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王 衡
西南政法大学
国际法学院教授
西南政法大学研究生导师,法学博士、国际投资与金融法律研究中心副主任。兼任(以时间为序)(世界)国际经济法协会常务理事、亚洲国际经济法网络常务理事、中国国际经济法学会理事、中国法学会国际经济法学研究会理事、西班牙马德里仲裁院仲裁员、国际可持续发展研究院董事等职。(更多
 
 
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中国出版物案上诉机构报告节选
 

CHINA – MEASURES AFFECTING TRADING RIGHTS AND DISTRIBUTION SERVICES FOR CERTAIN PUBLICATIONS AND AUDIOVISUAL ENTERTAINMENT PRODUCTS
WT/DS363/AB/R
AB-2009-3
21 December 2009

Report of the Appellate Body (中国出版物案上诉机构报告节选)

VI.               China's Defence under Article XX(a) of the GATT 1994

A.                 The Availability of a Defence under Article XX(a) of the GATT 1994

(…)

216. The first two sentences of paragraph 5.1 of China's Accession Protocol provide:

Without prejudice to (注:在不影响...的情况下) China's right to regulate trade in a manner consistent with the WTO Agreement, China shall progressively liberalize the availability and scope of the right to trade, so that, within three years after accession, all enterprises in China shall have the right to trade in all goods throughout the customs territory of China, except for those goods listed in Annex 2A which continue to be subject to state trading in accordance with this Protocol. Such right to trade shall be the right to import and export goods.

(…)

222. We read the phrase "in a manner consistent with the WTO Agreement" as referring to the WTO Agreement as a whole, including its Annexes. We note, in this respect, that we see the "right to regulate", in the abstract, as an inherent power enjoyed by a Member's government, rather than a right bestowed by international treaties such as the WTO Agreement. With respect to trade, the WTO Agreement and its Annexes instead operate to, among other things, discipline the exercise of each Member's inherent power to regulate by requiring WTO Members to comply with the obligations that they have assumed thereunder. When what is being regulated is trade, then the reference in the introductory clause to "consistent with the WTO Agreement" constrains the exercise of that regulatory power such that China's regulatory measures must be shown to conform to WTO disciplines.

223. We observe, in this regard, that WTO Members' regulatory requirements may be WTO-consistent in one of two ways. First, they may simply not contravene any WTO obligation. Secondly, even if they contravene a WTO obligation, they may be justified under an applicable exception. The reference to "a manner consistent with the WTO Agreement" seems to us to encompass both types of WTO-consistency. Thus, we read the phrase "right to regulate trade in a manner consistent with the WTO Agreement" as a reference to: (i) rights that the covered agreements affirmatively recognize as accruing to WTO Members, namely, the power of Members to take specific types of regulatory measures in respect of trade in goods when those measures satisfy prescribed WTO disciplines and meet specified criteria; and (ii) certain rights to take regulatory action that derogates from obligations under the WTO Agreement—that is, to relevant exceptions.

(…)

226. We recall, in this respect, our understanding of the relationship between the introductory clause and the remainder of the first sentence of paragraph 5.1. Under paragraph 5.1, China undertakes a commitment in respect of traders, in the form of a commitment to grant to all enterprises in China the right to import and export goods. At the same time, this commitment, or obligation, is made subject to, and may not detrimentally affect, China's right to regulate trade in a manner consistent with the WTO Agreement. We see the obligations assumed by China in respect of trading rights, which relate to traders, and the obligations imposed on all WTO Members in respect of their regulation of trade in goods, as closely intertwined.

(…)

229. China's power to regulate trade in goods is disciplined by the obligations set out in Annex 1A of the WTO Agreement. In our view, the introductory clause of paragraph 5.1 cannot be interpreted in a way that would allow a complainant to deny China access to a defence merely by asserting a claim under paragraph 5.1 and by refraining from asserting a claim under other provisions of the covered agreements relating to trade in goods that apply to the same or closely linked measures, and which set out obligations that are closely linked to China's trading rights commitments.684 Rather, whether China may, in the absence of a specific claim of inconsistency with the GATT 1994, justify its measure under Article XX of the GATT 1994 must in each case depend on the relationship between the measure found to be inconsistent with China's trading rights commitments, on the one hand, and China's regulation of trade in goods, on the other hand.

230. All of the above suggests to us that the introductory clause of paragraph 5.1 should be interpreted as follows. Any exercise of China's right to regulate trade will be protected under the introductory clause of paragraph 5.1 only if it is consistent with the WTO Agreement. This will be the case when China's measures regulating trade are of a type that the WTO Agreement recognizes that Members may take when they satisfy prescribed disciplines and meet specified conditions. Yet, these are not the only types of WTO-consistent measures that may be protected under the introductory clause of paragraph 5.1. Whether a measure regulating those who may engage in the import and export of goods falls within the scope of China's right to regulate trade may also depend on whether the measure has a clearly discernable, objective link to the regulation of trade in the goods at issue. In considering whether such a link is discernable, it may be relevant whether the measure regulating who may engage in trade is clearly and intrinsically related to the objective of regulating the goods that are traded. In addition, such a link may often be discerned from the fact that the measure in question regulates the right to import and export particular goods. This is because the regulation of who may import and export specific goods will normally be objectively related to, and will often form part of, the regulation of trade in those goods. Whether the necessary objective link exists in a specific case needs to be established through careful scrutiny of the nature, design, structure, and function of the measure, often in conjunction with an examination of the regulatory context within which it is situated. When such a link exists, then China may seek to show that, because its measure complies with the conditions of a GATT 1994 exception, the measure represents an exercise of China's power to regulate trade in a manner consistent with the WTO Agreement and, as such, may not be impaired by China's trading rights commitments.

