Chương II: WTO Bản tiếng anh - Tài liệu tham khảo | Đại học Hoa Sen

CHAPTER II
GATT/WTO MULTIPLE TRADE SYSTEM
I. OVERVIEW OF THE GATT/WTO MULTIPLE TRADE SYSTEM
1.1. The concept of the multilateral trading system and the GATT/WTO trading system
International economic cooperation is considered an important foundation for countries and
customs territories to best promote their competitive advantages and thereby create common
prosperity. Forms of cooperation in practice are very diverse in form and content, from bilateral
cooperation, regional cooperation to inter-regional cooperation, multilateral cooperation.
Multilateral cooperation is the broadest form of cooperation in terms of geography, the most
complex in structure, and also generates the greatest development power on a global scale.
Multilateral international cooperation in the field of trade is formed on the basis of the principles
and legal regulations governing commercial relations among the members of the system. The
multilateral trading system can operate on its own on the basis of international treaties or operate
within the framework of an international organization. The GATT/WTO trading system is a good
example of the modern multilateral trading system model. Within the framework of the
GATT/WTO system, the process of cooperation between the members of the system is built and
developed on the basis of recognition and sharing 45
benefits, and is guaranteed by a system of strict and complex legal principles.
The GATT/WTO trading system is essentially a multilateral trading system formed within the
framework of the General Agreement on Tariffs and Trade (GATT) and the multilateral trading
system of the World Trade Organization (WTO). ). Although these two systems are independent,
they are closely linked because the WTO trading system is formed on the basis of inheriting the
GATT trading system. Because of the historical connection between these two trading systems,
international trade law experts often study them in a unified GATT/WTO.
1.2. The role of the multilateral trading system The multilateral trading system in general
plays an important role for the development of international trade relations in two aspects:
(i) the mechanism for exchanging commitments on trade policies between countries and (II) )
legal mechanism for the code of conduct in international trade.
1.2.1. Mechanism of exchange of trade commitments
The foundation of all international cooperation activities is dialogue and information exchange
about the purposes of national policies and thereby allowing partners to identify opportunities in
the relationship with partners. This is an important function of international economic institutions
and is a mandatory component of the multilateral trading system. 46
The role and influence of the GATT/WTO system on modern international trade lies in the fact
that the system is not merely a forum for exchange and dialogue among nations, but also a forum
for the exchange of trade liberalization commitments. GATT/WTO has created a mechanism for
negotiation and bargaining towards reducing trade barriers and establishing principles and methods of market opening.
The GATT/WTO multilateral trading system promotes the exchange of commitments for market
access on a reciprocal basis. Once participating in the national multilateral trading system, they
will benefit from the new market access that comes from the partners' commitment to open
markets, and will also have to allow goods and services to be opened. services of trading partners
to access their markets according to the level and route of commitment (acceptable by the
partners). In other words, the country must limit the right to self-determination of trade policies
within the framework of trade concessions committed when participating in the multilateral
trading system (for example, must cut tariffs, not be divided) discrimination between domestic
and imported goods) in order to gain economic benefits from access to markets and resources on a global scale.
The exchange of commitments makes the port trading system more open and free for commercial
activities. Members of the multilateral trading system all enjoy economic development (albeit to
varying degrees) and are in a more favorable economic position than those outside the system
that are not willing to remove trade barriers. 47
commercial fence. This fact has created impetus for economies, both large and small, to join the
multilateral trading system to seek cooperation for trade liberalization.
The multilateral trading system is also where countries negotiate solutions to transnational
challenges that cannot be solved by one country's government, such as trade-related issues such
as maintaining socio-cultural values, public health, environmental protection, food safety and
hygiene or minimum labor standards. Some countries may abuse these pretexts to set up trade
barriers. The multilateral trading system can help the international community negotiate the
establishment of basic standards to harmonize a country's domestic policies and regulations or
allow measures to be applied at a lower level. necessary to protect relevant interests and values,
thereby ensuring an effective level of international protection for the country and the common
interests of the international community.
1.2.2. Establish rules for international trade
One of the important outcomes of commercial cooperation is the formation of “codes of
conduct” among the parties involved. The development of the GATT/WTO has created a system
of legal principles and rules governing the trade policies of its members. They have become
international standards and an integral part of today's international trade agreements. Rules and
principles of the trading system 48
GATT/WTO restricts the freedom of governments to use trade tools and measures, thereby
helping to create a balance between domestic interest groups (groups who want to be protected
and those who want to open up). market).
