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课程负责人
 
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二
 

 

本试卷

7

 

3 个问题

 

SOUTHWEST UNIVERSITY OF POLITICAL SCIENCE AND LAW

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Final Examination--- 2007 2008 学年第 学期

 

 

 

Cover Sheet

 

 

 

Course Title:

Case Study on International Trade Law

(Former Course Title: International Commercial Law)

Course No. and Section:

 

Professor:

Wang Heng

Time Allowed:

24 Hours

Materials Allowed:

Open Book

   Please indicate whether students are limited to a specific number of pages. Any other specific instructions can be indicated here.
  
  Limit of 3000 words for entire exam. See additional instructions on first sheet of exam.
  
  
  
  Examination Rules. Please READ Carefully.
  
  1. There are three cases for you to analyze and some relevant questions to answer in this examination. The relative value of each question is stated in each case.
  
  2. With the exceptions stated in these instructions, this is an open-book examination. Thus, you may use any materials, but there is no reason for you to consult anything other than the materials we used in class.
  
  3. You may work on this examination for any consecutive 24-hour period between June 28 and June 29.
  
  4. You may NOT discuss or have communication about the examination or your answers with any other person once you have begun the examination until the end of the exam period. This prohibition includes phone conversations, face-to-face conversations, e-mails, eye winks, head nodding, or any other form of communication. For instance, asking the question “Have you finished the Case Study on International Trade Law exam yet?” or answering such a question would be considered a violation of this Rule. This prohibition covers communications with all persons, whether or not they are students at the Law School. I will treat violation of this Rule as cheating.
  
  5. You need not retain or submit any notes that are not part of your final answer. You will, of course, only receive credit for what you submit at the end of the examination.
  
  6. WORD LIMIT: THE ANSWERS TO YOUR EXAMINATION MAY NOT EXCEED A TOTAL OF 3000 WORDS. THIS IS THE TOTAL NUMBER OF WORDS FOR THE ENTIRE EXAM, NOT FOR EACH QUESTION. I WILL DEDUCT SUBSTANTIAL POINTS FROM YOUR ANSWER IF YOU EXCEED THE 3000 WORD LIMIT. You should be able to complete your exam with fewer words and should not feel compelled to reach the limit.
  
  
  
  Good luck!


  

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I
  
案例分析题


  
  请阅读以下案例,并回答问题。
  
  Ⅰ.European Communities - Regime for the Importation, Sale and Distribution of Bananas
  
