Abstract:摘要

本章研究論文，在區(qū)域貿(mào)易協(xié)定對(duì)待的監(jiān)管政策有一個(gè)固有的WTO多邊性質(zhì)，因?yàn)樗鼈兊脑O(shè)計(jì)和應(yīng)用了最惠國(guó)待遇（MFN）的基礎(chǔ)上。它調(diào)查了普遍的透明度和爭(zhēng)端解決條款，并選擇了WTO“加號(hào)”的監(jiān)管對(duì)象從貨物貿(mào)易和服務(wù)近期歐盟和美國(guó)的區(qū)域貿(mào)易協(xié)定，包括海關(guān)合作，產(chǎn)品和食品安全標(biāo)準(zhǔn)，知識(shí)產(chǎn)權(quán)保護(hù)，政府采購(gòu)，國(guó)家援助和服務(wù)提供商的原產(chǎn)地規(guī)則。筆者發(fā)現(xiàn)，雖然很多政策的認(rèn)可“最惠國(guó)論文”，確立了區(qū)域進(jìn)程往往是決定性的雙邊和優(yōu)惠的特點(diǎn)。根據(jù)不同的政策主題，這些體制進(jìn)程，旨在支持，他們并不總是出現(xiàn)下跌關(guān)貿(mào)總協(xié)定第二十四條和服務(wù)貿(mào)易總協(xié)定第五條的一些雙邊進(jìn)程提供世貿(mào)組織區(qū)域貿(mào)易協(xié)定的例外的范圍之內(nèi)，但是，，可能是在性格讓不具約束力的，他們并不可能引起的WTO措施的WTO權(quán)利和義務(wù)的層次感。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.介紹

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總結(jié)

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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