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世界贸易组织法律文件


PROTOCOL ON THE ACCESSION OF
THE PEOPLE'S REPUBLIC OF CHINA


Preamble

The World Trade Organization ("WTO"), pursuant to the approval of the Ministerial Conference of the WTO accorded under Article XII of the Marrakesh Agreement Establishing the World Trade Organization ("WTO Agreement"), and the People's Republic of China ("China"),

Recalling that China was an original contracting party to the General Agreement on Tariffs and Trade 1947,

Taking note that China is a signatory to the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations,

Taking note of the Report of the Working Party on the Accession of China in document WT/ACC/CHN/49 ("Working Party Report"),

Having regard to the results of the negotiations concerning China's membership in the WTO,

Agree as follows:

Part I - General Provisions

1. General

1. Upon accession, China accedes to the WTO Agreement pursuant to Article XII of that Agreement and thereby becomes a Member of the WTO.

2. The WTO Agreement to which China accedes shall be the WTO Agreement as rectified, amended or otherwise modified by such legal instruments as may have entered into force before the date of accession. This Protocol, which shall include the commitments referred to in paragraph 342 of the Working Party Report, shall be an integral part of the WTO Agreement.

3. Except as otherwise provided for in this Protocol, those obligations in the Multilateral Trade Agreements annexed to the WTO Agreement that are to be implemented over a period of time starting with entry into force of that Agreement shall be implemented by China as if it had accepted that Agreement on the date of its entry into force.

4. China may maintain a measure inconsistent with paragraph 1of Article II of the General Agreement on Trade in Services ("GATS") provided that such a measure is recorded in the List of Article II Exemptions annexed to this Protocol and meets the conditions of the Annex to the GATS on Article II Exemptions.

2. Administration of the Trade Regime

(A) Uniform Administration

1. The provisions of the WTO Agreement and this Protocol shall apply to the entire customs territory of China, including border trade regions and minority autonomous areas, Special Economic Zones, open coastal cities, economic and technical development zones and other areas where special regimes for tariffs, taxes and regulations are established (collectively referred to as "special economic areas").

2. China shall apply and administer in a uniform, impartial and reasonable manner all its laws, regulations and other measures of the central government as well as local regulations, rules and other measures issued or applied at the sub-national level (collectively referred to as "laws, regulations and other measures") pertaining to or affecting trade in goods, services, trade-related aspects of intellectual property rights ("TRIPS") or the control of foreign exchange.

3. China's local regulations, rules and other measures of local governments at the sub-national level shall conform to the obligations undertaken in the WTO Agreement and this Protocol.

4. China shall establish a mechanism under which individuals and enterprises can bring to the attention of the national authorities cases of non-uniform application of the trade regime.

(B) Special Economic Areas

1. China shall notify to the WTO all the relevant laws, regulations and other measures relating to its special economic areas, listing these areas by name and indicating the geographic boundaries that define them. China shall notify the WTO promptly, but in any case within 60 days, of any additions or modifications to its special economic areas, including notification of the laws, regulations and other measures relating thereto.

2. China shall apply to imported products, including physically incorporated components, introduced into the other parts of China's customs territory from the special economic areas, all taxes, charges and measures affecting imports, including import restrictions and customs and tariff charges, that are normally applied to imports into the other parts of China's customs territory.

3. Except as otherwise provided for in this Protocol, in providing preferential arrangements for enterprises within such special economic areas, WTO provisions on non-discrimination and national treatment shall be fully observed.

(C) Transparency

1. China undertakes that only those laws, regulations and other measures pertaining to or affecting trade in goods, services, TRIPS or the control of foreign exchange that are published and readily available to other WTO Members, individuals and enterprises, shall be enforced. In addition, China shall make available to WTO Members, upon request, all laws, regulations and other measures pertaining to or affecting trade in goods, services, TRIPS or the control of foreign exchange before such measures are implemented or enforced. In emergency situations, laws, regulations and other measures shall be made available at the latest when they are implemented or enforced.

2. China shall establish or designate an official journal dedicated to the publication of all laws, regulations and other measures pertaining to or affecting trade in goods, services, TRIPS or the control of foreign exchange and, after publication of its laws, regulations or other measures in such journal, shall provide a reasonable period for comment to the appropriate authorities before such measures are implemented, except for those laws, regulations and other measures involving national security, specific measures setting foreign exchange rates or monetary policy and other measures the publication of which would impede law enforcement. China shall publish this journal on a regular basis and make copies of all issues of this journal readily available to individuals and enterprises.

