Hostname: page-component-74656f9884-c52kr Total loading time: 0 Render date: 2026-11-09T07:40:05.943Z Has data issue: false hasContentIssue false
  • English
  • Français

Regulatory Assurance in Deep Trade Agreements: SPS Administration and WTO Non-Discrimination

Published online by Cambridge University Press:  09 November 2026

Shao-Jie Chen Open the ORCID record for Shao-Jie Chen [Opens in a new window]
Shao-Jie Chen*
Affiliation:
Guangzhou Customs Technology Center, China
*
Email: iqtc9chan@gmail.com
Rights & Permissions [Opens in a new window]

Abstract

Deep preferential trade agreements increasingly organise sanitary and phytosanitary (SPS) market access through audits, establishment approval, certification and import checks. These arrangements do more than facilitate trade: they create regulatory assurance by generating information, monitoring histories and reciprocal commitments about foreign control systems. This article asks how that relationship-specific assurance should matter under WTO non-discrimination law when the underlying SPS risk conditions have not changed. Because such procedures can themselves be SPS measures, Article 2.3 may apply alongside Article 8 and Annex C; yet relationship-generated assurance should not automatically be treated as a different “condition” for the Article 2.3 comparison. The article argues that assurance is better assessed when asking whether differential administration is arbitrary or unjustifiable, preserving room for risk-based verification without allowing PTA membership to become self-justifying. CETA, USMCA and CPTPP illustrate a broader problem for transnational risk regulation: how law should distinguish objective regulatory conditions from the institutional evidence on which regulators rely.

Keywords

SPS Agreementregulatory assurancerisk regulation

Information

Type
Articles
Information
European Journal of Risk Regulation , First View , pp. 1 - 12
Creative Commons
Creative Common License - CCCreative Common License - BY
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
Copyright
© The Author(s), 2026. Published by Cambridge University Press

I. Introduction

Deep preferential trade agreements (PTAs) increasingly regulate not only substantive sanitary and phytosanitary (SPS) requirements but the machinery by which compliance is verified: systems audits, establishment approval, certification, import checks and information exchange.Footnote 1 These arrangements can lower administrative friction without changing the importer’s appropriate level of protection (ALOP) or formally recognising a foreign measure as equivalent. They therefore raise a risk-regulatory question as much as a trade-law one: when may a regulator calibrate verification differently across trading relationships because it has better evidence and stronger institutional guarantees about one foreign control system than another?

The unresolved issue is narrower: how relationship-generated assurance should matter when the underlying SPS requirement and the relevant risk conditions have not changed.

Consider an importing authority that accepts establishment lists transmitted by a PTA partner, audits the partner’s regulatory system rather than every facility, adjusts inspection frequency in light of a bilateral compliance record or streamlines certification. If a comparable non-party remains on a more burdensome route, the problem is not simply whether the foreign measure is “equivalent.” It is whether WTO non-discrimination can scrutinise risk-based administrative differentiation produced by a deeper regulatory relationship.

The SPS Agreement contains the pieces of an answer but no express rule for PTA-specific administration. Article 2.3 prohibits arbitrary or unjustifiable discrimination between Members where identical or similar conditions prevail.Footnote 2 Annex A(1) includes testing, inspection, certification and approval procedures within the definition of SPS measures,Footnote 3 while Article 8 and Annex C regulate control, inspection and approval.Footnote 4 CETA, USMCA and CPTPP harden precisely these functions through rules on establishment approval, audits, import checks and certification.Footnote 5

The first issue is coverage. Annex C contains important procedural disciplines but is not a general MFN code. Where a party-specific procedure is itself an SPS measure, Article 2.3 can remain relevant alongside Annex C.Footnote 6 This matters because a deep agreement can change the route by which a regulator verifies compliance even when the substantive SPS condition remains intact.

The deeper issue is epistemic. Risk regulation depends not only on first-order conditions – disease status, control-system performance or exposure pathways – but also on second-order assurance about those conditions. PTAs can generate that assurance through audits, certification performance, information exchange, reciprocity and repeated interaction. WTO jurisprudence has treated conditions in Members, including sanitary-control effectiveness, as relevant to Article 2.3.Footnote 7 If relationship-generated knowledge is itself relabelled as a different “condition,” however, exclusive cooperation can become self-validating: the PTA produces information, the information becomes the comparator and the comparator then justifies the PTA-specific route.

This article therefore distinguishes underlying regulatory conditions from regulatory assurance about those conditions. Better assurance may justify different verification when it is connected to the SPS function, but it should not automatically defeat the threshold comparison under Article 2.3. The argument is an interpretation of existing WTO law in an untested institutional setting, not a claim that WTO law requires open access to every PTA mechanism. Article 4 remains primary for equivalence; GATT Article I and Article XXIV may apply cumulatively.

The analysis is doctrinal and comparative. CETA, USMCA and CPTPP are used as treaty-text illustrations of how deep cooperation can create assurance infrastructures; the article does not claim that any of them has produced WTO-inconsistent discrimination in practice.

