中 国 矿 业 大 学文 法 学 院 教 案
Chapter 8：World Trade Organization
教学目的及要求
通过本章教学，要求同学们了解WTO的发展历史、法律地位、运行机制和宏观法律框架，掌握WTO基本原则、反倾销法律制度、补贴与反补贴措施、保障措施和一些重要的非关税措施以及WTO的争端解决机制。
教 学 重 点
要求同学们掌握的内容为本章的教学重点，即如下内容：
①WTO基本原则；
②反倾销制度、补贴与反补贴措施、保障措施；
③技术性贸易壁垒等非关税措施；
④WTO的争端解决机制。
教 学 难 点
①反倾销制度、补贴与反补贴措施、保障措施；
②技术性贸易措施等非关税措施；
教 学 内 容 及 文 本 演 示
课外阅读法条
课 堂 讨 论
Section 1,General Introduction to WTO
Section 2,Major Principles of WTO
Multilateral Agreements on Trade in Goods
1,WTO第一案
Section 3,GATT Exceptions
2,1998年海龟案
Section 4,Anti-dumping
Section5,Subsidies and countervailing
measures
Section6,Safeguards
3.中国入世第一案
Section 7,Non-tariff measures
Section 8,GATS
GATS
Section 9,Dispute settlement
DSU
本章思考题：
1,针对国外的技术性贸易壁垒我国在对外贸易中应采取的措施。
2,WTO争端解决机制的不足与完善。
Chapter 8 World Trade Organization
Section 1:General Introduction to WTO
Ⅰ,A Brief History of GATT>
Ⅱ.The Differences and Relations
Between WTO and GATT>
Ⅲ,Nature >
Ⅳ,Objectives>
Ⅴ,Main functions>
Ⅵ,Structure (Main Organs)>
Ⅶ,Decision-making>
Ⅷ,Legal Framework>
Ⅰ,A Brief History of GATT
WTO—World Trade Organization came into being on 1 January 1995.
headquartered in Geneva,Switzerland
GATT--- General Agreement on Tariffs and Trade,WTO’s
predecessor-- was established on October,1947
I,A Brief History of GATT
the Second World War
international economic cooperation
,Bretton Woods” conference
（New Hampshire）
World Bank --International Bank for Reconstruction and Development
IMF--International Monetary Fund
ITO--International Trade Organization
specialized agencies of the United Nations
I,A Brief History of GATT
A Charter for an International Trade Organization (ITO) was drafted by the US and amended by many other countries,
The Charter was intended to provide not only world trade disciplines but also contained rules relating to employment,commodity agreements,restrictive business practices,international investment and services,
The ITO Charter was finally agreed at a UN Conference on Trade and Employment in Havana in March 1948 (so called,Havana Charter”).
A long way to go for ratification by legislatures
I,A Brief History of GATT
While the charter was seeking ratification in national legislatures,tariff negotiations were opened among the 23 founding GATT,contracting parties” in order to give an early boost to trade liberalization after the Second World War - and to begin to correct the large overhang (突出问题）of protectionist (贸易保护的） measures which remained in place from the early 1930s,
I,A Brief History of GATT
This first round of negotiations resulted in 45,000 tariff concessions （关税减让）affecting $10 billion - or about one-fifth - of world trade,
The tariff concessions and the principles and basic rules in the draft ITO Charter together became known as the General Agreement on Tariffs and Trade and entered into force in January 1948,
It was assumed to be a provisional system before ITO.
I,A Brief History of GATT
Although the ITO Charter was finally agreed at a UN Conference on Trade and Employment in Havana in March 1948,ratification in national legislatures proved impossible in some cases,
When the United States' government announced,in 1950,that it would not seek Congressional ratification of the Havana Charter,the ITO was effectively dead,
I,A Brief History of GATT
Despite its provisional nature,the GATT remained the only multilateral instrument governing international trade from 1948 until the establishment of the WTO,
Although,in its 47 years,the basic legal text of the GATT remained much as it was in 1948,there were additional agreements and continual efforts to reduce tariffs,Much of this was achieved through a series of "trade rounds",
I,A Brief History of GATT
There were altogether 8 rounds of negotiations under GATT,The last one was the Uruguay [′urugwai ]Round which created a new system—WTO,
After 8 years of negotiation,every issue was finally resolved in 1992,and on 15 April 1994,the deal was signed by Ministers from most of the 125 participating governments at a meeting in Marrakesh马拉克什,Morocco摩洛哥,
I,A Brief History of GATT
In accordance with WTO Agreement (Marrakesh Agreement Establishing the World Trade Organization),WTO came into being on January 1,1995.
WTO is One of the youngest of the international organizations,and the only global international organization dealing with the rules of trade between nations.
Ⅱ,Differences and Relations
Between WTO and GATT
A,Five Differences
The World Trade Organization is not a simple extension of GATT; on the contrary,it completely replaces its predecessor and has a very different character,Among the principal differences are the following,
Ⅱ,Differences and Relations
Between WTO and GATT
1,The GATT was a set of rules,a multilateral agreement,with no institutional foundation,only a small associated secretariat(秘书处) which had its origins in the attempt to establish an International Trade Organization in the 1940s,
The WTO is a permanent institution with its own secretariat,
Ⅱ,Differences and Relations
Between WTO and GATT
2.The GATT was applied on a,provisional basis” even if,after more than forty years,governments chose to treat it as a permanent commitment(商业上的约定).
The WTO commitments are full and permanent,
Ⅱ,Differences and Relations
Between WTO and GATT
3,The GATT rules applied only to trade in goods,
In addition to goods,the WTO covers trade in services and trade-related aspects of intellectual property,
Ⅱ,Differences and Relations
Between WTO and GATT
4,While GATT was a multilateral instrument,by the 1980s many new agreements had been added of a plurilateral,and therefore selective,
The agreements which constitute the WTO are almost all multilateral and,thus,involve commitments for the entire membership,Plurilateral
Ⅱ,Differences and Relations
Between WTO and GATT
5,The WTO dispute settlement system is faster,more automatic,and thus much less susceptible (易受影响的)to blockages,than the old GATT system,The implementation of WTO dispute findings（裁决） will also be more easily assured,
Ⅱ,Differences and Relations
Between WTO and GATT
B,Relations
1,As a factual institution--GATT was replaced by WTO;
2,As an agreement--GATT lives on as,GATT 1994”;>
3,Basic principles are remained.
Ⅱ,Differences and Relations
Between WTO and GATT
GATT lives on as,GATT 1994”,the amended and up-dated version of GATT 1947,which is an integral(构成整体所需要的） part of the WTO Agreement and which continues to provide the key disciplines affecting international trade in goods,
Ⅲ,Nature
The World Trade Organization (WTO) is the only global international organization dealing with the rules of trade between nations,
The WTO agreements are negotiated and signed by the bulk of the world’s trading nations and ratified in their parliaments,They are part of international law.
It’ s a rules-based,member-driven organization — all decisions are made by the member governments,and the rules are the outcome of negotiations among members,
It has international legal personality,The organization and its officials have some rights of immunity,
Ⅳ,Objectives
1.To raise standards of living为了提高生活水平
2.To ensure full employment保证充分就业
3.Growing volume of real income and effective demand
4.Expanding the production of and trade in goods & services扩大生产和贸易
5.Sustainable development and environmental protection保护和维护环境，寻求对世界资源的最佳利用，实现可持续发展的目标，
6.Developing countries保证发展中国家、特别是最不发达国家“在国际贸易增长中获得与其经济发展需要相当的份额”。
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Ⅴ,Main functions
1.Implementation,administration and operation of the covered agreements各项贸易协议的履行、管理和实施。
2.Forum for negotiations
发挥谈判论坛的作用
3.Dispute settlement
4.Review of national trade policies
5.Coherence in global economic policy-making
Ⅴ,Main functions
1.Implementation,administration and operation of the covered agreements
The WTO facilitates the implementation,administration and operation of the WTO Agreement and the Multilateral Trade Agreements,and furthers their objectives,It also provides the framework,for those of its Members that have accepted them,for the implementation,administration and operation of the Plurilateral Trade Agreements.