3. China shall establish or designate an enquiry point where, upon request of any individual, enterprise or WTO Member all information relating to the measures required to be published under paragraph 2(C)1 of this Protocol may be obtained. Replies to requests for information shall generally be provided within 30 days after receipt of a request. In exceptional cases, replies may be provided within 45 days after receipt of a request. Notice of the delay and the reasons therefor shall be provided in writing to the interested party. Replies to WTO Members shall be complete and shall represent the authoritative view of the Chinese government. Accurate and reliable information shall be provided to individuals and enterprises.

(D) Judicial Review

1. China shall establish, or designate, and maintain tribunals, contact points and procedures for the prompt review of all administrative actions relating to the implementation of laws, regulations, judicial decisions and administrative rulings of general application referred to in Article X:1 of the GATT 1994, Article VI of the GATS and the relevant provisions of the TRIPS Agreement. Such tribunals shall be impartial and independent of the agency entrusted with administrative enforcement and shall not have any substantial interest in the outcome of the matter.

2. Review procedures shall include the opportunity for appeal, without penalty, by individuals or enterprises affected by any administrative action subject to review. If the initial right of appeal is to an administrative body, there shall in all cases be the opportunity to choose to appeal the decision to a judicial body. Notice of the decision on appeal shall be given to the appellant and the reasons for such decision shall be provided in writing. The appellant shall also be informed of any right to further appeal.

3. Non-discrimination

Except as otherwise provided for in this Protocol, foreign individuals and enterprises and foreign-funded enterprises shall be accorded treatment no less favourable than that accorded to other individuals and enterprises in respect of:

(a) the procurement of inputs and goods and services necessary for production and the conditions under which their goods are produced, marketed or sold, in the domestic market and for export; and

(b) the prices and availability of goods and services supplied by national and sub-national authorities and public or state enterprises, in areas including transportation, energy, basic telecommunications, other utilities and factors of production.

4. Special Trade Arrangements

Upon accession, China shall eliminate or bring into conformity with the WTO Agreement all special trade arrangements, including barter trade arrangements, with third countries and separate customs territories, which are not in conformity with the WTO Agreement.

5. Right to Trade

1. Without prejudice to China's right to regulate trade in a manner consistent with the WTO Agreement, China shall progressively liberalize the availability and scope of the right to trade, so that, within three years after accession, all enterprises in China shall have the right to trade in all goods throughout the customs territory of China, except for those goods listed in Annex 2A which continue to be subject to state trading in accordance with this Protocol. Such right to trade shall be the right to import and export goods. All such goods shall be accorded national treatment under Article III of the GATT 1994, especially paragraph 4 thereof, in respect of their internal sale, offering for sale, purchase, transportation, distribution or use, including their direct access to end-users. For those goods listed in Annex 2B, China shall phase out limitation on the grant of trading rights pursuant to the schedule in that Annex. China shall complete all necessary legislative procedures to implement these provisions during the transition period.

2. Except as otherwise provided for in this Protocol, all foreign individuals and enterprises, including those not invested or registered in China, shall be accorded treatment no less favourable than that accorded to enterprises in China with respect to the right to trade.

6. State Trading

1. China shall ensure that import purchasing procedures of state trading enterprises are fully transparent, and in compliance with the WTO Agreement, and shall refrain from taking any measure to influence or direct state trading enterprises as to the quantity, value, or country of origin of goods purchased or sold, except in accordance with the WTO Agreement.

2. As part of China's notification under the GATT 1994 and the Understanding on the Interpretation of Article XVII of the GATT 1994, China shall also provide full information on the pricing mechanisms of its state trading enterprises for exported goods.

7. Non-Tariff Measures

1. China shall implement the schedule for phased elimination of the measures contained in Annex 3. During the periods specified in Annex 3, the protection afforded by the measures listed in that Annex shall not be increased or expanded in size, scope or duration, nor shall any new measures be applied, unless in conformity with the provisions of the WTO Agreement.

2. In implementing the provisions of Articles III and XI of the GATT 1994 and the Agreement on Agriculture, China shall eliminate and shall not introduce, re-introduce or apply non-tariff measures that cannot be justified under the provisions of the WTO Agreement. For all non-tariff measures, whether or not referred to in Annex 3, that are applied after the date of accession, consistent with the WTO Agreement or this Protocol, China shall allocate and otherwise administer such measures in strict conformity with the provisions of the WTO Agreement, including GATT 1994 and Article XIII thereof, and the Agreement on Import Licensing Procedures, including notification requirements.

3. China shall, upon accession, comply with the TRIMs Agreement, without recourse to the provisions of Article 5 of the TRIMs Agreement. China shall eliminate and cease to enforce trade and foreign exchange balancing requirements, local content and export or performance requirements made effective through laws, regulations or other measures. Moreover, China will not enforce provisions of contracts imposing such requirements. Without prejudice to the relevant provisions of this Protocol, China shall ensure that the distribution of import licences, quotas, tariff-rate quotas, or any other means of approval for importation, the right of importation or investment by national and sub-national authorities, is not conditioned on: whether competing domestic suppliers of such products exist; or performance requirements of any kind, such as local content, offsets, the transfer of technology, export performance or the conduct of research and development in China.

