论文标题:WTO争端解决机制的缺陷与问题
Deficiencies and Problems of the Mechanism of the WTO Dispute Settlement Body
论文作者 张爱娥
论文导师 那力,论文学位 硕士,论文专业 国际法学
论文单位 吉林大学,点击次数 185,论文页数 65页File Size219k
2005-04-13论文网 http://www.lw23.com/lunwen_3045332/ WTO; 争端解决机制; 缺陷; 问题
biequity structure;the cost of capital; corporate governance structure; equity financing; equity financing preference; resources distribution
世贸组织争端解决机制是WTO 法的精髓所在。它通过规定一系列较为完整、严格的审理程序和监督机制来保证世贸组织的各项实体规则得到遵守。在实践中,它已经成为公平、高效地解决成员方之间的贸易争端的重要手段。因而,它的积极意义是不言而喻的。但是,我们仍然不能说世贸组织争端解决机制是完善而成熟的。它还存在着诸多不尽人意之处。许多成员方都对它提出了批评意见,主张对其进行修改。国际社会对修改世贸组织争端解决机制的谈判日益关注。因而,现阶段对世贸组织争端解决机制的缺陷与问题进行研究是十分有必要的。本文将在简介世贸组织争端解决机制的主要程序的基础上,着重对争端解决机制在制度和程序两个方面存在的缺陷与问题以及为何是缺陷或问题进行阐释。以期实现对争端解决机制更为全面、客观的认识。并对完善WTO 争端解决机制提出几点看法。
The mechanism of the WTO Dispute Settlement Body(DSB)is the kernel of the WTO. The practice has proved that the mechanism of the WTO DSB is the core of the judiciary of the WTO. The successful operation of the WTO owes to this mechanism to a great extent. If no this mechanism, the trade disputes among the parties should not be settled exactly and duly and the substantial rules should be a mere scrap of paper. So the WTO will become meaningless. In the mean while we must observe deficiencies of the mechanism of the WTO DSB soberly. We can’t say the mechanism is perfect and ripe all the same. Many parties put forward critical opinions on the mechanism of the WTO DSB and claim to amend it. To reform the mechanism of the WTO DSB became an important topic for discussion at the Doha Ministerial Conference in November 2001. Because this negotiation is beyond the total topics of the Doha agenda, it will be no time restriction until the negotiation succeeds. Under this background, to analyses and study deficiencies and problems of the mechanism of the WTO DSB is urgent and necessary. This article is divided into four chapters. On the basis of the brief introduction about the main programs of the DSB, I will expatiate on deficiencies and problems of the mechanism of the WTO DSB. Meanwhile I will put forward several opinions about the improvement of this mechanism. The first chapter is the summary of the mechanism of the WTO DSB. The primary procedures of the DSB include consultations, panel procedures, appellate procedures and implementation procedures. In addition, the mechanism of the WTO DSB also prescribes good offices, conciliations and mediations. These procedures ensure that the trade disputes among the parties can be settled exactly and duly. The second chapter expatiates deficiencies and problems in substance of the mechanism of the WTO DSB. 1. Non-essential Justice for the Developing Countries Though the DSU is considered as one of the most important achievements of Uruguay round multilateral trade negotiation, from the view of the developing countries, it still has some problems. These problems restrain the developing countries from participating in the DSB actively and effectively. It is reflected in several following respects mainly. First, the developing countries lack the professional lawyers who can deal with the WTO cases. It makes them in the disadvantageous position in the lawsuits against the developed countries. Second, the lawsuit costs are too high for the developing countries. When the developing countries attempt to litigate, they have to compare the interests with the costs. Third, the special and the differential treatment clauses are formalization and they lack the maneuverability. The legitimate rights and interests of the developing countries can"t be ensured practically. Fourth, because the developing countries lack the will and capital to retaliate, the implementation of retaliation is very difficult. Fifth, the suggestions of the developing countries are difficult to attract attention in the WTO. 2. Power of the mechanism of the WTO DSB is too large Not all types of disputes are suitable to be submitted to the DSB through the compelling jurisdiction such as the public healthy questions of one member.This kind of questions concerns the whole national existence of one country. Even these questions are submitted to the DSB, the final rulings are very difficult to be accepted and performed by the parties who lose the lawsuits. They prefer being retaliated to taking the lives of people to take a risk. 3. Deficiencies and problems of panel procedures The part-time character of panels will reduce the efficiency to judge the cases. Because of lacking the technological background, panels will lack confidence while judging some cases. And it is difficult to form the independent judgment. The experts of law in some domains are insufficient, which will influence the veracity and efficiency to judge. The third chapter expatiates deficiencies and problems in procedure of the mechanism of the WTO DSB.
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