- 텍스트
- 역사
section 7.4 critical issues in WTO
section 7.4 critical issues in WTO dispute settlement
In this section, we will consider a number of critical issues that have arisen in respect of WTO dispute settlement. We have had to be quite selective in choosing these issues, as the subject of WTO dispute settlement could probably now support a course by it self. The seven issues we will examine are (1) the concept of nullification or impairment in GATT Article ⅩⅩⅢ, both in violation and non-violation cases, (2) the appropriate standard of review to be applied by panels to government measures, (3) implementation procedures, (4) the problem of providing for effective remedies, (5) resolving conflicts of norms within th WTO system and between th WTO and other international legal systems, (6) transparency and participation by non-members: (7) the problem of unilateralism and th DSU, and (8) the special problems of developing countries.
some of these issues were considered in a review of the operation of th DSU that was undertaken in 1998-1999, pursuant to a ministerial decision in the Uruguay-Round. Although many proposals and comments were mad in the review process, it appeared that in the main WTO members were generally satisfied with the operation of the dispute settlement system. In any event, no agreement was reached on implementing changes and the review ended with the system described above remaining in effect and unchanged.
(A) GATT ARTICLE ⅩⅩⅢ AND THE CONCEPT OF NULLIFICATION AND IMPAIRMENT
As in the case of the GATT dispute settlement system, the wording and structure of GATT Article ⅩⅩⅢ play an important role in the WTO system. The other WTO agreements either expressly incorporate Article ⅩⅩⅢ as the standard for dispute settlement or contain a provision very similar to it. In addition, DSU Article 3.1 provides: “Members affirm their adherence to the principles for the management of disputes heretofore applied under Article ⅩⅩⅢ and ⅩⅩⅢ of GATT 1947.”
A careful look at Article ⅩⅩⅢ reveals a number of troublesome and peculiar characteristics. In fact (as one of the authors has written elsewhere), the draftsmen of the General Agreement had at least three objectives in mind for Article ⅩⅩⅢ, and it is not likely that those objectives are consistent one with another. The first objective was that Article ⅩⅩⅢ (a general provision on consultations) and ⅩⅩⅢ were to be the framework of a dispute settlement procedure, stressing the general obligation to consult on any matter relating to GATT. The second objective was that Article ⅩⅩⅢ would play an important role in obtaining compliance with the GATT obligations. The customary international law analogy of retorsion was used. A third goal for these provisions of GATT was to establish a means of ensuring continued “reciprocity and balance of concessions” in the face of changing circumstances. This third goal is more in the nature of an “escape clause” or “changed circumstances” provision.
The structure of Article ⅩⅩⅢ is complex. In order to prevail under the terms of Article ⅩⅩⅢ, a complainant must show that either
(1) benefits accruing to it under the General Agreement are being nullified or impaired: or
(2) the attainment of an objective of the General Agreement is being impeded.
GATT disputes have virtually always turned on whether benefits have been nullified or impaired, with the result that the meaning of the second quoted phrase is unclear.
In addition, the complainant must show that such nullification or impairment (or impedance of objective) is a result of;
(1) a breach of obligation by the respondent contracting party;
(2) the application of any measure by the respondent contracting party, whether it conflicts with the General Agreement or not; or
(3) the existence of any other situation.
Under the language of Article ⅩⅩⅢ, as traditionally interpreted, a violation of the General Agreement was by itself neither sufficient nor necessary to entitle a party to relief. Over time, however, more emphasis in the dispute settlement process has been placed on whether a violation of th General Agreement has been shown.
For example, in 1962, Uruguay brought an Article ⅩⅩⅢ complaint against a broad range of trade restrictions it alleged were maintained by 15 industrialized GATT parties. In deciding how it would handle the complaint, the panel noted the following.
In cases where there is a clear infringement of the provisions of the General Agreement, or in other words, where measures are applied in conflict with the provisions of GATT and are not permitted under the terms of the relevant protocol under which the GATT is applied by the contracting party, the action would, ''prima facie'', constitute a case of nullification or impairment and would ipso facto require consideration of whether the circumstances are serious enough to justify the authorization of suspension of concessions.
The ''prima facie'' concept was also applied in situations involving quotas or domestic subsidies on products subject to agreed upon tariff limitations (i.e., tariffs bound under Article Ⅱ, see Section 8.2 infra).
In this section, we examine how the concept of nullification or impairment is treated in the DSU and WTO cases. Since the rules and the cases differentiate between cases based on Article ⅩⅩⅢ:1(a)-claims that a party failed to “carry out its obligations” (violation cases) and (2) those based on Article ⅩⅩⅢ(b)-claims involving no alleged violation (nonviolation cases), we will consider first dispute settlement rules particularly relevant to violation cases and then those applied to nonviolation cases.
(1) Nullification or Impairment in Violation Cases
By far the most common claim raised in GATT and WTO dispute settlement is that on party has violated its GATT / WTO obligations. The evolution of the nullification or impairment concept in violation cases (see below for discussion of non-violation cases) is quite interesting. As noted above, Article ⅩⅩⅢ, by its terms, in a violation case, requires both a violation (“failure *** to carry out its obligations”) and that a “benefit accruing to [the complaining party] directly or indirectly under the Agreement is being nullified or impaired.” In early violation cases, the panel turned to the issue of nullification or impairment after finding a GATT violation. For example, in Italian Discrimination Against Imported Agricultural Machinery, see Section 12.2 infra, the panel noted that it “considered whether [the violation] had caused injury to the United Kingdom’s commercial interests, and whether such an injury represented an impairment of benefits.” But in the Uruguayan case, as noted above, the concept of ‘prima facie’ nullification or impairment was introduced.
UNITED STATES – TAXES ON PETROLEUM AND CERTAIN IMPORTED SUBSTANCES
[Certain U.S. legislation, known as the Superfund Act, deals with the cleanup of hazardous waste sites. The Act imposed a tax of 8.2 cents per barrel on domestic crude oil received at a U.S. refinery and a tax of 11.7 cents per barrel for petroleum products entered into the U.S for consumption, use or warehousing. It was effectively conceded by the U.S. that the tax violated the national treatment requirement of GATT Article ⅩⅩⅢ:2/ Instead, the main U.S. contention was that] the tax differential was so small that its trade effects were minimal or nil and that tax differential – whether it conformed to Article ⅩⅩⅢ:2, first sentence, or not – did not nullify or impair benefits accruing to Canada, the EEC and Mexico under the General Agreement. Canada, the EEC and Mexico considered this defence to be neither legally valid nor factually correct.
5.1.3 Under Article ⅩⅩⅢ of the General Agreement contracting parties may bring complaints, inter alia, if they consider that benefits accruing to them under that Agreement are nullified or impaired. According to established GATT practice, described in the Annex to the 1979 Understanding on dispute settlement, “where there is an infringement of the obligations assumed under the General Agreement, the action is considered ‘prima facie’ to constitute a case of nullification or impairment” The question raised by the case before the Panel is whether the presumption that a measure inconsistent with the General Agreement causes a nullification or impairment of benefits accruing under that Agreement is an absolute or a rebuttable presumption and, if rebuttable, whether a demonstration that a measure inconsistent with Article ⅩⅩⅢ:2, first sentence, has no or insignificant effects on trade is a sufficient rebuttal.
5.1.6 The Panel examined how the CONTRACTING PARTIES have reacted in previous cases to claims that a measure inconsistent with the General Agreement had no adverse impact and therefore did not nullify or impair benefits accruing under the General Agreement to the contracting party that had brought the complaint. The panel noted such claims had been made in a number of cases but that there was no case in the history of the GATT in which a contracting party had successfully rebutted the presumption that a measure infringing obligations causes nullification and impairment.
5.1.7 The Panel concluded from its review of the above and other cases that, while the CONTACTING PARTIES had not explicitly decided whether the presumption that illegal measures cause nullification or impairment could be rebutted, the presumption had in practice operated as an irrefutable presumption.
5.1.8 The Panel then examined whether – even assuming that the presumption could be regarded as rebuttable in the present case – a demonstration that the trade effects of the tax differential were insignificant would constitute a proof that the benefits accruing to Canada, the EEC and Mexico under Article ⅩⅩⅢ:2 first sentence, had not been nullified or impaired.
5.1.9 An acceptance of the argument that measures which have only an insignificant effec
In this section, we will consider a number of critical issues that have arisen in respect of WTO dispute settlement. We have had to be quite selective in choosing these issues, as the subject of WTO dispute settlement could probably now support a course by it self. The seven issues we will examine are (1) the concept of nullification or impairment in GATT Article ⅩⅩⅢ, both in violation and non-violation cases, (2) the appropriate standard of review to be applied by panels to government measures, (3) implementation procedures, (4) the problem of providing for effective remedies, (5) resolving conflicts of norms within th WTO system and between th WTO and other international legal systems, (6) transparency and participation by non-members: (7) the problem of unilateralism and th DSU, and (8) the special problems of developing countries.
some of these issues were considered in a review of the operation of th DSU that was undertaken in 1998-1999, pursuant to a ministerial decision in the Uruguay-Round. Although many proposals and comments were mad in the review process, it appeared that in the main WTO members were generally satisfied with the operation of the dispute settlement system. In any event, no agreement was reached on implementing changes and the review ended with the system described above remaining in effect and unchanged.