(…)

 

    B.                 The "Necessity" Test under Article XX(a) of the GATT 1994

 

 

     234. The Panel found that China had not demonstrated that any of the provisions that China sought to justify are "necessary to protect public morals" within the meaning of Article XX(a) of the GATT 1994. On appeal, China challenges this conclusion. More specifically, China contends that the Panel erred in finding: (i) that the State-ownership requirement in Article 42(2) of the Publications Regulation makes no material contribution to the protection of public morals in China;

(ii) that the provisions excluding foreign-invested enterprises from engaging in the importation of the relevant products make no material contribution to the protection of public morals in China;

(iii) that the restrictive effect of the provisions on "those wishing to engage in importing" is relevant for assessing the necessity of such provisions under Article XX(a); and (iv) that at least one of the alternative measures proposed by the United States (that is, giving the Chinese Government sole responsibility for conducting content review) was an alternative "reasonably available" to China. In addition, China requests the Appellate Body to complete the analysis and find its measures to be "necessary" to protect public morals within the meaning of Article XX(a) and consistent with the chapeau of Article XX of the GATT 1994.

(…)

277. We now turn to China's allegation that the Panel failed to make an objective assessment of the matter before it as required by Article 11 of the DSU because it failed to address China's argument that professionals performing content review must be familiar with Chinese values and public morals, and capable of efficiently communicating with and understanding the authorities. We note that China's argument is reflected in the Panel's summary of China's arguments, as well as in the Panel's analysis of the "necessity" of the State-ownership requirement. As explained above, in analyzing China's defence of the State-ownership requirement, the Panel was not convinced that enterprises with private investment would be unable to attract qualified personnel or unable to obtain the expertise needed to conduct content review properly. In our view, such reasoning—with which we agree— applies equally to the arguments made by China in defence of its provisions excluding foreign invested enterprises from engaging in importation. The mere fact that an entity involves some foreign investment does not necessarily imply that content review would be carried out by professionals who are not familiar with Chinese values and public morals, or incapable of efficiently communicating with and understanding the authorities. In fact, those carrying out these functions could be the same individuals, with the same qualifications and capabilities, irrespective of the ownership of the equity of the import entity. Thus, China did not establish that the exclusion of foreign-invested enterprises from engaging in the importation of the relevant products contributes to the protection of public morals in China. We see no indication that the Panel did not reasonably consider China's claim or otherwise failed to make an objective assessment of the matter.

278. We therefore find that the Panel did not err, in paragraphs 7.865 and 7.868 of the Panel Report, in its finding regarding the contribution made by the provisions excluding foreign-invested enterprises from engaging in the importation of the relevant products and we reject China's claim that the Panel failed to make an objective assessment of the matter before it in violation of Article 11 of the DSU.

(…)

283. The Panel understood China to contend that the State plan requirement is designed to ensure, first, that only a limited number of import entities are approved, and, secondly, that each approved import entity has an extensive geographical presence, through branches, in a large number of customs areas. The Panel found that limiting the number of import entities can make a material contribution to the protection of public morals in China. The Panel based this finding on two considerations: (i) a limitation on the number of publication import entities would make it easier for the GAPP to interact with these entities and to ensure the consistency of their content review; and (ii) a limitation on the number of import entities would allow the GAPP to devote more time to conduct annual inspections of compliance with the content review requirements. Although the Panel was not persuaded that, in itself, a wide geographical distribution of the branches of import entities makes a significant contribution to the protection of public morals, the Panel noted that there appeared to be a close link between the desired wide geographical distribution of the branches and the desired limitation on the number of import entities, and viewed both elements as "forming a single whole".

(…)

294. In reaching its finding regarding the contribution made by the State plan requirement to the protection of public morals in China, the Panel simply stated that limiting the number of import entities "can make a material contribution" to the protection of public morals in China. Yet, the Panel neither addressed quantitative projections nor provided qualitative reasoning based on evidence before it to support that finding. The Panel Report contains no discussion of how or to what extent the State plan requirement can or does make a contribution. For these reasons, we disagree with the Panel's finding that China had met its burden of proof regarding the contribution of the State plan requirement to the protection of public morals in China.

(…)

299. We have found that the Panel erred in finding that the State plan requirement is apt to make a material contribution to the protection of public morals in China and can be characterized as "necessary", in the absence of reasonably available alternatives, to protect public morals in China.

