On The "Unnecessary Obstacles" Judgment Method Of US–TunaⅡ(Mexico)

This paper discussed the problem is "unnecessary obstacles" judgment method. Theso-called "unnecessary obstacles" judgment method refers to according to the technicalbarriers to trade agreement (hereinafter referred to as the TBT agreement ") how to determinea technical regulation on international trade is a "unnecessary barriers". This article mainlytake the research method is text analysis, empirical analysis. This paper is divided into fourparts altogether. The first part is for Mexico v. the tuna case (DS381) case introduction; Thesecond part is the case involved in the controversy over the general introduction; The thirdpart introduces the "unnecessary obstacles" judgment method; The fourth part mainlydiscusses the enlightenment to China.The third part is the emphasis and difficulty. The third part directly combined groupreports and appeal body report the relevant discussed in "unnecessary obstacles" judgmentmethod made detailed analysis. First of all, is to "unnecessary obstacles" this conceptunderstanding, through the interpretation of the concept that "unnecessary obstacles"judgment method is actually based on article2.2of the TBT agreement and article2.4of theinterpretation and the completion of technical standards in compliance with the "necessityrequirements" and whether to use "international standard" decision this conclusion. Then, isthe article2.2and article2.4of the specific analysis. Article2.2is broken into "legitimatetarget""realization""for trade restrictions not more than necessary" and "consider targetfailed to achieve risk," the four major factors explain respectively. Article2.4is broken into"related international standards","foundation" and "invalid or inappropriate" three elementswere explained. Through the elements of the interpretation method, realize article2.2andarticle2.4involves multiple concept in the interpretation of all has already formed the regularroutines and pattern, at the same time, these concepts have uncertainty characteristic ishighlighted. According to article2.2and article2.4of the concept of characteristic, this paperholds that shall respect the dispute settlement body previous case form judgment "unnecessaryobstacles" mode, and at the same time, highlight the role of comparative law, the concept ofuncertainty as far as possible into the comparison of the specific things.The fourth part discuss the revelation to China, is to deepening the theme of the article. From this case, discusses in our country to make the technical regulations and technicalbarriers to trade with the right way. This paper holds that in making technical regulations,should pay attention to as far as possible with "international standard""area standard" and"other countries make but are widely accepted standard" unifies, avoid the establishment oftechnical regulations on international trade caused unnecessary obstacles. In our countryencounter technical barriers to trade disputes, attention shall be paid to the concept of thesmall element of research, in order to make more perfect appearance scheme.