(A) GATT ARTICLE ⅩⅩⅢ AND THE CONCEPT OF NULLIFICATION AND IMPAIRMENT
As in the case of the GATT dispute settlement system, the wording and structure of GATT Article ⅩⅩⅢ play an important role in the WTO system. The other WTO agreements either expressly incorporate Article ⅩⅩⅢ as the standard for dispute settlement or contain a provision very similar to it. In addition, DSU Article 3.1 provides: “Members affirm their adherence to the principles for the management of disputes heretofore applied under Article ⅩⅩⅢ and ⅩⅩⅢ of GATT 1947.”
A careful look at Article ⅩⅩⅢ reveals a number of troublesome and peculiar characteristics. In fact (as one of the authors has written elsewhere), the draftsmen of the General Agreement had at least three objectives in mind for Article ⅩⅩⅢ, and it is not likely that those objectives are consistent one with another. The first objective was that Article ⅩⅩⅢ (a general provision on consultations) and ⅩⅩⅢ were to be the framework of a dispute settlement procedure, stressing the general obligation to consult on any matter relating to GATT. The second objective was that Article ⅩⅩⅢ would play an important role in obtaining compliance with the GATT obligations. The customary international law analogy of retorsion was used. A third goal for these provisions of GATT was to establish a means of ensuring continued “reciprocity and balance of concessions” in the face of changing circumstances. This third goal is more in the nature of an “escape clause” or “changed circumstances” provision.
The structure of Article ⅩⅩⅢ is complex. In order to prevail under the terms of Article ⅩⅩⅢ, a complainant must show that either
(1) benefits accruing to it under the General Agreement are being nullified or impaired: or
(2) the attainment of an objective of the General Agreement is being impeded.
GATT disputes have virtually always turned on whether benefits have been nullified or impaired, with the result that the meaning of the second quoted phrase is unclear.
In addition, the complainant must show that such nullification or impairment (or impedance of objective) is a result of;
(1) a breach of obligation by the respondent contracting party;
(2) the application of any measure by the respondent contracting party, whether it conflicts with the General Agreement or not; or
(3) the existence of any other situation.
Under the language of Article ⅩⅩⅢ, as traditionally interpreted, a violation of the General Agreement was by itself neither sufficient nor necessary to entitle a party to relief. Over time, however, more emphasis in the dispute settlement process has been placed on whether a violation of th General Agreement has been shown.
For example, in 1962, Uruguay brought an Article ⅩⅩⅢ complaint against a broad range of trade restrictions it alleged were maintained by 15 industrialized GATT parties. In deciding how it would handle the complaint, the panel noted the following.
In cases where there is a clear infringement of the provisions of the General Agreement, or in other words, where measures are applied in conflict with the provisions of GATT and are not permitted under the terms of the relevant protocol under which the GATT is applied by the contracting party, the action would, ''prima facie'', constitute a case of nullification or impairment and would ipso facto require consideration of whether the circumstances are serious enough to justify the authorization of suspension of concessions.
The ''prima facie'' concept was also applied in situations involving quotas or domestic subsidies on products subject to agreed upon tariff limitations (i.e., tariffs bound under Article Ⅱ, see Section 8.2 infra).
In this section, we examine how the concept of nullification or impairment is treated in the DSU and WTO cases. Since the rules and the cases differentiate between cases based on Article ⅩⅩⅢ:1(a)-claims that a party failed to “carry out its obligations” (violation cases) and (2) those based on Article ⅩⅩⅢ(b)-claims involving no alleged violation (nonviolation cases), we will consider first dispute settlement rules particularly relevant to violation cases and then those applied to nonviolation cases.
(1) Nullification or Impairment in Violation Cases
By far the most common claim raised in GATT and WTO dispute settlement is that on party has violated its GATT / WTO obligations. The evolution of the nullification or impairment concept in violation cases (see below for discussion of non-violation cases) is quite interesting. As noted above, Article ⅩⅩⅢ, by its terms, in a violation case, requires both a violation (“failure *** to carry out its obligations”) and that a “benefit accruing to [the complaining party] directly or indirectly under the Agreement is being nullified or impaired.” In early violation cases, the panel turned to the issue of nullification or impairment after finding a GATT violation. For example, in Italian Discrimination Against Imported Agricultural Machinery, see Section 12.2 infra, the panel noted that it “considered whether [the violation] had caused injury to the United Kingdom’s commercial interests, and whether such an injury represented an impairment of benefits.” But in the Uruguayan case, as noted above, the concept of ‘prima facie’ nullification or impairment was introduced.
UNITED STATES – TAXES ON PETROLEUM AND CERTAIN IMPORTED SUBSTANCES
[Certain U.S. legislation, known as the Superfund Act, deals with the cleanup of hazardous waste sites. The Act imposed a tax of 8.2 cents per barrel on domestic crude oil received at a U.S. refinery and a tax of 11.7 cents per barrel for petroleum products entered into the U.S for consumption, use or warehousing. It was effectively conceded by the U.S. that the tax violated the national treatment requirement of GATT Article ⅩⅩⅢ:2/ Instead, the main U.S. contention was that] the tax differential was so small that its trade effects were minimal or nil and that tax differential – whether it conformed to Article ⅩⅩⅢ:2, first sentence, or not – did not nullify or impair benefits accruing to Canada, the EEC and Mexico under the General Agreement. Canada, the EEC and Mexico considered this defence to be neither legally valid nor factually correct.
5.1.3 Under Article ⅩⅩⅢ of the General Agreement contracting parties may bring complaints, inter alia, if they consider that benefits accruing to them under that Agreement are nullified or impaired. According to established GATT practice, described in the Annex to the 1979 Understanding on dispute settlement, “where there is an infringement of the obligations assumed under the General Agreement, the action is considered ‘prima facie’ to constitute a case of nullification or impairment” The question raised by the case before the Panel is whether the presumption that a measure inconsistent with the General Agreement causes a nullification or impairment of benefits accruing under that Agreement is an absolute or a rebuttable presumption and, if rebuttable, whether a demonstration that a measure inconsistent with Article ⅩⅩⅢ:2, first sentence, has no or insignificant effects on trade is a sufficient rebuttal.
5.1.6 The Panel examined how the CONTRACTING PARTIES have reacted in previous cases to claims that a measure inconsistent with the General Agreement had no adverse impact and therefore did not nullify or impair benefits accruing under the General Agreement to the contracting party that had brought the complaint. The panel noted such claims had been made in a number of cases but that there was no case in the history of the GATT in which a contracting party had successfully rebutted the presumption that a measure infringing obligations causes nullification and impairment.
5.1.7 The Panel concluded from its review of the above and other cases that, while the CONTACTING PARTIES had not explicitly decided whether the presumption that illegal measures cause nullification or impairment could be rebutted, the presumption had in practice operated as an irrefutable presumption.
5.1.8 The Panel then examined whether – even assuming that the presumption could be regarded as rebuttable in the present case – a demonstration that the trade effects of the tax differential were insignificant would constitute a proof that the benefits accruing to Canada, the EEC and Mexico under Article ⅩⅩⅢ:2 first sentence, had not been nullified or impaired.
5.1.9 An acceptance of the argument that measures which have only an insignificant effec
0/5000
section 7.4 critical issues in WTO dispute settlement
In this section, we will consider a number of critical issues that have arisen in respect of WTO dispute settlement. We have had to be quite selective in choosing these issues, as the subject of WTO dispute settlement could probably now support a course by it self. The seven issues we will examine are (1) the concept of nullification or impairment in GATT Article ⅩⅩⅢ, both in violation and non-violation cases, (2) the appropriate standard of review to be applied by panels to government measures, (3) implementation procedures, (4) the problem of providing for effective remedies, (5) resolving conflicts of norms within th WTO system and between th WTO and other international legal systems, (6) transparency and participation by non-members: (7) the problem of unilateralism and th DSU, and (8) the special problems of developing countries.
some of these issues were considered in a review of the operation of th DSU that was undertaken in 1998-1999, pursuant to a ministerial decision in the Uruguay-Round. Although many proposals and comments were mad in the review process, it appeared that in the main WTO members were generally satisfied with the operation of the dispute settlement system. In any event, no agreement was reached on implementing changes and the review ended with the system described above remaining in effect and unchanged.
(A) GATT ARTICLE ⅩⅩⅢ AND THE CONCEPT OF NULLIFICATION AND IMPAIRMENT
As in the case of the GATT dispute settlement system, the wording and structure of GATT Article ⅩⅩⅢ play an important role in the WTO system. The other WTO agreements either expressly incorporate Article ⅩⅩⅢ as the standard for dispute settlement or contain a provision very similar to it. In addition, DSU Article 3.1 provides: “Members affirm their adherence to the principles for the management of disputes heretofore applied under Article ⅩⅩⅢ and ⅩⅩⅢ of GATT 1947.”