(…)

324. In reviewing the Panel's analysis of whether content review under the sole responsibility of the Chinese Government is an alternative measure reasonably available to China, we note first that the Panel articulated the proper approach to its analysis. The Panel first scrutinized the alternative measure proposed by the United States and compared it to the existing measures in terms of contribution to the protection of public morals in China and restrictive impact. The Panel then assessed whether China had demonstrated that the proposed alternative measure is not reasonably available because it would impose an undue financial and administrative burden on China. The Panel's analysis makes clear that the Panel considered that the burden of establishing that the alternative is not reasonably available rested on China and, indeed, China does not contend otherwise on appeal.

325. In our view, the Panel did not ignore the fact that the proposal put forward by the United States would require changes to the current system, and that these could entail additional costs for China. To the contrary, the Panel noted China's argument that implementing the United States' proposal "would impose an undue burden", create the risk of "undue delays", and demand "substantial resources" given the large quantities of imports involved and the time-sensitive nature of newspapers and periodicals. The Panel expressly recognized that the alternative might require China to allocate additional human and financial resources to content review authorities, in particular for content review of reading materials. This recognition was, however, tempered by additional observations that the Panel considered pertinent. Thus, the Panel observed that, for products other than reading materials (electronic publications, audiovisual products and films for theatrical release), the Chinese Government already makes the final content review decision under its current system. In addition, the Panel was not convinced that the cost to the Chinese Government would necessarily be higher under the alternative proposed by the United States. Given that, at present, all import entities are wholly owned by the State, it was "not apparent" to the Panel that the cost to the Chinese Government of having non-incorporated offices of the Government of China conduct content review would necessarily be higher than the cost of having incorporated State-owned enterprises conduct such review. The Panel observed that, in any event, China had not provided any data or estimate that would suggest that the cost to the Chinese Government would be unreasonably high or even prohibitive, and that Article 44 of the Publication Regulation already authorizes the Government to charge fees for providing a content review service, which could lessen any financial burden associated with the proposed alternative measure.

326. After having set out the above reasoning, the Panel determined that China had not"demonstrated that the alternative proposed by the United States would impose on China an undue burden, whether financial or otherwise" and that, accordingly, China had not "demonstrated that the alternative proposed by the United States is not 'reasonably available' to it."

327. We are not persuaded that the Panel erred in the above analysis. The Panel did not find that the proposed alternative measure involves no cost or burden to China. As the Appellate Body report in US – Gambling makes clear, an alternative measure should not be found not to be reasonably available merely because it involves some change or administrative cost. Changing an existing measure may involve cost and a Member cannot demonstrate that no reasonably available alternative exists merely by showing that no cheaper alternative exists. Rather, in order to establish that an alternative measure is not "reasonably available", the respondent must establish that the alternative measure would impose an undue burden on it, and it must support such an assertion with sufficient

evidence.

(…)

C.                 Summary and Conclusion on Article XX(a) of the GATT 1994

336. We have found above that: (i) by virtue of the introductory clause of paragraph 5.1 of China's Accession Protocol, China may, in this case, invoke Article XX(a) of the GATT 1994 to justify the provisions and requirements found to be inconsistent with its trading rights commitments under its Accession Protocol and Accession Working Party Report; (ii) the Panel did not err in its finding regarding the contribution to the protection of public morals in China made by the State-ownership requirement in Article 42(2) of the Publications Regulation; (iii) the Panel did not err in its finding regarding the contribution to the protection of public morals made by the provisions excluding foreign-invested enterprises from engaging in the importation of the relevant products; (iv) the Panel erred in finding that the State plan requirement in Article 42 of the Publications Regulation is apt to make a material contribution to the protection of public morals and that, in the absence of a reasonably available alternative, it can be characterized as "necessary" to protect public morals in China; (v) the Panel did not err in taking account of the restrictive effect that the measures at issue have on those wishing to engage in importing as part of its assessment of the restrictive effect of the provisions of China's measures found to be inconsistent with its trading rights commitments; and (vi) the Panel did not err in finding that at least one of the alternative measures proposed by the United States is an alternative "reasonably available" to China.

 

 VII.  Scope of China's GATS Schedule Entry "Sound Recording Distribution Services"

 

A.      Introduction

338. We now turn to the Panel's analysis of the scope of China's GATS Schedule entry on "Sound recording distribution services". The Panel interpreted China's GATS Schedule and reached the conclusion that the entry "Sound recording distribution services", under the heading of "Audiovisual Services" in sector 2.D of that Schedule, "extends to the distribution of sound recordings in nonphysical form, notably through electronic means". On this basis, the Panel proceeded to find that:

[t]he Circular on Internet Culture (Article II), the Network Music Opinions (Article 8), and the Several Opinions (Article 4), each is inconsistent with China's national treatment commitments under Article XVII of the GATS. Article X:7 of the [List] of Prohibited Foreign Investment Industries of the Catalogue, in conjunction with Articles 3 and 4 of the Foreign Investment Regulation, is also inconsistent with Article XVII of the GATS.

