服务贸易自由化与非贸易社会价值的协调

胡晓雨

【摘要】世贸组织协议框架内的条约都秉承着同一宗旨，即在强化国际贸易管理秩序的同时保持成员国管理国内事务的权利不受侵犯，尤其是为追求非贸易社会价值而进行的立法与行政管理行为，如环境保护、公共秩序和人类健康。为此，成员国在世贸组织协议法律框架内发展出一些法律工具，以求达到贸易自由化与管理非贸易价值之间的均衡，其中为争端解决机构使用最多也是最受争议的法律工具就是“必要性测试”。“必要性测试”最早为争端解决机构使用是在货物贸易领域，相关贸易纠纷中如果出现了成员国为追求非贸易价值进行国内立法或管理，从而对国际贸易产生了扭曲或限制效果时，争端解决机构会适用“必要性测试”来判断该成员国是否违背世贸组织协议。在服务贸易领域内“必要性测试”鲜有出现，尽管服务贸易协议第六条第四款要求成员国组织谈判以解决国际贸易自由化与国内立法管制非贸易社会价值之间的冲突。本文正是以服务贸易为背景，讨论在第六条第四款下引入“必要性测试”以达到上述两种价值的平衡。
【关键词】必要性测试；国内非贸易价值管理权力；非歧视；服务贸易自由化
【全文】
　　Introduction
　　How best to discipline domestic measures distorting trade without curtailing national regulatory autonomy unduly remains to be a crucial question for the negotiation of the multilateral trade agreement. So far, certain legal tools have been developed to stamp out protectionism under the WTO framework, especially the agreements concerning trade in goods. In the context of the GATS, a Member's regulatory measures, which are neither discriminatory （Articles II, XVII） nor market-restrictive （Article XVI）， may as well impose considerable costs on foreign service suppliers within the realm of domestic market, which in turn would impede international trade in services[1] Consequently, the disciplines are established under Article VI to protect the commitments made under other provisions of GATS from being impaired by unfair or unjustified domestic measures.[2] Then, the question turns to be how to determine whether a measure distort trade unduly? Some Members are convinced of involving a necessity test, just as the one developed under trade agreements concerning goods, into in the prospective Article VI:4 disciplines[3] ; while the other Members lack confidence in drawing a line between services trade liberalization and public policy regulation in the form of the necessity test, which has been criticized as too onerous for national regulators . [4]Given these concerns, WTO Members may wish to explore a way less intrusive on domestic regulatory processes and provide, meanwhile, guidance for national regulatory authorities on identification and elimination of disguised trade barriers. Against this backdrop, we shall then discuss the possibility to construct the Article VI:4 discipline on the basis of a necessity test yet with more deference to domestic regulatory autonomy. It is noteworthy that three disputes concerning the TBT Agreement have recently been concluded, which are the first to involve substantive finding regarding the necessity test under Article 2.2.[5]> The WTO adjudicating bodies' legal analysis in these TBT cases have mapped out the contours of a necessity test, which cuts back domestic measures unreasonably restrict trade yet shows considerable deference to national regulators. It will thus enlighten us about the necessity test involving in the prospective disciplines on domestic regulation under Article VI:4 of the GATS.
　　I. Overview of the Necessity Test in Article VI:4 of the GATS
　　In accordance with Article VI:4 of the GATS, the Council of Trade in Services is mandated to develop any disciplines necessary to ensure that measures relating to qualification requirements and procedures, technical standards and licensing requirements do not constitute unnecessary barriers to trade in services. To this end, the Working Party on Domestic Regulation （WPDR） was established to develop the disciplines on domestic regulatory practice relating to the measures of the abovementioned kinds [6] Prior to the Doha Round, WTO Members, leading by the Working Party on Professional Services （WPPS, predecessor of WPDR）， had negotiated the Disciplines on Domestic Regulation in the Accountancy Sector （hereinafter the Accountancy Disciplines） ,[7] which are intended to be integrated into the GATS at the end of the Doha Round. The WTO Hong Kong Ministerial Declaration in 2005 instructed negotiators to develop a set of “horizontal” disciplines generally applied to all service sectors. Until now, there had been several versions of the text of disciplines produced to reflect Members' drafting suggestions, and the latest draft, “Disciplines on Domestic Regulation Pursuant to GATS Article VI:4” is dated March 20, 2009 （hereinafter the Chair's March 2009 text） .[8]The negotiating progress of domestic regulation disciplines so far achieved was described by the Chairman of the WPDR in a Progress Report [9] （S/WPDR/W/45） produced on 14 April 2011. In this report, the WPDR Chair summarized the proposals presented by Members for revising 2009 text, and found that some distance still needed to be covered in order to produce a final text of the draft discipline on domestic regulation. All the paragraphs of the draft discipline were, as the Chair indicated, at different stages of progress, which could be characterized in terms of three broad categories: the paragraphs where agreement had been reached on an ad referendum basis; the paragraphs where there had been no agreement but the proposals reduced to a single alternative; and the paragraphs where there was limited progress and multiple alternatives and language options remain .[10]>
　　As WPDR highlighted in the Progress Report, one of the most controversial issues is whether a normative standard in the form of “necessity test” should be included into the Article VI:4 disciplines [11]>
　　Many Members deem “necessity test” the central rule to assess the compatibility with the GATS of trade-restrictive domestic regulations [12]Under the GATS Agreement, the Member's right to adopt and implement domestic regulations is specifically recognized [13]and will be subject to the Article VI:4 disciplines with the aim of minimizing their negative impact on trade .[14]In this respect, the “necessity test” has been reckoned as the normative approach primarily used in the WTO jurisprudence practice to strike a balance between the freedoms of Members to maintain domestic regulation in order to meet national policy objectives, on the one hand, and ensuring such measures do not constitute unnecessary obstacles to trade, on the other hand. In fact, the Accountancy Disciplines ,[15]>as the first disciplines developed under the mandate of Article VI:4, has encompassed a necessity test in paragraph 2 （General Provisions）：
　　“Members shall ensure that measures not subject to scheduling under Articles XVI or XVII of the GATS, relating to licensing requirements and procedures, technical standards and qualification requirements and procedures are not prepared, adopted or applied with a view to or with the effect of creating unnecessary barriers to trade in accountancy services. For this purpose, Members shall ensure that such measures are not more trade-restrictive than necessary to fulfil a legitimate objective. Legitimate objectives are, inter alia, the protection of consumers （which includes all users of accounting services and the public generally）， the quality of the service, professional competence, and the integrity of the profession.” （emphasis added）
　　By contrast, the words “necessary” or “unnecessary” are scarcely mentioned in the Chair's March 2009 Text -- the latest version of draft disciplines on domestic regulation pursuant to Article VI:4. Actually, the discussions since 2009 showed that there has been significant opposition, especially from the developing countries, to any reference to the word “necessary” in the draft discipline .[16]Nonetheless, the extent to which a domestic measure may have an adverse effect on the international service trade has to be determined under the mandate of Article VI:4. To this end, certain terms other than “necessary”， though carrying the similar meaning, was incorporated to into the Chair's March 2009 Text, such as “less trade restrictive means” （paragraph 16）， “not in themselves constitute a restriction on the supply of services” （paragraph 17 and paragraph 31） . [17]Moreover, in the subsequent negotiations leading by the WPDR, several Members has presented the so called “necessity test related proposals” with the intent of involving the necessity test into the final draft of disciplines on the domestic regulation pursuant to GATS Article VI.4 .[18]>
　　On the other side, a number of Members has expressed opposition to the inclusion of necessity tests into the domestic regulation disciplines. For instance, the delegations of Brazil, Canada and the United States circulated a communication[19]to the Members of WPDR to define their position against necessity test. The Members highlighted the uncertainty and unpredictability of necessity test, the interpretation of which may vary depending on the different context of each dispute. [20]So far, the strongest criticism on necessity test appears to be its restraints on the Members' “right to regulate” ,[21]which is clearly recognized in the preamble to the GATS and reaffirmed by the WTO Tribunal .[22]In this respect, some developing countries have stressed their need to advance development goals through regulation and to enhance domestic regulatory frameworks .[23]Thus, these developing countries insisted that the right to regulate language contained in the Article VI:4 discipline should be retained and further reinforced in the future disciplines. Moreover, the necessity test, as opponent alleged, are employed by the panels to determine whether a trade restrictive measure is absolutely essential or if there are other less trade restrictive measures to achieve a certain end pursued by a Member ,[24]>that is to say, this test entitle the WTO dispute settlement organs to conduct as a global regulatory review agency and second guessing a Member's domestic regulatory trade-offs.
