WTO争端解决过程中的私方参与问题

主权国家及政府间国际组织之外的私人或组织对WTO争端解决的参与,不仅对WTO实体规则的解释与适用产生影响,也对WTO争端解决机制提出了若干改革要求.时代要求WTO争端解决机制进一步走向公开透明,也要求WTO在关注贸易利益的同时关注其他国际市民社会的利益.争端解决中接纳私方参与虽然有利于WTO运做的民主化,但WTO成员也需要慎重思考私方参与的形式、相应的WTO争端解决程序改革以及如何最大限度防范私方参与的消极影响等问题.     

国家主权让渡在WTO争端解决机制中的发展--兼评外经贸部、最高人民法院关于贸易壁垒、反补贴、反倾销的三个规定

全球化使国家对经济活动的干预在减弱,不得不在一些领域限制或让渡其主权。在WTO争端解决机制中,成员方自愿放弃司法豁免权使WTO争端解决机构可对其行使管辖权,这恰是主权让渡的体现。随着全球化的进一步发展,有必要在WTO争端解决机制中引进私人诉权及使国家主权在WTO争端解决机构裁决执行机制方面进一步让渡,以保证WTO争端解决机制下的贸易争端得到更公正合理的解决,使可能引进的私人诉权得到有效体现。     

WTO争端解决机制下私人诉权的探讨

WTO的主体是国家及单独关税区 ,私人不可能在其争端解决机制中行使诉权 ,将其与主权国家间的争端交予DSB处理。但鉴于私人作为国际贸易主体的地位愈来愈突出 ,为保护其在国际贸易中的合法权益 ,并有助于国际贸易争端解决的非政治化 ,允许私人参与WTO争端解决机制有一定的现实意义。由于目前处理国家与私人间争端的国内法以及国际法都不能适用于WTO ,且WTO的成员方普遍没有相关的国内法 ,为使各国公民私人行使此类诉权的标准相一致 ,有必要由WTO作出统一规定。     

WTO争端解决机制中的救济体系框架及改革问题实证研究

本文聚焦于WTO争端解决机制中的救济体系,从实证角度出发,通过对以往案件及DSB报告的深入考察,梳理出WTO争端解决机制中的救济体系法律框架。在研究WTO成员参与该体系的态度和行为的基础上,深入分析了WTO该如何利用该体系有效促使DSB裁决的履行。针对近年来WTO争端解决机制中的救济体系暴露出的不足与成员方争议的焦点问题,对该体系的未来改革趋势提出了思路和建议。     

论WTO争端解决机制的性质

世界贸易组织争端解决机制是为解决WTO成员间为执行WTO涵盖协定所产生的争端而建立的。它是世界贸易体制的支柱。由于WTO争端解决机制赖以确立的法律文件未对该机制的性质作出界定,加上该法律文件本身的独特用语和程序极易使人们产生不同的理解。目前法学界对WTO争端解决机制的性质众说纷纭。本文从机制赖以建立的背景和机制的构成来分析得出WTO争端解决机制是个兼具司法性与政治性,以政治性为主导,复杂、独特的新型争端解决机制。     

中国-东盟自由贸易区投资争端解决机制构建浅析

中国-东盟自由贸易区投资争端解决机制的构建是中国-东盟各国经济的合作与发展的客观要求.争端解决机制不仅包括成员国政府之间、成员国政府与另一成员国私人之间的投资争端解决机制,还应当包括成员国私人与另一成员国私人之间的投资争端解决机制,应当建立统一的司法协助体系.     

中国-东盟自由贸易区投资争端解决机制构建浅析

中国-东盟自由贸易区投资争端解决机制的构建是中国-东盟各国经济的合作与发展的客观要求。争端解决机制不仅包括成员国政府之间、成员国政府与另一成员国私人之间的投资争端解决机制，还应当包括成员国私人与另一成员国私人之间的投资争端解决机制，应当建立统一的司法协助体系。     

WTO争端解决机制述评

一、WTO争端解决机制概述 WTO争端解决机制是世贸组织在总结关贸总协定40多年的实践经验基础上,创设的一套新颖而又复杂的争端解决机制,其是在GATT争端解决机制的基础上形成的。由于GATT争端解决机制的先天不足,其缺陷在实践中逐渐暴露。如在内容上缺乏统一性,在程序上存在许多不足等等,而且这些缺陷损害了各成员对GATT争端解决机制的信心和信任,也严重削弱了其自身的权威地位。因此,改进并加强GATT争端解决机制的呼声越来越高。经过WTO乌拉圭回合反复协商,     

论判例在WTO争端解决中的适用

根据WTO《关于争端解决规则与程序的谅解》建立起来的争端解决机制是WTO最具特色的制度,被誉为WTO皇冠上的明珠。WTO争端解决机制在世界贸易组织的稳定运行中发挥了不可替代的作用,为迅速有效地解决成员间的贸易争端,建立稳定、透明、可预见的国际市场秩序作出了突出贡献。WTO成立以来,WTO争端解决     

