This paper from the ISEAL Alliance and the Center for International Environmental Law (CIEL) in Geneva summarizes the findings of two legal opinions regarding the ability of governments to reference existing voluntary international standards in relation to technical regulations relating to trade and, in particular, the implications in terms of possible ‘technical barriers to trade’. The initial legal opinion was completed by independent trade lawyer Michael Rogers, and was formally reviewed by Nathalie Bernasconi-Osterwalder of CIEL. The opinions take account of relevant World Trade Organization (WTO) agreements and associated jurisprudence. They concentrate primarily on the relevance and application of the WTO Agreement on Technical Barriers to Trade (TBT) and, specifically, on the implications for non-product related Process and Production Method (npr PPM) standards.
It has often been assumed that governments cannot reference non product related Process and Production Method (npr PPM) standards, such as social and environmental standards, in relation to government procurement. This view is based on the misconception that npr PPM standards per se violate WTO rules, including the requirements of the TBT Agreement and the GPA. Legal analysis shows, however, that WTO rules do permit references to existing npr PPM standards in laws, regulations, procedures and practices relating to government procurement. Moreover, where there is an international standard (be it product-related or not)WTO law indicates a strong preference for governments to use such international standards where appropriate.