A careful look at Article ⅩⅩⅢ reveals a number of troublesome and peculiar characteristics. In fact (as one of the authors has written elsewhere), the draftsmen of the General Agreement had at least three objectives in mind for Article ⅩⅩⅢ, and it is not likely that those objectives are consistent one with another. The first objective was that Article ⅩⅩⅢ (a general provision on consultations) and ⅩⅩⅢ were to be the framework of a dispute settlement procedure, stressing the general obligation to consult on any matter relating to GATT. The second objective was that Article ⅩⅩⅢ would play an important role in obtaining compliance with the GATT obligations. The customary international law analogy of retorsion was used. A third goal for these provisions of GATT was to establish a means of ensuring continued “reciprocity and balance of concessions” in the face of changing circumstances. This third goal is more in the nature of an “escape clause” or “changed circumstances” provision.
The structure of Article ⅩⅩⅢ is complex. In order to prevail under the terms of Article ⅩⅩⅢ, a complainant must show that either
(1) benefits accruing to it under the General Agreement are being nullified or impaired: or
(2) the attainment of an objective of the General Agreement is being impeded.
GATT disputes have virtually always turned on whether benefits have been nullified or impaired, with the result that the meaning of the second quoted phrase is unclear.
In addition, the complainant must show that such nullification or impairment (or impedance of objective) is a result of;
(1) a breach of obligation by the respondent contracting party;
(2) the application of any measure by the respondent contracting party, whether it conflicts with the General Agreement or not; or
(3) the existence of any other situation.
Under the language of Article ⅩⅩⅢ, as traditionally interpreted, a violation of the General Agreement was by itself neither sufficient nor necessary to entitle a party to relief. Over time, however, more emphasis in the dispute settlement process has been placed on whether a violation of th General Agreement has been shown.
For example, in 1962, Uruguay brought an Article ⅩⅩⅢ complaint against a broad range of trade restrictions it alleged were maintained by 15 industrialized GATT parties. In deciding how it would handle the complaint, the panel noted the following.
In cases where there is a clear infringement of the provisions of the General Agreement, or in other words, where measures are applied in conflict with the provisions of GATT and are not permitted under the terms of the relevant protocol under which the GATT is applied by the contracting party, the action would, ''prima facie'', constitute a case of nullification or impairment and would ipso facto require consideration of whether the circumstances are serious enough to justify the authorization of suspension of concessions.
The ''prima facie'' concept was also applied in situations involving quotas or domestic subsidies on products subject to agreed upon tariff limitations (i.e., tariffs bound under Article Ⅱ, see Section 8.2 infra).
In this section, we examine how the concept of nullification or impairment is treated in the DSU and WTO cases. Since the rules and the cases differentiate between cases based on Article ⅩⅩⅢ:1(a)-claims that a party failed to “carry out its obligations” (violation cases) and (2) those based on Article ⅩⅩⅢ(b)-claims involving no alleged violation (nonviolation cases), we will consider first dispute settlement rules particularly relevant to violation cases and then those applied to nonviolation cases.
(1) Nullification or Impairment in Violation Cases
By far the most common claim raised in GATT and WTO dispute settlement is that on party has violated its GATT / WTO obligations. The evolution of the nullification or impairment concept in violation cases (see below for discussion of non-violation cases) is quite interesting. As noted above, Article ⅩⅩⅢ, by its terms, in a violation case, requires both a violation (“failure *** to carry out its obligations”) and that a “benefit accruing to [the complaining party] directly or indirectly under the Agreement is being nullified or impaired.” In early violation cases, the panel turned to the issue of nullification or impairment after finding a GATT violation. For example, in Italian Discrimination Against Imported Agricultural Machinery, see Section 12.2 infra, the panel noted that it “considered whether [the violation] had caused injury to the United Kingdom’s commercial interests, and whether such an injury represented an impairment of benefits.” But in the Uruguayan case, as noted above, the concept of ‘prima facie’ nullification or impairment was introduced.
UNITED STATES – TAXES ON PETROLEUM AND CERTAIN IMPORTED SUBSTANCES
[Certain U.S. legislation, known as the Superfund Act, deals with the cleanup of hazardous waste sites. The Act imposed a tax of 8.2 cents per barrel on domestic crude oil received at a U.S. refinery and a tax of 11.7 cents per barrel for petroleum products entered into the U.S for consumption, use or warehousing. It was effectively conceded by the U.S. that the tax violated the national treatment requirement of GATT Article ⅩⅩⅢ:2/ Instead, the main U.S. contention was that] the tax differential was so small that its trade effects were minimal or nil and that tax differential – whether it conformed to Article ⅩⅩⅢ:2, first sentence, or not – did not nullify or impair benefits accruing to Canada, the EEC and Mexico under the General Agreement. Canada, the EEC and Mexico considered this defence to be neither legally valid nor factually correct.
5.1.3 Under Article ⅩⅩⅢ of the General Agreement contracting parties may bring complaints, inter alia, if they consider that benefits accruing to them under that Agreement are nullified or impaired. According to established GATT practice, described in the Annex to the 1979 Understanding on dispute settlement, “where there is an infringement of the obligations assumed under the General Agreement, the action is considered ‘prima facie’ to constitute a case of nullification or impairment” The question raised by the case before the Panel is whether the presumption that a measure inconsistent with the General Agreement causes a nullification or impairment of benefits accruing under that Agreement is an absolute or a rebuttable presumption and, if rebuttable, whether a demonstration that a measure inconsistent with Article ⅩⅩⅢ:2, first sentence, has no or insignificant effects on trade is a sufficient rebuttal.
5.1.6 The Panel examined how the CONTRACTING PARTIES have reacted in previous cases to claims that a measure inconsistent with the General Agreement had no adverse impact and therefore did not nullify or impair benefits accruing under the General Agreement to the contracting party that had brought the complaint. The panel noted such claims had been made in a number of cases but that there was no case in the history of the GATT in which a contracting party had successfully rebutted the presumption that a measure infringing obligations causes nullification and impairment.
5.1.7 The Panel concluded from its review of the above and other cases that, while the CONTACTING PARTIES had not explicitly decided whether the presumption that illegal measures cause nullification or impairment could be rebutted, the presumption had in practice operated as an irrefutable presumption.
5.1.8 The Panel then examined whether – even assuming that the presumption could be regarded as rebuttable in the present case – a demonstration that the trade effects of the tax differential were insignificant would constitute a proof that the benefits accruing to Canada, the EEC and Mexico under Article ⅩⅩⅢ:2 first sentence, had not been nullified or impaired.
5.1.9 An acceptance of the argument that measures which have only an insignificant effec
In this section, we will consider a number of critical issues that have arisen in respect of WTO dispute settlement. We have had to be quite selective in choosing these issues, as the subject of WTO dispute settlement could probably now support a course by it self. The seven issues we will examine are (1) the concept of nullification or impairment in GATT Article ⅩⅩⅢ, both in violation and non-violation cases, (2) the appropriate standard of review to be applied by panels to government measures, (3) implementation procedures, (4) the problem of providing for effective remedies, (5) resolving conflicts of norms within th WTO system and between th WTO and other international legal systems, (6) transparency and participation by non-members: (7) the problem of unilateralism and th DSU, and (8) the special problems of developing countries.
some of these issues were considered in a review of the operation of th DSU that was undertaken in 1998-1999, pursuant to a ministerial decision in the Uruguay-Round. Although many proposals and comments were mad in the review process, it appeared that in the main WTO members were generally satisfied with the operation of the dispute settlement system. In any event, no agreement was reached on implementing changes and the review ended with the system described above remaining in effect and unchanged.
(A) GATT ARTICLE ⅩⅩⅢ AND THE CONCEPT OF NULLIFICATION AND IMPAIRMENT
As in the case of the GATT dispute settlement system, the wording and structure of GATT Article ⅩⅩⅢ play an important role in the WTO system. The other WTO agreements either expressly incorporate Article ⅩⅩⅢ as the standard for dispute settlement or contain a provision very similar to it. In addition, DSU Article 3.1 provides: “Members affirm their adherence to the principles for the management of disputes heretofore applied under Article ⅩⅩⅢ and ⅩⅩⅢ of GATT 1947.”
A careful look at Article ⅩⅩⅢ reveals a number of troublesome and peculiar characteristics. In fact (as one of the authors has written elsewhere), the draftsmen of the General Agreement had at least three objectives in mind for Article ⅩⅩⅢ, and it is not likely that those objectives are consistent one with another. The first objective was that Article ⅩⅩⅢ (a general provision on consultations) and ⅩⅩⅢ were to be the framework of a dispute settlement procedure, stressing the general obligation to consult on any matter relating to GATT. The second objective was that Article ⅩⅩⅢ would play an important role in obtaining compliance with the GATT obligations. The customary international law analogy of retorsion was used. A third goal for these provisions of GATT was to establish a means of ensuring continued “reciprocity and balance of concessions” in the face of changing circumstances. This third goal is more in the nature of an “escape clause” or “changed circumstances” provision.
The structure of Article ⅩⅩⅢ is complex. In order to prevail under the terms of Article ⅩⅩⅢ, a complainant must show that either
(1) benefits accruing to it under the General Agreement are being nullified or impaired: or
(2) the attainment of an objective of the General Agreement is being impeded.
GATT disputes have virtually always turned on whether benefits have been nullified or impaired, with the result that the meaning of the second quoted phrase is unclear.