339. Each of the provisions found by the Panel to be inconsistent with China's obligations under Article XVII of the GATS prohibits foreign-invested enterprises from engaging in the electronic distribution of sound recordings in China, while like domestic service suppliers are not similarly prohibited.

340. China appeals the Panel's finding that the above provisions in China's measures are inconsistent with Article XVII of the GATS. More specifically, China contends that the Panel erred in interpreting the entry "Sound recording distribution services" in China's GATS Schedule as encompassing distribution by electronic means.

(...)

B.      Article 31 of the Vienna Convention

347. China challenges several elements of the Panel's analysis and findings under Article 31(1) of the Vienna Convention. According to that provision:

A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.)

   1. Ordinary Meaning and the Panel's Use of Dictionary Definitions (注:一项争议点是字典解释在GATS规则解释的地位与作用)

348. The Appellate Body has previously held that, while a panel may start with the dictionary definitions of the terms to be interpreted, in the process of discerning the ordinary meaning, dictionaries alone are not necessarily capable of resolving complex questions of interpretation because they typically catalogue all meanings of words. Dictionaries are important guides to, but not dispositive of, the meaning of words appearing in treaties. For these reasons, the Appellate Body has cautioned panels against equating the "ordinary meaning" of a term with the definition provided by dictionaries.  Under Article 31 of the Vienna Convention, the "ordinary meaning" of treaty terms may be ascertained only in their context and in the light of the object and purpose of the treaty. In this respect, the Appellate Body has explained that interpretation pursuant to the customary rule codified in Article 31 of the Vienna Convention is ultimately a holistic exercise that should not be mechanically subdivided into rigid components.

349. The relevant entry in China's GATS Schedule reads "Sound recording distribution services". This entry is inscribed under sector 2.D "Audiovisual Services".According to China, this entry covers only the distribution of sound recordings in physical form, for example, music embedded on compact discs ("CDs"). The United States, in contrast, maintains that the entry encompasses the distribution of sound recordings in both physical and electronic form, for example, through the Internet or by other electronic means.

(...)

354. We  (注:此处我们是指Appellate Body) observe that the dictionary definitions submitted by China to the Panel included a range of meanings for the terms "recording" and "distribution". China itself referred to "recorded material", which was the definition that the Panel considered "most relevant". Although China contends that the Panel disregarded alternative definitions from The American Heritage Dictionary of the English Language, in particular the definition of "recording" as "[s]omething on which sound or visual images have been recorded", we note that this same dictionary also provides a definition of "recording" as "[a] recorded sound or picture". Whilst the Panel did not quote the latter two definitions from the dictionary in question, it did assess whether the term "sound recording" encompasses only the "particular medium on which the content is embedded or transferred", or also "material that is recorded" and "content".659 The Panel was not required in doing so to quote each dictionary definition submitted by the parties expressing these meanings in similar form. We, therefore, do not believe that the Panel failed to consider whether "sound recording" could be read as "something on which sound or visual images have been recorded." Rather, the Panel explored whether the entry at issue covered only distribution of sound recordings in physical form, or extended to their distribution in electronic form. Ultimately, the Panel was not persuaded that the meaning of the term "sound recording" excluded recorded content stored or distributed in electronic form.

355. Moreover, the definitions of "distribution"660 submitted by China do not necessarily support the meaning ascribed to this term by China. While each of these dictionaries—the Shorter Oxford English Dictionary and The American Heritage Dictionary of the English Language—offers a definition of "distribution" that refers to "goods" or "commodities", both also refer to alternative meanings for the term as encompassing the dispersal of tangible as well as intangible products, as the Panel observed.

356. In its analysis of dictionary definitions for purposes of discerning the ordinary meaning of the term "Sound recording distribution services", the Panel identified some meanings as more relevant to its analysis, but did not clearly explain why certain definitions were more relevant than others. However, we do not believe that the absence of a clear explanation amounts to an error in the Panel's analysis of dictionary definitions, because its analysis makes clear that it took into consideration the meaning advocated by China, regardless of the dictionary sources of the various definitions before it.

  357. We recognize, as China argues, that certain language used by the Panel suggests that it may have reached conclusions on the ordinary meaning based on only certain dictionary definitions. The Panel also did not quote in its reasoning the alternative dictionary definitions submitted by China and contained in The American Heritage Dictionary of the English Language. However, the Panel did consider whether the meaning of the entry "Sound recording distribution services" was limited to the distribution of physical goods or whether it extended to electronic distribution, and it continued to do so in its subsequent analysis of relevant context, and object and purpose, as explained below.  We, therefore, do not consider that, in its analysis of the ordinary meaning of "Sound recording distribution services", the Panel disregarded the definitions put forward by China.  Neither are we persuaded that the Panel prematurely reached conclusions on the ordinary meaning of "Sound recording distribution services" based only on dictionary meanings before analyzing the relevant context and the object and purpose of the GATS.  In sum, based on our review of the Panel's reasoning, we believe that the Panel did not err in its consideration of dictionary definitions of the terms "sound recording" and "distribution".

 2. Context

(...)

