The World Trading System, the International Legal System and Multilevel Choice

Abstract:  This article develops a theory of multilevel choice of regulatory jurisdiction based on normative individualism, and suggests how certain features of the World Trade Organization (WTO) might be understood in terms of this theory. The WTO has some capacity for positive integration, as demonstrated in, for example, the harmonised minimum standards for intellectual property protection contained in the TRIPS agreement. Yet the WTO has generally not been used as a site for re-regulation in areas congruent with its de-regulation. However, in a limited way, and in particular contexts, it provides certain incentives for re-regulation at other sites. For example, both the SPS Agreement and the TBT Agreement encourage the formation of harmonised rules. These agreements require Member States to use international standards as a basis for their measures, with important exceptions.     

Interpretación de normas internacionales de distintos ordenamientos bajo el acuerdo de obstáculos técnicos al comercio de la OMC

This study gives evidence through the International Comparative Law, two rules that come from standardization bodies of different nature, such as standards of the International Organization for Standardization (ISO) and ASTM International (ASTM International), which are recognized in the international trade and domestic trade, but it plays erratically, being in some significant cases and not in others mandatory. Thus constituting real technical barriers to trade through discriminatory criteria, contrary to the provisions and spirit of the Agreement on Technical Barriers to Trade (TBT) of the World Trade Organization (WTO) and Free Trade Agreement (NAFTA), of which Mexico, the U.S. and Canada are also part.     

Services Negotiations in the Doha Round: Lost in Flexibility?

The World Trade Organization (WTO) rules for services trade,under the General Agreement on Trade in Services (GATS), arefar broader in policy coverage than their counterpart provisionsunder the General Agreement on Tariffs and Trade (GATT), reflecting,inter alia, the Agreement’s extension to cross-bordermovements of services consumers and factors of production. Atthe same time, the GATS is significantly more flexible in applicationthan the GATT. There are virtually no political sensitivities,protectionist or not, that could not be formally accommodatedwithin its structure. Moreover, the paucity of relevant jurisprudenceon key concepts and a yet incomplete rule-making agenda haveprovided additional scope for ‘creative’ interpretation.However, while flexibility was a sine qua non for the conclusionof the Agreement, given the diversity of institutional conditions,political concerns, and so on among participants, it has notbeen conducive to one of the key objectives: ‘early achievementof progressively higher levels of liberalization’. Thisarticle discusses possible approaches that, within the Agreement’scurrent structure, could promote the clarity, quantity, andcommercial relevance of services commitments and address remainingrule-making issues. However, there is no panacea. The challengeremains to find a reasonable balance between economically meaningfuldisciplines and their broad application across sectors, modesof supply, and WTO Members.     

世界贸易组织补贴规则研究

世界贸易组织法律体系中关于补贴问题主要规定在三个法律文件之中,即《补贴与反补贴措施协议》(以下简称《补贴协议》)、《农业协议》和《服务贸易总协定》。《补贴协议》只处理影响货物贸易的补贴,《农业协议》对农产品的补贴在《补贴协议》的大框架内有一些特殊规定,《服务贸易总协定》则另外规定了关于服务贸易的补贴。由于发达国家与发展中国家的经济实力的巨大悬殊以及它们对农业补贴的不同政策,从而导致了在货物贸易的补贴规则方面,两类国家之间存在着尖锐的利益不平衡,发展中国家必须为实现其与发达国家实质上的平等而继续奋斗。     

The GATT‐WTO system: Environmental friend or Foe?

Abstract

The GATT‐WTO system has been attacked for being at best indifferent to the environment and at worst hostile to it. However, rather than being an environmental foe, the GATT‐WTO system is environmentally‐friendly in many respects. Several World Trade Organization agreements — the Agreement on Agriculture, the Agreement on Technical Barriers to Trade, the Agreement on Subsidies and Countervailing Measures and the Agreement on Sanitary and Phytosanitary Measures — not only permit but encourage WTO member‐countries to implement national programs and laws to protect the environment free from WTO interference. Multilateral initiatives through organizations such as the WTO, as opposed to unilateral bullying, are the surest way of securing robust legal protections for the environment.     

