|
Non-violation nullification of benefits (NVNB) claims are a species of dispute settlement in the World Trade Organization arising under World Trade Organisation multilateral and bilateral trade agreements. NVNB claims are controversial in that they are widely perceived to promote the social vices of unpredictability and uncertainty in international trade law.〔Faunce TA, Neville W and Anton Wasson A. Non Violation Nullification of Benefit Claims: Opportunities and Dilemmas in a Rule-Based WTO Dispute Settlement System in Bray M (ed) Ten Years of WTO Dispute Settlement: Australian Perspectives. Office of Trade Negotiations of the Department of Foreign Affairs and Trade.Commonwealth of Australia. 123-140〕 Other commentators have described NVNB claims as potentially inserting corporate competition policy into the World Trade Organisation Dispute Settlement Understanding (DSU).〔F Roessler, 'Should Principles of Competition Policy be Incorporated into WTO Law Through Non-Violation Complaints?' (1999) 3 Journal of International Economic Law 413.〕 == Location of NVNB claims == NVNB claims are directly referred to in Article 26 of the World Trade Organisation DSU, Article XXIII of the General Agreement on Tariffs and Trade 1994 (GATT 1994) Article XXIII of the General Agreement on Trade in Services (GATS) and Article 64 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).〔The TRIPS Agreement is Annex 1C of the 1994 Marrakesh Agreement Establishing the World Trade Organization. The DSU is more formally styled, in Annex 2 to the same Agreement, as the Understanding on Rules and Procedures Governing the Settlement of Disputes. All relevant texts are published by the WTO (on line and in hard-copy with Cambridge University Press 1994) as The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations.〕 In GATT jurisprudence, NVNB complaints appear to have originally been designed to counter the capacity of countries to avoid relatively simple obligations and specific tariff concessions in multilateral trade agreements, by making ambiguous domestic regulatory arrangements.〔Communication from Canada to WTO, Non-Violation Nullification or Impairment Under the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) IP/C/W/127 10 Feb 1999.〕 NVNB claims provisions also exist in many bilateral trade agreements. In the Australia-United States Free Trade Agreement(AUSFTA) article 21.2 (c) provides an NVNB claim: The Australian academic Thomas Alured Faunce has argued that by expressly applying Annex 2C on pharmaceuticals, the NVNB claim in article 21.2(c) of the AUSFTA may have been responsible for lobbying by United States negotiators around the constructive ambiguity of reward of innovation (through the Medicines Working Group established by article 2C of the AUSFTA) that influenced Australian legislative changes impacting on reference pricing under the Pharmaceutical Benefits Scheme. He maintains that such pressure from NVNB claims is most likely to arise from 'behind doors' lobbying using threats of cross-retaliation (threatening a trade dispute in one trade area to obtain a result in a different sector) if a planned or existing domestic policy is perceived to breach the 'spirit' of the relevant bilateral trade agreement. Formal dispute resolution proceedings may never be initiated or be intended to commence if such lobbying is persuasive.〔Faunce TA. Reference pricing for pharmaceuticals: is the Australia–United States Free Trade Agreement affecting Australia’s Pharmaceutical Benefits Scheme? Medical Journal of Australia 2007; 187 (4): 240-242 http://www.mja.com.au/public/issues/187_04_200807/fau10585_fm.html (last accessed 19 June 2009)〕 If this hypothesis is correct, it represents a disturbing example of regulatory capture and has worrying implications for democratic sovereignty. The Australian government, however, strenuously denies such claims. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Non-violation nullification of benefits」の詳細全文を読む スポンサード リンク
|