WTO爭端解決程序中的第三方制度研究
發(fā)布時間：2019-02-28 20:40
【摘要】：第三方制度在WTO爭端解決程序中頗具特色。第三方不同于爭端當(dāng)事方，它可以通過提交書面材料表達(dá)對爭端事實或法律方面的觀點，卻不需要承擔(dān)法律責(zé)任。GATT時期第三方制度以實踐為主，在WTO時期其逐步走上了制度化的道路。 本文采用比較分析法和案例分析法兩種研究方法，首先明確第三方制度的法律依據(jù)，介紹第三方制度與我國法院第三人、國際法院第三國以及WTO法律體系中法庭之友的區(qū)別，接著通過個案分析第三方制度在爭端解決各個階段存在的法律問題。再從第三方制度的歷史軌跡入手，，總結(jié)從GATT時期到WTO時期的發(fā)展變化。 第三方制度的實踐總是走在理論研究的前面，裁判者依其自由裁量權(quán)給予不同案件的第三方不同的權(quán)利，導(dǎo)致個案中第三方的權(quán)利缺乏可預(yù)見性，因此在提高WTO透明度的呼聲下，越來越多的成員方提出要修改DSU，擴(kuò)大第三方權(quán)利——問題就在于，第三方的權(quán)利應(yīng)該擴(kuò)大到何種程度。由于各國法律理論基礎(chǔ)、經(jīng)濟(jì)意圖和國別利益的分歧，對此始終不能達(dá)成一致意見。根據(jù)多哈部長級會議的授權(quán)，DSB召開多次特別會議討論第三方制度的問題，會議主席提出了多個主席案文，作為下一階段談判工作的基礎(chǔ)。本文著重分析2003年和2008年的主席案文，兼述各成員方在談判過程中的意見，以期對爭端解決程序不同階段的第三方權(quán)利義務(wù)提出修改建議。 中國作為貿(mào)易大國，雖然加入WTO較晚，但是積極利用第三方制度參與了WTO爭端解決程序，不僅深入了解了爭端解決程序運(yùn)作的方式，還能積極參與WTO規(guī)則的建立。通過比較中國和發(fā)達(dá)國家以及其他發(fā)展中國家在第三方參與方式上的不同，得出中國應(yīng)積極拓展第三方參與途徑，積累訴訟經(jīng)驗，并且在新形勢下有選擇地參與爭端解決，同時也應(yīng)在多哈回合的DSU修改談判中表達(dá)自己的觀點，維護(hù)發(fā)展中國家的利益。
[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.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2012
【分類號】：D996.1
本文編號：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.
【學(xué)位授予單位】：華東政法大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2012
【分類號】：D996.1
【引證文獻(xiàn)】
相關(guān)碩士學(xué)位論文 前1條
1 張春福;WTO爭端解決機(jī)制中“法庭之友”制度研究[D];華東政法大學(xué);2013年
本文編號：2432150
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