国内区域贸易协定规制
发布时间：2016-03-15 16:03
introduction介绍
在1947年关贸总协定序言背诵作为一个客观的“歧视性待遇的国际贸易的消除”认识到这一点。
第二十四条完成通过首先确定哪些类型的优惠实体会员招待的此功能：关税同盟，自由贸易区，并临时协定导致无论是。其次，它提供了用于他们的程序和应用要求。从这个意义上讲第二十四条似乎创造一种自立的制度。然而，，它的特点是固有的特殊的，特别是当一个区域成员援引作为防御违反最惠国待遇，或其他一些GATT第。
实质上，有一个区域形成“内部”和“外部”的要求。这两个方面都在捕捉第二十四条：4的“立意”的表情。
在这里，由区域成员之间的自愿协议增加贸易的可取性是公认的，而且“关税同盟或自由贸易区的目的应该是促进各组成领土之间的贸易”（第8款的内在要求）和“不提高其他缔约方与此类领土“（第5款的外部需求）的贸易壁垒。
The GATT provisions for customs unions and free trade areas have a close legal relationship to the general most favoured nation obligation (Article I GATT). The relative ease or difficulty of forming a regional trade agreement between subsets of WTO Members defines how broadly MFN will be applied in practice. The exception acts to define the scope of the rule. This therefore renders Article XXIV a part of the core architecture of the GATT Agreement.
The GATT 1947 Preamble recognized this by reciting as an objective ‘the elimination of discriminatory treatment in international commerce’.
Article XXIV accomplishes this function by firstly defining which types of preferential entities members may entertain: customs unions, free trade areas, and interim agreements leading to either. Secondly it provides procedural and application requirements for them. In this sense Article XXIV appears to create a sort of self-standing regime. However, its character is inherently exceptional, especially when invoked by a regional member as a defence to a violation of MFN, or to some other GATT Article.
Substantively, there are ‘internal’ and ‘external’ requirements for a regional formation. Both aspects are captured in Article XXIV:4’s ‘purposive’ expression.
Here the desirability of increasing trade by voluntary agreements between regional members is recognized, and that ‘the purpose of a customs union or a free trade area should be to facilitate trade between the constituent territories’ (the internal requirements of paragraph 8) and ‘not to raise barriers to the trade of other Contracting Parties with such territories’ (the external requirements of paragraph 5).
This chapter’s focus is on one of Article XXIV’s internal provisions:the requirement for regional members to eliminate ‘other restrictive regulations of commerce’ (ORRC). Section I will consider the definitional possibilities for this term as it may apply to the domestic regulations of RTA members. The section will look at the textual context, the drafting record, and the limited WTO Panel and Appellate Body treatment, in turn. It concludes that ORRC has a limited reach for domestic regulations. It is argued that the duty to eliminate other restrictive regulations of commerce only extends to domestic laws of an RTA member that are according less favourable treatment to the products of another regional member, in the sense of national treatment. With this narrow construction established, Section II considers the implications for regional members of an obligation for them to actively plan and schedule the elimination of their discriminatory ORRC. A second question of ‘more favourable treatment’ accorded among RTA members by acts of preferential recognition or harmonization is also considered. With a narrow scope for ORRC, the duty to eliminate does not appear to extend to acts of deeper integration. The scope of Article XXIV’s exception does not intervene in the balance already struck in Annex 1A agreements for most-favoured nation between the general GATT Articles and the more specific and modifying TBT/SPS Agreement provisions.
A. Paragraph 8, immediate context
B. Article XXIV and the broader context
C. The role of internal requirements in qualifying formations
D. ITO preparatory conference record
E. Havana Conference amendments
F. ORRC viewed from the elements of customs union formation
G. Panel and Appellate Body treatment
H. Interpretation limited to internal discriminatory measures
ii. orrc and domestic regulation
A. What must be eliminated?
B. What remains actionable?
iii. internally restrictive regional requirements
A. Is typology possible?
B. Test based upon the resulting measure
C. Resulting importation restrictions
D. Inter se regulatory restrictions
E. Restrictive regional conditions in VCLT analysis
The issue of trade restrictiveness within RTAs is not new, but it has moved from the realm of residual and contingent border measures to the regulatory area (as it has within the broader WTO context). The members have pledged to clarify the terms of Article XXIV in the Doha Round. There has been evident progress in the discussions to date, notably in promoting transparency in RTAs and also in proposals to define by agreement the elements of the SAT requirement. ORRC is also on the list for consideration, but further down the sequence, and it is possible that ORRC may not receive clarification prior to a final outcome. This may not be for worse. There is a certain hazard in opening this term in the current environment of regional proliferation. There is also the possibility that if the members can evolve some criterion for ‘substantiallyall trade’, that some of the issues raised above for ORRC could dissolve in actual practice. More likely, there will remain a need to clarify the manner by which regional members do or do not continue to receive the benefit of their WTO rights in an RTA. Where many agreements are now concluded between developed and developing members and include regulatory commitments, this need for clarification is not on the wane. Thus far there are few citable examples in RTAs of trade restrictions being effected as a result of regulatory non-compliance.In this sense some of the questions raised in this chapter are,for now, theoretical. However, the RTA world is dynamic and where there may be evolution to stronger institutional and dispute settlement mechanisms within RTAs, then trade restrictive outcomes could be expected to follow.
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