Ⅴ,Main functions
2.Forum for negotiations
The WTO provides the forum for negotiations on multilateral trade relations in matters covered by its various agreements,
It may also,on decision by the Ministerial Conference,provide a forum for further negotiations,and a framework for the implementation of their results,on other issues arising in the multilateral trade relations among its Members,
Ⅴ,Main functions
3.Dispute settlement
The WTO administers the dispute settlement system,which is a central element in providing security and predictability to the multilateral trading system,serving to preserve the rights and obligations of the Members of the WTO,
Ⅴ,Main functions
4.Review of national trade policies
The WTO administers the Trade Policy Review Mechanism,which is designed to contribute to greater transparency and understanding of the trade policies and practices of WTO Members,to their improved adherence to the rules,disciplines and commitments of the multilateral trading system,and hence to the smoother functioning of the system,
Ⅴ,Main functions
5.Coherence in global economic policy-making
A Ministerial Declaration adopted at the Marrakesh Ministerial Meeting recognizes the role of trade liberalization in achieving greater coherence in global economic policy-making,For this purpose,the WTO cooperates,as appropriate,with the International Monetary Fund and with the World Bank,back
Ⅵ,Structure (Main Organs)
Ministerial Conference
General Council
Dispute Settlement Body?
Trade Policy Review Body
Councils
Council for Trade in Goods
Council for Trade in Services?
Council for TRIPs
Committees and other subsidiary bodies
Ministerial Conference
The Ministerial Conference is the supreme body of the WTO,composed of representatives of all Members,with the authority to carry out the functions of the WTO,take the actions necessary to this effect,and take decisions on matters under any of the Multilateral Trade Agreements if so requested by a Member,
The Ministerial Conference is to meet at least once every two years,
General Council
The day to day business of the WTO is conducted by the General Council,also composed of representatives of all WTO Members,which meets on a regular basis (normally once every two months),The General Council acts on behalf of the Ministerial Conference in the periods between its meetings,and reports directly to it.back
Dispute Settlement Body
The General Council acts also as the Dispute Settlement Body (DSB),which has its own Chairman and its own rules of procedure,to discharge（履行） the functions assigned to it under the Dispute Settlement Understanding.
Trade Policy Review Body
The General Council meets also as the Trade Policy Review Body,which again has its own Chairman and rules of procedure,to carry out the review of Members‘ trade policies and practices（做法）,as provided for in the Trade Policy Review Mechanism,
Councils
Three sectoral councils have been established for goods,services and TRIPs matters,respectively,
These Councils,operating under the general guidance of the General Council,carry out the responsibilities assigned to them by their respective agreements and by the General Council;
they meet as necessary to carry out their functions; and they are open to representatives of all WTO Members,
They may also establish subsidiary bodies,such as committees and working parties.
Council for Trade in Goods
The Council for Trade in Goods oversees the functioning of the multilateral agreements on trade in goods,
These include the General Agreement on Tariffs and Trade (GATT) and related Understandings,and twelve other agreements,as contained in Annex 1A to the WTO Agreement.
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Council for Trade in Services
The Council for Trade in Services oversees the functioning of the General Agreement on Trade in Services (GATS).
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Council for TRIPs
The Council for TRIPs oversees the functioning of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement).
Ⅶ,Decision-making
The WTO continues the practice of decision-making by consensus followed under the GATT 1947,Consensus is defined as the situation where no Member,present at a meeting where a decision is taken,formally objects to the proposed decision,
Ⅶ,Decision-making
However,it is recognized that there may be situations where a consensus cannot be reached,in which case the matter may be decided by voting,Voting rules are set out in the WTO Agreement as the following.
Ⅶ,Decision-making
1,At meetings of the Ministerial Conference and the General Council,each Member of the WTO shall have one vote,Where the European Communities exercise their right to vote,they shall have a number of votes equal to the number of their member States which are Members of the WTO,
Ⅶ,Decision-making
2,Decisions of the Ministerial Conference and the General Council shall be taken by a majority of the votes cast,unless otherwise provided in this Agreement or in the relevant （相应的）Multilateral Trade Agreement.部长级会议和总理事会的决定应以所投票数的简单多数作出，除非本协定或有关多边贸易协定另有规定。?
Ⅶ,Decision-making
3.The Ministerial Conference and the General Council shall have the exclusive authority to adopt interpretations of WTO Agreement and of the Multilateral Trade Agreements,The decision to adopt an interpretation shall be taken by a three-fourths majority of the Members,
Ⅶ,Decision-making
4.In exceptional circumstances(在特殊情况下）,the Ministerial Conference may decide to waive（放弃，免除） an obligation imposed on a Member by WTO Agreement or any of the Multilateral Trade Agreements,provided that any such decision shall be taken by three fourths of the Members unless otherwise provided for in WTO agreement.
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Ⅷ.,Legal Framework
WTO Agreement (Full Name)
WTO Agreement---Marrakesh Agreement Establishing the World Trade Organization
Annex?1BGATS---General Agreement
on Trade in Services?
Annex?1CTRIPS---Trade-Related
Aspects of Intellectual Property
Rights
Annex?2DSU--Dispute Settlement
Understanding?--?Understanding on
Rules and Procedures Governing the
Settlement of Disputes
Chart
Annex 1A
GATT?1994?(Must be read with GATT?1947 )
Agriculture
Sanitary and Phytosanitary Measures
卫生与植物检验措施协定
Textiles and Clothing
Technical Barriers to Trade
Trade-Related Investment Measures (TRIMs)
Anti-dumping
Customs valuation
Preshipment Inspection装船前检验协定?
Rules of Origin原产地规则协议
Import Licensing进口许可证手续协定?
Subsidies and Countervailing Measures
补贴与反补贴措施协定?
Safeguards 保障措施协定
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Annex?3
Trade Policy Review Mechanism
Annex 3 of the WTO agreement establishes a Trade Policy Review Mechanism (TPRM),Its purpose is to improve transparency,to create a greater understanding of the policies that countries are adopting,and to assess（评估） their impact,Many members also see the review as constructive feedback on their policies.
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ANNEX 4
Plurilateral Trade Agreements
Agreement on Trade in Civil Aircraft?
Agreement on Government Procurement
International Dairy Agreement (?terminated end 1997 )
International Bovine Meat Agreement? ( terminated end 1997)
Difference
Chart
Section 2,Major Principles of WTO
关于WTO基本原则的说明：
1、所谓的WTO原则，不是某一个WTO文件中规定的，而是学者的总结；
2、我国学者的观点也不完全一致，包括：非歧视原则、透明度原则、逐渐削减关税原则、一般取消数量限制原则、自由贸易原则、公平竞争原则、互惠原则等等。
3、本节以WTO网站自己公布的原则为讲解内容。
不信看看去
Section 2,Major Principles of WTO
1.Trade without discrimination, Most-favoured-nation (MFN) and National treatment
2.Freer trade,gradually,through negotiation
3.Predictability,through binding and transparency
4.Promoting fair competition
5.Encouraging development and economic reform Back to Outline
Section 2,Major Principles of WTO
1.Trade without discrimination
A country should not discriminate between its trading partners (giving them equally,most-favoured-nation” or MFN status); and it should not discriminate between its own and foreign products,services or nationals (giving them,national treatment”).
Section 2,Major Principles of WTO
A,Most-favoured-nation treatment (MFN), treating other people equally
a,Meaning,Under the WTO agreements,countries cannot normally discriminate between their trading partners,Grant someone a special favour (such as a lower customs duty rate for one of their products) and you have to do the same for all other WTO members.
