WTO争端解决中的法律解释
王毅WTO争端解决中的法律解释
Legal Interpretationin WTO Dispute Settlement
期刊名称：《法学研究》
期刊年份：
作者：王毅
单位：山西大学法学院
中文关键词：WTO争端解决;法律解释;惯例规则;国际法
英文关键词：WTO dispute settlement;legal interpretation;customary rules;international law
中文摘要：
在长达六十余年的GATT/WTO争端解决实践中，大量的案例报告书对多边贸易协定进行了内容丰富的法律解释，其中的专家组/上诉机构的法律解释具有准司法解释的性质，解释的宗旨是维持成员方之间在协议基础上的权利义务平衡。这些法律解释形成了自己的适用规则和特点，如解释的方法从追溯查证缔约原始文件，发展到采用国际公法解释惯例规则；以总则条款制约细则条款，对协议条文进行整体一致的解释；对例外条款从严解释；援引先前案例的解释不构成案例法意义上的判例而应属于条约解释的嗣后惯例；通过解释和推理，填补有关协议规定的空白或缺漏，使协议规定更加明确和具体化；等等。了解这些规则和特点对于中国参与WTO争端解决具有重要的实际意义。
英文摘要：
Legal interpretation developed by the penal and Appellate Body of GATT/WTO has played an important role in dispute settlement under the multilateral trading system. The author in this article attempts to make a pilot research on the characters, customary rules, features, functioning and object of legal interpretation contained and embodied in the numerous case reports adopted by the former GATT CONTRACTING PARTIES since 1948 and the DSB of WTO since 1995 until nowadays.Legal interpretation in GATT/WTO dispute settlement has the common characters of treaty interpretation under international law, but it also has unique features of multilateral trading system, such as its quasi-judicial interpretation character, because the legal interpretation is developed by the penal and reviewed or revised by the Appellate Body, and it is not effective until the report is finally adopted by the DSB which usually takes into account not only legal arguments, but also economic, political and diplomatic elements. Another feature is that the interpretative rule has gradually changed from tracing original drafting documents to adopting the customary rules of interpretation of public international law, particularly §§ 31 and 32 of the Vienna Convention on the Law of Treaties. The most unique and significant feature is that the penal and Appellate Body’s practice of consistent invocation of the interpretation in previous reports has constituted a “subsequent practice” in treaty law. In addition, some interpretative approaches have been applied by the penal and Appellate Body, such as the restrict interpretation on exception articles so as to bring the exceptive measure in dispute backwards to the general principle of multilateral trading system, and also making concordant and consistent interpretation between general provisions and other supplementary clauses. Finally, legal interpretation developed by the penal and Appellate Body has made the ambiguity clarified and developed certain supplementary rules so as to bring the agreements more precise and applicable.A sound grasp of these rules and features will be beneficial and necessary for China to take an active part in WTO dispute settlement for maintenance of a proper balance between the rights and obligations of Members.
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