WTO争端解决程序中的第三方制度研究
发布时间：2019-02-28 20:40
【摘要】：第三方制度在WTO争端解决程序中颇具特色。第三方不同于争端当事方，它可以通过提交书面材料表达对争端事实或法律方面的观点，却不需要承担法律责任。GATT时期第三方制度以实践为主，在WTO时期其逐步走上了制度化的道路。 本文采用比较分析法和案例分析法两种研究方法，首先明确第三方制度的法律依据，介绍第三方制度与我国法院第三人、国际法院第三国以及WTO法律体系中法庭之友的区别，接着通过个案分析第三方制度在争端解决各个阶段存在的法律问题。再从第三方制度的历史轨迹入手，，总结从GATT时期到WTO时期的发展变化。 第三方制度的实践总是走在理论研究的前面，裁判者依其自由裁量权给予不同案件的第三方不同的权利，导致个案中第三方的权利缺乏可预见性，因此在提高WTO透明度的呼声下，越来越多的成员方提出要修改DSU，扩大第三方权利——问题就在于，第三方的权利应该扩大到何种程度。由于各国法律理论基础、经济意图和国别利益的分歧，对此始终不能达成一致意见。根据多哈部长级会议的授权，DSB召开多次特别会议讨论第三方制度的问题，会议主席提出了多个主席案文，作为下一阶段谈判工作的基础。本文着重分析2003年和2008年的主席案文，兼述各成员方在谈判过程中的意见，以期对争端解决程序不同阶段的第三方权利义务提出修改建议。 中国作为贸易大国，虽然加入WTO较晚，但是积极利用第三方制度参与了WTO争端解决程序，不仅深入了解了争端解决程序运作的方式，还能积极参与WTO规则的建立。通过比较中国和发达国家以及其他发展中国家在第三方参与方式上的不同，得出中国应积极拓展第三方参与途径，积累诉讼经验，并且在新形势下有选择地参与争端解决，同时也应在多哈回合的DSU修改谈判中表达自己的观点，维护发展中国家的利益。
[Abstract]:The third party system is characteristic in the WTO dispute settlement procedure. Unlike the parties to a dispute, the third party may present its views on the facts or legal aspects of the dispute by submitting written material, but does not require legal liability. The third party regime during the GATT period was based on practice. In the period of WTO, it gradually embarked on the road of institutionalization. This article adopts two research methods: comparative analysis method and case analysis method. Firstly, it clarifies the legal basis of the third party system, and introduces the difference between the third party system and the third party in China's court, the third country of the International Court of Justice and the amicus curiae in the legal system of WTO. Then through the case analysis of the third-party system in the dispute settlement at each stage of the existence of legal problems. Then from the historical track of the third party system, summarize the development and change from the period of GATT to the period of WTO. The practice of the third party system is always ahead of the theoretical study, and the adjudicator gives different rights to the third parties in different cases according to their discretion, which leads to the lack of predictability of the rights of the third party in the case. Therefore, in the call for greater transparency of the WTO, more and more members have proposed to modify the DSU, to expand the rights of third parties-the question is to what extent the rights of third parties should be extended. Because of the differences of legal theory, economic intention and national interest, there is no consensus on this. In accordance with the mandate of the Doha Ministerial Conference, DSB convened a number of special meetings to discuss the issue of the third-party system, and the President of the Conference proposed a number of presidential texts as the basis for the next stage of negotiations. This paper focuses on the Chairman's texts of 2003 and 2008, and also states the opinions of the members in the negotiation process, with a view to putting forward suggestions for modifying the rights and obligations of the third parties at different stages of the dispute settlement procedure. As a big trading country, although China joined the WTO relatively late, it actively used the third party system to participate in the WTO dispute settlement procedure. It not only deeply understood how the dispute settlement procedure works, but also actively participated in the establishment of the WTO rules. By comparing the different modes of third-party participation between China and developed countries and other developing countries, it is concluded that China should actively expand the channels of third-party participation, accumulate litigation experience, and selectively participate in dispute settlement under the new situation. At the same time, we should express our views and safeguard the interests of developing countries in the Doha Round of DSU revision negotiations.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D996.1
本文编号：2432150
[Abstract]:The third party system is characteristic in the WTO dispute settlement procedure. Unlike the parties to a dispute, the third party may present its views on the facts or legal aspects of the dispute by submitting written material, but does not require legal liability. The third party regime during the GATT period was based on practice. In the period of WTO, it gradually embarked on the road of institutionalization. This article adopts two research methods: comparative analysis method and case analysis method. Firstly, it clarifies the legal basis of the third party system, and introduces the difference between the third party system and the third party in China's court, the third country of the International Court of Justice and the amicus curiae in the legal system of WTO. Then through the case analysis of the third-party system in the dispute settlement at each stage of the existence of legal problems. Then from the historical track of the third party system, summarize the development and change from the period of GATT to the period of WTO. The practice of the third party system is always ahead of the theoretical study, and the adjudicator gives different rights to the third parties in different cases according to their discretion, which leads to the lack of predictability of the rights of the third party in the case. Therefore, in the call for greater transparency of the WTO, more and more members have proposed to modify the DSU, to expand the rights of third parties-the question is to what extent the rights of third parties should be extended. Because of the differences of legal theory, economic intention and national interest, there is no consensus on this. In accordance with the mandate of the Doha Ministerial Conference, DSB convened a number of special meetings to discuss the issue of the third-party system, and the President of the Conference proposed a number of presidential texts as the basis for the next stage of negotiations. This paper focuses on the Chairman's texts of 2003 and 2008, and also states the opinions of the members in the negotiation process, with a view to putting forward suggestions for modifying the rights and obligations of the third parties at different stages of the dispute settlement procedure. As a big trading country, although China joined the WTO relatively late, it actively used the third party system to participate in the WTO dispute settlement procedure. It not only deeply understood how the dispute settlement procedure works, but also actively participated in the establishment of the WTO rules. By comparing the different modes of third-party participation between China and developed countries and other developing countries, it is concluded that China should actively expand the channels of third-party participation, accumulate litigation experience, and selectively participate in dispute settlement under the new situation. At the same time, we should express our views and safeguard the interests of developing countries in the Doha Round of DSU revision negotiations.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D996.1
【引证文献】
相关硕士学位论文 前1条
1 张春福;WTO争端解决机制中“法庭之友”制度研究[D];华东政法大学;2013年
本文编号：2432150
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