北美自由贸易协定对环境与贸易问题的协调及其启示

北美自由贸易协定在环境合作委员会的主导下,充分尊重成员国的主权,给予发展中国家实质性的能力支持,赋予成员国确定本国环境保护水平的自由裁量权,建立独立的区域环境贸易争端解决机制,在协调区域内成员国间环境标准及协调区域贸易协定与多边环境协定间的关系等方面构建了一个全新的模式。北美自由贸易协定对环境与贸易问题的协调模式对多边贸易体制协调环境与贸易问题有诸多的启示和借鉴意义。     

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.     

中国-东盟自由贸易区发展模式之探讨

本文从基本原则和发展目标及组织机构等方面 ,探索了拟建立的中国 -东盟自由贸易区的发展模式 ,指出未来的中国 -东盟自由贸易区应当仿效北美自由贸易区 ,建立一个高效的强有力的组织机构体系 ;参照欧盟做法并依据WTO规则 ,确定其规范性文件直接适用的效力和优先适用的效力 ;在解决争端方面 ,借鉴北美自由贸易区的模式 ,并考虑建立“预警机制” ;在表决程序方面 ,采用“一国一票”表决制度。     

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.     

Membership and its Privileges: the WTO, Civil Society, and the Amicus Brief Controversy

Abstract: In a series of rulings, beginning with the notorious Shrimp/Turtle dispute, the high court of the WTO, the so‐called Appellate Body, has ruled that it, as well as the panels of first instance, may, on a discretionary basis, accept and consider amicus curiae briefs from, inter alia, non‐governmental organisations and private individuals. This has been highly controversial and subject to wide and intense criticism by trade diplomats who are the political representatives of WTO Member states in Geneva; the officials have reacted with anger and hostility to the notion that governments are not exclusive gatekeepers of access to the WTO dispute settlement tribunals. This article shows that the decision that amicus briefs are admissible at the discretion of the adjudicator has a sound basis in the legal framework for WTO dispute settlement, as well as conforming to trends in the practice of international courts and tribunals more generally. The article examines various ‘due process’ issues concerning the modalities for acceptance and consideration of amicus briefs and how they have been so far dealt with by the Appellate Body, as well as how they are handled in certain proposals for reform of the legal framework of WTO dispute settlement, the Dispute Settlement Understanding (DSU).     

论加入WTO后我国行业协会的制度完善——纺织品贸易争端引发的思考

加入WTO后急需我国行业协会在行业利益协调,避免和解决贸易争端等方面发挥积极作用。然而,制度上的障碍造成我国行业协会功能缺失,2005年纺织品贸易争端的爆发即突出反映出这一问题。因而,必须加紧健全我国行业协会发展的外部法律环境,制定《行业协会法》,并完善其内部管理机制。     

The Good Case: Decisions to Litigate at the World Trade Organization

This article draws upon the law-in-action, repeat players, and motive to understand how legal actors construct the "good case" in dispute settlement systems. The construction of "good cases" is examined at the World Trade Organization (WTO), a relatively new and unexplored site for the study of dispute settlement. Findings show that the good case encompasses flexible sets of motives including economic, political, and symbolic characteristics of trade grievances to mobilize WTO law. The flexibility is due to uncertainties associated with litigation, which are manifestations of four features of the WTO: the newness of the system, the organizational and legal structure of the dispute system, the context of the WTO as an intergovernmental agreement, and the persistence of inequality between states. Six variations of the good case are identified.     