　　II Legal Framework of the Prospective Necessity Test in the Article VI:4 Disciplines on Domestic Regulation
　　1. Necessity Test in Article VI:4 of the GATS and Article 2.2 of the TBT
　　During the development of a prospective horizontal necessity test under Article VI:4 of GATS, some important issues could be elucidated by the WTO panelists' interpretation on similar concepts encompassed in other WTO Agreements, like Article 2.2 of TBT or Article 5.6 of SPS.[25] Moreover, the formation of necessity test under Article VI:4 will be inevitably informed and enriched by the rich jurisprudence on Article XX of GATT, where the necessity test is first developed. The Secretariat of Working Party on Professional Services had published a note [26]>in 1996, which outlined the key elements of the TBT Agreement and analyzed their relation with certain key issues involved in Article VI:4 of GATS. Although this note constituted no authoritative interpretation of the provisions of GATS, it provided several reasons to support the argument that the TBT Agreement, especially Article 2.2, could be a useful guidance for establishing the discipline of domestic regulation pursuant to Article VI:4 of GATS:
　　First, the key requirement of Article VI:4 resembles the core principle encompassed in the TBT Agreement [27]>The chapeau of Article VI:4 requires that the negative effect of domestic regulatory measures on service trade should be the minimum, compatible with the fulfillment of the policy objectives Members desired; while one important purpose of the TBT Agreement is to ensure that technical regulations and standards adopted by Members pursuing to legitimate objectives do not constitute unnecessary barriers to trade.
　　Second, there are clear similarities between the types of measures covered by the TBT Agreement and those of Article VI:4 of the GATS [28]>The TBT Agreement lays down rules for the Members' domestic measures relating to technical regulations, standards and procedures for assessment of conformity with such measures; while the measures subjecting to Article VI:4 discipline include technical standards, domestic requirements and procedures concerning qualification and licensing. All these measures, no matter under the TBT Agreement or Article VI:4 of the GATS, are closely related to a country's administration on the quality of goods or services.
　　Third, the necessity test embodied in Article VI:4 is an “obligation provision”， as that contained in Article 2.2 of TBT; while the necessity test involved in Article XX of the GATT1994 is of characteristic of “exceptions”， that is to say, only after a Member's regulatory measure violate certain trade obligation under GATT can the necessity test being triggered to justify such violation. The Members thus undertake an “obligation” under Article 2.2 of TBT to ensure that regulations, standards, testing and certification procedures do not create unnecessary obstacles to international trade. In this regard, Article VI:4 is similar as Article 2.2 and imposes obligations on Members to ensure not constitute unnecessary barriers to trade in services.
　　Finally, the TBT Agreement is focused on encouraging Members to work together so as to eliminating domestic regulations unnecessary for fulfilling the policy objective at hand. Similarly, it remains uncertain under the GATS discipline that to what extent governments could cooperate to reduce the negative effects arising from domestic regulation, taking into account of the considerable regulatory diversity across Member countries. Drawing the line between those measures that should be allowed and those that should be forbidden is often a difficult exercise with regard to disciplines on both the technical regulations and domestic regulations in service. In this connection, the experience of the TBT Agreement may be instructive for establishing similar mechanisms in the GATS, among which the necessity test is the most important means to draw the line between trade liberalization and national regulation.[29]>
　　2. Legal Framework for the Analysis of Article 2.2 of TBT
　　The text of Article 2.2 of the TBT Agreement reads as follows:
　　“Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. For this purpose, technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non fulfilment would create. Such legitimate objectives are, inter alia: national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment. In assessing such risks, relevant elements of consideration are, inter alia: available scientific and technical information, related processing technology or intended end-uses of products.”
　　In all the three TBT cases, the panels faced with an initial question on the legal test to be applied in assessing the impugned measures' compliance with Article 2.2. Actually, panels found that the prior panels and the Appellate Body had offered little guidance on this question [30]Although Article 2.2 was presented as a claim in some previous disputes under the TBT Agreement, few of those disputes contains a substantive analysis of text of Article 2.2 .[31]>
　　All the panels in the recent three TBT cases have reached an agreement on the relationship between the first sentence and the second sentence of Article 2.2, that is, the first sentence merely sets out a general principle, namely not to create unnecessary obstacles to international trade ;[32] while the second sentence laying down the detailed obligation that member must comply with so as to explain the meaning of the general principle reflected in the first sentence .[33]The Appellate Body has expressed a similar view on the relationship between the first two sentences of Article 2.2. The words “for this purpose” linking these two sentences, according to the Appellate Body, imply that the second sentence qualifies the terms of the first sentence and informs the scope and meaning of the obligation contained in the first sentence .[34]In other words, the first sentence does not create a separate obligation for Member Countries, and a violation of Article 2.2 would be established on the specific elements encompassed in the second sentence .[35]However, the panels in the three TBT case had proposed different approaches to analysis the specific obligation embodied in the second sentence of Article 2.2.
　　The panels in US-Clove Cigarette and US-Tuna II （Mexico） both suggest that Article 2.2 calls for a two-step analysis in determining the consistency of the contested measures: i） whether the measure at issue pursues a legitimate objective; and ii） whether the measure is not more trade-restrictive than necessary to fulfill that legitimate objective, taking into account the risks non-fulfillment would create [36]>Concerning the first step, there seems to be little argument with respect to the framework for analysis of legitimate objective. In both cases, the panels have firstly identified the objective pursued by the impugned measure, and then test on the legitimacy of such an objective （or objectives）。 As for the second step, it appears that both of the two panels focus on two requirements: one is the contribution of the contested measure to the legitimate objectives, at the level the Member deemed appropriate; the other is whether there are less-trade restrictive alternative measures of achieving the same level of protection. The United States, as the Respondent country in all the three TBT cases, has consistently suggested that trade restrictiveness of the measure at issue should be analyzed at first. Unlike the panels in the prior two cases, the panel in US-COOL has set out a three-step test for legal analysis of the obligation embodied in the second sentence of Article 2.2: i） whether the contested measure is trade restrictive within the meaning of Article 2.2; ii） whether the contested measure pursues a legitimate objective; iii） whether the contested measure is not more trade-restrictive than necessary to fulfill the objective discerned in the second step.
