Private Standards in the WTO: A Multiple Streams Analysis of Resisting Forces in Multilateral Trade Negotiations

Articles Private Standards in the WTO: A Multiple Streams Analysis of Resisting Forces in Multilateral Trade Negotiations Padrões Privados na OMC: uma Análise de Múltiplos Fluxos de Resistir às Forças nas Negociações Comerciais Multilaterais Yi Shin Tang*  http://orcid.org/0000-0003-3389-1666 Bruno Youssef Yunen Alves de Lima**  http://orcid.org/0000-0003-0258-5658 *University of São Paulo (USP), São Paulo-SP, Brazil; . ORCID iD 0000-0003-3389-1666. **University of São Paulo (USP), São Paulo-SP, Brazil; . ORCID iD 0000-0003-0258-5658. Abstract The international trade system has been facing a relative decrease in the relevance of tariffs in favour of non-tariff, regulatory requirements (technical, sanitary and phytosanitary standards). The proliferation of these measures, which essentially consist of rules on product labelling and on production processes and methods, may be explained by the growing influence of private agents, such as corporations and business associations. Although these players are willing to develop and enforce a competing regulatory framework such as this on a broader range of topics, this may also generate more fragmented trade rules at both geographic and substantive levels, thus leading to a significant resistance among governments to integrate private standards into the multilateral trade system. Therefore, a mounting debate emerges on the ways in which private standards have been stonewalled in the current negotiation processes of the World Trade Organization (WTO). By relying on Kingdon’s Multiple Streams Framework (MSF), we address this question with a particular focus on the current efforts and struggles within the WTO to incorporate private regulations into the international trade agenda. Keywords private standards; international trade; WTO; multiple streams; governmental agenda; interest groups Resumo O sistema comercial internacional vem enfrentando uma diminuição relativa na importância das tarifas em favor de exigências regulatórias de natureza não tarifária (padrões técnicos, sanitários e fitossanitários). A proliferação dessas medidas, que consistem essencialmente em regras de rotulagem de produtos e processos e métodos de produção, pode ser explicada pela crescente influência de agentes privados, como corporações e associações comerciais. Embora esses atores estejam dispostos a desenvolver e aplicar uma estrutura regulatória concorrente em uma ampla gama de tópicos, isto também pode gerar regras comerciais mais fragmentadas tanto geográfica quanto materialmente, resultando em uma significativa resistência por parte dos governos para integrar os padrões privados ao sistema multilateral de comércio. Portanto, surge um debate crescente sobre as maneiras pelas quais os padrões privados foram bloqueados nos atuais processos de negociação da Organização Mundial do Comércio (OMC). Contando com o Modelo dos Múltiplos Fluxos (MMF) de Kingdon, abordamos essa questão com um foco particular nos esforços e embates atuais da OMC para incorporar regulações privadas à agenda de comércio internacional. Palavras-chave padrões privados; comércio internacional; OMC; múltiplos fluxos; agenda governamental; grupos de interesse Introduction The pillars of the current international trade system, which have notably persisted since its establishment by the end of the post-war period, were essentially based on the adoption of progressive tariff concessions under the General Agreement on Tariffs and Trade (GATT 1947). However, this order has also become progressively subject to structural adaptations as a result of continuous interactions among GATT member states through successive rounds of negotiations and cemented with supplementary trade agreements, eventually leading to a far more complex and comprehensive configuration embodied in the WTO system since 1995 (Adlung and Mamdouh 2018). Therefore, the international trade regime currently dominated by the WTO is no longer restricted to the regulation of tariff barriers to trade, but has also included comprehensive rules on non-tariff barriers such as sanitary, phytosanitary and technical measures, as well as other aspects directly related to trade (such as intellectual property rights and investment measures) (Bossche and Zdouc 2013). Despite such changes in the dynamics and organisation of international trade relations, the main principles of the multilateral trade system have been preserved since its inception. Namely, the WTO has continuously acknowledged the leading role of governmental bodies in the design and development of policies oriented towards trade integration goals, thus maintaining their authority to impose customs and border controls, as well as to determine higher or lower degrees of trade openness of their domestic markets for the access and competition of foreign goods and services (Marx et al 2012). Nevertheless, a new modus operandi of global trade has been increasingly distinguished by the presence of non-state actors who seek to act independently from the limits imposed by governments. Though initially guided and constrained by an agenda set by states, these players have created a plethora of rules and procedures in spheres where the authority of public regulators cannot or are not willing to exist (Cutler 1999). In this sense, such dynamics of trade regulation differ from the normative model that has originally driven the initiatives of liberalisation undertaken by the contracting parties who founded the WTO. The traditional public and centralised decision-making model is characterised by the existence of clear and well-defined cores in terms of preferences and coordination of regulatory processes. On the other hand, the current dynamics of international trade have challenged that model and seen the emergence of multiple stakeholders with diffuse and partially disconnected interests. Consequently, the centrality-based model of the multilateral trade regulatory system has progressively given room to a partial delegation, concession or transfer of the power to non-state actors (Cutler 1999). In other words, market and non-governmental players have become articulators of a rising model of private-based governance of international trade. In this context, the so-called ‘private standards’ have been a key instance of how such non-state forms of trade regulation overlap with state-based forms of decision-making. Private standards are generally understood as non-state voluntary rules that govern the means and processes used to produce, supply, pack and transport goods and services, as well as the management of other aspects pertaining to the local, regional and global levels of production chains (Marx et al 2012). Although not mandatory, they enjoy a significant degree of influence and enforceability among producers and exporters, since complying with those standards will signal to consumers that their products a (...truncated)