  Facts:
  This dispute concerns the European Communities' regime for the importation, distribution and sale of bananas, introduced on July 1, 1993. The regime was established by Council Regulation (EEC) 404/93 ("Regulation 404/93"), and it replaced the banana import regimes previously in place in the European Communities. (Under the previous national import regimes, France, Greece, Italy, Portugal and the United Kingdom restricted imports of bananas by means of various quantitative restrictions and licensing requirements. Spain maintained a de facto prohibition on imports of bananas. The regimes of these countries were the subject of GATT dispute settlement proceedings in EEC - Bananas I. The panel report in that dispute was not adopted. Subsequently, the EEC established a common market regime for bananas. That regime was also challenged under the GATT in EEC - Bananas II. Again, the panel report was not adopted.)
  Regulation 404/93 consists of five separate titles. Title IV is relevant here. Title IV regulates trade with third countries, and establishes three categories of imports: (1) traditional imports from twelve African, Caribbean and Pacific ("ACP") countries (that is, banana imports from the 12 ACP countries who have traditionally exported bananas to the European Communities, but including only imports in the amount of past import levels); (2) non-traditional imports from ACP countries, which are defined as both any quantities in excess of traditional quantities supplied by traditional ACP countries, and any quantities supplied by ACP countries which are not traditional suppliers of the EC market; and (3) imports from third (non-ACP) countries. In addition, there are three categories of trade regulations applied to each of these categories: (1) tariffs, (2) quantitative restrictions (in the form of tariff quotas) and (3) import licenses. With regard to the import licenses, the third type of trade regulation affecting bananas, imports of all three types of bananas are subject to licensing procedures. According to Commission Regulation (EEC) 1442/93, banana imports into the European Communities are managed on a quarterly basis. There are different licensing procedures for each category of imported bananas. License applications for imports of traditional ACP bananas must state the quantity and origin from which operators intend to source their bananas. In addition to the EC measure at issue, an international agreement is also relevant to this dispute. The Fourth Lomé Convention , signed on December 15, 1989 between the European Communities and 70 ACP developing countries contains a protocol concerning bananas, along with provisions applying to products more generally .On October 10, 1994, the European Communities requested, together with the ACP contracting parties, a waiver for the Lomé Convention from its obligations under GATT Article I:1.
  The five complaining parties, acting jointly and severally, argued that the EC regime for the importation, sale and distribution of bananas is inconsistent with the WTO Agreement. The Panel found violations of GATT Article XIII, GATT Article III:4, GATTArticleX:3(a),Licensing Agreement Article 1.3, and GATS Articles II and XVIII. The complaining parties then raised certain issues in a cross-appeal: whether the Lomé Waiver applies to violations of GATT Article XIII; whether the Lomé Convention "requires" certain actions by the European Communities; whether the Panel erred in excluding certain claims made under GATS Article XVII; and whether the Panel erred in excluding certain of Ecuador's claims.
  The Panel found that no measures are excluded a priori from the scope of the GATS as defined by its provisions. The scope of the GATS encompasses any measure of a Member to the extent it affects the supply of a service regardless of whether such measure directly governs the supply of a service or whether it regulates other matters but nevertheless affects trade in services. We therefore find that there is no legal basis for a priori exclusion of measures within the EC banana import licensing regime from the scope of the GATS. The European Communities argues that the GATS does not apply to the EC import licensing procedures because they are not measures “affecting trade in services” within the meaning of Article I:1 of the GATS. In the view of the European Communities, Regulation 404/93 and other related regulations deal with the importation, sale and distribution of bananas. As such, the European Communities asserts, these measures are subject to the GATT 1994, and not to the GATS. In contrast, the complaining parties argue that the scope of the GATS, by its terms, is sufficiently broad to encompass Regulation 404/93 and the other related regulations as measures affecting the competitive relations between domestic and foreign services and service suppliers. This conclusion, they argue, is not affected by the fact that the same measures are also subject to scrutiny under the GATT 1994, as the two agreements are not mutually exclusive.
  In addition, the European Communities raises two issues concerning the definition of wholesale trade services and the application of that definition. The Panel found that operators in the meaning of Article 19 of Regulation 1442/93 are service suppliers in the meaning of Article I:2(c) of GATS provided that they are owned or controlled by natural persons or juridical persons of other Members and supply wholesale services. When operators provide wholesale services with respect to bananas which they have imported or acquired for marketing, cleared in customs or ripened, they are actual wholesale service suppliers. Where operators form part of vertically integrated companies, they have the capability and opportunity to enter the wholesale service market. They could at any time decide to re-sell bananas which they have imported or acquired from EC producers, or cleared in customs, or ripened instead of further transferring or processing bananas within an integrated company. Since Article XVII of GATS is concerned with conditions of competition, it is appropriate for us to consider these vertically integrated companies as service suppliers for the purposes of analyzing the claims made in this case.
  
  Questions:
  1. Does the GATS apply to the EC import licensing procedures?
  2. Does the GATS overlap with the GATT 1994, or are the two agreements mutually exclusive?
  3. Are operators service suppliers engaged in wholesale trade services?
  

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  Ⅱ.Canada — Certain Measures Affecting the Automotive Industry
  