The status of WTO non-members: A review in light of the 6 December 2005 proposed amendment to the TRIPs Agreement

Legal context: After almost four years of debate, the World Trade Organization(WTO) has finally proposed to amend Article 31 of the TRIPsAgreement as part of the international endeavour to tackle theconflict between drug patent rights and the right of victimsof public health crises to have access to affordable drugs.The proposed amendment, Article 31bis introduces a special compulsorylicence regime for the purpose of manufacture and export ofcheaper pharmaceutical products from some Members of the WTOto those which have no or insufficient capacity to manufacturethese products. Key points: This article discusses the status, in light of the proposedamendment, of non-members of the WTO that are otherwise membersof other health-related international organizations (like theWorld Health Organization), which have been striving to finda solution to this conflict alongside the WTO. The article providesbackground information on the drug patent-public health debate,and discussion of Article 31bis and compulsory licensing. Practical significance: The discussion on the status of non-members of the WTO in lightof the proposed system will help the reader to understand thatlimiting the benefits of the system to Members of the WTO might,contrary to the spirit and the history of the proposal, leavenon-members behind in the global fight against public healthcrises. The article will show that without directly violatingthe TRIPs Agreement and the proposed amendment, non-memberscan also participate in the global fight against public healthcrises and thus benefit as many victims of these crises as possible.     

Regulatory Jurisdiction and the WTO

The WTO is not explicitly concerned with the problem of regulatoryjurisdiction in connection with prudential regulation (as opposedto industrial policy regulation). However, as the WTO has addressedincreasingly complex regulatory barriers to trade, it has developedseveral devices that have the implicit effect of allocatingregulatory jurisdiction among states.This article reviews afew illustrative cases in WTO law, including Helms–Burton,Shrimp, and Gambling. This review suggests how these cases maybe understood as dealing with allocation of regulatory jurisdiction.Negative integration rules such as national treatment or proportionalitymay serve as devices applied by tribunals for allocation ofregulatory authority. The WTO has very limited rules of positiveintegration—whereby states either harmonize regulationor agree on more specific allocations of regulatory authority,such as mutual recognition. However, it has developed a modestdegree of capacity to engage in positive regulation, or to referto positive integration rules developed in other contexts, suchas Codex Alimentarius. Finally, this article examines theoreticalbases for allocating and reallocating regulatory jurisdictionin order to establish a framework by which to analyse the roleof the WTO in this context.     

Public Services and the GATS

The status of public services is one of the most hotly debatedissues surrounding the General Agreement on Trade in Services(GATS). In principle, there are two approaches to define suchservices: an institutional approach focusing on the conditionsgoverning supply (e.g. ownership status and market organization)and a functional approach based on the policy objectives thatmay be involved (e.g. quality-related objectives and conceptsof universal access). Given the diversity of existing arrangementsamong WTO Members, with significant variations over time, theformer approach does not appear appropriate. The services providedby government-owned facilities, whose costs are covered directlyby the State, may well be indistinguishable, for all practicalpurposes, from the services provided by private commercial operatorsunder appropriate regulations or incentive mechanisms. Thisarticle discusses the relevance of the GATS for different arrangementsthat governments may use to meet typical public service objectives.All conceivable arrangements, whether based on public monopolies,or regulated or subsidized private supplies, or combinationsthereof, are compatible per se with the Agreement. Recent regulatoryand technical developments have broadened the scope for –possibly more efficient – market-based solutions, whosecredibility may be enhanced by the assumption of commitmentsunder the GATS. There is no common template, however. It isat the end for each WTO Member to decide, sector-by-sector,on the appropriate policy approach and the pros and cons ofbinding access conditions under the Agreement.     

