WTO如何加強對發展中國家的額外需求的國際法律留學essay

 

在整個20世紀60年代和70年代，發展中國家作為關貿總協定的主要機構，認為通過貿發會議可促進國際貿易的利益。他們在關貿總協定代表反映這些優先事項：許多發展中國家會員國，以及那些大量沒有官方代表居住在日內瓦的國家，而是在其他歐洲國家的首都，以支付關貿總協定代表使用事項-通常非加太國家他們的駐歐盟使團在布魯塞爾舉行。此外，他們在關貿總協定談判之前，烏拉圭回合的參與是“被動的”，因為他們沒有在互惠的基礎上（華里，1987）使用相互交流等顯著方式。 
 

世界貿易組織的建立促進了進一步的改變，更多的要求發展中國家有效參與：首先，世貿組織涵蓋了各種新的領域，如服務，標準，知識產權，所有這些都需要附著于成員國政府額外的機構能力，無論是在日內瓦，還是他們的首都。 

How Does The Wto Place Additional Demands On Developing Countries International Law Essay

 

Introduction

 

Throughout the 1960's and 1970's, developing countries viewed UNCTAD rather than GATT as the main institution through which they could promote their interests in international trade. Their representation in GATT reflected these priorities: Many developing countries were not members, and of those that were, a large number did not maintain official representatives resident in Geneva, but instead used representatives in other European capitals to cover GATT matters -- for ACP countries usually their Mission to the EU in Brussels. Moreover, their participation in GATT negotiations prior to the Uruguay Round was "passive" in that they did not engage in a significant way in the mutual exchange of concessions on a reciprocal basis (Whalley, 1987).

 

The establishment of the WTO has resulted in further changes which place additional demands on developing countries for their effective participation: First, the WTO covers a variety of new areas, such as services, standards, intellectual property rights, all of which require additional institutional capacity in member governments both for more effective representation in Geneva and in their home capitals. Second, the WTO, unlike GATT, has been engaging in a number of on-going negotiations in the liberalization of different sectors, which require continuous active involvement by member countries. Three such negotiations, on Basic Telecommunications, Information Technology Products, and Financial Services were concluded in 1997 and more are in store starting in 1999, as part the Uruguay Round built of agenda.

 

ON 30 OCTOBER 1947, governments of 23 countries signed the Final Act of the General agreement on Tariffs and Trade (GATT). The General Agreement created a legal framework for a mutual reduction in tariffs negotiated between the signatory governments. It contained, first, each government's commitment to reduce tariffs (called its Schedule of Concessions) and, second, a code of behavior regulating other forms of government interference with international trade.

 

The GATT code of behavior rested on three central principles. The first was that, while governments would not be prohibited from protecting domestic industries against foreign competition, all such protection should be in the form of tariffs. Under this first principle, governments accepted the obligation to eliminate the many other kinds of non-tariff measures affecting trade that had become common in the pre-war years above all, restrictions limiting the quantity of imports allowed. The second principle was that, while there would be no a priori limits on tariff levels, governments would participate in periodic negotiations aimed at gradually reducing existing levels. The third was the most-favored-nation (MFN) principle, requiring governments to treat the trade of all other GATT countries equally. Under the MFN principle, any advantage given to one GATT country had to be given immediately, and unconditionally, to every other GATT country. The trade-policy discipline required by these three principles was rather modest very different from free trade. Moreover, the actual code of behavior adopted in 1947 contained a substantial number of exceptions. Nevertheless, the rules of the General Agreement did represent a coherent discipline requiring gradual trade liberalization. Working within these rules, the developed country governments within the GATT achieved a very substantial reduction of trade barriers during the period from 1947 to 1994, most of which remains in place.

 

On April 15, 1994, governments of 76 parties signed the Marrakesh Agreement Establishing the World Trade Organization, with a further 72 countries joining during the following 10 years. The WTO was formed as an umbrella organization for the restated “GATT 1994” agreement, a General Agreement on Trade in Services (GATS), an Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and a number of other agreements. The WTO represented both continuity and change in relation to the pre-existing GATT arrangements. However, many of the principles addressing the rights and obligations of developing countries that were developed under the GATT were carried forward into the WTO.

