SOUTHWEST UNIVERSITY OF POLITICAL SCIENCE AND LAW
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Final Examination--- 2007 —2008 学年第 一 学期
Cover Sheet
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Course Title:
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Case Study on International Trade Law
(Former Course Title: International Commercial Law)
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Course No. and Section:
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Professor:
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Wang Heng
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Time Allowed:
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24 Hours
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Materials Allowed:
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Open Book
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Please indicate whether students are limited to a specific number of pages. Any other specific instructions can be indicated here.
Limit of 3000 words for entire exam. See additional instructions on first sheet of exam.
Examinational Rules. Please READ Carefully.
1. There are three cases for you to analyze and some relevant questions to answer in this examination. The relative value of each question is stated in each case.
2. With the exceptions stated in these instructions, this is an open-book examination. Thus, you may use any materials, but there is no reason for you to consult anything other than the materials we used in class.
3. You may work on this examination for any consecutive 24-hour period between June 28 and June 29.
4. You may NOT discuss or have communication about the examination or your answers with any other person once you have begun the examination until the end of the exam period. This prohibition includes phone conversations, face-to-face conversations, e-mails, eye winks, head nodding, or any other form of communication. For instance, asking the question “Have you finished this exam yet?” or answering such a question would be considered a violation of this Rule. This prohibition covers communications with all persons, whether or not they are students at the Law School. I will treat violation of this Rule as cheating.
5. You need not retain or submit any notes that are not part of your final answer. You will, of course, only receive credit for what you submit at the end of the examination.
6. WORD LIMIT: THE ANSWERS TO YOUR EXAMINATION MAY NOT EXCEED A TOTAL OF 3000 WORDS. THIS IS THE TOTAL NUMBER OF WORDS FOR THE ENTIRE EXAM, NOT FOR EACH QUESTION. I WILL DEDUCT SUBSTANTIAL POINTS FROM YOUR ANSWER IF YOU EXCEED THE 3000 WORD LIMIT. You should be able to complete your exam with fewer words and should not feel compelled to reach the limit.
Good luck!
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案例分析题
请阅读以下案例，并回答问题。
I
Canada — Certain Measures Concerning Periodicals
Facts：
This dispute concerns three measures related to the sale of imported periodicals in Canada. The first measure is Tariff Code 9958, found in Schedule VIII of the Canadian Customs Tariff. Tariff Code 9958 was put into effect by Article 114 of the Canadian Customs Tariff, which provides that "the importation into Canada of any goods enumerated or referred to in Schedule VIII is prohibited." The prohibition applies to any periodical that is a "special edition, including a split-run or regional edition, that contains an advertisement that was primarily directed to a market in Canada and that does not appear in identical form in all editions of that issue of the periodical that were distributed in the periodical's country of origin." In addition, Tariff Code 9958 applies to imported periodicals in which more than 5 percent of the advertising content consists of advertisements directed at the Canadian market.
The second measure is Part V.I (Tax on Split-Run Periodicals) of the Excise Tax Act, which calls for the imposition, in respect of each split-run edition of a periodical, of a tax equal to 80 per cent of the value of all the advertisements contained in the split-run edition. This provision defines "split-run edition" as an edition of an issue of a periodical: (1) that is distributed in Canada; (2) in which more than 20 per cent of the editorial material is the same or substantially the same as editorial material that appears in one or more excluded editions of one or more issues of one or more periodicals; and (3) contains an advertisement that does not appear in identical form in all of the excluded editions.
The last measure relates to postal rates charged by the Canadian Post Corporation ("Canada Post"), a Crown Corporation controlled by the Canadian Government. Canada Post charges three different postal rates for publications: "Funded" publications rates, and commercial "Canadian" and commercial "International" publications rates. "Funded" rates are rates that are subsidized by the Canadian Government; they are available to Canadian-owned and -controlled paid circulation publications that are published and printed in Canada and meet certain editorial, advertising and other requirements. Commercial "Canadian" rates are commercial rates available to Canadian publications, and commercial "International" rates apply to all foreign publications mailed in Canada. Certain additional discounts are also available to Canadian periodicals but not to imports. The "funded" rate program is administered by the Department of Canadian Heritage, which provides funds to Canada Post so that Canada Post can offer the lower rates.
