国际贸易中知识产权滥用的概念及判定标准分析——以美国判例、立法及TRIPS为背景

知识产权滥用的判定标准一直是一个极具争议的问题。美国相关判例及立法对于知识产权滥用的判定标准也是非常不确定的,目前在分析知识产权滥用时朝着融合反托拉斯法的标准上发展。TRIPS协议则对于国际贸易领域知识产权滥用做出了规定,我们可以合理地推导出它对于滥用的三项判定标准。在此基础上,本文提出国际贸易中的知识产权滥用应该是指在国际贸易中,拥有市场优势地位的知识产权人在行使其权利时故意超越法律所允许的范围或者正当的界限,限制或妨碍自由公平竞争,损害他人以及社会公共利益的不正当行为,为此提出了作为判定标准的四项构成要件。     

Do Trade Agreements Stimulate International Trade Differently? Evidence from 296 Trade Agreements

In a seminal article, Rose (2004) found that the assumed positive impact of the WTO on international trade was questionable. This finding has been scrutinised and modified in subsequent research, using different data sets, econometric methods and separating the WTO from other forms of trade agreements. A key characteristic of the subsequent literature is the rather simplistic way in which trade agreements are treated whereby all trade agreements are lumped together. Trade agreements come, however, in many different forms and shapes. This study addresses these differences in trade agreements. Using a unique database of 296 trade agreements, we distinguish 17 trade‐related policy domains and indicate whether the agreements contain legally enforceable commitments. This extensive and novel taxonomy of trade agreements enables us to allow for the possible heterogeneity of the impact of trade agreements on international trade. Using a gravity model, we find that trade agreement heterogeneity indeed matters for international trade and that countries experience significant trade increases due to comprehensive trade agreements even if not all participants are in the WTO.     

自由贸易协议谈判中的国际劳工标准问题

国际劳工标准是一种规范全球范围劳工事务的制度。经济全球化导致劳工标准问题的重要性日益凸现,发达国家采取了将劳工标准与贸易挂钩的方式推进劳工标准的实施,并在地区层次和双边层次取得了重大进展,但在全球层次的谈判则陷入"囚徒困境"。这是发达国家和发展中国家在劳工标准领域博弈的结果。中国在劳工标准领域也面临着巨大的挑战。     

International Labour and Environmental Standards Agreements: Is This Fair Trade?

Labour and environmental standards agreements are two contentious proposals that have contributed to the failure of the WTO to launch a new round of trade liberalisation discussions and have prevented the US President from obtaining fast‐track negotiating authority. Proponents of the agreements have been able to win substantial political support by arguing that standardised rules on labour practices and environmental regulations is the only way to assure that international trade remains fair. Although there are widespread demands for ‘fair trade,’ there remains a lack of understanding as to what fairness means exactly. Recently, a comprehensive catalogue of fairness principles was presented by Suranovic (2000). This paper will analyse the proposals for labour and environmental standards with respect to these fairness principles in order to characterise how fairness is used by supporters of these policies. The paper will also show that by using different fairness principles, opponents of these policies can argue that these same policies are unfair. The fact that reasonable notions of fairness can be applied by both opponents and proponents of these agreements highlights difficulties with fairness, per se, as a useful guide to policy. The paper uses this contentious issue to highlight the conceptual difficulties of proposals for fair trade.     