 

Theoretical Design:

 

The basic aim of this study is to understand the role of the World Trade organization in context of the new challenges faced by the developed economies. The purpose is to analyze the legal framework that is provided by the WTO to deal with the problems arises in the international trade. By every passing day the new challenges arises for the developing economies like globalization, IT development, food shortages, Quotas, tariff, barriers, environmental safety, health and lot more others what role does WTO plays in order to deal with these issuess As previously, the issue of Anti dumping was discussed in the WTO and a proper solution of it was developed and implemented. This thesis focused on the laws and regulation that has been developed by the WTO and how these laws facilitated the developed economies to deal with the emerging challenges.#p#分頁標題#e#

 

Research Questions

 

What role can WTO play in context of the new challenges faced by the developing economiess

 

What is the perception of the people working in the ministry of commerce regarding the laws of WTOs

 

What sort of legal framework is required to develop by the WTO that facilitates developing economies in facing new challengess

 

Literature Review:

 

The period preceding, the World War II was marked by isolationism and this partly contributed not only to the Great Depression but also to the World War II9. In a bid to solve these economic concerns, in July 1944, the parties attended a conference at Breton Woods, New Hampshire where the IBRD (World Bank) and IMF were formed. In 1945, the US issued a proposal for an International Trade Organization (ITO) but this soon proved to be fruitless as the US Congress refused to approve it (Ehlermann).

 

However, it should be noted that although the International Trade Organization did not come into fruition, the governments were interested in relaxing tariffs and other trade restrictions more rapidly hence the negotiation for the GATT 1947. This led to the Geneva Final Act, which consisted of the text of the GATT 1947 and the schedules of tariff commitments made by the 25 governments taking part. It also included a Protocol of Provisional Application (PPA). A measure intended to be temporary expedient, but which ended up being fundamental to GATT, 1947, for its 47 years of existence (Garcia B, and Garzotti, 2006).

 

On 1 January 1995, the GATT was overtaken by the WTO. There are some fascinating differences between the dispute settlement under the GATT 1947 and under the WTO and these will be discussed below

 

Dispute Settlement under the GATT 1947

 

Hudec (2003) noted that the dispute settlement in GATT reflected its diplomatic roots to the extent, that the process was initially dubbed as conciliation and not dispute settlement. Davey (1987) observed that the goal of the process was more to reach a solution mutually agreeable to the parties than to render a decision in a legal dispute. GATT 1947 had only two provisions dealing with dispute settlement, namely Article XXII and XXIII. However, Articles XXII and XXIII did not contain any specific procedures to be followed by disputing parties or even the Contracting Parties in resolving a dispute. Some formalities were added later on in subsequent negotiation rounds and Ministerial Conferences.

 

The GATT dispute settlement had fundamental shortcomings. Bossche (2005) noted that the manner in which key decisions were taken, that is, the establishment and composition of a panel, the adoption of panel reports and the authorization of suspension of concessions, were all taken by the GATT Council by consensus16. Thus, the responding party could delay or block any of these decisions and paralyze or frustrate the operation of the dispute settlement system. Thus it can be concluded that under GATT 1947, the dispute settlement system was entirely in the hands of the parties. Hudec (1999) made the following interesting remarks concerning GATT dispute settlement system:-#p#分頁標題#e#

 

Defendant governments participated on a voluntary basis, and that it would not be productive to try to force governments into adjudicatory rulings they are not prepared to accept’. Concerning remedies, the GATT 1947 provided for three remedies only namely recommendation to comply, compensation and the suspension of concessions or any other obligations under the covered agreements19. However, as noted above, these remedies were not effective due to the issue of positive consensus. Thus, it should be noted that from the onset the governments showed no political commitment to make an effective system of implementation and enforcement of rulings and recommendations

 

Dispute Settlement under the WTO

 

The WTO dispute settlement system, which came into operation in 1995, was innovative. It is governed by the Settlement of Disputes (DSU). Its prime objective is the prompt settlement of disputes between WTO Members concerning their rights and obligations under the covered agreements. Considerations referred two important policies in the DSU namely, protecting the security and predictability of the DSS and satisfactory settlement of disputes. Jackson (1997) argues that these two policy issues may conflict with each other as sometimes the need to reach a satisfactory settlement may compromise the security and predictability of the dispute settlement system.

