Regulating TRQ Schemes under WTO Law: Time to Throw Away Old Bananas?

Tariff-rate quota (TRQ) schemes are a commonly used, yet controversial trade policy instrument to regulate market access for sensitive products. In examining their regulation, the Appellate Body in EC – Bananas III (Article 21.5 – Ecuador II)(Article 21.5 – US) held that these measures are regulated by both Articles I:1 and XIII GATT since the provisions establish ‘distinct’ notions of non-discrimination. This article argues that the Appellate Body’s approach creates an unclear result based on a false distinction between Articles I:1 and XIII. Instead, WTO jurisprudence suggests both obligations serve to create expectations of equality of competitive opportunities, even though they develop distinct approaches for achieving this end. It is proposed that, in line with the principle of judicial economy, Article XIII:5 should be interpreted as creating a carve-out from the Article I:1 Most-Favoured-Nation obligation