“WTO国家特定规则”的合法性危机及其化解路径——基于中国入世议定书中的超WTO和负WTO规则的思考

The Legitimacy Crisis of WTO National Specific Rules and its Solution——Reflections on the Rules of“WTO-plus”Rules and“WTO-minus”Rules in Accession Protocol of China

中国入世议定书中含有大量超WTO和负WTO规则的国家特定规则,世贸组织制定国家特定规则的无原则性和无规制性肇致众多国家特定规则违反程序公正和实质公平,并引发诸多贸易争端,国家特定规则面临合法性危机。国家特定规则的制定应基于预定差别标准,并遵循新旧成员一致原则,尽速出台其权威解释,赋予其嗣后协定规则效力,并增强其透明度,是化解其合法性危机的有效路径。

The accession protocol of WTO contains a large number of national specific rules,such as ＂WTOplus＂ rules and ＂WTO-minus ＂ rules. The unprincipled and undisciplined nature in shaping the national specific rules has caused many national specific rules to violate the principle of procedural justice and substantive fairness,and has led to numerous trade disputes. The national specific rules face the crisis of legitimacy.How to resolve the crisis and give the legitimacy of the national specific rules is a problem that needs to be studied and solved by WTO and the academicians. The formulation of the national specific rules should be based on the predetermined difference standards,follow the principle of unanimity between the old and the new members,publish their authoritative interpretations as soon as possible,and enhance their transparency.They are the effective ways to resolve the legitimacy crisis of the national specific rules.