(二)爭端解決程序之ㄧ般性規範

        DSU第三條針對爭端解決程序設有一般性之規範，DSU第三條之要點為：

1、根據DSU第三條第一項，WTO之所有會員國持續遵守GATT 1947第二十二條及第二十三條所規範之爭端解決原則，以及遵守DSU第三條第一項所設立之規則及程序。

2、根據DSU第三條第二項，WTO之爭端解決體系，對於提供多邊貿易體制之穩定與可預測性有極深遠之作用。爭端解決程序在於確保會員國於涵蓋協定下之權利與義務，並對於涵蓋協定下之各項條文予以闡述。爭端解決機構所作成之裁定及建議書，並不能擴大或限縮會員國於涵蓋協定下之權利與義務。

3、根據DSU第三條第三項，DSU重申：於會員國認為其利益，受到其他會員國之措施而有所減損時，爭端解決程序以迅速解決當事國之爭端，對於WTO功能之確保以及對於會員國間之權利與義務之平衡，極為關鍵。

4、根據DSU第三條第四項，DSB所作成之裁定及建議書，應依照DSU及涵蓋協定所規範之權利義務，以達成滿意之解決。

5、根據DSU第三條第五項，於DSU涵蓋協定中所規範之諮商及爭端解決(包括仲裁)程序中，正式提出之所有解決方案，均應符合該涵蓋協定之規範，且不得剝奪或減損任何會員國在該涵蓋協定下之利益，亦不得阻礙涵蓋協定目的之達成。

6、根據DSU第三條第六項，在任一會員國正式依照諮商或爭端解決程序訴請解決之後，雙方當事國若對爭議達成解決之協議，應將其協議通知DSB及相關之理事會和委員會。

7、根據DSU第三條第七項，在提出進行爭端解決之前，會員國應先判斷其自身所採取之爭端解決行動，是否將有實際上之助益。最佳之爭端解決方案應為雙方當事國皆可同意者。若無法達成雙方皆同意之解決方案，則爭端解決機制最主要之目標應為：要求違反協定之會員國，將其自身違反協定之措施撤銷。只有於具體執行上無法立即撤銷措施時，始可以補償之方式暫時為之。允許受害之會員國針對特定國家暫時停止減讓，或暫時停止履行會員國之義務，應作為最後之方式。

8、根據DSU第三條第八項，在會員國有違反涵蓋協定下之義務之情形發生時，其行為應推定為：構成利益上之剝奪或減損。在出現具有違反涵蓋協定規範之情形下，通常推定：對於涵蓋協定下之爭議中之相對國家造成不利之影響。於此情況下，必須由被控告之國家對於指控提出反駁。

9、根據DSU第三條第九項，DSU之規範不影響會員國透過WTO或複邊貿易協定下之決策程序，尋求對於涵蓋協定下之規定做出授權解釋之權利。

10、根據DSU第三條第十項，會員國皆瞭解，調解之請求及爭端解決程序之援引，不得以訴訟戰之目的為之、或被視為興訟之舉措。所有爭端中之相關國家，在處理爭端解決之事務時，應基於善意之基礎盡力解決爭端。若控訴方與反訴方，為針對不同之事務，則兩者之事務不應被掛鉤。

11、根據DSU第三條第十一項，DSU僅適用於WTO協定生效後所提出之諮商請求，舊爭議仍然依照原來WTO成立前之爭端解決程序處理。

Article 3  

General Provisions

1. Members affirm their adherence to the principles for the management of disputes heretofore applied under Articles XXII and XXIII of GATT 1947, and the rules and procedures as further elaborated and modified herein.

2. The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements.

3. The prompt settlement of situations in which a Member considers that any benefits accruing to it directly or indirectly under the covered agreements are being impaired by measures taken by another Member is essential to the effective functioning of the WTO and the maintenance of a proper balance between the rights and obligations of Members.

4. Recommendations or rulings made by the DSB shall be aimed at achieving a satisfactory settlement of the matter in accordance with the rights and obligations under this Understanding and under the covered agreements.

5. All solutions to matters formally raised under the consultation and dispute settlement provisions of the covered agreements, including arbitration awards, shall be consistent with those agreements and shall not nullify or impair benefits accruing to any Member under those agreements, nor impede the attainment of any objective of those agreements.

6. Mutually agreed solutions to matters formally raised under the consultation and dispute settlement provisions of the covered agreements shall be notified to the DSB and the relevant Councils and Committees, where any Member may raise any point relating thereto.

7. Before bringing a case, a Member shall exercise its judgement as to whether action under these procedures would be fruitful. The aim of the dispute settlement mechanism is to secure a positive solution to a dispute. A solution mutually acceptable to the parties to a dispute and consistent with the covered agreements is clearly to be preferred. In the absence of a mutually agreed solution, the first objective of the dispute settlement mechanism is usually to secure the withdrawal of the measures concerned if these are found to be inconsistent with the provisions of any of the covered agreements. The provision of compensation should be resorted to only if the immediate withdrawal of the measure is impracticable and as a temporary measure pending the withdrawal of the measure which is inconsistent with a covered agreement. The last resort which this Understanding provides to the Member invoking the dispute settlement procedures is the possibility of suspending the application of concessions or other obligations under the covered agreements on a discriminatory basis vis-à-vis the other Member, subject to authorization by the DSB of such measures.

8. In cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment. This means that there is normally a presumption that a breach of the rules has an adverse impact on other Members parties to that covered agreement, and in such cases, it shall be up to the Member against whom the complaint has been brought to rebut the charge.

9. The provisions of this Understanding are without prejudice to the rights of Members to seek authoritative interpretation of provisions of a covered agreement through decision-making under the WTO Agreement or a covered agreement which is a Plurilateral Trade Agreement.

10. It is understood that requests for conciliation and the use of the dispute settlement procedures should not be intended or considered as contentious acts and that, if a dispute arises, all Members will engage in these procedures in good faith in an effort to resolve the dispute. It is also understood that complaints and counter-complaints in regard to distinct matters should not be linked.

11. This Understanding shall be applied only with respect to new requests for consultations under the consultation provisions of the covered agreements made on or after the date of entry into force of the WTO Agreement. With respect to disputes for which the request for consultations was made under GATT 1947 or under any other predecessor agreement to the covered agreements before the date of entry into force of the WTO Agreement, the relevant dispute settlement rules and procedures in effect immediately prior to the date of entry into force of the WTO Agreement shall continue to apply.

12. Notwithstanding paragraph 11, if a complaint based on any of the covered agreements is brought by a developing country Member against a developed country Member, the complaining party shall have the right to invoke, as an alternative to the provisions contained in Articles 4, 5, 6 and 12 of this Understanding, the corresponding provisions of the Decision of 5 April 1966 (BISD 14S/18), except that where the Panel considers that the time-frame provided for in paragraph 7 of that Decision is insufficient to provide its report and with the agreement of the complaining party, that time-frame may be extended. To the extent that there is a difference between the rules and procedures of Articles 4, 5, 6 and 12 and the corresponding rules and procedures of the Decision, the latter shall prevail.

參考文獻

國際貿易法：世界貿易組織下之法律新秩序 國際經貿法研究(五) 羅昌發 著