On Application Of National Treatment Principle Under TBT Agreement

With the development of economic globalization, tariff and traditional non-tariff barriers have been declining continuously, while technical measures are adopted to protect domestic trade more and more often. The new trade barriers represented by technical barriers have become a new obstacle to the progress of international trade liberalization.In recent years, disputes regarding TBT agreement have been gradually increasing in the DSB practices. There have been 8 disputes settled by both Panel and Appellate Body up to now, 7 of which are involving national treatment. Technical barriers showing legitimate purposes and rationality often have strong concealment in their discriminatory nature, which may cause more harmful impacts comparing with traditional trade barriers. As a result, it is particularly important to make legal regulations to TBT issues, especially national treatment.As fundamental principle of WTO, every nation must comply with national treatment. TBT agreement and GATT1994 are main legal documents applied to national treatment issue under TBT disputes both in theory and practice. There is no definite stipulation about the application relationship of the two agreements in their articles, which creates appeal and application conflicts in practices of national treatment. Thus, in the article, we are to interpret related articles of the agreements combining with the analysis of TBT practices, in order to discuss the specific application of national treatment principle under TBT agreement, find the reason of the conflicts and raise up some solutions. In all, the main body of the article is composed of four parts.The first chapter briefly introduces the situation of national treatment issue under TBT and combs TBT cases to find the characteristics of the issue. Distinguished from tariff and traditional non-tariff barriers, national treatment issue of TBT has strong concealment and discriminatory nature at the same time. It uses more covert measures to restrict import, which may reach the restriction purposes much more easily and cause even greater detriment to international trade.The second chapter mainly interprets the legal regulations of the national treatment under TBT, especially the identification standards of the elements of the key articles, including Article 2.1 of TBT agreement, Article 3.4 and Article 20 of GATT1994. After a brief introduction of the background of TBT agreement, this part analyzes the articles of the two agreements separately and makes comparisons of these key articles.The third chapter focuses on the analysis of TBT disputes involving national treatment. This part mainly chooses two cases US-Clove Cigarettes and EC-Seal as examples to research three aspects of identification methods under Article 2.1 of TBT agreement, which consist of like products, less favorable treatment and technical regulations. From the reports of both Panel and AB, we can find that there is appeal conflict and application conflict in national treatment articles of TBT and GATT1994. In spite of some replies of the two bodies, it is still not sufficient and comprehensive in practice.The last part argues about the conflicts of the related articles of the two agreements by layers. After finding the reasons of the conflicts, it raises up some suggestions for application. When there is no definite stipulation about application relationship of the two agreements in their articles, we can first make a judge whether a related regulation measure is a technical regulation or not. If it is not, it no longer belongs to the application of TBT agreement and we may just apply to GATT1994. If it is a technical regulation, then according to the General Interpretive Note to Annex 1A of the WTO Agreement, we may directly apply to national treatment obligations stipulated in Article 2.1 of TBT agreement; there is no need to examine under GATT1994 regardless of whether it complies with TBT requirement.The settlement above is aimed at the current situation. In order to fundamentally avoid the conflicts, it depends on the legislation supplement or interpretation from the WTO members and the practice support of DSB in the future. In addition, both the import and export nations can take measures suitable to themselves, so as to avoid the conflicts and settle the national treatment issues under TBT.