II. From equivalence to regulatory assurance

1. What the existing literature explains

Trachtman’s work already identified the regionalism problem for standards regulation: integration can disadvantage third states when regulatory relationship, rather than a formal product rule, determines access.Footnote 8 Zell analysed mutual recognition against MFN disciplines, while Nuzzo developed the TBT side of preferential integration and Article XXIV.Footnote 9 The present article does not recreate those debates; it asks what changes when the preference lies in SPS administration rather than recognition itself.

The SPS literature also occupies much of the field. Gruszczynski and Scott show that PTA SPS chapters often harden WTO obligations and SPS Committee guidance while adding detail on equivalence, audits, certification and import checks.Footnote 10 Klotz and Appleton likewise identify these mechanisms in mega-regional agreements.Footnote 11 The novelty cannot therefore lie in discovering SPS-plus procedure.

Nor is regulatory trust new. Delev and Greaves Siew place trust at the centre of SPS equivalence,Footnote 12 while Melillo examines science-related evidentiary standards in PTAs.Footnote 13 The present inquiry concerns a different evidentiary layer: not scientific evidence supporting an SPS measure, and not proof of formal equivalence, but the institutional evidence used to calibrate how an unchanged SPS requirement is administered.Footnote 14 In risk-regulation terms, the question is how law distinguishes the condition being regulated from the regulator’s assurance about that condition.

2. Party-specific SPS administration as risk regulation

A “party-specific SPS procedure” (“P-S SPS procedure”) is a control, inspection, certification, listing or approval arrangement that governs the administration of SPS requirements, provides a PTA party with a structured procedural route and is not merely the automatic consequence of completed equivalence.Footnote 15 The category is descriptive: it does not assume a GATT Article I “advantage,” actual less favourable treatment of a non-party or an Article 2.3 violation.

Equivalence and procedure nevertheless overlap. Systems audits can support equivalence or simply calibrate verification; import-check frequency can reflect equivalence, compliance history or pre-export controls; establishment listing can follow system recognition or operate as a distinct approval route. The relevant question is whether the contested administrative difference has an independent legal existence beyond recognition under Article 4.

WTO law permits that distinction because procedure is part of SPS regulation itself. Annex C governs how compliance is checked, while Annex A(1) expressly includes testing, inspection, certification and approval procedures as SPS measures; commentary accordingly treats many Annex C procedures as a subset of the broader SPS category.Footnote 16 Deep PTAs are therefore not merely trade bargains: they can become institutional infrastructures through which regulators produce and accumulate assurance about foreign control systems.

III. WTO law of differentiated SPS administration

1. Procedures as SPS measures

The textual starting point is Annex A(1). It defines an SPS measure by reference to purpose and then lists forms that such measures may take, including testing, inspection, certification and approval procedures.Footnote 17 That language does not mean that every administrative act connected to food or animal health is automatically a self-standing SPS measure. WTO case law distinguishes between substantive SPS requirements, procedures that check compliance with those requirements, and in some situations conduct or inaction that affects the operation of a procedure.Footnote 18 But it does foreclose a categorical assumption that procedure lies outside the substantive obligations of the Agreement.

Article 8 makes the point even more explicit. Members must observe Annex C in the operation of control, inspection and approval procedures and must otherwise ensure that their procedures are not inconsistent with the provisions of the SPS Agreement.Footnote 19 The clause matters for the present problem. Annex C supplies a set of procedure-specific rules, but Article 8 does not state that those rules exhaust the Agreement’s application to procedures. Where a procedure is an SPS measure, or a component of one, other provisions – including Article 2.3 – can remain relevant. This is consistent with the existing commentary, which treats certification, approval and inspection requirements as capable of falling within both Annex C and Annex A(1).Footnote 20

Those textual links are already in WTO law. The unresolved question is whether Article 2.3 reaches a different procedural route created or hardened by a PTA whose institutions also generate the assurance later used to explain that difference. No adjudicator has decided that PTA-specific question. The argument does not create a new obligation from silence; it applies an Agreement-wide obligation to procedures already encompassed by Annex A(1) and Article 8.

Adjacent jurisprudence narrows the gap. Korea – Radionuclides involved origin-specific testing and certification requirements; the Appellate Body addressed Article 2.3 and reversed the Panel on the “similar conditions” analysis, not because testing requirements lay outside the provision.Footnote 21 US – Animals treated APHIS review processes as Article 8/Annex C procedures and, in its Article 2.3 analysis, noted – drawing on US – Poultry (China) – that discrimination may arise from procedural and information requirements as well as substantive SPS measures; it also stressed that any exporting Member could request access to the US process.Footnote 22 Indonesia – Chicken confirmed that veterinary-certificate and related approval processes fall within Annex C and are subject to its undue-delay discipline.Footnote 23 None concerns a PTA, but together they show that the untested issue is the legal significance of relationship-generated assurance, not the reviewability of SPS procedure as such.

