A Study On Non-Violation Complaints In WTO Law

The current global financial crisis is becoming increasingly intense, and the spread of the crisis has led to the appearance of trade protectionism manifested through various non-tariff trade barriers(hereinafter NTTBs). However, The trend of global economic integration and trade liberalization will not reverse because of the outbreak and intensification of financial crisis.Among international organizations, the World Trade Organization(hereinafter WTO),founded as successor to the General Agreement on Tariffs and Trade(hereinafter GATT),is the most influential international body dealing with the trade relationship between nations(including Custom Unions). WTO requires that its members should fulfill their obligations under the WTO agreements.It has established two parallel dispute settlement systems—Dispute Settlement Mechanism(Hereinafter DSM)at WTO level and Judicial Review system at domestic level of WTO members, in ordert to review legislative actions and administrative actions relating to the management of international trade affairs and regulate members'lawmaking and enforcement with respect to foreign trade policies.The principle of trade liberalization is a basic legal principle in WTO legal framework or GATT.It requires members to restrict and eliminate all the trade barriers that impede orderly development of international trade thorugh granting reciprocal trade, making tariff concessions and other market access commitments and restricting and eliminating NTTBs. Nonetheless, there is no laws which is so complete that is could possibly avoid circumvention of their provisions in the world, on account of objective factors and legislators'limitation of rational choice. The reality is that drafters couldn't fully and directly provide substantive rules to regulate all the possible NTTBs for impeding multilateral trading system on the process of negotiating WTO draft agreements. If WTO agreements just regulate the WTO members'actions which violate the provisions and ignore NTTBs which do not violate provisions, The basis of multilateral trading system as well as reliance interests accruing to negotiations of tariff concessions will be impaired by slight negligences.As a legal proverb saying goes ubi jus,ibi remedium. Under this circumstances, such a procedure should be provided to remedy members accruing benefits which have been nullified or impaired. Then, there is concept of Non-Violation Complaints which is referd to as procedural remedy in WTO legal framework.The Concept of Non-Violation Complaints originated at the era of League of Nations after the Great Depression in the lae 1920s and early 1930s, developed in GATT period and improved in WTO period. Under legal framework of WTO, Non-Violation Complaints is a procedural remedy system which protects the benefits of legitimate expectations. It preserves the benefits of legitimate expectations of WTO members accruing from mutual tariff concessions resulting in improved market access and competition relationship opportunities which are thus being upset by another member's government actions without breaching obligations of WTO agreements, then it indirectly protects the benefits of legitimate expectations of WTO members'nationals who can be infringed by government measures which has not breached the provisions of WTO agreements for whom must not have been able reasonably to anticipate. The concept of benefits of legitimate expectations are reasonably anticipated benefits which shouldn't be nullified or impaired, not be explicitly provided by WTO agreements but consistent with the principles of WTO agreements.Non-Violation Complaints reflects that WTO members'government actions which do not violate the provisions of WTO agreements can possibly result in the process of DSM by another member which files a complaint as one of cause of actions(two others are violation complaints and situation complaints),in order to resolve trade disputes at international level. Compared to other international dispute settlement systems which allow Parties to file a complaint only when other parties obviously violate provisions of treaties, Non-violation Complaints is a special and unique procedural system. It establishes international strict liability resulting from government legitimate actions which involves international trade relationship and set up contribute for a new type of international liability laws. This thesis begins with an introduction of the concept of Non-Violation Complaints which first emerged as the"equitable treatment clause", then discusses practices of major trading nations, Non-Violation Complaints of cases which occurred between the GATT period and WTO period. It puts the emphasis on opinions and allegations of the relevant reports concerning about Non-Violation Complaints of panel and Appellate Body and thoroughly researches on origins and development of Non-Violation Complaints, theoretical basis and signification of Non-Violation Complaints, three main conditions for Successful Non-Violation Complaints, enlargement application of Non-Violation Complaints and procedural rules of Non-Violation Complaints. The purpose of thesis is to give suggestions and recommendations of how to apply this subsequent proceedings relief system appropriately in the practice of DSM for Chinese government and maintain benefits of ourselves.Because of Non-Violation complaints, as a protection of the benefits of legitimate expectations of the subsequent procedures ,our country's administrative organs in the fields of international trade management should take account of negotiations of china's accession to WTO of the various tariff concessions covering the products concerned, when they create or apply to abstract administrative actions or specific administrative actions involving in international trade management. It is necessary for us to consider the introduction of international trade management policies without breaching obligations of WTO agreements