Misappropriation of Institutions: Some Lessons from the Environmental Dimension of the NAFTA Investor-State Dispute Settlement Process

Trade regimes at all levels have confronted the dual challenge of rapidly expanding foreign direct investment, and the vigorous growth of international environmental regimes. Attempts to develop a global investment regime have encountered resistance, not least from environmental interests. At the same time, regional trade regimes have sought to address both the environmental and the investment agenda but in a very different manner. This article looks at problems encountered with the investor-state dispute settlement process established by the North American Free Trade Agreement (NAFTA). The institutional dimension of this process is largely drawn from the General Agreement on Tariffs and Trade (GATT), and existing international institutions for commercial arbitration. The article traces some of the difficulties encountered in attempting to use institutions designed for a specific purpose and implemented in one organizational context, to achieve a different purpose in another organizational context. It discusses the problems that arise when institutions appropriate for settling commercial disputes between private actors are used as the basis for balancing private interests and public goods, the environment in particular. It highlights the importance of a more developed understanding of the interplay between institutions and organizations at the international level so as to avoid undesired outcomes.     

Wildlife management,the multilateral trade regime,morals and the welfare of animals 1

Abstract

Various states (and groups of states such as the European Community) have adopted legislation designed to raise standards of animal welfare in many areas including agriculture, companion animals, experimentation and testing, transport, and hunting and trapping methods. Much of this legislation has resulted from extensive lobbying and intense political wrangling. Where the legislation affects animals as products (or animal derivative products such as their pelts or their meat), legislators frequently resort to external facing trade measures to support the moral stance taken in the legislative instrument. At this point potential conflicts with the precepts of the multilateral trade regime operated by the World Trade Organisation arise. The extent to which the relevant provisions in the WTO portfolio of agreements (and the predecessor text of the GATT 1947) assist the cause of animal welfare is limited by both the texts themselves and the narrow interpretation of those texts by WTO/ GATT dispute panels. Non‐governmental organisations involved with animal welfare issues are concerned that the WTO regime will inhibit the development of animal welfare protection legislation and are also concerned that the net result may be a retardation of the development of animal welfare measures in the face of open market competition. This article explores the background to, and substance of, this contention particularly in the context of the European and International legislation designed to deal with the welfare of trapped wild animals and also with other animal welfare legislation having international trade implications. Moreover, the findings of such an examination have much broader implications in that they have relevance to any legislation based on public morality which seeks to enforce that morality through external facing trade measures.     

CHINA’S WTO PARTICIPATION IN ANTI-DUMPING DISPUTES (2001–2011)

The anti-dumping war between the US and China has attracted much attention lately, especially after a March WTO ruling and a November US domestic court ruling on the issue in 2011. While the former held that the current US method of applying countervailing and anti-dumping duties simultaneously on imports from China and other non-market economies was “inconsistent” with the WTO rules, the latter ruled that such action was “illegal” under the US countervailing law. China has been one of the most frequent anti-dumping investigation targets by both developed and developing countries for decades. Although it currently has more than one hundred anti-dumping actions against its trading partners at the domestic level, China is a very new player of anti-dumping litigation at the WTO level. China filed its first WTO claim on anti-dumping in December 2007 against the US, since when it has made frequent appearance at the WTO dispute settlement in this regard. This Article examines China’s participation in anti-dumping disputes during the first ten years of its WTO membership, five as complainant and four as respondent. The alleged undervalued Chinese currency has been claimed to provide unfair price advantages to Chinese products and consequently tops trade frictions between China and its trading partners. It to some extent contributes to the rising anti-dumping disputes of China. With the continuing pressure to appreciate the Chinese currency globally as well as the current debit crisis in the EU, more anti-dumping and countervailing investigations against China are expected to emerge as countries are pushing more exports to assist the gloomy domestic economies. This becomes more likely taking into account the mounting claims on the job lost in the US due to the flux of cheap and competitive Chinese products.     

