Cross-cutting Issues under the WTO: Non-economic Concerns and Enhancement of Healthier Trade Ties pdf epub mobi txt 电子书 下载 2025

　　Cross-cutting issues, by their very nature, usually cause legal and practical complications and go beyond a purely trade dimension. How to ensure that trade measures taken under the WTO would not turn into excessively disruptive elements for the protection of non-economic interests or the operation of different regimes poses a challenge ahead for the WTO. This book addresses this challenge from two perspectives.

　　Part I explorers some key non-economic concerns. It includes issues on FCTC tobacco advertisement restrictions, anti-tobacco smuggling in light of Dominican-Cigarettes Case, compulsory licenses for access to medicine under bilateral investment agreements, excessive trade response to 2009 A/H1N1 influenza outbreak, and trade and cultural protection in the context of anti-dumping. Part II discusses some areas for the enhancement of healthier trade ties. It includes issues on DSU Article 21.5 compliance proceedings, export subsides remedies, DSU Article 25 arbitration, EC-IT product Case, and regional procurement arrangements in East Asia.

　　It is expected to be a useful book that helps readers (including scholars, practitioners, and students) widen their understanding of the WTO law.

　　跨领域议题系WTO贸易体系的重要部分。其中，贸易与区域整合、环境、投资、公共卫生、文化保护或人类价值等议题之关连性，受到相当的重视。跨领域议题究其本质，乃超越单纯的贸易范畴，故常引起法律及实务层面的复杂性。因此，如何确保WTO下的贸易措施不致对非经济利益之保护或不同规范领域之运作，构成过度干扰，系WTO面临的新挑战。

　　本书第一部分探讨若干主要的非经济关切。相关议题包括FCTC菸品广告限制、Dominican-Cigarettes案与菸品走私、双边投资协定下之药品强制授权、因应2009 A/H1N1新流感之过度贸易措施、反倾销架构下之贸易与文化保护。本书第二部分则以促进更健全之贸易连结之角度处理若干领域。相关议题包括DSU 第21.5条履行审查小组程序、出口补贴救济、DSU 第25条仲裁、EC-IT product案、东亚区域之政府採购安排。

　　借由跨领域议题展现的多元面向，本书希望有助于读者扩展其对WTO法律了解之广度与深度。

作者简介

林彩瑜

【现职】
　　东吴大学国际经营与贸易学系教授

【经历】
　　国立政治大学法学院兼任教授
　　我国参与WTO、OECD及台加双边经贸会议随团法律顾问
　　国立台湾大学法律学院「亚洲WTO暨国际卫生法与政策中心」谘询委员
　　台大法学论丛、Asian Journal of WTO & International Health Law and Policy、Contemporary Asian Arbitration Journal等期刊编辑委员

【学历】
　　国立政治大学法学博士
　　英国爱丁堡大学（The University of Edinburgh）法学硕士
　　国立政治大学法学学士

PREFACE

PART I
SOME KEY NON-ECONOMIC CONCERNS

CHAPTER 1 TRADE IN SERVICES AND PUBLIC HEALTH IN THE CASE OF TOBACCO:
ARE THE FCTC RESTRICTIONS ON TOBACCO ADVERTISING INCONSISTENT WITH THE GATS?
003 Ⅰ Introduction
007 Ⅱ Tobacco Advertising Restrictions and Market Access
015 Ⅲ Tobacco Advertising Restrictions and Domestic Regulations
020 Ⅳ Tobacco Advertising Restrictions and National Treatment
023 Ⅴ Conclusion

CHAPTER 2
A MODEST BALANCE FOR TRADE IN TOBACCO,
ANTI-TOBACCO SMUGGLING AND HEALTH CONCERNS IN LIGHT OF THE DOMINICAN REPUBLIC-CIGARETTES CASE
025 Ⅰ Introduction
030 Ⅱ An Anti-Tobacco Smuggling Measure: Tax Stamps Requirement Issues in Dominican Republic-Cigarettes
031 Ⅲ National Treatment and Anti-Tobacco Smuggling Measure: Seeking Safe Harbor?
043 Ⅳ GATT Article XX Exception and Anti-Tobacco Smuggling Measure: Seeking Balance Harbor?
055 Ⅴ Conclusion

