Comments on Shrimp/Turtle and the product/process distinction

Abstract

This article provides comments on a paper by Professors Robert L. Howse and Donald H. Regan entitled 'The Product/Process Distinction - An Illusory Basis for Disciplining 'Unilateralism' in Trade Policy'. The author suggests that, despite Howse and Regan's comment, there is a textual basis for the product/process distinction in the GATT/WTO, citing the word 'product', which occurs in various provisions of the WTO agreements, and cases interpreting such text; but, of course, this basis is subject to interpretation. He submits that an analogy between domestic and international cases does not work well, because the WTO institutional framework differs from that of a national court system. The question, according to this author, is how to prevent abuses if one abandons the product/process distinction or otherwise opens the possibility of trade-restricting measures tied to process of production. He concludes that the product/process distinction remains useful because it is a bright-line rule, but he agrees that such distinction should not be too rigid. The real question, still to be addressed, is how far to relax the distinction and in what areas.