WTO体制内国内法的可诉性问题

在一般国际法理论与实践中,国内法本身可以单独构成国际争端解决程序的诉因。WTO体制内国内法可诉的法律依据是GATT1994第23条、DSU第3.8条以及《WTO协定》第16.4条。在WTO争端解决实践中,专家组和上诉机构的裁决呈现出一个重要的趋势:在美国“301条款”案前,遵循GATT1947时期专家组所确立的“裁量性立法与强制性立法之区分”的习惯性做法;在美国“301条款”案后,不再严格遵循这一习惯性做法。WTO体制内国内法之可诉性问题目前尚没有一个统一、明确的答案。     

论WTO争端解决的国内法审查

随着我国对外贸易的迅速扩增,与其他WTO成员的贸易争端也日趋频繁。WTO争端解决的关键是通过条约解释澄清其成员的权利与义务,审查系争国内法是否符合WTO有关协定。本文首先论述WTO争端解决中的国内法概念,然后着重地分别探讨专家组审理与上诉复审的国内法审查,最后分析我国应对WTO争端解决的国内法审查问题。     

浅论单边贸易措施的适法性

世界贸易组织的多边贸易制度凸现了在国际法中尚无法完全解决的单边贸易措施的适法性问题,但它的运行并没有终止诉诸于单边贸易措施的时代。本来国际法规制单边贸措施的漏洞,可借由世界贸易组织的多边贸易制度的设计特别是争端解决机制这个自足的法体系予以弥补,但世界贸易组织专家小组/上诉机构的报告在重申多边贸易制度固有的宗旨和纪律的同时为单边贸易措施的适法性留下了空间。如果不希望多边贸易体制仍然处于单边贸易措施的行为的永久威胁之下,就应采取措施确保世界贸易组织成员避免诉诸于有损于世界贸易组织的单边贸易措施。     

WTO争端解决机制的强制性及对内国法的影响

WTO争端解决机制因其以规则导向为主的司法模式、强制管辖权和强制执行力等独特性区别于GATT的争端解决机制,克服了长期为学者所诟病的“软弱性”,使其强制性得以确立和加强,并被认为是对传统国际法的一种突破和发展。以规则导向为主的司法模式为WTO争端解决报告实现对内国法律之影响提供了一种可能;进而,随着强制管辖权和强制执行力的确立,这种可能性上升为一种必然性,这种影响无论在力度、广度,还是深度上均强于ICJ和NAFTA。事实上,WTO争端解决报告也迫使或促使多个主权国家撤销或修改其法律法规以符合WTO义务,其对成员方内国法的影响不可谓不大。     

WTO disputes settlement

How to understand China’s policies and practices on the WTO dispute settlement since its accession to WTO and conduct objective and reasonable assessment on its performance and achievements in WTO dispute settlement is currently an important issue of concerns. By analyzing China’s performance in the WTO dispute settlement in the broad environment of the WTO dispute settlement activities over the past thirteen years, this paper holds that the WTO dispute settlement mechanism has made remarkable achievements over the past 13 years, strongly promoted the trade relationship of the WTO members and settled tough and complicated trade disputes in a timely, effective and proper manner; and over the past seven years after China’s accession to WTO, China’s practice in WTO dispute settlement mechanism has rendered the following initial impression: High-profile positive policies and low-profile moderate acts; not hesitate to file complaints but be good at responding to complaints in participating in the WTO dispute settlement activities; more consultations should be made with less litigations; diligent in participation and strict in implementation; and handling trade disputes related to the WTO rules in a reasonable, effective and moderate manner.     

WTO的框架协议谈判现状分析

WTO制度的建立有效地推动了国际经济的发展,多年来的国际经济实践证明,WTO制度已形成了一整套比较完备的法律和原则。但是,国际经济不断发展和变化的形势迫使WTO制度进行调整,根据WTO的基本职能规定,组织多边贸易谈判,制定新一轮协议,是WTO要达到的目的。2001年以后,WTO组织的谈判议题不断增多,涉及的事项有:非农产品关税、知识产权、农业、服务业、贸易与环境、电子商务、贸易便利化、争端解决、补贴和反倾销等。这些谈判议题都是国际经济法律中被密切关注的重点。新一轮谈判要达到的目的是有利于多边贸易体制的完善,有利于公平、公正和合理的国际经济新秩序的建立,有利于世界经济的发展。     

