Strengthening the Compliance of the OIC Member States
to International Standards
23
some market failure that could potentially affect consumer welfare. There is no reliable way to
distinguish protectionist from legitimate standards as there is no global data source on legislative
purpose, and even if there were, it would be straightforward to present multiple purposes so as to
obscure the issue. Even a WTO dispute that results in a ruling against an SPS or TBT measure is not
enough to conclude that the measure was protectionist in intent: the WTO approach is typically to
bypass the question of intent, to focus on whether or not the measure has a scientific basis (in the case of
SPS), or whether a less trade restrictive measure should have been implemented. The most that can be
said of SPS measures and TBTs that are successfully challenged before the WTO is that they are
inefficient or ineffective, not that they are protectionist in intent. It is important to be aware of this
distinction in the context of raising Specific Trade Concerns about particular measures: exporting
countries need to emphasize factors that have been found persuasive in the WTO context, not make
difficult arguments over intent.