4. Import and export prohibitions and restrictions, and licensing requirements affecting imports and exports shall only be imposed and enforced by the national authorities or by sub-national authorities with authorization from the national authorities. Such measures which are not imposed by the national authorities or by sub-national authorities with authorization from the national authorities, shall not be implemented or enforced.

8. Import and Export Licensing

1. In implementing the WTO Agreement and provisions of the Agreement on Import Licensing Procedures, China shall undertake the following measures to facilitate compliance with these agreements:

(a) China shall publish on a regular basis the following in the official journal referred to in paragraph 2(C)2 of this Protocol:

- by product, the list of all organizations, including those organizations delegated such authority by the national authorities, that are responsible for authorizing or approving imports or exports, whether through grant of licence or other approval;

- procedures and criteria for obtaining such import or export licences or other approvals, and the conditions for deciding whether they should be granted;

- a list of all products, by tariff number, that are subject to tendering requirements, including information on products subject to such tendering requirements and any changes, pursuant to the Agreement on Import Licensing Procedures;

- a list of all goods and technologies whose import or export are restricted or prohibited; these goods shall also be notified to the Committee on Import Licensing;

- any changes to the list of goods and technologies whose import and export are restricted or prohibited.

Copies of these submissions in one or more official languages of the WTO shall be forwarded to the WTO for circulation to WTO Members and for submission to the Committee on Import Licensing within 75 days of each publication.

(b) China shall notify the WTO of all licensing and quota requirements remaining in effect after accession, listed separately by HS tariff line and with the quantities associated with the restriction, if any, and the justification for maintaining the restriction or its scheduled date of termination.

(c) China shall submit the notification of its import licensing procedures to the Committee on Import Licensing. China shall report annually to the Committee on Import Licensing on its automatic import licensing procedures, explaining the circumstances which give rise to these requirements and justifying the need for their continuation. This report shall also provide the information listed in Article 3 of the Agreement on Import Licensing Procedures.

(d) China shall issue import licences for a minimum duration of validity of six months, except where exceptional circumstances make this impossible. In such cases, China shall promptly notify the Committee on Import Licensing of the exceptional circumstances requiring the shorter period of licence validity.

2. Except as otherwise provided for in this Protocol, foreign individuals and enterprises and foreign-funded enterprises shall be accorded treatment no less favourable than that accorded to other individuals and enterprises in respect of the distribution of import and export licences and quotas.

9. Price Controls

1. China shall, subject to paragraph 2 below, allow prices for traded goods and services in every sector to be determined by market forces, and multi-tier pricing practices for such goods and services shall be eliminated.

2. The goods and services listed in Annex 4 may be subject to price controls, consistent with the WTO Agreement, in particular Article III of the GATT 1994 and Annex 2, paragraphs 3 and 4 of the Agreement on Agriculture. Except in exceptional circumstances, and subject to notification to the WTO, price controls shall not be extended to goods or services beyond those listed in Annex 4, and China shall make best efforts to reduce and eliminate these controls.

3. China shall publish in the official journal the list of goods and services subject to state pricing and changes thereto.

10. Subsidies

1. China shall notify the WTO of any subsidy within the meaning of Article 1 of the Agreement on Subsidies and Countervailing Measures ("SCM Agreement"), granted or maintained in its territory, organized by specific product, including those subsidies defined in Article 3 of the SCM Agreement. The information provided should be as specific as possible, following the requirements of the questionnaire on subsidies as noted in Article 25 of the SCM Agreement.

2. For purposes of applying Articles 1.2 and 2 of the SCM Agreement, subsidies provided to state-owned enterprises will be viewed as specific if, inter alia, state-owned enterprises are the predominant recipients of such subsidies or state-owned enterprises receive disproportionately large amounts of such subsidies.

3. China shall eliminate all subsidy programmes falling within the scope of Article 3 of the SCM Agreement upon accession.

11. Taxes and Charges Levied on Imports and Exports

1. China shall ensure that customs fees or charges applied or administered by national or sub-national authorities, shall be in conformity with the GATT 1994.

2. China shall ensure that internal taxes and charges, including value-added taxes, applied or administered by national or sub-national authorities shall be in conformity with the GATT 1994.

3. China shall eliminate all taxes and charges applied to exports unless specifically provided for in Annex 6 of this Protocol or applied in conformity with the provisions of Article VIII of the GATT 1994.

4. Foreign individuals and enterprises and foreign-funded enterprises shall, upon accession, be accorded treatment no less favourable than that accorded to other individuals and enterprises in respect of the provision of border tax adjustments.