Securing Compliance Through the WTO Dispute Settlement System: Implementation of DSB Recommendations

The World Trade Organization (WTO) dispute settlement systemhas been making substantial contributions to improved compliancewith the WTO Agreements. Of particular note are the elaboratemultistage mechanisms installed in the system that facilitateand ensure the implementation of the DSB recommendations. However,these multistage mechanisms are not devoid of problems and shortcomings.Several improvements are proposed by Members and scholars buta number of disagreements exist, reflecting varied understandingof the nature of the dispute settlement system. Against thisbackground, this article first analyses the nature of the disputesettlement system. It argues that the primary purpose of thedispute settlement system is not to secure compliance in abstractobut to settle a dispute and remedy injury, and its compliancefunction is exerted only in the course of dispute settlement.Thereafter, in the light of the nature of the dispute settlementsystem, this article presents a comprehensive analysis of themanner in which the multistage mechanisms currently functionand how they should function.     

Africa in the First Decade of WTO Dispute Settlement

African countries have largely been absent as players at theWTO dispute settlement system in its first decade. In recentliterature, this has been attributed to a number of factors,among them, the low volume of trade with an export base oftencharacterized by single unprocessed commodities, a complicatedand expensive dispute settlement system, inadequate legal expertiseand a less litigious approach to possible disputes particularlywhen major trading and donor partners are involved. By showinghow and to what extent African countries have participated inGATT and WTO disputes, as well as in the DSU review negotiationsand other related processes, the present article argues thatthis weak participation by large sections of the WTO membershipis a danger to the long-term "predictability" function of theWTO, and could undermine the usefulness of the entire processeventually. It closes with various proposals on how the problemmay be addressed.     

CARICOM states and the WTO dispute settlement system: the case for greater engagement

This paper examines the participation of member states of the Caribbean Community (CARICOM) in the World Trade Organisation (WTO)’s dispute settlement system and its associated negotiations. In so doing, it highlights the dispute settlement system’s important contribution to the WTO and the need for CARICOM member states to engage more actively with this aspect of the WTO’s work. The paper concludes by articulating some of the lessons learnt from CARICOM member states’ experiences to date and offering some concrete suggestions on how the region can improve its current record of engagement.     

The European Community and the Member States in the Dispute Settlement Understanding of the WTO: United or Divided?

Opinion 1/94 of the European Court of Justice determined the competence of the European Community and the Member States to conclude and implement WTO Agreements. Whilst the European Community enjoys exclusive competence to implement the Multilateral Agreements on Trade in Goods, it shares joint competence with the Member States in respect of the General Agreement on Trade in Services and the Agreement on Trade-Related Aspects of Intellectual Property Rights. However, the Court’s recognition of a division of competences between the Community and the Member States in WTO agreements has given rise to many fears that such a division would greatly complicate Community and Member State participation in WTO Agreements, would create many problems for them in doing so and, as a result, would greatly impede their successful participation in the WTO. Given the benefit of a number of years’ experience in the WTO, this paper focuses on the Dispute Settlement Understanding (DSU) of the WTO and addresses the extent to which the division of competences between the Community and the Member States has affected their participation in the DSU. Primarily, it aims to examine the extent to which the provisions of the DSU affect Community and Member State participation in dispute settlement within the WTO. It then analyses the duty of co-operation imposed on the Community and on Member States by the Court of Justice in Opinion 1/94 in the implementation of the WTO Agreements and the degree to which this duty influences their pursuit of dispute settlement. Finally, the paper examines the manner in which Community and Member State dispute settlement proceedings have evolved in practice, the extent to which the division of powers has penetrated dispute settlement proceedings and the manner in which the Community, the Member States and other WTO members have addressed it. In essence, the paper attempts both to highlight some of the more obvious consequences and effects that the internal division of powers between the Community and the Member States has for their participation in the DSU and to suggest some ways in which these consequences may be manipulated for their mutual and successful settlement of disputes.