Non-Violation Complaints in WTO Law

Transcription

1 Studies in global economic law 9 Non-Violation Complaints in WTO Law Theory and Practice von Dae-Won Kim 1. Auflage Non-Violation Complaints in WTO Law Kim schnell und portofrei erhältlich bei beck-shop.de DIE FACHBUCHHANDLUNG Peter Lang Bern 2006 Verlag C.H. Beck im Internet: ISBN Inhaltsverzeichnis: Non-Violation Complaints in WTO Law Kim

2 XIII Preface The law of the World Trade Organisation and of the multilateral trading system is characterised by a peculiar feature: liability is not only and unlike in general international law incurred by violating a legal obligation. Liability may also be incurred by acts which do not contradict obligations under the Agreements, but may otherwise nullify and impair the benefits under the Agreements or impede the attainment of one of their objectives. This peculiarity finds expression in Article XXIII of GATT and Article XXIII : 3 of GATS. It reflects the concern that trade agreements are limited in scope, that measures outside this scope, while perfectly legal, could nevertheless nullify, impair or neutralise the benefits obtained. Such measures, in other words, could, despite being legal in nature, undermine the reciprocal balance of concessions entered into by Members of the WTO. These so called non-violation complaints, or non-violation nullification and impairment (NVNI) complaints have puzzled many scholars and raise a number of interesting questions. What is the nature of such a complaint? What is the theory behind it? How to explain it in legal theory? What is their relationship to ordinary legal complaints based upon an alleged violation of an obligation? How do they relate to general principles of law, in particular to the protection of good faith and equity, and particularly to the doctrine of protecting legitimate expectations a core value and goal of all legal protection? What are the practical implications of these complaints? How often are they referred to in state practice and in WTO dispute settlement? As the body of rights and obligations in the WTO system expands, non-violation complaints correspondingly tend to lose importance. At the same time, new areas emerge, in particular trade regulation in the field of services, and the boundaries in traditional areas are further pushed to reach frontiers, such as regulation of competition, properly speaking, non-violation complaints remain

3 XIV Preface an important feature and cornerstone of the trading system. They are well worth being explored and examined in great detail. This is what Dr Dae Won Kim has done with great care and expertise in his doctoral dissertation, researched and written at the World Trade Institute in 2002/2003 and submitted to the Faculty of Law of Berne, Switzerland. The book offers a logical and convincing structure. It develops its theory step by step. Based upon an assessment of history, state practice and current interpretations, foundations for a theory are built. Dr Kim expands upon the the existing framework, taking into account theory and jurisprudence not commonly in touch with the discipline of international trade regulation. His wide interests in legal theory are put to work, enriching the discourse on non-violation complaints and WTO law, as much as his presence enriched the discourse and debates at the WTI during his stay at the Institute. For this, all the fellows were grateful and retain shared moments of interesting and lively debates. Berne, October 2005 Professor Thomas Cottier

4 XV Summary The main objective of this thesis is to set up an effective legal reasoning on Non-Violation Nullification or Impairment (NVNI) complaints of GATT Article XXIII : 1(b). It premises two basic characteristics of any norm structure, i. e. positive and normative. This dichotomy specifically relevant to the NVNI complaints can be judicially sorted out with the aid of the Coherence conception. Every legal system is associated with elements of uniformity on the one hand, but flexibility on the other; while the former are connected with systematic mode of legal reasoning, the latter are seen as allowing or prompting a more purposive mode of reasoning. This is equally true at the level of WTO law. When reviewing GATT Article XXIII : 1(a), we see an application of a systematic approach, focusing on uniformly codified factors in WTO law; at the same time, the normative background of GATT Article XXIII : 1(b) is firmly related to a purposive approach, paying special attention to flexible factors hinging on underlying objectives of the WTO law. Therefore, the existence of the Article XXIII : 1(b) has its own sound reason from an analysis of general normative structure. Hence, the main stress must be laid upon its theorisation in the context of an optimal legal interpretation against indeterminacy in WTO law. Because an inherent indeterminacy of the obligations of WTO Agreements has resulted from various relational combinations between rules and values in the WTO Agreements, suitable normative conceptions on certain ways of combining the rules and values clearly take priority in the interpretation. One of the concepts is coherence, in the sense that a rule should be related in a principled fashion to other rules of the same system. The coherence concept can be divided into internal and external coherence, according to how the principled fashion relates to the making of a rule. As there is acceptance for a well-founded constitution of rules, the rules must show themselves to have internal coherence, in the

5 XVI Summary sense that the very many rules of a legal system ought to be organised and not self-contradury. Since the rules are mainly composed of rights and obligations, regardless of their conceptual breadth, the best way for preventing possible contradictions among rules ought to make the rules in line with the rights (correspondingly obligations) concept. Analysis of the rights (correspondingly obligations) concept is an important methodological point for a balanced comprehension of GATT Article XXIII : 1(b). By connecting GATT Article XXIII : 1(a) with complaints against specific, codified or primary obligations, the significance of the Article XXIII : 1(b) is in covering different complaints against uncertain, future or secondary obligations, i. e. liability. This is a reason why the NVNI complaints are to be understood as a kind of obligation complaint. At the same time, since there are underlying values to set up rules, an exploration of the rules is likely to arrive at an externally coherent structure, in the sense that the multitudinous rules of legal systems should be pointless in case of their isolation from the values. From this external coherence, an existence of value-nets in legal systems, which makes sets of rules be regarded as their concrete manifestations, is confirmed. The values should present themselves in the form of a specific objective of the concerned law (e. g. market access in WTO law), or general principles of whole legal systems (e. g. good faith, equity). By reviewing the externally coherent interrelation between objective of WTO law and employment of indeterminate elements of Article XXIII : 1(b), legitimate expectation originated from equity figures prominently in catching roles of NVNI complaints. This is another reason why the NVNI complaints are to be grasped as a kind of obligation complaint. With the above legal reasoning, we can avoid unnecessary arguments and interpret Article XXIII : 1 more consistently. GATT Article XXIII : 1 therefore jurisprudentially comprises three complaints: Obligation complaints [subsection (a)], Liability complaints [subsection (b)] and Situation complaints [subsection (c)]. The present wording of Article XXIII : 1 adopts unclear terminology inevitably causing systematic disturbance to the WTO system. For reducing the difficulty, we have to consider its amendment seriously.