Addressing transatlantic regulatory barriers: can the US and the EU create an effective equivalency instrument?

This chapter proposes and assesses a legal regulatory recognition instrument to address non-tariff barriers to trade for goods and services in a US and EU transatlantic regional trade agreement. The procedure would make a factual determination that the underlying levels of protection sought to be guaranteed by the parties’ respective regulations are substantially equivalent. An equivalency finding would promote recognition by shifting the burden of proof to conformity assessment systems to demonstrate why they cannot be recognized as meeting the equivalent level of protection. The instrument as proposed would be made operable by private rights of action, accord representation to consumers’ interests, and retain certain political features as entrusted to a supervising trade agreement committee. A second part of the chapter considers the WTO aspects of such an equivalency instrument and determines that it may be employed on a preferential basis as long as any resulting final recognition is not limited to only goods or services of national origin.