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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二参考答案
 

I
案例分析题


  I.1.Article I: 1 of the GATS provides that this agreement applies to measures by Members affecting trade in services. The use of the term “affecting” reflects the intent of the drafters to give a board reach to the GATS. The ordinary meaning of the word “affecting” implies a measure that has “an effect on”, which indicates a broad scope of application. This interpretation is further reinforced by the conclusions of previous panels that the term affecting in the context of Article Ⅲ of the GATT is wider in scope than such terms as regulating or governing. ArticleⅠ: 3(b) of the GATS provides that “‘services’ includes any service in any sector except services supplied in the exercise of governmental authority”, and that ArticleⅩⅩⅤⅢ (b) of the GATS provides that the “‘supply of a service ’includes the production, distribution, marketing, sale and delivery of a service”. There is nothing at all in these provisions to suggest a limited scope of application for the GATS. ArticleⅩⅩⅤⅢ(c) of the GATS does not narrow “the meaning of the term ‘affecting’ to ‘in respect of’.” For these reasons, there is no legal basis for an a priori exclusion of measures within the EC bananas import licensing regime from the scope of the GATS.
   2. The GATS was not intended to deal with the same subject matter as the GATT 1994. The GATS was intended to deal with a subject matter not covered by the GATT 1994, that is, with trade in services. Thus, the GATS applies to the supply of services. It provides, among other things, for both MFN treatment and national treatment for services and service suppliers. Given the respective scope of application of the two agreements, they may or may not overlap, depending on the nature of the measures at issue. Certain measures could be found to fall exclusively within the scope of the GATT 1994, when they affect trade in goods as goods. Certain measures could be found to fall exclusively within the scope of the GATS, when they affect the supply of services as services. There is yet a third category of measures that could be found to fall within the scope of both the GATT 1994 and the GATS. These are measures that involve a service relating to a particular good or a service supplied in conjunction with a particular good. In all such cases in this third category, the measure in question could be scrutinized under both the GATT 1994 and the GATS. However, while the same measure could be scrutinized under both agreements, the specific aspects of that measure examined under each agreement could be different. Under GATT 1994, the focus is on how the measure affects the supply of the service or the service suppliers involved. Whether a certain measure affecting the supply of a service related to a particular good is scrutinized under the GATT 1994 or the GATS, or both, is a matter that can only be determined on a case-by-case basis. For this reasons, we agree that the GATT 1994 and the GATS may overlap in application to a particular measure.
   3.The European Communities questions whether the operators within the meaning of the relevant EC regulations are, in fact, service suppliers in the sense of the GATS, in that what they actually do is buy and import bananas. The European Communities argues that “when buying or importing, a wholesale trade services suppliers is a buyer or importer and not covered by the GATS at all, because he is not providing any reselling services”. The European Communities also challenges the Panel’s conclusion that “integrated companies”, which may provide some of their services in-house in the production or distribution chain, are service suppliers within the meaning of the GATS.
   On the first of these two issues, the operators as defined under the relevant regulations of the European Communities are, indeed, suppliers of “wholesale trade services” within the definition set out in the Head note to Section 6 of the CPC. Furthermore, the European Communities has made a full commitment for wholesale trade services, with no conditions or qualifications, in its Schedule of Specific Commitments under the GATS. Although these operators, as defined in the relevant EC regulations, are engaged in some activities that are not strictly within the definition of “distributive trade services” in the Head note to Section 6 of the CPC, there is no question that they are also engaged in other activities involving the wholesale distribution of bananas that are within that definition?
   The second issue relates to “integrated companies”. Even if a company is vertically-integrated, and even if it performs other functions related to the production, importation, distribution and processing of a product, to the extent that it is also engaged in providing “wholesale trade services” and is therefore affected in that capacity by a particular measure of a member in its supply of those “wholesale trade services”, that company is a service supplier within the scope of the GATS.
  

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  II.1. Some steps should be carried out in analysis of determining whether the Canadian measure falls within the scope of the GATS. First, it should be established that "trade in services" do exist here.  Specifically, the "trade in services" at issue is the "wholesale trade services of motor vehicles supplied by service suppliers of certain Members through commercial presence in Canada." As to whether the measure "affects" trade in services, we can conclude from EC-Bananas that measures may fall within the scope of both the GATT and the GATS simultaneously. In these situations, though, the focus of the inquiry under the GATS will be on how the measure affects the supply of the service or the service suppliers involved. Ultimately, however, in this case the Appellate Body was unable to reach any conclusion on this issue because, it said, the Panel had failed to make the necessary factual findings regarding the market for motor vehicles in Canada or with respect to the specific companies that provide the relevant wholesale trade services. Therefore, the Appellate Body concluded that the Panel "failed to examine" whether the measure affects trade in services within the meaning of GATS Article I:1.
    Actually, drawing the line as to which measures "affect" distribution services and should therefore be covered by the GATS is difficult. GATS Article I says that it applies to measures "affecting" trade in services, but does not give much guidance as to what this means. Under the broadest interpretation of this term, the result could be that all measures that affect the import of goods also affect distribution of those goods, and therefore affect distribution services. Thus, a 10% tariff on goods would affect the ability to import those goods, and therefore the ability to distribute them.  However, such an approach is probably unacceptably broad.
    In this case, the Appellate Body was very critical of the Panel's approach, and in the end made no finding on the issue because of what it considered to be the Panel's inadequate analysis.  However, it is worth noting that in paragraph 10.242 of its report, the Panel found that the measures here affect trade in services on account of the fact that they "reserve access to duty-free goods to a closed category of service suppliers … while excluding others."  Thus, the Panel required a closer relationship between the measures and trade in services than the broad interpretation set forth above.  This approach may be a good basis for future consideration of this issue.
    2. Based on the text of this provision, some particular steps that a Panel should take in reaching a finding under GATS Article II:1 can be drawn from this case:  1) a determination as to whether the measure is covered by the GATS; 2) an interpretation of the legal standards in GATS Article II:1; 3) factual findings as to the treatment of wholesale trade services and service suppliers of motor vehicles of different Members commercially present in Canada; and 4) application of the interpretation of GATS Article II:1 to the facts. 
     Generally, to determine whether a measure of a WTO member is inconsistent with the MFN treatment obligation of Article II:1 of the GATS, three questions must be answered:
     (1)whether the GATS is applicable to the measures at issue;
     (2)whether the relevant services or service suppliers are ‘like services’ or ‘like service suppliers’; and
     (3)whether the services or service suppliers of other WTO members are immediately and unconditionally accorded treatment no less favorable than the like services and service suppliers of any other country.


