WTO争端解决裁决的国内效力问题研究——以国家主权为视角

Internal Effect of WTO Dispute Settlement Decisions

WTO争端解决裁决的国内效力不同于WTO协定的国内效力。WTO争端解决裁决与WTO协定的生成途径和国际法律地位有着显著差异。从其产生过程、自身品质和其他证据来看,WTO争端解决裁决可能会对国家主权构成"软侵蚀",各成员因此需要"看门人",以防止WTO争端解决裁决的国内不当影响。从实践看,欧盟和美国都明确拒绝了WTO争端解决裁决的直接效力,美国甚至还部分拒绝了WTO争端解决裁决的间接效力。我国应当借鉴欧盟和美国的立法与司法实践,一方面,不可一概承认WTO争端解决裁决的国内直接或间接效力,而是应该留有回旋余地,给予法院决定是否尊重WTO争端解决裁决的裁量权,确实维护我国国家主权;另一方面,可出于国际礼让、维持良好国际"守法"形象等考虑,给予WTO争端解决裁决适当尊重。

The domestic effect of WTO dispute settlement rulings is different from that of WTO agreements. There are significant differences between the WTO dispute settlement rulings and WTO agreements with respect to their formation process and international legal status. Based on its formation precess and quality as well as other evi- dences, WTO dispute settlement rulings may encroach on national sovereignty softly. As a result, WTO members may need ＇ gatekeeper＇ to defend the negative domestic consequences cause by the WTO dispute settlement ruling. In practice, EU and U.S. both rejected explicitly the refused to gave indirect effect to them： China should cannot give direct or indirect domestic effect to WTO the scope of manoeuvre and give domestic courts the ment rulings direct effect of WTO dispute settlement rulings and U.S. even learn from EU and U.S. experiences. On the one hand, China dispute settlement rulings in all instances, but should retain discretionary to decide whether to respect WTO dispute settle- or not. On the other hand, given the international comity, the maintenance of image of good intema- tional law-observer as well other considerations, the domestic courts should give WTO dispute settlement rulings some weights.