In addition, the complainant must show that such nullification or impairment (or impedance of objective) is a result of;
(1) a breach of obligation by the respondent contracting party;
(2) the application of any measure by the respondent contracting party, whether it conflicts with the General Agreement or not; or
(3) the existence of any other situation.
Under the language of Article ⅩⅩⅢ, as traditionally interpreted, a violation of the General Agreement was by itself neither sufficient nor necessary to entitle a party to relief. Over time, however, more emphasis in the dispute settlement process has been placed on whether a violation of th General Agreement has been shown.
For example, in 1962, Uruguay brought an Article ⅩⅩⅢ complaint against a broad range of trade restrictions it alleged were maintained by 15 industrialized GATT parties. In deciding how it would handle the complaint, the panel noted the following.
In cases where there is a clear infringement of the provisions of the General Agreement, or in other words, where measures are applied in conflict with the provisions of GATT and are not permitted under the terms of the relevant protocol under which the GATT is applied by the contracting party, the action would, ''prima facie'', constitute a case of nullification or impairment and would ipso facto require consideration of whether the circumstances are serious enough to justify the authorization of suspension of concessions.
The ''prima facie'' concept was also applied in situations involving quotas or domestic subsidies on products subject to agreed upon tariff limitations (i.e., tariffs bound under Article Ⅱ, see Section 8.2 infra).
In this section, we examine how the concept of nullification or impairment is treated in the DSU and WTO cases. Since the rules and the cases differentiate between cases based on Article ⅩⅩⅢ:1(a)-claims that a party failed to “carry out its obligations” (violation cases) and (2) those based on Article ⅩⅩⅢ(b)-claims involving no alleged violation (nonviolation cases), we will consider first dispute settlement rules particularly relevant to violation cases and then those applied to nonviolation cases.
(1) Nullification or Impairment in Violation Cases
By far the most common claim raised in GATT and WTO dispute settlement is that on party has violated its GATT / WTO obligations. The evolution of the nullification or impairment concept in violation cases (see below for discussion of non-violation cases) is quite interesting. As noted above, Article ⅩⅩⅢ, by its terms, in a violation case, requires both a violation (“failure *** to carry out its obligations”) and that a “benefit accruing to [the complaining party] directly or indirectly under the Agreement is being nullified or impaired.” In early violation cases, the panel turned to the issue of nullification or impairment after finding a GATT violation. For example, in Italian Discrimination Against Imported Agricultural Machinery, see Section 12.2 infra, the panel noted that it “considered whether [the violation] had caused injury to the United Kingdom’s commercial interests, and whether such an injury represented an impairment of benefits.” But in the Uruguayan case, as noted above, the concept of ‘prima facie’ nullification or impairment was introduced.
UNITED STATES – TAXES ON PETROLEUM AND CERTAIN IMPORTED SUBSTANCES
[Certain U.S. legislation, known as the Superfund Act, deals with the cleanup of hazardous waste sites. The Act imposed a tax of 8.2 cents per barrel on domestic crude oil received at a U.S. refinery and a tax of 11.7 cents per barrel for petroleum products entered into the U.S for consumption, use or warehousing. It was effectively conceded by the U.S. that the tax violated the national treatment requirement of GATT Article ⅩⅩⅢ:2/ Instead, the main U.S. contention was that] the tax differential was so small that its trade effects were minimal or nil and that tax differential – whether it conformed to Article ⅩⅩⅢ:2, first sentence, or not – did not nullify or impair benefits accruing to Canada, the EEC and Mexico under the General Agreement. Canada, the EEC and Mexico considered this defence to be neither legally valid nor factually correct.
5.1.3 Under Article ⅩⅩⅢ of the General Agreement contracting parties may bring complaints, inter alia, if they consider that benefits accruing to them under that Agreement are nullified or impaired. According to established GATT practice, described in the Annex to the 1979 Understanding on dispute settlement, “where there is an infringement of the obligations assumed under the General Agreement, the action is considered ‘prima facie’ to constitute a case of nullification or impairment” The question raised by the case before the Panel is whether the presumption that a measure inconsistent with the General Agreement causes a nullification or impairment of benefits accruing under that Agreement is an absolute or a rebuttable presumption and, if rebuttable, whether a demonstration that a measure inconsistent with Article ⅩⅩⅢ:2, first sentence, has no or insignificant effects on trade is a sufficient rebuttal.
5.1.6 The Panel examined how the CONTRACTING PARTIES have reacted in previous cases to claims that a measure inconsistent with the General Agreement had no adverse impact and therefore did not nullify or impair benefits accruing under the General Agreement to the contracting party that had brought the complaint. The panel noted such claims had been made in a number of cases but that there was no case in the history of the GATT in which a contracting party had successfully rebutted the presumption that a measure infringing obligations causes nullification and impairment.
5.1.7 The Panel concluded from its review of the above and other cases that, while the CONTACTING PARTIES had not explicitly decided whether the presumption that illegal measures cause nullification or impairment could be rebutted, the presumption had in practice operated as an irrefutable presumption.
5.1.8 The Panel then examined whether – even assuming that the presumption could be regarded as rebuttable in the present case – a demonstration that the trade effects of the tax differential were insignificant would constitute a proof that the benefits accruing to Canada, the EEC and Mexico under Article ⅩⅩⅢ:2 first sentence, had not been nullified or impaired.
5.1.9 An acceptance of the argument that measures which have only an insignificant effec
번역되고, 잠시 기다려주십시오..
section 7.4 critical issues in WTO dispute settlement
In this section, we will consider a number of critical issues that have arisen in respect of WTO dispute settlement. We have had to be quite selective in choosing these issues, as the subject of WTO dispute settlement could probably now support a course by it self. The seven issues we will examine are (1) the concept of nullification or impairment in GATT Article ⅩⅩⅢ, both in violation and non-violation cases, (2) the appropriate standard of review to be applied by panels to government measures, (3) implementation procedures, (4) the problem of providing for effective remedies, (5) resolving conflicts of norms within th WTO system and between th WTO and other international legal systems, (6) transparency and participation by non-members: (7) the problem of unilateralism and th DSU, and (8) the special problems of developing countries.
some of these issues were considered in a review of the operation of th DSU that was undertaken in 1998-1999, pursuant to a ministerial decision in the Uruguay-Round. Although many proposals and comments were mad in the review process, it appeared that in the main WTO members were generally satisfied with the operation of the dispute settlement system. In any event, no agreement was reached on implementing changes and the review ended with the system described above remaining in effect and unchanged.
(A) GATT ARTICLE ⅩⅩⅢ AND THE CONCEPT OF NULLIFICATION AND IMPAIRMENT
As in the case of the GATT dispute settlement system, the wording and structure of GATT Article ⅩⅩⅢ play an important role in the WTO system. The other WTO agreements either expressly incorporate Article ⅩⅩⅢ as the standard for dispute settlement or contain a provision very similar to it. In addition, DSU Article 3.1 provides: “Members affirm their adherence to the principles for the management of disputes heretofore applied under Article ⅩⅩⅢ and ⅩⅩⅢ of GATT 1947.”
A careful look at Article ⅩⅩⅢ reveals a number of troublesome and peculiar characteristics. In fact (as one of the authors has written elsewhere), the draftsmen of the General Agreement had at least three objectives in mind for Article ⅩⅩⅢ, and it is not likely that those objectives are consistent one with another. The first objective was that Article ⅩⅩⅢ (a general provision on consultations) and ⅩⅩⅢ were to be the framework of a dispute settlement procedure, stressing the general obligation to consult on any matter relating to GATT. The second objective was that Article ⅩⅩⅢ would play an important role in obtaining compliance with the GATT obligations. The customary international law analogy of retorsion was used. A third goal for these provisions of GATT was to establish a means of ensuring continued “reciprocity and balance of concessions” in the face of changing circumstances. This third goal is more in the nature of an “escape clause” or “changed circumstances” provision.
The structure of Article ⅩⅩⅢ is complex. In order to prevail under the terms of Article ⅩⅩⅢ, a complainant must show that either
(1) benefits accruing to it under the General Agreement are being nullified or impaired: or
(2) the attainment of an objective of the General Agreement is being impeded.
GATT disputes have virtually always turned on whether benefits have been nullified or impaired, with the result that the meaning of the second quoted phrase is unclear.
In addition, the complainant must show that such nullification or impairment (or impedance of objective) is a result of;
(1) a breach of obligation by the respondent contracting party;
(2) the application of any measure by the respondent contracting party, whether it conflicts with the General Agreement or not; or
(3) the existence of any other situation.
Under the language of Article ⅩⅩⅢ, as traditionally interpreted, a violation of the General Agreement was by itself neither sufficient nor necessary to entitle a party to relief. Over time, however, more emphasis in the dispute settlement process has been placed on whether a violation of th General Agreement has been shown.
For example, in 1962, Uruguay brought an Article ⅩⅩⅢ complaint against a broad range of trade restrictions it alleged were maintained by 15 industrialized GATT parties. In deciding how it would handle the complaint, the panel noted the following.
