市场准入与国内规制在WTO法中应如何合理界分

How to Delineate the Boundary of Market Access and Domestic Regulation in the WTO Law

随着“美国———赌博”案裁决的终结,市场准入与国内规制的关系问题备受关注。WTO法对成员方市场准入与国内规制措施存在不同约束,但对相关条款如何辨别和适用于两类不同措施缺乏明确的规定。在GATT项下,由于关于第3条注释的存在,GATT第3条与第11条相互排斥,且第3条优先适用。在GATS项下,市场准入与国内规制既有区分,也存在适用中的重合,为此需要对第16条中的市场准入的限制措施从严界定,以避免该规定侵占WTO原本为成员方所保留的国内规制自由的领地。

The relation between market access and domestic regulation has been the focus of interest due to the findings of the U.S. - Gambling Case. The law of WTO has different requirements upon market access and domestic regulation, but lacks clear provision on how relevant rules differentiate and apply to the two types of measures. GATT Art. 3 and Art. 11 are exclusive with the prior application of Art. 3 due to a Note to Article 3. Under GATS, the two measures differs, but their relevant rules overlap in application, and thus the market access limitations in Art. 16 of GATS should be narrowly defined to prevent the invasion of Art. 16 into the liberty of domestic regulation preserved by WTO for its members