浅议WTO专家组程序的不足

作为WTO争端解决机制的组成部分之一,专家组程序在WTO的争端解决机制中占有举足轻重的地位,在国际贸易争端解决的实践中也发挥着不可替代作用。同时,专家组程序对WTO的法律解释、推理和应用,对国际法的发展以及后续争端解决产生了深远的影响。本文将解析WTO专家组程序的部分法律条文,结合专家组工作的实绩,就WTO专家组的公正性,法律解释等问题进行探讨。在此基础上,就成员各方对此应采取的对策提出一些看法和建议。     

Who Benefits from the Party Organization? Evidence from Republican House Members' Attendance at Caucus Meetings

As the role of US congressional parties in the legislative process has increased, so has the importance of understanding the institutions within these organizations. In this article, we examine the weekly caucus meetings held by Republican House leaders with their rank‐and‐file. We consider how members’ characteristics relate to their decision to attend based on the collective and private benefits that caucus participation affords. Using interviews of members and staffers as well as members’ attendance records at these meetings from 2007 to 2013, we find, among other things, that members who vote less with their party or who have more seniority are less likely to attend while those in leadership positions or who are electorally vulnerable are more likely to do so. Together, these findings provide additional insights on the relationship between party leaders and their members and which members benefit from this central party‐building activity.     

国际经济法的缘起及其效力——以市民社会与法的内在逻辑为视角

国际经济法乃是随着国际市民社会的产生而逐步产生的,在古代社会和近代国际强权政治体制下都不可能产生真正意义上的国际经济法.国际经济法得以发轫的内在根源在于国际市民社会成员在通过相互经济合作与交流过程中为自身私人利益的实现而产生的普遍规则需要,以及由此所产生的维护国际贸易与利益共同体存在的一般利益诉求.国际经济法作为从事国际经济贸易的市场主体在长期的外贸合作中所形成的交易惯例和贸易规则,作为这些成员通过多边谈判所达成的彼此共守的行为准则,它所调整的乃是国家间及国际贸易主体之间的具有私法意义的经济利益关系.WTO及其争端解决机制的建立,则为维护国际经济秩序和解决国际贸易纠纷提供了强有力的法律保障机制.     

Cybercrime is whose responsibility? A case study of an online behaviour system in crime

Drawing on Sutherland’s theory of behaviour systems in crime, this study investigates social media fraud (SMF) facilitated by botnets to understand the onset and maturation of this new online offending behaviour. We find legitimate actors in the system – Internet of Things manufacturers, online social networks, hosting companies and law enforcement agencies – share a way of life that prioritises private gains and avoids implicit responsibility for security. They arrive at a Nash equilibrium that provides a weak and disorganised social response to crime. SMF providers, on the other hand, are cleverly organised and exploit weaknesses in security, adapting to change and developing working relationship with those who benefit from their activities and share their lenient behaviour towards fraudulent activities. We conclude that the rise in cybercrime is a result of the behaviours of all actors in the system, not just those who offend.     

The delisting decision: The case of buyout offer with squeeze-out (BOSO)

In this paper, we exploit the specificity of going-private transactions that are initiated by the historic controlling shareholders (i.e. voluntary delistings). In Continental Europe, the majority of firms that become private do so following a buyout offer with squeeze-out (BOSO); using this mechanism, the controlling shareholder can cash out minorities and take the firm private. We argue that the decision to go private results from a cost–benefit analysis. Moreover, we pay particular attention to the consequences and the related costs of compliance resulting from the passage of the French Financial Security Law (FSL) in 2003. A quantitative study was performed using a unique dataset spanning 1997–2006. This data set consists of 140 French firms, of which 70 were voluntarily delisted via BOSO and 70 were industry-matched control firms. Univariate analysis and logistic regressions support the cost–benefit analysis: when listing benefits decrease because of weak liquidity and/or weak analyst coverage, it seems better for the firm to go private. Furthermore, the inherent characteristics of delisted firms (i.e. performance, leverage, and risk as measured by the beta factor) appear to be important driving factors of delisting. The passage of the FSL has strengthened the impact of these characteristics on the decision to go private. Mature firms that have weak performance and low specific risk and that are not financially constrained by debt will decide to go private because they cannot afford the listing status anymore. Finally, we show that the driving factors of delisting differ according to the identity of the controlling shareholder; specifically, the level of risk appears to be the strongest determinant for family firms, while non-family firms also consider their own financial structure.     

A European Legal Method? On European Private Law and Scientific Method

This article examines the relationship between European private law and scientific method. It argues that a European legal method is a good idea. Not primarily because it will make European private law scholarship look more scientific, but because a debate on the method of a normative science necessarily has to be a debate on its normative assumptions. In other words, a debate on a European legal method will have much in common with the much desired debate on social justice in European law. Moreover, it submits that, at least after the adoption of the Common Frame of Reference by the European institutions, European contract law can be regarded as a developing multi-level system that can be studied from the inside. Finally, it concludes that the Europeanisation of private law is gradually blurring the dividing line between the internal and external perspectives, with their respective appropriate methods, in two mutually reinforcing ways. First, in the developing multi-level system it is unclear where the external borders of the system lie, in particular the borders between Community law and national law. Second, because of the less formal legal culture the (formerly) external perspectives, such as the economic perspective, have easier access and play an increasing role as policy considerations.     