In cases where there is a clear infringement of the provisions of the General Agreement, or in other words, where measures are applied in conflict with the provisions of GATT and are not permitted under the terms of the relevant protocol under which the GATT is applied by the contracting party, the action would, ''prima facie'', constitute a case of nullification or impairment and would ipso facto require consideration of whether the circumstances are serious enough to justify the authorization of suspension of concessions.
The ''prima facie'' concept was also applied in situations involving quotas or domestic subsidies on products subject to agreed upon tariff limitations (i.e., tariffs bound under Article Ⅱ, see Section 8.2 infra).
In this section, we examine how the concept of nullification or impairment is treated in the DSU and WTO cases. Since the rules and the cases differentiate between cases based on Article ⅩⅩⅢ:1(a)-claims that a party failed to “carry out its obligations” (violation cases) and (2) those based on Article ⅩⅩⅢ(b)-claims involving no alleged violation (nonviolation cases), we will consider first dispute settlement rules particularly relevant to violation cases and then those applied to nonviolation cases.
(1) Nullification or Impairment in Violation Cases
By far the most common claim raised in GATT and WTO dispute settlement is that on party has violated its GATT / WTO obligations. The evolution of the nullification or impairment concept in violation cases (see below for discussion of non-violation cases) is quite interesting. As noted above, Article ⅩⅩⅢ, by its terms, in a violation case, requires both a violation (“failure *** to carry out its obligations”) and that a “benefit accruing to [the complaining party] directly or indirectly under the Agreement is being nullified or impaired.” In early violation cases, the panel turned to the issue of nullification or impairment after finding a GATT violation. For example, in Italian Discrimination Against Imported Agricultural Machinery, see Section 12.2 infra, the panel noted that it “considered whether [the violation] had caused injury to the United Kingdom’s commercial interests, and whether such an injury represented an impairment of benefits.” But in the Uruguayan case, as noted above, the concept of ‘prima facie’ nullification or impairment was introduced.
UNITED STATES – TAXES ON PETROLEUM AND CERTAIN IMPORTED SUBSTANCES
[Certain U.S. legislation, known as the Superfund Act, deals with the cleanup of hazardous waste sites. The Act imposed a tax of 8.2 cents per barrel on domestic crude oil received at a U.S. refinery and a tax of 11.7 cents per barrel for petroleum products entered into the U.S for consumption, use or warehousing. It was effectively conceded by the U.S. that the tax violated the national treatment requirement of GATT Article ⅩⅩⅢ:2/ Instead, the main U.S. contention was that] the tax differential was so small that its trade effects were minimal or nil and that tax differential – whether it conformed to Article ⅩⅩⅢ:2, first sentence, or not – did not nullify or impair benefits accruing to Canada, the EEC and Mexico under the General Agreement. Canada, the EEC and Mexico considered this defence to be neither legally valid nor factually correct.
5.1.3 Under Article ⅩⅩⅢ of the General Agreement contracting parties may bring complaints, inter alia, if they consider that benefits accruing to them under that Agreement are nullified or impaired. According to established GATT practice, described in the Annex to the 1979 Understanding on dispute settlement, “where there is an infringement of the obligations assumed under the General Agreement, the action is considered ‘prima facie’ to constitute a case of nullification or impairment” The question raised by the case before the Panel is whether the presumption that a measure inconsistent with the General Agreement causes a nullification or impairment of benefits accruing under that Agreement is an absolute or a rebuttable presumption and, if rebuttable, whether a demonstration that a measure inconsistent with Article ⅩⅩⅢ:2, first sentence, has no or insignificant effects on trade is a sufficient rebuttal.
5.1.6 The Panel examined how the CONTRACTING PARTIES have reacted in previous cases to claims that a measure inconsistent with the General Agreement had no adverse impact and therefore did not nullify or impair benefits accruing under the General Agreement to the contracting party that had brought the complaint. The panel noted such claims had been made in a number of cases but that there was no case in the history of the GATT in which a contracting party had successfully rebutted the presumption that a measure infringing obligations causes nullification and impairment.
5.1.7 The Panel concluded from its review of the above and other cases that, while the CONTACTING PARTIES had not explicitly decided whether the presumption that illegal measures cause nullification or impairment could be rebutted, the presumption had in practice operated as an irrefutable presumption.
5.1.8 The Panel then examined whether – even assuming that the presumption could be regarded as rebuttable in the present case – a demonstration that the trade effects of the tax differential were insignificant would constitute a proof that the benefits accruing to Canada, the EEC and Mexico under Article ⅩⅩⅢ:2 first sentence, had not been nullified or impaired.
5.1.9 An acceptance of the argument that measures which have only an insignificant effec
In this section, we will consider a number of critical issues that have arisen in respect of WTO dispute settlement. We have had to be quite selective in choosing these issues, as the subject of WTO dispute settlement could probably now support a course by it self. The seven issues we will examine are (1) the concept of nullification or impairment in GATT Article ⅩⅩⅢ, both in violation and non-violation cases, (2) the appropriate standard of review to be applied by panels to government measures, (3) implementation procedures, (4) the problem of providing for effective remedies, (5) resolving conflicts of norms within th WTO system and between th WTO and other international legal systems, (6) transparency and participation by non-members: (7) the problem of unilateralism and th DSU, and (8) the special problems of developing countries.
some of these issues were considered in a review of the operation of th DSU that was undertaken in 1998-1999, pursuant to a ministerial decision in the Uruguay-Round. Although many proposals and comments were mad in the review process, it appeared that in the main WTO members were generally satisfied with the operation of the dispute settlement system. In any event, no agreement was reached on implementing changes and the review ended with the system described above remaining in effect and unchanged.
(A) GATT ARTICLE ⅩⅩⅢ AND THE CONCEPT OF NULLIFICATION AND IMPAIRMENT
As in the case of the GATT dispute settlement system, the wording and structure of GATT Article ⅩⅩⅢ play an important role in the WTO system. The other WTO agreements either expressly incorporate Article ⅩⅩⅢ as the standard for dispute settlement or contain a provision very similar to it. In addition, DSU Article 3.1 provides: “Members affirm their adherence to the principles for the management of disputes heretofore applied under Article ⅩⅩⅢ and ⅩⅩⅢ of GATT 1947.”
A careful look at Article ⅩⅩⅢ reveals a number of troublesome and peculiar characteristics. In fact (as one of the authors has written elsewhere), the draftsmen of the General Agreement had at least three objectives in mind for Article ⅩⅩⅢ, and it is not likely that those objectives are consistent one with another. The first objective was that Article ⅩⅩⅢ (a general provision on consultations) and ⅩⅩⅢ were to be the framework of a dispute settlement procedure, stressing the general obligation to consult on any matter relating to GATT. The second objective was that Article ⅩⅩⅢ would play an important role in obtaining compliance with the GATT obligations. The customary international law analogy of retorsion was used. A third goal for these provisions of GATT was to establish a means of ensuring continued “reciprocity and balance of concessions” in the face of changing circumstances. This third goal is more in the nature of an “escape clause” or “changed circumstances” provision.
The structure of Article ⅩⅩⅢ is complex. In order to prevail under the terms of Article ⅩⅩⅢ, a complainant must show that either
(1) benefits accruing to it under the General Agreement are being nullified or impaired: or
(2) the attainment of an objective of the General Agreement is being impeded.
GATT disputes have virtually always turned on whether benefits have been nullified or impaired, with the result that the meaning of the second quoted phrase is unclear.
In addition, the complainant must show that such nullification or impairment (or impedance of objective) is a result of;
(1) a breach of obligation by the respondent contracting party;
(2) the application of any measure by the respondent contracting party, whether it conflicts with the General Agreement or not; or
(3) the existence of any other situation.
Under the language of Article ⅩⅩⅢ, as traditionally interpreted, a violation of the General Agreement was by itself neither sufficient nor necessary to entitle a party to relief. Over time, however, more emphasis in the dispute settlement process has been placed on whether a violation of th General Agreement has been shown.
For example, in 1962, Uruguay brought an Article ⅩⅩⅢ complaint against a broad range of trade restrictions it alleged were maintained by 15 industrialized GATT parties. In deciding how it would handle the complaint, the panel noted the following.
In cases where there is a clear infringement of the provisions of the General Agreement, or in other words, where measures are applied in conflict with the provisions of GATT and are not permitted under the terms of the relevant protocol under which the GATT is applied by the contracting party, the action would, ''prima facie'', constitute a case of nullification or impairment and would ipso facto require consideration of whether the circumstances are serious enough to justify the authorization of suspension of concessions.
The ''prima facie'' concept was also applied in situations involving quotas or domestic subsidies on products subject to agreed upon tariff limitations (i.e., tariffs bound under Article Ⅱ, see Section 8.2 infra).
In this section, we examine how the concept of nullification or impairment is treated in the DSU and WTO cases. Since the rules and the cases differentiate between cases based on Article ⅩⅩⅢ:1(a)-claims that a party failed to “carry out its obligations” (violation cases) and (2) those based on Article ⅩⅩⅢ(b)-claims involving no alleged violation (nonviolation cases), we will consider first dispute settlement rules particularly relevant to violation cases and then those applied to nonviolation cases.
