This chapter provides a unique account of the content of discussions in SPS and TBT Committees. Based on an in-depth analysis of Committee meeting minutes over 5 years (2010–2014), it looks into the demand side of information, i.e. in the information sought by WTO Members raising a concern in the SPS and TBT Committees and their purpose in raising such concerns. It finds that Members active in the STC discussions are either after further information or clarification of a measure, they intend to influence draft regulations through inputs to other Members’ regulatory process, or they try to address a problem they face in the implementation of the measure. STCs therefore allow WTO Members to engage in technical dialogue about domestic regulations, against the backdrop of the SPS and TBT Agreements, without there being a legal stake in the discussion. In other words, transparency can be seen as shaping the behaviour of WTO Members without there being new agreements or enforcement.

This part presents the uses made by WTO Members of the SPS and TBT Transparency tools, to demonstrate that transparency can – and does – substitute the dispute settlement procedure. To do so, it gives an overview of both the ‘supply side’ of information, i.e. the volume of information that is shared by WTO Members, and the ‘demand side’ of information, i.e. the information sought by WTO Members that raise concerns about other WTO Members’ measures. The part shows that despite active sharing of information about domestic measures by WTO Members, there is still much higher demand than supply of information. The possibility to raise Specific Trade Concerns (STCs) in SPS and TBT Committees allows to bridge this gap and obtain information, contributes to Members regulatory process and addresses practical impediments to trade. As a result, STCs play an important role in addressing trade conflicts and preventing them from being raised as formal disputes.

Chapter 4 shows the information that is made available to WTO Members through transparency in the SPS and TBT context – the ‘supply side’ of information. In this regard it presents information made available through notifications, bilateral and multilateral regulatory dialogue, through dialogue with the private sector. The SPS and TBT Agreements enable Members to obtain a considerable volume of information on each others’ domestic measures. The high volume of information about SPS and TBT measures shows that the transparency tools are made use of substantively. Information, however, remains limited on whether this information matches the information needs. The main indication in this regard, i.e. the STC discussions, suggests that Members still have a high demand for further information including about measures that have not been notified, and therefore the overall level of disclosure of SPS and TBT measures remains insufficient.

This part gives an overview of the core legal disciplines of the SPS and TBT Agreements, the transparency obligations and related practices that have developed, as well as the provisions enabling regulatory dialogue and co-operation. It demonstrates that the legal and institutional disciplines of the SPS and TBT Agreements set the ground for a Member-driven implementation process. Because the substantive obligations remain part of ‘incomplete contracts’ with limited information necessary for their operation, the transparency obligations and related committee practices enable regulatory dialogue as a way for Members to work together towards the most appropriate domestic measures. Ultimately, the robust transparency framework of the Agreements places the Members as guardians of legality of each others’ domestic regulations and allows them to cooperate to ensure effective implementation.

Chapter 6 compares specific trade concerns and dispute settlement, demonstrating that both fora are used in a complementary manner, mostly one after the other or in parallel. This is true looking at all requests for consultations that mention the SPS and TBT Agreements, but even more so when the main subject matter of the dispute is the SPS or TBT Agreement. Generally speaking, STCs serve as a forum for dialogue to reach a common understanding of WTO compliant measures, whereas formal disputes are raised when agreement cannot be reached and a clear and authoritative interpretation is needed from a third party. All country groups tend to participate in both fora, while developing countries are most active in trying to first solve an issue through an STC before going to dispute settlement. Overall, through an empirical study of WTO Member practice, this chapter confirms the importance of regulatory co-operation between WTO Members for the effective implementation of the SPS and TBT Agreements.

After having seen both the potential effects of transparency under the SPS and TBT framework and the limitations that still remain as to their actual benefits to all Members, Chapter 9 will examine the main ways forward to improve the system. These recommendations focus on what the WTO Members on the one hand and the WTO Secretariat on the other can do to improve the effectiveness of transparency, with the ultimate goal of improving the day-to-day implementation of the SPS and TBT Agreements, preventing disputes or allowing better disputes if they must take place. The recommendations are structured around improving availability of information on all Members’ domestic regulations, to all Members and to private stakeholders and on enhancing the scope and benefits of regulatory co-operation.

Part III shows that even for trade conflicts that do not get solved in bilateral or multilateral dialogue, transparency is still an essential ‘complement’ to dispute settlement: transparency is often used in addition to formal dispute settlement procedures, either before, in parallel or after the proceedings have finished. Indeed, the SPS and TBT transparency mechanisms facilitate access to information and foster dialogue for all Members alike, thus providing equal access to understanding about domestic factual and legislative contexts behind trade frictions. If tensions persist, transparency can support Members in having the necessary information to raise and defend disputes. In parallel, discussions in STCs at the margins of formal dispute settlement can continue to serve as a basis for Members to work towards a mutually acceptable solution.