Legal Studies On Necessity Test Of The TBT Agreement

Necessity test is regarded as the key and core in determining whether a Member's domestic measures in accordance with the obligations of Agreement on Technical Barriers to Trade. Nowadays, technical measures can easily be abused and further become obstacles in hindering the liberalization of international trade as a substantial decline in tariff of each Member. Facing the increasing conflicts between WTO members of pursuing their policy objectives and multilateral trading system, necessity test is an important tool to determine whether a member's technical regulation is not necessary for achieving its legitimate objectives. The basic function is to balance potential value conflicts between trade liberalization and national regulatory authority. Therefore, how to seek a balance between trade liberalization and the national regulatory authority has certain theoretical meaning and practical value, which is the starting point of studying of this paper.This paper combines the use of text analysis,empirical and comparative analysis, revealing the concept of necessity test, explaining the theoretical basis of the necessity test and summarizing the substantive elements of it. Through systematic analysis of the necessity test in core provisions of TBT Agreement, this paper makes a complete explanation of applicable subject, legitimate objective and judging criteria of necessity test. Finally, by comparing with necessity tests in WTO relevant agreements, it further explores the meaning of necessity judgment standard and its development, then puts forward suggestions for improving necessity test in TBT Agreement, analyzes current situation of our technical regulation system and provides suggestions from the perspective of international and domestic level.The full paper is of about 37,000 words and is divided into five parts except for the quotation and conclusion.The first part of this paper analyzes applicable premise of necessity test. First, it explores that the principle of proportionality is the theoretical basis for necessity test in TBT Agreement. Second, it makes clear of applicable subject of necessity test is technical regulations and through the analysis of technical regulation elements, it determines the adjusting scope of necessity test. Finally, it analyzes the deeper meaning of the legitimate objective in necessity test and accurately grasps of considering elements and determining clue of it.The second part mainly analyzes the methods for necessity test, which becomes the key and difficult point of this paper. First of all, through analysis of the structure of the provisions of necessity test in TBT agreement, it abstracts the general standard of the necessity test in order to clearly explain its essence. Second, combining with relevant discussions in Panel Reports and Appellate Body Reports, it interprets separately to article 2.2 and article 2.4 of the TBT agreement, completes the judgment of whether technical regulations satisfying the "necessity requirements" and using "international standard" and sums up the analysis routines and pattern of the determining authority in applying article 2.2 and article 2.4.The third part is to compare necessity test in WTO relevant agreements. By using research method of comparative analysis, comparing relevant necessity test system in relating WTO agreement and combing with relevant WTO cases, it explores the meaning of necessity judgment standard and its developments. By comparing necessity test system in other WTO agreements, it provides analysis methods to necessity test of the TBT agreement.The forth part is improving suggestions to necessity test of the TBT agreement. Through the analysis of current status and defects of necessity test, this paper proposes that in the future, necessity test should extended its the applicable subjects, clear the judging elements of reasonable alternative measures and fully implement the special and differential treatments of developing country members.The fifth part focuses on providing suggestions on facing the necessity test of TBT for our country. By analyzing the current situation and problems of China's technical regulation system and combining with empirical analysis above, it propose in the international level, we should actively participate in the formulation and implementation of international standards and improve the notification system of the obligation of transparency; in the domestic level, we should establish an independent and complete technical regulation system and set a high level of domestic policy goals to maximize the maintenance of China's trade benefits.