(1) Nullification or Impairment in Violation Cases
By far the most common claim raised in GATT and WTO dispute settlement is that on party has violated its GATT / WTO obligations. The evolution of the nullification or impairment concept in violation cases (see below for discussion of non-violation cases) is quite interesting. As noted above, Article ⅩⅩⅢ, by its terms, in a violation case, requires both a violation (“failure *** to carry out its obligations”) and that a “benefit accruing to [the complaining party] directly or indirectly under the Agreement is being nullified or impaired.” In early violation cases, the panel turned to the issue of nullification or impairment after finding a GATT violation. For example, in Italian Discrimination Against Imported Agricultural Machinery, see Section 12.2 infra, the panel noted that it “considered whether [the violation] had caused injury to the United Kingdom’s commercial interests, and whether such an injury represented an impairment of benefits.” But in the Uruguayan case, as noted above, the concept of ‘prima facie’ nullification or impairment was introduced.
UNITED STATES – TAXES ON PETROLEUM AND CERTAIN IMPORTED SUBSTANCES
[Certain U.S. legislation, known as the Superfund Act, deals with the cleanup of hazardous waste sites. The Act imposed a tax of 8.2 cents per barrel on domestic crude oil received at a U.S. refinery and a tax of 11.7 cents per barrel for petroleum products entered into the U.S for consumption, use or warehousing. It was effectively conceded by the U.S. that the tax violated the national treatment requirement of GATT Article ⅩⅩⅢ:2/ Instead, the main U.S. contention was that] the tax differential was so small that its trade effects were minimal or nil and that tax differential – whether it conformed to Article ⅩⅩⅢ:2, first sentence, or not – did not nullify or impair benefits accruing to Canada, the EEC and Mexico under the General Agreement. Canada, the EEC and Mexico considered this defence to be neither legally valid nor factually correct.
5.1.3 Under Article ⅩⅩⅢ of the General Agreement contracting parties may bring complaints, inter alia, if they consider that benefits accruing to them under that Agreement are nullified or impaired. According to established GATT practice, described in the Annex to the 1979 Understanding on dispute settlement, “where there is an infringement of the obligations assumed under the General Agreement, the action is considered ‘prima facie’ to constitute a case of nullification or impairment” The question raised by the case before the Panel is whether the presumption that a measure inconsistent with the General Agreement causes a nullification or impairment of benefits accruing under that Agreement is an absolute or a rebuttable presumption and, if rebuttable, whether a demonstration that a measure inconsistent with Article ⅩⅩⅢ:2, first sentence, has no or insignificant effects on trade is a sufficient rebuttal.
5.1.6 The Panel examined how the CONTRACTING PARTIES have reacted in previous cases to claims that a measure inconsistent with the General Agreement had no adverse impact and therefore did not nullify or impair benefits accruing under the General Agreement to the contracting party that had brought the complaint. The panel noted such claims had been made in a number of cases but that there was no case in the history of the GATT in which a contracting party had successfully rebutted the presumption that a measure infringing obligations causes nullification and impairment.
5.1.7 The Panel concluded from its review of the above and other cases that, while the CONTACTING PARTIES had not explicitly decided whether the presumption that illegal measures cause nullification or impairment could be rebutted, the presumption had in practice operated as an irrefutable presumption.
5.1.8 The Panel then examined whether – even assuming that the presumption could be regarded as rebuttable in the present case – a demonstration that the trade effects of the tax differential were insignificant would constitute a proof that the benefits accruing to Canada, the EEC and Mexico under Article ⅩⅩⅢ:2 first sentence, had not been nullified or impaired.
5.1.9 An acceptance of the argument that measures which have only an insignificant effec
번역되고, 잠시 기다려주십시오..
세계무역기구(wto)의 섹션 7.4 중요한 문제 해결 분쟁
이 섹션에서 우리는 WTO 분쟁조정에 벌써부터 신경전을 벌이고 있는 중요한 문제의 수를 고려할 것이다. 우리가 매우 선택적 이러한 문제 선택에 있었다, WTO 분쟁조정의 대상은 아마도 이제는 물론 자체 지원이 될 수 있는 대로.검토하는 일곱 문제(1) 파기 또는 장애의 개념 문서 ⅩⅩⅢ협정(gatt에 위반하고 모두 비 위반 경우, (2) 패널로 대책에 적용할 검토의 적절한 표준, (3) 구현 절차, (4) 효과적인 구제를 제공하는 문제,(5) 충돌 해결의 규범 내에서일 세계무역기구(wto) 체제 및 사이일 WTO 및 기타 국제 법률 시스템, (6) 투명성과 참여 등으로 비 회원: (7) 문제의 일방주의와일dsu, (8) 특별한 문제 개도국.
일부의 이러한 문제들이 있는 것으로 검토 작업의일dsu는 수행에 1998-1999,장관급 결정에 의거한 uruguay-round. 많은 제안과 의견 미친 검토 과정에 있으나 주요 WTO에 멤버는 일반적으로 분쟁조정 시스템의 작동을 만족을 느낄 수 없었음이 나타났다. 어떠한 경우에도 계약 변경을 구현에 도달 및 검토 위에서 설명한 시스템 효과에 남은 변경하지 않은 채로 끝나
.(a)gatt 문서 ⅩⅩⅢ 정당공천제 및 개념과 장애
협정(gatt 분쟁조정 시스템의 경우와 같이,gatt 문서 ⅩⅩⅢ의 표현과 구조가 세계무역기구(wto) 체제에서 중요한 역할을 합니다. 다른 WTO 협약 명시적 문서 ⅩⅩⅢ 분쟁조정에 대한 표준으로 채택한 또는 매우 유사한 조항가 포함되어 있습니다. 또한,dsu 3 문서.1 제공: " 멤버 1947 여태까지gatt 제 ⅩⅩⅢ ⅩⅩⅢ에 적용되고 분쟁의 관리 원칙을 준수했는지 확인."
ⅩⅩⅢ 문서을 세심하게 살펴보 귀찮고 특이한 특성 번호 드러내. 사실( 저자들의 하나의 다른 곳에서 작성)일반 계약의 John Mansbridge 최소한 세 개의 목표 마음 제 ⅩⅩⅢ었 이러한 목적에 부합되지 않을 가능성이 높습니다. 첫 번째 목표 문서 ⅩⅩⅢ ( 협의에 대한 일반 규정) 및 ⅩⅩⅢ는 분쟁조정 절차의 Framework을 있는것gatt와 관련된 어떠한 문제 상담에 일반 의무 강조. 두 번째 목표 ⅩⅩⅢ협정(gatt 제 의무를 준수 구하기에 중요한 역할을 할 것이라는 점이었습니다. retorsion의 관습적인 국제법 비유 사용되었습니다.gatt의 이러한 조항에 대한 세번째 골의 양보" 변화하는 상황에 계속 " 상호주의와 균형을 유지하는 수단을 구축하는 것이었습니다. 이 세 번째 목표는 " 빠져나갈 수 있는 조항" 또는 " 달라진 상황" 조항의 본질에 있습니다.
문서 ⅩⅩⅢ의 구조 복잡하다. 주문 문서 ⅩⅩⅢ의 조건에 따라 우세하에서청구인은 반드시 보여는 either
(1) 혜택 적립 아래에 있는 일반 계약 무효되거나 손상된: or
(2) 달성의 목표의 일반적인 견해입니다.
고 방해gatt 분쟁 사실상 거의 항상 켜져 있는지 여부 무효되거나 장애가 있는 경우는 결과의 의미는 두 번째 인용 문구가 불확실.
또한청구인은 무효화 또는 장애(또는 목표의 임피던스)의 결과임을 보여주 must;
(1) 피청구인이 계약자의 의무감에 breach;
(2)가 계약자 응답자가 응용 프로그램를 일반 계약과 충돌나지 않고 또는
(3) 다른 상황의 존재.
문서의 언어에서 ⅩⅩⅢ,전통적으로 해석하면서 협정의 위반도 그 자체로 충분한지도 필요한 파티 구호에 부여하는 것이었습니다. 시간이 지남에 따라 분쟁조정 과정에서 더 많은 강조일 일반 계약의 위반 표시됩니다.
예를 들어, 1962 여부에 배치되었고,우루과이라운드(ur) 15 선진gatt 정당들에 의해 유지되고 있었다 대한 무역 규제의 광범위한 범위에 대한 문서 ⅩⅩⅢ 고소하고. 이 고소장를 어떻게 결정하게 된 패널을 다음과 같은이.
일반 계약 조항의 명확한 침해되는 경우, 또는 다른 말에 명시,조치gatt의 규정과 충돌에도 적용되며gatt가 계약 당사자가 적용되는 관련 프로토콜의 조건에 따라 허용되지 않는 한 동작"은 " 전개해 온 논의,구성은 케이스의 무효화 또는 감액 및 것이다 나서도 필요 여부를 고려의 상황 심각하게 고려하고 있을 만큼 정당화의 허가 서스펜션의 양보.