　　The panel suggested in US-COOL that, the obligation contained in the second sentence of Article 2.2 remains the same in any disputes, yet such an obligation could be parsed into several different elements which need not to be analyzed in the same manner for every situation [37]It seems that, however, the Appellate Body has set forth an approach for the assessment of “necessity” in the context of Article 2.2, which may be applied to all kinds of TBT disputes. The first step for analyzing Article 2.2 remains to be the assessment of “legitimate objective”， which is reckoned as a significant benchmark for assessing the necessity of the challenged measure .[38]The second step focuses on the determination of whether a measure is “more trade restrictive than necessary”， which involves a “relational analysis” [39]of three factors: i） the trade-restrictiveness of the measure; ii） the degree of contribution that the measure makes to the achievement of its objective; and iii） the risks non-fulfillment would create. In most cases ,[40]there would be a comparison of the trade-restrictiveness and the degree of achievement of the objective by the challenged measure, with that of possible alternative measures, which may be reasonably available and less trade restrictive than the challenged measure, taking account of the risks non-fulfillment would create. [41] It is worth to note that in order to establish the approach for evaluating “necessity” in the context of TBT, the Appellate Body draw an analogy with the interpretive approach for Article XX of GATT 1994 and Article XIV of GATS, where the necessity of a challenged measure is determined on the basis of “weighing and balancing” certain factors ,[42]and of a comparison between the measure at issue and reasonably available less trade-restrictive alternatives .[43]>
　　3. Which Provision is relevant to Article 2.2 of the TBT Agreement ---- Article XX of GATT1994 or Article 5.6 of the SPS Agreement
　　The determination of “necessity” in the context of Article XX of GATT 1994, as articulated by the Appellate Body, involves a weighing and balancing of the contribution of the challenged measure to the achievement of the objective it pursued and the restrictive impact of the measure on international trade, in the light of the importance of the interests furthered by the measure. If this analysis yields a preliminary conclusion that the measure is necessary, this must be confirmed by comparing the measure with possible less restrictive alternatives, which may provide an equivalent contribution to the achievement of the objective pursued [44]However, the relationship between the major elements being assessed is less clear, though the Appellate Body assert that weighing and balancing test is a comprehended one. [45]>
　　The assessment of necessity described in Article 5.6 of the SPS Agreement could be understood as a type of cost-benefit analysis [46]In Australia – Salmon ,[47]the Appellate Body identified three elements with respect to the legal test of Article 5.6. The complaining Member must prove that there is another SPS measure which: i） is reasonably available, taking into account technical and economic feasibility; ii） achieves the member's appropriate level of sanitary or phytosanitary protection; and iii） is significantly less restrictive to trade than the SPS measure contested. It is suggest that Article 5.6 of SPS would seem to involve a balancing exercise similar to the one espoused by the Appellate Body concerning the assessment of necessity under Article XX of GATT. Though, the difference is that Article 5.6 would not include consideration of the degree of the measure's contribution to its objectives .[48]>
　　The United States, as the Respondent, consistently argued in all three disputes that the jurisprudence relating to Article 5.6 of the SPS Agreement should be applied for the panel's analysis of Article 2.2 ,[49]whereas the legal analysis undertaken by previous panels and the Appellate Body in the context of Article XX of the GATT 1994 was not relevant in interpreting Article 2.2 .[50]Here are the arguments the United States put forward in each case to support its position: 1） the legal question contained in Article XX of the GATT 1994 is different form that of Article 2.2 of the TBT Agreement, that is, the alternatives compared under Article 2.2 are both WTO-consistent, while the alternatives being compared under Article XX are one WTO-inconsistent and the other WTO-consistent. [51] 2） Article 2.2 sets out a positive obligation, whereas Article XX provides for general exceptions. Such a difference has a significant implication regarding the allocation of the burden of proof between the Complainant and the Respondent .[52] 3） there is no textual basis to apply the legal interpretive approach under Article XX to Article 2.2 .[53] However, none of the three panels accepted the United States' contention in toto. Rather, they drew upon the Appellate Body's jurisprudence relating to Article XX of the GATT 1994 in varying degrees, for their legal analysis under Article 2.2.[54]
　　At the outset, the panels did show their intent to find a compromise between the argument of the Respondent and Complainant by taking account of the legal test established under both Article XX of GATT 1994 and Article 5.6 of SPS Agreement, to the extent appropriate, in assessing the contested measure's fulfillment of the objective [55]The panels in US-Tuna II （Mexico） and US-COOL have accepted the United States' argument that the context in which the word “necessary” is used under Article 2.2 differs from that under Article XX. That is to say, Article XX （b） and （d） requires that the measure itself be necessary for the fulfillment of the objective; while Article 2.2 requires that the “trade-restrictiveness” of the contested measure be necessary for the fulfillment of the legitimate objective .[56] As for the determination of “legitimate objective”， the panel in US-COOL sought to clarify the level at which the responding Member aims to fulfill the identified objectives ,[57] similar to the requirement under Footnote 3 of Article 5.6 on assessing the Member's appropriate level of protection .[58] In the view of the Appellate Body, though, it is inappropriate and unnecessary for a panel to discern the level of protection that the responding Member wishes to achieve ,[59] and hence rejected the panel's reliance on Article 5.6 of SPS Agreement in this respect. In contrast, the panel in US-Tuna II （Mexico） rejected the United States' proposal in a straightforward way. Although Article 5.6 of SPS Agreement is helpful to clarify the meaning of certain terms of Article 2.2, it only plays a comparable role. Article 2.2 makes no reference to a measure being “significantly” more trade restrictive than necessary ,[60]> thus the legal test of Article 2.2 could not contain such qualification in assessing the less trade-restrictive alternative measures provided by the Complainant.
　　Considering the parallels between Article 2.2 and Article XX of GATT 1994, the panels were all inclined to find some guidance in the jurisprudence relating to the general exceptions under the GATT and GATS. In both US-Clove Cigarette and US-COOL, the panels confirmed that treaty interpreters should not automatically transpose jurisprudence developed in the context of one treaty to another ,[61] though they all emphasized, at the same time, that the legal analysis of previous panels and the Appellate Body concerning Article XX of the GATT 1994 may provide useful insights for the interpretation of Article 2.2 of the TBT Agreement .[62] Furthermore, the two panels listed several reasons for their disagreement with the United States' argument of the inapplicability of Article XX to the Article 2.2 legal test .[63] First, the wording of these two provisions are very similar. Besides, the text of the sixth recital in the preamble to the TBT Agreement uses almost the same language as those of Article XX of the GATT 1994. Second, the second recital of the preamble to the TBT Agreement prescribes the WTO Members' desire to “further the objectives of GATT 1994” .[64] Third, basing on the context of the provisions and the negotiating history of TBT agreement in 1970s, the panel in EC-Asbestos reckons the TBT Agreement as a development of the GATT .[65] As mentioned above, there is a clear reference to the Article XX of GATT 1994 and Article XIV of GATS in the Appellate Body's determination of “necessity” under Article 2.2, whether in the evaluation of certain factors or in the comparison of the challenged measure and possible alternative measure. [66] Despite the different factors being assessed under those provisions, it seems that the Appellate Body relied much more on the jurisprudence of Article XX of GATT than that of Article 5.6 of SPS Agreement.
　　III The Elements involved in the Assessment of “Necessity” under Article 2.2 of TBT Agreement
　　1. Legitimate Objectives
　　Despite the WTO tribunals have reiterated the right of Members to regulate and to pursue their policy objective ,[67] the GATT 1994 is consistently criticized for its pro-trade stance which is reflected in, among others, the dichotomy between substantive trade obligations and general exceptions under Article XX ,[68] that is to say, domestic policy objective listed in Article XX will not be taken into consideration unless trade obligations are found to be violated. [69] Actually, the WTO tribunals have fallen subject to intense criticism for value–judging Members' domestic policy ever since the assessment of the relative importance of the interest or value furthered by domestic regulations was involved within the necessity test under Article XX of GATT. [70] The impugned measure will more likely be assessed as necessary, where the value or interest embodied in such a measure is ranked higher. [71]
　　In contrast, the TBT Agreement show its consideration of non-trade values in its preamble as a WTO Member should not be prevented form taking measures in pursuit of certain social values ,[72] and thus recognizing Members' domestic regulation as somewhat of an inherent treaty right under the TBT. [73] In this sense, the preambular language of GATS goes further and unequivocally recognized the Member's right to regulate.[74] A WTO Member will not be hindered from pursuing the policy objectives suitable for their domestic regulation on service industries. Is this an indication that the national autonomy of individual Member may be preserved in such a straightforward manner? In comparison to other “necessity” provisions listing a number of exceptions, Article VI:4 of GATS merely refers to “ensuring the quality of the service”[75] as an example of objectives that could justify a Member's domestic regulation. Would the Article VI:4 discipline include an exhaustive list of legitimate objectives as Article XX of GATT does? or an illustrative list like those contained in the TBT or SPS Agreement? Or else, the assessment on legitimate objectives should be removed from the necessity test process completely? The WTO tribunal's new idea coming up with in the resent TBT disputes sheds light on these questions about completing the Article VI:4 disciplines.
