1、 外文翻译 原文 Domestic regulation, international standards, and technical barriers to trade Material Source:Griffith Law School, Griffith University, Queensland, Australia Author:JAN MC DON ALD 2. The TBTA and international standards 2.1 The TBTAs harmonization objectives It has long been accepted that d
2、omestic policies and laws can nullify or impair the purported benefits of trade policies, and that the WTO must therefore reach beyond border measures (Bhagwati, 1996: 2324). The GATTs national treatment and MFN obligations do this to some extent, but the growth in non-tariff barriers to trade durin
3、g the 1960s1970s prompted GATT parties to negotiate the Standards Code, the predecessor to the TBTA, in the Tokyo Round. The addition of the SPSA during the Uruguay Round stemmed from the failures of the Standards Code to curtail the growth in technical regulations in food and agricultural products
4、(Marceau and Trachtman, 2002: 813815). The TBTA and its companion on food and plant safety now add considerably to the disciplines on domestic regulatory autonomy that are contained in the GATT. The Preamble to the TBTA sheds light on the Agreements underlying harmonization claims. Its key trade con
5、cerns are to promote transparency by eliminating a countrys ability to choose rules that have greater protective effect and to facilitate trade expansion with associated economies of scale (TBTA, Preamble; WTO CTBT, 1995, annex 4, Principle 10). These objectives do not necessarily require regulatory
6、 harmonization in the form of a single international standard or rule. If the basis of the claim for harmonization is simply to achieve economies of scale or to address transparency concerns, Cassis de Dijon makes clear that mutual recognition would be equally appropriate (Leebron, 1996; Bhagwati,19
7、96: 9; Bhagwati and Srinivasan, 1996: 15). But mutual recognition does not respond to concerns that the regulatory regime of another country imposes transboundary costs, hinders the implementation of domestic laws, or is somehow unfair (Leebron, 1996: 94). Such concerns frequently underpin domestic
8、regulation in fields of consumer safety and environmental health. Accordingly, the TBTA strives for a balance between trade facilitation and domestic regulatory objectives. Its starting premise is the right of Members to introduce product requirements that serve a range of legitimate non-trade objec
9、tives, including health, and environmental and consumer protection. In this respect, the TBTA is consistent with both trade and consumer concerns about harmonization. The Transatlantic Consumer Dialogue (TACD) Principles for International Harmonization, for example, advocate the preservation of cult
10、ural preferences in the field of health and safety, identifying such regulations as inappropriate subjects of harmonization (TACD, 2000, Principle 1). Unlike the TACD Principles, however, the TBTA still places strong harmonizing disciplines on the regulatory autonomy of Members in these policy spher
11、es. These disciplines are considered further below. 2.2 The scope of the TBTA The TBTA does not attempt to specify the final content of rules or requirements.Rather, it is concerned only with the reduction of difference between Members(Leebron, 1996: 42). It therefore sets general rules for how Memb
12、ers may develop product requirements and conformity assessment procedures for testing compliance with substantive rules. These general rules include a duty to consider adoption of international standards for products and conformity assessment procedures; a duty to participate in international standa
13、rd-setting; criteria with which standards and conformity must comply when international standards are not used, such as MFN, national treatment, necessity, and least trade restrictiveness ; and mutual recognition. The significance of the TBTAs endorsement of international standards and related disci
14、plines is obviously affected by the Agreements reach. The TBTA is concerned with technical regulations and standards; only measures that fall within the definition of technical regulation or standard are subject to the TBTAs disciplines. If a measure does not fall within either of these definitions,
15、 its WTOconsistency is examined under either the SPSA (if the measure sets food safety, or plant or animal health requirements) or the GATT (for other restrictions on trade in goods). One might expect that Members wishing to constrain the use of trade measures as instruments of non-trade policy, or
16、the abuse of product regulations for trade protection purposes would advocate broad definitions that lead to broad TBTA coverage. Broader subject matter coverage would supplement the arguably weaker GATT disciplines.3 The discussion below suggests, however, that the ABs current interpretation leaves
