[ 劉成偉 ]——(2003-7-7) / 已閱79016次
【NOTE】:
1. See, WT/DS44/R/10.41.
2. See, in detail, WT/DS163/R/7.85-7.86.
3. See, in detail, WT/DS44/R/10.43-10.56.
4. In Japan, it is accepted that the government sometimes acts through what is referred to as administrative guidance. In such a case, the company receiving guidance from the Government of Japan may not be legally bound to act in accordance with it, but compliance may be expected in light of the power of the government and a system of government incentives and disincentives arising from the wide array of government activities and involvement in the Japanese economy. As noted by the parties, administrative guidance in Japan takes various forms. Japan, for example, refers in this case to what it called “regulatory administrative guidance”, which it concedes effective substitutes for formal government action. It also refers to “promotional administrative guidance”, where companies are urged to do things that are in their interest to do in any event. And in Japan's view, this sort of guidance (“promotional administrative guidance”) should not be assimilated to a measure in the sense of Art. XXIII:1(b).
5. While in Japan-Restrictions on Imports of Certain Agricultural Products, the panel found that the informal administrative guidance used by the Japanese Government to restrict production of certain agricultural products could be considered to be a governmental measure within the meaning of GATT Art. XI:2 because it emanated from the government and was effective in the Japanese context. Specifically as regards the method used to enforce certain measures, the panel found that: “the practice of ‘a(chǎn)dministrative guidance’ played an important role. Considering that this practice is a traditional tool of Japanese Government policy based on consensus and peer pressure, the Panel decided to base its judgments on the effectiveness of the measures in spite of the initial lack of transparency”. In line with this observation, the Panel in present case considers that their analysis of the alleged “measures” must proceed in a manner that is sensitive to the context in which these governmental actions were taken and the effect they had on private actors.
6. See, in detail, WT/DS135/R/8.254-8.259.
7. See, WT/DS135/R/8.260-8.265.
8. See, WT/DS135/AB/R/187.
9. See, WT/DS135/R/8.266-8.274.
10. See, WT/DS135/AB/R/188-191.
11. See, WT/DS44/R/10.59.
12. See, WT/DS44/R/10.61.
13. See, WT/DS44/R/10.72-10.77.
14. See, WT/DS44/R/10.78-10.81.
15. See, WT/DS163/R/7.101-7.102.
16. See, WT/DS44/R/10.64-10.70.
17. See, WT/DS44/R/10.82-10.89.
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