Chapter VIII
Strengthening of the Multilateral System
Art. 23 of the DSU deals, as indicated by its title, with the “Strengthening of the Multilateral System”. Its overall design is to prevent WTO Members from unilaterally resolving their disputes in respect of WTO rights and obligations. It does so by obligating Members to follow the multilateral rules and procedures of the DSU. Art. 23 of the DSU reads:
“Strengthening of the Multilateral System
1. When Members seek the redress of a violation of obligations or other nullification or impairment of benefits under the covered agreements or an impediment to the attainment of any objective of the covered agreements, they shall have recourse to, and abide by, the rules and procedures of this Understanding.
2. In such cases, Members shall:
(a) not make a determination to the effect that a violation has occurred, that benefits have been nullified or impaired or that the attainment of any objective of the covered agreements has been impeded, except through recourse to dispute settlement in accordance with the rules and procedures of this Understanding, and shall make any such determination consistent with the findings contained in the panel or Appellate Body report adopted by the DSB or an arbitration award rendered under this Understanding;
(b) follow the procedures set forth in Article 21 to determine the reasonable period of time for the Member concerned to implement the recommendations and rulings; and
(c) follow the procedures set forth in Article 22 to determine the level of suspension of concessions or other obligations and obtain DSB authorization in accordance with those procedures before suspending concessions or other obligations under the covered agreements in response to the failure of the Member concerned to implement the recommendations and rulings within that reasonable period of time.”
In this section, to end this book, the author means to take a precise overlook on the nature of obligations under Art. 23 of the DSU as a whole by referring to two panels’ reports in part. In this respect, the Panel in US-Sections 301-310 (DS152) rules: 1
“On this basis [provision of Article 23], we conclude as follows:
(a)It is for the WTO through the DSU process - not for an individual WTO Member - to determine that a WTO inconsistency has occurred (Article 23.2(a)).
(b)It is for the WTO or both of the disputing parties, through the procedures set forth in Article 21 - not for an individual WTO Member - to determine the reasonable period of time for the Member concerned to implement DSB recommendations and rulings (Article 23.2(b)).
(c)It is for the WTO through the procedures set forth in Article 22 - not for an individual WTO Member - to determine, in the event of disagreement, the level of suspension of concessions or other obligations that can be imposed as a result of a WTO inconsistency, as well as to grant authorization for the actual implementation of these suspensions.
Article 23.2 clearly, thus, prohibits specific instances of unilateral conduct by WTO Members when they seek redress for WTO inconsistencies in any given dispute. This is, in our view, the first type of obligations covered under Article 23.
Article 23.1 is not concerned only with specific instances of violation. It prescribes a general duty of a dual nature. First, it imposes on all Members to ‘have recourse to’ the multilateral process set out in the DSU when they seek the redress of a WTO inconsistency. In these circumstances, Members have to have recourse to the DSU dispute settlement system to the exclusion of any other system, in particular a system of unilateral enforcement of WTO rights and obligations. This, what one could call ‘exclusive dispute resolution clause’, is an important new element of Members' rights and obligations under the DSU. Second, Article 23.1 also prescribes that Members, when they have recourse to the dispute settlement system in the DSU, have to ‘abide by’ the rules and procedures set out in the DSU. This second obligation under Article 23.1 is of a confirmatory nature: when having recourse to the DSU Members must abide by all DSU rules and procedures.
Turning to the second paragraph under Article 23, Article 23.2 - which, on its face, addresses conduct in specific disputes - starts with the words ‘[i]n such cases’. It is, thus, explicitly linked to, and has to be read together with and subject to, Article 23.1.
Indeed, two of the three prohibitions mentioned in Article 23.2 - Article 23.2(b) and (c) - are but egregious examples of conduct that contradicts the rules and procedures of the DSU which, under the obligation in Article 23.1 to ‘abide by the rules and procedures’ of the DSU, Members are obligated to follow. These rules and procedures clearly cover much more than the ones specifically mentioned in Article 23.2. There is a great deal more State conduct which can violate the general obligation in Article 23.1 to have recourse to, and abide by, the rules and procedures of the DSU than the instances especially singled out in Article 23.2.
Article 23 interdicts, thus, more than action in specific disputes, it also provides discipline for the general process WTO Members must follow when seeking redress of WTO inconsistencies. A violation of the explicit provisions of Article 23 can, therefore, be of two different kinds. It can be caused
(a)by an ad hoc, specific action in a given dispute, or
(b)by measures of general applicability, e.g. legislation or regulations, providing for a certain process to be followed which does not, say, include recourse to the DSU dispute settlement system or abide by the rules and procedures of the DSU.”