Section 2,Major Principles of WTO
b,Importance:
It is one of the bedrock principles of the WTO,
It is the first article of GATT,which governs trade in goods,
MFN is also a priority in GATS (Article 2) and TRIPS (Article 4),although in each agreement the principle is handled slightly differently,
Together,those three agreements cover all three main areas of trade handled by the WTO,
Section 2,Major Principles of WTO
c,Exceptions to MFN
①Regional Economic Organization 区域性经济组织and Customs Union关税同盟Countries can set up a free trade agreement that applies only to goods traded within the group —? discriminating against goods from outside.
Section 2,Major Principles of WTO
②Generalized System of Preferences 普惠制
The Generalized System of Preferences or "GSP" is a system that grants products made in developing countries lower tariff rates than those normally enjoyed under Most-Favoured-Nation status as a special measure granted to developing countries in order to increase their export earnings and promote their development.
The GSP is defined in the Decision on,Generalized System of Preferences” of June 1971,and is a measure taken based on the Decision on,Differential and More Favourable Treatment,Reciprocity,and Fuller Participation of Developing Countries“《关于有差别与更优惠待遇、对等与发展中国家充分参与的决定,or the,Enabling Clause”（授权条款）。
Section 2,Major Principles of WTO
The GSP has the following characteristics:
First,preferential tariffs may be applied not only to countries with special historical and political relationships (i.e,the British Commonwealth),but to developing countries more generally (thus the system is described as,generalized”).
Second,the beneficiaries (受益者)are limited to developing countries.
Third,it is a benefit unilaterally granted by developed countries to developing countries,
Section 2,Major Principles of WTO
But the agreements only permit these exceptions under strict conditions,In general,MFN means that every time a country lowers a trade barrier or opens up a market,it has to do so for the same goods or services from all its trading partners — whether rich or poor,weak or strong.
Section 2,Major Principles of WTO
B,National treatment,Treating foreigners and locals equally
a,Meaning
National treatment (GATT Article III) means imported and locally-produced goods should be treated equally — at least after the foreign goods have entered the market,The same should apply to foreign and domestic services,and to foreign and local trademarks,copyrights and patents,
National treatment only applies once a product,service or item of intellectual property has entered the market,Therefore,charging customs duty on an import is not a violation of national treatment even if locally-produced products are not charged an equivalent tax,
Section 2,Major Principles of WTO
b,Importance:
National treatment stands along side most-favored-nation treatment as one of the central principles of the WTO Agreement,
This principle of,national treatment” is also found in all the three main WTO agreements (Article 3 of GATT,Article 17 of GATS and Article 3 of TRIPS),although once again the principle is handled slightly differently in each of these.
Section 2,Major Principles of WTO
C,Exceptions to National Treatment
⑴Government Procurement
Meaning：
Article：GATT Article III:8(a) permits governments to purchase domestic products preferentially,making government procurement one of the exceptions to the national treatment rule,
Why？This exception is permitted because the contracting parties recognized the role of government procurement in national policy,For example,there may be a security need to develop and purchase products domestically,or government procurement may,as is often the case,be used as a policy tool to promote smaller business,local industry,or advanced technologies,
Section 2,Major Principles of WTO
Exception to the exception:
While the GATT made government procurement an exception to the national treatment rule,the Plurilateral Agreement on Government Procurement resulting from the Tokyo Round mandates(要求) signatories(签署者) to offer national treatment in their government procurement,
However,the contracting parties to the WTO are under no obligation to join the Agreement on Government Procurement,
In fact,it has mostly been developed countries which have joined the Agreement,
Section 2,Major Principles of WTO
⑵Domestic Subsidies(国内补贴）
GATT Article III:8(b) allows for the payment of subsidies exclusively to domestic producers as an exception to the national treatment rule,under the condition that it is not in violation of other provisions in Article III and the Agreement on Subsidies and Countervailing Measures,
Section 2,Major Principles of WTO
The reason for this exception is that subsidies were recognized to be an effective policy tool,and is recognized to be basically within the latitude(地区) of industrial policy authorities,However,because subsidies may have a negative effect on trade,the Agreement on Subsidies and Countervailing Measures imposes strict disciplines on the use of subsidies,（Section5,Subsidies and countervailing）
Case 1--WTO第一案
1995年1月，世界贸易组织成立伊始就受理了一起非常棘手的贸易争端：委内瑞拉申诉美国。事情的起因是，1993年，美国环保署根据国会1990年《清洁空气法》修正案制定的“汽油规则”，要求自1995年1月1日起在美国销售的汽油必须符合新的清洁度标准。在美国污染严重地区只允许销售法定清洁汽油（精炼汽油），在其余地区销售的常规汽油不得低于1990年所售汽油的清洁度。关于1990年清洁度标准的确定，分为两种情况：在1990年营业6个月以上的国内供应商可自行确定本企业的标准(,独立底线”方案),而国外供应商和在1990年营业不足6个月的国内供应商必须执行法定标准(“法令的底线” 方案)。同时，美国从加拿大进口的石油也采用了“独立底线”方案。
美国的这一政策公布后，遭到了作为美国重要的国外汽油供应商委内瑞拉的反对，认为该政策违反了世界贸易组织的规则，严重损害了委内瑞拉的经济利益。于是，委内瑞拉便把美国“告到”了世界贸易组织。随后不久，巴西也加入了对美国的申诉。这便是所谓的“WTO第一案”。
问题：美国的做法是否符合非歧视原则?
Case 1--WTO第一案世界贸易组织的争端解决机构裁定美国的汽油政策违反了WTO的国民待遇原则，要求美国修改汽油政策，使其与世界贸易组织的规则相一致。美国接受了裁决，并应委内瑞拉的要求，自1996年5月20日起的15个月内修改其汽油政策。1997年8月19日，美国签署了新的汽油政策，“WTO第一案”也最终得到了圆满解决。
Section 2,Major Principles of WTO
2,Freer trade,gradually,through negotiation
What?
Why?Lowering trade barriers is one of the most obvious means of encouraging trade,The barriers concerned include customs duties (or tariffs) and measures such as import bans or quotas (配额）that restrict quantities selectively,From time to time other issues such as red tape and exchange rate policies have also been discussed.
Section 2,Major Principles of WTO
How?Since GATT’s creation in 1947-48 there have been eight rounds of trade negotiations,A ninth round,under the Doha Development Agenda,is now underway,At first these focused on lowering tariffs (customs duties) on imported goods,As a result of the negotiations,by the mid-1990s industrial countries’ tariff rates on industrial goods had fallen steadily to less than 4%.
But by the 1980s,the negotiations had expanded to cover non-tariff barriers on goods,and to the new areas such as services and intellectual property.
Opening markets can be beneficial,but it also requires adjustment,The WTO agreements allow countries to introduce changes gradually,through,progressive liberalization”,Developing countries are usually given longer to fulfill their obligations.
Section 2,Major Principles of WTO
3,Predictability,through binding and transparency
Binding,In the WTO,when countries promise to lower or not to raise a trade barrier,or agree to open their markets for goods or services,they,bind” their commitments so the trade circumstances can keep stable,The promises give businesses a clearer view of their future opportunities,With stability and predictability,investment is encouraged,jobs are created and consumers can fully enjoy the benefits of competition — choice and lower prices,
Section 2,Major Principles of WTO
The multilateral trading system is an attempt by governments to make the business environment stable and predictable.
A country can change its bindings,but only after negotiating with its trading partners,which could mean compensating them for loss of trade,
Section 2,Major Principles of WTO
Transparency The wto system tries to improve predictability and stability in other ways as well,
One way is to make countries’ trade rules as clear and public (“transparent”) as possible,Many WTO agreements require governments to disclose their policies and practices publicly within the country or by notifying the WTO,The regular surveillance(监督) of national trade policies through the Trade Policy Review Mechanism provides a further means of encouraging transparency both domestically and at the multilateral level.
Section 2,Major Principles of WTO
Another is to discourage the use of quotas and other measures used to set limits on quantities of imports — administering quotas can lead to more red-tape(繁琐拖沓的程序） and accusations of unfair play,
Section 2,Major Principles of WTO
4.Promoting fair competition
The WTO is sometimes described as a,free trade” institution,but that is not entirely accurate,The system does allow tariffs and,in limited circumstances,other forms of protection,More accurately,it is a system of rules dedicated to(致力于) open,fair and undistorted competition.
