecting Asbestos and Products Containing Asbestos and European Communities-Trade Description of Sardines are well-known, there were no rulings which addressed the core obligations of the TBT Agreement, namely Articles 2.1 and 2.2. The case of United States - Measures Affecting the Production and Sale of Clove Cigarettes was the first case which adjudicated the obligation under Article 2.1. Although this case also addressed other TBT issues that were worth noting, this paper focuses on the ruling concerning Article 2.1 that received most of the attention. The obligation under Article 2.1 has been often compared with that of GATT Article III:4, which contains the same obligation of "no less favourable treatment." This paper examines the relationship between Article 2.1 and GATT Article III:4 and considers to what extent the "less favourable treatment" obligation under each article overlaps.