　　1） Determination of Objectives and Legitimacy of Objectives----the Right to Regulate
　　The literal meaning of “legitimate objective” is, as articulated by the Appellate Body in the context of Article 2.2 of TBT Agreement ,[76] an aim or target that is lawful, justifiable, or proper. The importance of indentifying with sufficient clarity the objective of a contested measure was highlighted by the Appellate Body on the basis that the relevant objective function as a benchmark for a number of factors involving in the determination of necessity under Article 2.2. [77] A panel's reasoning on the legitimate objectives, within the meaning of Article 2.2, could be divided into two tiers--the first question is what a Member seeks to achieve by means of a technical regulation; then the panel has to ascertain the legitimacy of such objectives.[78]
　　In regard to the identification of objectives, the panel's analysis varied depending on the specific point of disagreement between the complainant and respondent Members. For instance, the design and structure of a contested measure has, according to the panel in US-COOL, no particular bearing on the identification process of the measure's objective ;[79] while the panel in US-Tuna II （Mexico）， on the contrary, rely on the measure's architecture in analyzing the identification of the objective of that measure.[80] In the view of the Appellate Body, however, a panel should, despite the conflicting arguments, make an objective and independent assessment of the objective pursued by a Member, taking into account of all the evidence put forward by parties in this respect, including “the text of statutes, legislative history, and other evidence regarding the structure and operation” of the measure at issue .[81]
　　In spite of the difference among measures being challenged in each dispute, the panels were apt to attach a higher weight to the Member's right to regulate embodied in the preamble of TBT [82] In the fist dispute decided entirely based on the TBT Agreement ,[83] EC-Sardines, the panel recalled that, on the one hand, the TBT preamble had acknowledged the right of every WTO Member to establish for itself the objectives of its technical regulations ;[84] on the other hand, however, the legitimacy of the objective should be examined and determined by the panel .[85] The division of decision-making power reflected the potentially competing goals that Members pursued through the TBT Agreement, namely, trade liberalization and regulatory autonomy.[86] Subsequently, the panels in US-COOL, US-Tuna II （Mexico） and US-Clove Cigarette have all taken the same stance and confirmed, in the context of Article 2.2, that a Member enjoys the right to determine the objective pursued through a regulatory measure and, the identification of such objective must be based on the information provided by this Member; whereas the legitimacy of the objective must be determined by panels .[87]Although the panels have given deference to the responding Member in identifying what the objective it seeks to achieve, the Appellate Body found no reason to be bound by the Member's unilateral articulation of such an objective.[88] Moreover, the Appellate Body has expressed a negative view of the panels' making efforts, in identifying the objective, to further discern the level at which a responding Member aims to achieve the objective.[89]>
　　As for the assessment on the legitimacy of objectives, the panel in EC-Sardines[90] referred to the term “legitimate interests”， which has been defined in the prior case Canada-Pharmaceuticals Patents as “interests that are 'justifiable' in the sense that they are supported by relevant public policies or other social norms” .[91] In a similar vein, the panel in US-COOL attaches much importance to the social background against which the contested measure is implemented. According to the panel, social norms and public concerns of a Member must be accorded due weight in assessing the legitimacy of a particular objective pursued by this Member, and the practice in a considerable proportion of WTO Members, in addition, should be involved in the assessment .[92] The Appellate Body, though, considered the panel's statement regarding “social norms and public policies” as somewhat ambiguous and have no effect on its determination of legitimacy. Besides, the regulatory measure could not be justified merely on the basis of it being widely recognized in other WTO Members. [93] The Appellate Body confirmed the assessment of legitimacy must be undertaken by a panel for those objectives not listed in Article 2.2 explicitly. The guidance for such assessment may be found in the “text, design and application” of the measure itself as well as objectives encompassed in other provisions of the WTO agreements, rather than the social background of the Member who adopts the measure at stake.[94]
　　In sum, comparing with the panels' deference to Members' right to regulate in the two-tier analysis of legitimate objectives, the Appellate Body seldom referred to the regulatory autonomy, but rather focused on establishing an objective and independent assessment basing on the evidence in relation to the structure, texts and operation of the contested measure itself. It appears that they all intend to get rid of the criticism about ranking and value-judging of non-trade objectives pursued by Members, nonetheless in somewhat different ways.
　　Turning to the discipline under Article VI:4 of GATS, it seems that the Appellate Body's insistence, as set forth above, on examining the legitimacy of objectives under Article 2.2 of TBT makes it doubtful that the WTO tribunals will change their tune in the context of GATS. Therefore, if the future Article VI:4 disciplines incorporates a necessity test similar to the one encompassed in Article 2.2, the WTO judicial organs may retain their assessment of the legitimacy of policy objectives in spite of the Members' prerogative in determining the objectives they want to pursue[95] When the Article VI:4 discipline was discussed at the WPDR meeting, some Member expressed skepticism about whether the legitimacy of objectives should be determined by the panels. It was argued that, according to the GATS preamble, the “national policy objectives” as defined by Members were already legitimate and therefore, did not need further clarification ;[96] and some Members considered that the validity or rationale of the policy objectives must not be assessed .[97] Moreover, some developing countries questioned that the WTO tribunals should not second-guess Members' domestic regulatory trade-offs in services area, and the right to regulate should be further reinforced, rather than be suppressed, in the proposed Article VI:4 disciplines.[98] Actually, certain paragraphs of the Chair's March 2009 text （the latest draft of the Article VI:4 disciplines） have indicated these deep concerns about the WTO tribunals' intervene in regulatory autonomy of Members. For instance, paragraph 3 of the text has included strong language to safeguard the right to regulate, which restate the GATS preamble words and add extra words as “these disciplines should not be construed to prescribe or impose particular regulatory approaches or any particular regulatory provisions in domestic regulation”。[99] One proposal for revising paragraph 11 used the following words “Members shall ensure that such measures are not more trade-restrictive than necessary to fulfil specific national policy objectives…” [100] （emphasis added）。 It appears that this proposed paragraph adopts Article 2.2 of TBT as a template for establishing a necessity test, yet, deliberately replaced the “legitimate objectives” contained in Article 2.2 with “national policy objectives”， which recalled the right to regulate language in the GATS preamble. This is one indication, among others, of the Members' tendency to guard their regulatory autonomy against the decision-making power of WTO judicial organs, which essentially involved developing countries retaining the ability to carry out their own development policies.[101]>
　　2） Guide for Members or Guide for Panels----The List of Legitimate Objectives
　　As part of the necessity test, the function of a list of specific legitimate objectives is two fold: guidance for regulators to help prevent disguised restrictions on trade[102] and guidance for prospective WTO panelists in determining the legitimacy of objectives. More often than not, the latter one is more crucial for a Member, since presumptions of regulatory immunity would prima facie apply to the listed policy objectives.[103] Comparing with the exhaustive list embraced in Article XX of the GATT, Article 2.2 of the TBT Agreement provides an open-ended list of legitimate objectives .[104] Certain types of objectives are elaborated in Article 2.2 as examples of a “legitimate objective”， including national security requirements, the prevention of deceptive practices, and the protection of human, animal or plant life or health, of the environment; meanwhile, the term “inter alia” indicates that an objective falling outside the explicit list aforementioned may still be reckoned as a legitimate one basing on the panel's specific assessment. This implies that a wide range of objectives could potentially fall within the scope of “legitimate objectives” under Article 2.2. For instance, market transparency, consumer protection and fair competition, which were purported by EC as objectives of the measure at stake, have passed the “legitimacy” examination of WTO judicial organs in the EC-Sardine case .[105]
　　In respect of the necessity test embodied in Article VI:4 disciplines, Many Members making comments at the WPDR meeting favored the creation of a concise, illustrative list of legitimate objectives ,[106] like what stipulated in Article 2.2 of TBT. Yet, a consensus was still to be reached as to the exact scope of such a list. A number of Members had doubts about whether it was possible to put together a positive list, since Members might want to ensure that their “favorite” legitimate objectives were specifically incorporated in this list, and it would be difficult to reach an agreement within such a wide range of Members' preferences and specificities.[107] Although paragraph 2 of the Accountancy Disciplines[108] does enumerate four objectives that Members specifically agreed as being legitimate, “Legitimate objectives are, inter alia, the protection of consumers, the quality of the service, professional competence, and the integrity of the profession”。 It is still doubtful as to whether or not the proposed list could cover service sectors in practice as many as possible ,[109] and keep in line with the growing global regulatory needs .[110] The question, then, turn to all the other policy goals not fall within the specific list. What kind of objectives could be qualified as legitimate? The Appellate Body's statement in US-COOL, a recent dispute arising under the Article 2.2 of TBT Agreement, may provide some useful information in this regard.