2. Article 2.3: conditions and justification

Article 2.3 prohibits SPS measures from arbitrarily or unjustifiably discriminating between Members where identical or similar conditions prevail.Footnote 24 The jurisprudence treats the provision as containing distinct but interrelated elements. In India – Agricultural Products, the Appellate Body confirmed the need to examine whether the challenged measure discriminates, whether the discrimination is arbitrary or unjustifiable, and whether identical or similar conditions prevail.Footnote 25 The comparison is not limited to the physical characteristics of products. In Korea – Radionuclides, the Appellate Body stressed that all relevant conditions in different Members must be considered, including territorial conditions that have the potential to affect products in light of the regulatory objective and the particular SPS risk.Footnote 26

The case law also shows that regulatory capacity can matter. Panels have considered disease prevalence, the credibility and effectiveness of sanitary controls and the capacity of exports to meet the importer’s ALOP.Footnote 27 The objective performance of an official-control system may therefore figure as a condition; the importer’s confidence in that performance is analytically different because it depends on the evidence available to it. Equal treatment is not the rule: different administration can be lawful where relevant conditions differ or where discrimination is not arbitrary or unjustifiable.

The cases compare conditions prevailing in Members; none asks whether an importing authority’s accumulated knowledge from a PTA is itself a condition. An audit history may prove something about the performance of a control system, but the history is not necessarily the condition itself. The distinction developed here is between how the system performs and the evidentiary basis on which the importer verifies that performance.

If assurance were treated automatically as a different “condition,” the threshold comparison could absorb the justification inquiry: exclusive cooperation would create the information gap and then rely on that gap to defeat comparability. The safer reading is to keep objective conditions in the comparator and assess relationship-specific assurance, where relevant, when asking whether differential administration is arbitrary or unjustifiable.

3. Regulatory assurance and the rationality inquiry

Assurance is nevertheless relevant. Verification intensity necessarily depends on what an importing authority can reliably know. An exporter whose competent authority has repeatedly supplied accurate certificates, permitted audits and responded to non-compliance may rationally require less duplicative checking than an exporter whose controls remain uncertain. The legal question is where that difference belongs in Article 2.3. Where underlying conditions are otherwise similar, the better view is that relationship-specific assurance may be relevant to the inquiry into whether differential administration is arbitrary or unjustifiable rather than automatically defeating comparability.

The jurisprudence on arbitrariness supports, at minimum, attention to reasons. The India – Agricultural Products panel asked whether there was a rational connection between the reasons advanced for discrimination and the objective of the measure, drawing on the Appellate Body’s chapeau analysis in Brazil – Retreaded Tyres.Footnote 28 The analogy must be handled with care because Article 2.3 is a positive SPS obligation, not the chapeau of a GATT exception. But it is consistent with the broader proposition that a respondent cannot justify differential SPS treatment merely by naming the legal instrument that produced it. Brazil – Retreaded Tyres is instructive in that limited sense: the existence of a MERCOSUR obligation did not itself supply the environmental rationale needed to explain the exemption.Footnote 29

For P-S SPS procedures, the PTA identifies the legal source of the administrative arrangement but does not by itself supply an SPS justification. Its institutions may, however, generate assurances – audits, reciprocal access, reporting obligations and review mechanisms – that bear directly on how much verification is needed. The legal significance of those assurances depends on their connection to the function of the contested procedure. A secure electronic certificate may justify less document checking; a general political commitment to cooperate cannot, without more, explain why physical inspection should be lower for products presenting the same risk.

This is an interpretive extension, not a fourth textual element of Article 2.3. It does not create a right for every WTO Member to demand the audits, committees or dispute-settlement machinery of a PTA. Nor does it establish that a third country is entitled to identical treatment merely by asserting equivalent regulatory capacity. It provides a way to test the stated rationale when a difference in procedure is already shown and the relevant underlying conditions are identical or similar.

4. Article 4 and Annex C: separate but overlapping disciplines

Article 4 remains the specific discipline for equivalence. An importing Member must accept another Member’s SPS measure as equivalent where the exporting Member objectively demonstrates that the measure achieves the importer’s ALOP; Article 4.2 requires consultations, upon request, aimed at bilateral or multilateral equivalence arrangements.Footnote 30 Equivalence is therefore an existing route through which a non-party can seek recognition of a regulatory alternative. It is also conceptually richer than simple sameness and has long been understood as a mechanism of horizontal regulatory cooperation.Footnote 31

The present argument does not displace Article 4. Where the challenged advantage is the acceptance of a foreign SPS measure as equivalent, Article 4 must do the primary work. But procedure often has an independent legal existence. The importer may maintain the same substantive SPS requirement while changing the intensity, sequence or documentary form of verification. In those situations, Article 8 and Annex C supply direct obligations: procedures must be undertaken without undue delay; standard processing periods must be published or communicated; information demands are limited to what is necessary; requirements for individual specimens must be reasonable and necessary; fees are constrained; sampling criteria are regulated; and a complaints-review procedure must exist.Footnote 32