 

Developing Economies

 

The World economy is caught up in two important cross movements. One leads it to greater global integration and in search of a macro-equilibrium, which relates world resources to world needs. The other, equally important, but somewhat opposite tendency is on the part of countries, states and even communities to create an economic environment which maximizes their welfare at household, community, village, city, state or country level. These groups of people or geographical entities are in search of micro equilibrium, which meets their needs with reference to their resources in the best possible manner. It is known that sum of a number of micro-equilibrium will always fall short of the welfare obtained in a macro-equilibrium situation. In this respect in development economics sum of parts is not equal to the whole and larger the number of parts (micro-equilibrium) the larger the gap between welfare obtained in macro equilibrium situation as against sum total of micro-equilibrium. It is in this context that every movement towards a global equilibrium is a welcome step and is expected to add to the over-all well being of the humanity. However, such addition to well being is to be balanced with the search for micro-equilibrium by the local communities, States and Countries. Reconciliation of these requirements is essentially the task before the global community. In addition, here issues of politics and sovereignty interact with issues of economy. WTO, global governance, and new trade round are to be seen in this perspective. WTO attempts to re-arrange trade and production patterns as to maximize economic benefits not only for the member countries but also worldwide. Uruguay round of trade negotiations, which culminated in the establishment of WTO and signing of a number of agreements in the area of World Trade, is about the initial step in the direction of globalization of trade. However, about seven years after the Uruguay round there is still unfinished agenda relating to accommodating the concerns of the developing countries while attending to the needs and interests of advanced industrial countries. Some of the issues identified by WTO in the context of emerging world trade scenario also focus on some of the non-trade issues including labor standards, environment etc. These are, for obvious reasons, being resisted by the developing countries and will alienate them from WTO regime forcing them seek solutions of their trade related problems in bilateral and regional arrangements. The WTO provides three critical services to the international trading system: a forum for multilateral negotiations, an apparatus to mediate the neutral arbitration of trade-related disputes between members, and the illumination of members’ changes to policies that affect foreign commercial interests. Yet, discussions of reform to the WTO system rarely address the third pillar of monitoring and transparency. As motivation, one of the fundamental contributions of the WTO system’s architecture is that it allows for substantial monitoring of changes to the national policies that have an impact on the conditions of foreign market access and hence, the flows of international trade. The WTO architecture has resulted in a system of rules as well as reporting requirements that makes it possible to transmit information concerning how one member’s policy changes are expected to affect the foreign market access interests of exporters in other WTO Member economies. Monitoring may have never been more important for the sustainability of the rules-based trading system than during the height of the global economic crisis in 2008–2009.#p#分頁標題#e#

 

Challenges Faced by the developing economies

 

Globalization and world trade

 

Speaking of globalization, we are aware that, for the most part, it is driven by technological advances that have made diverse means of transport and communication increasingly cheaper. Globalization also affects international financial markets, where the amounts traded are becoming larger and more diverse.

 

Changing balance of economic power

 

Related to the globalization process is the fact that, in recent times, the world has witnessed a change in the balance of economic power. Observers suggest that 50 years ago, 60 percent of global GDP had come from within the original G7 countries and the balance from the rest of the world; but now the situation has reversed. There is no doubt that this change is a challenge to the Bretton Woods institutions. For instance, it so happens that no advanced industrialized country has borrowed from the Fund for more than 20 years, and yet these countries tend to dominate decision-making. On the other hand, other members of the Fund expect the institution to deliver on its mandate fairly and equally to all the 185 members. There remains the legitimate expectation that, in time, there will be a reform of the voting system, so that developing countries, a large number of which are in Africa, can be in a position to influence policy in a meaningful manner, both in the International Monetary Fund and World Bank.