Section 2,Major Principles of WTO
The rules on non-discrimination — MFN and national treatment — are designed to secure fair conditions of trade,So too are those on dumping (exporting at below cost to gain market share) and subsidies,The issues are complex,and the rules try to establish what is fair or unfair,and how governments can respond,in particular by charging additional import duties calculated to compensate for damage caused by unfair trade.
Many of the other WTO agreements aim to support fair competition,in agriculture,intellectual property,services,for example,
Section 2,Major Principles of WTO
5.Encouraging development
and economic reform
The WTO system contributes to development,On the other hand,developing countries need flexibility in the time they take to implement the system’s agreements,And the agreements themselves inherit the earlier provisions of GATT that allow for special assistance and trade concessions for developing countries.
Section 2,Major Principles of WTO
Over three quarters of WTO members are developing countries and countries in transition to market economies,During the seven and a half years of the Uruguay Round,over 60 of these countries implemented trade liberalization programmes autonomously（自主地）,At the same time,developing countries and transition economies were much more active and influential in the Uruguay Round negotiations than in any previous round,and they are even more so in the current Doha Development Agenda.
Section 2,Major Principles of WTO
At the end of the Uruguay Round,developing countries were prepared to take on most of the obligations that are required of developed countries,But the agreements did give them transition periods to adjust to the more unfamiliar and,perhaps,difficult WTO provisions — particularly so for the poorest,“least-developed” countries,?
Section 2,Major Principles of WTO
A ministerial decision adopted at the end of the round says better-off countries should accelerate implementing market access commitments on goods exported by the least-developed countries,and it seeks increased technical assistance for them,More recently,developed countries have started to allow duty-free and quota-free imports for almost all products from least-developed countries,On all of this,the WTO and its members are still going through a learning process,The current Doha Development Agenda includes developing countries’ concerns about the difficulties they face in implementing the Uruguay Round agreements,back
Section 3,GATT Exceptions
Political and economic realities made GATT provide some exceptions from its free trade policies.
1,The general exceptions (GATT Article 20)
In order to protect certain essential public policy objectives,the GATT provisions allow a WTO member state to avoid its GATT obligations,take measures contrary to GATT,
Section 3,GATT Exceptions
Subject to （在…条件下）the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable （不公正的）discrimination between countries where the same conditions prevail,or a disguised restriction（伪装的限制） on international trade,nothing in this Agreement shall be construed（解释为） to prevent the adoption or enforcement by any contracting party of measures:本协定的规定不得解释为禁止缔约方采用或加强以下措施，但对情况相同的各国，实施的措施不得构成武断的或不合理的差别待遇，或构成对国际贸易的变相限制,
Section 3,GATT Exceptions
(a) necessary to protect public morals;
(b) necessary to protect human,animal or plant life or health;
(c) relating to the importation or exportation of gold or silver;
(d) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement,including those relating to customs enforcement,the enforcement of monopolies operated under paragraph 4 of Article II and Article XVII,the protection of patents,trade marks and copyrights,and the prevention of deceptive practices; 为了保证某些与本协定的规定并无抵触的法令或条例的贯彻执行所必需的措施，包括加强海关法令或条例，加强根据协定第二条第4款和第十七条而实施的垄断，保护专利权、商标及版权，以 及防止欺诈行为所必需的措施;
(e) relating to the products of prison labour;
(f) imposed for the protection of national treasures of artistic,historic or archaeological value; （具有艺术、历史或考古价值的财产）
(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption;与国内限制生产与消费的措施相配合，为有效保护可能用竭的天然资源的有关措施;
(h) undertaken in pursuance of （为了履行）obligations under any intergovernmental commodity agreement which conforms to criteria submitted （提交）to the CONTRACTING PARTIES and not disapproved by them or which is itself so submitted and not so disapproved；如果商品协定所遵守的原则已向缔约方全体提出，缔约方全体未表示异议。或商品协定本身已向缔约方全体提出，缔约方全体未表示异议，为履行这种国际商品协定所承担的义务而采取的措施;
(i) involving restrictions on exports of domestic materials necessary to ensure essential quantities of such materials to a domestic processing industry during periods when the domestic price of such materials is held below the world price as part of a governmental stabilization plan; Provided that such restrictions shall not operate to increase the exports of or the protection afforded to such domestic industry,and shall not depart from the provisions of this Agreement relating to non-discrimination;在国内原料的价格被压低到低于国际价格水平，作为政府稳定计划的一部分的期间内，为了保证国内加工工业对这些原料的基本需要，有必要采取的限制这些原料出口的措施;但不得利用限制 来增加此种国内工业的出口或对其提供保护，也不得背离本协定的有关非歧视的规定;
(j) essential to the acquisition or distribution of products in general or local short supply; Provided that any such measures shall be consistent with the principle that all contracting parties are entitled to an equitable share of the international supply of such products,and that any such measures,which are inconsistent with the other provisions of this Agreement shall be discontinued as soon as the, conditions giving rise to them have ceased to exist.在普遍或局部供应不足的情况下，为获取或分配产品所必需 采取的措施;但采取的措施必须符合以下原则:所有缔约方在这些产品的国际供应中部有权占有公平的份额，而且，如采取的措施与 本协定的其他规定不符，它应在导致其实施的条件不复存在时，立即予以停止。
一、案情简介使用拖网渔船捕捞海虾会顺带地捕杀与海虾群居的海龟。为防止捕虾时顺带捕杀海龟，美国发明了一种救活装置（TED-turtle-excluder-device ），在渔网装置栅栏，海虾入网，而把海龟挡在外面，十分有效。
1989年美国在《濒危物种法》里增设了第609条，规定凡未能在捕虾同时放活海龟者，禁止该国的海虾向美进口。此后美国先后几次发布指令实施第609条。印度、巴基斯坦、马来西亚与泰国对美海虾出口因而受到禁止，1996年10月8日上述几国先后与美国按WTO解决争端程序进行协商，而未获结果，于是请求设立专家组审理此案。
专家组审理后作出裁决，认为美国第609条违背了WTO自由贸易的规则，也不符合GATT 1994第20条“一般例外”规定。
1998年7月13日，美国提出上诉。上诉机构组成上诉专家组，对该案进行了复审，并于1998年10月12日提出了上诉报告。在上诉报告中，上诉专家组充分运用国际公法对解释的习惯规则，对第609条是否合法进行了论证。认为第609条符合GATT1994第20条（g）项规定，并被承认有合法的环境目的；但是措施的实行在WTO成员方间采取了任意的与无端的歧视的方式，违反了第20条引言的规定。这些措施没有资格获得GATT 1994第20条提供的“例外”豁免。
Section 3,GATT Exceptions
(2) The security exceptions
The security exceptions set out in Article XXI allow member state to avoid any obligations they may have under the GATT that are contrary to their "essential security interests " or that conflict with their duties "under the United Nations Charter for the maintenance of international peace and security",Most of the exceptions listed in both Articles XX and XXI may be invoked only if they are "necessary" or "essential" to a member state's goals.