Annex C should not be overstated. Paragraph 1(a) is framed in national-treatment terms – imported products compared with like domestic products. It does not establish a general MFN rule for every administrative feature. Paragraph 1(f) expressly reaches fees charged on products from “any other Member,” but that language is not repeated throughout the Annex.Footnote 33 The inter-Member discrimination claim therefore does not come from pretending that Annex C is a comprehensive MFN code. It comes from Article 2.3 where the challenged procedure qualifies as an SPS measure, reinforced by Article 8’s instruction that procedures must otherwise comply with the Agreement.Footnote 34

This reading also answers the strongest lex-specialis objection. Annex C is specific as to certain procedural duties, but Article 8 expressly contemplates consistency with the rest of the SPS Agreement. There is consequently no textual basis for treating Annex C as an exclusive code that displaces Article 2.3 whenever the measure happens to be procedural. The two provisions ask different questions: Annex C regulates how procedures operate; Article 2.3 regulates arbitrary or unjustifiable discrimination between Members. A single procedure can be consistent with one and inconsistent with the other, depending on the claim and evidence.Footnote 35

5. GATT Article I and regional integration

The SPS analysis does not displace GATT. Article I:1 reaches rules and formalities connected with importation and exportation, so origin-linked certification, checks or approval can also engage MFN.Footnote 36 WTO goods disciplines are generally cumulative,Footnote 37 while SPS Article 2.4 creates a presumption of GATT consistency for SPS measures conforming to the SPS Agreement.Footnote 38 That structure supports SPS-first analysis without making Article I disappear.

Article XXIV does not supply an automatic safe harbour. Turkey – Textiles required a close connection between an otherwise inconsistent measure and formation of the customs union; Trachtman argues that some standards integration may nonetheless fit within Article XXIV, while Mathis and, in the TBT context, Nuzzo emphasise limits on regional-integration defences.Footnote 39 The SPS Agreement has its own architecture, so the TBT answer should not simply be imported.

The narrower position adopted here is cumulative: apply Article 2.3, Article 4 and Annex C to the SPS measure or procedure; apply GATT Article I where its elements are established; and assess any Article XXIV defence on its own terms.Footnote 40 Deep PTA SPS chapters generally reaffirm rather than displace WTO obligations, which makes this sequencing more natural than treating PTA membership as a categorical exception.

IV. Deep PTAs as Assurance Infrastructures

The examples below are treaty-text illustrations, not findings of discriminatory implementation. Their function is to show how deep PTAs can institutionalise the production of assurance and create different administrative routes across trading relationships.

1. CETA: establishment approval and import checks

CETA supplies the clearest example. Where the importing Party maintains a list of authorised establishments, Article 5.7 requires approval of an establishment in the exporting Party without prior inspection when the exporting Party requests approval, supplies the necessary guarantees and meets Annex 5-F.Footnote 41 The substantive SPS requirement remains; part of the assurance function is shifted to the exporting competent authority.

Annex 5-J sets normal frequencies for frontier checks and permits modification by reference to pre-export controls, past experience, progress toward equivalence and other actions under the agreement.Footnote 42 The SPS Joint Management Committee adds an institutional layer for issues such as inspection-system recognition and export certification.Footnote 43 CETA thus shows how risk verification can be recalibrated through an ongoing regulatory relationship without collapsing every adjustment into formal equivalence.

2. USMCA and CPTPP: audits, checks and certification

USMCA makes the production of assurance especially visible. Article 9.10 permits systems-based audits of competent authorities and inspection systems; Article 9.11 requires risk-based import checks, information on procedures and review of check frequency; Article 9.12 limits certification to what is appropriate to the SPS objective and promotes electronic certification.Footnote 44 The chapter does not guarantee a fixed lower inspection rate, but it structures the information and institutional contact from which later verification decisions can be made.

CPTPP contains closely related rules on audits, import checks and certification.Footnote 45 Because Article 7.8 separately regulates equivalence, Articles 7.10–7.12 illustrate a distinct administrative track even though the two can interact. These provisions elaborate procedural disciplines beyond the sparse detail of WTO Annex C without necessarily recognising the exporter’s SPS measure as equivalent.Footnote 46

Across the three agreements, audits, approval, certification and import checking are embedded in continuing relations between competent authorities. Aggregate evidence associates enforceable SPS/TBT cooperation mechanisms with increased trade, without identifying the causal effect of any single procedure.Footnote 47 For present purposes, the important point is institutional: deep PTAs can create assurance infrastructures – verified information, repeated access, notification channels and reciprocal duties – that affect how a regulator calibrates uncertainty about a foreign control system. The WTO question arises when that epistemic advantage maps onto different administrative burdens for Members whose underlying regulatory conditions are otherwise comparable.

V. Endogenous assurance and the limits of risk-based differentiation

1. Conditions and assurance

The central difficulty is endogeneity. A PTA creates audit rights, information channels and continuing commitments; those arrangements generate assurance; the assurance may then support lower regulatory friction for the same partner. If the relationship itself is treated as proof that Article 2.3 “conditions” differ, the preference can validate itself before the arbitrariness inquiry begins.