CHAPTER 3
COMPULSORY LICENSES FOR ACCESS TO MEDICINES, EXPROPRIATION AND INVESTOR-STATE ARBITRATION
UNDER BILATERAL INVESTMENT AGREEMENTS:
ARE THERE ISSUES BEYOND THE TRIPS AGREEMENT?
057 Ⅰ Introduction
060 Ⅱ The Potential Link of Compulsory Licenses with Indirect Expropriation
071 Ⅲ Considering Public Health in Investor-State Arbitration:
Some Possible Procedural Arrangements
079 Ⅳ Alternatives to the Investor-State Arbitration: A Return to
State-State Dispute Settlement
081 Ⅴ Conclusion

CHAPTER 4
THE FORGOTTEN ROLE OF WHO/IHR IN TRADE RESPONSES TO 2009 A/H1N1 INFLUENZA OUTBREAK
083 Ⅰ Introduction
086 Ⅱ Mechanism for Discouraging Excessive Trade Measures Under
the IHR
097 Ⅲ Restrictions on Trade in Pork against A/H1N1-Affected Members:
The First Test for the IHR?
102 Ⅳ Is the WTO a More Appropriate Forum to Address Trade Concerns
in Response to A/H1N1 Influenza?
107 Ⅴ An Evaluation of the Obscure Role of IHR in the Trade Response
to A/H1N1 Influenza
112 Ⅵ A Brief Suggestion for the Improvement of IHR: Lessons
from A/H1N1 Influenza
120 Ⅶ Conclusion

CHAPTER 5
THE LINK BETWEEN TRADE AND CULTURAL PROTECTION
IN THE CONTEXT OF ANTI-DUMPING
121 Ⅰ Introduction
125 Ⅱ Applying Anti-Dumping Measures to Cultural Products:
Possibility and Limitation
131 Ⅲ Like Products Determination and Cultural Consideration
139 Ⅳ Public Interest and Culture Diversity
150 Ⅴ Conclusion
PART II
SOME AREAS FOR THE ENHANCEMENT OF HEALTHIER TRADE TIES

CHAPTER 6
COMPLIANCE PROCEEDINGS UNDER ARTICLE 21.5 OF DSU
AND DOHA PROPOSED REFORM
153 Ⅰ Introduction
155 Ⅱ Implementation of the DSB Recommendations and Rulings
158 Ⅲ An Overview of DSU Article 21.5 Proceedings
162 Ⅳ Issues Relating to DSU Article 21.5 Proceedings
175 Ⅴ Sequencing Issues of Article 21.5 and Article 22
182 Ⅵ Conclusion

CHAPTER 7
REMEDIES FOR EXPORT SUBSIDIES IN THE CONTEXT OF ARTICLE 4 OF THE SCM AGREEMENT: RETHINKING SOME PERSISTENT ISSUES
183 Ⅰ Introduction
186 Ⅱ Special Procedures For Export Subsidy Violations in Article 4:
A Comparative Review from the DSU
188 Ⅲ Modification of the Subsidy
193 Ⅳ Repayment of the Subsidy
202 Ⅴ Punitive Countermeasures
209 Ⅵ Conclusion

CHAPTER 8
HOW FAR CAN ARBITRATION PRACTICE AS AN ALTERNATIVE DISPUTE RESOLUTION WITHIN THE WTO GO?
A PERSPECTIVE ON INTELLECTUAL PROPERTY DISPUTES
211 Ⅰ Introduction
214 Ⅱ Arbitration as an Alternative Dispute Settlement Process: Article 25 of the DSU
220 Ⅲ Would Arbitration Come Closer to the Normal Dispute Settlement Procedures as Practiced?
233 Ⅳ Conclusion