　　The Appellate Body has set forth a number of considerations that may provide guidance for a panel's determination on the legitimacy of an unlisted objective, including the objectives expressly listed in Article 2.2 and, the objectives reflected in other provisions of covered agreements.[111] Thus, an objective that is linked or related to one of the objectives specifically listed in Article 2.2 is more likely to be regarded as a “legitimate objective”。 Yet, the fact that the objective bears no resemblances to “health, safety or environmental” objectives does not per se provide a sufficient basis to negate the legitimacy of such an objective .[112] In this sense, the Appellate Body has explicitly pointed out that the principle of ejusdem generis serves no useful function due to the difficulty in classifying the explicitly listed objectives which lacks the significant elements of commonality among themselves. [113] Concerning the objectives embodied in the preamble of TBT Agreement and provisions of other covered agreements, it is worth to note the different ways in which the panel and the Appellate Body examined the legitimacy of an unlisted objective. The objective of the labeling regulation being challenged in this case -- “provision of consumer information on origin” – did not fall among objectives explicitly listed in Article 2.2. Both of the panel and the Appellate Body has agreed this objective to be legitimate, though for different reasons. The panel sought guidance from the Accountancy Disciplines developed under Article VI:4 of the GATS, where the “protection of consumers” is listed as an legitimate objective ,[114] on the basis that providing accurate origin information may protect consumers from being misled. Whereas, the Appellate Body found support for its view in the objective “prevention of deceptive practices” embodied in both Article 2.2 and Article XX（d） of GATT1994, on account of the consumers being deceived by inaccurate labeling information. In addition, supports could also be found in Article IX of GATT1994, which expressly recognizes that the Members' requirement on certain imported products to carry marks of origin is a permissible regulatory means under WTO law, though this provision was not referred to by any participants in this dispute.[115]>
　　The Members has voiced considerable concerns about the exact scope of the list of legitimate objectives contained in the future discipline under Article VI:4 of GATS. It is notable that the industry sectors covered by GATS are much broader, and measures under Article VI:4 would thus serve a multitude of legitimate policy objectives. The example of such legitimate objective list embodied in other WTO Agreements （TBT and SPS） and that in the Accountancy Disciplines do not, according to some Members, could not justify that a similar list be an indispensable elements including in the Article VI:4 disciplines. Besides, the objectives encompassed in Article XIV should be clearly distinguished from those of Article VI:[116] Nonetheless, the Appellate Body's finding in TBT cases mentioned above have made it clear that, apart from the objectives being clearly referred to in certain WTO Agreements, we have so far little clue on what policy goals may be qualified by the WTO tribunals as “legitimate”。 It thus seems that the legitimacy of policy goals that are not expressly listed in any provisions under WTO law have to be examined by the panelist on a “case by case” basis. In this sense, an explicit list of policy objectives may be good for protecting the Member's regulatory autonomy from being examined by the WTO tribunals. In addition, it is suggested that the Appellate Body now gives greater weight to the nature and content of the objective itself in determining the legitimacy of an unlisted policy objective ,[117]a> while the distinction between “necessity” test contained in an obligation provision （like Article VI:4） and that in an exception （like Article XIV） makes little difference to such determination.
　　In the Chair's March 2009 text, there was a proposal relating to the discipline on technical standard which included almost all the objectives that Members had specially agreed on, “Such national policy objectives are, inter alia: the protection of human health or safety, animal or plant life or health; the protection of public morals and the maintenance of public order; national security requirements（GATS Art XIV）； the access to essential services; the quality of the service（GATS ArtVI:4）； professional competence; the integrity of the profession（Accountancy para2）； or the prevention of deceptive and fraudulent practices（GATS Art XIV）”。 In contrast, another proposal regarding paragraph 11 only referred to “ensure the quality of a service”。[118] Therefore, It appears to be a tough job to form an open-end legitimate list in a “necessity” provision, no matter in fact or in theory, which could strike a balance between an excessively specific list with more certainty in the legitimacy examination, on the one hand, and a list concise enough with more leeway to Members' domestic regulation on the other.[119]
　　2. Trade Restrictiveness or Burdensome – A Reiteration of Discrimination?
　　As mentioned above, the principle of Article 2.2 is a balance between trade promotion and domestic regulation on non-trade issues, which does not prohibit any trade- restrictive measures but merely those having unnecessary restraint on trade. In this sense, the determination of whether a regulatory measure is “necessary” will be based on a relational analysis of certain factors. Borrowing from the “weighing and balancing” test in the context of Article XX of GATT1994 and Article XIV of GATS, the Appellate Body found three factors involving in the assessment of “necessity” under Article 2.2 – the trade restrictiveness of such measure, the degree of contribution that it makes to achieve legitimate objectives, and the risks non-fulfillment would create[120]> Here below is the analysis of each factor:
　　According to the panel in US - Clove Cigarette, it is the measure itself that should be examined in the necessity test under Article 2.2. In contrast, the panel in US – Tuna II （Mexico） noted that the text of Article 2.2 differs from that of Article XX of GATT1994, the former one focused on the necessity of “trade-restrictiveness” of the challenged measure, while the latter one examined the necessity of the challenged measure itself. The Appellate Body gave backing to the panel in US – Tuna II （Mexico） and clarified that, what has to be assessed for “necessity” in the context of Article 2.2 is the trade-restrictiveness of the measure at issue[121] In this respect, the trade restrictiveness should be ascertained by the panelist in the first place, since a technical regulation with no restriction on international trade may not violate the obligation contained in Article 2.2 by being “more trade-restrictive than necessary”。[122]>
　　Among all the three Members involved in US-COOL, there was a consensus that the trade-restrictiveness of the contested measure should first be demonstrated in order to determine whether the measure was consistent with Article 2.2 of the TBT Agreement. However, Members had divergent points of view on the interpretation of “trade-restrictive” in this context. The complaining Members impugned the COOL measure on the basis of its adverse impact on competition opportunities for imported products; whereas the responding Member placed an emphasis on the growing trade flow, and argue that the complaints were not restricted access to the US market[123] Initially, the Appellate Body resorted to the dictionary and found that the ordinary meaning of “restriction” was “any limitation on action, or a limiting condition”。 As used in Article 2.2, the meaning of the term “trade restrictive” turned to be “having a limiting effect on trade”。[124] It seemed that there is no specific threshold for a measure to be considered as “trade restrictive”， yet the scope of this term may be broad. The previous WTO jurisprudence has specified that the “competitive opportunities” available to imported products weighed more heavily than the “actual trade effect” in defining trade-restrictiveness in the context of the GATT1994.[125] Such an interpretation was affirmed by the panel in US-COOL, and the competitive opportunities available to imported products became the primary concern in the determination of a measure's trade restrictiveness under Article 2.2.[126] In this sense, the panel found the COOL measure to be trade restrictive on the ground of the panel's previous conclusion under Article 2.1, that is, the higher segregation cost assumed by the imports according to this measure would negatively affect the competition position between imported and domestic products.[127]>