保障措施、贸易保护与产业调整援助立法

针对我国新修订的外贸法第44条有关保障措施的条款中增加了"可以对产业提供支持"的规定,联系《WTO保障措施协议》及《美国外贸法》中产业调整援助的内容,指出在采取保障措施时进行产业调整是WTO成员方的义务,而产业调整援助是成员方的权利,为了更好地保护国内产业,我国应该尽早完善产业调整援助立法。     

Precaution, Scientific Development and Scientific Uncertainty under the WTO Agreement on Sanitary and Phytosanitary Measures

The World Trade Organization (WTO) Appellate Body has noted that the precautionary principle will be relevant to the interpretation of the WTO Agreement on Sanitary and Phytosanitary Measures in various ways, although the Appellate Body has declined to determine the status of the precautionary principle for international law or to find that it has been written into the SPS Agreement. The Appellate Body's awareness of precaution, the dynamics of scientific research and the nature of scientific uncertainty is to be welcomed. This awareness is helpful in dealing with new and emerging issues, such as the question of when a risk assessment relied upon by a WTO member becomes outdated by virtue of subsequent scientific developments. If maintained, an overly rigid approach to risk assessment, with a tight temporal focus, will inadequately acknowledge the natural processes of flux in the development of scientific knowledge.     

E-Commerce in Light of International Trade Agreements: The WTO and the United States-Jordan Free Trade Agreement

E-commerce offers economy-wide benefits. World Trade Organization(WTO) members recognized the benefits e-commerce offers andhave developed a work program to facilitate the developmentof e-commerce. However, WTO efforts to facilitate e-commercehave stalled, leading to a slower than anticipated progress.As fundamental differences continue to stall progress in theWTO’s program on e-commerce, the United States concludeda free trade agreement with Jordan. This agreement was the firstever to incorporate explicit provisions on e-commerce. Thisarticle analyzes how existing trade agreements have dealt withe-commerce. The article gives an overview of the situation inWTO. The article then examines the e-commerce provisions inthe United States-Jordan Free Trade Agreement (US-JO FTA) andhow the parties have tackled the obstacles that stalled theWTO work on e-commerce. It concludes that the US-JO FTA approachregarding e-commerce did not move beyond what the WTO has alreadydone. It is argued that although there are specific provisionsdealing with e-commerce in the FTA, the parties left many loopholesto be filled.     

King Cotton, Developing Countries and the 'Peace Clause': The WTO's US Cotton Subsidies Decision

Although the World Trade Organization (WTO) is a powerful vehiclefor promoting economic development, the Uruguay Round has beenperceived by developing country WTO members as an unequal bargain.Especially with respect to agriculture, the Uruguay Round yieldedonly limited concessions. In September 2003, Doha Round effortsstalled at Cancún when developing countries coalescedto oppose a proposal that insufficiently liberalized trade inagriculture. In March 2005, the Dispute Settlement Body adopteda panel decision upholding Brazil’s legal challenge ofUS subsidies to cotton producers. The US Cotton Subsidies decisionrepresents a dramatic victory for Brazil and other developingcountry WTO members. The timing of the decision, coincidingwith ongoing Doha Round agriculture negotiations, ensures thatit will influence any outcome of the Round. This article examinesthe US Cotton Subsidies decision, describes the subsidy programsat issue in the dispute, reviews applicable WTO rules, and outlinesthe major findings of the panel and Appellate Body. The articleconcludes that Brazil’s victory in US Cotton Subsidiesmay represent a broader shift within the WTO away from a systemdominated by the US and EC toward a system that increasinglyis influenced by emerging market economies.     

