成立WTO爭端解決小組之請求與「先決異議」

A Study on Preliminary Objection to the Request for Establishment of WTO Panels

The concept of preliminary objection means that the disputing parties in a case claim that international court or arbitral tribunal does not have jurisdiction to the dispute. Article 6.2 of the DSU (Understanding on the Rules and Procedures Governing the Settlement of Dispute) sets out the formal requirements of a request for the establishment of a panel. First, the request shall be in writing. Second, it shall indicate whether consultations were held. Third, it shall identify the specific measures at issue. Fourth, it shall provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly. If one of the requirements is not stated in the panel request or the requirements are not stated precisely, respondents can challenge them by way of preliminary objection in order to have all or part of a case dismissed. Since the issues raised in the preliminary objection mainly involve the third and the fourth requirement, this article intends to only examine these two requirements. It proceeds to categorize the various subject-matter of preliminary objection to the panel and appellate body request. By analyzing the categorization, the approaches which have been applied and evolved by the WTO panels and the Appellate Body in dealing with such objections can be clearly understood.