The Right to Refuse Equivalence of Sanitary and Phytosanitary Measures: Trading on Regulatory Trust?

Christian Delev*, Jochelle Greaves Siew

*Corresponding author for this work

Research output: Contribution to journalArticle (Academic Journal)peer-review

Abstract

Equivalence is an essential discipline for liberalizing trade between States whose sanitary and phytosanitary (SPS) measures are based on divergent regulatory approaches. During the Uruguay Round negotiations, “equivalence” under the SPS Agreement was regarded by negotiators as being “of great importance” and even considered to establish a right for exporting States. In practice, the discipline has remained ineffective, with only 36 equivalence recognition decisions made since 1995. This article argues that the underperformance of equivalence as an obligation is structural in nature: in effect, the SPS Agreement establishes a conditional right of importing Members to refuse equivalence requests. As such, exporting Members only gain equivalence protection where they either demonstrate that their measures i) meet the importing Member’s appropriate level of protection, or ii) achieve the same level of protection as parties to recognition agreements. Finally, the need for fostering regulatory trust between domestic SPS regulatory agencies is underscored as a prerequisite for achieving broader equivalence recognition.
Original languageEnglish
Number of pages19
JournalEuropean Journal of Risk Regulation
Early online date14 Mar 2024
DOIs
Publication statusE-pub ahead of print - 14 Mar 2024

Bibliographical note

Publisher Copyright:
© The Author(s), 2024. Published by Cambridge University Press.

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