Regulatory Assurance in Deep Trade Agreements: SPS Administration and WTO Non-Discrimination

Abstract Deep preferential trade agreements increasingly organise sanitary and phytosanitary (SPS) market access through audits, establishment approval, certification and import checks. These arrangements do more than facilitate trade: they create regulatory assurance by generating information, monitoring histories and reciprocal commitments about foreign control systems. This article asks how that relationship-specific assurance should matter under WTO non-discrimination law when the underlying SPS risk conditions have not changed. Because such procedures can themselves be SPS measures, Article 2.3 may apply alongside Article 8 and Annex C; yet relationship-generated assurance should not automatically be treated as a different “condition” for the Article 2.3 comparison. The article argues that assurance is better assessed when asking whether differential administration is arbitrary or unjustifiable, preserving room for risk-based verification without allowing PTA membership to become self-justifying. CETA, USMCA and CPTPP illustrate a broader problem for transnational risk regulation: how law should distinguish objective regulatory conditions from the institutional evidence on which regulators rely.