国际商法第七章

Chapter 7 – Trade in Goodspage 245The Bretton Woods SystemThe negotiators who met for the United Nations Monetary and Financial Conference in Bretton Woods in July 1944 were determined to create a system that would promote trade liberalization and multilateral economic cooperation. The Bretton Woods System was meant to be an integrated undertaking by the international community to establish a multilateral institutional framework of rules and obligations.As originally planned the Bretton Woods system was to have had 3 major international organizations: the international Monetary Fund (IMF), the International Bank for Reconstruction and Development (IBRD or World Bank), and the ill-fated International TradeOrganization (ITO). Together they were to collectively administer and harmonize world trade. The IMF was to ensure monetary stability and facilitate currency exchange. The World Bank was to assist war-ravaged and developing countries reconstruct or upgrade their economies. The ITO was to administer管理a comprehensive code综合法典governing the conduct of world trade. This code was to be broad and encompassing, dealing with a wide range of issues, including trade and trade barriers, labor and employment, economic development, economic development, restrictive business practices and intergovernmental commodity.In the year 2011, most of what was planned for the ITO has come to be through General Agreement on Tariffs and Trade, through multilateral trade negotiations, called rounds. The current “round” begun at Doha,Qatar (the Doha Round) has dissolved into anumber of long-standing disputes, primarilyover U.S. And EU subsidies for their own agricultural industries. The IMF andWorld Bank are still doing their business oftaking U.S. Money, loaning it out and then “forgiving major balances”. The U.S. Isgiving money away to promote peace andstability, but that will end if the U.S. Does not at least in part, return to the ideology of “the business of America is business” -Calvin Coolidge, 1927. The only way the IMF and World Bank survive is through U.S.Financial support. As U.S. National debtgrows so much faster than GDP, ability of the U.S. To also support IMF and World bank diminishes. The change of world order is already apparent – the PRC sent a delegation to Spain and Portugal in January 2011 to buy their bonds and prevent their collapse.Page 248The Uruguay RoundThe Uruguay Round (1986-1994) brought about a major change in the institutional structure of the GA TT, replacing the informal GATT institution with a new institution: the World Trade Organization, which officially came into existence on January 1, 1995.The second part of the Final Act is made up of the WTO Agreement and its annexes, of which there are 2 kinds: multilateral trade agreements and plurilateral trade agreements.Multilateral Trade Agreements多边贸易协定are “integral parts不可分割的部分” of the WTO Agreement and are “binding on all members” of the WTO. They consistof (1) 14 agreements on trade in goods, (2) the General Agreement on t Trade in Services T型贸易总协定(GATS), (3) theAgreement on Trade-Related Aspects of Intellectual Property Rights知识产权(TRIPS), (4) the Understanding on Rules and Procedures Governing the Settlement of Disputes争论(DSU) and (5) the Trade Policy review Mechanism 贸易政策审核制度(TRPM). The Plurilateral Trade Agreements are also part of the WTO Agreement, but they are only binding on those member states that have accepted them. They do not create either obligations or rights for members that have not accepted them.Page 250The World Trade OrganizationThe World Trade Organization (WTO) is best described as an umbrella organization under which the agreements that came out of the Uruguay Round of MTNs are gathered. As the WTO Agreement states, the WTO is meant to provide the “commoninstitutional framework” for the implementation of those agreements. The WTO thus serves 4 basic functions:1.To implement实施, administer and carry out he WTO Agreement and its annexes附加物2.To act as a forum for ongoing multilateral trade negotiations3.To serve as a tribunal法庭for resolving disputes4.To review the trade policies and practices of member statespage 251The WTO AgreementThe WTO Agreement established a legal framework to bring together the various trade pacts that were negotiated underGA TT 1947. The WTO was created as a unified administrative organ to oversee all of the Uruguay Round Agreements. This unification solves 2 problems that hamperedthe old GA TT. First, because GA TT 1947 dealt with trade in goods, there was no obvious mechanism for handling agreements relating to trade in services and the protection of intellectual property rights. The WTO Agreement, which separates the institutional concepts from the substantive rules, eliminates this difficulty. Second, because the ITO never came into existence, the old GA TT had no formal institutional structure. The establishment of the WTO rectifies this.Page 252Membership of the WTOTonga joined the WTO in July 2007 bringing its total membership to 151. The members of the WTO comprise both states and customs territories that conduct their own trade policies. States that were members of GA TT 1947 on January 1, 1995, along with the EU were eligible to become“original members” of the WTO. These members agreed to adhere to all the Uruguay Round multilateral agreements and to submit their Schedules of Concessions and Commitments concerning industrial and agricultural goods and their Schedules of Specific Commitments concerning services within a year after joining. Original members, however, that are recognized by the United Nations as being among the least developed states, were required to undertake only commitments and concessions consistent with their individual development, financial and trade needs within their administrative and institutional capabilities. They also were given an additional year in which to submit their