Existing jurisprudence does not resolve that problem. India – Agricultural Products and Korea – Radionuclides identify relevant conditions and connect them to the regulatory objective, but neither asks whether a preferential institutional relationship can manufacture the comparison baseline.Footnote 48 The better distinction is between an attribute that exists in the exporting Member and the importer’s evidentiary basis for concluding that the attribute exists.

Suppose two exporters have comparable disease status and similarly effective official-control systems, but one has been audited for a decade under a PTA and the other has never been audited. The audit history changes the importer’s confidence, not necessarily the underlying disease status or control-system performance. Treating the history itself as proof of dissimilar conditions would collapse evidence about a condition into the condition itself.

That does not require the importer to ignore confidence. Relationship-specific assurance may be relevant to whether differential verification is arbitrary or unjustifiable. The existence of a rational connection between the additional burden and a genuine evidentiary deficit can inform that inquiry, but the PTA label alone cannot supply the SPS rationale.

2. Institutional bundles and legal limits

This insight should not become a new “non-circularity” element of Article 2.3. The treaty does not require supporting evidence to be reproducible by every third country. The inquiry can remain within the existing elements by asking what underlying condition or uncertainty the procedure responds to, what assurance the relationship provides and whether the procedural difference is connected to that assurance rather than simply to membership.

Membership may nevertheless be practical shorthand for an institutional bundle: audit access, reporting duties, emergency contacts and enforcement commitments. Its legal force should depend on those features rather than the label itself. This is especially important where a procedural advantage is permanent while the factual basis for assurance can change.

3. Reciprocity, investment and the limits of adjudication

Regulatory cooperation is costly. Systems audits, secure data exchange, joint committees and technical consultations consume resources, and WTO law does not require an importing Member to reproduce those investments for every trading partner. Article 2.3 cannot be converted into a right to free access to institutions financed by PTA parties.

Assurance can also depend on reciprocity and continuing access. An authority may be trusted because it must permit audits, report incidents, maintain records and respond to findings. A snapshot of comparable domestic capacity does not necessarily reproduce those commitments. Membership may therefore embody a genuine verification bundle, but the bundle should be identified and connected to the SPS procedure rather than treated as self-justifying by name.

Confidentiality, emergency communication and dispute-settlement or suspension mechanisms can add further assurance. These features explain why risk-based administration cannot be reduced to a comparison of disease status alone, but they also caution against judicial micromanagement of border controls.

Panels are poorly placed to redesign inspection systems or price the institutional value of long-term cooperation. Article 2.3 should not become a proportionality review of every difference in inspection intensity. Its narrower role is to test whether relationship-specific assurance actually bears on the regulatory task once a covered procedure, discrimination and similar underlying conditions are established.

4. What current WTO law cannot require

Current WTO law does not clearly require a third-country pathway into every PTA procedure, equal expenditure on audits, identical committee access or replication of reciprocal enforcement commitments. Article 2.3 is a non-discrimination discipline, not a general law of open regulatory cooperation. It can discipline the reasons for a closed outcome without guaranteeing an open one. Where assurance genuinely depends on continuing institutional commitments that a non-party has not reproduced, differentiated administration may remain lawful; membership simply cannot do justificatory work by itself.

This limitation separates the argument from open-recognition and open-plurilateral proposals.Footnote 49 Those approaches seek broader access to recognition or cooperation. The present claim is narrower: existing SPS rules can scrutinise how relationship-generated assurance is used without deriving a general right of accession from the SPS Agreement.

5. Design implication: provenance-neutral assessment

A separate design implication follows. Where a Member chooses to extend facilitation beyond the PTA, criteria should focus on the quality of assurance rather than its treaty provenance. Audit access, control-system performance, certification reliability, incident reporting and compliance history can be specified in advance; a non-party could then seek assessment against those criteria while bearing appropriate costs and monitoring obligations. This is a design recommendation, not a claim about current WTO law.

Such an approach is narrower than open recognition. It concerns evidence used to calibrate procedure, not automatic access to a PTA institution or automatic recognition of a foreign measure. It preserves relationship-specific differences where assurance depends on continuing commitments that a non-party has not reproduced, while reducing the risk that political provenance substitutes for regulatory quality.

Regional treaty practice cannot itself rewrite WTO law,Footnote 50 and any design response should remain sensitive to developing-country resource constraints and the special-and-differential-treatment dimension of the SPS Agreement.Footnote 51

VI. Conclusion

Deep PTAs increasingly govern the administrative infrastructure of SPS risk regulation. Audits, establishment approval, certification and import checks can be differentiated across trading relationships even where the importer’s ALOP and substantive SPS requirement remain unchanged. The resulting legal problem is not simply preferential trade; it is how transnational risk regulation should treat institutional differences in what regulators know and can verify.