Governments understand that once part of the system, failure to fulfill commitments and change
trade policies that are inconsistent with the overall regulatory framework of the system will result
in “compensation.” trade to trading partners whose interests are affected. This rule of the system
has created a necessary condition for governments to adhere to the general rules and regulations
of international trade and to limit rampant protectionism - which is also in the interests of the
world. long-term development of the country. It can be said that the multilateral trading system is
a mechanism to help limit potential market failures in the development policies of economies
(including developed and developing economies). development).
The GATT/WTO system represents a rules-based approach to international economic
cooperation. It is contrary to the cooperative model that is commonly called the “results-based
approach” or the “imposed trade management approach” for example agreements that guarantee
the volume of trade, the division of market or international price determination as among former socialist countries 49
within the framework of CMEA'. The GATT/WTO system establishes the legal framework for
trade and does not impose or dictate the consequences of trade at all. In order to ensure that the
system is operated efficiently, the regulations and principles of the agreements under the
GATT/WTO framework only regulate the legal framework for the operation of international
trade and towards a balance of interests. interests among members.
II. GATT . TRADE SYSTEM
2.1. Background of the GATT trading system
The idea of a multilateral trading system began to take shape after the Great Depression on a
global scale during the 1930s. The Great Depression began with protectionist trade policies.
Translating with tariffs of economic powers on both sides of the Atlantic in order to reduce the
trade balance deficit and help domestic enterprises increase their position in the domestic market during this time. 50
difficult economic times. The United States, with the enactment of the Hawley - Smoot Tax Act,
caused a chain effect that followed the tariff retaliation policies of other countries. As a result of
this trade war, all international trade activities were halted and severely reduced. The rapid
decline of international trade in the 1930s was a factor that strongly influenced the economic
downturn of many countries, especially those that depended heavily on import and export
activities. The crisis was only ended by World War II. However, all countries recognize the
downside of negative protectionist policies and the need for a model of multilateral economic
cooperation with the crossover of economic and trade interests.
As World War II drew to a close, the Allied Powers initiated negotiations to build a model of the
world economic order within the framework of international economic institutions capable of
linking the nations. economy, promoting comprehensive economic cooperation in terms of finance, currency and trade.
At the summit of the victorious Allies held in 1944 at Bretton Woods, New Hampshire, England,
the economic powers united to form a system of 51
global monetary and financial system – Bretton Woods system, capable of promoting multilateral
economic cooperation on a global scale. The Bretton Woods system is intended to be a system of
international economic institutions within the framework of the United Nations with three basic
axes: the International Monetary Fund, the World Bank and the World Bank. WB) and the
International Trade Organization (ITO). In which, the IMF will have to ensure the stability of the
currency and facilitate the exchange of monetary policy between countries; The World Bank will
assist in the reconstruction of war-torn countries and provide financial support to developing
countries in economic construction and development. ITO will be the organization to coordinate
and promote international trade cooperation.
Already in 1945, the Charters and documents related to the establishment of the IMF and the
World Bank were completed and the signatory countries approved to put these two important
international economic organizations into operation. Economic and Social Council of the United
Nations (ECOSOC) in its first session in October 1945 52
also issued a resolution calling for a conference to draft a charter for the ITO. The United
Nations has established a preparatory committee to prepare for the establishment of the
international trade organization. This committee held meetings to draft the Charter for the ITO in
London and Geneva in 1947. Within the framework of these meetings the countries negotiated
the first multilateral trade agreement. history - General Agreement on Tariff and Trade (GATT).
The GATT Agreement was signed in Geneva in October 1947 and is considered the foundational
document for the operation of the ITO trading system and is an integral part of the ITO Charter.
However, the establishment of the ITO to promote trade liberalization and eliminate
protectionism faced significant political obstacles from economic interest groups of many
countries, especially in the United States. . At the conclusion of the Geneva conference, the
negotiators recognized that the negotiation and drafting of the ITO Charter would not be
completed before 1948. Although the GATT was intended to be an important part of the
framework. ITO legislation, the leaders of the countries decided not to wait until the ITO Charter
was completed before implementing it 53
GATT. On October 30, 1947, the negotiating delegations at the Geneva Conference agreed to
sign the Protocol on the Provisional Application of the General Agreement on Tariffs and Trade.