 (a) China's GATS Schedule

 (注:解释中国承诺表中的“Audiovisual Services”一词)

361. We start by reviewing the contextual relevance of the heading to sector 2.D, "Audiovisual Services", under which the "Sound recording distribution services" entry is inscribed, followed by the actual commitments scheduled for this entry and the other subsectors scheduled under "Audiovisual Services".

362. The Panel considered the sector heading itself and found that the meaning of the term "audiovisual" ("pertaining to both hearing and vision") suggested that services scheduled under this heading (such as "Sound recording distribution services"), unless otherwise specified, relate to the production, distribution, projection, or broadcasting of content that is "sensed by the user through the faculties of hearing or vision."671 Such context does not, in itself, rule out the possibility that China could have scheduled commitments concerning services related only to physical products under such a heading.

363. Regarding the commitments scheduled by China for its entry "Sound recording distribution services", we observe that the market access and national treatment limitations listed for this subsector in the four modes of supply also apply to "Videos, including entertainment software and (CPC 83202), distribution services". In these two subsectors, China has made full market access and national treatment commitments in modes 1, 2, and 3, except for certain limitations to mode 3 in the market access column. Specifically, China limits the type of legal entity or joint venture through which foreign service suppliers may engage in the distribution of audiovisual products, by requiring that they form contractual joint ventures with Chinese partners and subject to China's right to examine the content of audio and video products. In addition, motion pictures are explicitly referred to, and excluded from, the scope of the commitments under "Audiovisual Services". Notwithstanding this exclusion, China scheduled an additional commitment, allowing the annual importation of 20 motion pictures for theatrical release on a revenue-sharing basis.

364. We observe that the reference to audiovisual "products" in the scheduled market access limitation can encompass both physical and non-physical sound recordings, because, as the Panel found, the term "product" is used to refer to both tangible and intangible goods, as well as services.  Thus, China's commitment on "Sound recording distribution services" does not specify whether it is limited to the distribution of physical goods, but it does include a market access limitation on the distribution of audiovisual "products" that refers to both tangibles and intangibles.  Such commitment might have expressly indicated that it relates only to the distribution of tapes, videocassettes, CDs, digital video discs ("DVDs"), and/or other physical media, but it does not.

365. Regarding the reference to "motion pictures", we observe that it is not disputed that this term refers to non-physical content that can be embedded in physical products.675 China's mode 3 market access commitment covers "audiovisual products", excluding "motion pictures", thus implying that motion pictures would otherwise be included within the category of audiovisual products. Moreover, China undertakes an additional commitment on the importation of motion pictures for theatrical release under the heading "Audiovisual Services". Therefore, we consider that the reference to motion pictures under "Audiovisual Services" in China's GATS Schedule supports the view that the term "audiovisual products" is used to refer to both tangible and intangible products and that the term "Sound recording distribution services" also refers to both tangible and intangible products. This also supports the view that this entry covers the electronic distribution of sound recordings.

366. The Panel also considered the other two subsectors scheduled by China under "Audiovisual Services", that is, "Videos, including entertainment software and (CPC 83202) distribution services" and "Cinema Theatre Services".

367. China argues that the Panel erred in finding that the term "videos" refers primarily to intangible content  and that it failed to give meaning to the fact that the entry in China's GATS Schedule refers to "videos" in the plural form. The use of the plural form, in China's view, suggests that the noun "videos" must refer to something countable, such as the "physical copies of content recorded on video tape".  In our view, the plural word "videos" in China's Schedule does not suggest a limitation to something tangible, because non-physical products are no less countable than physical ones. Videos contained in electronic files are just as countable as those that are embedded in video tapes, CDs, and DVDs. Accordingly, we do not see how the use of the plural term by itself excludes videos in electronic form.

368. We note that the entry "Videos, including entertainment software and (CPC 83202) distribution services" is scheduled under "Audiovisual Services" adjacent to "Sound recording distribution services". The Panel observed that the entry "Videos, (...) distribution services" extended to the distribution of both physical and non-physical products and reasoned that "the concept of 'distribution services' in China's entries relating to videos and to sound recording must have similar meaning", that is, they both include physical and non-physical products.

369. We agree with this reasoning of the Panel. The fact that the entry "Videos, (...) distribution services" applies to intangible products681 represents relevant context suggesting that the entry "Sound recording distribution services", which is subject to the same market access and national treatment limitations in the four modes of supply, should also be interpreted as applying to intangible products. We note that the entry "Videos, (...) distribution services" includes "entertainment software", which is also a reference to content that can be incorporated into physical products or transmitted electronically. In our view, this provides further contextual support for interpreting "Sound recording distribution services" as referring to content in both physical and non-physical form, and thus extending to the electronic distribution of sound recordings.

370. The other entry scheduled under the heading "Audiovisual Services" is "Cinema Theatre Services", which is limited to the construction and renovation of cinema theatres. We do not consider that the inclusion of an entry on the construction and renovation of cinema theatres under "Audiovisual Services" provides contextual guidance for the interpretation of "Sound recording distribution services". As we see it, the Panel attached little contextual significance to China's commitment covering the construction and renovation of cinema theatres, stating only that the context of this entry "is consistent with the view" that "Sound recording distribution services" refers to the distribution of sound recordings as content.

