世贸组织：巴西 - 轮胎案与GATT

发布时间：2016-03-18 12:30

Abstract:摘要

对符合条件的区域性贸易协定的GATT第二十四条规定的光被认为是在WTO的情况下和制度演进，但特别提到了2007年巴西世界贸易组织 - 翻新轮胎案。案件增加了对区域贸易协定的一些新的元素，包括进攻的RTA的充分性在这种情况下被提出欧盟第二十四条要求的基础上的大纲。此外，，GATT第二十条和第二十四号之间的关系进行检测。上诉机构的裁决表明，根据第XX条起首从一个限制措施豁免区域成员自由流动的理由不会找到验证。它在这里提出，这个结果也可以基于在第二十四条：8文本本身。The GATT Article XXIV rules for qualifying a regional trade agreement are considered in light the case and institutional evolution in the WTO, but with particular reference to the 2007 WTO Brazil – Retreaded Tyres case. The case adds some new elements for RTAs, including an outline for attacking the sufficiency of an RTA on the basis of Article XXIV requirements presented by the EC in that case. In addition, the relationship between GATT Article XX and XXIV is examined. The Appellate Body ruling indicates that free movement justification for exempting a regional member from a restrictive measure will not find validation according to the Article XX chapeau. It is suggested here that this same outcome can also be based on the Article XXIV:8 text itself. 


Introduction介绍


这里开发的主题是作为世贸组织争端解决程序的结果，第24条的渐进而不可避免的“合法化”。术语“合法化”用于不仅在建议的规定越来越清晰，而且文章的出现，法律作为形成世贸组织要求和响应的基础'结合'的效果。这种观点主要来自于文章和其多年的历史根源在关贸总协定的法律制度的“粗野”。要设置这种情况下，文章花了很短的时间讲述了那个时代和它的发展，然后挺身而出进入WTO系统，1999年土耳其的简要回顾 - 纺织品情况。人们希望这台舞台把2007年巴西中 - 轮胎案背景。这里有处理三个方面的情况和它的专家组和上诉机构处理绘制。首先是在南方共同市场关税同盟的第二十四条状态和攻击的组件内皮细胞直接攻击。二是GATT第XX条的关系第二十四条及其区域内的异常位置的解释。最后一个方面与上诉机构的治疗第二十条起首提出政权层次影响交易。The theme developed here is the gradual but inevitable ‘legalization’ of Article XXIV as a result of the WTO dispute settlement process. The term ‘legalization’ is used to not only suggest an increasing clarity in the provisions, but also the emergence of the Article’s legally ‘binding’ effect as forming a basis for WTO  claims and responses. This view is taken mainly from the historical roots of the Article and its years in the ‘backwoods’ of the GATT legal system. To set that context, the article spends a short time recounting that era and its developments, and then coming forward into the WTO system with a brief review of the 1999 Turkey – Textiles case. One hopes this sets the stage for putting the 2007 Brazil – Tyres case in context. There are three aspects treated here as drawn from the case and its panel and Appellate Body treatment. The first is the EC’s direct attack on the Article XXIV status of the Mercosur customs union and the components of that attack. The second is the interpretation of GATT Article XX’s relationship to Article XXIV and its position within the regional exception. The final aspect deals with implications for regime hierarchy raised by the Appellate Body’s treatment of the Article XX chapeau.  

1. The old flexibility
2. Flexibility and the ‘development dimension’
3. Turkey – Textiles - ‘legalization’ arrives
4. Doha and the transparency developments
5. Brazil - Tyres

6. Conclusion总结

From a treaty law perspective it is becoming easier to take the position that Article XXIV constitutes the constitutive legal expression of today’s WTO Members regarding the legal relationship between preferential trading systems and the General Agreement. 
Most economic policy discussions on RTAs in the multilateral trading system dwell on the ‘friend or foe’ context. Are RTAs building blocks or stumbling blocks to the multilateral trading system? This relationship is expressed by paragraph 4 of Article XXIV which continues to acknowledge the desirability of increasing freedom of trade through the voluntary agreements of closer integration between the economies of regional parties, and that the purpose of a customs union or free-trade area is to facilitate trade between the regional parties and not to raise barriers to the trade of non-members. This remains the essence of the relationship.
It has taken a generation or two to figure out what this bifurcated expression means in the legal relationship between RTAs and the multilateral trading system. One hopes that the points made above begin to demonstrate that this type of evolution is not only possible but occurring in actual practice, thanks in major part to the WTO dispute settlement system. 
As we move on to the next generation of RTAs contemplating the role of advanced domestic harmonization in Article XXIV arrangements and for preferential economic integration agreements in the GATS, we see much less institutional review practice to outline the possible scenarios. The term ‘other restrictive regulations of commerce’ and ‘other regulations of commerce’ for Article XXIV are on the active Doha rules committee agenda, but they are farther down the list than the SAT issue and may not receive treatment this time around. Similar for the GATS where few are willing to offer an educated guess as to what ‘substantial sectoral coverage’ may mean in a dispute settlement case, or pre-determine the MFN / exceptional relationship that is evident between GATS Article V (Recognition) and/or GATS Article VI (Domestic Regulation) as these relate to the exception found in GATS Article V. 
But what has changed for even the ‘new issues’ is the larger legal context that has now been set. One does not expect to see future arguments that panels have no ‘right’ to review the new variations of RTAs, or whether GATS Article V is an ‘exception’ or not to general GATS obligations. These issues are settled. This suggests that legal developments for the next generation of RTAs may not take as long to come forward as did the last. 

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