Abstract:摘要

對符合條件的區(qū)域性貿(mào)易協(xié)定的GATT第二十四條規(guī)定的光被認為是在WTO的情況下和制度演進，但特別提到了2007年巴西世界貿(mào)易組織 - 翻新輪胎案。案件增加了對區(qū)域貿(mào)易協(xié)定的一些新的元素，包括進攻的RTA的充分性在這種情況下被提出歐盟第二十四條要求的基礎上的大綱。此外，，GATT第二十條和第二十四號之間的關系進行檢測。上訴機構的裁決表明，根據(jù)第XX條起首從一個限制措施豁免區(qū)域成員自由流動的理由不會找到驗證。它在這里提出，這個結果也可以基于在第二十四條：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介紹


這里開發(fā)的主題是作為世貿(mào)組織爭端解決程序的結果，第24條的漸進而不可避免的“合法化”。術語“合法化”用于不僅在建議的規(guī)定越來越清晰，而且文章的出現(xiàn)，法律作為形成世貿(mào)組織要求和響應的基礎'結合'的效果。這種觀點主要來自于文章和其多年的歷史根源在關貿(mào)總協(xié)定的法律制度的“粗野”。要設置這種情況下，文章花了很短的時間講述了那個時代和它的發(fā)展，然后挺身而出進入WTO系統(tǒng)，1999年土耳其的簡要回顧 - 紡織品情況。人們希望這臺舞臺把2007年巴西中 - 輪胎案背景。這里有處理三個方面的情況和它的專家組和上訴機構處理繪制。首先是在南方共同市場關稅同盟的第二十四條狀態(tài)和攻擊的組件內(nèi)皮細胞直接攻擊。二是GATT第XX條的關系第二十四條及其區(qū)域內(nèi)的異常位置的解釋。最后一個方面與上訴機構的治療第二十條起首提出政權層次影響交易。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總結

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. 

本文編號：35546