International Trade Agreements and International Migration

Despite large potential economic gains, bilateral and multilateral negotiations focusing on liberalisation of migration have not shared the high profile of international trade negotiations and agreements. Migration and trade have been traditionally viewed rather separately and the relevance of the many, and complex, interdependencies has been given remarkably little attention in the literature to date. In this article, we focus on the two‐way interaction between international migration and agreements designed to enhance cross‐border trade and investment. Liberalisation of international trade in services and in the movement of people potentially offers much greater economic gains than liberalisation of remaining barriers to goods trade. However, progress within multilateral frameworks is fraught with difficulty. The World Trade Organization’s General Agreement on Trade in Services (GATS) has yielded little real progress so far and negotiations within more flexible unilateral and bilateral frameworks are likely to be more successful in liberalising the movement of labour. We discuss a range of specific examples, focusing particularly on the interesting case of New Zealand. We find that trade agreements are increasingly including agreements on migration, though typically favouring temporary migration and involving numerically modest quotas. We conclude that migration regulatory frameworks are likely to be further and more strongly linked to trade and investment agreements in the future, particularly given changing economic and demographic forces. The primary focus of migration policies may nonetheless remain different from that of trade policies. While further migration liberalisation is likely to be through bilateral and regional agreements, it will be important to try to lock in the gains of such agreements, while simultaneously working to consolidating these in a way that will help to facilitate future multilateral agreement.     

Negotiating free trade

We develop a dynamic bargaining model in which a leading country endogenously decides whether to sequentially negotiate free trade agreements with subsets of countries or engage in simultaneous multilateral bargaining with all countries at once. We show how the structure of coalition externalities shapes the choice between sequential and multilateral bargaining, and we identify circumstances in which the grand coalition is the equilibrium outcome, leading to worldwide free trade. A model of international trade is then used to illustrate equilibrium outcomes and how they depend on the structure of trade and protection. Global free trade is not achieved when the political-economy motive for protection is sufficiently large. Furthermore, the model generates both “building bloc” and “stumbling bloc” effects of preferential trade agreements. In particular, we describe an equilibrium in which global free trade is attained only when preferential trade agreements are permitted to form (a building bloc effect), and an equilibrium in which global free trade is attained only when preferential trade agreements are forbidden (a stumbling bloc effect). The analysis identifies conditions under which each of these outcomes emerges.     

Inequality and endogenous trade policy outcomes

An enduring puzzle in international economics is why trade interventions are biased in favor of import-competing rather than export sectors and therefore restrict trade. In this paper, we show that if the government's objective reflects a concern for inequality then trade policy generally exhibits an anti-trade bias. Importantly, under neutral assumptions, the mechanism that we analyze generates the anti-trade bias independently of whether factors are specific or mobile across sectors. The mechanism also generates an anti-trade bias between large countries even after they sign reciprocal trade agreements that eliminate any terms-of-trade motivation for the use of trade protection.     

Sequencing Regional Trade Integration and Cooperation Agreements

Trade integration agreements and other international cooperation agreements have proliferated in recent years around the world. Rather than being spurred by exogenous forces alone, the two phenomena are likely to be both path‐dependent and endogenous to one another. However, the theoretical and empirical understanding of the relationships between agreements forged in different domains of cooperation remains nascent. The purpose of this paper is to describe a new, extensive dataset on international agreements that can be employed to start mending the gaps in the literature, and to develop ‘best practices’ of sequencing international agreements to obtain higher pay‐offs from cooperation. Of particular interest here is the relationship between trade integration and other cooperation agreements; the data provide preliminary grounds for hypothesising that trade integration agreements can be a particularly likely catalyst for further cooperation between states.     

国际贸易规则重构之非正式规则研究

在经济全球化的大背景下,国际贸易模式正经历着深刻变革,加速了国际贸易规则的重构。非正式规则作为传统多边国际贸易协议以及区域性自由贸易协定的补充和调整,其超越了传统国际造法的范畴,没有法律约束力,却为市场主要参与者高度认同且普遍遵守,因此能够有效避免和解决国际贸易争端、维持国际贸易秩序的稳定,并且免受国家政治、军事、经济等实力的影响。对非正式规则的研究,有助于我国参与到国际贸易规则重构中去。     

Trade Wars: The Exaggerated Impact of Trade in Economic Debate

The rules governing trade and capital flows have been at the centre of controversy as globalisation has proceeded. One reason is the belief that trade and capital flows have massive effects on the labour market – either positive, per the claims of international financial institutions and free trade enthusiasts, or negative, per the ubiquitous protestors at WTO, IMF and World Bank meetings demanding global labour standards. Comparing the claims made in this debate with the outcomes of trade agreements, this paper finds that the debate has exaggerated the effects of trade on economies and the labour market. Changes in trade policy have had modest impacts on the labour market. Other aspects of globalisation – immigration, capital flows and technology transfer – have greater impacts, with volatile capital flows creating great risk for the well-being of workers. As for labour standards, global standards do not threaten the comparative advantage of developing countries nor do poor labour standards create a ‘race to the bottom’.     

