Abstract：The key distinction between technical regulation and standard in TBT Agreement is that the former is mandatory,while the latter is not.There are two different methods to the interpretation of “mandatory” in US-Tuna(II):formalism approach and market access’s precondition standard.This paper shows that both of them take the exercise of government authority as their starting point,however,they hold divergent views on the issue that when the disputed measure become “mandatory” because of the exercise of government authority.The formalism approach applies an elastic criterion to this issue which means that the DSB should consider all the facts on the basis of case by case;the market access’s precondition standard applies a rigid criteria,i.e.,only when the governmental actions do not grant foreign products which do not meet the requirements of the disputed measure the access to its domestic market,the measure become “mandatory”.To distinguish the technical regulation and standard on the basis of formalism approach,which would not inevitably erode the state regulatory autonomy,to the “mandatory”,is more helpful to combat the regulatory protectionism
李冬冬. TBT协定中技术法规和标准“强制性”区分要素——以美国—金枪鱼案(Ⅱ)为例[J]. 中国科技论坛, 2016(9): 142-147.
Li Dongdong. Distinguishing Element of “Mandatory”Between Technical Regulation and Standard in the TBT Agreement on the Basis of US-Tuna(II). , 2016(9): 142-147.
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