Behind the Multilateral Trading System Legal Indigenization and the WTO in Comparative Perspective.

摘要

This dissertation offers a new perspective from which to view and understand the WTO regime and its participants. The central feature of that new perspective is the concept of legal indigenization. This term generally refers to the process or ideology in which domestic authorities make and implement international or domestic rules in a way appealing to their native features (especially legal traditions), as responses to globalization led by a defective global legal system. The dissertation's core thesis is that the key elements of the legal tradition and culture of a society or political system inevitably and fundamentally influence the ways in which WTO members propose multilateral trading rules and implement their WTO obligations---in ways that have not, until now, been adequately explored and explained in the extensive literature relating to international trade law.;Chapter 1, Review of Literature, comprises two parts. The first part surveys the key academic, professional, and official literature regarding a range of issues that are pertinent to this dissertation. The second part of this chapter offers the main findings of the relevant literature.;Chapter 2, Concept of Legal Indigenization, develops the fundamental concept of this dissertation---legal indigenization. This chapter starts in Section I by reviewing legal fragmentation in international trade before World War II. Section II of this chapter defines the concept of legal indigenization and dissects the concept of legal indigenization further for clarification. The latter part of this section compares this term with other two relevant terms---that is, globalization and localization.;Chapter 3, Legal Indigenization of WTO Law in China, examines four aspects of legal indigenization. Section I focuses on China's participation in international trade rule-making. Section II of this chapter finds that China's participation in the settlement of international trade disputes reflects certain Chinese ideologies that have been challenged by its trading partners. Section III examines key characteristics of the overall Chinese domestic trade legislation, such as the degree of specification of laws at different levels, the use of "temporary" legislation, and a focus on "management." Section IV examines domestic adjudication of trade disputes arising within China. It reviews administrative and judicial regimes relating to trade issues.;Chapter 4, Legal Indigenization of WTO Law in the United States , examines the process of legal indigenization (again, relating to trade law) taking place within the United States. Section I explores several aspects of U.S. proposals submitted to the WTO on both substantive and procedural issues, as well as S&D treatment. It also gives some attention to U.S. Free Trade Agreement (FTA) negotiations. Section II examines international trade disputes involving the United States as respondent. Section III explores domestic legislation on trade within the United States and highlights some of its key characteristics, such as the urge for comprehensive content and codification as well as a subordination of international trade agreements. Section IV examines domestic adjudication of trade issues arising within the United States.;Chapter 5, Legal Indigenization of WTO Law in the European Union , analyses the process of legal indigenization of WTO law within the EU. Section I examines how the EU has participated in international trade rule-making and explains the EU's emphasis on certain topics, such as the constituents of the Dispute Settlement Body, the style of proposals, the importance of sustainable development and S&D treatment, the establishment of principles guiding negotiations of specific rules, and the role of independent experts in the multilateral dispute settlement mechanism. Section II examines international trade disputes involving the EU as respondent. Section III explores the "domestic" trade legislation within the EU. Section IV, after reviewing pertinent administrative agencies and courts involved in adjudication of trade issues within the EU, characterizes such "domestic" adjudication of trade issues as giving special emphasis to the judicial protection of individual rights, to the application of general principles of law, to procedural justice, and to the direct application of WTO agreements.;Chapter 6, Legal Indigenization and the WTO, explores these issues from a more integrated perspective. Its aim is to explain how, at a more multilateral level, the WTO provisions have been indigenized by each of these three individual members' legal tradition and culture. Section I reviews how existing WTO provisions or practices were influenced by the legal tradition and culture of certain members. Section II focuses on legal indigenization in the context of further negotiations. This section examines competing (indigenized) views from three members---China, the United States, and the EU---on S&D treatment, environmental issues, fisheries subsidies, and reform of the DSB. Section III addresses on the general implications of legal indigenization for the WTO both in the short term and in the long run. (Abstract shortened by UMI.).