Policies and international trade agreements on technical compatibility for industries with network externalities

The paper considers a country (home) in which consumers have heterogeneous preferences over ex ante incompatible domestic and imported products and benefit from a network externality. We analyze the cases with trade under perfect competition and the international duopoly, in which both governments strategically use policies toward compatibility but cannot use conventional trade policies. In both cases, the equilibrium outcome of the non-cooperative game depends upon the strength of the network externality effect and involves either an excessively high equilibrium level of compatibility (in combination with either too much or too little trade) or very low equilibrium levels of both compatibility and trade. The paper concludes with the analysis of the international agreements on policies toward compatibility and evaluates the existing provisions in the WTO legal system aimed at minimizing the trade-inhibiting impact of standards and regulations in the area of technical compatibility.     

The future impact of Trans‐Pacific Partnership’s rule‐making achievements: The case study of e‐commerce

While policymakers and scholars often emphasise the significance of the rule‐making aspect when they discuss the benefits of negotiating free trade agreements (FTAs), we know little about the ways in which rules are actually made. We need impartial assessment of the status of rule‐making to draw any concrete policy implications. Moreover, “how international economic rules develop” in terms of enforceability has been a neglected but important research question for students of international economics and laws. International economic rules evolve through a series of FTAs that are signed by a different set of countries. By using the case study of e‐commerce chapters, this paper will specifically examine: (1) how earlier FTAs paved the way to the Trans‐Pacific Partnership (TPP) e‐commerce negotiations; (2) whether rule‐making achievements of TPP are substantial compared against earlier FTAs; and (3) whether rule‐making achievements of TPP, if any, are likely to have some impact on post‐TPP FTAs.     

Do Trade Agreements Increase Food Trade?

In addition to multilateral trade agreements under the World Trade Organization (WTO), the world has seen a remarkable proliferation of regional trade agreements (RTAs) in the last two decades. This study investigates whether these multilateral and regional trade institutions increase food trade and bring the world into a freer flow of food. The gravity model of international trade is used for the empirical analysis. The model is developed in a large panel data setting and attempted to address some potential problems in the estimations including multilateral trade resistances, zero trade values and endogeneity. The results suggest that both the WTO and RTAs have delivered significant positive effects on trade among the participant countries, but not food. Only RTAs are found to have increased food trade among the participant countries. However, although on average the WTO is found to have negative implications on food trade, it facilitates the developing countries more than the developed countries.     

Does the Quality of Investment Protection Affect FDI Flows to Developing Countries? Evidence from Latin America

Studies on the impact of international investment agreements (IIAs), including bilateral investment treaties (BITs), on foreign direct investment (FDI) inflows have been inconclusive. This paper contributes to the debate about the effectiveness of IIAs using an original database that differentiates between investment agreements according to the quality of investor protection, and which covers a wide variety of trade and investment agreements signed and ratified in the Americas. We find evidence that in the least likely case of south–south FDI flows, high‐quality international investment treaties have a demonstrable effect on foreign direct investment inflows. Moreover, international investment agreements appear to be most effective in a context of deeper economic integration. That is, they work better when they provide higher quality protection to investors and when they are combined with other preferential economic integration agreements, such as trade agreements.     

