This paper repositions the basic principles defined in the WTO agreement from the perspective of commercial law, and holds that the commercial principles guiding commercial subjects to engage in commercial activities are similar to the basic principles of WTO.
Keywords: WTO；; Basic principles; Business principle
The basic principles established in the WTO Agreement are not only the rules of WTO operation, but also the basis of international law for members to perform their obligations, exercise their powers and formulate domestic laws of various countries. These principles include: non-discriminatory treatment principle, free trade principle, fair competition principle, transparency principle and so on. The basic principles of commercial law are to guide and standardize the commercial activities of commercial subjects, including: the principle of maximizing profits, the principle of freely exercising rights according to law, the principle of autonomy of will, the principle of fairness, the principle of safety, etc. On the surface, the basic principles of WTO and commercial law are essentially different, but in fact they have the characteristics of "the same result" This paper attempts to analyze the basic principles of WTO from the perspective of commercial law, so as to reinterpret the basic principles and make them more widely used.
1. The WTO is a multilateral trade organization, aiming at establishing a unified world trade market. As Hockman and Kostyki commented on GATT, "The establishment and success of GATT has become an outstanding example of international cooperation in areas with mercantilism as the criterion in history. The basis of the mercantilist policy is to maintain the largest export and the smallest import to accumulate foreign exchange (such as gold and silver). " 1, that is, GATT/WTO, has greatly promoted countries to implement free trade policies and weaken mercantilism.
The basic principles of WTO are the core of WTO rules and also have the general functions of WTO rules. The basic principles of commercial law are the gist and basic principles of commercial law, which run through the whole commercial law system and norms. It mainly includes two categories: the basic principle of supervisor's subject factor and the basic principle of supervisor's behavior factor. On the surface, the differences between them are obvious: First, the applicable subjects are different. The basic principles of WTO apply to member governments, and the basic principles of commercial law apply to commercial subjects and commercial behaviors. Secondly, the application purposes are different. The basic principle of WTO is to regulate the control rights of member governments in the field of international trade, and the basic principle of commercial law is to ensure the stability and unity of the basic elements of various commercial legal relations, or to ensure the basic conditions for the safety, fairness and convenience of commercial transactions. If a member violates the basic principles of the WTO, another member can file an "infringement lawsuit" and seek the protection of DSB; If a commercial subject violates the basic principles of commercial law, it should bear civil liability and administrative liability, and another commercial subject can seek judicial or administrative relief from national courts, administrative organs, arbitration institutions or international commercial arbitration institutions.
However, through the surface, we can also explore the essential similarities between the basic principles of WTO and commercial law:
First, the production basis is the same. The determination of the basic principles of the WTO has laid the legal foundation of the multilateral trading system of the WTO, promoted the development of trade liberalization among members and promoted the formation of a unified and open market in the world. As mentioned above, the basic principles of WTO are based on the market mechanism, and the basic principles of commercial law also come from the establishment and improvement of market transactions. From the historical development of commercial law, commercial law is accompanied by the emergence and development of commodity economy. The emergence and development of the basic principles of commercial law are still the same.
Second, the specification objects are the same. The basic principles of WTO apply to international trade relations, and the basic principles of commercial law apply to commercial relations. It is generally believed that international trade relations are international business relations. The Relationship between Commercial Law and International Trade Law by Mr. Shi Mitov reveals the identity of international trade relations and international commercial relations. He pointed out: "We have begun to rediscover the internationality of negotiations, and the development circle of international law-domestic law-international law has been formed; The general trend of commercial law in various places is to get rid of the restrictions of domestic laws and develop in the direction of international trade law with universal and international concepts. " four
Third, norms are of the same nature. As a mandatory norm, the basic principles of WTO have the nature of public law. Although the norms of commercial law have both the nature of public law and private law, their basic principles and norms are still mandatory and have the nature of public law.
Fourth, the application process is the same. The basic principles of WTO are applicable to market access, post-entry treatment and conditions in international trade. The basic principles of commercial law also apply to the establishment of commercial subjects, commercial behavior and other links, in other words, the market access and operating conditions and methods of commercial subjects.
Second, the above analysis of the similarity between the basic principles of WTO and commercial law has laid a theoretical foundation for us to study the basic principles of WTO from the perspective of commercial law. But how do the basic principles of WTO embody the basic principles of commercial law?
