中国和技术性贸易壁垒协定。【外文翻译】.doc

1、 外文翻译 原文 China and the Agreement on Technical Barriers to Trade Material Source: RIETI Discussion Paper Series 02-E-008 July 2002 Author: Ichiro ARAKI Abstract China became a Member of the World Trade Organization (WTO) in December 2001, after more than 15 years of difficult negotiations. This paper

2、 reviews the negotiating history of Chinas accession with special emphasis on the Agreement on Technical Barriers to Trade, which deals with standards and technical regulations as well as conformity assessment procedures. Because of the unique domestic system in China, the negotiations regarding the

3、 TBT Agreement posed special difficulties both for China and the existing Members of the WTO. A close examination of the negotiation process reveals that Chinas negotiating position was a sophisticated one, with full understanding of the cutting edge of the developing jurisprudence in the WTO. Key w

4、ords: China, World Trade Organization, Agreement on Technical Barriers to Trade and Industry The author presented an earlier version of this paper at a conference entitled “China and theWTO” held by the Australian National University in March 2001. This paper will be published as part of a volume re

5、sulting from that conference by the Cambridge University Press (Cass, Deborah and Brett Williams, eds. China and the WTO, forthcoming). Special thanks are due to Brett Williams (University of Sydney) for his helpful comments and assistance in updating the information. Introduction The Agreement on T

6、echnical Barriers to Trade (TBT Agreement) sets out rules to be observed by WTO Members in their administration of technical regulations and standards, as well as conformity assessment procedures. Under the TBT Agreement, technical regulation is defined as a “document which lays down product charact

7、eristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory”. The Agreement further notes that technical regulations “may also include or deal exclusively with terminology, symbols, packaging, marking or labelling

8、 requirements as they apply to a product, process or production method”. The TBT Agreement defines standard as a “document approved by a recognized body that provides, for common and repeated use, rules, guidelines or characteristics for products or related processes and production methods, with whi

9、ch compliance is not mandatory”. As in the case of technical regulations, the Agreement further notes that standards “may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method”. Conformity ass

10、essment procedures are defined as “any procedure used, directly or indirectly, to determine that relevant requirements in technical regulations or standards are fulfilled”. The Agreement further notes that “conformity assessment procedures include, inter alia, procedures for sampling, testing and in

11、spection; evaluation, verification and assurance of conformity; registration, accreditation and approval as well as their combinations”. Trade negotiators have long been aware that national and local rules governing technical regulations, standards and conformity assessment procedures can be used, i

12、ntentionally or unintentionally, as trade barriers against foreign products. This is the reason why the old Agreement on Technical Barriers to Trade (Standards Code) was negotiated in the Tokyo Round. At the conclusion of the Tokyo Round, the Director-General of the General Agreement on Tariffs and

13、Trade (GATT) observed as follows, explaining the rationale behind the newly negotiated Standards Code: Technical regulations are essential in modern society. They are adopted to protect human and animal life and health; to ensure that products offered to the consumer meet the necessary levels of qua

14、lity, purity, technical efficiency and adequacy to perform the function for which they are intended; to protect the environment; and for reasons connected with safety; national security; and the prevention of deceptive practices. However, international trade can be complicated and inhibited by dispa

15、rities between regulations, adopted at local, State, national or regional levels; by insufficient information on the often complex and detailed requirements; by the introduction of regulations without allowing time for producers, especially foreign ones, to adjust their production; by frequent chang

16、es to regulations which create uncertainty; by the drawing up of regulations in terms of design rather than performance in order to suit the production methods of domestic suppliers, thus causing difficulties to suppliers using different techniques; by exacting testing requirements; by the denial of

17、 access to certification systems; and finally by the manipulation of regulations, testing or certification to discriminate against imports. The problem has been to strike a balance between the essential needs referred to in the preceding paragraph and the demand of exporters that their goods should

18、not unreasonably or unfairly be excluded from the market. This explanation is still valid today. These considerations were also the driving force behind the new Agreement on Technical Barriers to Trade, negotiated in the Uruguay Round. The new TBT Agreement builds upon the old Standards Code, making

19、 it a more effective tool for preventing technical regulations, standards and conformity assessment procedures from being used as a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade. The most signi

20、ficant feature of the new TBT Agreement is that the new dispute settlement mechanism under the Dispute Settlement Understanding with enhanced automaticity and stronger enforcement is applicable to it.5 One might question then why there has been so few disputes involving technical barriers to trade a

21、djudicated under the DSU. This presents a stark contrast with the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). The SPS Agreement, which was newly negotiated in the Uruguay Round as a companion to the TBT Agreement, has been invoked in a number of controversial

22、 disputes, including the famous Hormones case. This is not to say that there has been no complaint where the TBT Agreement was formally invoked. Starting with the Gasoline case, the very first case to reach the Appellate stage, a number of complaining parties alleged violations of the TBT Agreement

23、as part of their claims. However, to date, there has been no case where a dispute settlement panel found violation of the TBT Agreement. In many cases, parties reached a mutually agreed solution before the panel was established or even when it was established, before it made a definitive ruling on T

24、BT issues. In other cases, panels declined to rule on TBT issues for the sake of judicial economy. Most recently, Canada alleged violation of the TBT Agreement in its complaint against the European Communities on asbestos. Again, the panel avoided a ruling on the TBT Agreement arguing that a general

25、 ban on asbestos was not a “technical regulation” within the meaning of the TBT Agreement.9 Although this part of the panels finding was reversed by the Appellate Body, which found that the measure, viewed as an integrated whole, constituted a “technical regulation” under the TBT Agreement, the Appe