Banking on China's WTO Commitments: 'Same Bed, Different Dreams' in China's Financial Services Sector

Foreign banks and the Chinese Government have different dreamsabout the business opportunities and obligations that ariseunder China's World Trade Organization (WTO) commitments onfinancial services. This article provides an overview of China'sbanking sector reforms and its gradual opening to foreign participationin the context of General Agreement on Trade in Services (GATS)rules governing international trade in financial services andthe obligations that apply since China's WTO accession in December2001. The article highlights the contradictory interpretationsthat China and other Members have issued regarding China's GATScommitments and provides a framework for assessing the WTO consistencyof China's banking measures. An analysis is conducted underthis framework to evaluate whether China has fully implementedits GATS commitments on (i) the acquisition of Chinese banksby foreign financial institutions, (ii) legitimate ‘prudentialregulation’ in the banking sector, and (iii) full marketaccess for credit card and electronic payment services. Notwithstandingthe apparent complexity of GATS rules, the article concludesthat the WTO legal framework supports the case for increasedaccess to China's financial services market consistent withits GATS commitments, and fully consistent with China's plansfor continuing domestic growth and its medium-term financialservices export interests.     

Eleven Years of GATS Case Law: What Have We Learned?

The General Agreement on Trade in Services (GATS) negotiatorsfaced a significant challenge when having to craft a comprehensiveset of disciplines governing multilateral trade in services,and the result is somewhat complex. Some obligations, in particularthe most favoured-nation treatment (MFN) obligation, apply acrossthe board. Others, like the market access and national treatmentobligations, apply only in respect of service sectors of a Member'schoosing. There is overlap between the market access and nationaltreatment obligations, and the relationship between these twodisciplines and those on domestic regulation is not clearlyestablished. Additional obligations have been adhered to ona voluntary basis, in particular in the areas of telecommunicationsand financial services. In general, the interpretation and understandingof Members’ Schedules of Specific Commitments proves tobe a laborious exercise. This provides fertile ground for difficultand often sensitive interpretive issues to arise. Although Membershave thus far not made extensive use of dispute settlement proceduresto resolve them, existing World Trade Organization (WTO) decisionsalready show the reach of GATS disciplines and their potentialimpact on Members’ policies and regulations. The Gamblingcase has, in particular, sparked a debate as to what shouldbe the right balance between trade constraints and the autonomyof Members’ service regulators. This article reviews theGATS case law with a view to offering a critical assessmentof the main systemic issues that have been addressed by WTOadjudicatory bodies. These issues are, respectively, the scopeof application of the GATS, the interpretation of specific commitmentsin Members’ Schedules, market access, non-discriminatorytreatment, and general exceptions.     

追溯与寻明:国际法视角下的碳排放权单位研究

自以《京都议定书》为基础的市场化机制建立以来,经过近20年的发展,全球碳金融市场呈现蓬勃发展的态势,交易量大幅提升,成交金额不断攀升,市场化机制在夯实中不断完善和发展。同时,争端与纠纷日益增加,国际多边环境公约调整下的碳排放权机制部分地在WTO体制下进行规制,成为众多学者的憧憬。碳排放权单位体现的既不是GATT框架下的"产品",也不是GATS框架下的"服务",而是在经济上反映出特殊的金融衍生产品的属性。然而,碳排放权单位交易商提供服务的行为契合GATS金融服务要求,因此交易商可依据GATS享受跨国服务领域中的最惠国待遇,并可将与WTO规则相关的争端诉诸WTO争端解决机制,实现环境争端解决的规范化、法制化。     

析WTO规制技术性贸易壁垒之实效性缺乏

WTO对技术性贸易壁垒的规制主要是通过《TBT协定》和《SPS协定》加以体现的。两协定实施12年来,尽管在立法和司法层面上均围绕其有效实施作出了不懈的努力并取得一些进展,但囿于立法中极其有限的推进和司法裁决中所面临的两难境地,很难对遏制技术性贸易壁垒产生根本性的影响;而且,有迹象表明,各该协定所确立的"实体标准+程序要求"之司法裁判并重模式,已开始往"程序导向"之单轨偏行,因而其实效性还有被进一步削弱的可能。     