The SPS Agreement provides a textually grounded route. Annex A(1) recognises that testing, inspection, certification and approval procedures can be SPS measures, and Article 8 leaves such procedures subject to the Agreement as a whole. Article 2.3 can therefore become relevant to inter-Member procedural differences, while Article 4 remains primary for equivalence and Annex C retains its own procedural disciplines. The PTA-specific application remains untested, and GATT Article I and Article XXIV remain cumulatively relevant.

The central contribution is the distinction between underlying regulatory conditions and regulatory assurance. PTAs may produce better information, audit histories and institutional remedies, and those features can rationally support lower verification. But they should not automatically be relabelled as different “conditions” for Article 2.3, because doing so would allow the institutional relationship to manufacture the comparator that validates its own procedural preference.

Current law does not guarantee access to a PTA’s regulatory institutions. Its more modest discipline is justificatory: when relationship-generated assurance is invoked, the regulator should identify what assurance matters and how it connects to the SPS function. For risk regulation more broadly, the issue is the conversion of epistemic advantage into legal differentiation – when better institutional knowledge is a legitimate basis for calibrated control, and when it becomes a substitute for the cross-Member comparison that non-discrimination still requires.

Data availability statement

No new datasets were generated or analysed in this study. The primary legal materials relied upon are publicly available from the WTO and official treaty repositories.

Financial support

This work was supported by the National Key Research and Development Program of China (Project No. 2023YFF0614700).

Competing interests

The author declares none.

Use of AI statement

OpenAI ChatGPT 5.6 Sol was used as an assistive tool for language editing. All substantive legal propositions, primary sources, treaty texts, case-law citations, factual claims and final arguments were independently reviewed and verified by the author, who takes full responsibility for the manuscript.

References

1 L. Gruszczynski and J. Scott, The WTO Agreement on Sanitary and Phytosanitary Measures: A Commentary (2nd edn., Oxford University Press 2023) pp. 281–305, especially 290–93 and 303–05; S. Klotz and A. Appleton, “Technical Barriers to Trade and Sanitary and Phytosanitary Measures in Preferential Trade Agreements: The Recent Past and the Near Future” in K. Claussen, M. Elsig and R. Polanco (eds.), The Concept Design of a Twenty-First Century Preferential Trade Agreement: Trends and Future Innovations (Cambridge University Press 2025) pp. 46–82, especially the discussion of audits, import checks and certification.

2 Agreement on the Application of Sanitary and Phytosanitary Measures, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 493 (“SPS Agreement”) Art. 2.3.

3 SPS Agreement Annex A(1), which includes testing, inspection, certification and approval procedures within the definition of sanitary and phytosanitary measures.

4 SPS Agreement Art. 8 and Annex C.

5 Comprehensive Economic and Trade Agreement between Canada and the European Union (“CETA”) Art. 5.7(4)–(7) and Annex 5-F <https://www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/ceta-aecg/text-texte/05.aspx?lang=eng> (last accessed 21 August 2026); CETA Art. 5.10 and Annex 5-J; Agreement between the United States of America, the United Mexican States and Canada (“USMCA”) Arts. 9.10–9.12 <https://ustr.gov/sites/default/files/files/agreements/FTA/USMCA/Text/09_Sanitary_and_Phytosanitary_Measures.pdf> (last accessed 21 August 2026); Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”) Arts. 7.10–7.12; see also Art. 7.8 on equivalence.

6 Gruszczynski and Scott, supra, note 1, 203–20. The authors explain that control, inspection and approval procedures may themselves fall within Annex A(1) and, where they do, are subject to the Agreement as a whole as well as Annex C; SPS Agreement Art. 8. Its second limb requires Members, beyond observing Annex C, to “otherwise ensure that their procedures are not inconsistent with the provisions of this Agreement.”

7 Appellate Body Report, India — Measures Concerning the Importation of Certain Agricultural Products, WT/DS430/AB/R, adopted 19 June 2015, paras. 5.260–5.261; Appellate Body Report, Korea – Import Bans, and Testing and Certification Requirements for Radionuclides, WT/DS495/AB/R, adopted 26 April 2019, paras. 5.58–5.64 and 5.93. The Appellate Body reversed the Panel’s Article 2.3 inconsistency findings because the Panel had not properly accounted for relevant territorial conditions; in doing so, it clarified that the Article 2.3 comparison entails consideration of all relevant conditions in different Members, including territorial conditions relevant to the regulatory objective and SPS risk; Panel Report, India – Measures Concerning the Importation of Certain Agricultural Products, WT/DS430/R, adopted as modified 19 June 2015, paras. 7.388–7.435; see also Gruszczynski and Scott, supra, note 1, 140–3.

8 J. P. Trachtman, “Toward Open Recognition? Standardization and Regional Integration under Article XXIV of GATT” (2003) 6 Journal of International Economic Law 459; J. P. Trachtman, “The Limits of PTAs: WTO Legal Restrictions on the Use of WTO-Plus Standards Regulation in PTAs” in K. W. Bagwell and P. C. Mavroidis (eds), Preferential Trade Agreements: A Law and Economics Analysis (CUP 2011) pp. 115–49.