　　There remains a lot of uncertainty over how the “competition” benchmark applies to the evaluation of trade-restrictiveness under Article 2.2. It may not be a hard problem to solve where the measure at issue has an obvious negative effect on international trade, such as the import ban being challenged in US-Clove Cigarette; or has been determined to be discriminatory against imported goods in previous finding, such as what happened in US-COOL. In contrast, the trade-restrictiveness of the impugned measure became a tough issue facing the panelist in US-Tuna II （Mexico）， where the panel's findings under those two provisions appeared to contradict each other. The complaining and responding Members both agreed that a measure that “imposed limits on imports or discriminated against them” would be defined as a trade restrictive mea, sure[128] Basing on such a consensus, the panel first recalled its earlier finding under Article 2.1 that the dolphin-safe labeling measure did not inherently discriminate on the basis of the products' origin, and also did not prohibit the use of dolphin-safe label for imported products. It seemed that the challenged measure did not, in a formal way, set limits on imported tuna products bearing no dolphin-safe label, and would not be defined as “trade restrictive”。[129] Yet, the panel noted that the consumers' preference on tuna products bearing the dolphin-safe label has given a valuable “advantage” on the domestic market of the responding Member, whilst the tuna products without a dolphin-safe label will be at a less competitive position on the relevant market. The panel then compared the challenged measure with the proposed alternative and found the latter one could provide such competitive “advantage” to a wider range of tuna products, including imported ones. It was in this way that the panel evaded the direct evaluation of the trade-restrictiveness of the challenged measure in the context of Article 2.2, but instead put the measure into question by finding a “less trade restrictive” alternative measure which might bring “greater competitive opportunities” to imported goods.[130]>
　　The question now remains whether a measure's non-conformity with Article 2.1 has any bearing on the assessment of trade-restrictiveness under Article 2.2, due to the competitive opportunities being used as a benchmark in the determination of both discrimination and trade-restrictiveness. The panel in US-COOL declined to express a general view on this issue, though its analysis of the trade-restrictiveness of the challenged measure was based on the prior finding of discrimination in the context of Article 2.[131] The panel's conclusion concerning trade restrictiveness was not appealed in US-Tuna II （Mexico）； however, the appellant Member in US-COOL did argue that, “because the panel relied upon its finding relating to competitive opportunity under Article 2.1 to determine the COOL measure's trade-restrictiveness for purposes of Article 2.2, the latter finding must be reversed once that Article 2.1 finding has been reversed”。 The Appellate Body finally confirmed the panel's analysis with regard to the measure's inconsistence with Article 2.1, and therefore refused to draw a clear conclusion in this regard.[132]a> So far, the WTO tribunals have seemingly accepted the competition opportunity as a key criterion in determining the trade-restrictiveness of the contested measure. Nevertheless, they showed little inclination at present to demarcate the exact scope of the term “trade-restrictive” within the meaning of Article 2.2, or to find a direct correlation between those two provisions.
　　As for Article VI:4 of the GATS, it is noteworthy that neither Article VI:4 nor other part of GATS text has ever referred to the words “trade restrictive”。 Article VI:4 （b） merely requires the domestic measures “not more burdensome than necessary…（emphasis added）”， though the chapeau of Article VI:4 do require the relevant measures “do not constitute unnecessary barriers to trade in service”， a similar language as Article 2.2 of TBT Agreement. By contrast, the Accountancy Discipline not only contains the requirement “not more trade restrictive than necessary” in a general provision, but requires Members not to employ licensing procedures “more burdensome than necessary”。[133] In this connection, the question becomes whether the notion of “trade restrictive” and “burdensome” carries the same meaning in the context of Article VI:4. The Secretariat has replied that, according to a discussion in WPDR, “there was a difference, and that a measure could be more burdensome than necessary, but not to the point of being trade restrictive and vice-versa”。[134] This seems to suggest that the concept of burdensome is wider than the concept of trade-restrictive, and the potential Article VI:4 discipline based on the assessment of burdensome may have a greater impact on Members' national regulatory autonomy. Such an interpretative approach raises further concerns and the most critical one is whether a measure that is more burdensome than necessary but not to the point of being trade-restrictive violates its obligations deriving from GATS? Put differently, whether a measure with little restrictive effect on trade in service could be clarified as unnecessary burdensome and thus be outlawed?[135]
　　To this end, several proposals have been put forward to clarify the relation between burdensome and trade-restrictiveness. For instance, Korea has hold the view that choosing between different terms “not more trade-restrictive” and “not more burdensome” does not change the fundamental principles of the necessity test; these two terms merely focus on different aspect of trade, the former on trade in goods while the latter on the licensing procedure[136] In a similar vein, another related interpretation of these two words suggests that burdensome only relates to procedural obligations, while trade restrictiveness refers to substantive ones.[137] On the other hand, the European Communities has regarded the two words “burdensome” and “trade-restrictive” as meaning essentially the same for the purpose of defining the necessity test, and are preferred over the concept of “least trade restrictive” which may empower the WTO adjudicating bodies to intervene deeply into the national regulation of Members.[138]>
　　By contrast, some commentary preferred the term “not more trade restrictive than necessary” be used in the potential discipline under Article VI:4. In their view, the concept of burdensome is overbroad and does not require any threshold showing of harm or discrimination, which may unduly restrict the choice of regulatory tools available to the Members[139] By recalling the aim of Article VI:4 disciplines as “not constitute unnecessary barriers to trade”， it is then suggested that trade-restrictiveness more appropriate than burdensome to be an element involved in the potential necessity test under Article VI:4. Put differently, solely arguing that a measure is inefficient or burdensome would not suffice for questioning it under the Article VI:4 discipline, rather, this measure must in some way create a barrier to trade in service.[140] Some further suggest that Article VI:4 could not cover only non-discriminatory measures. A complaining Member should demonstrate the “discrimination” of the measure at issue, in effect or purpose, before the potential disciplines of Article VI:4 could be triggered.[141]>
　　As mentioned above, the panels in recent TBT disputes assessed the “trade-restrictiveness” of a technical regulation on the basis of the competitive opportunities that imported goods may acquire under this regulation. In other words, a complaining Member has to meet a “threshold requirement” in order to impugn a domestic regulatory measure to be inconsistent with Article 2.2, that is, the measure has a detrimental impact on the imports' competitive position against the domestic products. On the other side, it is recalled that the competitive opportunities available to the imports is also the benchmark for determining the “discrimination” in the WTO jurisprudence. Although the Appellate Body keeps it inconclusive as to the relation between trade-restrictiveness and discrimination under the TBT Agreement, it appears that the WTO adjudicating organs are not ready to go a step further than anti-discrimination, one of the fundamental goals of GATT disciplines.
　　Obviously, it would be advisable to clearly define the criteria, trade-restrictiveness or burdensome, applicable to “unnecessary barrier to trade in service” in the future Article VI:4 disciplines. The key problem here is that how determined are the Members to expand disciplines over domestic regulation beyond “anti-discrimination”， which has long been one of the cornerstones of the WTO law. The three TBT disputes referred above have showed the WTO adjudicating bodies' unwillingness to go further to deal with non-discriminatory domestic regulations. Although the assessment of discrimination and trade-restrictive was based on the same criteria relating to the competitive position of imports, all the three domestic regulations being challenged have been found inconsistent with the TBT Agreement on the ground of discrimination; while the Appellate Body, as some commentary argued, has shield away from finding the regulations “more trade restrictive than necessary” under Article 2.[142]a> In this connection, it is suspicious that the future discipline on domestic regulations developed under Article VI:4 will cover the regulations unduly burdensome yet with little detrimental impact on trade in service.