" 흰공이" 개념이었다에도 적용 상황과 관련된 할당량 또는 국내 보조금에 제품에 합의된 관세 제한(예: 관세 바인딩된 아래서 제 II,
절) 8.2 적외선 이 섹션에서는 폐지 또는 신체 장애의 개념은dsu, 세계무역기구(wto)의 경우 처리되는 방법 검토 참조. 규칙과는 이후 사건 문서를 바탕으로 사례 간의 차별화 ⅩⅩⅢ:1(a)-claims하는 정당하지 못함 " 실시 의무 위반" (건) 및 (2) 기반의 문서들 ⅩⅩⅢ(b)- 주장 것도 국가보안법 위반( nonviolation건) 처음하는 분쟁조정 규칙 특히 관련 위반 사례 및 그 적용에 nonviolation cases.
(1) 폐지 또는 장애의 위반 사례
지금까지gatt와 WTO 분쟁 해결에 나타난 대부분의 일반적인 주장에 여당의 WTO/gatt 의무를 위반한 사례가 있는 것이다. 위반 사례가 정당공천제 폐지의 개념이나 정신적 장애(아래 비 위반 사례에 관한 논의를 위해 참조) 발전은 꽤 흥미롭다. 위에서 언급한 것처럼 ⅩⅩⅢ 문서, 약관의 위반 사례에서와 마찬가지로둘 다(" *** 의무를 수행하지 못하면")는 위반과 당 불평에 직접 또는 간접적으로 계약에 따라 적립이 무효"이익되고 있거나 초." 시각 장애인 인권침해 사례에서 패널 무효화 또는 장애의 문제에 대한gatt 위반 고장진단 후 합니다. 예를 들어,수입 농기계에 대한 이탈리아 차별, 섹션 12.2 적외선, 패널 " 위반] 영국의 상업적 이익에 피해를 준었는지, 같은 혜택의 부상으로는 장애 나타내." 하지만 우루과이 경우, 위에서 언급한 것 처럼 여부 고려되었던 점,개념의 ' 흰공이의 폐지 또는 정신적 장애 도입.
미국 - 세금을 석유 및 특정 가져온 물질
[ 미국 특정 법안으로 알려진부사장인법, 거래의 정리의 유해 폐기물 사이트. 행동은 국내 원유에 대한 미국에서 받은 정유 배럴당 8.2센트의 세금과 11의 세금을 부과.석유 제품에 대한 배럴당 7센트를 미국의 소비, 사용 또는 창고에 들어갔다. 이를 효과적으로 미국의 세무협정(gatt의 내국민 대우 요구 사항 문서 ⅩⅩⅢ:2violated 인정했다/ 대신, 미국경합 세무 디퍼렌셜은 최소한의 효과 무역하는 소규모 또는nil과 세금 차등되었음 -이기 때문에 헌법 제 ⅩⅩⅢ:2를 본받지 첫 번째 문장이었는지 여부, 또는 - 캐나다, 일반 계약에 EEC 및 멕시코 적립 혜택 무효 또는 침해할지 않았습니다. 캐나다,EEC 및 멕시코 이 방어도도 법적으로 유효한. 사실인지 아닌지는
일반협정 ⅩⅩⅢ 5.1.3 문서에서 계약자에게 불만 할 수 있고 남북관계 언닌, 그들은 계약에 따라 당선 무효 적립 혜택 또는 시력 장애가 있다고 보면으로 간주됩니다. gatt 사례에 따르면,부속건물에 분쟁조정은 일반 계약으로 가정되는 의무를 침해하게 됩니다. 이 곳에서 이해 1979,동작으로 생각하 흰공이의 구성은 케이스의 무효화 또는 장애"를 제기한 질문의 경우 전에 패널 여부는 추정하는 조치와 일치하지 않음 일반협정 무효화하는 감액의 혜택 적립하는 것 절대 계약 또는 rebuttable 예단 rebuttable 경우,문서 ⅩⅩⅢ:2과 불일치하는 측정하는 시위, 첫 번째 문장이든 충분한 시간적.
5.1 교역에 없거나 미미한 부작용이 없습니다.6 패널은 계약자 이전 케이스의 일반 계약과 불일치하는 측정 나쁜 영향을 미치지 않고, 따라서 무효 또는 혜택 저해하지 않은 일반적인 계약에 따른 고소하고 있던 계약자에 적립 주장에 어떻게 반응하는가 살펴보았습니다.주목은 패널 이와 같은 주장으로 만들었었던 숫자의 경우에는 약효가 없었다는 경우는 역사의협정(gatt에서 성공적으로 계약자 앞잡이었다는 전제는 측정 의무 침해 원인 무효화 및 impairment.
5.1.7 패널에서 결론의 검토의 위의와 다른 경우는,Contacting 정당 명백하게 불법적인 조치 무효화 또는 장애 원인 경제규모 반박할 수 있지 여부를 아직 결정하지 않았지만 추정 사례에 대한 반박할 수 없다는 전제로 5.1.
작동했을 때.8 패널 여부 검토 - 심지어 가정하 수 있는 전제로 꼽힌다 rebuttable 현재 케이스 데모하는 무역 효과의 세금 차등이 하찮은 것을 증명하는 해당되는 혜택 적립 캐나다, EEC, 멕시코 아래서 제 ⅩⅩⅢ:2 첫 번째 문장은, 없거나 무효.
5.1 시각 장애인.9 뿐만 아니라, 별것 아니만 가지고 있는 측정하는 인수를 수용
이 섹션에서 우리는 WTO 분쟁조정에 벌써부터 신경전을 벌이고 있는 중요한 문제의 수를 고려할 것이다. 우리가 매우 선택적 이러한 문제 선택에 있었다, WTO 분쟁조정의 대상은 아마도 이제는 물론 자체 지원이 될 수 있는 대로.검토하는 일곱 문제(1) 파기 또는 장애의 개념 문서 ⅩⅩⅢ협정(gatt에 위반하고 모두 비 위반 경우, (2) 패널로 대책에 적용할 검토의 적절한 표준, (3) 구현 절차, (4) 효과적인 구제를 제공하는 문제,(5) 충돌 해결의 규범 내에서일 세계무역기구(wto) 체제 및 사이일 WTO 및 기타 국제 법률 시스템, (6) 투명성과 참여 등으로 비 회원: (7) 문제의 일방주의와일dsu, (8) 특별한 문제 개도국.
일부의 이러한 문제들이 있는 것으로 검토 작업의일dsu는 수행에 1998-1999,장관급 결정에 의거한 uruguay-round. 많은 제안과 의견 미친 검토 과정에 있으나 주요 WTO에 멤버는 일반적으로 분쟁조정 시스템의 작동을 만족을 느낄 수 없었음이 나타났다. 어떠한 경우에도 계약 변경을 구현에 도달 및 검토 위에서 설명한 시스템 효과에 남은 변경하지 않은 채로 끝나
.(a)gatt 문서 ⅩⅩⅢ 정당공천제 및 개념과 장애
협정(gatt 분쟁조정 시스템의 경우와 같이,gatt 문서 ⅩⅩⅢ의 표현과 구조가 세계무역기구(wto) 체제에서 중요한 역할을 합니다. 다른 WTO 협약 명시적 문서 ⅩⅩⅢ 분쟁조정에 대한 표준으로 채택한 또는 매우 유사한 조항가 포함되어 있습니다. 또한,dsu 3 문서.1 제공: " 멤버 1947 여태까지gatt 제 ⅩⅩⅢ ⅩⅩⅢ에 적용되고 분쟁의 관리 원칙을 준수했는지 확인."
ⅩⅩⅢ 문서을 세심하게 살펴보 귀찮고 특이한 특성 번호 드러내. 사실( 저자들의 하나의 다른 곳에서 작성)일반 계약의 John Mansbridge 최소한 세 개의 목표 마음 제 ⅩⅩⅢ었 이러한 목적에 부합되지 않을 가능성이 높습니다. 첫 번째 목표 문서 ⅩⅩⅢ ( 협의에 대한 일반 규정) 및 ⅩⅩⅢ는 분쟁조정 절차의 Framework을 있는것gatt와 관련된 어떠한 문제 상담에 일반 의무 강조. 두 번째 목표 ⅩⅩⅢ협정(gatt 제 의무를 준수 구하기에 중요한 역할을 할 것이라는 점이었습니다. retorsion의 관습적인 국제법 비유 사용되었습니다.gatt의 이러한 조항에 대한 세번째 골의 양보" 변화하는 상황에 계속 " 상호주의와 균형을 유지하는 수단을 구축하는 것이었습니다. 이 세 번째 목표는 " 빠져나갈 수 있는 조항" 또는 " 달라진 상황" 조항의 본질에 있습니다.
문서 ⅩⅩⅢ의 구조 복잡하다. 주문 문서 ⅩⅩⅢ의 조건에 따라 우세하에서청구인은 반드시 보여는 either
(1) 혜택 적립 아래에 있는 일반 계약 무효되거나 손상된: or
(2) 달성의 목표의 일반적인 견해입니다.
고 방해gatt 분쟁 사실상 거의 항상 켜져 있는지 여부 무효되거나 장애가 있는 경우는 결과의 의미는 두 번째 인용 문구가 불확실.
또한청구인은 무효화 또는 장애(또는 목표의 임피던스)의 결과임을 보여주 must;
(1) 피청구인이 계약자의 의무감에 breach;
(2)가 계약자 응답자가 응용 프로그램를 일반 계약과 충돌나지 않고 또는
(3) 다른 상황의 존재.
