DISPUTE SETTLEMENT IN THE WORLD TRADE ORGANIZATION PRACTICE AND PROCEDUREPDF电子书下载

CHAPTER 1 The ITO, the GATT, and the WTO 1

1.01 The ITO and the GATT 1

[1] Bretton Woods and the Havana Charter 1

[2] The negotiation of GATT 2

[3] The Protocol of Provisional Application （PPA） 3

[4] GATT’s 47 “provisional” years 5

[5] GATT dispute settlement 7

1.02 The Urugay Round 11

1.03 The World Trade Organization 13

1.04 The Dispute Settlement Body 16

1.05 The Dispute Settlement Understanding 17

CHAPTER 2 Jurisdiction 19

2.01 Covered agreements 19

[1] Conflicts among agreements 19

[2] Simultaneous application of different agreements 20

[3] Non-application between particular Members 20

2.02 Non-Member countries or territories 21

2.03 Regional and local government measures 22

2.04 Requirement of a legal interest 23

2.05 Measures as applied vs.measures as such 24

2.06 Discretionary measures 25

2.07 Measures changed during proceedings 26

2.08 Change in legal justification for a measure 27

2.09 Measures no longer in effect 27

2.10 Exhaustion of local remedies 30

2.11 Terms of reference 30

2.12 Participation by amicus curiae 32

CHAPTER 3 Sources of Law 35

3.01 Overview 35

3.02 Covered agreements 37

3.03 Reports of prior panels and the Appellate Body 37

[1] Adopted and unadopted panel reports 38

[2] Appellate Body Reports 45

3.04 Custom 48

3.05 Teachings of the most highly qualified publicists 49

3.06 General principles of law 51

3.07 Other international agreements 52

[1] Agreements referred to in the WTO Agreements 52

[2] Agreements between the parties 54

[3] Agreements to which the WTO is a party 60

CHAPTER 4 The Panel Process 61

4.01 Overview 61

4.02 Consultations 62

[1] Form and content of the request 62

[2] Time elements 63

[3] Confidentiality 63

[4] Adequacy of consultations 64

[5] Third parties 65

4.03 Good offices, conciliation and mediation 65

4.04 Request for a panel 66

[1] Time elements 66

[2] Form and content 67

4.05 Establishment of a panel 68

4.06 Composition of panels 68

[1] In general 68

[2] Nominating panelists 69

4.07 Terms of reference 70

[1] Standard terms of reference 71

[2] Special terms of reference 72

4.08 Function, authority and responsibilities of panels 72

4.09 Third parties and multiple complainants 73

[1] Third parties 73

[2] Multiple complaints 74

4.10 Counter-complaints 75

4.11 Role of the Secretariat 75

4.12 Evidence and experts 76

[1] General 76

[2] Experts 77

[3] Subsequent evidence 79

[4] Municipal law 80

[5] Quantum of evidence 80

4.13 Burden of proof 81

[1] General 81

[2] “General rule-exception” analysis 83

4.14 Confidential information 85

4.15 Standard of review 85

4.16 Claims and defenses not raised 86

[1] Claims 86

[2] Defenses 87

4.17 First written submissions 87

4.18 First meeting of the panel 88

4.19 Second written submissions 90

4.20 Second meeting of the panel 90

4.21 Interim reviews 91

[1] Descriptive portions of the report 91

[2] Full interim report 91

[3] Request for further review 92

4.22 Computation of time 92

4.23 “Non-violation” complaints and complaints involving “other” situations 94

4.24 Representation by private attorneys 96

CHAPTER 5 Special Rules and Procedures 99

5.01 Overview 99

5.02 Developing countries 99

5.03 The 1966 Understanding 100

[1] Consultations 100

[2] Good offices, conciliation, and mediation 101

[3] Establishment of panels 101

[4] Panel procedures 102

5.04 Other Developing Country Provisions of the DSU 102

[1] Consultations 102

[2] Panel process 102

5.05 Agreement on the Application of Sanitary and Phytosanitary Measures 103

5.06 Agreement on Technical Barriers to Trade 104

5.07 Agreement on Implementation of Article Ⅵ of GATT 1994（Antidumping Agreement） 106

[1] General 106

[2] Standard of Review 107

[3] Confidential information 109

[4] Overlap with countervailing duties 109

5.08 Agreement on Implementation of Article Ⅶ of GATT 1994 （Customs Valuation Agreement） 110

5.09 Agreement on Subsidies and Countervailing Measures 111