  

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II
论述题


  GATS解释演进给各成员乃至WTO 秘书处带来深远影响。GATS条约解释演进澄清了WTO框架下服务贸易国际调整中的一些模糊之处,但对各成员尤其是服务贸易领域竞争力较弱的广大发展中成员,带来新的严峻挑战。对此我国WTO服务谈判策略宜注意如下方面:
  1.强化WTO文件分析能力建设,充分评估利弊和迅速采取对策,及早化解法律风险。具体而言,对谈判文件等材料的细致全面分析应注意:(1)材料分析是一项系统工程,必要时宜征求相关主管部门、行业协会、企业与消费者意见,综合各方面意见后做出分析结论。(2)对于文件中的模糊之处,需要着重加以分析。墨西哥电信案和本案中,文件的模糊之处均成为了争端的“导火索”。(3)分析应当强化前瞻性,对于今后可能出现的情况尽可能做好风险预估和评价。只有对文件进行全面深入分析,方能判断利弊和适时采取对策。唯有如此,才能拟定好服务承诺,否则可能为未来服务承诺履行埋下隐患。就谈判文件等材料对我不利之处,可考虑灵活采取多种对策,包括联合相关成员争取有利局面、就不利内容宜明确提出保留意见并要求记录在案等,最大限度降低我国在服务贸易领域的法律风险。
  2.宜尽可能按照谈判文件制定承诺表,强调WTO条约解释的灵活性应控制在合理范围之内。一方面,GATS争端解决表明,对成员承诺的理解可能存在不确定性。服务贸易谈判文件虽不具有法律约束力,但此类文件在GATS条约解释过程作为补充解释方法可能直接影响争端解决结果。尽管成员最初对于谈判文件部分内容可能存有保留意见,但谈判文件最终实际参与了成员GATS项下权利义务的判定。此外,《公约》第32条未完全列明补充解释方法的具体范围 ,仅说明补充解释方法包括条约准备工作以及缔约情况。在考虑特定案件相关补充解释方法以判定当事人共同意图时, 条约解释者因而具有一定灵活性。上诉机构实际享有酌定权, 解释者可将政策考虑渗入到条约解释之中, 成员谈判预期与 DSB 最终认定之间可能存在不同, 这一定程度上带来GATS争端实践的不确定性。尽量依照谈判文件规定制定承诺将有利于降低今后因 GATS条文与承诺解释方面的法律风险。若我国承诺拟定中存在不同于谈判文件规定的特殊情形, 则应在承诺表中做出详尽清晰阐释, 避免歧义。另一方面, 我国在多边谈判中应强调, GATS条约解释的灵活性需控制在合理范围之内。就WTO规则而言, “志在实质削减关税与其他贸易壁垒之互惠互利安排”的安全性与可预见性是《WTO协定》整体以及 GATT1994 的目的与宗旨。各成员具体服务承诺的安全性与可预见性同样是 GATS 的目的与宗旨。GATS 解释上过大的弹性, 将使成员难以预测未来服务领域开放的
  效应, 最终有损成员利益。因而DSB 条约解释酌定权应限制在合理范围之内, 唯有此方能确保争端解决报告为各方所接受并推进GATS健康发展。
  3.加快完成我国服务业情况全面调查, 强化服务承诺风险控制能力, 提升服务谈判策略与争端解决谈判立场的协调。发展中国家服务行业竞争力总体远远弱于发达国家。GATS条约解释存在的不确定因素使得发展中国家服务开放承诺实施效果更加难以预测。 服务贸易历来是发达成员在多边贸易谈判中的关注重点,  WTO 新回合谈判倡导服务承诺采取 “要价 —出价” 模式, 成员间可相互要求对方作出特定服务承诺。在此模式下 ,我国在服务承诺制定上将难免受到相当压力。面临 GATS 条约解释不确定性与承诺制定要价的双重挑战, 我国亟需增强服务贸易谈判能力。这要求:一方面以 GATS判例研究等方式全面深入掌握GATS规则, 详细分析承诺风险和冲击, 制定服务承诺中长期规划, 妥善应对服务承诺压力; 另一方面, 我国对国内服务业竞争力等情况尚缺乏全面了解, 服务贸易统计能力等方面亟待提高。
  从宏观视角看, 服务承诺与履行难以完全游离于WTO争端解决机制之外。 在WTO谈判中, 我国服务谈判策略应与争端解决机制谈判立场相互协调, 互相呼应。 从争端解决实践看, 这迫切要求我国人士成为WTO专家组成员乃至上诉机构成员, 以改变我国在争端解决机制(包括服务争端解决)中的较为被动局面。在WTO未来谈判中, 条约解释将成为重要议题, 这需要引起我国高度重视。



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