(1) principle of non-discriminatory treatment. According to the provisions of the Agreement on the Establishment of the World Trade Organization, the purpose of the WTO is: in developing trade and economic relations, we should adhere to the principles of striving to improve people's living standards, ensuring full employment, greatly increasing real income and effective demand, and expanding the trading and services of life and commodities, so as to make full use of world resources to achieve sustainable development and seek environmental protection and maintenance; According to their respective needs and different levels of economic development, strengthen corresponding measures to ensure that developing countries, especially the least developed countries, can obtain economic development that is compatible with the growth needs of trade volume of other countries; Effectively reduce tariffs and other trade barriers and eliminate discriminatory treatment in international trade relations according to mutually beneficial arrangements; Establish a complete, more feasible and permanent multilateral trading system, and consolidate the original GATT, previous efforts of trade liberalization and all the achievements of the Uruguay Round multilateral trade negotiations. From these purposes, we can see that the ultimate goal of WTO is to pursue profit maximization, sustainable economic development and trade liberalization. In order to achieve this goal, we should establish the principle of non-discriminatory treatment, reduce tariffs and eliminate discriminatory treatment, thus reducing the cost of international trade and improving the welfare of the whole society. At the same time, in order to accelerate the economic development of developing countries, special exceptions are provided for them to eliminate their unequal treatment in international trade. The function of the principle of non-discriminatory treatment is consistent with the basic requirements of the principle of "profit maximization" in commercial law. The principle of profit maximization, also known as the profit principle, runs through the idea of making profits and is dominated by the profit principle. Because all legal systems of commercial law embody the most important and fundamental principle of making profits, in a sense, commercial law is a self-interested transaction law. six
(2) the principle of free trade. The principle of free trade refers to the substantial reduction of tariffs and other trade barriers and the expansion of trade in goods and services among members through multilateral trade negotiations. The principle of free trade embodies the idea of establishing WTO and realizing global trade liberalization. In order to achieve the goal of trade liberalization, the rules established in the WTO agreement require members to gradually reduce tariff and non-tariff trade barriers through multilateral negotiations, open service fields, reduce restrictions on service delivery methods, take dispute settlement as a guarantee, take trade remedy measures as a safety valve, and eliminate or mitigate the negative impact of trade liberalization by invoking relevant exception clauses or taking safeguard measures. The principles of "exercising rights freely according to law" and "autonomy of will" in commercial law embody the principle of free trade. The principle of free exercise of rights according to law requires that commercial subjects can freely exercise their rights within the scope permitted by law, and no organ or individual may illegally interfere with the exercise of their rights; The principle of autonomy of will emphasizes that commercial subjects have the right to form their own rights and obligations in private law based on their own will within the scope permitted by law without violating public interests. In specific commercial transactions, the influence of the principle of autonomy of will is mainly manifested as follows: first, the transaction contract can only take effect if the two parties to the transaction reach an agreement freely; Second, the choice of trading methods and counterparties is decided by the parties, and others have no right to interfere; Third, the content of the transaction is freely decided by the parties. Generally speaking, these two principles require commercial subjects to exercise their rights freely within the scope permitted by law.
(3) The principle of fair competition. Fair competition is an important guarantee for the smooth operation of the market economy. The principle of fair competition means that members should avoid taking measures to distort market competition, correct unfair trade practices, and create and maintain an open, fair and just market environment in the fields of trade in goods, services and trade-related intellectual property rights. As we all know, the basic idea of market competition is that competition should be based on "levelplcyingfield". When the competition is too fierce, the government has the right to intervene. The provisions of "1994GATT" on reducing tariffs, eliminating quantitative restrictions, eliminating discriminatory treatment and limiting the operating privileges of state-owned trading enterprises embody the connotation of the principle of fair competition. At the same time, the Anti-dumping Agreement, the Agreement on Subsidies and Countervailing Measures, the Agreement on Safeguard Measures and the Agreement on Agriculture regulate dumping, subsidies and safeguard measures, and maintain fair market competition order in international trade in goods. GATS encourages members to open the service trade market to each other, finally cancels restrictive business practices in service trade through consultation and exchange of information, and prohibits monopoly or monopoly service providers from abusing their monopoly dominant position; Based on the basic principles of national treatment and most-favored-nation treatment, TRIPS requires members to strengthen the effective protection of intellectual property rights and severely crack down on unfair competition behaviors, such as counterfeiting, piracy, exclusive return conditions, compulsory packaging permission, etc.
From the perspective of commercial law, the principle of fair competition is the "fair principle" in commercial law. The principle of fairness can be divided into: the principle of equal transaction, the principle of good faith and the principle of changed circumstances. The principle of equal transaction requires that the trading status of commercial subjects is equal, that is, the rights and obligations are equal. The elimination of discriminatory treatment and restriction of state-owned trade advocated by WTO embody the content of the principle of equal trade. The principle of good faith emphasizes the social responsibility of commercial subjects, that is, both subjects are honest transactions when pursuing profit maximization, and any fraudulent or improper trading behavior must be prohibited. Dumping, subsidies, restrictive business practices, abuse of monopoly position, infringement of intellectual property rights, exclusive return conditions and compulsory blanket licensing are all acts that violate the principle of good faith. The principle of changed circumstances means that after the conclusion of a commercial contract, the parties may request to change the contents of the contract due to changed circumstances or reasons not attributable to the parties, resulting in unexpected situations. The fundamental reason why WTO allows member countries to implement safeguard measures is based on the principle of changed circumstances.