[1] Prohibited subsidy procedures 111

[2] Procedures before the Permanent Group of Experts 112

[3] Actionable subsidy procedures 114

[4] Procedures for developing information concerning serious prejudice 115

[5] Multiple subsidy procedures 117

[6] Non-actionable subsidies 118

[7] Countervailing measures 119

[8] Developing countries 119

5.10 Agreement on Textiles and Clothing （ATC） 120

[1] Overview 120

[2] ATC Procedures 122

[3] Textiles Monitoring Body Working Procedures 125

5.11 General Agreement on Trade in Services （GATS） 126

[1] General 126

[2] Double taxation treaties 126

[3] Non-violation nullification and impairment 127

[4] Modification of schedules 127

[5] Air transport services 128

5.12 Agreement on Trade-Related Aspects of Intellectual Property Rights （TRIPS） 128

5.13 Agreement on Government Procurement 129

[1] Background 129

[2] Proposals and DSU notification 129

[3] DSB authority 130

[4] Terms of reference 130

[5] Time limits 130

[6] No cross-retaliation 131

5.14 Agreement on Trade in Civil Aircraft 131

5.15 Arbitration 132

[1] Generally 132

[2] Non-actionable subsidies 133

[3] Services 134

CHAPTER 6 The Appellate Process 135

6.01 Overview 135

6.02 Right of appeal 135

6.03 Appellate Body Rules 136

[1] Overview 136

[2] Divisions of the Appellate Body 136

[3] Decision making and collegiality 137

[4] Documents 137

[5] Commencement of an appeal 138

[6] Working schedule 139

[7] Appellant’s submission 139

[8] Appellee’s submission 140

[9] Multiple appeals 141

[10] Third participants 142

[11] Record on appeal 142

[12] Oral hearing 143

[13] Written responses to questions 143

[14] Failure to appear and withdrawal of appeal 143

[15] Prohibited subsidy cases 144

[16] Representation by private attorneys 144

6.04 Time elements 144

[1] Limits imposed by the DSU 145

[2] Limits imposed by the Appellate Body 146

[3] Timing - tactical considerations 146

6.05 Lack of remand authority 147

CHAPTER 7 Adoption and Implementation of Reports 153

7.01 Overview 153

7.02 Consideration and adoption of reports 153

7.03 Notification of implementation intentions 154

7.04 “Reasonable period of time” 155

7.05 Disputes regarding implementation 158

7.06 Surveillance by the DSB 158

7.07 Prohibited and actionable subsidies 159

7.08 “Other Situation” Complaints 160

CHAPTER 8 Remedies 161

8.01 Overview 161

8.02 GATT Practice 161

8.03 WTO Practice 163

[1] General 163

[2] “Suggested steps” 164

[3] Adequacy of implementation 165

8.04 Overview: compensation and suspension of concessions 166

8.05 Negotiations on compensation 167

8.06 Suspension of concessions 168

[1] Request for authorization to suspend concessions 169

[2] Principles and procedures governing suspension 169

[3] Objection to suspension and referral to arbitration 171

8.07 Prohibited and actionable subsidies 172

8.08 “Other Situation” Reports 172

CHAPTER 9 Conclusion 175

Table of Cases 177

Bibliography 183

Appendices 187

A Understanding on Rules and Procedures Governing the Settlement of Disputes 187

B Working Procedures for Appellate Review 219

C Working Procedures for Permanent Group of Experts （Draft） 245

D Procedures forArbitration Under Article 8.5 of the SCMAgreement 265

Dispute Settlement Provisions in Other Agreements: 273

E Agreement on the Application of Sanitary and Phytosanitary Measures 273

F Agreement on Textiles and Clothing 275

G Agreement on Technical Barriers to Trade 283

H Agreement on Implementation ofArticle Ⅵ of GATT 1994 （Antidumping Agreement） 285

I Agreement on Implementation ofArticle Ⅶ of GATT 1994 （Customs Valuation Agreement） 287

J Agreement on Subsidies and Countervailing Measures 289

Applicable GATT Instruments 297

K Procedures Under Article ⅩⅩⅢ, Decision of 5 April 1966 297

L Decision of 12 April 1989 301

M 28 November 1979 Understanding Regarding Notification, Consultation, Dispute Settlement and Surveillance 303

Other Treaty Provisions 305

N Vienna Convention on the Law of Treaties, Articles 31and 32 305

Index 307