Section 3,GATT Exceptions
Nothing in this Agreement shall be construed,
(a) to require any contracting party to furnish any information the disclosure of which it considers contrary to its essential security interests; or
(b) to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests
(i) relating to fissionable materials（可裂变物质） or the materials from which they are derived（可提炼裂变物质的原料）;
Section 3,GATT Exceptions
(ii) relating to the traffic（贸易、交易） in arms,ammunition（军火弹药） and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;武器、弹药和军火的贸易或直接和间接供军事机构用的其他物品或原料的贸易;
(iii) taken in time of war or other emergency in international relations; or战时或国际关系中的其他紧急情况;或
(c) to prevent any contracting party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.阻止任何缔约方根据联合国宪章为维持国际和平和安全而采取行动。
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Chapter 8：World Trade Organization
教学目的及要求
通过本章教学，要求同学们了解WTO的发展历史、法律地位、运行机制和宏观法律框架，掌握WTO基本原则、反倾销法律制度、补贴与反补贴措施、保障措施和一些重要的非关税措施以及WTO的争端解决机制。
教 学 重 点
要求同学们掌握的内容为本章的教学重点，即如下内容：
①WTO基本原则；
②反倾销制度、补贴与反补贴措施、保障措施；
③技术性贸易壁垒等非关税措施；
④WTO的争端解决机制。
教 学 难 点
①反倾销制度、补贴与反补贴措施、保障措施；
②技术性贸易措施等非关税措施；
教 学 内 容 及 文 本 演 示
课外阅读法条
课 堂 讨 论
Section 1,General Introduction to WTO
Section 2,Major Principles of WTO
Multilateral Agreements on Trade in Goods
1,WTO第一案
Section 3,GATT Exceptions
2,1998年海龟案
Section 4,Anti-dumping
Section5,Subsidies and countervailing
measures
Section6,Safeguards
3.中国入世第一案
Section 7,Non-tariff measures
Section 8,GATS
GATS
Section 9,Dispute settlement
DSU
本章思考题：
1,针对国外的技术性贸易壁垒我国在对外贸易中应采取的措施。
2,WTO争端解决机制的不足与完善。
Chapter 8 World Trade Organization
Section 1:General Introduction to WTO
Ⅰ,A Brief History of GATT>
Ⅱ.The Differences and Relations
Between WTO and GATT>
Ⅲ,Nature >
Ⅳ,Objectives>
Ⅴ,Main functions>
Ⅵ,Structure (Main Organs)>
Ⅶ,Decision-making>
Ⅷ,Legal Framework>
Ⅰ,A Brief History of GATT
WTO—World Trade Organization came into being on 1 January 1995.
headquartered in Geneva,Switzerland
GATT--- General Agreement on Tariffs and Trade,WTO’s
predecessor-- was established on October,1947
I,A Brief History of GATT
the Second World War
international economic cooperation
,Bretton Woods” conference
（New Hampshire）
World Bank --International Bank for Reconstruction and Development
IMF--International Monetary Fund
ITO--International Trade Organization
specialized agencies of the United Nations
I,A Brief History of GATT
A Charter for an International Trade Organization (ITO) was drafted by the US and amended by many other countries,
The Charter was intended to provide not only world trade disciplines but also contained rules relating to employment,commodity agreements,restrictive business practices,international investment and services,
The ITO Charter was finally agreed at a UN Conference on Trade and Employment in Havana in March 1948 (so called,Havana Charter”).
A long way to go for ratification by legislatures
I,A Brief History of GATT
While the charter was seeking ratification in national legislatures,tariff negotiations were opened among the 23 founding GATT,contracting parties” in order to give an early boost to trade liberalization after the Second World War - and to begin to correct the large overhang (突出问题）of protectionist (贸易保护的） measures which remained in place from the early 1930s,
I,A Brief History of GATT
This first round of negotiations resulted in 45,000 tariff concessions （关税减让）affecting $10 billion - or about one-fifth - of world trade,
The tariff concessions and the principles and basic rules in the draft ITO Charter together became known as the General Agreement on Tariffs and Trade and entered into force in January 1948,
It was assumed to be a provisional system before ITO.
I,A Brief History of GATT
Although the ITO Charter was finally agreed at a UN Conference on Trade and Employment in Havana in March 1948,ratification in national legislatures proved impossible in some cases,
When the United States' government announced,in 1950,that it would not seek Congressional ratification of the Havana Charter,the ITO was effectively dead,
I,A Brief History of GATT
Despite its provisional nature,the GATT remained the only multilateral instrument governing international trade from 1948 until the establishment of the WTO,
Although,in its 47 years,the basic legal text of the GATT remained much as it was in 1948,there were additional agreements and continual efforts to reduce tariffs,Much of this was achieved through a series of "trade rounds",
I,A Brief History of GATT
There were altogether 8 rounds of negotiations under GATT,The last one was the Uruguay [′urugwai ]Round which created a new system—WTO,
After 8 years of negotiation,every issue was finally resolved in 1992,and on 15 April 1994,the deal was signed by Ministers from most of the 125 participating governments at a meeting in Marrakesh马拉克什,Morocco摩洛哥,
I,A Brief History of GATT
In accordance with WTO Agreement (Marrakesh Agreement Establishing the World Trade Organization),WTO came into being on January 1,1995.
WTO is One of the youngest of the international organizations,and the only global international organization dealing with the rules of trade between nations.
Ⅱ,Differences and Relations
Between WTO and GATT
A,Five Differences
The World Trade Organization is not a simple extension of GATT; on the contrary,it completely replaces its predecessor and has a very different character,Among the principal differences are the following,
Ⅱ,Differences and Relations
Between WTO and GATT
1,The GATT was a set of rules,a multilateral agreement,with no institutional foundation,only a small associated secretariat(秘书处) which had its origins in the attempt to establish an International Trade Organization in the 1940s,
The WTO is a permanent institution with its own secretariat,
Ⅱ,Differences and Relations
Between WTO and GATT
2.The GATT was applied on a,provisional basis” even if,after more than forty years,governments chose to treat it as a permanent commitment(商业上的约定).
The WTO commitments are full and permanent,
Ⅱ,Differences and Relations
Between WTO and GATT
3,The GATT rules applied only to trade in goods,
In addition to goods,the WTO covers trade in services and trade-related aspects of intellectual property,
Ⅱ,Differences and Relations
Between WTO and GATT
4,While GATT was a multilateral instrument,by the 1980s many new agreements had been added of a plurilateral,and therefore selective,
The agreements which constitute the WTO are almost all multilateral and,thus,involve commitments for the entire membership,Plurilateral
Ⅱ,Differences and Relations
Between WTO and GATT
5,The WTO dispute settlement system is faster,more automatic,and thus much less susceptible (易受影响的)to blockages,than the old GATT system,The implementation of WTO dispute findings（裁决） will also be more easily assured,
Ⅱ,Differences and Relations
Between WTO and GATT
B,Relations
1,As a factual institution--GATT was replaced by WTO;
2,As an agreement--GATT lives on as,GATT 1994”;>
3,Basic principles are remained.
Ⅱ,Differences and Relations
Between WTO and GATT
GATT lives on as,GATT 1994”,the amended and up-dated version of GATT 1947,which is an integral(构成整体所需要的） part of the WTO Agreement and which continues to provide the key disciplines affecting international trade in goods,
Ⅲ,Nature
The World Trade Organization (WTO) is the only global international organization dealing with the rules of trade between nations,
The WTO agreements are negotiated and signed by the bulk of the world’s trading nations and ratified in their parliaments,They are part of international law.
It’ s a rules-based,member-driven organization — all decisions are made by the member governments,and the rules are the outcome of negotiations among members,
It has international legal personality,The organization and its officials have some rights of immunity,
Ⅳ,Objectives
1.To raise standards of living为了提高生活水平
2.To ensure full employment保证充分就业
3.Growing volume of real income and effective demand
4.Expanding the production of and trade in goods & services扩大生产和贸易
5.Sustainable development and environmental protection保护和维护环境，寻求对世界资源的最佳利用，实现可持续发展的目标，
6.Developing countries保证发展中国家、特别是最不发达国家“在国际贸易增长中获得与其经济发展需要相当的份额”。
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Ⅴ,Main functions
1.Implementation,administration and operation of the covered agreements各项贸易协议的履行、管理和实施。
2.Forum for negotiations
发挥谈判论坛的作用
3.Dispute settlement
4.Review of national trade policies
5.Coherence in global economic policy-making
Ⅴ,Main functions
1.Implementation,administration and operation of the covered agreements
The WTO facilitates the implementation,administration and operation of the WTO Agreement and the Multilateral Trade Agreements,and furthers their objectives,It also provides the framework,for those of its Members that have accepted them,for the implementation,administration and operation of the Plurilateral Trade Agreements.