9 J. A. Zell, “Just Between You and Me: Mutual Recognition Agreements and the Most-Favoured Nation Principle” (2016) 15 World Trade Review 3, <https://doi.org/10.1017/S1474745615000518>; S. Nuzzo, “No Safe Haven: Why the GATT Regional Exception Does Not Apply to Technical Barriers to Trade” (2024) 15 Global Policy 528, <https://doi.org/10.1111/1758-5899.13344>; S. Nuzzo, Technical Barriers to Trade, Preferential Integration and the Law of the WTO (Edward Elgar 2025).

10 Gruszczynski and Scott, supra, note 1, 281–305.

11 Klotz and Appleton, supra, note 1, 46–82.

12 C. Delev and J. Greaves Siew, “The Right to Refuse Equivalence of Sanitary and Phytosanitary Measures: Trading on Regulatory Trust?” (2024) 15 European Journal of Risk Regulation 966, <https://doi.org/10.1017/err.2024.7>.

13 M. Melillo, “Standards of Scientific Evidence in Preferential Trade Agreements” (2022) 25 Journal of International Economic Law 369, <https://doi.org/10.1093/jiel/jgac014>.

14 Melillo, supra, note 13, 369–89. Her focus is standards of scientific evidence embedded in PTAs, including their spread beyond SPS chapters; the present article concerns the evidentiary assurance used to administer SPS procedures and the non-discrimination consequences of party-specific administration; Delev and Greaves Siew, supra, note 12, 966–84.

15 This article uses “deep PTA” descriptively for agreements that move beyond tariff liberalisation into domestic regulatory cooperation. It does not suggest that “depth” has an autonomous legal meaning under WTO law.

16 Gruszczynski and Scott, supra, note 1, 203–20 (especially 204–20). The authors explain that control, inspection and approval procedures may themselves fall within Annex A(1) and, where they do, are subject to the Agreement as a whole as well as Annex C.

17 SPS Agreement Annex A(1), which includes testing, inspection, certification and approval procedures within the definition of sanitary and phytosanitary measures.

18 Panel Reports, European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R and WT/DS293/R, adopted 21 November 2006, especially the analysis of Annex C(1)(a); Appellate Body Report, Australia – Measures Affecting the Importation of Apples from New Zealand, WT/DS367/AB/R, adopted 17 December 2010, paras. 434–8.

19 SPS Agreement Art. 8. Its second limb requires Members, beyond observing Annex C, to “otherwise ensure that their procedures are not inconsistent with the provisions of this Agreement.”

20 Gruszczynski and Scott, supra, note 1, 203–20 (especially 204–20). The authors explain that control, inspection and approval procedures may themselves fall within Annex A(1) and, where they do, are subject to the Agreement as a whole as well as Annex C.

21 Korea – Radionuclides (AB), supra, note 7, paras. 5.58–5.64, 5.93. The measures at issue included additional testing and certification requirements on imports from Japan; the Appellate Body reversed the Panel’s Article 2.3 findings on the “similar conditions” analysis rather than on the ground that Article 2.3 was inapplicable to such requirements.

22 Panel Report, United States – Measures Affecting the Importation of Animals, Meat and Other Animal Products from Argentina, WT/DS447/R, adopted 31 August 2015, paras. 7.50–7.67, 7.573–7.590 and 7.620–7.621. The Panel treated APHIS review processes as procedures within Article 8 and Annex C. In its Article 2.3 analysis, it noted – drawing on Panel Report, United States – Certain Measures Affecting Imports of Poultry from China, WT/DS392/R, adopted 25 October 2010, para. 7.147 – that discrimination may stem from procedural and information requirements as well as substantive SPS measures, while distinguishing the US framework because any exporting Member could submit a request under 9 CFR 92.2.

23 Panel Report, Indonesia – Measures Concerning the Importation of Chicken Meat and Chicken Products, WT/DS484/R, adopted 22 November 2017, paras. 7.516–7.535. The Panel treated approval of a veterinary health certificate, and related country-of-origin and business-unit approval processes that check sanitary requirements, as SPS approval procedures subject to Annex C and found undue delay inconsistent with Article 8 and Annex C(1)(a).

24 Agreement on the Application of Sanitary and Phytosanitary Measures, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 493 (“SPS Agreement”) Art. 2.3.

25 Appellate Body Report, India – Measures Concerning the Importation of Certain Agricultural Products, WT/DS430/AB/R, adopted 19 June 2015, paras. 5.260–5.261.

26 Korea – Radionuclides (AB), supra, note 7, paras. 5.58–5.64, 5.93.

27 India – Agricultural Products (Panel), supra, note 7, paras. 7.388–7.435; Gruszczynski and Scott, supra, note 1, 140–3, especially 141–3, discussing disease prevalence, the credibility and effectiveness of sanitary controls and capacity to meet the importing Member’s ALOP as potentially relevant conditions.

28 Panel Report, India – Agricultural Products, supra, note 7, paras. 7.427–7.435, drawing on the rational-connection reasoning in Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R, adopted 17 December 2007, paras. 226–32.