　　3. Whether the Measure at Issue Fulfils the Legitimate Objective – Degree of Contribution
　　We turn next to the meaning of the word “fulfill” in the context of various “necessity” provisions encompassed in WTO Agreements. The Appellate Body has developed, under Article XX of GATT1994, its own interpretation of whether a regulatory measure fulfills a particular objective. In Korea–Beef, the Appellate Body clarified that the term “necessary” refers to a range of degrees of necessity which located, in the continuum between the pole of “indispensable” and the other side of “make a contribution to”， significantly closer to the former one[143] Whilst in Brazil–Tyres, the Appellate Body delineated “contribution” as “a genuine relationship of ends and means between the objective pursued and the measure at issue” ,[144] and the more closely the relationship, the more likely that the measure is the least-trade-restrictive one .[145] Furthermore, the Appellate Body specified that, for a measure severely impeded international trade （like the import ban in this case）， it would be difficult to find such a measure necessary unless this measure is apt to make a material contribution to achieve its objective.[146]>
　　Within the meaning of Article 2.2 of the TBT Agreement, the panel in US-Clove Cigarette relied much on the interpretative approach abovementioned in determining the fulfillment of an import ban being challenged in this dispute. To this end, the panel focused on analyzing data and scientific evidences presented by the parties, so as to decide whether the import ban at issue is apt to make a material contribution to reduce smoking by youth, and more specifically in this case, whether a significant number of youth smoke clove cigarettes and whether the ban at issue do much to deter youth from smoking[147] In a similar vein, the panel in US-COOL, where a labelling scheme relating to meat products （COOL） was challenged, found that the origin information conveyed by Labels B and C was inaccurate and confusing, and the possibility of interchangeably using these two labels for all categories of meat based on commingling would likely be quite confusing for the consumers. While on the other side, the panel also agreed with the responding Member that the COOL measure has provided more information on meat products' origin to consumers than previous labelling system, and the origin information conveyed in Label A caused little confusion to consumers. Finally, the panel recalled that the objective of the impugned labelling measure was provision of clear and accurate origin information to consumers, and then decided that the COOL measure has fulfilled merely a limited aspect of the objective and thus could not be reckoned as making contributions in a meaningful way.[148] In US-Tuna II （Mexico）， where the dolphin-safe label scheme on tuna products was questioned, the panel has taken a similar stance on the interpretation of “fulfil”。 It is found that the dolphin-safe labelling provisions at issue do not, among other things, address the dolphin mortality arising from fishing methods other than setting on dolphins outside the ETP [149] area. Thus, where the tuna products labelled dolphin-safe were harvested outside the ETP, consumers may be misled on whether dolphins were adversely affected during the fishing process .[150] It is mainly on this basis that the panel found the contested labelling measure only “partially contributed” to achieve the objectives of both consumer protection and fair competition, despite of the contributions the measure has made in all the other respects to fulfil such objectives.[151]>
　　In contrast, the Appellate Body's analysis of “fulfill” in US-Tuna II （Mexico） and US-COOL differs from the one conducted by the panels abovementioned, as it focused not on “material contribution” or “contribution in a meaningful way”， but on the extent to which the impugned measure contributes to the achievement of its objective. At the outset, “fulfill” is defined according to dictionaries as “provide fully with what is wished for”， which means, on its face, the complete achievement of something. Yet, the Appellate Body suggested that the phrase “fulfill a legitimate objective” should be read as a whole under Article 2.2, and the inherent meaning of this phrase turned to be “achieve a goal to a certain degree”。[152] In this sense, a panel's determination of whether a measure fulfills a legitimate objective will then centre around an inquiry on the degree of contribution that the measure makes to the achievement of the objectives.[153] The level of achievement of a measure, though, is not an abstract concept but rather a comprehensive assessment of certain features of the measure itself, including the design, structure and operation of the measure, as well as evidence concerning its application. Learning from the jurisprudence of Article XX of GATT1994 ,[154] the Appellate Body emphasized, in addition, a panel must assess the contribution a measure actually made to the achievement of the legitimate objective so to ascertain the level of contribution of the measure involved in the necessity test under Article 2.2.[155]
　　According to the interpretative approach established above, the Appellate Body reversed the panels' decision in respect of “partially fulfill” or “not fulfill in a meaningful way”。 Actually, the situation in both US-Tuna II （Mexico） and US-COOL was somewhat the same: the challenged measure did fulfill the objective to a greater or lesser degree, between not fulfill or not capable of fulfilling the objective on the one side, and the completely achievement of the objective on the other. The panels focused on the field where the impugned measure made little contribution, on the contrary, the Appellate Body attach a higher weight to what the measure really did for the achievement of the objectives. Take US-COOL as an instance, the COOL measure has established three categories of labels in order to convey information relating to the origin of meat products, which could in turn protect consumers from being misled or deceived. The panel confined itself to the confusing information of origin conveyed by Labels B and C; with the consideration that all the labels had to provide accurate and clear information as much as possible, the panel found the COOL measure was not “completely” fulfill its objective. In contrast, the Appellate Body highlighted the contribution made by Label A to fulfill the objective of provision consumers with information of origin, and affirmed that the COOL measure did make contribution to the achievement of its objective. It is clear then that the Appellate Body denied any notion to establish some minimum threshold of fulfillment in the context of Article 2.2 [156]>
　　4. Alternative Measures and the Risks Non-fulfillment Would Create
　　The WTO judicial bodies have gained a lot of experience on “alternative measures”， which plays a pivotal role in the determination of “necessity”， within the domain of trade in goods. WPDR may inevitably seek assistance from such jurisprudence to establish rules on the assessment of “alternative measures” with respect to trade in services[157] In fact, Brazil, Canada and the United States circulated a communication at a recent WPDR meeting and expressed their opposition to introduce a necessity test in the proposed Article VI:4 disciplines. One of the reasons they presented was that, it has been so easy for the complaining Member to put forward an alternative measure less trade-restrictive than the measure at dispute. A complaining Member may challenge a policy or regulation of the responding Member in such a simple manner, even the contested measure has no effect on the international trade.[158] Besides, some developing countries have expressed their concerns in similar vein. It is worried that the assessment of less-trade-restrictive alternatives may set forth regulatory parameters basing on regulatory tools widely used by other Members, regardless of the special circumstance at each country.[159]>
　　As clarified by the Appellate Body in the previous disputes arising under Article XX of GATT1994 and Article XIV of GATS, if a responding party has made a prima facie case that its challenged measure is “necessary”， basing on the weighing and balancing of relevant factors in a given case, then such a result must be confirmed by comparing the measure with possible alternatives, which could make equivalent contribution to achieve the same objective in a less trade-restrictive way[160] For a measure to be qualified as a genuine alternative, it has to meet two requirements at the same time: imposing less restraint on trade than the challenged measure, whilst achieving the level of protection chosen by the responding Member.[161] Besides, the proposed alternative must not merely theoretical in nature, but rather reasonably available for the responding Member to take. Where the responding Member demonstrates that the alternatives proposed by the complainant is not a genuine one or is not reasonably available, taking into account the interests or values being pursued and the desired level of protection pursued by the responding Member, then it follows that the measure at issue in “necessary”。[162]>
　　The requirement on alternative measures under Article 5.6 of SPS Agreement is somewhat different. Footnote 3 to Article 5.6 clarifies that “a measure is not more trade-restrictive than required unless there is another measure, reasonably available taking into account technical and economic feasibility, that achieves the appropriate level of sanitary or phytosanitary protection and is significantly less restrictive to trade”。 As mentioned above, the panelist found more support for their interpretation of Article 2.2 from WTO jurisprudent relating to Article XX of GATT1994, and negate the requirements of “significant less trade restrictive” under Article 5.6 of SPS Agreement. In this sense, the Appellate Body has finally elaborated, in its own way, what is the role of less trade restrictive alternatives in the determination of necessity in the context of Article 2.2.
