试析特别301条款制度——兼论其与TRIPs协定的关系

按照美国的特别301条款,美国可对WTO成员没有违反TRIPs协定的行为采取报复措施,报复范围超出TRIPs协定要求的限于相同部门的规定,并且取代了WTO的争端解决机制。因此,当美国作为TRIPs协定下争端的原告或被告时,其利益很难通过WTO的争端解决机制得到满足,遂诉诸特别301条款下的单边措施。由于TRIPs协定倾向于维护发展中国家的利益,美国很难通过WTO体制维护本国利益,随着WTO争端解决机制的加强,特别301条款的单边措施的效力将逐步削弱。

The Legal Study on the Relation between Special 301 and TRIPs

In 1988, dissatisfied with the international protection for intellectual property provided by multilateral efforts, the US Congress created section 182 of the Omnibus Trade Act of 1974,which commonly referred to as "Special 301". The United States considers that other countries may use it to monitor the compliance of TRIPs. Special 301 Act will be more effective with the introduction of internationally binding minimum standards of protection for intellectual property by TRIPs, which is criticized by other countries. According to this section, the United States may take retaliation measures even other countries do not violate TRIPs, and Special 301 is inconsistent with TRIPs in the scope of its remedies, thereby superseding WTO dispute settlement. the United States finds it hard to protect its interests through WTO dispute settlement when it is a plaintiff or a defendant in a TRIPs dispute, and has to take unilateral measures such as Special 301. Since the conciliatory attitude towards developing countries of TRIPs, the United States will be difficult to protect its interests through WTO system. Now, the strengthened dispute settlement procedures will undermine the potency of unilateral measures such as Special 301.