WTO争端解决机制下私人诉权之审视

WTO争端解决机制下私人诉权的制度模式从学理角度可分为私人直接诉权与私人间接诉权两种。前者包括狭义的私人直接诉权与WTO协议直接适用;后者的行使方式包括以传统外交保护为理论基础的国家诉权制度与作为国内行政调查程序的对外贸易壁垒调查制度。私人直接诉权模式不仅在理论上尚有争议,而且是很难付诸实践的。只有在坚持国家诉权的基础上,构建对外贸易壁垒调查制度,为私人间接诉权提供行政程序性制度保障,才是当前包括中国在内的WTO各成员方的最佳选择。

A Jurisprudential Study of Private Right of Action in WTO Dispute Settlement Framework

Theoretically, private right of action in the framework of DSM of WTO can be classified as direct right and indirect right. The former consists of direct private right of action in a narrow sense and direct application of WTO agreements, while the latter is exercised by way of the state’s initiating an action on traditional doctrine of diplomatic protection and the investigation of foreign trade barriers as a domestic administrative investigative procedure. Direct private right of action is still a highly controversial theory and it is hard to put it into practical use. It is the best way out for WTO members, including China to maintain state right of action and restructure a system of investigation of foreign trade barriers so as to protect indirect private right of action with administrative procedures.