Ⅴ,Main functions
2.Forum for negotiations
The WTO provides the forum for negotiations on multilateral trade relations in matters covered by its various agreements,
It may also,on decision by the Ministerial Conference,provide a forum for further negotiations,and a framework for the implementation of their results,on other issues arising in the multilateral trade relations among its Members,
Ⅴ,Main functions
3.Dispute settlement
The WTO administers the dispute settlement system,which is a central element in providing security and predictability to the multilateral trading system,serving to preserve the rights and obligations of the Members of the WTO,
Ⅴ,Main functions
4.Review of national trade policies
The WTO administers the Trade Policy Review Mechanism,which is designed to contribute to greater transparency and understanding of the trade policies and practices of WTO Members,to their improved adherence to the rules,disciplines and commitments of the multilateral trading system,and hence to the smoother functioning of the system,
Ⅴ,Main functions
5.Coherence in global economic policy-making
A Ministerial Declaration adopted at the Marrakesh Ministerial Meeting recognizes the role of trade liberalization in achieving greater coherence in global economic policy-making,For this purpose,the WTO cooperates,as appropriate,with the International Monetary Fund and with the World Bank,back
Ⅵ,Structure (Main Organs)
Ministerial Conference
General Council
Dispute Settlement Body?
Trade Policy Review Body
Councils
Council for Trade in Goods
Council for Trade in Services?
Council for TRIPs
Committees and other subsidiary bodies
Ministerial Conference
The Ministerial Conference is the supreme body of the WTO,composed of representatives of all Members,with the authority to carry out the functions of the WTO,take the actions necessary to this effect,and take decisions on matters under any of the Multilateral Trade Agreements if so requested by a Member,
The Ministerial Conference is to meet at least once every two years,
General Council
The day to day business of the WTO is conducted by the General Council,also composed of representatives of all WTO Members,which meets on a regular basis (normally once every two months),The General Council acts on behalf of the Ministerial Conference in the periods between its meetings,and reports directly to it.back
Dispute Settlement Body
The General Council acts also as the Dispute Settlement Body (DSB),which has its own Chairman and its own rules of procedure,to discharge（履行） the functions assigned to it under the Dispute Settlement Understanding.
Trade Policy Review Body
The General Council meets also as the Trade Policy Review Body,which again has its own Chairman and rules of procedure,to carry out the review of Members‘ trade policies and practices（做法）,as provided for in the Trade Policy Review Mechanism,
Councils
Three sectoral councils have been established for goods,services and TRIPs matters,respectively,
These Councils,operating under the general guidance of the General Council,carry out the responsibilities assigned to them by their respective agreements and by the General Council;
they meet as necessary to carry out their functions; and they are open to representatives of all WTO Members,
They may also establish subsidiary bodies,such as committees and working parties.
Council for Trade in Goods
The Council for Trade in Goods oversees the functioning of the multilateral agreements on trade in goods,
These include the General Agreement on Tariffs and Trade (GATT) and related Understandings,and twelve other agreements,as contained in Annex 1A to the WTO Agreement.
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Council for Trade in Services
The Council for Trade in Services oversees the functioning of the General Agreement on Trade in Services (GATS).
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Council for TRIPs
The Council for TRIPs oversees the functioning of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement).
Ⅶ,Decision-making
The WTO continues the practice of decision-making by consensus followed under the GATT 1947,Consensus is defined as the situation where no Member,present at a meeting where a decision is taken,formally objects to the proposed decision,
Ⅶ,Decision-making
However,it is recognized that there may be situations where a consensus cannot be reached,in which case the matter may be decided by voting,Voting rules are set out in the WTO Agreement as the following.
Ⅶ,Decision-making
1,At meetings of the Ministerial Conference and the General Council,each Member of the WTO shall have one vote,Where the European Communities exercise their right to vote,they shall have a number of votes equal to the number of their member States which are Members of the WTO,
Ⅶ,Decision-making
2,Decisions of the Ministerial Conference and the General Council shall be taken by a majority of the votes cast,unless otherwise provided in this Agreement or in the relevant （相应的）Multilateral Trade Agreement.部长级会议和总理事会的决定应以所投票数的简单多数作出，除非本协定或有关多边贸易协定另有规定。?
Ⅶ,Decision-making
3.The Ministerial Conference and the General Council shall have the exclusive authority to adopt interpretations of WTO Agreement and of the Multilateral Trade Agreements,The decision to adopt an interpretation shall be taken by a three-fourths majority of the Members,
Ⅶ,Decision-making
4.In exceptional circumstances(在特殊情况下）,the Ministerial Conference may decide to waive（放弃，免除） an obligation imposed on a Member by WTO Agreement or any of the Multilateral Trade Agreements,provided that any such decision shall be taken by three fourths of the Members unless otherwise provided for in WTO agreement.
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Ⅷ.,Legal Framework
WTO Agreement (Full Name)
WTO Agreement---Marrakesh Agreement Establishing the World Trade Organization
Annex?1BGATS---General Agreement
on Trade in Services?
Annex?1CTRIPS---Trade-Related
Aspects of Intellectual Property
Rights
Annex?2DSU--Dispute Settlement
Understanding?--?Understanding on
Rules and Procedures Governing the
Settlement of Disputes
Chart
Annex 1A
GATT?1994?(Must be read with GATT?1947 )
Agriculture
Sanitary and Phytosanitary Measures
卫生与植物检验措施协定
Textiles and Clothing
Technical Barriers to Trade
Trade-Related Investment Measures (TRIMs)
Anti-dumping
Customs valuation
Preshipment Inspection装船前检验协定?
Rules of Origin原产地规则协议
Import Licensing进口许可证手续协定?
Subsidies and Countervailing Measures
补贴与反补贴措施协定?
Safeguards 保障措施协定
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Annex?3
Trade Policy Review Mechanism
Annex 3 of the WTO agreement establishes a Trade Policy Review Mechanism (TPRM),Its purpose is to improve transparency,to create a greater understanding of the policies that countries are adopting,and to assess（评估） their impact,Many members also see the review as constructive feedback on their policies.
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ANNEX 4
Plurilateral Trade Agreements
Agreement on Trade in Civil Aircraft?
Agreement on Government Procurement
International Dairy Agreement (?terminated end 1997 )
International Bovine Meat Agreement? ( terminated end 1997)
Difference
Chart
Section 2,Major Principles of WTO
关于WTO基本原则的说明：
1、所谓的WTO原则，不是某一个WTO文件中规定的，而是学者的总结；
2、我国学者的观点也不完全一致，包括：非歧视原则、透明度原则、逐渐削减关税原则、一般取消数量限制原则、自由贸易原则、公平竞争原则、互惠原则等等。
3、本节以WTO网站自己公布的原则为讲解内容。
不信看看去
Section 2,Major Principles of WTO
1.Trade without discrimination, Most-favoured-nation (MFN) and National treatment
2.Freer trade,gradually,through negotiation
3.Predictability,through binding and transparency
4.Promoting fair competition
5.Encouraging development and economic reform Back to Outline
Section 2,Major Principles of WTO
1.Trade without discrimination
A country should not discriminate between its trading partners (giving them equally,most-favoured-nation” or MFN status); and it should not discriminate between its own and foreign products,services or nationals (giving them,national treatment”).
Section 2,Major Principles of WTO
A,Most-favoured-nation treatment (MFN), treating other people equally
a,Meaning,Under the WTO agreements,countries cannot normally discriminate between their trading partners,Grant someone a special favour (such as a lower customs duty rate for one of their products) and you have to do the same for all other WTO members.