and Trade - PPA)* Thus, from January 1, 1948, GATT 1947 has officially entered into force on
the basis of PPA. Subject to the provisions of the PPA, Part I of GATT 1947 (which covers the
obligations of most-favoured-nation treatment and tariff concessions) and Part III (which
includes the procedural provisions) apply in full. suffice immediately, while Part II (which covers
most of the practical provisions may result in the need to amend or supplement domestic laws and require 54
process of codification through the legislature) shall be applied only to the extent that it does not
contravene the provisions of the applicable national law. Also under the PPA, the signatories to
GATT 1947 are entitled to reserve certain provisions and continue to maintain them
legislation that is inconsistent with the obligations set forth in Part II of GATT 1947. This
exception is seen as an effective way to relieve and disperse pressure on national governments in
persuasion. Congress quickly approved the application of GATT. GATT 1947 was applied on a
PPA basis until 1995 (when GATT 1947 became part of GATT 1995).
In March 1948, the negotiating countries concluded negotiations on the content of the ITO
Charter and jointly signed it at the Conference in Havana, Cuba (“Havana Charter”). The Havana
Charter would have to be the basis for the creation of the ITO, and at the same time establish the
basic rules and principles for international trade and a number of other international economic
issues. However, the Havana Charter never entered into force because the US Congress vetoed
the ratification of this international treaty. Since the patronage of the United States (the number
one economic power in the post-war world) for the ITO was paramount, the countries that were
ready to ratify the ITO Charter stopped ratifying it and waited for the US action. Ky. In 1950,
after many unsuccessful attempts, the US government decided not to continue seeking approval
of the 9 Havana Charters signed on March 24, 1948. 55
congressional approval for the United States to join the ITO. That was also the time when ITO was officially terminated.
2.2. GATT - an ad-hoc international trade institution
The inability of the ITO to be formed has left a big hole in the structure of the system of
international economic institutions when countries have planned to establish the ITO as the third
branch of power (besides the IMF and the World Bank). ) post-World War II. However, when the
ITO was not established, the countries returned to the contingency plan envisaged by the parties
to the Geneva conference - that of using the 1947 GATT Agreement as a tool to coordinate trade
activities. international trade.
Leaders of all countries accept that although GATT is only a multilateral trade agreement aimed
at reducing tariffs, not an international organization, it will still be the nucleus for the movement
of goods. operation of the multilateral trading system. This flexible approach has given GATT a
special legal position and gradually turned GATT into an ad hoc international trading institution
with the participation of most countries and territories in the world.
The existence and development of the international trading system within the framework of
GATT is a unique model of international cooperation in history. Since GATT is not an
international organization, the operation of this multilateral trading system does not
managed and coordinated by any management apparatus (actually, GATT has only a small
secretariat that mainly performs the work of receiving documents and connecting communication
between the signatories). Countries 56
Participating in the GATT system is not called a member but only "signatories" to the GATT
agreement. The countries participating in GATT meet periodically in Geneva to discuss issues
related to the implementation and development of the GATT agreement as well as to promote the
process of trade liberalization within the framework of the GATT trading system.
GATT has secured a basic legal framework for cooperation in the exchange of goods throughout
the multilateral trading system. Over time, the content of GATT has been supplemented and
developed into a complex system with many trade agreements and a dispute settlement
mechanism like an international organization.
The GATT trading system no longer focuses solely on tariff reduction as the original goal of the
agreement, but has shifted to more complex issues in trade in goods such as government
procurement, anti-dumping and anti-dumping. , government subsidies, anti-dumping,
government subsidies, agricultural purchases, etc. These expansion issues were negotiated and
signed into international agreements in the form of annexes (codes) of GATT 1947.
Even so, the existence of an ad hoc institution still creates problems inherent to the development
of the multilateral trading system in the long run, which can be summarized as follows:
10 Article XXV GATT. The representatives of the Contracting Parties shall meet periodically to
ensure the implementation of the provisions of this Agreement and to facilitate the
implementation of this Agreement and to enable the achievement of its objectives. 57
(i) GATT has no legal status and lacks an organizational structure and procedures to ensure the
stable operation of the trading system;
(ii) The actual existence of the GATT system is only temporary;
(ii) The PPA allows the GATT Contracting Parties to maintain certain statutes and regulations
that are contrary to GATT's provisions (known as the founder's prerogative); and
(iv) Lack of a strong, clear and effective dispute settlement mechanism, sufficient to guarantee
the rights and interests of all signatories under the provisions of GATT and related agreements.