17、 many domestic regulations that indirectly affect trade in goods outside the scope of TBTA obligations. 2.3 TBTA disciplines for adopting international standards For measures that constitute TBTA technical regulations, the Agreement imposes a range of substantive and procedural disciplines on Member
18、s. TBTA Article 2.1 synthesizes the national treatment and most-favoured nation principles contained in GATT Articles I and III into a single non-discrimination obligation in respect of like products. Members are also required to avoid creating unnecessary obstacles to trade and to adopt the least t
19、rade restrictive means of achieving legitimate objectives (TBTA Article 2.2). These obligations have been analysed in detail elsewhere (Marceau and Trachtman, 2002: 874875; Neumann and Tuerk, 2003). The following discussion therefore focuses on the provisions dealing with the adoption of internation
20、al standards as domestic technical regulations. The TBTA does not mandate harmonization of product standards, but provides strong incentives for the adoption of international standards. Article 2.4 requires Members to use international standards as a basis for technical regulations, where standards
21、exist, but it permits higher standards in some circumstances. Members may adopt their own measure where no international norm has been established or where the international measure would be ineffective or inappropriate to fulfil a particular policy objective, for instance because of fundamental cli
22、matic or geographical factors or fundamental technological problems (TBTA, Articles 2.2 and Domestic regulation, international standards, and technical barriers to trade 2572.4). Technical regulations that accord with international standards are rebuttably presumed to be consistent with the TBTAs ob
23、ligation to avoid unnecessary obstacles to trade (TBTA, Article 2.5). This provision was contested in Sardines because the EC Regulations restrictive naming standards departed from the standards set by the Codex Alimentarius Commission (Codex). Codex adopted a standard for canned sardines and sardin
24、etype products in 1978 and revised it in 1995 (Codex Stan 94). Codex Stan 94 set quality and minimum content standards for products containing fish and regulated product naming and labelling. Under Codex Stan 94, the name sardines was reserved exclusively for the species Sardina pilchardus, but othe
25、r species on the list could use the name sardines in conjunction with a country, regional or common name qualifier (Codex Stan 94, Article 6.1.1). Peru argued that the EC Regulation prohibited the marketing of Peruvian Sardinops Sagax as Pacific Sardines , and that this was inconsistent with Codex S
26、tan 94 as the relevant international standard. Accordingly, it argued that the EC Regulation was inconsistent with TBTA Article 2.4. This claim raised several important issues for the operation of the TBTA standardization obligation. TBTA application to pre-existing product requirements The Sardines
27、 dispute clarified that WTO members are obliged to review technical regulations that predate the WTO Agreement upon the introduction of new international standards. Article 2.4 says that where technical regulations are required.they shall be based on international standards. This language is capable
28、 of implying a temporal trigger (at the time regulations are required ) or a circumstantial trigger ( in situations where regulations are required) for the obligation to use international standards. Peru advocated a circumstantial trigger, arguing that the obligation refers to all on-going circumsta
29、nces that require regulation, even where those regulations are already in place.5 The equivalent harmonization provision of the SPSA was considered in the Hormones dispute. In Hormones, the AB concluded that the international standards provision of the SPSA applied to all existing and future domesti
30、c measures, there being no evidence of an intention to exempt existing measures from SPSA disciplines (Hormones AB, 128). This decision was based in part on the language of the SPSA, which refers to both adopting or maintaining SPS measures, but more broadly on a contextual reading of the SPSAs obli
31、gations. This context included reference to Article XVI:4 of the WTO Agreement, which requires Members to ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the covered agreements. 3. The implication of the TBTA for international standard
32、s While the TBTA does not mandate adoption of international standards, the Sardines decision demonstrates that it is certainly easier for a Member to defend product requirements that are based on, or adapted to suit, international standards. As well as promoting harmonization of domestic product req
33、uirements, the delegation of standard-setting functions to other international bodies achieves political economies of scale by allowing a pooling of Members regulatory and technical resources (Howse, 2002: 101). Moreover, removing controversial standard- setting functions to international fora insul