Section 2,Major Principles of WTO
b,Importance:
It is one of the bedrock principles of the WTO,
It is the first article of GATT,which governs trade in goods,
MFN is also a priority in GATS (Article 2) and TRIPS (Article 4),although in each agreement the principle is handled slightly differently,
Together,those three agreements cover all three main areas of trade handled by the WTO,
Section 2,Major Principles of WTO
c,Exceptions to MFN
①Regional Economic Organization 区域性经济组织and Customs Union关税同盟Countries can set up a free trade agreement that applies only to goods traded within the group —? discriminating against goods from outside.
Section 2,Major Principles of WTO
②Generalized System of Preferences 普惠制
The Generalized System of Preferences or "GSP" is a system that grants products made in developing countries lower tariff rates than those normally enjoyed under Most-Favoured-Nation status as a special measure granted to developing countries in order to increase their export earnings and promote their development.
The GSP is defined in the Decision on,Generalized System of Preferences” of June 1971,and is a measure taken based on the Decision on,Differential and More Favourable Treatment,Reciprocity,and Fuller Participation of Developing Countries“《关于有差别与更优惠待遇、对等与发展中国家充分参与的决定,or the,Enabling Clause”（授权条款）。
Section 2,Major Principles of WTO
The GSP has the following characteristics:
First,preferential tariffs may be applied not only to countries with special historical and political relationships (i.e,the British Commonwealth),but to developing countries more generally (thus the system is described as,generalized”).
Second,the beneficiaries (受益者)are limited to developing countries.
Third,it is a benefit unilaterally granted by developed countries to developing countries,
Section 2,Major Principles of WTO
But the agreements only permit these exceptions under strict conditions,In general,MFN means that every time a country lowers a trade barrier or opens up a market,it has to do so for the same goods or services from all its trading partners — whether rich or poor,weak or strong.
Section 2,Major Principles of WTO
B,National treatment,Treating foreigners and locals equally
a,Meaning
National treatment (GATT Article III) means imported and locally-produced goods should be treated equally — at least after the foreign goods have entered the market,The same should apply to foreign and domestic services,and to foreign and local trademarks,copyrights and patents,
National treatment only applies once a product,service or item of intellectual property has entered the market,Therefore,charging customs duty on an import is not a violation of national treatment even if locally-produced products are not charged an equivalent tax,
Section 2,Major Principles of WTO
b,Importance:
National treatment stands along side most-favored-nation treatment as one of the central principles of the WTO Agreement,
This principle of,national treatment” is also found in all the three main WTO agreements (Article 3 of GATT,Article 17 of GATS and Article 3 of TRIPS),although once again the principle is handled slightly differently in each of these.
Section 2,Major Principles of WTO
C,Exceptions to National Treatment
⑴Government Procurement
Meaning：
Article：GATT Article III:8(a) permits governments to purchase domestic products preferentially,making government procurement one of the exceptions to the national treatment rule,
Why？This exception is permitted because the contracting parties recognized the role of government procurement in national policy,For example,there may be a security need to develop and purchase products domestically,or government procurement may,as is often the case,be used as a policy tool to promote smaller business,local industry,or advanced technologies,
Section 2,Major Principles of WTO
Exception to the exception:
While the GATT made government procurement an exception to the national treatment rule,the Plurilateral Agreement on Government Procurement resulting from the Tokyo Round mandates(要求) signatories(签署者) to offer national treatment in their government procurement,
However,the contracting parties to the WTO are under no obligation to join the Agreement on Government Procurement,
In fact,it has mostly been developed countries which have joined the Agreement,
Section 2,Major Principles of WTO
⑵Domestic Subsidies(国内补贴）
GATT Article III:8(b) allows for the payment of subsidies exclusively to domestic producers as an exception to the national treatment rule,under the condition that it is not in violation of other provisions in Article III and the Agreement on Subsidies and Countervailing Measures,
Section 2,Major Principles of WTO
The reason for this exception is that subsidies were recognized to be an effective policy tool,and is recognized to be basically within the latitude(地区) of industrial policy authorities,However,because subsidies may have a negative effect on trade,the Agreement on Subsidies and Countervailing Measures imposes strict disciplines on the use of subsidies,（Section5,Subsidies and countervailing）
Case 1--WTO第一案
1995年1月，世界贸易组织成立伊始就受理了一起非常棘手的贸易争端：委内瑞拉申诉美国。事情的起因是，1993年，美国环保署根据国会1990年《清洁空气法》修正案制定的“汽油规则”，要求自1995年1月1日起在美国销售的汽油必须符合新的清洁度标准。在美国污染严重地区只允许销售法定清洁汽油（精炼汽油），在其余地区销售的常规汽油不得低于1990年所售汽油的清洁度。关于1990年清洁度标准的确定，分为两种情况：在1990年营业6个月以上的国内供应商可自行确定本企业的标准(,独立底线”方案),而国外供应商和在1990年营业不足6个月的国内供应商必须执行法定标准(“法令的底线” 方案)。同时，美国从加拿大进口的石油也采用了“独立底线”方案。
美国的这一政策公布后，遭到了作为美国重要的国外汽油供应商委内瑞拉的反对，认为该政策违反了世界贸易组织的规则，严重损害了委内瑞拉的经济利益。于是，委内瑞拉便把美国“告到”了世界贸易组织。随后不久，巴西也加入了对美国的申诉。这便是所谓的“WTO第一案”。
问题：美国的做法是否符合非歧视原则?
Case 1--WTO第一案世界贸易组织的争端解决机构裁定美国的汽油政策违反了WTO的国民待遇原则，要求美国修改汽油政策，使其与世界贸易组织的规则相一致。美国接受了裁决，并应委内瑞拉的要求，自1996年5月20日起的15个月内修改其汽油政策。1997年8月19日，美国签署了新的汽油政策，“WTO第一案”也最终得到了圆满解决。
Section 2,Major Principles of WTO
2,Freer trade,gradually,through negotiation
What?
Why?Lowering trade barriers is one of the most obvious means of encouraging trade,The barriers concerned include customs duties (or tariffs) and measures such as import bans or quotas (配额）that restrict quantities selectively,From time to time other issues such as red tape and exchange rate policies have also been discussed.
Section 2,Major Principles of WTO
How?Since GATT’s creation in 1947-48 there have been eight rounds of trade negotiations,A ninth round,under the Doha Development Agenda,is now underway,At first these focused on lowering tariffs (customs duties) on imported goods,As a result of the negotiations,by the mid-1990s industrial countries’ tariff rates on industrial goods had fallen steadily to less than 4%.
But by the 1980s,the negotiations had expanded to cover non-tariff barriers on goods,and to the new areas such as services and intellectual property.
Opening markets can be beneficial,but it also requires adjustment,The WTO agreements allow countries to introduce changes gradually,through,progressive liberalization”,Developing countries are usually given longer to fulfill their obligations.
Section 2,Major Principles of WTO
3,Predictability,through binding and transparency
Binding,In the WTO,when countries promise to lower or not to raise a trade barrier,or agree to open their markets for goods or services,they,bind” their commitments so the trade circumstances can keep stable,The promises give businesses a clearer view of their future opportunities,With stability and predictability,investment is encouraged,jobs are created and consumers can fully enjoy the benefits of competition — choice and lower prices,
Section 2,Major Principles of WTO
The multilateral trading system is an attempt by governments to make the business environment stable and predictable.
A country can change its bindings,but only after negotiating with its trading partners,which could mean compensating them for loss of trade,
Section 2,Major Principles of WTO
Transparency The wto system tries to improve predictability and stability in other ways as well,
One way is to make countries’ trade rules as clear and public (“transparent”) as possible,Many WTO agreements require governments to disclose their policies and practices publicly within the country or by notifying the WTO,The regular surveillance(监督) of national trade policies through the Trade Policy Review Mechanism provides a further means of encouraging transparency both domestically and at the multilateral level.
Section 2,Major Principles of WTO
Another is to discourage the use of quotas and other measures used to set limits on quantities of imports — administering quotas can lead to more red-tape(繁琐拖沓的程序） and accusations of unfair play,
Section 2,Major Principles of WTO
4.Promoting fair competition
The WTO is sometimes described as a,free trade” institution,but that is not entirely accurate,The system does allow tariffs and,in limited circumstances,other forms of protection,More accurately,it is a system of rules dedicated to(致力于) open,fair and undistorted competition.