Stemming from these limitations, the countries participating in the GATT trading system had to
negotiate to build a more complete international trading institution in the mid-1980s. And the
result of that negotiation process was the was the creation of the World Trade Organization (WTO) in 1995.
2.3. Basic obligations of countries within the framework of the GATT . trading system
GATT obliges the Contracting Parties to reduce their tariffs by limiting their tariff forms and
reducing their rates as set out in the Schedule of Tariff Concessions (Article II), and these tariff
concessions must be applied freely. dynamic
11 Jackson John, "Restructuring the GATT System", Chatham House Papers, (1990), pp.38-41;
Jackson John, "The Jurisprudence of GATT and the WTO: Insight on Treaty Law and Economic
Relations", Cambridge University Press (2000), pp.17-49 58
to all GATT Contracting Parties (MFN regime) (Article I). Country tariff concessions are
included in the GATT annex and are considered an integral part of the agreement.
In addition, GATT also stipulates the rules and principles of conduct in trade between the
signatories. Most of those rules are designed to ensure that tariff concessions are properly applied and not distorted. Outside
As mentioned above, the signatories of GATT also have to perform a number of other basic
obligations, which can be summarized as follows:
- Implement the national treatment regime for imported goods of the contracting parties (Article III).
- Quantitative measures such as quotas, import or export permits or other measures are not
allowed, with some exceptions (Article XI) and special provisions on film quotas. photos (Article IV);
- The goods of the Contracting Parties must be allowed to transit freely (Article V);
Must apply special trade remedies (subsidy, anti-dumping) according to the principles and
procedures prescribed by GATT (Articles VI and XVI);
- The customs value must be determined according to uniform rules (Article VII); 12 Article XXXIV, GATT 59
- Must comply with the rules on marking of origin (Article IX);
- To ensure publicity and transparency of trade policies and regulations (Article X);
The state's aid for economic development must be ensured in accordance with general rules (Article XVIII).
In addition, GATT also accepts exceptions when applying the above rules, including:
- Exceptions in the application of trade restrictive measures for the purpose of ensuring the
balance of payments (Articles XII, XIII, XIV, XV and XVII);
Exceptions for developing countries (Article XVIII and Part IV);
- The right to apply emergency safeguard measures when the domestic industry is seriously
damaged or is likely to suffer serious damage (“Escape Clause”) (Article XIX);
- The right to apply trade-restrictive measures to protect national interests and public interests
(such as national security, health protection, public morality, environmental resources) (Article XX) , Article XXI);
- Exceptions to the case of free trade zones (Article XXIV);
- Exception when the signatories need to take collective action (Article XXV).
Ultimately, GATT signatories must settle commercial disputes according to established dispute
resolution rules and procedures. 60
GATT prescribed in Article XXII and Article XXIII. These provisions formed the dispute
settlement mechanism of the GATT system and were the basis for the later WTO dispute settlement mechanism.
2.4. Overview of the multilateral negotiations in GATT framework
To ensure that the multilateral trading system operates effectively and always meets the goals of
international trade development, the signatories have continuously negotiated to improve and
develop the legal framework of the GATT system. From 1947 to 1995, countries used GATT as
the venue for eight rounds of multilateral trade negotiations, including Geneva (1947), Annecy
(1949), Torquay (1951), Geneva (1956, Dillon). (1960-1961), Kennedy (1964-1967), Tokyo
(1973-1979) and Uruguay (1986-1994) Each round of multilateral negotiations under the GATT
framework is named after the place where the round began. or by the name of the initiator of the round.
The basic aim of all rounds of GATT negotiations is to reduce barriers to trade. The first five
rounds of GATT negotiations revolved around tariff reductions. Since the Kennedy round, issues
related to non-tariff barriers have been on the agenda. With the passage of time, the contents of
negotiations have become more and more complex and ambitious. The last round of GATT
negotiations, the Uruguay Round, expanded the scope of negotiations to new areas such as trade
in services, intellectual property, trade-related investments, etc.
The Uruguay Round ended on 15/04/1994 with the establishment of 61
World Trade Organization (WTO) to continue to manage and develop the multilateral trading system of GATT. 62
III. WORLD TRADE ORGANIZATION
3.1. Overview Introduction
The founding of the WTO is the most important outcome of the Uruguay Round. However, the
idea of establishing the WTO was only formed step by step during the negotiation process of the
negotiating parties. In fact, it was not until 1990 that the issue of establishing an international
trading institution was put on the agenda of the Uruguay Round. The basis for building the WTO
is the actual need for an international organization that has the function and capacity to manage
various legal instruments related to international trade, such as GATT, GATS, TRIPS and treaties
other relevant agreements, which the countries were actively negotiating at the Uruguay Round
at the time. At the same time, that organization will also meet the goal of developing extensive
cooperation between the GATT trading system and other international economic institutions such
as the IMF and the World Bank that countries have set out at the meeting.
