Analysis On The Jurisprudence Of The WTO Rules

The World Trade Organization (the "WTO") is the most important internationaltrade organization. The highlight of the WTO is that it provides a set of internationallyaccepted trade rules - the WTO rules, and the impact of the WTO rules isunprecedented. However, today the multilateralism set up by the WTO rules suffers aserious trust crisis. It is imperative to regain public confidence in the system of WTOrules, address the problems of WTO rules, and try to propose solutions within thesystem of WTO rules. The legal globalization, as an inevitable result of the economicglobalization, has a significant and far-reaching impact to jurisprudence. The legalglobalization raises a total different legal concept, which is based on the overallinterests of all mankind. The analysis on the jurisprudence of the WTO rules under aconscious and vision of globalization has important theoretical and practicalsignificance.The analysis on the jurisprudence of the WTO rules shall be made from thefollowing aspects: the background of the formation and development of the WTOrules, the essential attributes, the legitimacy, and the basic principles and values of theWTO rules. Under the wave of globalization, if seen from a system centric viewinstead of a power centrism in the process of analyzing the essential attributes of theWTO rules under the era of legal globalization,, the conclusion can be reached thatthe WTO rules bear the attributes of the international law. The WTO rules, as part ofinternational law, at the same time, also form their own self-consistent system, andcoordinate and manage the international trade and related issues on a global scale.Although, in practice, the WTO rules do not have direct effect, the WTO rules arealways applied and effective in the member states through the way of conversion andacception. Universal recognition and observance of the WTO rules by the memberstates is an important source of the legitimacy of the WTO rules.It is generally believed that if the WTO rules carry some moral points or somebasic well recognized internal values, and are widely recognized by the people of allthe countries, the WTO rules are deemed legitimate. Relatively, analyzing thelegitimacy of the WTO rules, and pointing out the defects and remedies of thelegitimacy of the WTO rules are the fundamental methods to obtain universaladherence and recognition. Another important source of the legitimacy of the WTO rules is its internal values, called as equality and freedom, and these values arereflected and achieved through the following basic principles: the principle ofnon-discrimination, the principle of transparency and the principle of good trading.The jurisprudence of the WTO rules is lively. It is embodied in the specific WTO rules(such as the environmental rules) and its dispute settlement process. At the meanwhile,the jurisprudence of the WTO rules is also verified and sublimated in the use of thespecific rules and the dispute settlement process.The making and implementation of the WTO rules by no way mean that the tradefrictions and disputes will be in an immediate reduction. To the contrary, the culturalcharacteristics of the WTO may increase the disputes. However, the frictions anddisputes are not terrible, instead, how to resolve these disputes and differences, andhow to reform and improve the WTO rules are the questions we need to think about.The only way to achieve the prosperity of international trade is to form a set oflegitimate international trade rules.According to the above ideas and theories, this paper is divided into thefollowing five chapters:The first chapter is the background for the formation and development of theWTO rules. The WTO rules are formed the developed in the era of globalization. Thefirst part is the whole picture of global development. Economic development is thefoundation of all super-structure changes. Globalization for granted is firstly reflectedin the field of economy, and then quickly expanded to legal, political, cultural andother fields. The second part is the analysis for the generation mechanism andtheoretical implication of the legal globalization. The last part points out that how theWTO rules is developed in this era and how it plays an important role in promotingthe legal globalization.The second chapter points out the attribute of the WTO rules. This chapterattempts to clarify the attribute of the WTO rules by analyzing separately from theattribute of form, process and effectiveness of the WTO rules. Firstly, the forms of theWTO rules. The concept of law in the globalization era is defined from theperspective of the system-center, and then comes to the conclusion that the WTO rulescarry the attribute of the international law. Secondly, the functions of the WTO rules.This part analyzes the functions of monitoring the government, resolving tradedisputes of the WTO rules. Finally, the effectiveness of the WTO rules. Theeffectiveness of the WTO rules can be divided into two parts for analysis: The firstpart is about the general validity of the WTO rules in the domestic law of the memberstates, and the validity of the report adopted by the WTO dispute settlement mechanism. These problems are mainly concentrated in the international law level.The second part is about whether the domestic court has the right to judge thedomestic laws and policies which are inconsistent with the WTO rules by directlyapplying the WTO rules, in other words, whether the WTO rules has a direct effect inthe member states. These problems are mainly concentrated in the domestic level,which involve a broader system of domestic constitutional arrangements.The third chapter analyzes and examines the legitimacy of the WTO rules. Firstof all, it analyzes the meaning of legitimacy by noting that the legitimacy should havethe "voluntary compliance" and "moral point" meaning, and then distinction andcomparison are made between the legitimacy and legality to further clarify themeaning of legitimacy. Secondly, the analytical framework of the legitimacy of theWTO rules is established. In this part, the division between substantive legitimacy andprocess legitimacy in the field of jurisprudence will be compared by the divisionbetween output legitimacy and input legitimacy in the field of political science. Theanalysis for the legitimacy is limited to the following two aspects in this chapter: in thesubstantive law aspect, whether the WTO rules achieve its goals and values, whetherthe effect is satisfactory; in the procedural law aspect, whether the process for makingresolutions or resolving disputes is proper, and whether the decision-making andsettlement procedure is in a democratic manner; thirdly, within the above framework,the legitimacy of the WTO rules is analyzed within the specific problems ofdeveloping countries, expanding jurisdiction, consensus and transparency, disputesettlement and so on. Moreover, some suggestions are made for correction of theflaws of the legitimacy of the WTO rules.The fourth chapter is about the basic principles and the internal values of theWTO rules. First, the concept of the basic principles of WTO is defined. And the basicprinciples of the WTO rules differ from its specific principles and rules, and alsodiffer from the internal values of the WTO rules. Second, the basic principles of theWTO rules are summarized as the principle of non-discrimination, the principle oftransparency and the principle of good trading. Finally, the interanl values of theWTO rules such as equality and freedom are explored herein.The fifth chapter is the analysis for the specific rules of the WTO rules and sometypical cases, which may verify the the jurisprudence of the WTO rules stated in theabove chapters. This chapter takes the environmental rules as an example, verifies theattributes, the legitimacy and the basic principles of the WTO rules In this chapter, itat first summarizes the environmental rules, and then followed by some typical casessuch as the shrimp--sea turtle case, which will show how the panel and appellate body of the WTO dispute settlement body apply the WTO rules and its principles inpractice. And then, some suggestions are provided for the conflict between the freetrade and protection of environment.