Province-Level Impacts of Canada’s Trade Agreements

Given Canada’s extended geography and regional economic diversity, individual provinces have differing exposures to particular international trade agreements. We demonstrate this by estimating the impacts of the Canada-Korea free trade agreement on the province of Ontario, using a dynamic general equilibrium model to generate Canada-level impacts, which are then decomposed on the basis of partial equilibrium model simulations on a trade dataset in which Ontario is represented as a separate international trading entity. We show that geography and sectoral specialization matter and that general equilibrium effects must be taken into account in partial equilibrium assessments of sectoral impacts of major trade agreements.     

区域贸易协定“可司法性”问题新论——朗·富勒司法哲学的启示

区域贸易协定与WTO纪律的相符性问题是国际司法实践中的一大难题。法理学者朗·富勒论述了司法的主要特征与局限,指出"多中心任务"不适合司法解决,这一思想对国际法具有高度借鉴价值。受制于一系列复杂因素,区域贸易协定与WTO纪律的相符性问题是一个典型的"多中心任务",可司法性较弱。"多中心任务"不适合司法解决的思想,为国际法治推进过程中政治与法律的分野提供了新的分析工具。     

Failure to Deliver: The Investment Effects of US Preferential Economic Agreements

Global trade and investment rules are increasingly determined by bilateral and regional agreements, which are widely expected to increase economic ties between the signatories. Even though the United States is a relative newcomer to these narrower economic agreements, it has signed several different types with dozens of partner countries. These agreements, which often require partners to make costly policy changes, are nonetheless attractive because they provide preferential access to the US market and promise increased inward investment. In this paper, we compare the investment effects of three different types of agreements and find little evidence that existing international agreements (trade and investment framework agreements, bilateral investment treaties or preferential trade agreements) tend to increase investment from the United States. After exploring other potential explanations, we conclude that US treaty partners may have unrealistic expectations for agreements to increase direct investment.     

The Impacts of Alignment with Global Product Standards on Exports of Firms in Developing Countries

Complying with global standards and technical norms can be costly, making them potential impediments to trade, but it can also expand export opportunities. Two policies available to governments are alignment of domestic technical regulations with international standards and entry into mutual recognition agreements (MRAs). We study the effects of such decisions on the volume of exports to developed markets by firms in developing countries, using data from a World Bank firm‐level survey of awareness of global product norms. Both standards alignment and MRAs are associated with more exports to developed countries, but only MRAs significantly promote exports. This finding is consistent with theoretical predictions that MRAs should reduce the fixed costs of exporting more than standards alignment, permitting more firms to enter export markets in higher volumes. Governments in developing countries hoping to encourage exports may wish to favour the negotiation of mutual recognition of testing and certification procedures with major trading partners as a more affirmative avenue to expanding international sales.     

论国际投资协定中的环境规则及其演进——兼评析中国国际投资协定的变化及立法

为了平衡投资自由化和环境保护间冲突,早期的环境条约意图规范加入投资规则。晚近以来,在国际投资协定中纳入环境规则已经成为新式投资协定发展的重要特色。从国际投资协定纳入环境规则的立法模式看,经历了从投资协定到自由贸易协定的多元化发展;从立法内容看,已经形成从实体规范和程序规范的日趋完善的发展;从规范对象看,意图直接规范跨国公司的倾向已经显露。我国的投资协定在国际背景下也产生了重要的变化,但是无论是国际和国内两个层次上都存在不足,需进一步完善。     

国际贸易中的风险转移与所有权转移

国际贸易中的货物所有权与风险何时转移 ,两者是否同时转移 ,这直接关系到买卖双方的切身利益。由于各国法律在这一问题上存在较大的差异 ,这无疑增加了国际贸易复杂性和风险性。根据主要贸易国的法律、联合国国际货物买卖合同公约及国际贸易惯例的有关规定 ,在国际贸易中货物所有权与风险转移并非是在同时发生的 ,有关规定也比国内法更为复杂 ,这应引起进出口企业及涉外商务人员的高度重视 ,以确保货物或货款收取的安全性。