schedules.Page 253 Exhibit 7-3Decision Making within the WTOThe WTO Agreement says that the WTO will “continue the practice of decision making by consensus followed under theGA TT 1947. Consensus is the making of a decision by general agreement and in the absence of any voiced objection. The WTO, however, can make a decision by a vote if a consensus cannot be reached. At meetings of the Ministerial Conference and the General Council, each WTO member state has one vote, with the EU having a number of votes equal to (but not more than) the number of its member states that are members of the WTO. Should a vote be required, the decision will be made by a simple majority in most cases.Page 256Waivers弃权GA TT 1947 was sometimes characterized as a system of loopholes 漏洞held togetherby waivers. The WTO agreements dramatically戏剧性changed this. First, with one exception, the waivers of obligations in existence under GA TT 1947 terminated终止no later than 2 years after the inauguration开始of the WTO. Second, the procedures for obtaining new or continuing waivers are more rigorous. Thus, an applying member state must1.describe the measures that it proposes to take2.specify the policy objectives it seeks to obtain3.explain why it cannot achieve those objectives without violating its obligations under GA TT 1994Third, waivers must be approved by the Ministerial Conference, which has up to90 days to do so by consensus. If a consensus cannot be reached in that period, waivers must then be approved by a three-quarters majority of the members. Waivers are reviewed annually thereafter. Fourth, any dispute that arises in connection with a waiver, whether or not the waiver is being carried out in conformity with its terms and conditions, can be referred for settlement under the Dispute Settlement Understanding. Page 257GA TT 1994 is made up of the same set of rules as GA TT 1947. The changes in this text of GA TT 1994 amounts mainly to changes in terminology.Direct EffectSome of the provisions of GA TT 1994 are directly effective. That is, they may be relied upon by private person (including both natural and juridical persons) to challenge the actions of a member state. In particular, those provisions that prohibit a state from taking action contrary to theGeneral Agreement are directly effective. Those that require a contracting state to take some positive action may only be challenged by individual if the state adopts implementing legislation authorizing such a challenge.Case 7-1 Finance ministry v. Manifattura Lane Marzotto, SPAPlaintiff: Manifattura Lane Marzotto, SpA, an Italian manufacturer of woolen goods.Complaint:that the “administrative service duty” applied to wool imported from Australia violated GA TT.Defendant: Italian Finance Ministry. Proceedings: Italy had fully integrated into its legal system the firs part of the General Agreement – including the provisions concerning customs duties – but the Finance Ministry continued to charge duties to see if, in Italy, this provisionwould merely be treated as a simple declaration of principle and deprived of any direct legal effect within the country. The trial court by dismissing the case indicated that Italian Government could continue to impose duties, even though they had signed a binding agreement not to, so the plaintiff appealed.Court Decision: The court decided that the GA TT provision that prohibits a GA TT member from increasing duties on imported products above the level established when the member nation acceded to the agreement was directly effective. Thus it was part of Italian law and an individual citizen or company could bring a lawsuit to enforce this provision.Point of Law:General Agreement provision which is essentially a prohibition against increasing duties above those in effect on the date a member state accedes tothe General Agreement. Accordingly this prohibition is complete and directly effective not only between the member states but also between the member states and their nationals.Was Justice Served:YES – what is the point of Italy signing a General Agreement if they have no intention of following it. A failure to enact should be grounds for immediate dismissal from WTO.Page 259NondiscriminationThe must fundamental principle of GA TT is that international trade should be conducted without discrimination. This principle is given concrete form in the most-favored-nation (MFN) and multinational treatment rulesThe MFN RuleAny advantage, favor, privilege or immunity granted by any member to anyproduct originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other members.The MFN rule does NOT apply to1.The use of measures to counter dumping and subsidization津贴2.The creation of customs unions关税同盟and free trade areas3.Restrictions限制that protect public health, safety, welfare and national security国家安全page 260Case7-2 Japan – Taxes on Alcoholic BeveragesPlaintiff: Canada, the EU and the United StatesInjury:Japan imposed lower taxes on shochu, a locally produced alcoholic beverage, than it did on imported alcoholicbeverages, including vodka, Defendant:government of Japan Proceedings: The Japanese government maintained that “substantial noticeable differences in physical characteristics exist between the rest of the alcoholic beverages at dispute and sochu that would disqualify liqueurs, gin and genever; the use of ingredients wold disqualify rum, lastly, appearance (arising from the manufacturing processes) would disqualify whiskey and brandy.Court decision: The Panel noted that a difference in the physical characteristic of alcoholic strength of 2 products did NOT preclude a finding of likeness especially since alcoholic beverages are often drunk in diluted form. Since they are like products and imported vodka was taxed at a higher rate, this practice constituted a violation of Japan's obligations under GA T-WT rules.Point of Law: GATT Article III:2 The products of the territory