문서의 언어에서 ⅩⅩⅢ,전통적으로 해석하면서 협정의 위반도 그 자체로 충분한지도 필요한 파티 구호에 부여하는 것이었습니다. 시간이 지남에 따라 분쟁조정 과정에서 더 많은 강조일 일반 계약의 위반 표시됩니다.
예를 들어, 1962 여부에 배치되었고,우루과이라운드(ur) 15 선진gatt 정당들에 의해 유지되고 있었다 대한 무역 규제의 광범위한 범위에 대한 문서 ⅩⅩⅢ 고소하고. 이 고소장를 어떻게 결정하게 된 패널을 다음과 같은이.
일반 계약 조항의 명확한 침해되는 경우, 또는 다른 말에 명시,조치gatt의 규정과 충돌에도 적용되며gatt가 계약 당사자가 적용되는 관련 프로토콜의 조건에 따라 허용되지 않는 한 동작"은 " 전개해 온 논의,구성은 케이스의 무효화 또는 감액 및 것이다 나서도 필요 여부를 고려의 상황 심각하게 고려하고 있을 만큼 정당화의 허가 서스펜션의 양보.
" 흰공이" 개념이었다에도 적용 상황과 관련된 할당량 또는 국내 보조금에 제품에 합의된 관세 제한(예: 관세 바인딩된 아래서 제 II,
절) 8.2 적외선 이 섹션에서는 폐지 또는 신체 장애의 개념은dsu, 세계무역기구(wto)의 경우 처리되는 방법 검토 참조. 규칙과는 이후 사건 문서를 바탕으로 사례 간의 차별화 ⅩⅩⅢ:1(a)-claims하는 정당하지 못함 " 실시 의무 위반" (건) 및 (2) 기반의 문서들 ⅩⅩⅢ(b)- 주장 것도 국가보안법 위반( nonviolation건) 처음하는 분쟁조정 규칙 특히 관련 위반 사례 및 그 적용에 nonviolation cases.
(1) 폐지 또는 장애의 위반 사례
지금까지gatt와 WTO 분쟁 해결에 나타난 대부분의 일반적인 주장에 여당의 WTO/gatt 의무를 위반한 사례가 있는 것이다. 위반 사례가 정당공천제 폐지의 개념이나 정신적 장애(아래 비 위반 사례에 관한 논의를 위해 참조) 발전은 꽤 흥미롭다. 위에서 언급한 것처럼 ⅩⅩⅢ 문서, 약관의 위반 사례에서와 마찬가지로둘 다(" *** 의무를 수행하지 못하면")는 위반과 당 불평에 직접 또는 간접적으로 계약에 따라 적립이 무효"이익되고 있거나 초." 시각 장애인 인권침해 사례에서 패널 무효화 또는 장애의 문제에 대한gatt 위반 고장진단 후 합니다. 예를 들어,수입 농기계에 대한 이탈리아 차별, 섹션 12.2 적외선, 패널 " 위반] 영국의 상업적 이익에 피해를 준었는지, 같은 혜택의 부상으로는 장애 나타내." 하지만 우루과이 경우, 위에서 언급한 것 처럼 여부 고려되었던 점,개념의 ' 흰공이의 폐지 또는 정신적 장애 도입.
미국 - 세금을 석유 및 특정 가져온 물질
[ 미국 특정 법안으로 알려진부사장인법, 거래의 정리의 유해 폐기물 사이트. 행동은 국내 원유에 대한 미국에서 받은 정유 배럴당 8.2센트의 세금과 11의 세금을 부과.석유 제품에 대한 배럴당 7센트를 미국의 소비, 사용 또는 창고에 들어갔다. 이를 효과적으로 미국의 세무협정(gatt의 내국민 대우 요구 사항 문서 ⅩⅩⅢ:2violated 인정했다/ 대신, 미국경합 세무 디퍼렌셜은 최소한의 효과 무역하는 소규모 또는nil과 세금 차등되었음 -이기 때문에 헌법 제 ⅩⅩⅢ:2를 본받지 첫 번째 문장이었는지 여부, 또는 - 캐나다, 일반 계약에 EEC 및 멕시코 적립 혜택 무효 또는 침해할지 않았습니다. 캐나다,EEC 및 멕시코 이 방어도도 법적으로 유효한. 사실인지 아닌지는
일반협정 ⅩⅩⅢ 5.1.3 문서에서 계약자에게 불만 할 수 있고 남북관계 언닌, 그들은 계약에 따라 당선 무효 적립 혜택 또는 시력 장애가 있다고 보면으로 간주됩니다. gatt 사례에 따르면,부속건물에 분쟁조정은 일반 계약으로 가정되는 의무를 침해하게 됩니다. 이 곳에서 이해 1979,동작으로 생각하 흰공이의 구성은 케이스의 무효화 또는 장애"를 제기한 질문의 경우 전에 패널 여부는 추정하는 조치와 일치하지 않음 일반협정 무효화하는 감액의 혜택 적립하는 것 절대 계약 또는 rebuttable 예단 rebuttable 경우,문서 ⅩⅩⅢ:2과 불일치하는 측정하는 시위, 첫 번째 문장이든 충분한 시간적.
5.1 교역에 없거나 미미한 부작용이 없습니다.6 패널은 계약자 이전 케이스의 일반 계약과 불일치하는 측정 나쁜 영향을 미치지 않고, 따라서 무효 또는 혜택 저해하지 않은 일반적인 계약에 따른 고소하고 있던 계약자에 적립 주장에 어떻게 반응하는가 살펴보았습니다.주목은 패널 이와 같은 주장으로 만들었었던 숫자의 경우에는 약효가 없었다는 경우는 역사의협정(gatt에서 성공적으로 계약자 앞잡이었다는 전제는 측정 의무 침해 원인 무효화 및 impairment.
5.1.7 패널에서 결론의 검토의 위의와 다른 경우는,Contacting 정당 명백하게 불법적인 조치 무효화 또는 장애 원인 경제규모 반박할 수 있지 여부를 아직 결정하지 않았지만 추정 사례에 대한 반박할 수 없다는 전제로 5.1.
작동했을 때.8 패널 여부 검토 - 심지어 가정하 수 있는 전제로 꼽힌다 rebuttable 현재 케이스 데모하는 무역 효과의 세금 차등이 하찮은 것을 증명하는 해당되는 혜택 적립 캐나다, EEC, 멕시코 아래서 제 ⅩⅩⅢ:2 첫 번째 문장은, 없거나 무효.
5.1 시각 장애인.9 뿐만 아니라, 별것 아니만 가지고 있는 측정하는 인수를 수용
번역되고, 잠시 기다려주십시오..
다른 언어
번역 도구 지원: 갈리시아어, 구자라트어, 그리스어, 네덜란드어, 네팔어, 노르웨이어, 덴마크어, 독일어, 라오어, 라트비아어, 라틴어, 러시아어, 루마니아어, 룩셈부르크어, 리투아니아어, 마라티어, 마오리어, 마케도니아어, 말라가시어, 말라얄람어, 말레이어, 몰타어, 몽골어, 몽어, 미얀마어 (버마어), 바스크어, 베트남어, 벨라루스어, 벵골어, 보스니아어, 불가리아어, 사모아어, 세르비아어, 세부아노, 세소토어, 소말리아어, 쇼나어, 순다어, 스와힐리어, 스웨덴어, 스코틀랜드 게일어, 스페인어, 슬로바키아어, 슬로베니아어, 신디어, 신할라어, 아랍어, 아르메니아어, 아이슬란드어, 아이티 크리올어, 아일랜드어, 아제르바이잔어, 아프리칸스어, 알바니아어, 암하라어, 언어 감지, 에스토니아어, 에스페란토어, 영어, 오리야어, 요루바어, 우르두어, 우즈베크어, 우크라이나어, 웨일즈어, 위구르어, 이그보어, 이디시어, 이탈리아어, 인도네시아어, 일본어, 자바어, 조지아어, 줄루어, 중국어, 중국어 번체, 체와어, 체코어, 카자흐어, 카탈로니아어, 칸나다어, 코르시카어, 코사어, 쿠르드어, 크로아티아어, 크메르어, 클링곤어, 키냐르완다어, 키르기스어, 타갈로그어, 타밀어, 타지크어, 타타르어, 태국어, 터키어, 텔루구어, 투르크멘어, 파슈토어, 펀자브어, 페르시아어, 포르투갈어, 폴란드어, 프랑스어, 프리지아어, 핀란드어, 하와이어, 하우사어, 한국어, 헝가리어, 히브리어, 힌디어, 언어 번역.
- Введитеof строительство стальной лист
- Je devenir pesant aux autres
- Введите of строительство стальной лист
- devenir pesant aux autres
- meum
- devenir pesant aus autres
- Введите of строительство стальной лист
- 요즘 트윗 많이 짧네
- astrum
- Posse vident et possunt
- es
- 애교
- Type of enclosure
- creative perspective
- 애교가 많다
- Введитеof construction steel sheet (to
- Тип корпуса
- There is also a series of one-to-one mee
- 애교를 부리다
- stella mea es
- 언제 자?
- 사랑해요
- astrum meum es
- Sagebrush
