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刚刚发生在WTO什么?你需要知道的一切

An interview with Assistant Professor of Law at Queen’s University

Earlier this month, the WTO stopped hearing new appeals by countries that object to a WTO ruling当剩下的三个成员中的两个人的上诉机构退休时。Because the U.S. government has blocked all new appointments to the WTO’s Appellate Body, it has made the body inoperable, since three Appellate Body members are needed to hear an appeal.

BRINK asked professor Nicolas Lamp, a WTO expert at the Faculty of Law of Queen’s University, Canada, about the significance of this move.

尼古拉斯灯:For the first time since the establishment of the WTO in 1995, the Appellate Body cannot accept any new appeals, and that has knock-on effects on the whole global trade dispute settlement system. When a member appeals a WTO panel report, it goes to the Appellate Body, but if there is no Appellate Body, it means that that panel report will not become binding and will not attain legal force.

上诉机构的缺失意味着members can now effectively block the dispute settlement proceedings by what has been called appealing panel报告“进入空白”。

The WTO panels will continue to function as normal. When a panel issues a report, it will normally be automatically adopted — unless it is appealed. And so, even though the panel is working, the respondent in a dispute now has the option of blocking the adoption of the panel’s report. It can, thereby, shield itself from the legal consequences of a report that finds that the member has acted inconsistently with its WTO obligations.

What Percentage Goes to Appeal?

BRINK:What percentage of cases heard by the panel generally go to appeal? Is it most of them or a small percentage?

灯先生:It’s a majority. It varies, but it’s been around 60% going to appeal. But that may change, of course. One possibility is that WTO members could conclude agreements where the two parties essentially agree in advance that they’re not going to use appeal.

If they refrain from going to appeal, then the system would continue functioning as normal; you would still have legally binding panel reports, as well as the entire mechanism that the WTO has for authorizing retaliation in the case of noncompliance.

BRINK:WTO的所有其他义务怎么样,因为WTO是由整个协议拼凑而成的?

灯先生:The issue of functionality of the dispute settlement procedure has no impact whatsoever on the legal force of other WTO obligations. Sometimes it’s portrayed that these obligations can no longer be enforced, but we have to keep in mind that the way in which WTO rulings are enforced is by trade sanctions imposed by individual WTO members.

世贸组织成员仍然能够利用制裁试图让其他成员遵守其义务;唯一的问题是,这些制裁是否将由WTO授权和监督,或者是单方面征收的。

BRINK:是否有警惕司法的风险?

灯先生:Yes, that’s exactly the risk. Take the example of a WTO member who brings a case, say, against the United States. There will be a panel report, but now the U.S. has the option of blocking the adoption of that panel report by appealing it into the void, as it just did for the very first time in a case brought by India. Then the WTO member — in this case, India — is deprived of remedy in the sense that it won’t be able to get authorization from the WTO to retaliate against the United States.

担心是WTO成员只会在未经任何监督或没有任何监督的情况下继续重新达成并在WTO施加任何限制。而不是拥有“法院”决定是什么,你会让成员将法律带入自己的手。

如果美国不接受印度施加的报复并通过施加自身的报复,您将有一系列循环,因此您最终会获得贸易战。这是潜在的担忧 - 导致严格的正义会有扩散。

BRINK:您认为将加速避免WTO,一般,各国之间的双边协议吗?

灯先生:我不这么认为,因为大多数世贸组织成员在内,包括美国,仍然非常从事WTO改革的谈判。值得注意的是,在从未违反的WTO规则下发生绝大多数贸易。

采取国内法庭的类比。你不会这么说,只是因为法院没有坐着,人们将停止遵守规则。我认为这将对成员遵守规则以及谈判新规则来造成巨大影响。一个例子是WTO的电子商务法规,每个人都在关注。[或者,相反,电子商务暂停。这些不是关于电子商务的新规则,但承诺不会施加对电子商务的限制。

对BREXIT和US / CHINA的影响是什么?

BRINK:Does it have any impact on the U.S.-China trade dispute?

灯先生:No, because when it comes to China, the U.S. has essentially already done what everybody’s feared, namely, taken the law into its own hands. It has imposed the tariffs on China under U.S. law, namely, Section 301 of the Trade Act of 1974, without any basis in WTO law at all. China has challenged these measures in the WTO, but has also just retaliated without waiting for authorization from the WTO.

BRINK:Brexit怎么样?它是否对Brexit和U.之间的谈判有任何影响?

We could see a bit more vigilante justice, but in a way that ultimately tries to incentivize countries to stay in the system and to play by the rules.

灯先生:我也不这么认为。U.K.和欧盟都对尽可能自由保持贸易的极大兴趣。是的,有可能有一天拥有WTO争端的潜力。但欧盟实际上已经提出了临时机制,以取代使用WTO争议解决中可用的仲裁程序的上诉机构。

欧盟现在要求各国提交这一临时程序,加拿大和挪威已经注册。所以,如果上诉机构在U.K.离开欧盟和WTO规则的情况下,如果上诉机构尚未恢复,我认为最有可能的结果也会签署这一点。

What About Reform of the WTO?

BRINK:A number of countries have had complaints about the WTO and its structure over the years. Do you believe that the WTO is in need of serious updating?

灯先生:好吧,抱怨WTO总是有点棘手,因为世贸组织所做的或发生的事情基本上是什么意思。因此,如果谈判无法解决,则是因为成员不能同意。

One of the big flashpoints at the moment, for example, is whether China and India can still claim to be developing countries. The U.S. is pushing very hard, insisting that China and India shouldn’t be allowed to be treated as developing countries.

Regarding the Appellate Body, not everybody was happy with the way the Appellate Body had evolved. But no other WTO member was supporting the United States in its decision to just dismantle the Appellate Body by blocking the reappointment of Appellate Body members. It was only the U.S. that took that stance.

欧盟如何对新形势作出反应?

BRINK:欧盟委员会最近提出了对其执法监管的修改。那是关于什么的?

灯先生:At the moment, under U.S. law, the U.S. can act as prosecutor, judge and jury and decide when other members have acted unreasonably and then implement sanctions.

在其最近公布的欧盟执法监管修改的提案中,欧盟委员会采取了不同的方法。修改后的监管将授权欧盟委员会在未经WTO授权的情况下使用报复,但只有在WTO成员通过吸引空白的情况下阻止WTO争端解决过程。因此,欧盟将使用基本上强化系统的方式使用报复。

They’re saying, if you play along by either agreeing to adopt the panel report or following our appeal arbitration procedure, then we will not retaliate with sanctions. I think that’s a really interesting approach to trying to deal with this new situation.

如果这种模式传播,那么更多国家,例如加拿大,例如中国和印度,只有在另一方阻止采用小组报告的情况下,只能使用单方面报复。然后我们可以看到更加严格的正义,但是,在某种程度上,最终试图激励国家留在系统并由规则发挥作用。

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