监管区域主义在世界贸易组织 - 是'深度整合的流程与多边贸易体制兼容？

发布时间：2016-03-18 12:55

Abstract:摘要

本章研究论文，在区域贸易协定对待的监管政策有一个固有的WTO多边性质，因为它们的设计和应用了最惠国待遇（MFN）的基础上。它调查了普遍的透明度和争端解决条款，并选择了WTO“加号”的监管对象从货物贸易和服务近期欧盟和美国的区域贸易协定，包括海关合作，产品和食品安全标准，知识产权保护，政府采购，国家援助和服务提供商的原产地规则。笔者发现，虽然很多政策的认可“最惠国论文”，确立了区域进程往往是决定性的双边和优惠的特点。根据不同的政策主题，这些体制进程，旨在支持，他们并不总是出现下跌关贸总协定第二十四条和服务贸易总协定第五条的一些双边进程提供世贸组织区域贸易协定的例外的范围之内，但是，，可能是在性格让不具约束力的，他们并不可能引起的WTO措施的WTO权利和义务的层次感。This chapter examines the thesis that regulatory policies treated in regional trade agreements have an inherently WTO multilateral character, as they are designed and applied on a most-favoured nation (MFN) basis. It surveys general transparency and dispute settlement provisions and selected WTO ‘plus’ regulatory subjects from recent EU and US regional trade agreements for trade in goods and services,  including customs cooperation, product and food safety standards, intellectual property protection, public procurement, state aids and service provider origin rules. The author finds that while many of the policies endorse the ‘MFN thesis’, the regional processes established are often decidedly bilateral and preferential in character. Depending upon the policy subject these institutional processes are designed to support, they do not always appear to fall within the scope of the WTO’s regional trade agreement exceptions provided in GATT Article XXIV and GATS Article V. Some of the bilateral processes, however, may be so non-binding in character that they do not likely rise to the level of WTO measures in the sense of WTO rights and obligations. 

1. Introduction.介绍

This chapter assesses the proposition that regulatory provisions in preferential trade agreements (PTAs) are implemented on a most-favoured nation basis and therefore complementary to the multilateral trading system in the WTO. The subject is raised because of the documented prominence that regulatory cooperation has attained in later-generation trade agreements, together with an apparent relative decline of the importance of preferential tariff cuts as a primary motivating force for concluding trade agreements. This was documented by the WTO 2011 Annual Report on preferential trade agreements  in its survey of over 97 agreements concluded between 1958 and 2010, and reinforced (or perhaps foretold) by Richard Baldwin’s analysis of tariffs and regulations in so-called ‘deep integration’ agreements.  As the reasoning goes,regulatory activities - whether they be WTO ‘plus’ or WTO ‘extra’  - do not lend themselves to implementation approaches on a preferential basis. To give just one example, if a country establishes a new competition law, its enforcement will neither favour nor punish foreign firms on the basis of their country of origin. There is nothing inherently externally preferential in the design of a competition law, and it does not become preferential because its origins can be traced to a provision in apreferential trade agreement. 


This is the most favoured nation MFN  thesis for regulatory regionalism. There is a variation on the theme for services market access commitments in the vein of GATS Article XVI. These restrictions are also notably eliminated by altering domestic regulatory policies. Here, the WTO Report finds that notified GATS V economic integration agreements contain significant levels of market access commitments in excess of those made by the same WTO Members in their GATS schedules.  This suggests a possible resulting preferential treatment on behalf of signatory service providers, similar to preferential tariff treatment for trade in goods. However, the WTO Report (and Baldwin) also make the point that it is difficult to establish the country origin of a service in the first instance, and attempts to clarify or enforce origin, by reference to country of incorporation for example, tend to be sufficiently porous to allow foreign third-country affiliates and subsidiaries to derive the benefits from doing business in a trade agreement partner’s territory. 
2. General provisions affecting regulatory treatment 
2.1Transparency chapters and provisions
2.2 Dispute settlement chapters
3. Trade in goods, WTO ‘plus’ subjects
3.1 Customs cooperation. 
3.2 TBT and SPS measures 
3.3 Intellectual property (IP) rights
3.4 Public Procurement
3.5 State aids (and state owned enterprises / monopolies) 
3.6 Trade in goods conclusion
4. Trade in services
4.1 Service provider origin 
..........................
4.4 Trade in services conclusion

5 Conclusion总结

While this inquiry has located some points of likely or possible preferential regulatory treatment, the results are necessarily ambivalent both for those identified as preferential and for those found not to be so preferential in character. This is for two reasons. First, as noted in the introduction, there is not sufficient secondary source material describing the way domestic agencies actually implement regulatory provisions. Thus, while one can identify the possibility of preferential transparency provisions in favour of interested persons of another party, this still does not say anything about what actually happens in the application of those rules and whether domestic treatment is ever bifurcated or not. 
Second is the somewhat opaque nature of deep integration provisions themselves. It is evident that the purpose of the regulatory agreements in many instances is to frame expectations for the future rather than to prescribe applicable legal regimes. The term ‘soft law’ comes to mind when a provision is located that is firm in obligation but soft in content (or the other way around). But sometimes even soft law is absent, suggesting that the regulatory relationships may not be about law at all, but rather about creating (again) ‘frameworks of expectations’. Sometimes one discerns that the nature of the expectation framed may ultimately result in a legal act, an analysable measure if you will. At other times it seems that no legal result of any kind is intended and that the expectation to be realized is to ‘discuss’ and ‘cooperate’. 
This puts the question of compatibility with the multilateral trading system in a slightly different light, suggesting that the exercise of assessing compatibility could be somewhat premature. That a later assessment might bear more legal fruit would be based on an optimistic view that the regulatory processes in these agreements might result in identifiable legal acts or regimes. If one takes the more pessimistic view that the agreements have only a low potential to realize legal results, then another conclusion comes forward. This would hold that the question of compatibility with the multilateral trading rules is irrelevant because the agreements are too weak to cross the initial threshold of providing anything for those multilateral rules to examine. 
The view here is that the regulatory agreements are generating both low and high sets of expectations and that more could be coming in the way of legal outcomes from these processes. It is also likely that what we perceive now as the ‘state of the art’ moves along over time. One can imagine stronger mediation instruments to address non-tariff barriers, additional participation rights for private actors, and stronger mutual recognition processes. These types of process enhancements would present more interesting compatibility issues for the multilateral trading system. 
For now, what can be said of the regional regulatory processes and the multilateral trading system is that while some of them might translate well to a larger group exercise in the WTO, they instead remain exclusive to the bilateral relationships established by the trade agreement parties. If non-party WTO Members might wish,for whatever reasons, to be a part of those processes, the mechanisms for opening or duplicating them for the larger group will have to be commenced by WTO Members themselves. To the extent they choose not to engage with more advanced regulatory processes in the larger club, this omission will also contribute to widening a gap of compatibility as regulatory regionalism continues to develop.

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