A Clash of Cultures? The UNESCO Diversity Convention and International Trade Law

The adoption, on 20 October 2005, of the Convention on the Protectionand Promotion of the Diversity of Cultural Expressions (DiversityConvention) has returned the limelight to the suitability ofWorld Trade Organization (WTO) rules for cultural products.This article shows that the Diversity Convention, while an importantstep towards the recognition of cultural diversity as an internationallyrecognized public choice of states, does not affect the rightsand obligations of WTO Members as such. The original purposeof the Convention was to create a safe haven for cultural policiesand protect them from WTO disciplines. However, the centraloperative provision for bringing about the desired shieldingeffect for domestic policies safeguarding national culturalindustries against foreign competition, its now-article 20,while making a general claim to non-subordination in paragraph1, modifies this broad statement in paragraph 2 so as to onlyapply to treaties concluded at the same time or later. The articleexplores how to avoid or minimize an undesirable incongruencebetween liberal trade rules and the right of states to protectshelf-space for domestically produced cultural products.     

Influence of WTO decisions on international intellectual property

Legal context: The task of harmonization in the IP framework is currently atrisk. This conclusion is shown by the way EU Member States have recentlyenacted Directive 2001/29 on the harmonization of certain aspectsof copyright and related rights on the information society.Particularly, no Member State seems to have considered the interpretationof the three-step test of the Berne Convention given in 2000by the WTO panel, notwithstanding its importance. Moreover, three recent opinions of the French Cour de Cassation,the French Conseil Constitutionnel, and the German Federal Courtof Justice appear not to have endorsed the WTO's interpretationof the three-step test. This scenario confirms the impressionthat the international framework is devoid of any degree ofharmonization. Key points: Although the aims of certainty and predictability in the internationaltrading system are among its main tasks, the World Trade Organizationhas not yet tackled the plight of harmonization, preferringa political approach to smooth conflicts and disputes. Yet,the World Trade Organization has recently taken important stepsthat seem to herald a new attitude. In United States—Sections301-310 of the Trade Act of 1974, the World Trade Organizationdismissed the traditional deference towards national legislations.In addition, at international and national levels, the AlleghenyLudlum and Softwood Lumber cases aligned their interpretationsto that of the World Trade Organization.     

Effective Global Economic Governance by the World Trade Organization

The World Trade Organization (‘WTO’) is the principalinternational institution for the management and regulationof the process of economic globalization. Its effectivenessin fulfilling this important task, however, leaves much to bedesired. On 4 and 5 February 2005, the Faculty of Law of MaastrichtUniversity organized an international research conference entitled‘In Search of Effective Global Economic Governance: TheCase of the World Trade Organization’. This conferencebrought together academics, WTO officials, government diplomats,national trade officials, representatives of business associationsand NGOs to discuss a wide range of issues, including: possibleimprovements to and alternatives for consensus decision-makingin the WTO; issues of transparency, democratic legitimacy andthe participation of civil society in WTO decision-making; secondarylaw-making by WTO bodies; and an expanded role for the WTO Secretariat.It is important that legal and political science scholars focustheir research efforts on the reforms needed to transform theWTO into an instrument of effective global economic governance.The main objective of the conference was, therefore, to definea comprehensive agenda for research into the institutional reformof the WTO. This article is, above all, a report of the conferenceand summarizes the main arguments made by the participants.     

金融危机后中国应对技术贸易壁垒的法律对策——兼论“低碳技术贸易壁垒”

在金融危机影响下,发达国家优先选择技术性贸易壁垒作为贸易保护措施,对中国出口行业进行限制。由于WTO《技术贸易壁垒协议》存在着局限性,据此本文提出三项法律应对措施：加强CAFTA和ECFA成员合作、重视品牌战略、立法减税与完善社会保障。同时,还对＂低碳技术贸易壁垒＂的发展趋势与我国对策进行了探讨。