Browsing by Author "Chen, Tsai-fang"

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RISK ASSESSMENT REVIEW UNDER THE WTO DISPUTES SETTLEMENT SYSTEM
(2019-09-01)
Chen, Tsai-fang
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科技法律學院
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College of Law
Regulations inspecting and restricting imported goods are important tools for any modern nation to protect the health of its citizens and of the living organisms within its borders. In order to prevent nations from using these tools to accomplish protectionist goals, and to further minimize unnecessary barriers to trade, the World Trade Organization (hereinafter "WTO") requires such measures to be based on a risk assessment conforming to scientific principles. This paper focuses on the review standard adopted by WTO adjudicating bodies when reviewing the consistency with such risk assessment with the Agreement on the Application of Sanitary and Phytosanitary Measures. The standard of review employed by earlier WTO panels in their reviewing of Member's risk assessment is, or is at least very close to, a de novo one. In order to correct previous trends, the Appellate Body in the Hormone Suspension case indicated that a proper standard of review requires the panel scrutinizing such a measure not to conduct its own risk assessment nor to make its own scientific judgment, but simply to ensure that the assessment was conducted according to the requirements of the relevant legal provisions. It raises hope towards a deferential standard of review regarding risk assessment. However, the Appellate Body Report of Australia - Apples, upon close examination, seems to upset such hope for meaningful deference through standards of review in such WTO dispute settlement proceedings. This is because the intensity of review, that is, the level of rigidity for the panel's scrutiny adopted by the Appellate Body, could not actually deliver the deference warranted in this situation. This standard of review seems to be heavily influenced by the practice in trade remedy cases, despite the significant difference between them. A reform in this regard is warranted.
THE IMPLICATIONS OF ACTA FOR ASIA'S PLURILATERAL TRADE AGREEMENTS REGARDING THE ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
(2013-09-01)
Chen, Tsai-fang
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科技法律研究所
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Institute of Technology Law
The IP rules being negotiated in international forums can be divided into substantive and procedural perspectives. The procedural perspective of IP protection is an equally vital element in the struggle to seek an optimal level of IPR protection. The forum of IF enforcement advancement began from unilateral/bilateral channel. The TRIPS is the first and only meaningful multilateral forum that established stringent IF enforcement standards. The further negotiations on the implementation of IPRs are surprisingly difficult, as the history of ACTA shows. Since the bilateral process through FTAs after the TRIPS have been slow for the IF demandeurs, the ACTA is a new attempt to multiply the process through bilateral means. The goals failed, but the true lesson for the demandeurs is that trade incentives other than IF enforcement are necessary for this strategy to work in plurilateral settings.
TO JUDGE THE "SELF-JUDGING" SECURITY EXCEPTION UNDER THE GATT 1994-A SYSTEMATIC APPROACH
(2017-09-01)
Chen, Tsai-fang
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交大名義發表
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National Chiao Tung University
In April 2017, the Trump Administration initiated an investigation with regard to the effects of steel imports on United States (hereinafter "U.S.") national security under Section 232 of the Trade Expansion Act. If the investigation does lead to a trade restrictive measure, the U.S. is likely to invoke national security as one of the justification for the potential violation of the nation's obligations under the World Trade Organization (hereinafter "WTO"). Article XXI(b)(iii) of the General Agreement on Tariffs and Trade (hereinafter "GATT") provides that "Nothing in this Agreement shall be construed... to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests... taken in time of war or other emergency in international relations...." This provision has not been formerly adjudicated under the WTO, and how the WTO adjudicating bodies should review an invocation of this Article is highly controversial. The national security exception under the GATT has often been considered "self-judging". Many writers have provided analysis on the interpretation of the Article XXI and its practice with regard to the extent of the "self-judging" clause. It seems, however, that one critical issue in resolving this dispute the standard of judicial review developed by the WTO adjudicating bodies has not been adequately addressed by scholarly attention. This article discusses how a panel should review the invocation of a national security exception from the perspectives of the standard of review analysis developed under the WTO jurisprudence. This paper argues that based on the jurisprudence, the term "self-judging" is a misleading one. The analytical framework of the standard of review should be utilized to judge the "self-judging" invocation of the clause. Under the framework, the Member invoking the national security under Article XXI(b)(iii) is entitled to a high level of deference, but this deference is not absolute. The necessity consideration is still subject to panel review consisting of both formal and substantive aspect. In addition, the timing element is subject to full panel review. There is, however, still the need for the WTO adjudicating bodies to further develop the margin of discretion with regard to the national security exceptions. This paper suggests that a standard of abuse of discretion should be adopted for the review of the necessity consideration under ArticleXXI (b)(iii). The legal provisions of Section 232 do not contain sufficient procedural safeguard to meet the requirements of panel review under Article XXI(b)(iii) of GATT. It is therefore important for the United States to ensure the conditions of the security exception under the GATT is satisfied before an action pursuant to Section 232 is adopted.