Research On The Legal Interpretative Issues Of Standard Regulations Of The <TBT Agreement>

The predecessor of Agreement on Technical Barriers to Trade was called Standards Code in Tokyo Round, which mainly involved technical regulations standard and conformity assessment procedures. Standard regulations as one of the most significant content of the Agreement on Technical Barriers to Trade is meaningful for facilitating and ensuring the international trade. The life of law lies in interpretation, exploring the issues of standard regulations in practice with the legal interpretation of law theory is the most efficient method to acquaint and perfect the standard regulations. The logic framework of this paper is to study three legal interpretation problems of the standard regulations and put forward some constructive suggestions which can serve the Chinese international trade. Even though compared to the technical regulations, the standard regulations are non-mandatory, while as one method of the technical barriers to trade, standard regulations are still influential.Through introduction after studying the research actuality, we can know that domestic scholars are mainly still focus on technical regulations; the research results of the standard regulations are relatively defective. While overseas scholars study the international standard and private standard deeply, for the sake of more controversial issues in these two aspects in the WTO cases in recent years. In these research results, on the one hand academics mainly analyzed how to distinguish the standard and technical regulations, meanwhile proposed the legal problem that whether the private standard can apply the Agreement on Technical Barriers to Trade. On the other hand academics discussed that how the international standard can guide the regional agreements, and explanted the application of the international standard.Chapter ? is named as the basic theory of the standard regulations. Initially this chapter introduced the basic concepts of the standards and the development history of standardization activities which enhanced the international trade. And then this paper considered that standardization developed in the free trade theory and trade protectionism. And this paper analyzed the standard regulations through the Game Theory. Last but not least, this paper introduced the legal concept of the standard. For one thing, the paper studied the difference and relations between the definitions of standard in legal dictionary and the definitions of standard in Agreement on Technical Barriers to Trade. For another this paper combed the historical development of the definitions of the standard in the WTO.Chapter?is about the legal interpretation predicament of the standard regulations. This chapter put forward three legal interpretative problems of the standard regulations. Firstly, the problem of making a difference between standard and technical regulations. Mandatory is the basic element to differentiate the standard and technical regulations. However both the private actors and conditional measures can influence the judgment of the mandatory of a certain disputed measure. Secondly, the legal interpretation problem of the international standard. According to the article 2.4 of the Agreement on Technical Barriers to Trade, the international standard is with some mandatory factors. What kind of constitutive requirements the international standard is needed? How to understand the validity and appropriateness of the international standard? Are the pre-technical regulations needed to be amended by the latest international standard? Thirdly, the legal interpretative problems of non-discrimination principles of standards. How to determine the problems of like products and no less treatment on standard? The GATT 1994 and Agreement on Technical Barriers to Trade both are under the Multilateral Agreements on Trade in Goods and there are non-discrimination principles in these two agreements. So if a member violates the non-discrimination principles, which kind of agreement should be applied? Is the article 3.4 of the national treatment in GATT 1994 more serious than article 2.1 of the national treatment in Agreement on Technical Barriers to Trade?Chapter ? the theoretical analysis of the legal interpretation of the standard regulations. This chapter existed as methodology of the above mentioned problems. This part mainly analyzed two methods of the legal interpretation: Firstly, the treaties interpretative rules of Article 31 and 32 of the Vienna Convention on the Law of Treaties; Secondly, the conflict laws of the WTO. In the practice of the WTO law, Vienna Convention on the Law of Treaties is the basic rules of the treaty interpretation, and owns the legal position of international custom. In the WTO legal practice, normal superficial conflicts of the regulations can be explained through article 31 and 32 of the Vienna Convention on the Law of Treaties. If there exists real conflicts between treaties, the theory of conflicts of law is needed, which includes the lex posterior deroga legi priori and lex specialist degrota legi generali.Chapter ? the interpreting path of the standard regulations. This chapter mainly involves the solution of the above mentioned problems. Firstly, private factors should not affect the determination of the mandatory; for judging the mandatory of the conditional measures, the classification analysis is an advisable method; Mandatory should be understood in broad sense, namely includes regulative mandatory and de facto mandatory. Secondly, international standard refer to the standard which is used by the internationalization organization and is known by the general public. Valid international standard refer to the one which can realize the legitimate object of the measures. Proper international standard refer to the one which can properly realize the legitimate object of the measures. International standard can apply to the technical regulations which exist before the international standard and will persist. Thirdly the determination of the like products exist many uncertain elements. Compared to the objects of the regulation, according to the competitive relationships to judge the like products will be more precise. The necessity test of the Agreement on Technical Barriers to Trade mainly involves three aspects: the contribution degree of the measures for the legitimate objects; the trade limit degree of the measures; the results and risks of the unachievable legitimate objects. Agreement on Technical Barriers to Trade and the GATT 1994 are similar in the rules of non-discrimination, so they should be interpreted in consistency and uniformity.Chapter ? the enlightenment of the legal interpretation on standard regulations for China. This chapter proposed some beneficial enlightenment of the interpretation on standard regulations for Chinese FTA standard regulations and China dealing with the WTO dispute. On the one hand, from 2014 to 2015, China's FTA develop rapidly, entered into several agreements includes China-Swiss FTA?China-Korea FTA?China-Australia FTA. Exploring the paradigm of China's FTA gradually become the significant factor to enhance the China's FTA. This paper not only proposed some suggestion for perfecting the China's FTA, but also made some consideration for the paradigm of China's FTA. On the other hand, the enlightenment of the standard regulations for China to deal with the WTO dispute mainly includes three aspects: legitimate; the distinguishing between the technical regulations and standard; the retroactivity of the international standard.