从案例看WTO如何处理RTA争端管辖权问题

近年来兴起的区域贸易安排,虽然对国际贸易不无贡献,但是对世贸组织(WTO)所构建的多边贸易体制亦产生了诸多冲击,争端管辖冲突问题就是其中一例.首先介绍WTO与RTA管辖冲突以及协调原则,此后基于墨西哥饮料案这一涉及管辖冲突的WTO法律实践进行了法律分析,最后就当前在RTA谈判实践中应当如何处理争端管辖冲突问题提出建议.     

我国群体诉讼的立法与司法实践

我国大多数群体纠纷被法院分案受理,既有制度本身的问题,又与司法实践中存在着影响法院积极适用代表人诉讼的诸多因素和司法政策有关。由于群体纠纷本身就需要根据案件的具体情况,采取多元化的方式处理,所以,法院通过其他一些诉讼形式解决群体纠纷是无可非议的。但是,在多元化群体纠纷解决机制中,代表人诉讼制度是必不可少的,其独特的价值和功能是不可能被现在各地法院所尝试的其他替代性诉讼方式所完全取代的。     

Wheat from chaff: Third‐party monitoring and FEC enforcement actions

Regulatory theory suggests that providing agencies with multiple sanctioning options allows them to dispose promptly of less serious matters and thereby conserve resources to pursue serious offenders. However, agencies dependent on third‐party monitoring may have their enforcement agendas skewed toward more trivial violations. We consider these competing expectations by analyzing enforcement actions at the US Federal Election Commission (FEC) from 1999 to 2004 . The FEC – an agency heavily dependent on third‐party monitoring – expanded its enforcement options in 2000 by creating two new programs to pursue low‐level offenders, while leaving its monitoring strategy unchanged. We hypothesized that more sanctioning options would allow the FEC to allocate its resources more efficiently, and thus deal more effectively with the skew created by third‐party monitoring. We found instead that although the FEC disposed more promptly of low‐level infractions, it was no more effective at focusing on serious violations. Our results suggest that for many agencies, expanding enforcement options without addressing monitoring has limited ability to resolve enforcement problems.     

Outbursts: An Evolutionary Approach to Emotions in the Mediation Context

Evolutionary psychology offers a powerful framework for understanding the ultimate function of emotions, and that understanding can be applied usefully in the mediation context. In this article, we first introduce the relevant theoretical foundational assumptions of the evolutionary approach to emotions and then use anger and gratitude to illustrate the evolved functions and effects of emotions on cognition and behavior before exploring specific implications for mediation. We also discuss mediator strategies for leveraging anger and gratitude, as well as the potential for future research applying an evolutionary approach to understanding emotions in mediation.     

Municipal Leadership of Climate Adaptation Negotiations: Effective Tools and Strategies in Houston and Fort Lauderdale

Negotiation analysis of climate change–related issues has largely focused on public dispute resolution mechanisms that are typically applied in the face of specific environmental crises, or on multiparty diplomacy relating to international climate agreements. Mayors and other municipal leaders, however, are increasingly taking steps to negotiate urban planning efforts with stakeholders to implement policies for managing the intensifying impact of climate change. In this article, we analyze negotiations in Houston, Texas, and Fort Lauderdale, Florida, to identify which methods municipal leaders employed to conduct negotiations to implement climate adaptation policies and also consider whether those methods were effective. The two cities present two differing city management structures: Houston has a strong mayor‐driven system, while Fort Lauderdale uses a city commission and city manager system. In this article, we examine the barriers that leaders must overcome and consider their options for negotiating lasting agreements.     

The Past,Present, and Future of Mediation as Seen through the Eyes of Some of Its Founders

This article is drawn from interviews with thirty‐one of mediation's “founders,” those pioneers who began mediating in the 1970s and 1980s, when the field was young. They describe what first attracted them to mediation and why they have remained active in the field. Some told us that they have found it to be both intellectually challenging and interpersonally satisfying to assist disputing parties in their search for a mutually acceptable resolution they could not find on their own. Others see mediation's collaborative approach to decision making as a means of bringing about social and political change that might be otherwise unattainable. The mediators also described the changes they have observed since they entered the field: mediation's dramatic growth, institutionalization in the judicial system, and market domination by lawyers and retired judges. Among the concerns they expressed were the prevalence of a mediation model that focuses primarily on the legal strengths and weaknesses of each party's position, and the dollar amount that should resolve the dispute, with little interest in creative outcomes. Other concerns are a lack of quality control of mediators and trainers, and unproductive debate about whether the “correct” approach to mediation is evaluative, facilitative, or transformative. The mediators who work on public policy matters, including environmental disputes, were the most positive about the opportunity for creativity in their work, considerably more so than those mediators whose practice is primarily business/commercial. The mediators' views of the future of mediation are remarkably similar — their general sense is that the type of mediation that takes place in the shadow of the courts is likely to increase and to become even more routinized than it is at present. Several respondents told us that they also expect to see substantial growth in the use of mediation to resolve public policy issues. Many of these mediators predicted that this type of mediation is likely to be carried out by organizational insiders, rather than outside interveners. As one mediator said, “Maybe there's a new set of mediation roles for people within traditional institutions, not just for free‐standing neutrals.”     

社会矛盾化解视野下的派出所解纷权——以一起自杀式讨薪案的处置为例

自杀式讨薪行为是一种底层的不"体面"、不"正规"、不合法的纠纷解决方式。民间纠纷的当事人常常以扩大纠纷的方式解决纠纷,调解这类含有暴力因素或有危害公共秩序之虞的因素的民间纠纷,成为当前派出所日常工作的一个主要项目。民警在这类案件中的功能,主要是充当纠纷解决过程中的控制者、缓冲者、疏导者、协调者的角色。派出所的民间纠纷解决权,是底层大众解纷需求的产物,以此为核心的派出所调解机制的实践反映了底层解纷机制对当代中国法治进程的影响。     

认真履行告知义务构建和谐医患关系

近年来,我国医患纠纷数量急剧上升且呈恶性化发展态势。医生的法律意识不强、专业知识缺乏及医患沟通不畅等是造成这种现状的主要原因。医疗机构告知义务之履行,则是维护医患双方的权利,防范医患纠纷发生,构建和谐医患关系的根本对策。     

论环境纠纷行政处理机制的完善

环境行政机关介入环境纠纷处理的意义,就在于将行政和司法两个领域加以结合而形成"行政准司法"制度,弥补传统司法救济的缺陷,有效地改善因环境问题的复杂性和专业性造成的纠纷处理效率低下、对受害人保护不利的现象.无论从我国环境行政机关的现有资源,还是从其他领域的法律法规和现有实践来看,完善我国环境纠纷行政处理机制都具有现实的必要性和可行性.应该在重视发挥行政调解作用的前提下,丰富我国纠纷的行政处理方式,尤其要加强行政裁决的作用,形成行政斡旋、行政调解、行政裁决多种方式相结合的纠纷处理体系,并建立公正、高效的纠纷处理程序.     

论完善中央与地方权限争议立法解决机制

中央与地方的权限争议已经成为我国中央与地方关系的核心问题,现存解决机制中无论是就抽象权限还是具体权限的争议解决都存在诸多缺陷。按照法治化的思路,对立法解决机制的完善应该依循减轻中央对地方的影响、地方对中央的相对自主以及两者在利益交涉上的平衡的路径加以实现,以突出立法解决机制重在争议预防的策略。