The United States claimed that Tariff Code 9958 is inconsistent with GATT Article XI; that Part V.I of the Excise Tax Act is inconsistent with GATT Article III:2, or in the alternative, GATT Article III:4; and that the application of lower postal rates to domestically-produced periodicals is inconsistent with GATT Article III:4, and is not a domestic subsidy justified under GATT Article III:8(b).
Questions:
1. Canada argues that the Excise Tax Act is a measure regulating trade in services, namely advertising services, and therefore falls exclusively under the GATS. Does Canada’s argument make sense?
2. Is the Excise Tax Act inconsistent with GATT Article Ⅲ:2, second sentence?
3. Is Canada’s postal rate scheme justified under GATT Article Ⅲ:8(b)?
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II
Mexico — Measures Affecting Telecommunications Services
Facts:
This dispute concerns provisions in Mexico’s domestic laws and regulations that govern the supply of telecommunication services. The relevant laws and regulations at issue are as follows. Mexico’s Federal Telecommunications Law provides the legal framework for the regulation of telecommunications activities in Mexico and establishes a Secretariat of Communications and Transportation (the “Secretariat”). This agency is authorized, inter alia, to grant concessions required for "installing, operating or exploiting public telecommunications networks." In addition, special rules apply to "commercial agencies," which are entities that, "without being the owner or possessor of any transmission media, provide telecommunication services to third parties using the capacity of a public telecommunications network concessionaire," in other words, using capacity leased from companies that own the networks.
The Federal Telecommunications Commission, an agency of the Secretariat, issues the International Long Distance Rules ("ILD Rules"). These Rules serve "to regulate the provision of international long-distance service and establish the terms to be included in agreements for the interconnection of public telecommunications networks with foreign networks." Under these rules, direct interconnection with foreign public telecommunications networks in order to carry international traffic may only be done by "international gateway operators." These are long-distance service licensees authorized by the Commission "to operate a switching exchange as an international gateway," that is, the exchange is "interconnected to international incoming and outgoing circuits authorized by the Commission to carry international traffic." Traffic is "switched" when it is "carried by means of a temporary connection between two or more circuits between two or more users, allowing the users the full and exclusive use of the connection until it is released." Each international gateway operator must apply the same "uniform settlement rate" to every long-distance call to or from a given country, regardless of which operator originates or terminates the call. These operators must also apply the principle of "proportionate return," under which "incoming calls (or associated revenues) from a foreign country must be distributed among international gateway operators in proportion to each international gateway operator's market share in outgoing calls to that country."
In addition, the Federal Law of Economic Competition ("FLEC") protects "the process of competition and free market participation, through the prevention and elimination of monopolies, monopolistic practices and other restrictions that deter the efficient operation of the market for goods and services." It also sets out parameters for determining the "relevant market" and whether an economic agent has "substantial power."
In terms of the Mexican telecommunications market structure, prior to 1997 long-distance and international telecommunications services in Mexico were supplied on a monopoly basis by Teléfonos de México, S.A. de C.V. ("Telmex"). Since then, Mexico has authorized multiple Mexican companies to provide international services over their networks. Under Mexican law, the largest carrier of outgoing calls to a particular international market has the exclusive right to negotiate the terms and conditions for the "termination" of international calls in Mexico ("termination" refers to delivering a call which originates on one network to its destination on another network). These terms and conditions then apply to any company carrying calls between the international market and Mexico. At present, Telmex is the largest carrier of outgoing calls for all markets.
Currently, there are 27 carriers ("concessionaires") in Mexico that are allowed to provide long distance services, including two U.S.-affiliated carriers -- Avantel (WorldCom) and Alestra (AT&T). Of these, 11 are authorized to operate "international gateways," allowing them to carry incoming and outgoing international calls. Private cross-border networks must lease capacity from a concessionaire. Any cross-border traffic carried through dedicated infrastructure that forms part of a private network must be originated and terminated within the same private network.
Under the GATS, Mexico has undertaken specific commitments for telecommunications services under Articles XVI (Market Access), XVII (National Treatment) and XVIII (Additional Commitments). The additional commitments consist of undertakings known as the "Reference Paper," which contain "a set of pro-competitive regulatory principles applicable to the telecommunications sector."
Questions:
1. According to the related rules of WTO, has Mexico violated its commitments under Reference Paper Sections 2.1 and 2.2-“Cost-Oriented Rates”?
2. Is Mexico’s failure to maintain measures to prevent Telmex from engaging in anti-competitive practices inconsistent with Section 1.1 of the Reference Paper?
