Legal Opinion: WTO Conformity of Private Sustainability Standards and the ISEAL Standard-Setting Code

ISEAL have released a legal opinion on ‘WTO (World Trade Organisation) Conformity of Private Sustainability Standards and the ISEAL Standard-Setting Code’, prepared for ISEAL Alliance by Mayer Brown LLP.

It has been over 10 years since ISEAL Alliance released the ISEAL-CIEL Legal Opinion ‘International Standards and Technical Barriers to Trade’, a decade that has seen dramatic change in the landscape of sustainable trade.

As our government case studies series has demonstrated, there has been an uptake in government use of sustainability standards as tools to realise the Sustainable Development Goals (SDGs) and promote sustainable trade. Governments are increasingly realising that sustainability standards compliment regulations and allow policy-makers to create better sustainability outcomes in different countries and industries. New partnerships are emerging between standards, governments and the private sector to maximise positive outcomes.

There is growing realisation among WTO Members that standards are potential tools to spur sustainable trade and avoid constituting unnecessary barriers to trade. The legal opinion reflects ISEAL’s attention to aligning our Codes of Good Practice to WTO practices, ensuring that credible sustainability standards enable sustainable trade rather than create barriers.

Key takeaways from the legal opinion include:

  • ISEAL Codes and Credibility Principles align very closely to WTO principles and disciplines, including the TBT Agreement and WTO principles for international standards.
  • Countries face a low risk in recommending that private standards operating in their jurisdictions follow ISEAL membership requirements, thus encouraging countries to raise the floor on standard setting practices in line with ISEAL. This points to a clause in the WTO Technical Barriers to Trade (TBT) Agreement about WTO member countries “disciplining” standards that operate in their jurisdictions.
  • Sustainability issues are beginning to be seen as more legitimate trade requirements, reflected in the fact that debates about non-product-related and process and production methods (NPR-PPMs) at the WTO are significantly less important than ten years ago when ISEAL commissioned its first WTO legal opinion.

The legal opinion will inform our work monitoring World Trade Organisation issues, and will be used as the basis for guidance to members on lobbying to governments on trade-related areas.

For more information on the development of the legal opinion, please contact Joshua Wickerham (joshua [at] isealalliance.org).

Join the ISEAL-led “Sustainability standards and trade experts” email group by contacting Josh Taylor (joshuat [at] isealalliance.org).