  Facts:
  This dispute concerns duty-free treatment accorded by Canada to imports of automobiles, buses and specified commercial vehicles ("motor vehicles") by certain manufacturers. This duty-free treatment is provided under the Canadian Customs Tariff, the Motor Vehicles Tariff Order 1998 ("MVTO 1998") and the Special Remission Orders ("SROs").
  The MVTO 1998 has its origins in the Agreement concerning Automotive Products between the Government of Canada and the Government of the United States of America ("Auto Pact"). The Auto Pact was implemented domestically in Canada by legislation that included the MVTO 1965, which was replaced by the MVTO 1988 and later by the MVTO 1998. The MVTO 1998 sets out three conditions that manufacturers must meet in order to be eligible for the import duty exemption. First, the manufacturer must have produced in Canada, during the designated "base year," motor vehicles of the class imported. The second condition relates to certain production to sales "ratio requirements."
  Specifically, it is required that the ratio of the net sales value of the vehicles produced in Canada to the net sales value of all vehicles of that class sold for consumption in Canada in the period of importation must be "equal to or higher than" the ratio in the "base year," and the ratio shall not in any case be lower than 75:100. Finally, the third condition concerns certain Canadian value added requirements (the "CVA requirements"). Specifically, it is required that the amount of Canadian value added in the manufacturer's local production of motor vehicles must be "equal to or greater than" the amount of Canadian value added in the local production of motor vehicles of that class during the "base year." The MVTO 1998 provides that the CVA requirement for each manufacturer is to be calculated based on the "aggregate" of certain costs of production, including: the cost of parts produced in Canada and materials of Canadian origin that are incorporated in the motor vehicles; transportation costs; labor costs incurred in Canada; and manufacturing overhead expenses incurred in Canada. The "base year" was set as a twelve-month period in 1963/64 for those manufacturers that became eligible immediately after implementation through the original MVTO in 1965.
  In addition to the manufacturers that are eligible for the import duty exemption under the MVTO 1998, Canada also designated certain other companies as eligible to receive the exemption through the SROs. The SROs set forth, for each of these companies, specific production-to-sales ratio requirements and CVA requirements that the manufacturer must meet in order to receive the import duty exemption.
  Finally, as part of the Auto Pact, certain manufacturers were asked by the Canadian Government to submit Letters of Undertaking, documents that are alleged by the complainants to contain additional CVA requirements.
  In accordance with the obligations of the Canada - U.S. Free Trade Agreement, the list of manufacturers eligible for the import duty exemption was closed in 1989. Therefore, since 1989, no additional SROs have been promulgated, and no additional manufacturers have been designated as eligible for the duty exemption under the MVTO 1998.
  The European Communities and Japan challenged the duty exemption under the GATT, the TRIMs Agreement, the SCM Agreement, and the GATS. The claims were as follows: 1) the duty exemption is inconsistent with GATT Article I:1 and GATS Article II:1 because it provides an advantage to imports and service suppliers originating in the United States vis-à-vis imports of like products originating in other Members; 2) the duty exemption, by virtue of the Canadian Value Added requirements, is inconsistent with GATT Article III:4, TRIMs Agreement Article 2.1, SCM Agreement Articles 3.1(a), 3.1(b) and 3.2, and GATS Article XVII; and 3) the duty exemption, by virtue of the production to sales ratio requirements, is inconsistent with GATT Article III:4, TRIMs Agreement Article 2.1and SCM Agreement Articles 3.1(a) and 3.2.
  The Panel found violations of GATT Articles I:1 and III:4, SCM Agreement Article 3.1(a) and GATS Articles II and XVII. Canada appealed the Panel's findings under GATT Article I:1, SCM.
  Agreement Article 3.1(a), and GATS Article II:1 (as well as the Panel's threshold finding that the GATS applies to the measure at issue under GATS Article 1). In separate cross-appeals, Japan and the European Communities both appealed the Panel's finding that there is no violation of SCM Agreement Article 3.1(b), and the European Communities challenged the Panel's failure to address one of its claims under SCM Agreement Article 3.1(a).
  
  Questions:
  1. In this case, Canada challenged the Panel's finding that the import duty exemption accords "less favorable treatment" to certain Members' services and service suppliers than to those of other Members, and is therefore inconsistent with GATS Article II:1. As a threshold matter, Canada appealed the Panel's finding that the measure at issue falls within the scope of GATS Article I:1 as a measure "affecting trade in services." In order to solve this problem, what analysis do you think should do according to GATS?
  2. GATS Article II:1 provides the MFN obligation. On MFN obligation, the Appellate Body found that the Panel failed to assess properly the relevant facts and failed to interpret GATS Article II:1. As a result, it reversed the Panel's conclusion that the import duty exemption is inconsistent with GATS Article II:1, as well as the Panel's findings leading to that conclusion. What steps do you think should take in reaching a finding under GATS Article II:1?
  
  
  
  
  
  
  
  
  


  
  
  

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II
  
论述题


  
  在美国博彩案中,专家组和上诉机构全面运用条约解释规则阐释了GATS规定,这些实践将深刻影响未来GATS的发展,请论述该争端实践体现的GATS解释演进对我国服务贸易谈判策略制定的指导意义。
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
 
  END OF EXAM

 



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