Furthermore, as to Art. 23 of the DSU, the Panel in US-Import Measures (DS165) confirms the ruling developed in US-Sections 301-310, and states: 2
“The Panel believes that the adopted Panel Report on United States - Sections 301-310 of the Trade Act of 1974 (‘US - Section 301’) has confirmed the crucial importance that WTO Members place on the dispute settlement system of the WTO, as the exclusive means to redress any violations of any provisions of the WTO Agreement. This fundamental principle is embedded in Article 23 of the DSU: …
An important reason why Article 23 of the DSU must be interpreted with a view to prohibiting any form of unilateral action is because such unilateral actions threaten the stability and predictability of the multilateral trade system, a necessary component for "market conditions conducive to individual economic activity in national and global markets" which, in themselves, constitute a fundamental goal of the WTO. Unilateral actions are, therefore, contrary to the essence of the multilateral trade system of the WTO. As stated in the Panel Report on US - Section 301:
‘7.75 Providing security and predictability to the multilateral trading system is another central object and purpose of the system which could be instrumental to achieving the broad objectives of the Preamble. Of all WTO disciplines, the DSU is one of the most important instruments to protect the security and predictability of the multilateral trading system and through it that of the market-place and its different operators. DSU provisions must, thus, be interpreted in the light of this object and purpose and in a manner which would most effectively enhance it.’
The structure of Article 23 is that the first paragraph states the general prohibition or general obligation, i.e. when Members seek the redress of a WTO violation, they shall do so only through the DSU. This is a general obligation. Any attempt to seek ‘redress’ can take place only in the institutional framework of the WTO and pursuant to the rules and procedures of the DSU.
The prohibition against unilateral redress in the WTO sectors is more directly provided for in the second paragraph of Article 23. From the ordinary meaning of the terms used in the chapeau of Article 23.2 (‘in such cases, Members shall’), it is also clear that the second paragraph of Article 23 is ‘explicitly linked to, and has to be read together with and subject to, Article 23.1’. That is to say, the specific prohibitions of paragraph 2 of Article 23 have to be understood in the context of the first paragraph, i.e. when such action is performed by a WTO Member with a view to redressing a WTO violation.
We also agree with the US - Section 301 Panel Report that Article 23.2 contains ‘egregious examples of conduct that contradict the rules of the DSU’ and which constitute more specific forms of unilateral actions, otherwise generally prohibited by Article 23.1 of the DSU.
‘[t]hese rules and procedures [Article 23.1] clearly cover much more than the ones specifically mentioned in Article 23.2. There is a great deal more State conduct which can violate the general obligation in Article 23.1 to have recourse to, and abide by, the rules and procedures of the DSU than the instances especially singled out in Article 23.2.’
The same Panel identified a few examples of such instances where the DSU could be violated contrary to the provisions of Article 23. Each time a Member seeking the redress of a WTO violation is not abiding by a rule of the DSU, it thus violates Article 23.1 of the DSU.
In order to verify whether individual provisions of Article 23.2 have been infringed (keeping in mind that the obligation to also observe other DSU provisions can be brought under the umbrella of Article 23.1), we must first determine whether the measure at issue comes under the coverage of Article 23.1. In other words, we need to determine whether Article 23 is applicable to the dispute before addressing the specific violations envisaged in the second paragraph of Article 23 of the DSU or elsewhere in the DSU.
Article 23.1 of the DSU provides that the criterion for determining whether Article 23 is applicable is whether the Member that imposed the measure was ‘seeking the redress of’ a WTO violation. …
The term ‘seeking’ or ‘to seek’ is defined in the Webster New Encyclopedic Dictionary as: ‘to resort to, … to make an attempt, try’. This term would therefore cover situations where an effort is made to redress WTO violations (whether perceived or WTO determined violations). The term ‘to redress’ is defined in the New Shorter Oxford English Dictionary as ‘repair (an action); atone for (a misdeed); remedy or remove; to set right or rectify (injury, a wrong, a grievance etc.); obtaining reparation or compensation’. The term ‘redress’ is defined in the New Shorter Oxford English Dictionary as: ‘reparation of or compensation for a wrong or consequent loss; remedy for or relief from some trouble; correction or reformation of something wrong’. The term 'redress' implies, therefore, a reaction by a Member against another Member, because of a perceived (or WTO determined) WTO violation, with a view to remedying the situation.