34、ates Members from the pressure of domestic coalitions, albeit sometimes at the expense of national democratic processes (Leebron, 1996: 6364). The device of quasi-legislative delegation also has the potential to address gaps in the WTOs subject matter competence in policy areas like health and envir
35、onment (Marceau and Trachtman, 2002: 838). These factors should provide a powerful incentive to Members to contribute to their development. The TBTA calls on Members to play a full part, within the limits of their resources, in the development of international standards for products for which they h
36、ave adopted or intend to adopt regulations (TBTA Article 2.6). The following discussion considers two aspects of the quality and appropriateness of international standards, namely the composition of standards bodies and the range of bodies that the TBTA recognizes. 3.1 Composition and decision makin
37、g The proviso to TBTA Article 2.6, that Members should contribute to standards setting within the limits of their resources, points to a key deficiency in the composition of current bodies, namely, their northern bias. The TBTA defines an international organization as one whose Membership is open to
38、 at least all WTO Members (TBTA, Annex 1, 4). It undermines the very basis of the TBTAs key harmonization mechanisms if that definition is purely theoretical because developing countries lack the resources and expertise to participate. While this northsouth imbalance is hardly unique to standards bo
39、dies, their influential status in the new WTO regime has attracted increased attention to the problem (Wilson, 2001). Wilson suggests prioritizing the development of international standards for key areas that will deliver trade enhancement for both developed and developing countries, thus enabling d
40、eveloping countries to concentrate their resources and representation. The FAO has acknowledged the need to build the capacity of developing countries in Codex (FAO, 2002, 29) and a recent World BankDoha Development fund initiative, the Standards and Trade Development Facility , is aimed at improvin
41、g developing country representation. The success of the developments should be monitored closely. The SPS committee has this function in relation to international SPS standards, but no such role is given to the Committee on Technical Barriers to Trade, so there is no formal process for assessing imp
42、rovements in the functioning of TBT standards bodies. A corollary of the northern bias is the over-representation of industry representatives on national delegations, creating internal tensions over who represents a nation (Hauselmann, 1996; Consumers International, 1999; Maskus and Wilson, 2000; Wi
43、lson, 2001: 12; Wallach, 2002: 835837). This industry bias also manifests itself in the departmental lead agency representation usually headed by trade or agriculture officials, rather than health or environment and in the general preference for an experts group model of standards development (Picio
44、tto, 2003). These developed country, industry, and expert biases in the composition of standards bodies compound the risks inherent in their weaker procedural transparency and voting requirements. Domestic regulation, international standards, and technical barriers to trade 267 Removing the need for
45、 consensus in favour of a majority vote certainly makes standard setting easier, and insulates the WTO from criticism. It comes at a cost, however, to democratic decision making, which could ultimately undermine the legitimacy of international standards (Marceau and Trachtman, 2002: 840; Trachtman,
46、2003a: 72; in relation to SPSA standards bodies, Stewart and Johansen, 1998: 45, 52). Broadening the composition of standard-setting bodies and improving their decision-making procedures would enhance the legitimacy of the resulting standards. It would make them more democratic and accountable, and
47、enable them to accommodate perspectives that acknowledge the subjective and contingent nature of specialist knowledge. 译文 国内法规，国际标准和技术贸易壁垒（节选） 资料来源 :格里菲斯法学院，格里菲斯大学，昆士兰，澳大利亚 作者： JAN MCDONALD 2.与国际接轨的 TBTA 2.1 TBTA 的统一目标 长期以来一直认为，对国内政策和法律可以取消或损害的贸易政策的本意是利益，因此，世贸组织必须超越边界措施（巴格瓦蒂， 1996： 23-24）。 关贸总协定的国民待
48、遇和最惠国待遇义务，这在一定程度上，但在非关税贸易壁垒的增长在 20 世纪 60 年代， 70 年代的贸易谈判促使各缔约方在关贸总协 定东京回合的标准守则，对 TBTA 前身。 该 SPSA 在乌拉圭回合期间除了源于对标准法典的失败，以减少在食品和（马素和 Trachtman， 2002： 813-815）农产品技术法规的增长。该 TBTA 及其对粮食安全和植物同伴现在大大增加对国内管理自治是在关贸总协定中的学科。 到 TBTA 序言阐明了协定的基本协调索赔光。它的主要贸易问题是促进消除一个国家的能力选择规则，有更大的保护作用，并促进贸易与规模经济相关的经济体（ TBTA，序言 ;世贸组织全面
49、禁试条约， 1995 年，附件 4，原则 10）扩展的透明度。这些目标并不 一定需要在一个统一的国际标准或规则的形式监管的协调。如果进行统一要求的基础上，只是为了实现规模经济或解决透明度问题，黑醋栗去第戎明确，相互承认将是同样适宜（ Leebron， 1996;巴格瓦蒂，1996： 9;巴格瓦蒂和 Srinivasan， 1996： 15）。 但是，相互承认不响应关注到另一个国家的监管制度规定跨界成本，阻碍了国内法律的实施，或以某种方式 不公平 （ Leebron， 1996： 94）。这种担忧在消费者经常巩固安全和环境健康领域的国内法规。 因此， TBTA 求之间的贸易便利化和国内监管目标的平衡。它的 出发前提是成员国有权提出产品要求，服务于合法的非贸易目标的范围，包括健康，环境和消费者保护。在这方面， TBTA 是关于协调贸易和消费者的关注是一致的。跨大西洋消费者对话（ TACD） 原则的国际协调 ，例如，提倡文化偏好的健康和安全领域的保护，统一确定为不恰当的科目（ TACD， 2000 年，原则 1）的各种规定。不像 T