13 The statement of the Ministerial Conference in Punta del Este on the opening of the Uruguay
Round did not mention the establishment of an international trading institution such as the WTO.
In fact, in the first 15 rounds of negotiations of the Uruguay Round, countries only discussed
"the functionings of the GATT system (FOGS) and especially focused on negotiating whether
new trade agreements were mandatory for GATT signatories. Only in 1990 did countries begin
to discuss the establishment of a multilateral international trading institution such as the WTO
on the basis of the proposal of the European Union and Canada on the establishment of a
multilateral international trade organization. . See Stewart Terence, "GATT Uruguay Round: A
negotiating history (1986-1994)", Kluwert Law International, the Netherlands (1999), p. 514- 534;
John H.Jackson, Restructuring the GATT system, Chatham House Papers, US (1990), pp. 38-41
14 Draft Final Act Embodying the Results of the Uruguay Round of Multilateral Trade
Negotiations, GATT Doc.MTN.TNC/W/35/Rev.1, December 3, 1990. 63
Report of the Ministerial Conference in Montreal (1988). Some countries (including the United
States) were initially strongly opposed to the idea of negotiating a new international
organization, but later also agreed to the legal framework for this multilateral trading institution. , including its name.
At the Punta del Este Conference the negotiators agreed that the negotiations would have to be
carried out on the basis of a 'package commitment'. With the proposed establishment of the
WTO, the agreement on the lump-sum commitments was translated into the principle that all
signatories of GATT would become members of the WTO. Therefore, at the time of its
establishment, all developing countries participating in the Uruguay Round negotiations joined
the new multilateral trading system of the WTO and became members of this organization.
The creation of the WTO was an important milestone in international trade as it officially
brought the GATT multilateral trading system under the coordination of an international
institution and at the same time ended the "temporary" status. GATT since 1948 after the United
States did not approve the creation of the ITO.
15 The name World Trade Organization was initially opposed because it coincided with the
abbreviation of WTO and the name of another international organization of the United Nations,
the World Tourism Organization. During the negotiation process, there was a document named
Multilateral Trade Organization (MTO). However, at the last time before signing the 1994
Marrakesh Agreement, the countries agreed on the name of the World Trade Organization - WTO. 64
goods before loading, (viii) Agreement on Rules of Origin, (ix) Agreement on Customs Valuation
(x) Agreement on Import Licensing Procedures, (xi) Agreement on Subsidies and countervailing
measures, (xii) Agreement on Safeguards, (xiii) Agreement on Origin of Goods.
Annex 1B: is the General Agreement on Trade in Services (GATS);
Annex 1C: Agreement on Commercial Aspects of Intellectual Property Rights (TRIPS).
Annexes 2 and 3 of the Agreement Establishing the WTO are the Agreement on Dispute
Settlement Rules and Procedures (DSU) and the Agreement on the Trade Policy Review
Mechanism. Annex 4 meanwhile includes four plurilateral trade agreements, including: (i)
Aircraft Purchase Agreement, (ii) Government Procurement Agreement, (ii) Dairy Agreement, and (iv) ) Agreement on beef.
It should be noted that the WTO system of agreements is considered a unified whole. All WTO
multilateral agreements are equally applicable and legally binding on all WTO Members. The
provisions of trade agreements under the WTO are considered "single undertaking" representing
"a package of rights and obligations and rules that cannot be considered separately". " In
particular, multilateral agreements on trade in goods will have to be interpreted on
19 Appellate Body Report, Argument Argentina - Safeguards Against Footwear (Argentina –
Footwear (EC)), WT/DS121/AB/R, (1999), para. 81. 75
spirit of GATT 1994. However, in the event that any provision of GATT 1994 conflicts or
conflicts in substance with a provision in a complementary multilateral agreement of Annex 1A
to the Marrakesh Agreement, the provision of the terms of the supplementary agreement shall
prevail over the matter of conflict. In the case Argentina - Safeguards for Footwear from the EC
(Argentina - Footwear (EC)), the WTO Appellate Body explained that “...the provisions can only