    371. We next turn to the Panel's interpretation of the context represented by China's commitments under sector 4 (Distribution Services) of its GATS Schedule. Like the Panel, we note that China's commitments on "Distribution Services" cover all physical products, except certain products explicitly excluded in the sector column of the Schedule. Absent the commitment on "Sound recording distribution services" under sector 2.D (Audiovisual Services), the physical distribution of sound recording embedded in physical media would, in principle, have been covered by China's commitments on "Distribution Services".

372. We therefore agree with the Panel's observation that, had China's relevant entry "Sound

recording distribution services" under "Audiovisual Services" been intended to cover exclusively the distribution of audiovisual products in physical form, "there would have been no need to insert [this entry and the entry "Video (...) distribution services"] under a sector other than Distribution Services, where the distribution of physical goods are generally covered in China's Schedule." This alone does not demonstrate that this entry also covers the electronic distribution of sound recordings. However, we recognize the contextual relevance of the fact that the entry "Sound recording distribution services" has been inscribed under the sector concerned with audiovisual content, "Audiovisual Services", as opposed to the sector "Distribution Services", which covers the distribution of physical goods in China's GATS Schedule. This, in our view, provides contextual support for an interpretation of the entry "Sound recording distribution services" as extending also to the distribution of non-physical products.

 (b) Provisions of the GATS

 (注:联系GATS中的相关条款解释中国承诺书中的“Sound recording distribution services”是否包括无形产品的分销问题)

373. We examine next whether relevant context for the interpretation of the phrase "Sound recording distribution services" can be found in the provisions of the GATS. We start by considering the rules in the GATS itself that govern the scheduling of specific commitments and Articles I and XXVIII(b) of the GATS. We then turn to the Panel's analysis of the meaning imparted by Article XXVIII(b) of the GATS to the notion of "distribution" in China's GATS Schedule. 

 374. We observe that the meaning of terms used in specific commitments inscribed in Members' Schedules is also informed by the rules in the GATS itself that govern the scheduling of such commitments.  Thus, in US – Gambling, the Appellate Body examined "the context provided by the structure of the GATS itself" in interpreting the relevant entry in the United States' GATS Schedule under Article 31 of the Vienna Convention.(注:此处以美国博彩案为例)

375. As we have explained, the entry "Sound recording distribution services" in China's GATS Schedule is not further qualified except for a mode 3 market access limitation regarding contractual joint ventures to distribute audiovisual products (excluding motion pictures) and without prejudice to China's right to examine the content of audiovisual products. China does not limit the subsectoral scope of this commitment to specific segments of sound recordings (for example, songs, instrumental works, ring tones, speeches), but commits to sound recording distribution generally. Moreover, China's GATS Schedule does not expressly exclude or include any particular form of delivery, for example, by indicating that the commitment is limited to the physical distribution of sound recordings embedded in physical media, or that it also covers electronic distribution. It merely specifies that supply of the relevant services through mode 3 (commercial presence) is permitted only for contractual joint ventures with Chinese partners (except for motion pictures) and restates China's right to examine audiovisual content.

376. The provisions of the GATS itself, insofar as they concern the scheduling of specific commitments, also provide relevant context for the interpretation of specific commitments. Article I defines "trade in services" as the supply of a service through the four modes of supply. The GATS distinguishes four modes of supply, but does not provide for further distinctions between forms of delivery. Article XXVIII(b) of the GATS defines the "supply of a service" as including "the production, distribution, marketing, sale and delivery of a service". Article XX of the GATS requires each Member to set out in a Schedule the specific commitments it undertakes and to specify by sector any limitations, conditions, or qualifications on market access and national treatment, and any additional commitments. Members undertake specific commitments in sectors or subsectors and according to the four modes of supply. The GATS also allows Members to circumscribe the scope of their commitments by qualifying the scope of sectors or subsectors inscribed in the Schedule, by including or excluding modes of supply, and by listing limitations, qualifications, or conditions on market access and national treatment.

377. We observe that, unless a sector is included in a Schedule, it is not subject to specific commitments. However, having included a sector or subsector and having specified commitments for one or more modes of supply in its Schedule, a Member undertakes to liberalize "the production, distribution, marketing, sale and delivery" of the service(s) falling within that sector or subsector and mode(s) of supply, unless it has specified otherwise by inserting conditions, limitations, or qualifications in the Schedule. This implies that, in the absence of specific limitations, conditions, or qualifications, the meaning of "Sound recording distribution services" is not limited to the physical delivery of sound recordings. Rather, this entry would encompass  distribution in electronic form.

378. In interpreting the term "distribution" as it appears in China's commitment on "Sound recording distribution services", the Panel also considered the contextual relevance of the definition of "supply of a service" in Article XXVIII(b), which includes "the production, distribution, marketing, sale and delivery of a service". China contends that, even if the term "distribution" could, in the abstract, relate to the distribution of both physical and intangible products, this does not resolve the question of whether the specific entry in China's GATS Schedule covers distribution of audiovisual products only on physical carriers or extends also to such products stored in intangible form.