whether or not probably nullify or impair other WTO members'benefits of legitimate expectations. Then it will arise disputes which can fall within the category of Non-Violation Complaints. When we face the disadvantages of other WTO member's filing a Non-Violation Complaint to DSB, Chinese government will responded confidently, argue against claims and effectively defense in accordance with constitutional elements and procedural rules of Non-Violation Complaints.Meanwhile, as a WTO member, in order to provide all-round and multifaceted measures to maintain and guarantee benefits of ourselves, China should take advantage of WTO several different procedures including Violation Complaints and Non-Violation Complaints in case a dispute arises between Other WTO members and China, when any other WTO member's government upsetts competition conditions of China's exporting goods to its domestic market.The concept of Judicial Review system at domestic level of WTO members is that WTO members are required to establish Judicial Review system , according to provisions of Judicial Review under WTO covered agreements and commitments of setting up Judicial Review system under protocols and working party reports on the accession of WTO for Non-Original Member. Therefore it will ensure WTO agreements to be applied and administered in a uniform, impartial and reasonable manner at domestic level of WTO members.In the context of contemporary Chinese society, Judicial Review system at domestic level of WTO member refers to as China's International Trade Administrative Litigation. The concept of International Trade Administrative Litigation is to hear international trade administrative cases and the pattern of manifestation of conformity of commitments with impartial, independent and transparent Judicial Review system.However, Our Country's International Trade Administrative Litigation currently is rooted in traditional administrative litigation system. The administrative case within the scope of acceptance is limited to specific administrative actions involving in international trade management. This phenomenon is inconsistent with commitments of any administrative action subject to review Under China's protocol and working party report on the accession of WTO and is also different from the reality of any government measures subject to fall within the category of Non-Violation Complaints in WTO/DSM. Plaintiff qualification of recognizing standards of International Trade Administrative Litigation is limited to the standard of"lawful rights and interests"or"interest relations on law". As far as protection of international trade freedom rights and interests of international trade participants are concerned, International Trade Administrative Litigation only puts the emphasis on protecting benefit on law rather than benefit accruing to it under law which is worthy of legal protection and protects rights interests which have been infringed by violating actions. It is also lack of protection of benefits of legitimate expectation which have been infringed by non-violating administrative actions involving in international trade management.Although Non-Violation Complaints in WTO/DSM is to resolve trade disputes which cause nullification or impairment of benefits of legitimate expectations resulting from non-violating obligations of WTO agreements among WTO members. The aim of Non-Violation Complaints is to protect WTO member's benefits of legitimate expectations, then directly preserve WTO member's nationals'benefits of legitimate expectations. It is not directly related to specific natural persons, legal persons or other organizations. However, objects of scope of review between Non-Violation Complaints and International Trade Administrative Litigation both contain administrative actions which are introduced by administrative organs of international trade administrative management. Hence comes the relevance of both of them. On the area of supervising power of international trade management among WTO members'governments and honoring and guaranteeing private rights of international trade participants between Dispute Settlement Mechanism and Judicial Review system at domestic level of WTO member have achieved consistency to some extent. It seems to be two sides of the same problem or two different angles. It makes sense that the scope of review and the notion of protection of the benefits of legitimate expectations under Non-Violation Complaints will affect on the improvement of the International Trade Administrative Litigation.From consideration of better implementation of WTO agreements in China, reducing the friction arising from international trade, to promote construction of government under rule of law, to make use of situations which the rules and regulations of Non-Violation Complaints have been advanced by development of GATT/WTO dispute settlements practices, to advance development and promotion of International Trade Administrative Litigation, to make effort to let trade disputes resolved at domestic level, to decrease uncertainty resulting from cases resource to DSB. For the future development and perfection of International Trade Administrative Litigation System which is now at an elementary stage, it will partially expand the international trade administrative case within the scope of acceptance and enhance the protection of benefits of legitimate expectations of international trade participants. Here are two detailed methods: One is to relax plaintiff qualification of recognizing standards and apply to standards of"adverse effects"; The other is to establish affirmation claim of international trade administrative legal relationship under affirmation litigation and to remedy international trade participants'benefits of legitimate expectations which might be infringed by international trade administrative actions which has not breached the provisions of international trade laws and regulations for whom must not have been able reasonably to anticipate.