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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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服务贸易法成案试卷一参考答案
 

案例分析题
I


  1. It does not make sense. There are three reasons. Firstly, the tax is imposed on the periodicals themselves, not on advertising. Secondly, the tax is a “companion” to Tariff Code 9958, which involves a prohibition on the import of certain periodicals. Thirdly, the tax is applied to periodicals on a “per issue” basis. Thus, by its very “structure and design”, it is a tax on periodicals, and therefore affects products. Moreover, the entry into force of the GATS does not diminish the scope of application of the GATT 1994. So, the ordinary meaning of the texts of GATT 1994 and GATS as well as Article II:2 of the WTO Agreement, taken together, indicates that obligations under GATT 1994 and GATS can co-exist and that one does not override the other. And GATT Article Ⅲ applies to the Excise Tax Act. Based on this finding, there was no need to rule on the issue of a possible overlap between the GATT and the GATS.
  2.⑴ The Excise Tax Act is inconsistent with GATT Article Ⅲ:2, second sentence.
    ⑵ Because there are three aspects which are to be considered. Firstly, the imported products and the domestic products are directly competitive or substitutable products which are in competition with each other. Secondly, the directly competitive or substitutable imported and domestic products are not similarly taxed. Finally, the dissimilar taxation of the directly competitive or substitutable imported domestic products is applied so as to afford protection to domestic production.
    ⑶ Having considered the three aspects, we can see that the Excise Tax Act was applied so as to afford protection. First, the magnitude of the dissimilar taxation is such that it prohibits the importation of split-run periodicals. In addition, it is clear from a Canadian Government Task Force Report that the design and structure of the measure are to prevent the establishment of split-run periodicals in Canada, thereby ensuring that Canadian advertising revenues flow to Canadian magazines. This purpose is confirmed by statements of various Canadian Government officials. Finally, the actual effect of the tax has been to hinder the production of split-run periodicals in Canada.
  3.⑴ Canada’s postal rate scheme is justified under GATT Article Ⅲ:8(b).
    ⑵ GATT Article Ⅲ:8(b) states:
    The provisions of Article Ⅲ shall not prevent the payment of subsidies exclusively to domestic producers, including payments to domestic producers derived from the proceeds of internal taxes or charges applied consistently with the provisions of this Article and subsidies affected through governmental purchases of domestic products.
    ⑶ This provision exemplifies the kinds of programs which are exempted from the obligations of GATT Articles Ⅲ:2 and Ⅲ:4. In other words, the kinds of measures covered by this provision, and therefore exempt from the obligations of Article Ⅲ, are only the payment of subsidies which involves the expenditure of revenue by a government.

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II


  1. ⑴According to the related rules of WTO, Mexico has failed to fulfill its commitments under Section 2.2(b) of the Reference Paper by failing to ensure that a major supplier in terms of Section 2.2 of the Reference Paper by failing to ensure that a major supplier in terms of Section 2.2 of the Reference Paper provides interconnection to United States basic telecom suppliers of the services at issue on a facilities basis under cost-oriented rates. By contract, Mexico has not violated Section 2.2(b) of its Reference Paper, with respect to cross-border supply, on a non-facilities basis in Mexico, of the basic telecommunications services at issue, due to the absence of a commitment.
     ⑵Because the Section 2 of the Reference Paper, as incorporated in Mexico’s GATS schedule under “additional commitments,” governs “Interconnection.” In this regard, Section 2.1 states:
      This section applies, on the basis of the specific commitments undertaken, to linking with suppliers providing public telecommunications transport networks or services in order to allow the users of one supplier to communicate with users of another supplier and to access services provided by another supplier.
      Section 2.2 then requires that interconnection with a major supplier will be ensured at any technically feasible point in the network. Under Section 2.2(b), such “interconnection” is to be provided:
      In a timely fashion, on terms, conditions (including technical standards and specifications) and cost-oriented rates that are transparent, reasonable, having regard to economic feasibility.
  2. Measures that are “appropriate” in the sense of Section 1 would not need to prevent in every case the occurrence of anti-competitive practices. However, it said, “At a minimum, if a measure legally requires certain behavior, then it cannot logically be appropriate in preventing that same behavior.” Since Mexico maintains measures which legally require anti-competitive conduct by a major supplier, Mexico has failed to maintain appropriate measures’ to prevent such acts, contrary to Section 1 of its Reference Paper. On this basis, Mexico has failed, in violation of Section 1.1 of its Reference Paper, to maintain appropriate measures to prevent anti-competitive practices by maintaining measures that require anti-competitive practices among competing suppliers which, alone or together, are a major supplier of the services at issue.
  3. ⑴Section 5(a) of the Annex on Telecommunications reads:
     Each Member shall ensure that any service supplier of any other Member is accorded access to and use of public telecommunications transport networks and services on reasonable and non-discriminatory terms and conditions, for the supply of a service included in its schedule. This obligation shall be applied, inter alia, through paragraphs (b) through (f).
     ⑵Mexico has failed to meet its obligations under Section 5(a) of the GATS Annex on Telecommunications, by failing to ensure that service suppliers of the United States are accorded access to and use of public telecommunications transport networks and services in Mexico on reasonable terms.
     ⑶Mexico failed to meet its obligations under Section 5(b) of the GATS Annex on Telecommunications, by failing to ensure that commercially present commercial agencies of the United States have access to and use of private leased circuits and are permitted to interconnect these circuits to public telecommunications transport networks and services or with circuits of other service suppliers.