379.The definition of "supply of a service" in Article XXVIII(b) of the GATS would not in itself exclude the possibility of drafting a Schedule entry in a way that covers only the distribution of physical goods.  However, the interpretative question in this dispute is whether China's entry has been formulated in such a way.  It is clear that the term "distribution" as used in Article XXVIII(b) of the GATS refers to the distribution of something intangible—services.  We agree with the Panel that this is relevant context in interpreting the meaning of the term "distribution" in China's entry "Sound recording distribution services" in its GATS Schedule, and that Article XXVIII(b) of the GATS lends support to an interpretation of the term "distribution" in the relevant entry in China's Schedule as covering the distribution of both tangible and intangible products.

380. In sum, the context provided by the entry under the relevant heading in China's GATS Schedule, taking into account relevant qualifications or conditions, and read in the light of the GATS definitions of "trade in services" and "supply of a service" and of the provisions relevant for scheduling commitments and inscribing limitations, qualifications, and conditions, does not support an interpretation of the entry "Sound recording distribution services" as limited to the distribution of sound recordings in physical form.

(c) GATS Schedules of Other Members

 (注:此处讨论是否可以引用其他WTO成员承诺表相关条目来解释中国承诺表)

381. The Panel also reviewed the GATS Schedules of several other Members—in particular, their commitments on audiovisual and distribution services—as relevant context for its interpretation of the entry "Sound recording distribution services" in China's GATS Schedule. The Panel found that the context provided by these other GATS Schedules did not point to an interpretation in any way different from that suggested by the other contextual elements it had examined, that is, that China's entry "Sound recording distribution services" extends to sound recordings distributed in non-physical form

 382. We recall that, according to the Appellate Body in US – Gambling, the fact that "Members' Schedules constitute relevant context for the interpretation of subsector 10.D of the United States' Schedule" was "the logical consequence of Article XX:3 of the GATS, which provides that Members' Schedules are 'an integral part' of the GATS." The Appellate Body, however, cautioned that the "use of other Members' Schedules as context must be tempered by the recognition that 'each Schedule has its own intrinsic logic'", which will be different from the Schedule being interpreted.(注:上诉机构认为,可以引用其他成员的承诺表来解释,但在引用时必须谨慎。)

 383.The Panel considered the GATS Schedules of other Members together with other elements of context.  Yet, in so doing, the Panel expressly stated that it was mindful of the fact that, although the GATS Schedules of Members are treaty text reflecting the common intentions of all WTO Members, each Schedule has "its own logic" and thereby acknowledged that recourse to other Members' Schedules may be of limited utility in elucidating the meaning of the entry to be interpreted.

384. Moreover, the examination of the Schedules of other Members was not a central element of the Panel's contextual analysis. The Panel did not find that the GATS commitments of other Members confirmed its interpretation of the inscription "Sound recording distribution services" in China's GATS Schedule, but simply stated that "the context provided by the Schedules of other Members, does not point to an interpretation in any way different from that suggested by the other contextual elements [it] examined". In other words, whilst the Panel viewed the Schedules of other Members to be of limited contextual relevance to the interpretation of the particular entry in China's Schedule, it concluded that the Schedules of other Members did not suggest that electronic distribution should be excluded.

385. Therefore, we do not see merit in China's argument that the Panel could not derive any inferences from the GATS Schedules of other Members for the interpretation of "Sound recording distribution services" in China's GATS Schedule.698 As we consider below, the Panel did not rely on any particular element of context as conclusive, but found instead that its overall analysis of context supported an interpretation that China's entry "Sound recording distribution services" extends also to electronic distribution. Under these circumstances, we do not consider that the Panel erred in its consideration of the GATS Schedules of other Members as context.

(d) Summary

386. China argues that the Panel's analysis of each element of context was "inconclusive" as to whether "Sound recording distribution services" extends to electronic distribution and that the Panel erred in concluding that its contextual analysis supported its original understanding of the ordinary meaning of this entry.

387. As we have considered above, while certain elements of context clearly support the Panel's interpretation of "Sound recording distribution services" as extending to the electronic distribution of sound recordings, other elements considered by the Panel are consistent with or do not contradict such an interpretation of the scope of this commitment. On balance, we are persuaded that the analysis of a number of contextual elements supports the interpretation of China's commitment on "Sound recording distribution services" as including the electronic distribution of sound recordings.

388. We further note that the Panel did not regard any of the specific elements it reviewed under Article 31 of the Vienna Convention as in and of itself "conclusive" as to the question of whether "Sound recording distribution services" should be interpreted as encompassing electronic distribution. Rather, the Panel was careful to distinguish among: elements that support such an interpretation; elements that are consistent with the interpretation; and elements that offer no guidance. In this regard, we consider that China's claim, that each of the interpretative elements reviewed by the Panel is "inconclusive" with respect to the interpretation of "Sound recording distribution services", overlooks the nature of the interpretative exercise to be undertaken under Article 31 of the Vienna Convention.