29 Brazil – Retreaded Tyres (AB), supra, note 28, paras. 226–32. The analogy is limited: the text and structure of Article 2.3 SPS differ from the GATT Article XX chapeau.

30 SPS Agreement Art. 4.1; SPS Agreement Art. 4.2; SPS Committee, Decision on the Implementation of Article 4 of the Agreement on the Application of Sanitary and Phytosanitary Measures, G/SPS/19/Rev.2 (23 July 2004).

31 Gruszczynski and Scott, supra, note 1, 160–9.

32 SPS Agreement Annex C(1)(a)–(i). Annex C(1)(a) is framed in national-treatment terms; Annex C(1)(f), on fees, expressly refers to products originating in “any other Member.”

33 SPS Agreement Annex C(1)(f).

34 SPS Agreement Art. 8. Its second limb requires Members, beyond observing Annex C, to “otherwise ensure that their procedures are not inconsistent with the provisions of this Agreement.”

35 SPS Agreement Art. 8 and Annex C; EC – Biotech Products (Panel), supra, note 18; Australia – Apples (AB), supra, note 18.

36 General Agreement on Tariffs and Trade 1994 (“GATT 1994”) Art. I:1.

37 Gabrielle Marceau and Joel P Trachtman, “A Map of the World Trade Organization Law of Domestic Regulation of Goods: The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade” (2014) 48 Journal of World Trade 351. The article discusses the overlap and cumulative application of GATT, TBT and SPS disciplines.

38 SPS Agreement Art. 2.4.

39 Appellate Body Report, Turkey – Restrictions on Imports of Textile and Clothing Products, WT/DS34/AB/R, adopted 19 November 1999, paras. 45–58; Trachtman, “The Limits of PTAs,” supra, note 8, 126–48; J. H. Mathis, “Regional Trade Agreements and Domestic Regulation: What Reach for “Other Restrictive Regulations of Commerce”?” in L. Bartels and F. Ortino (eds), Regional Trade Agreements and the WTO Legal System (Oxford University Press 2006) pp. 78–108; Nuzzo, supra, note 9. Her lex-specialis argument is developed for the TBT Agreement; the SPS question remains distinct and should not be assumed to have the same answer.

40 Gruszczynski and Scott, supra, note 1, 303–5. They conclude that modern FTA SPS chapters generally supplement rather than displace WTO SPS obligations; SPS Agreement Arts. 2.3–2.4; Trachtman, “The Limits of PTAs,” supra, note 8, 126–48; Mathis, supra, note 39, 78–108; Nuzzo, supra, note 9. The point is not that Article 2.4 answers Article XXIV, but that the SPS Agreement expressly structures its relationship with GATT obligations and should therefore be analysed on its own terms before any regional-integration defence is assessed.

41 CETA Art. 5.7(4)–(6) and Annex 5-F.

42 CETA Annex 5-J, Section A. The Annex permits modification of check frequencies taking into account, inter alia, pre-export controls, the importing Party’s past experience and progress toward recognition of equivalence.

43 Government of Canada, “Meeting of the First Sanitary and Phytosanitary Joint Management Committee” (agenda, 2018), which included recognition of EU Member State meat inspection systems and harmonised export certificates among implementation issues under CETA.

44 USMCA Art. 9.10; USMCA Art. 9.11(1)–(6). Notably, Art. 9.11(4) permits a Party to change the frequency of import checks as a result of experience gained through checks or actions or discussions under the SPS Chapter; USMCA Art. 9.12.

45 CPTPP Arts. 7.10–7.12.

46 Klotz and Appleton, supra, note 1, section 3.3.2.6, characterising audits, import checks and certification in mega-regional agreements as compliance measures that go beyond the sparse procedural detail of WTO Annex C.

47 OECD, Trade and Economic Effects of International Regulatory Co-operation (OECD Trade Policy Papers No 212, 2018), finding positive trade effects associated with SPS/TBT regulatory-cooperation mechanisms in PTAs, especially where commitments are legally enforceable. The evidence is aggregate and is not used here to establish the effect of any specific SPS procedure.

48 Korea – Radionuclides (AB), supra, note 7, paras. 5.58–5.64, 5.93.

49 Trachtman, “Toward Open Recognition?,” supra, note 8, 459–92; Trachtman, “The Limits of PTAs,” supra, note 8, 146–8; General Agreement on Trade in Services (“GATS”) Art. VII:2–3; B. Hoekman and C. Sabel, “Open Plurilateral Agreements, International Regulatory Cooperation and the WTO” (2019) 10 Global Policy 297, <https://doi.org/10.1111/1758-5899.12694>.

50 I. Van Damme, “What Role is There for Regional International Law in the Interpretation of the WTO Agreements?” in L. Bartels and F. Ortino (eds), Regional Trade Agreements and the WTO Legal System (Oxford University Press 2006) 553–76.

51 SPS Agreement Art. 10. The present article does not develop special and differential treatment as an independent claim, but any institutional design for third-country assurance should remain attentive to capacity constraints faced by developing-country Members.