Technical Barriers To Trade And Legal Issues

Technical Barriers to Trade (TBT) are taken by the countries or regional organizations in foreign trade to restrict or prohibit import and export, with the purpose of safeguarding the country, guaranteeing the quality the export products, avoiding cheats, protecting the lives and health of human beings, animals or the plants as well as the environment and other legal goals. At present, TBT, which mainly consists of technical regulations, technical standards and conformity assessment procedures, has become the main protective measures of each country in foreign trade, and at the same time, has been the most complicated trade barriers in the international trade. This paper is divided into four chapters: At the beginning, it introduces the basic theories on technical barriers to trade; Then, it analyzes the international rules of technical barriers to trade and introduces the legislations of various countries; Further, the technical regulations and standards as well as the conformity assessment procedures in our country are discussed. Lastly, it introduces the present situations of TBT in China and points out the existing problems as well as offers some suggestions on how to perfect them.Chapter one is about the elementary theories of technical barrier to trade. In fact, there is not a explicit definition on technical barriers to trade at present, so the author defines it as following: Any technical measure that has the hindrance function to the international trade is the so-called technical trade barrier; The technical barrier to trade has characteristics of extensiveness, hiddeness, dualism and controversies; The birth of technical barrier to trade was profoundly influenced by the theories of trade protection and now the TBT has become the main trade protective modes in the international trade; The technical barrier to trade has reasonable function to the promote the international trade. However, once it is abused it will become the nonessential barrier to the international trade. Therefore, it is necessary to tell the right technical trade barrier from the restrictive technical trade barrier, namely, whether it is to realize the legal goals of protecting the life and health of human beings as well as the plants and animals? Whether the measure is necessary? Whether it conforms to the non-discrimination principle? Whether it constitutes disguised form of restrictions or gives the nonessential barrier to the international trade? The technical barrier to trade mainly includes the technical laws and regulations, the technical standards and the conformity assessment procedures.Chapter two mainly discusses the international restrictions and coordinations of the technical barriers to trade. GATT and the agreements related to negotiations of Uruguay round are the most important rules to restraint the trade barriers in WTO, among which the Technical Barriers to Trade Agreement (the WTO/TBT agreement) and the Sanitary and Phytosanitary Measures Agreement (the SPS agreement) are most important ones. In addition, some provisions and the agreements also involve the technical barriers to trade, such as the GATT 20^th article, the GATT 21^st article, "Establishment World Trade Organization Agreement", "Agreement on Trade and Environment Resolution", "General Agreement on Trade in Service", "Agreement on Agriculture", "Agreement on Subsidies and Countervailing Measures", "Agreement on Trade-Related Aspects of Intellectual Property Rights" and "Agreement on Rules of Origin" etc., which play an important role in regularizing the WTO member states to make and implement technical trade measures, and in reducing the technical trade barriers. Nowadays, there are three important international standardization organizations in the world. They are the International Standardization Organization (ISO), the International Electrician Committee (IEC) and the International Telecommunication Union (ITU). Their goals are making the international standards for countries in the world, which can facilitate the international exchange of the commodities and the services and eliminate the technical barriers to trade in the international trade. The technical barriers to trade have side-effects on the regional economic integration and many regional economic organizations have realized that it is necessary to restrict and coordinate the technical-trade-barrier measures taken by the member states. All these restricting and coordinating measures are positive to the technical trade barriers, but at the same time they enhance the national technical trade barriers to the countries outside the region.Chapter three aims at illustrating the domestic legislation and practice about technical trade barriers. The measures of technical barriers to trade mainly are domestic laws and regulations of the various countries', among which the important trade countries' hold the balance. For example, USA has a very complicated TBT system, in which there is the corresponding law and regulation for each kind of product, including its behavior of production or import, and the diverse examination procedures are set for the importing products by the means of making standards, examinations, identification and authentication. The American technical-trade -barrier system has the dispersive characteristic in structure. On one hand, it may disperse the management authority to many subjects and links in the market, preventing the over-concentration of administrative authority and amounting to the maximization of management efficiency. On the other hand, its dispersive system itself constitutes one kind of technical trade barrier, which can weaken the competitive advantages of importing products, thus protect the development of related domestic industries. Japanese government has realized the national unification of the technical standards of the industrial and agricultural products through the method of technical standardization. Most Japanese national standards are made according to international standards, but simultaneously Japan increasingly is making some technical regulations and standards inconsistent with the international regulations and standards. Thus Japan can restrict the impact of the products from foreign countries on its market effectively when the foreign products enter the Japanese market, because the foreign products conform not only to the international standards, but also to the Japan's standards.Chapter four discusses the present situation of our country's technical-trade-barrier system and put forward some relevant suggestions. The expression of "technical regulations" our country is using is inconsistent with that in " the TBT Agreement", so we have to adjust it according to the TBT Agreement; study the two plans of compulsory standards proposed by the project-researching group of constructing the national technical regulations and standards system and give the suggestions on evaluation and volition; lastly carry on the ponder to the construction and the consummation of our country's strict technical laws and regulations system. Afterwards, the deficiencies of our country's technical regulations and standards system are analyzed. The most basic problem is the inconsistent expression of "standard" in China with the use of it in TBT Agreement. So we have to amend the present measures and related legislations according to the commitments in the "Report of the Working Party on the Accession of China", and establish and increasingly perfect the voluntary standard system and technical regulations system according to the expressions of the "standard using and technical regulations" in TBT Agreement. The differences between standard formulation and the technical regulations are pointed out. We should make the formulated standards more effective by displaying the function of the enterprises and guild organizations, combining the market guidance and government's suitable intervention. Finally, the legislation system of the conformity assessment procedures is discussed. The conformity assessment procedures are the important path to carry out the technical regulations and standards efficiently. The author analyzes the present situations and existing problems of our country's authenticating legal system and the inspecting legal system of the importing and exporting goods. In the end, some suggestions on how to perfect them are given.