WTO争端解决程序的适用规则--多边环境保护公约能否成为适用规则  

Applicable Law in WTO Dispute Settlement Proceedings:Can Multilateral Environmental Agreements Become Applicable Law?

作　　者：平觉 白巴根[2] 

机构地区：[1]日本大阪市立大学法学院 [2]汕头大学法学院,广东汕头515063

出　　处：《世界贸易组织动态与研究（上海对外贸易学院学报）》2010年第5期57-69,共13页Journal of Shanghai University of International Business and Economics

摘　　要：WTO争端解决机制的专家组和上诉机构能否根据MEA和一般国际法处理冲突的规则优先适用MEA,并认定一项根据MEA所采取的贸易限制措施不构成对WTO法的违反呢?为回答这一问题,本文首先确认,现行WTO法将争端解决机制的适用规则严格限制于WTO适用协定,即根据其实体管辖权,专家组和上诉机构专门受理根据适用协定所提起的申诉,不能受理根据MEA或其他实体国际法而提起的申诉。因此,MEA或其他实体国际法不能成为适用规则。其次,通过分析对这一问题的赞成与反对意见,对包括MEA在内的实体国际法的限定性适用,本文提出了支持的观点,认为前者更有利于克服当今世界国际法的"碎片化"现象。With the increasing concern about the protection of global environment, there have been so many multilateral environmental agreements （MEAs）. Among these MEAs, some prohibit or restrict international trade of products harmful to the environment or endangered species and others oblige or permit contracting parties to take trade restriction measures in order to eliminate the economic incentives for environmental destruction, secure compliance with the MEA, or promote the accession to the MEA. When such a trade restriction measure based upon a MEA is taken by one WTO member against another WTO member, the consistency of the measure with WTO law will be disputed irrespective of whether the latter WTO member is a contracting party of the MEA or not. So far no trade restriction measure based upon a MEA has been challenged before the WTO dispute settlement proceedings, the possibility of such cases arising from here on cannot be denied as the occasions of using this kind of measure increase. This is evidenced by the fact that the topic of ＂the relationship between existing WTO rules and specific trade obligations set out in [MEAs]＂ was included as one of the negotiation agenda in the Doha Development Agenda. If such a case is submitted actually to the WTO dispute settlement proceedings, what legal status will be given to the MEA？ Can a Panel or the Appellate Body find the consistency of the measure with WTO law by giving priority to and applying the MEA pursuant to the applicable conflict rules of the MEA or general international law？ There has been much controversy concerning the problem whether the rules of international law including MEAs other than WTO law become applicable law before the WTO dispute settlement proceedings. By analyzing much in depth both the affirmative theory by Pauwelyn and the negative theory by Trachtman, this paper considers what legal status should be given to MEAs and especially whether MEAs can become applicable law or not before the WTO dispute settlement proceedings.

关 键 词：WTO法 WTO争端解决机制 MEA 适用规则 

分 类 号：F743.3[经济管理—国际贸易]