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| Title: | 從「歸零法則」之發展看WTO司法與立法之互動 |
| Other Titles: | “Zeroing”─Another Clash between the Legislative |
| Authors: | 楊光華
Yang, Connie Guang-Hwa |
| Contributors: | 國貿系 |
| Keywords: | 歸零法則;傾銷差額;反傾銷之友;司法自制;規則談判
Zeroing;Dumping margin;Friends of AD negotiations;Judicial restraint;Rules negotiation |
| Date: | 2008-03 |
| Issue Date: | 2010-10-06 11:17:54 (UTC+8) |
| Abstract: | 「歸零法則」是在反傾銷價格比較時將負傾銷差額歸零，使之不得抵銷正傾銷差額的作法。歐、美等國於烏拉圭回合時即已慣用之，儘管有國家反對此種作法，認為其有虛增反傾銷稅額之嫌，但最後並未於反傾銷協定中對此有所明文。由於烏拉圭回合新增的反傾銷協定第2.4.2條規定於調查階段決定反傾銷差額是否存在時，原則上僅得使用加權平均對加權平均比較或逐筆比較兩種方式，而前者又必須考慮「所有可資比較」之出口價格，鑑於「歸零法則」並不考慮出口價格高於正常價格之部分，故似有違反上述規定之嫌。有會員國即以此為由訴諸爭端解決，獲勝後並乘勝追擊，意圖一併否決「歸零法則」在其他階段或比較方法之適用。負責處理一連串歸零爭端案件之各小組本不以為上述條文得以擴張解釋作為全面否決「歸零法則」的基礎，然上訴機構出人意表地推翻各小組立論，不僅使後來的爭端解決小組批評上訴機構裁決欠缺條文依據，亦使美國決定訴諸立法程序，利用規則談判增訂新的反傾銷協定條文以使「歸零法則」取得明確的合法地位。規則談判小組主席雖採納大部分美國提案，但遭「反傾銷之友」大肆抨擊，故是否能藉此立法行動導正準司法功能偏失，實不可測；惟無論如何，此例所揭櫫的WTO立法與準司法功能之互動情形與高度緊張關係，前所未見，故本文加以分析，並探討欠缺制衡的準司法機構為WTO公信力所帶來的危機，最後也認為無論WTO立法功能是否能有效發揮制衡，裁決機構實應恪遵司法自制原則，否則其裁決亦會因自動履行之低落而失去價值。
Zeroing means to treat all “negative” dumping margins as zero in an anti-dumping price comparison process so that they cannot be used to offset positive dumping margins. The E.CU. and the U.S. have been useding such a method for a long time, even before the Uruguay Round. Although some other nations have argued that it has inflated the dumping margins, the text of the Anti-dumping Agreement does not explicitly deal with it. On the other hand, Article 2.4.2, which was newly added to the Antidumping Agreement in the Uruguay Round, requires the existence of a dumping margin during the investigation phase to be established only by a weighted average-to-weighted average comparison or a transaction-to-transaction comparison. Given that “zeroing” disregards the difference of an export price exceeding the normal value, which seems to fail to meet the requirement that “all comparable export transactions” be counted in a weighted average-to-weighted average comparison as provided for in the abovepresent Aarticle. Members with this view confirmed such an interpretation through their victories in relevant cases they brought for dispute settlement. Unfortunately, they intended to extend suchtheir success to obtain a general prohibition of zeroing, which would serve to weed zeroing out of all phases of the anti-dumping process and all types of comparison methods used. All the requested panels rejected such an extension, but to everyone’s surprise, the Appellate Body reversed all the panels’ rulings in this regard. It aroused a vehement objection not only from the U.S., against which the zeroing was challenged, but also from the panels that subsequently had to deal with similar issues. These panels criticized the Appellate Body’s approach for its lack of a solid text basis, and decided not to follow the approach in the cases they were dealhandling. The U.S. also decided to “legislate” new rules in the “Rules Negotiation” of this round to rectify the Appellate Body’s rulings. The U.S.’s proposal was reflected mostly in the recently released text of the Chair. However, the prospects offor the negotiation are unpredictable given that the Friends of AD Negotiation strongly criticized the Chair’s text for its short lack of a balanced view for in its favoring the U.S.’s position. Regardless of how the matter evolves, the method of interaction and the degree of tension between the WTO’s legislative function and semi-judicial function revealed in this controversy are unprecedented, and, therefore, have become the subject of analysis of this paper. It further explores the risk to the credibility of the WTO posed by such a strong semi-judicial branch, which seems to have no counterweight. In conclusion, this paper urges the adjudicating body of the WTO to exercise judicial restraint, no matter whether legislative action can eventually serve as a counter-balance, based on the rationale that the validity of its rulings is going to diminish if fewer and fewer Mmembers comply with it voluntarily. |
| Relation: | 法學評論 , 103 , 109-203 |
| Data Type: | article |
| Appears in Collections: | [國際經營與貿易學系 ] 期刊論文
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| 109-203.pdf | | 1039Kb | Adobe PDF2 | 1082 | View/Open |
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