CHAPTER 9
SYSTEMIC REFLECTION ON THE EC-IT PRODUCT CASE:
ESTABLISHING AN ‘UNDERSTANDING’ ON MAINTAINING
THE PRODUCT COVERAGE OF THE CURRENT INFORMATION TECHNOLOGY AGREEMENT IN THE FACE OF TECHNOLOGICAL CHANGE
235 Ⅰ Introduction
239 Ⅱ Would the Inclusion of New Technology or Non-ITA Features Warrant the Exclusion of the ITA Products from
Duty-Free Treatment? The EC’s Inappropriate Criteria in the EC-IT Product Case
253 Ⅲ Systemic Implications of the EC-IT Product Case for the ITA Product Coverage
265 Ⅳ Establishing an ‘Understanding’ on Maintaining the Product Coverage of the Current ITA in the Face of
Technological Change
272 Ⅴ Conclusion

CHAPTER 10
REGIONAL PROCUREMENT ARRANGEMENTS IN EAST ASIA:
SOME REFLECTIONS FOR THE WTO RULES
275 Ⅰ Introduction
278 Ⅱ Main Elements of Government Procurement Rules In East Asian RTAs
288 Ⅲ Lessons of Regional Approach in East Asia and Implications for Promotion of Global Procurement Liberalization
294 Ⅳ Lessons of APEC Transparency Standards for Future WTO Transparency Negotiation
309 Ⅴ Conclusion

PREFACE

　　Over the past years, some issues cutting across several topics and fields are increasingly recognized as an integral part of the global trading system and have secured wide attention. Of these, trade issues in relation to regional integration, environment, investment, public health, cultural protection or human values are noticeable examples. These cross-cutting issues, by their very nature, usually cause legal and practical complications and go beyond a purely trade dimension. In view of this, the question of how to ensure that trade measures taken under the WTO would not turn into excessively disruptive elements for the protection of non-economic interests or the operation of different regimes poses a challenge ahead for the WTO.

　　The ten journal articles gathered in this book mainly aim at addressing cross-cutting concerns. They were published in Journal of World Trade (SSCI Journal), IIC-International Review of Intellectual Property and Competition Law (SSCI Journal), Asian Journal of WTO & International Health Law and Policy (SSCI Journal), Contemporary Asia Arbitration Journal, The Journal of Word Investment & Trade, and The International Lawyer. The covered issues can generally be divided into two Parts.

　　Part I addresses some key non-economic concerns. It includes chapters touching upon tobacco advertisement envisioned in WHO/FCTC from the perspective of GATS, anti-tobacco smuggling and health concerns in light of Dominican-Cigarettes Case, compulsory licenses for access to medicine in the context of bilateral investment agreements, issues on excessive trade response to 2009 A/H1N1 influenza outbreak, and trade and cultural protection in the context of anti-dumping.

　　Part II addresses some areas for the enhancement of healthier trade ties. It includes chapters discussing WTO compliance proceedings and Doha suggested reform, persistent issues on export subsides remedies, DSU Article 25 arbitration from a perspective on intellectual property dispute, the challenge for the ITA with converging technologies as reflected on the EC-IT product Case, and the link between WTO and regional procurement arrangements.

　　This book is the third volume of the Asian Center for WTO & International Health Law and Policy Book Series. It is expected to be a useful book that helps readers deepen and broaden their understanding of cross-cutting issues in the dynamic land of the WTO law.

　　I am particularly indebted to Professor Chang-Fa Lo who always supports and encourages me. Professor Lo will start his position as Grand Justice of the Constitutional Court of Taiwan. By the time this book appears, I would also like to take this opportunity to pay a special tribute to him.

Tsai-Yu Lin
Taipei, September 2011