 

Developing Countries perception about WTO

 

Developing countries that had been mistrustful of the GATT as a rich man’s club played a much fuller role than in any of the preceding Rounds. Of the 134 members of the WTO, 99 are classified in the UN as developing countries. This change resulted partly from the economic conversion of many governments during the 1980s and from a reassessment of the relative advantages of binding trade rules. The new commitment to the multilateral system is more likely to be followed through if the system is seen to support development. The aim of these Briefings is to identify the ‘development interest’ in the main areas of current trade policy and forthcoming trade negotiations, such as a Millennium Round. WTO members need to balance the benefits of rules restricting protectionist and arbitrary behavior against the costs of compliance and the penalties for noncompliance. Relatively weak players, developing countries are likely more often to be the victims rather than the perpetrators of global protectionism and anticompetitive behavior and could therefore expect to gain most from the rules. On the other hand, as numerically strong but technically weak members, they may regard the design or application of the rules as biased towards the interests of the developed states that drafted them, despite the continuation of special treatment. Given the WTO’s consensus structure of decision-making, it is in the interests of all members that the developing countries play a sufficiently strong role to ‘own’ the results. Hence, the call for the next negotiations is to be a ‘Development Round’. Implementation of the Uruguay Round The Uruguay Round significantly advanced the cause of a liberal, rule-based trading system, but some areas of implementation and coverage are problematic for developing countries, namely the spread of new forms of protectionism (with anti-dumping action a notable example), and limited progress on areas of particular interest such as clothing and textiles and agriculture. Recourse to anti-dumping is continuing to prove difficult for developing country exporters, even though changes in the Uruguay Round have affected procedures.

 

At the end of 1996, the European Union had 143 anti-dumping measures in place, the USA 198, Canada 93, and Australia 47. Of the eight textiles cases through by the European Union since the Uruguay Round, India has been involved in six and Pakistan, Egypt and Indonesia in three. A new cause for concern is the advent of ‘chain complaints’, whereby an unsuccessful complaint is followed immediately by a virtually identical one, creating uncertainty for user industries. At the same time, developing countries have become active in taking anti-dumping action against industrialized country exports. Whilst the Uruguay Round liberalized trade in clothing and textiles, implementation is end-loaded. The Multitier Arrangement (MFA), which has provided since 1974 a freestanding multilateral framework for the proliferation of discriminatory quantitative restrictions against 35 developing countries and economies in transition, is to be phased out under the Agreement on Textiles and Clothing (ATC). All bilaterally agreed and MFA-based quantitative restrictions are to be notified to the Textiles Monitoring Board for removal according to a graduated schedule, with expanded quotas in the interim. However, the ATC may not result in a significant liberalization for developing exporters until 2005. First, the phase-out could become more restrictive for suppliers whose quota growth does not match the growth in demand. Second, integration is heavily end-loaded: restrictions on items accounting for almost half the 1990 volume of trade do not need to be removed until the final 2005 deadline. The problem of agriculture, where OECD protectionism hinders developing countries exploiting their comparative advantage, is that progress was only partial. While the Agreement on Agriculture began the process of establishing, a framework of trade rules for agriculture similar to those already existing for manufactures. Developing countries as a group should gain from agricultural liberalization but this broadly beneficial impact arises largely from the opening of protected markets to competition (especially in the industrialized states) an outcome, which remained substantially unachieved in the Uruguay Round.

 

Agriculture

 

While the direct effects of the Agreement on Agriculture have not been great, the same will not necessarily be true of its successor. Developing countries (and socio–economic groups within them) will be affected: n indirectly via the impact of subsidy removal on the world market (leading to a rise in prices and, possibly, reduction of supply); n directly by any constraints on their own action to develop agriculture to address the new opportunities and challenges. Although gains from full liberalization would exceed losses, progress in agriculture may be crab-like as it results from political trade-offs. This can produce a complex mix of short- and medium-term winners and losers.

 

TRIPs

 

Developing countries already face severe implementation problems, but the industrialized countries are likely to demand accelerated implementation and to negotiate on new areas and higher levels of intellectual property right (IPR) protection. The development interest is not clear-cut. There are recognized benefits for developing countries from effective protection, which should lead to greater innovation worldwide from which all would gain. However, there are also costs, which will vary depending on a country’s stage of development and its industry/technology base.