　　At the outset, the Appellate Body in US-Tuna II （Mexico） drew an analogy with the interpretation of “necessity” under Article XX of GATT1994 and found that, the words “more … than” in the second sentence of Article 2.2 suggested that the obligation embodied in this provision might be established on the basis of a comparative analysis of certain elements, including the trade restrictiveness and the degree of contribution to the achievement of a particular objective, between the challenged measure and reasonably available alternative measures which causes less restraints on trade, taking into account of the risks non-fulfillment would create. From this perspective, the comparison mentioned above functioned as a conceptual tool in the determination of whether a challenged measure is “more trade restrictive than necessary”。[163]
　　However, the element involved in the comparison under Article 2.2 is a bit different from that under Article XX. As regard to the later one, the comparison should be undertaken in the light of the importance of the interests or value at issue[164] In doing so, the WTO judicial bodies have to scrutinize the value embodied in the challenged measure, which is at the heart of the legislators' decision-making process, and thus are likely blamed as second-guessing the domestic regulation.[165] In contrast, the Appellate Body highlighted a “further element” of weighing and balancing in the analysis of “necessity” under Article 2.2 – “the risks non-fulfillment of the objective would create”。 It is implied that the comparison of the impugned measure with possible alternative measures should be made in the light of “the nature of the risks at issue” and “the gravity of the consequences that would arise from non-fulfillment of the legitimate objective”。[166] This further element is given a higher weight in the assessment of alternative measures under Article 2.2. For instance, It is obviously not difficult to find an alternative means less trade-restrictive than an import ban, the domestic measure being questioned here in US-Clove Cigarette. The complaining Member has listed dozens of alternative measures, yet each of these measures appears to involve a greater risk of non-fulfillment of the objectives comparing against the import ban implemented by the respondent, thus none of the measures could be reckoned as a legitimate alternative.[167] Moreover, the emphasis on risks non-fulfillment may create implies that the WTO tribunals will pay more attention to the contribution made by possible alternative measures to achieve the legitimate objective. Actually, in US – Tuna II （Mexico）， the Appellate Body reversed the panel's finding with respect to the alternative measure due to its incapability to make an equivalent contribution to the objective as the challenged measure in all ocean areas.[168]> It therefore seems not to be an easy job to find out the alternative measures satisfying all the requirements embodied in Article 2.2 of TBT Agreement.
　　Conclusion
　　As a new agreement created during the Uruguay Round, the TBT Agreement is notable for its going beyond the traditional GATT principle of eliminating discrimination in national trade policy,[169] and the “necessity” requirement embodied in Article 2.2 is one of the most controversial “post-discriminatory”[170] obligations introduced into the WTO disciplines on international trade in goods. Comparing with the “rule-exception” framework of GATT （national treatment requirement in Article III as the rule; listed legitimate objectives in Article XX as the exception）， the TBT Agreement has no general exceptions as that embodied in Article XX of GATT, but two separate rules: the non-discrimination requirement under Article 2.1 and “not more trade-restrictive than necessary” as another obligation under Article 2.2. In other words, a domestic technical regulation, which is not discriminatory in manner or in effect within the meaning of Article 2.1, may still be found to run afoul of Article 2.2 by unnecessarily restricting international trade.[171] It looks like the TBT Agreement is stricter than the GATT with regard to the discipline on domestic regulation.
　　As stated above, the Appellate Body was quite lenient to the responding Members in the legal analysis under Article 2.2, comparing with its prior adjudications relating to Article XX of the GATT1994. Although the legitimacy of a domestic measure's objective was still subject to the panels' evaluation, it is clear that the process of such evaluation became less subjective. The legitimacy of unlisted policy goals would be determined on the basis of “design, structure and operation” of the measure itself rather than the regulatory practice in other Member countries. There was no specific threshold of how much contribution should be made by a measure to achieve its own objectives. To assess a measure's contribution to fulfill its objective, the question is merely about the degree of contribution. Put differently, what the measure has done for fulfilling the legitimate objective is now more important than what it could not do. As to the comparison with less trade restrictive alternatives, the Appellate Body has highlighted the risks arising from non-fulfillment of the objective, which replaced “the importance of the value or interest at stake” being widely criticized under the Article XX jurisprudence. In sum, the necessity test developed under Article 2.2 attaches a higher weight to the analysis of the measure itself, including its literature structure and the manner it operate, rather than value-ranking of the policy objectives pursued by the Members via such measure. It appears that the Appellate Body has shown more deference to the national regulatory autonomy concerning the necessity of domestic technical measures. That being so, the panel in future TBT disputes will be able to assess the “necessity” of the regulatory measure in a way that leave more leeway to domestic regulators[172] It is not unreasonable to extrapolate, from the more deferential necessity test developed under the TBT Agreement, that a necessity test with similar legal framework could be established under Article VI:4 of the GATS, which may draw a balance between trade liberalization and national regulatory autonomy in an approach much better than that under the GATT1994. Despite the similarities between the GATS and the TBT Agreement, there is a significant difference in that services are intangible. Put differently, there is no “product” in services which could be easily assessed according to certain scientific standards, thus reaching an agreement among Members on what is the appropriate approach for determining “necessity” of a service measure could be fraught with difficulties.[173]>
　　The other crucial finding in these TBT cases lies in the non-discrimination obligation embodied in Article 2.1. Different from its counterpart in the GATT1994 discipline, the determination of discrimination under Article 2.1 goes further than assessing the “competitive opportunities”， and involves the “legitimate regulatory distinction” into consideration. It is argued by some commentary that the Appellate Body has incorporated into the analysis of Article 2.1 certain elements being assessed under Article XX of the GATT1994, thus the reconciling between free trade and regulatory protection may be fulfilled under Article 2.1 alone; while little points are left to Article 2.[174] Being construed in such a broad way, the concept of discrimination will be expanded and cover a large part of measures that negatively affect the international trade. In this regard, it is suggested the non-discrimination obligation is only a small step away from the requirement “not more trade restrictive than necessary”。[175]a> Finally, the Appellate Body has faulted all the measures being challenged in those TBT cases on the basis of non-discrimination, rather than the “unnecessary” requirement, showing its unwillingness to step forward to enforcing post-discriminatory obligations.
　　As for Article VI of the GATS, it has been considered as one important dimension of a three-pronged approach to ensure effective access to service markets; and the other two dimensions are Article XVI on market access and Article XVII on national treatment[176] Thus, the measures being addressed under Article VI are “non-discriminatory”。 In practice, even if a domestic measure affords facially identical treatment to both foreign service-suppliers and domestic ones, it may still be trade restrictive despite of its well-accepted policy objectives. Moreover, unlike trade in goods, which define market access mainly in terms of tariffs and other border measures, market access in services is essentially defined by granting non-discriminatory treatment.[177]> For instance, a lengthy and complicated licensing process may add more burdens on the foreign service-suppliers who want to enter into the market, though the licensing process applied to both domestic and foreign new-comers. Learning from the Appellate Body's finding in the TBT cases, it is questionable the Article VI:4 discipline, whether or not in the form of necessity test, will have much effect on the “non-discriminatory” domestic regulations, given that the WTO judicial organs may feel at ease to crack down a measure negatively affect trade on the ground of discrimination.
　　In summary, Since services regulations involve a wide variety of activities concerning public interest and welfare, cultural norms and many other politically sensitive issues, it is conceptually more difficult, comparing with trade in goods, to strike a balance between permitting a Member to pursue public policies at a level it desired and discouraging the Member's choice of measures that unduly impede trade. Learning from the Appellate Body's finding in recent TBT cases, it seems possible to establish a necessity test diminishing unjustified domestic regulations without curtailing national regulatory autonomy. However, the necessity test is not the only question that challenged the discipline-making process with regard to domestic regulation on trade in service. It appears that the adjudicating bodies are unwilling to go beyond anti-discriminatory rules established under the GATT framework, leaving little room for “post-discriminatory” disciplines[178] basing on the necessity test. Despite more than a decade of negotiations, much remains to be done to enhance cooperation among national regulators in respect of the links between regulatory issues and trade principles. Trade liberalization should not be improved at the cost of less domestic regulation, but by make domestic regulation better, achieving public policy goals in effective manner while creating least restriction on trade.
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