(4) the principle of transparency. In order to ensure the stability and predictability of the international trade environment, WTO requires members to publish the trade measures formulated and implemented and their changes (such as amendments and abolishment), and those that have not been published shall not be implemented; At the same time, the WTO should be informed of these trade measures and their changes. International treaties that affect international trade policies to which members are party are also published and notified. In a word, the principle of transparency mainly includes two contents: announcing trade measures and notifying trade measures. As far as the contents of publication and notification are concerned, it includes not only the legal norms involving members, but also relevant policies, judicial decisions and administrative rulings, as well as relevant measures implemented by members according to law, such as countervailing measures, anti-dumping measures, safeguard measures, technical barriers to trade measures, sanitary and phytosanitary measures, etc. , should fulfill the obligation of publication and notification. In addition, the consultation mechanism established in the WTO agreement also embodies the principle of transparency. The principle of transparency is a safety principle in commercial law. The principle of safety is mainly manifested in the mandatory, open, external and strict liability of commercial transaction conditions. The notification and publication system of transparency principle can enable the governments and business entities of each member to know and master the laws, policies, rules and administrative and judicial relief measures of each member in time, so as to safeguard their legitimate rights and interests and supervise other members to fulfill their obligations stipulated in the WTO Agreement. Only in this way can the transaction safety and efficiency of each member be guaranteed.
Third, although the basic principles of WTO are similar to those of commercial law, their functions are not the basic norms that directly regulate the behavior of two subjects and businesses. Like other rules and systems, the basic principles of the WTO are the product of struggle and mutual compromise between developed and developing countries, that is, the product of seeking common ground while reserving differences. From the formation process, the basic principles of WTO are also based on the "comparative advantage theory" and "game theory" in western economic theory, but the actual situation is much more complicated than envisaged in the theory. In order to safeguard the interests of developing members, the basic principles of WTO provide some exceptions, which provides the possibility of "rent-seeking" for developed countries to seek other means of control. At the same time, these basic principles were formulated under the leadership of western developed countries, as Professor Rnd Mond of Georgetown University Law School said: "WTO rules are not only American in concept, but also American in wording." However, the function of the multilateral trading system of WTO can make up for the deficiency of the basic principles of WTO itself. WTO functions: "First, regard this institution as a code of conduct; The second is to regard it as a market. " The WTO's "trade negotiation" is like a market, through which countries establish and revise the norms that regulate members' behavior, and make mutual commitments of liberalization. There are two basic elements in this regard: reaching an agreement and putting it into practice. According to the basic theory of international trade, starting from a country's national welfare, the theoretical basis of whether to implement trade restrictions depends largely on the country's market influence. A small congress that can't affect world prices is subject to trade restrictions, so a multilateral agreement to reduce trade barriers will make it lose little and gain a lot. ..... trade restrictions imposed by one or more countries will harm the welfare of the whole world. A big country will find itself in a so-called' prisoner' position: trade restrictions should be imposed for its own benefit, but compared with the trade liberalization of all countries, this individual reasonable behavior will reduce the welfare of all countries. Therefore, big countries and small countries are willing to cooperate and not engage in trade restrictions. Trade liberalization is a game that everyone wins. "
In short, the multilateral trading system defined by the WTO has played an important role in promoting the process of economic globalization. A closed and isolated market can only hinder a country's economic development and reduce people's welfare. Although this multilateral system has the defects of incomplete basic principles, it can make up for these defects by formulating new rules through consultation and negotiation, and then improve the trading rules in the global market, so that member governments and commercial entities can gain greater benefits from it.
Precautions:
1.9 10 [Australia] Bernard Hockman Michael Kostki, translated by Liu Ping: The Political Economy of the World Trade System, published in 2000,No. 10; 14; Page 14.
2. Zhao Zhongfu, editor-in-chief: General Introduction to Commercial Law, Renmin University of China Press, 1999, p. 23.
3. Editor-in-Chief Xia Yali; Commercial Law, People's Court Press, China Social Sciences Press, published in 2002, p. 7.
4.[ English] Shi Mitov: Selected Works of International Trade Law, China Encyclopedia Publishing House, 1993, p. 2.
5. Shi Guangsheng, editor-in-chief: A Knowledge Reader on China's Accession to the World Trade Organization (II), People's Publishing House, published in 2002, p. 6.
6. Wang and Cui Wanglai: A New Theory of Commercial Law, Gansu Culture Publishing House, 1997, p. 36.
7. Shi Guangsheng, editor-in-chief: A Knowledge Reader on China's Accession to the World Trade Organization (I), People's Publishing House, published in 2002, p. 33.
8. Yang Jingyu: "China's Entry into WTO and the Construction of Legal System in China", West Lake Law Network, March 28, 2002.