26、llate Body declined from examining Canadas specific claims regarding the violation of the TBT Agreement due to the lack of adequate factual basis. However, the fact that there have been no violation findings on the TBT Agreement does not diminish its utility. As Thorn and Carlson argue, “the most im

27、portant provisions of the TBT Agreement are those relating to procedural requirements, and the Agreements principal (not insignificant) contribution to the international trading system has been to promote transparency and information exchange”. TBT Issues in China In view of Chinas long history of s

28、tate control over economic activities, it is not surprising that many foreign traders doing business in China have complained about the lack of transparency in, and the discriminatory nature of, Chinas technical regulations, standards and conformity assessment systems. For instance, the United State

29、s Trade Representative pointed out a number of TBT issues as trade barriers of China in the 2000 NTE Report: It is often difficult to ascertain what inspection requirements apply to a particular import, as Chinas framework of import standards is not fully developed. Moreover, the United States and o

30、ther countries have complained that safety and inspection procedures applied to foreign products are more rigorous than those applied to domestic products. Foreign suppliers have also had difficulty in learning exactly how and who conducts inspections. Inspection Standards Chinese law provides that

31、all goods subject to inspection by law or according to the terms of a contract must be inspected prior to importation. China maintains statutory inspection requirements known as “conformity assessment procedures” on about 800 imported goods, and an even greater number of exported products. Chinese b

32、uyers or their purchase agents must register for inspection of imported goods at the port of entry. The scope of inspection includes quality, technical specifications, quantity, weight, packaging, and safety requirements. Quality Licenses For manufactured goods, China requires that a quality license

33、 be issued before the goods can be imported into China. Obtaining quality licenses is a time-consuming process. While requirements vary according to the product, U.S. exporters have complained that they are burdensome and contrary to principles of national treatment. Safety Licenses China also impos

34、es safety licensing requirements on certain products under the terms of the “Import and Export Commodity Inspection Law” of 1989. National health and quarantine regulations in addition require that all imported (but not domestic) food items be marked with a laser sticker as evidence of the products

35、safety. Importers are charged between 5 and 7 cents per sticker. Major problems with Chinas safety licensing system include the lack of transparency, lack of national treatment, difficulty in determining relevant standards. Examples include: Electronic Products. On January 1, 1999 China imposed mand

36、atory safety inspections for imports of electronic products, including personal computers, monitors, printers, switches, television sets, and stereo equipment. As of January 1, 2000, these same products require an import commodity safety license. Cosmetic Regulations. In mid 1999, the Ministry of He

37、alth imposed strict testing standards on imports of cosmetic products containing sunscreens, skin lighteners or hair restorers. Industry sources say the testing requirements create an effective import barrier, as they require individual testing requirements for each individual product containing one

38、 of the regulated substances, making them expensive to carry out. Many trading partners of China also shared these concerns. For instance, a report published by Japans trade ministry has made the following observation: In China, different authorities or institutions are in charge of product inspecti

39、ons depending on whether the product is domestic or imported. The standards by which products are inspected often lack transparency. When pressed to create a uniform system, China claims that this dual certification regime is non-discriminatory because common standards are used. Applying common stan

40、dards alone, however, is not enough. There must also be common procedures for certification and a single authority inspecting both imports and domestic goods. Otherwise, it will be difficult to allay suspicion that imported products are more rigorously inspected and thus discriminated against. We ho

41、pe that China will undertake active efforts in this regard, especially given the peculiarity of the dual certification system by international standards. Certification standards and procedures, including the detailed implementations, should be published, and should take international standards into

42、account in accordance with the TBT Agreement. The Sino-Japanese bilateral negotiations of September 1997 resulted in a commitment from China to improve specific features of its standards and certification regime upon accession. The industries involved, however, report that there have been no signifi

43、cant improvements, even in the simplification of procedures requiring redundant markings (Great Wall Mark, CCIB Mark) for consumer electronics. Japan urges China to adhere faithfully to its commitments in the Sino-Japanese Agreement. These issues will need to be taken up during the negotiations on t

44、he protocol issues. Indeed, these issues were considered by the Working Party on the Accession of China. In particular, the discussions on TBT issues were given a high priority after the work on the accession protocol and the Working Party report was reactivated in March 2000. The starting point of

45、their discussion was the text of the draft protocol, which had remained unchanged since May 1997. The draft protocol provided as follows: Standards and Technical Regulations 1. The list of import products subject to statutory inspection in China, together with the applicable technical regulations an

46、d standards, the objective which they fulfil and their necessity to fulfil those objectives, are specified in Annex 7 of this Protocol. 2. Chinas standards, technical regulations and conformity assessment procedures shall be based , to the maximum extent possible, on relevant international standards

47、, where they exist, except where use of different standards, technical regulations and conformity assessment procedures are justified to the TBT Committee pursuant to Article 2.4 of the TBT Agreement as necessary to fulfil: the legitimate objective of national security; prevention of deceptive pract

48、ices; or protection of human health or safety, animal or plant life or health, or the environment. Any such standards, technical regulations and conformity assessment procedures shall be administered so as not to create unnecessary barriers to trade. Government inspection agencies shall not apply to

49、 imported products compulsory standards which relate solely to fulfilling unspecified criteria of quality, quantity or weight, nor apply statutory inspection to products by reason of the volume of such imports. 3. China shall publish in the official journal complete commodity inspection criteria, whether formal or informal. 4. Government-mandated inspection agencies shall not inspect imported products for compliance with the terms of commercial contracts. 5. China may inspect imported products and/or require conformity assessment only upon justification that third-p