Section 2,Major Principles of WTO
The rules on non-discrimination — MFN and national treatment — are designed to secure fair conditions of trade,So too are those on dumping (exporting at below cost to gain market share) and subsidies,The issues are complex,and the rules try to establish what is fair or unfair,and how governments can respond,in particular by charging additional import duties calculated to compensate for damage caused by unfair trade.
Many of the other WTO agreements aim to support fair competition,in agriculture,intellectual property,services,for example,
Section 2,Major Principles of WTO
5.Encouraging development
and economic reform
The WTO system contributes to development,On the other hand,developing countries need flexibility in the time they take to implement the system’s agreements,And the agreements themselves inherit the earlier provisions of GATT that allow for special assistance and trade concessions for developing countries.
Section 2,Major Principles of WTO
Over three quarters of WTO members are developing countries and countries in transition to market economies,During the seven and a half years of the Uruguay Round,over 60 of these countries implemented trade liberalization programmes autonomously（自主地）,At the same time,developing countries and transition economies were much more active and influential in the Uruguay Round negotiations than in any previous round,and they are even more so in the current Doha Development Agenda.
Section 2,Major Principles of WTO
At the end of the Uruguay Round,developing countries were prepared to take on most of the obligations that are required of developed countries,But the agreements did give them transition periods to adjust to the more unfamiliar and,perhaps,difficult WTO provisions — particularly so for the poorest,“least-developed” countries,?
Section 2,Major Principles of WTO
A ministerial decision adopted at the end of the round says better-off countries should accelerate implementing market access commitments on goods exported by the least-developed countries,and it seeks increased technical assistance for them,More recently,developed countries have started to allow duty-free and quota-free imports for almost all products from least-developed countries,On all of this,the WTO and its members are still going through a learning process,The current Doha Development Agenda includes developing countries’ concerns about the difficulties they face in implementing the Uruguay Round agreements,back
Section 3,GATT Exceptions
Political and economic realities made GATT provide some exceptions from its free trade policies.
1,The general exceptions (GATT Article 20)
In order to protect certain essential public policy objectives,the GATT provisions allow a WTO member state to avoid its GATT obligations,take measures contrary to GATT,
Section 3,GATT Exceptions
Subject to （在…条件下）the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable （不公正的）discrimination between countries where the same conditions prevail,or a disguised restriction（伪装的限制） on international trade,nothing in this Agreement shall be construed（解释为） to prevent the adoption or enforcement by any contracting party of measures:本协定的规定不得解释为禁止缔约方采用或加强以下措施，但对情况相同的各国，实施的措施不得构成武断的或不合理的差别待遇，或构成对国际贸易的变相限制,
Section 3,GATT Exceptions
(a) necessary to protect public morals;
(b) necessary to protect human,animal or plant life or health;
(c) relating to the importation or exportation of gold or silver;
(d) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement,including those relating to customs enforcement,the enforcement of monopolies operated under paragraph 4 of Article II and Article XVII,the protection of patents,trade marks and copyrights,and the prevention of deceptive practices; 为了保证某些与本协定的规定并无抵触的法令或条例的贯彻执行所必需的措施，包括加强海关法令或条例，加强根据协定第二条第4款和第十七条而实施的垄断，保护专利权、商标及版权，以 及防止欺诈行为所必需的措施;
(e) relating to the products of prison labour;
(f) imposed for the protection of national treasures of artistic,historic or archaeological value; （具有艺术、历史或考古价值的财产）
(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption;与国内限制生产与消费的措施相配合，为有效保护可能用竭的天然资源的有关措施;
(h) undertaken in pursuance of （为了履行）obligations under any intergovernmental commodity agreement which conforms to criteria submitted （提交）to the CONTRACTING PARTIES and not disapproved by them or which is itself so submitted and not so disapproved；如果商品协定所遵守的原则已向缔约方全体提出，缔约方全体未表示异议。或商品协定本身已向缔约方全体提出，缔约方全体未表示异议，为履行这种国际商品协定所承担的义务而采取的措施;
(i) involving restrictions on exports of domestic materials necessary to ensure essential quantities of such materials to a domestic processing industry during periods when the domestic price of such materials is held below the world price as part of a governmental stabilization plan; Provided that such restrictions shall not operate to increase the exports of or the protection afforded to such domestic industry,and shall not depart from the provisions of this Agreement relating to non-discrimination;在国内原料的价格被压低到低于国际价格水平，作为政府稳定计划的一部分的期间内，为了保证国内加工工业对这些原料的基本需要，有必要采取的限制这些原料出口的措施;但不得利用限制 来增加此种国内工业的出口或对其提供保护，也不得背离本协定的有关非歧视的规定;
(j) essential to the acquisition or distribution of products in general or local short supply; Provided that any such measures shall be consistent with the principle that all contracting parties are entitled to an equitable share of the international supply of such products,and that any such measures,which are inconsistent with the other provisions of this Agreement shall be discontinued as soon as the, conditions giving rise to them have ceased to exist.在普遍或局部供应不足的情况下，为获取或分配产品所必需 采取的措施;但采取的措施必须符合以下原则:所有缔约方在这些产品的国际供应中部有权占有公平的份额，而且，如采取的措施与 本协定的其他规定不符，它应在导致其实施的条件不复存在时，立即予以停止。
一、案情简介使用拖网渔船捕捞海虾会顺带地捕杀与海虾群居的海龟。为防止捕虾时顺带捕杀海龟，美国发明了一种救活装置（TED-turtle-excluder-device ），在渔网装置栅栏，海虾入网，而把海龟挡在外面，十分有效。
1989年美国在《濒危物种法》里增设了第609条，规定凡未能在捕虾同时放活海龟者，禁止该国的海虾向美进口。此后美国先后几次发布指令实施第609条。印度、巴基斯坦、马来西亚与泰国对美海虾出口因而受到禁止，1996年10月8日上述几国先后与美国按WTO解决争端程序进行协商，而未获结果，于是请求设立专家组审理此案。
专家组审理后作出裁决，认为美国第609条违背了WTO自由贸易的规则，也不符合GATT 1994第20条“一般例外”规定。
1998年7月13日，美国提出上诉。上诉机构组成上诉专家组，对该案进行了复审，并于1998年10月12日提出了上诉报告。在上诉报告中，上诉专家组充分运用国际公法对解释的习惯规则，对第609条是否合法进行了论证。认为第609条符合GATT1994第20条（g）项规定，并被承认有合法的环境目的；但是措施的实行在WTO成员方间采取了任意的与无端的歧视的方式，违反了第20条引言的规定。这些措施没有资格获得GATT 1994第20条提供的“例外”豁免。
Section 3,GATT Exceptions
(2) The security exceptions
The security exceptions set out in Article XXI allow member state to avoid any obligations they may have under the GATT that are contrary to their "essential security interests " or that conflict with their duties "under the United Nations Charter for the maintenance of international peace and security",Most of the exceptions listed in both Articles XX and XXI may be invoked only if they are "necessary" or "essential" to a member state's goals.
Section 3,GATT Exceptions
Nothing in this Agreement shall be construed,
(a) to require any contracting party to furnish any information the disclosure of which it considers contrary to its essential security interests; or
(b) to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests
(i) relating to fissionable materials（可裂变物质） or the materials from which they are derived（可提炼裂变物质的原料）;
Section 3,GATT Exceptions
(ii) relating to the traffic（贸易、交易） in arms,ammunition（军火弹药） and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;武器、弹药和军火的贸易或直接和间接供军事机构用的其他物品或原料的贸易;
(iii) taken in time of war or other emergency in international relations; or战时或国际关系中的其他紧急情况;或
(c) to prevent any contracting party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.阻止任何缔约方根据联合国宪章为维持国际和平和安全而采取行动。
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