Balancing International Police Cooperation: INTERPOL and the Undesirable Trade-off Between Rights of Individuals and Global Security

With 194 members, INTERPOL is the most influential actor in matters of transnational policing. Regrettably, the organisation is vulnerable against cases of misuse. Certain states manage to exploit the tools of the organisation, to persecute and track political dissidents or non-aligned members of the media outside their borders. As such, INTERPOL has become a prime example on how non-democratic countries can exert their influence and expand their reach well beyond their domestic jurisdictions via their participation in international organisations. Not wanting to allow the proliferation of criminal havens in certain regions, the organisation has opted to connect with and bring together as many police forces of different states as possible. Evidently, such connections are created with little or no consideration of the state of criminal justice systems and forms of government of the countries involved, as well as any subsequent risks. Such a complex state of affairs demands a thorough reflection on whether it is acceptable to compromise between the need for security and the rights of individuals and procedural justice. The issue has vast legal and practical ramifications, and it is ultimately a question pertaining to the realm of global constitutionalism. Does INTERPOL have the legal authority to be in charge of finding a balance between security and procedural justice? If so, on what legal basis, and to what extent?

     

The Emergence of a European Private Law: Lessons from 19th Century Germany

As regards the emergence of a European private law in our time,this article shows that lessons can be learnt from the historyof unification of regionally defined private law in the GermanConfederation (1815–1866). An important lesson is thatthe Europeanization of private law will be anything but a spontaneousprocess. Moreover, like the members of the German Confederationalmost 200 years ago, the members of the current European Unionwill not have an equal say in the debate about unification ofprivate law. Now, as then, economic interdependencies betweenthe respective members will come into play. That is to say,the members the economies of which are relatively less dependentupon the economies of other members than vice versa are poisedto have a larger say in the debate.     

Engaging the Private Sector: EU–China Trade Disputes Under the Shadow of WTO Law?

Abstract:  This article intends to reflect a new tendency of China's new trade policy to utilise more effectively the World Trade Organisation (WTO) rules with the support of emerging public–private networks, at bilateral, regional and multilateral levels. Based on legal pluralism and network theory, this article argues that although still far from an active user of the dispute-settlement mechanism, China is gradually building up its legal capacity for challenging foreign trade barriers, by actively engaging the private sector and mobilising resources of domestic industries. It particularly focuses on how this new trend has been reflected on three recent high-profile disputes: textile, footwear and car parts, and concludes that the pattern of China's trade policy indicates that both China and its trading partners have realised that their trade relations are developing under the shadow of WTO law.     

The limitations of neoliberal logic in the anti-corruption industry: Lessons from Papua New Guinea

To acknowledge concerns about the rising power of the private sector, key international anti-corruption organisations have supported initiatives that emphasise the role that businesses play in corruption. Yet the way these initiatives have impacted the practices and perceptions of anti-corruption organisations in developing countries has received scant attention. As businesses can be key perpetrators of corruption, understanding the way anti-corruption organisations respond to the private sector can highlight the efficacy of anti-corruption efforts. Drawing on interviews with anti-corruption policy makers in Papua New Guinea (PNG) conducted between 2008 and 2009, this article shows how two international anti-corruption organisations perceived and worked with the private sector. It finds that there have been some initiatives designed to address, and raise awareness about private sector corruption in the country, reflecting international trends. At the same time the private sector is viewed, often uncritically, as an anti-corruption champion; this has affected the way anti-corruption organisations engage with businesses operating in the country. This article argues that despite a change in international discourse about the private sector’s role in corruption, in developing countries like PNG, neoliberal logic about the nature of the state still guide anti-corruption activity. These findings have implications for the efficacy of international anti-corruption efforts.     

The Protection of Geographical Indications After Doha: Quo Vadis?

During the last twenty years the international protection ofgeographical indications (GIs) has experienced a worldwide resurgencespurred by both the greater need and the additional opportunitiesoffered by the global marketplace for the diversification ofagricultural products and foodstuffs. The Doha Ministerial Declarationlends support to developing countries that are seeking formsof knowledge less than high technology that they have the capacityto exploit. June 2005 saw the European Communities submit aradical proposal, designed to also meet the needs of developingcountries that would amend the Trade-Related Aspects of IntellectualProperty (TRIPS) Agreement in favour of a mandatory multilateralsystem of registration for all products. Yet, World Trade Organization(WTO) Members are as divided over their capacity to take advantageof GI protection no less than they are as to the means of regulation.To date, no ready solution to the further global harmonizationof GIs has been found. This paper examines the two major regulatorymodels advanced by the European Union and the United Statesof America for the protection of GIs. In the light of the DohaDevelopment Agenda, the authors argue in favour of an incrementalapproach that would allow developing countries the flexibilityto adjust additional protection in accordance with their levelof economic development.