論世界貿易組織爭端裁決的執行機制：其運行, 問題和回歸

Abstract

The World Trade Organization (WTO) as an international organization to regulate international trade among countries in the world, to reinforce the binding force of trading rules is one of its key missions. Among them, the dispute settlement system has become a key system in the WTO trading regime, hailed as “the Jewel in the Crown” of the WTO. So, does the WTO have the international legal effect? What is the legal nature of the dispute settlement system? Whether the WTO rulings have the executive power? What is the situation of the WTO dispute parties on the implementation of the rulings? The answer to these questions directly concerning the purpose of the WTO international organization can reflect the purpose of its establishment, that is, the pursuit of the liberalization of international trade and the maintenance of a stable international trade order.

The thesis focuses on the implementation of WTO rulings, especially against the context of economic globalization. Economic globalization has become the realistic background for resolving any problem in the world. To highlight the importance of cooperation and to be equipped with cooperative attitude and willingness among the countries of the whole world, the dissertation argues that we should specially emphasize on economic globalization in the reality of the international trade in order to seek the way for the implementation of WTO rulings with efficiency and conformity. This article is an attempt.

Beginning with a basic question whether international law is law, the dissertation concentrates on the legal nature of the WTO international organization and the legality of the WTO rulings. It is suggested that WTO rulings have binding force and should be implemented by the losing members.

The dissertation focuses on empirical observation and study of GATT and WTO rulings in the perspective of practical implementation, especially insights the implementation of all the GATT and WTO rulings with efficiency, conformity and temporary relief, logically reasons out the source of the problem of the implementation of the WTO rulings. The issues have been whether the implementation of the WTO rulings reflects the national strength and how to design the compliance mechanism of the WTO rulings.

This dissertation offers qualitative analysis and interdisciplinary analysis of the characteristics and structural strength of the international organizations, analyzing the characteristics and structural strength of the WTO organization. It is suggested that the international organizations are the best carrier accompanying the self-restraint sovereignty and balance of interests of the countries in the international community to achieve the relative balance of interests for the international society. Due to the national interests of member states, sometimes, tension developed between the consideration of states and the WTO restricts national interests in the international community, even injure national interests of members. Ultimately, giving rise to the “Frankenstein problems.” As Professor Guzman Andrew points out, "countries sometimes create international organizations to form their own artificial life world. The creation of an international organization aim at strengthening international cooperation and achieving the interests for the states. But sometimes the international organizations become Frankenstein monster with Frankenstein problems. Namely, the international organization behavior deviates from the expectations of the member states. For member states, the international organizations bring the damage rather than interests. The organizational characteristics of the WTO organization inhibit the implementation of the WTO rulings.

In this paper, the author discusses the reasons for the implementation of the WTO rulings by the cost-benefit principle from law and economics. In the international society with equal rights, any member governments try to fight for their own national interests in policy formulation and implementation. Investigating from the perspective of the interests of the state, the government will no doubt have to think about and strive for the national interests as a rational economic man. As such, any member of the international community is a rational economic man. Based on the analysis of the establishment of the WTO organization, it could also be found that the fact reflects the economic principle for the comparison of the costs and benefits. Inspecting the implementation practice of the WTO rulings, if the interests that losing parties obtain by implementation of WTO rulings less than the interests in the non-implementation, the losing party is not positive or slack for implementation of WTO rulings, especially in the international community with equal right.

This dissertation argues that cooperation has become Memers’ wills and be possible under the background of economic globalization owing to their role of being a rational economic man. Institutional fairness reflecting the national strength in the WTO becomes the vision that the developing countries, especially the least developed countries pursue. Therefore, developing and least developed countries with the help of the international organizations and some countries to enhance national trade capacity become the only choice. By enhancing their national trade capacity, and then get the ability of trade retaliation.

Therefore, the dissertation focusing on the improvement of the compliance mechanism for the WTO rulings should take the justice as the core in the context of economic globalization to pursue the mandatory compliance mechanism of WTO rulings. Among them, Retroactive money compensation and Cross-retaliation become possible!

Date of Award	27 Sept 2016
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Guiguo WANG (Supervisor) & Wenwei GUAN (Supervisor)