 

Services

 

Trade and investment in services are increasingly important for developing countries. Although the GATS process set benchmarks and a framework for future liberalization, there has not yet been any significant additional liberalization. The main benefits of the GATS for developing countries stem from the constraints on backsliding and the encouragement to foreign investment of a more stable policy environment. Developing countries would gain most from further liberalization of their domestic markets. Simply permitting foreign firms into an uncompetitive market produces relatively limited benefits. To that extent, their general interest in a further international liberalization of services may be limited.

 

Environment

 

The WTO Committee on Trade and Environment (CTE) has a broad mandate to study the relationship between environment and the trade, and to make recommendations about any changes that might be needed in trade agreements. A central question is whether international trade is good or damaging to the environment. Concern has been growing since the 1960s but there is no straightforward answer, and hence no consensus on policy solutions. The current rules are that countries may take any environmental measure against imported products provided equivalent measures apply to domestic output. Hence, strict product standards on environmental grounds can act as an effective barrier to trade, but this ‘product standard rule’ does not extend to ‘production processes’: trade policy cannot be used to restrict imports of goods which meet such standards but have been produced using environmentally damaging processes. There is concern that differential environmental standards will affect trade competitiveness and lead to industrial flight and pollution havens in developing countries. Empirical evidence linking environmental control costs to loss of international competitiveness concludes that: an abatement costs are on average a very small proportion of total industrial costs; and reductions in output attributable to environmental control costs are insignificant on average. There is little evidence of any significant impact of environmental control costs on the pattern of trade. However, while international trade is not a direct cause of environmental problems, the WTO accepts that it can operate as a ‘magnifier’.

 

The WTO and other agreements

 

As the scope of the WTO spreads, so its provisions are likely to overlap increasingly with those of other international agreements. This is already occurring in the area of the environment and TRIPs. The international community must agree how to handle any apparent conflicts between such agreements. There are about 200 international agreements currently in force dealing with environmental issues, about 20 of which include trade-related provisions. Some of these trade measures are complementary to WTO objectives, but others could conflict. The Convention on Biological Diversity (CBD) and TRIPs, for example, are both framework agreements requiring further development to achieve full implementation of all their objectives.

 

MeTHODOLOGY

 

The purpose of thss exploratory research ss to determsne The role of World Trade Organisation (WTO) in the context of new challenges for Developing Economies. The study will be conducted by ussng the reports and data avilable related to the World Trade organization rules and regulations as well as the the legal framework WTO provides for the trade settelments.The published directories of the WTO will also be refer for the better understanding along with the discussion from tehe member executive represents the world trade organizaton.

 

Research Dessgn

 

The qualstatsve method of reviweimg previous literature, sn-depth sntervsews with the concerned person ss conssdered approprsate when seeksng to gather snformatson that requsres another’s posnt of vsew, feelsngs, and perspectsve on an sssue (Lsndlof & Taylor, 2002). Holloway (1997) states that the purpose of qualstatsve research ss to, “uncover theessence of a phenomenon, not to generalsze from a ssngle case or a small number of cases” (p. 79).

 

sn thss present research, swsll seek out to understand the The role of World Trade Organisation (WTO) in the context of new challenges for Developing Economies. The sn-depth sntervsews are gusded by Lsndlof and Taylor’s (2002) nondsrectsve questson method going to be conducted by takinh the appointment from the people working in the ministry of commerce to better understand the WTO facilitation roles with respect to the new emerging challenges faced by the developed Economies. each sntervsew wsll be approached as a conversatson wsth a purposeand an sntenssve, snformal, and sems-structured format wsll be used (Lsndlof, 1995). sntervsew probes wsll addstsonally be used to reduce sntervsewer judgment dursng the sntervsew (Patton, 2002).

 

Method of Data Collectson

 

Data from thesn-depth sntervsews wsll be collected from notes taken dursng the sntervsews. The actual recorded sntervsew wsll be saved sn a .wav fsle sn a computer fsle and the transcrsptsons wsll addstsonally be saved sn a Word fsle.

 

Samplsng Strategy

 

Thss study ss gusded by what Lsndlof and Taylor (2002) defsned as purposeful samplsng. Thss ss conssdered a non probabslsty approach ssnce the ministry of commerce are selected because, the legal framework provided by the WTO ss crstscal to understandsng thr role of the WTO in context of the new challenges faced by the developing economies.