The Study Of Issues On Technical Regulation In The Case Of “United States-Measures Concerning The Importation, Marketing And Sale Of Tuna And Tuna Products”

With the rapid development of economic integration and free trade, the function and influence of technical trade barrier grows increasingly. The technical trade barrier has the characteristics of strong flexibility and complexity, in which technical regulation plays a key role due to its mandatory. As a result, the study of rules of TBT Agreement has become an important task for the development of free trade to our country. It is an effective approach for studying rules to get inspiration according to analyze the representative case.Before 2011, there were only two disputes ruled according to rules of TBT Agreement so that limited cases were available for study. In 2012, the Appellate Body ruled three disputes according to the rules of TBT Agreement, which provided good opportunities of studying TBT Agreement for each country. This essay chooses the representative case “United States — Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products” as study object, which is closely related to Article 2.2, Article 2.4 and Article 1.1 of Annex of TBT Agreement. These 3 Articles aforesaid are about the important issues on the definition of technical regulation, the necessity of trade restrictions and the application of international standard. This essay aims at understanding rules related to technical regulation in TBT Agreement better and acquire suggestions for our country according to analyzing the case aforementioned.There are three points in dispute related to technical regulation in this case. The first one is whether American measures at issue constitute a technical regulation. The second one is whether American measures at issue are inconsistent with Article 2.2 of TBT Agreement, i.e. whether they are more trade-restrictive than necessary. The third one is whether American measures at issue are inconsistent with Article 2.4 of TBT Agreement, i.e. whether they use relevant international standard as a basis. The author divides this essay into six parts and analyzes this case closely around these three points in dispute.The first part is the overview of the case which shall bring a brief introduction of its causation, procedure and the main points in dispute. The second part will analyze whether American measures apply to an identifiable product or group of products, whether American measures lay down one of more characteristics of the products and whether American measures are mandatory, according to which the author will analyze whether American measures constitute technical regulations of TBT Agreement. Because mandatory is an important factor to distinguish technical regulation and standard and there is a separate opinion in panel’s analysis, the author will focus on whether American measures are mandatory in this part. The third part will discuss whether American measures pursue a legitimate objective and the necessity of American measures, according to which the author will make an analysis whether American measures are inconsistent with Article 2.2 of TBT Agreement. The fourth part will discuss whether American measures use relevant standard as a basis under Article 2.4 of TBT Agreement, so this part will analyze the issue on the identification of relevant international standard. The third part and the fourth part are the core content of the essay. The fifth part will analyze the inadequacy of our country’s technical regulations legislation and provide suggestions, which are hoping to make a contribution to legislation perfection of our country. The sixth part is the conclusion.