Cross-cutting issues, by their very nature, usually cause legal and practical complications and go beyond a purely trade dimension. How to ensure that trade measures taken under the WTO would not turn into excessively disruptive elements for the protection of non-economic interests or the operation of different regimes poses a challenge ahead for the WTO. This book addresses this challenge from two perspectives.
Part I explorers some key non-economic concerns. It includes issues on FCTC tobacco advertisement restrictions, anti-tobacco smuggling in light of Dominican-Cigarettes Case, compulsory licenses for access to medicine under bilateral investment agreements, excessive trade response to 2009 A/H1N1 influenza outbreak, and trade and cultural protection in the context of anti-dumping. Part II discusses some areas for the enhancement of healthier trade ties. It includes issues on DSU Article 21.5 compliance proceedings, export subsides remedies, DSU Article 25 arbitration, EC-IT product Case, and regional procurement arrangements in East Asia.
It is expected to be a useful book that helps readers (including scholars, practitioners, and students) widen their understanding of the WTO law.
跨領域議題係WTO貿易體系的重要部分。其中，貿易與區域整合、環境、投資、公共衛生、文化保護或人類價值等議題之關連性，受到相當的重視。跨領域議題究其本質，乃超越單純的貿易範疇，故常引起法律及實務層面的複雜性。因此，如何確保WTO下的貿易措施不致對非經濟利益之保護或不同規範領域之運作，構成過度干擾，係WTO面臨的新挑戰。
本書第一部分探討若干主要的非經濟關切。相關議題包括FCTC菸品廣告限制、Dominican-Cigarettes案與菸品走私、雙邊投資協定下之藥品強制授權、因應2009 A/H1N1新流感之過度貿易措施、反傾銷架構下之貿易與文化保護。本書第二部分則以促進更健全之貿易連結之角度處理若干領域。相關議題包括DSU 第21.5條履行審查小組程序、出口補貼救濟、DSU 第25條仲裁、EC-IT product案、東亞區域之政府採購安排。
藉由跨領域議題展現的多元面向，本書希望有助於讀者擴展其對WTO法律瞭解之廣度與深度。
作者簡介
林彩瑜
【現職】
東吳大學國際經營與貿易學系教授
【經歷】
國立政治大學法學院兼任教授
我國參與WTO、OECD及台加雙邊經貿會議隨團法律顧問
國立台灣大學法律學院「亞洲WTO暨國際衛生法與政策中心」諮詢委員
臺大法學論叢、Asian Journal of WTO & International Health Law and Policy、Contemporary Asian Arbitration Journal等期刊編輯委員
【學歷】
國立政治大學法學博士
英國愛丁堡大學（The University of Edinburgh）法學碩士
國立政治大學法學學士
PREFACE
PART I
SOME KEY NON-ECONOMIC CONCERNS
CHAPTER 1 TRADE IN SERVICES AND PUBLIC HEALTH IN THE CASE OF TOBACCO:
ARE THE FCTC RESTRICTIONS ON TOBACCO ADVERTISING INCONSISTENT WITH THE GATS?
003 Ⅰ Introduction
007 Ⅱ Tobacco Advertising Restrictions and Market Access
015 Ⅲ Tobacco Advertising Restrictions and Domestic Regulations
020 Ⅳ Tobacco Advertising Restrictions and National Treatment
023 Ⅴ Conclusion
CHAPTER 2
A MODEST BALANCE FOR TRADE IN TOBACCO,
ANTI-TOBACCO SMUGGLING AND HEALTH CONCERNS IN LIGHT OF THE DOMINICAN REPUBLIC-CIGARETTES CASE
025 Ⅰ Introduction
030 Ⅱ An Anti-Tobacco Smuggling Measure: Tax Stamps Requirement Issues in Dominican Republic-Cigarettes
031 Ⅲ National Treatment and Anti-Tobacco Smuggling Measure: Seeking Safe Harbor?
043 Ⅳ GATT Article XX Exception and Anti-Tobacco Smuggling Measure: Seeking Balance Harbor?
055 Ⅴ Conclusion
CHAPTER 3
COMPULSORY LICENSES FOR ACCESS TO MEDICINES, EXPROPRIATION AND INVESTOR-STATE ARBITRATION
UNDER BILATERAL INVESTMENT AGREEMENTS:
ARE THERE ISSUES BEYOND THE TRIPS AGREEMENT?
057 Ⅰ Introduction
060 Ⅱ The Potential Link of Compulsory Licenses with Indirect Expropriation
071 Ⅲ Considering Public Health in Investor-State Arbitration:
Some Possible Procedural Arrangements
079 Ⅳ Alternatives to the Investor-State Arbitration: A Return to
State-State Dispute Settlement
081 Ⅴ Conclusion
CHAPTER 4
THE FORGOTTEN ROLE OF WHO/IHR IN TRADE RESPONSES TO 2009 A/H1N1 INFLUENZA OUTBREAK
083 Ⅰ Introduction
086 Ⅱ Mechanism for Discouraging Excessive Trade Measures Under
the IHR
097 Ⅲ Restrictions on Trade in Pork against A/H1N1-Affected Members:
The First Test for the IHR?
102 Ⅳ Is the WTO a More Appropriate Forum to Address Trade Concerns
in Response to A/H1N1 Influenza?
