WTO禁止性補貼制度之檢討：兼論現行規定在特定產業之適用
WTO Prohibited Subsidies and Its Implication in Specific Sectors
Date Issued
2007
Date
2007
Author(s)
Liu, I-Sha
DOI
zh-TW
Abstract
Prohibited subsidies, namely export subsidies and import substitution subsidies, have long been the focus of WTO dispute settlement mechanism since WTO’s inception. In view of this, this thesis aims to clarify the interpretation of the definition of prohibited subsidies, to examine the remedies under Article 4 of the SCM Agreement, and further, to call for specific subsidies rules for fisheries and aircraft manufacturing.
One of the elements of prohibited subsidies is de jure or de facto contingency on importation or using domestic products over imported goods. However, de facto contingency is sometimes a vague idea and can only be established based on all the facts surrounding the provision of the disputed subsidy. It has been proposed by members that elements of de facto contingency should be enumerated in Article 3 of the SCM Agreement so that the rule can be more predictable. It is the view of the author that enumerating elements of de facto contingency could limit the flexibility on establishing this point. But it would be helpful if certain important elements are listed in the SCM Agreement so that DSB’s decision can be more predictable and consistent. And the author also argues that it would be fairer for members who rely heavily on export if the level of export competitiveness can be one of the elements of de facto export subsidies.
Article 4 of the SCM Agreement is a special and additional rules and procedures on dispute settlement under the meaning of Article 1.2 of the DSU. As decided by the Panel in Australia-Leather, Article 4 allows retrospective remedies. And as interpreted by the author, the Arbitrators in Canada-Aircraft 22.6 authorized Brazil to impose punitive measure. The author believes that without further elaboration on the severity of prohibited subsidies - how is it more trade-damaging than other WTO-inconsistent measures - such interpretation can not be justified.
Under WTO Agreements, all subsidies are governed by the SCM Agreement, unless AOA contains “specific provisions dealing specifically with the same matter.” However, like agriculture, there are some industries where the SCM Agreement, especially the rules on prohibited subsidies, does not really “fit.” For example, fisheries subsidies have led to overcapacity and overfishing, but they do not usually come in the form of export subsidy or import substitution subsidy. Thus, current rules on prohibited subsidies do not effectively solve problems caused in this field, whereas in aircraft manufacturing, applying the SCM Agreement would kill the industry, because it is an industry that all producers need financial aid from their governments. Therefore, the author believes that there should be specific subsidies rules for certain industries.
Subjects
世界貿易組織
補貼暨平衡稅協定
禁止性補貼
出口補貼
進口替代補貼
特別附加規則與程序
World Trade Organization
Agreement on Subsidies and Countervailing Measures
export subsidies
import substitution subsidies
special and additional rules and procedures
Type
thesis
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