of any contracting party缔约国imported into the territory of any other contracting party shall not be subject受制于, directly or indirectly, to internal taxes or other internal charges of any kind in excess of 超过those applied, directly or indirectly, to like domestic products. Moreover, no contracting party shall otherwise apply internal taxes or other internal charges to imported or domestic products in a manner contrary to the principles set forth in paragraph 1 of Article II - “The contracting parties recognize that internal taxes and other internal charges, and laws, regulation and requirements affecting the internal sale, offering for sale, purchase transportation, distribution or use of products in specified amounts or proportions, should not be applied toimported or domestic products so as to afford protection to domestic production. Was Justice Served:Yes – since the only technical difference between vodka and sochu is the media used in filtration, it was clear the intent of the higher tax was blatant protectionism for local alcohol industry. Japan had signed agreements they would NOT tax imports higher to protect domestic industries.Page 263Protection Only Through TariffsThe second major principle of the GA TT is that each member state may protect its domestic industries only through the use of tariffs. Quota and other quantitative restrictions that block the function of the price mechanism are forbidden by Article XI of GA T.Additionally, to ensure that internal taxes are not disguised as tariffs, Article IIrequires that tariffs be collected “at the time or point of importation.” The main exceptions include:1.The imposition of temporary export prohibitions or restrictions to prevent or relieve critical shortages of foodstuffs or other essential products.2.The use of import and export restriction related to the application of standards or regulations for classifying, grading, or marking commodities3.The use of quantitative restrictions on imports of agricultural and fisheries products to stabilize national agricultural markets.4.The use of quantitative restrictions to safeguard a state's balance of payments5.The use of quantitative restrictions by a developing state to further its economic development.Page 266Escape ClauseArticle XIX of GA TT 1994 – entitled “Emergency Action on Imports of Particular Products” is an escape clause or safety valve that allows a member state to avoid, temporarily, its GA TT obligations when there is a surge in the number of imports coming from other member states. The injured state can impose emergency restrictive trade measures – known as safeguards – if it can demonstrate that there is an actual or seriously threatened injury to one of its domestic industries. ExceptionsThe general exceptions免责条款exclude 排除a member state from complying with its GA TT obligation义务so long as this is not done as “a means of arbitrary任意的or unjustifiable discrimination” or as a “disguised假装的restriction on international trade”. They allow a state totake measures contrary to GA TT that1.are necessary to protect public morals2.are necessary to protect human, animal or plant life or health3.relate to the importation or exportation of gold or silver4.are necessary to secure compliance with laws or regulations that are not inconsistent with GA TT5.relate to the products of prison labor6.protect national treasures of artistic, historic or archaeological value7.relate to the conservation of exhaustible natural resource8.are undertaken in accordance with an intergovernmental commodity agreement 9.involve restrictions on exports of domestic materials needed by a domestic processing industry during periods when the domestic price of those materials is held below world prices as a part of agovernmental stabilization plan or are essential to acquiring products in short supplypage 267Case 7-3 United States – Import Prohibition of Certain Shrimp and Shrimp ProductsPlaintiff: WTO panelWhy: U.S. Rules prohibiting shrimp imports harvested with commercial fishing technology which may adversely affect sea turtles.Defendant: U.S. Government Proceedings: The United States issued regulations in 1987 pursuant to the Endangered Species Act of 1973 requiring all United States shrimp trawl vessels to use a pproved Turtle Excluder Devices (“TEDs”) or tow-time restrictions in specified areas where there was a significant mortality of sea turtles in shrimp harvesting. Theseregulations, which became fully effective in 1990, were modified so as to require the use of approve TEDS at all times and in all areas where there is a likelihood that shrimp trawling will interacted with sea turtles, with certain limited exceptions.Court Decision: The panel first concluded that the sea turtles involved here did constitut e “exhaustible national resources” under Article XX(g) of theGA TT, and thus the exception might apply. However, the WTO panel held that the U.X. Rules were discriminatory under the chapeau (heading) of Article XX of the treaty in that they were applied in a rigid manner, without regard to any measures taken to protect turtles by other nations. In addition, the panel found that the U.S. Procedure for determining whether other nations met the U.S. Standards constituted arbitrary discrimination, in that the decisionwas made without any opportunity for the other nations to present evidence, or to have a hearing or consultation, and no review or appeal was allowed.Points of Law: The Article II (g) exception to the rule出轨边缘that WTO members must treat imported good the same way as domestic goods and not subject them to additional requirements. Second, were sea turtles indeed an Article II(g) exception 0 and “exhaustible 可耗尽natural resource” Finally, Article XI of GATT 1994, the obligations义务of the U.S. To determine whether other nations met the U.S. Standards,, and if not to provide a hearing consultation and ultimately appeal听证会协商，并最终上诉。