107 Ⅴ An Evaluation of the Obscure Role of IHR in the Trade Response
to A/H1N1 Influenza
112 Ⅵ A Brief Suggestion for the Improvement of IHR: Lessons
from A/H1N1 Influenza
120 Ⅶ Conclusion
CHAPTER 5
THE LINK BETWEEN TRADE AND CULTURAL PROTECTION
IN THE CONTEXT OF ANTI-DUMPING
121 Ⅰ Introduction
125 Ⅱ Applying Anti-Dumping Measures to Cultural Products:
Possibility and Limitation
131 Ⅲ Like Products Determination and Cultural Consideration
139 Ⅳ Public Interest and Culture Diversity
150 Ⅴ Conclusion
PART II
SOME AREAS FOR THE ENHANCEMENT OF HEALTHIER TRADE TIES
CHAPTER 6
COMPLIANCE PROCEEDINGS UNDER ARTICLE 21.5 OF DSU
AND DOHA PROPOSED REFORM
153 Ⅰ Introduction
155 Ⅱ Implementation of the DSB Recommendations and Rulings
158 Ⅲ An Overview of DSU Article 21.5 Proceedings
162 Ⅳ Issues Relating to DSU Article 21.5 Proceedings
175 Ⅴ Sequencing Issues of Article 21.5 and Article 22
182 Ⅵ Conclusion
CHAPTER 7
REMEDIES FOR EXPORT SUBSIDIES IN THE CONTEXT OF ARTICLE 4 OF THE SCM AGREEMENT: RETHINKING SOME PERSISTENT ISSUES
183 Ⅰ Introduction
186 Ⅱ Special Procedures For Export Subsidy Violations in Article 4:
A Comparative Review from the DSU
188 Ⅲ Modification of the Subsidy
193 Ⅳ Repayment of the Subsidy
202 Ⅴ Punitive Countermeasures
209 Ⅵ Conclusion
CHAPTER 8
HOW FAR CAN ARBITRATION PRACTICE AS AN ALTERNATIVE DISPUTE RESOLUTION WITHIN THE WTO GO?
A PERSPECTIVE ON INTELLECTUAL PROPERTY DISPUTES
211 Ⅰ Introduction
214 Ⅱ Arbitration as an Alternative Dispute Settlement Process: Article 25 of the DSU
220 Ⅲ Would Arbitration Come Closer to the Normal Dispute Settlement Procedures as Practiced?
233 Ⅳ Conclusion
CHAPTER 9
SYSTEMIC REFLECTION ON THE EC-IT PRODUCT CASE:
ESTABLISHING AN ‘UNDERSTANDING’ ON MAINTAINING
THE PRODUCT COVERAGE OF THE CURRENT INFORMATION TECHNOLOGY AGREEMENT IN THE FACE OF TECHNOLOGICAL CHANGE
235 Ⅰ Introduction
239 Ⅱ Would the Inclusion of New Technology or Non-ITA Features Warrant the Exclusion of the ITA Products from
Duty-Free Treatment? The EC’s Inappropriate Criteria in the EC-IT Product Case
253 Ⅲ Systemic Implications of the EC-IT Product Case for the ITA Product Coverage
265 Ⅳ Establishing an ‘Understanding’ on Maintaining the Product Coverage of the Current ITA in the Face of
Technological Change
272 Ⅴ Conclusion
CHAPTER 10
REGIONAL PROCUREMENT ARRANGEMENTS IN EAST ASIA:
SOME REFLECTIONS FOR THE WTO RULES
275 Ⅰ Introduction
278 Ⅱ Main Elements of Government Procurement Rules In East Asian RTAs
288 Ⅲ Lessons of Regional Approach in East Asia and Implications for Promotion of Global Procurement Liberalization
294 Ⅳ Lessons of APEC Transparency Standards for Future WTO Transparency Negotiation
309 Ⅴ Conclusion
PREFACE
Over the past years, some issues cutting across several topics and fields are increasingly recognized as an integral part of the global trading system and have secured wide attention. Of these, trade issues in relation to regional integration, environment, investment, public health, cultural protection or human values are noticeable examples. These cross-cutting issues, by their very nature, usually cause legal and practical complications and go beyond a purely trade dimension. In view of this, the question of how to ensure that trade measures taken under the WTO would not turn into excessively disruptive elements for the protection of non-economic interests or the operation of different regimes poses a challenge ahead for the WTO.
The ten journal articles gathered in this book mainly aim at addressing cross-cutting concerns. They were published in Journal of World Trade (SSCI Journal), IIC-International Review of Intellectual Property and Competition Law (SSCI Journal), Asian Journal of WTO & International Health Law and Policy (SSCI Journal), Contemporary Asia Arbitration Journal, The Journal of Word Investment & Trade, and The International Lawyer. The covered issues can generally be divided into two Parts.
Part I addresses some key non-economic concerns. It includes chapters touching upon tobacco advertisement envisioned in WHO/FCTC from the perspective of GATS, anti-tobacco smuggling and health concerns in light of Dominican-Cigarettes Case, compulsory licenses for access to medicine in the context of bilateral investment agreements, issues on excessive trade response to 2009 A/H1N1 influenza outbreak, and trade and cultural protection in the context of anti-dumping.
Part II addresses some areas for the enhancement of healthier trade ties. It includes chapters discussing WTO compliance proceedings and Doha suggested reform, persistent issues on export subsides remedies, DSU Article 25 arbitration from a perspective on intellectual property dispute, the challenge for the ITA with converging technologies as reflected on the EC-IT product Case, and the link between WTO and regional procurement arrangements.
This book is the third volume of the Asian Center for WTO & International Health Law and Policy Book Series. It is expected to be a useful book that helps readers deepen and broaden their understanding of cross-cutting issues in the dynamic land of the WTO law.
I am particularly indebted to Professor Chang-Fa Lo who always supports and encourages me. Professor Lo will start his position as Grand Justice of the Constitutional Court of Taiwan. By the time this book appears, I would also like to take this opportunity to pay a special tribute to him.
Tsai-Yu Lin
Taipei, September 2011