Article 23.1 of the DSU prescribes that when a WTO Member wants to take any remedial action in response to what it views as a WTO violation, it is obligated to have recourse to and abide by the DSU rules and procedures. In case of a grievance on a WTO matter, the WTO dispute settlement mechanism is the only means available to WTO Members to obtain relief, and only the remedial actions envisaged in the WTO system can be used by WTO Members. The remedial actions relate to restoring the balance of rights and obligations which form the basis of the WTO Agreement, and include the removal of the inconsistent measure, the possibility of (temporary) compensation and, in last resort, the (temporary) suspension of concessions or other obligations authorised by the DSB (Articles 3.7 and 22.1 of the DSU). The latter remedy is essentially retaliatory in nature.”
【NOTE】:
1. See, in detail, WT/DS152/R/7.38-7.46.
2. See, in detail, WT/DS165/R/6.13-6.23.
List of References
1 Sources of Legal Texts: http://www.wto.org; WTO Secretariat: The WTO Dispute Settlement Procedures (Second Edition), CAMBRIDGE UNIVERSITY PRESS, 2001.
白城市企业国有资产有偿转让暂行管理办法
吉林省白城市人民政府
白城市企业国有资产有偿转让暂行管理办法
一九九七年四月十日
第一条 为了加强企业国有资产有偿转让的管理和监督，防止国有资产流失，根据《企业法》、《国有企业财产监督管理条例》和《全民所有制工业企业转换经营机制条例》等有关规定，结合我市实际，制定本办法。
第二条 本办法适用于白城市市属企业（含实行企业化管理的事业单位）国有资产的有偿转让行为。
第三条 本办法所称有偿转让企业国有资产是指将国有资产所有权合法转移的交易行为。
第四条 有偿转让一般性固定资产的单台（套）设备、重要建筑物及企业的部分车间、分厂，由同级国有资产行政主管部门审核批准；有偿转让企业整体资产，由同级国有资产行政主管部门会同有关部门审核，报同级人民政府批准。
第五条 企业国有资产的有偿转让，可以采取协议、招标、拍卖、承担企业对等债务等形式以及国家允许的其他方式。
第六条 有偿转让企业国有资产的一般程序：
（一）按本办法规定报经审核和批准后，进行资产清查；
（二）产权界定，资产评估；
（三）确定底价；
（四）签定成交合同；
（五）办理有关产权转移手续。
第七条 有偿转让国有资产，须按《国有资产评估管理办法》及其《实施细则》的规定，到同级国有资产管理部门申请立项后，选择具有国务院或省政府国有资产管理行政主管部门颁发的国有资产评估资格证书的评估机构进行评估。
第八条 有偿转让企业国有资产，须以同级国有资产管理部门签发的《资产评估结果确认通知书》确定的评估价值为依据，并结合市场情况，确定有偿转让底价，并报国有资产管理部门确认。成交价低于评估价90％以下（含90％）的，须另报国有资产管理部门批准。
第九条 国有资产产权交易须进入市政府指定的交易市场进行。
第十条 成交双方在转让机构的主持下，按国家有关规定签定《国有产权转让合同》，由转让机构签署意见后，按规定办理国有资产产权登记、工商登记和财务、税务、土地、房产等有关变更手续。
第十一条 国有资产行政主管部门调剂企业中的闲置国有资产，须通过产权交易市场，以有偿转让、参股等形式调剂利用，经调剂利用的资产收益归原使用（占用）国有资产单位所有。
第十二条 凡自然人、法人或者其他组织，可按照本办法的有关规定购买企业国有资产。本企业职工在同等条件下享有优先购买权。
第十三条 对于企业未经批准擅自处置企业的关键设备、成套设备或重要建筑物，造成企业财产流失的，或者未按规定进行清产核资、产权登记、资产评估以及不如实填报报表，隐瞒真实情况等，按有关法律、法规和规章规定，追究主管领导和直接责任人员行政责任、经济责任，触犯刑律的移交司法机关处理。
第十四条 本办法解释，按《白城市人民政府制定规范性文件暂行办法》规定的权限进行解释。
第十五条 本行政区域内的其他企业可参照本办法执行。
第十六条 本办法自发布之日起施行。
