Research On Legal Problems Of Cross-Retaliation Across The TRIPS Agreement Under WTO

In order to ensure that the DSU's recommendations or rulings can be implemented,WTO provides for retaliation as the last resort to enable the losing party to enforce the ruling.Retaliation refers to the “suspension of concessions or other obligations” as stipulated in Article 22 of the DSU.Article 22.3 of the DSU stipulates three alternative methods of retaliation-parallel retaliation,cross-department retaliation and cross-agreement retaliation.cross-department retaliation and crossagreement retaliation are collectively referred to as cross-retaliation.The crossretaliation across the TRIPS Agreement,as an alternative form stipulated in DSU,provides a powerful weapon for developing members to oppose developed members in practice.Compared to the number of cases submitted to the WTO dispute settlement mechanism,the number of cases where retaliation are used is rare,and fewer cases of cross-retaliation across the TRIPS Agreement have been adopted.Three cases had been authorized of cross-retaliation across TRIPS Agreement,namely the ECBananas III case,the US-gambling case,and the US-Upland Cotton case.These data also show that the retaliation has played a certain role from the side,and many disputes can already be solved without going to retaliation.All the retributionapplicants in these three cases are developing countries,and the retributive parties are all developed countries,and the retribution applicants have resorted to the power of cross-retaliation across the TRIPS Agreement to promote the reform of developed countries.The previous non-fulfilment and non-cooperation attitude began to negotiate substantive issues for resolution.The parties to the dispute finally obtained satisfactory results through negotiations.This shows that the cross-retaliation measures under the TRIPS Agreement are effective.But,we should also see that the retaliatory parties in these three cases did not actually implement retaliatory measures.This result also exposed the deficiencies in the cross-retaliation across the TRIPS Agreement and the difficulties in implementation.China has not used or been used cross-retaliation measures across the TRIPS Agreement so far in the WTO,but it does not rule out that in the future China may become a party of cross-retaliation across the TRIPS Agreement.So we should pay attention to this measure,perfect our country's relevant legal system,establish revenge execution mechanism,and prepare for litigation.The first chapter of this article is a theoretical analysis of cross-retaliation under the WTO framework.Firstly,it analyzes the formation and value objectives of the cross-retaliation mechanism.It focuses on the relevant rules of the GATT period and the WTO period,and summarizes the development during the WTO period compared to the GATT period.It also pointed out the value goal of cross-retaliation.Next,in conjunction with the relevant regulations of the DSU,the basic content of crossretaliation was explained in detail,including alternative ways of retaliation,arbitration,termination conditions,and scope of application.At last,it discusses the feasibility and validity of cross-retaliation across the TRIPS Agreement.it analyzes the feasibility of cross-retaliation across the TRIPS Agreement in theory.Then it explains the validity of this measure through statistical data.The second chapter is an analysis of the arbitration jurisdiction and related procedural issues across cross-retaliations of the TRIPS Agreement.Through the study of arbitral awards in practice in three cases,the jurisdiction of the arbitrators,the scope of examination,the application and evidence issues,etc.Make an analysis and point out the flaws in the application.The third chapter is the analysis of cross-retaliation entity requirements across the TRIPS Agreement.The entity requirements refer to the identification of “infeasible orineffective” and “serious enough”.In combination with the case,the paper points out the arbitrators' opinions in identifying these requorements On the basis of the analysis,the factors considered in the entity requirements point out that there are deficiencies in the review of the substantive requirements.The fourth chapter is the analysis of potential legal conflicts and the implementation of obstacles in developing countries.Cross-retaliation across the TRIPS Agreement may exist law conflicts with domestic laws,relevant international IP treaties and bilateral or multilateral investment agreements;Developing countries may have obstacles due to their own imperfect intellectual property legal systems,low domestic market demand,and underdeveloped production technology capabilities.The fifth chapter tries to give suggestions based on the questions raised in Chapters 2 to 4,and considers that China,may become a revenge applicant in the future and may also become a party to revenge.Therefore,in the face of these two identities,we must prepare ourselves separately to avoid possible obstacles to implementation in developing countries.Of course,our country must also establish and improve revenge enforcement mechanisms so that conflicts of law can be avoided during implementation.