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III


  1. The national treatment obligation for measures that affect trade in services is set out in Article XVII of the GATS. This national treatment obligation is fundamentally different from the GATT national treatment obligation discussed in section 2.4. while the national treatment obligation of Article III of the GATT 1994 is applicable to all measures affecting trade in goods, the national treatment obligation of Article XVII of the GATS applies only to the extent that WTO Members have explicitly committed themselves to grant ‘national treatment’ in respect of special sectors. Members set out such commitments in the national treatment column of their ‘ schedule if special commitment. Whether a member makes commitment in a specific service sector depends on negotiations. Therefore, in principle, a member is free to decide whether to make a commitment, and even if such a commitment is made, it is often made subject to conditions and qualifications that limit the obligation’s scope of application. The schedules of specific commitments are attached to the GATS and are an integral part thereof.
  When a WTO member has made a commitment to provide national treatment in particular service sector, three questions must be answered to determine whether a measure of that member is inconsistent with this obligation, namely:
  (1) whether the GATS is apply to the measure at issue;
  (2) whether the foreign and domestic services or service supplier at issue are ‘like service’ or ‘like service supplier’; and
  (3) whether the foreign services and service suppliers are granted treatment no less favourable than domestic services and service suppliers.
  2. Generally, it is for the complaining party to establish a prima facie case, and a Panel may err when it rules on a claim for which a prima facie case has not been made. 
  As to the nature of a prima facie case, from the previous decisions, it must be based on "'evidence and legal argument' put forward by the complaining party in relation to each of the elements of the claim." A complaining party may not simply submit evidence and expect the panel to divine from it a claim of WTO-inconsistency, nor  may a complaining party simply allege facts without relating them to its legal arguments.  Referring to the requirements of DSU Article 6.2, it can be concluded that a prima facie case "demands no less of the complaining party," such that it "must be sufficient to identify the challenged measure and its basic import, identify the relevant WTO provision and obligation contained therein, and explain the basis for the claimed inconsistency of the measure with that provision." 
  Turning to the situation in this case, Antigua's claims were under GATS Article XVI:2, such that, in order to make its prima facie case, Antigua was required to argue first that "the United States had undertaken a market access commitment in its GATS Schedule," and, second, "identify[], with supporting evidence,  how the challenged laws  constitute impermissible 'limitations' falling within Article XVI:2(a) or XVI:2(c)."  Moreover, Antigua was required to make its prima facie case "with respect to specific federal and state laws identified in its panel request." We can conclude, "Antigua's arguments and evidence were sufficient to identify the Wire Act, the Travel Act, and the IGBA, and to make a prima facie case of their inconsistency with sub-paragraphs (a) and (c) of Article XVI:2."
  As for the state laws, as the Appellate Body stated, "we see no basis on which we can conclude that Antigua sufficiently connected the eight state laws with Article XVI and thereby established a prima facie case of inconsistency with that provision," we can conclude, without providing a stronger link between the particular state law being challenged and the obligation alleged to have been infringed, Antigua failed to make a prima facie case with respect to any of these eight state laws.
  3. According to Article 3.2 of DSU, the WTO dispute settlement system serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements. These clarifications must take place in accordance with the customary rules of interpretation of public international law, which the Appellate Body interpreted as a reference to the rules of interpretation contained in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. The DSU warns, in Articles 3.2 and 19.2, against judicial activism by specifying twice that WTO dispute settlement may not add to or diminish the rights and obligations of the WTO Members.
  In this case, although a particular Member's Schedule represents the commitments that bind one Member, "Schedules also represent a common agreement among all Members," such that "the task of ascertaining the meaning of a concession in a Schedule … involves identifying the common intention of Members, and is to be achieved by following the customary rules of interpretation of public international law, codified in Articles 31 and 32 of the Vienna Convention." Noting that GATS Article XX:3 establishes that Members' Schedules are an "integral part" of the GATS, the general principles of treaty interpretation would apply when determining the meaning of a GATS Schedule.



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