 3. Object and Purpose  (注:讨论解释中国承诺表与GATS序言中目的与宗旨的关系)

392. We observe that the GATS preamble lists various objectives, including the "establish[ment] of a multilateral framework of principles and rules for trade in services with a view to the expansion of such trade under conditions of transparency and progressive liberalization", and the "early achievement of progressively higher levels of liberalization of trade in services through successive rounds of multilateral negotiations". The Panel found that its interpretation of "Sound recording distribution services" is consistent with the objectives listed in the GATS preamble.

393. We do not disagree with the Panel that nothing in the GATS preamble appears to contradict an interpretation of "Sound recording distribution services" as extending to electronic distribution of sound recordings.  At the same time, we observe that none of the objectives listed in the GATS preamble provides specific guidance as to the correct interpretation to be given to China's GATS Schedule entry "Sound recording distribution services".

394. The principle of progressive liberalization is reflected in the structure of the GATS, which contemplates that WTO Members undertake specific commitments through successive rounds of multilateral negotiations with a view to liberalizing their services markets incrementally, rather than immediately and completely at the time of the acceptance of the GATS. ......We do not consider, however, that the principle of progressive liberalization lends support to an interpretation that would constrain the scope and coverage of specific commitments that have already been undertaken by Members and by which they are bound.(讨论逐步实现贸易自由化原则与具体承诺中的各种限制条款的关系。)

 395. Neither are we persuaded that, if the Panel had based its analysis on the meanings of the terms "sound recording" and "distribution" at the time of China's accession to the WTO—that is, 2001—it would have reached a different conclusion on the interpretation of the entry "Sound recording distribution services" in China's GATS Schedule. The term "sound recording" can be used to refer to "recorded content", irrespective of how it is distributed..We have already considered above that the GATS, which entered into force in 1995, contemplates in Article XXVIII(b) the distribution of services—that is, of intangibles. This lends support to interpreting the meaning of "distribution" as applying to both tangible and intangible products, and would equally have done so in 2001, and at the time the Panel interpreted the entry "Sound recording distribution services" in China's GATS Schedule.

 396. More generally, we consider that the terms used in China's GATS Schedule ("sound recording" and "distribution") are sufficiently generic that what they apply to may change over time.  In this respect, we note that GATS Schedules, like the GATS itself and all WTO agreements, constitute multilateral treaties with continuing obligations that WTO Members entered into for an indefinite period of time, regardless of whether they were original Members or acceded after 1995(此处结论是,解释具体承诺表条目时不能限于该条目在中国入世时的含义,承诺表条目含义应随时间变化而演进)

397. We further note that interpreting the terms of GATS specific commitments based on the notion that the ordinary meaning to be attributed to those terms can only be the meaning that they had at the time the Schedule was concluded would mean that very similar or identically worded

commitments could be given different meanings, content, and coverage depending on the date of their adoption or the date of a Member's accession to the treaty. Such interpretation would undermine the predictability, security, and clarity of GATS specific commitments, which are undertaken through successive rounds of negotiations706, and which must be interpreted in accordance with customary rules of interpretation of public international law.

4. Summary under Article 31 of the Vienna Convention

398. Having examined the ordinary meaning of the entry "Sound recording distribution services" in China's GATS Schedule, in its context and in the light of the object and purpose of the GATS, we reach the conclusion that China's commitment covers both physical distribution as well as the electronic distribution of sound recordings. We, therefore, do not consider that the Panel erred under Article 31 of the Vienna Convention in reaching "the preliminary conclusion that this commitment extends to sound recordings distributed in non-physical form, through technologies such as the Internet".

399. We are also persuaded that the application of the interpretative rule set out in Article 31 of the Vienna Convention to the entry "Sound recording distribution services" does not result in "inconclusiveness" or ambiguity as to the ordinary meaning of China's commitment. In this respect, we note that the purpose of the interpretative exercise is to narrow the range of possible meanings of the treaty term to be interpreted, not to generate multiple meanings or to confirm the ambiguity and inconclusiveness of treaty obligations. Rather, a treaty interpreter is required to have recourse to context and object and purpose to elucidate the relevant meaning of the word or term. This logical progression provides a framework for proper interpretative analysis, bearing in mind that treaty interpretation is an integrated operation, where interpretative rules and principles must be understood and applied as connected and mutually reinforcing components of a holistic exercise.

400. Having reached a conclusion on the interpretation of China's commitment on "Sound recording distribution services" under Article 31 of the Vienna Convention, we observe that we would not need to proceed to an examination of supplementary means of interpretation pursuant to Article 32 of the Vienna Convention to decide this appeal. The Panel, however, considered that recourse to supplementary means of interpretation was useful to confirm its preliminary conclusion based on the application of Article 31 and proceeded to examine the preparatory work of the treaty and the circumstances of the conclusion of the GATS pursuant to Article 32 of the Vienna Convention. China has appealed the Panel's application of Article 32. We therefore address the issues raised by China in respect of the Panel's analysis of supplementary means of interpretation pursuant to Article 32 of the Vienna Convention.

        



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