從稀土案看上訴機構建立判例糾錯制度的必要性與可行性

On the Necessity and Feasibility of Self-correction of the Appellate Body’s Previous Decisions from the Perspective of China-Rare Earths Case

WTO的爭端解決工作近年來方興未艾，爭端解決過程中逐步確立了英美法系中的遵循先例原則。但由於上訴時間緊迫，上訴機構在個案中確定的一些條約解釋有可能未能充分考慮各個方面的因素，當新的案件提起，先前的解釋是否仍然適用，還是應該考慮更多的因素加以調整？WTO是否允許上訴機構和專家組背離先例？如果允許背離，在什麼條件下可以背離？稀土案中可否引用GATT第20條為違反議定書承諾進行抗辯？這個曾在原材料案中被裁定為不可引用的解釋是否周全、可否修改？更重要地，WTO爭端解決機制是否應建立一個糾錯的機制，允許司法解釋的整體有自我矯正的功能？這是稀土案中引人反思的問題。本文作者研究WTO的判案實踐，認為WTO建立判例糾錯制度是合理可行且必要的，對更好地完成條約解釋的責任有積極的意義。

The WTO dispute settlement has been frequently used by its Members in recent years. Over the 20 years of rich practice, the Appellate Body established a de facto stare decisis rule for the WTO similar to that which exists in common law system. Given the time constraint that the Appellate Body is facing, it cannot avoid a situation that there is no sufficient time available for the Appellate Body to consider thoroughly all the elements for the interpretation of a provision, including arguments or evidence of law that have not been raised even by the parties nor by the panel. Consequently, in a later dispute concerning the same issue, other relevant elements may be raised by parties in the proceedings. Should Panels and the Appellate Body derogate from its previous interpretation set out in a precedent? If so, under what conditions? The issue of whether GATT Article 20 can be invoked by China to justify a violation of paragraph 11. 3 of its accession protocol has been decided in China-Raw Materials dispute, can this issue be reopened and assessed again in China-Rare Earths case? Is the precedent in the previous case a good one that reasonably addressed all the relevant legitimate considerations for interpretation? If not, can the Appellate Body reassess the interpretative issue and come out with a new interpretation by making corrections? This has happened in China-Rare Earths case, although in a limited manner, due to the refraint of China’s appeal. The author explored these two cases in the light of the relevant WTO precedents as well as the common law thinking. This article concludes that it is both necessary and technically feasible for the Appellate Body to correct certain interpretation made in previous cases. It will contribute to further improvement of the WTO dispute settlement system and give more confidences to Members that their rights and obligations under the treaty will be well preserved by such a system with a build-in self-correction mechanism.