3. Is Mexico’s failure to ensure U.S. basic telecommunications suppliers reasonable and non-discriminatory access to, and use of, public telecommunications networks and services inconsistent with Sections 5(a) and (b) of the GATS on telecommunications?
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III
United States — Measures Affecting the Cross-Border Supply of Gambling and Betting Services
Facts:
This dispute concerns various U.S. measures relating to gambling and betting services. Before the Panel, Antigua claimed that certain restrictions imposed by the United States through federal and state laws resulted in a "total prohibition" on the cross-border supply of gambling and betting services from Antigua. Antigua contended that such a "total prohibition" was contrary to obligations of the United States under the General Agreement on Trade in Services (the "GATS"). In particular, Antigua asserted that the GATS Schedule of the United States includes specific commitments on gambling and betting services. Antigua argued that, because the United States made full market access and national treatment commitments (that is, inscribed "None" in the relevant columns of its GATS Schedule), the United States, in maintaining the measures at issue, is acting inconsistently with its obligations under its GATS Schedule, as well as under Articles VI, XI, XVI, and XVII of the GATS.
On 17 October 2003, after receiving Antigua's first written submission to the Panel and before filing its own first written submission, the United States requested the Panel to make certain preliminary rulings, including a ruling that Antigua had failed to make a prima facie case that specific United States measures are inconsistent with the GATS. In particular, the United States argued that a "total prohibition" on the cross-border supply of gambling and betting services could not constitute a "measure". According to the United States, by challenging such an alleged "total prohibition", rather than the laws and regulations underlying that prohibition, Antigua had failed to satisfy its burden as the complaining party to "identify specific measures that are the subject of [its] prima facie case." The Panel denied the United States' request on the ground that it was premature, given that Antigua had "two sets of written submissions and two panel hearings to convince the Panel that it [had] established a prima facie case."
In its oral and written submissions to the Panel, the United States maintained its objections to the Panel's consideration of Antigua's claims on the basis of an alleged "total prohibition", reiterating its argument that Antigua had failed to establish a prima facie case. In the Panel Report, circulated to Members of the World Trade Organization (the "WTO") on 10 November 2004, the Panel addressed this argument by "identifying the measures that the Panel [would] consider in determining whether the specific provisions of the GATS that Antigua [had] invoked have been violated." The Panel determined, first, that Antigua was not entitled to rely on the alleged "total prohibition" as a "measure" in and of itself. The Panel then determined that the several laws of the United States had been "sufficiently identified [by Antigua] so as to warrant a substantive examination by the Panel"
On 7 January 2005, the United States notified the DSB of its intention to appeal certain issues of law covered in the Panel Report and certain legal interpretations developed by the Panel, pursuant to paragraph 4 of Article 16 of the DSU, and filed a Notice of Appeal pursuant to Rule 20 of the Working Procedures for Appellate Review (the "Working Procedures"). On 19 January 2005, Antigua also notified the DSB of its intention to appeal certain issues of law covered in the Panel Report and certain legal interpretations developed by the Panel, pursuant to paragraph 4 of Article 16 of the DSU, and filed a Notice of Other Appeal pursuant to Rule 23(1) of the Working Procedures.
Questions:
1. In this case, Antigua asserted that the US violated its obligations of national treatment. Is there any difference between the national treatment in GATS and that in GATT? If a WTO member is challenged to commit a violation of national treatment of GATS, which factors should be considered?
2. On appeal, the United States argued that Antigua failed to establish a prima facie case of inconsistency with GATS Article XVI in respect of the three federal and eight state laws that the Panel determined were the measures that it should examine. What are the requirements of establishing a prima facie case? Please give your opinions.
3. The Panel concluded that sub-sector 10.D of the U.S. GATS Schedule "includes specific commitments on gambling and betting services." The United States appealed this finding, arguing that it had excluded gambling and betting services from the scope of its specific commitments under sub-sector 10.D by indicating the phrase "except sporting" in its Schedule for that sub-sector. Moreover, the United States argued that the Panel erred in its "identification and analysis of the context in which the terms of sub-sector 10.D must be interpreted." Finally, in the alternative, the United States argued that the Panel should have found that gambling and betting services fall under sub-sector 10.E, titled "Other," where the United States made no specific commitments. The key issue of this appeal is the interpretation of commitments. Is there any rule for the Appellate Body to interpret relevant special commitments? Please describe the factors considered in the process of the interpretation.
END OF EXAM