12. Agriculture

1. China shall implement the provisions contained in China's Schedule of Concessions and Commitments on Goods and, as specifically provided in this Protocol, those of the Agreement on Agriculture. In this context, China shall not maintain or introduce any export subsidies on agricultural products.

2. China shall, under the Transitional Review Mechanism, notify fiscal and other transfers between or among state-owned enterprises in the agricultural sector (whether national or sub-national) and other enterprises that operate as state trading enterprises in the agricultural sector.

13. Technical Barriers to Trade

1. China shall publish in the official journal all criteria, whether formal or informal, that are the basis for a technical regulation, standard or conformity assessment procedure.

2. China shall, upon accession, bring into conformity with the TBT Agreement all technical regulations, standards and conformity assessment procedures.

3. China shall apply conformity assessment procedures to imported products only to determine compliance with technical regulations and standards that are consistent with the provisions of this Protocol and the WTO Agreement. Conformity assessment bodies will determine the conformity of imported products with commercial terms of contracts only if authorized by the parties to such contract. China shall ensure that such inspection of products for compliance with the commercial terms of contracts does not affect customs clearance or the granting of import licences for such products.

4. (a) Upon accession, China shall ensure that the same technical regulations, standards and conformity assessment procedures are applied to both imported and domestic products. In order to ensure a smooth transition from the current system, China shall ensure that, upon accession, all certification, safety licensing, and quality licensing bodies and agencies are authorized to undertake these activities for both imported and domestic products, and that, one year after accession, all conformity assessment bodies and agencies are authorized to undertake conformity assessment for both imported and domestic products. The choice of body or agency shall be at the discretion of the applicant. For imported and domestic products, all bodies and agencies shall issue the same mark and charge the same fee. They shall also provide the same processing periods and complaint procedures. Imported products shall not be subject to more than one conformity assessment. China shall publish and make readily available to other WTO Members, individuals, and enterprises full information on the respective responsibilities of its conformity assessment bodies and agencies.

(b) No later than 18 months after accession, China shall assign the respective responsibilities of its conformity assessment bodies solely on the basis of the scope of work and type of product without any consideration of the origin of a product. The respective responsibilities that will be assigned to China's conformity assessment bodies will be notified to the TBT Committee 12 months after accession.

14. Sanitary and Phytosanitary Measures

China shall notify to the WTO all laws, regulations and other measures relating to its sanitary and phytosanitary measures, including product coverage and relevant international standards, guidelines and recommendations, within 30 days after accession.

15. Price Comparability in Determining Subsidies and Dumping

Article VI of the GATT 1994, the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 ("Anti-Dumping Agreement") and the SCM Agreement shall apply in proceedings involving imports of Chinese origin into a WTO Member consistent with the following:

(a) In determining price comparability under Article VI of the GATT 1994 and the Anti-Dumping Agreement, the importing WTO Member shall use either Chinese prices or costs for the industry under investigation or a methodology that is not based on a strict comparison with domestic prices or costs in China based on the following rules:

(i) If the producers under investigation can clearly show that market economy conditions prevail in the industry producing the like product with regard to the manufacture, production and sale of that product, the importing WTO Member shall use Chinese prices or costs for the industry under investigation in determining price comparability;

(ii) The importing WTO Member may use a methodology that is not based on a strict comparison with domestic prices or costs in China if the producers under investigation cannot clearly show that market economy conditions prevail in the industry producing the like product with regard to manufacture, production and sale of that product.

(b) In proceedings under Parts II, III and V of the SCM Agreement, when addressing subsidies described in Articles 14(a), 14(b), 14(c) and 14(d), relevant provisions of the SCM Agreement shall apply; however, if there are special difficulties in that application, the importing WTO Member may then use methodologies for identifying and measuring the subsidy benefit which take into account the possibility that prevailing terms and conditions in China may not always be available as appropriate benchmarks. In applying such methodologies, where practicable, the importing WTO Member should adjust such prevailing terms and conditions before considering the use of terms and conditions prevailing outside China.

(c) The importing WTO Member shall notify methodologies used in accordance with subparagraph (a) to the Committee on Anti-Dumping Practices and shall notify methodologies used in accordance with subparagraph (b) to the Committee on Subsidies and Countervailing Measures.

(d) Once China has established, under the national law of the importing WTO Member, that it is a market economy, the provisions of subparagraph (a) shall be terminated provided that the importing Member's national law contains market economy criteria as of the date of accession. In any event, the provisions of subparagraph (a)(ii) shall expire 15 years after the date of accession. In addition, should China establish, pursuant to the national law of the importing WTO Member, that market economy conditions prevail in a particular industry or sector, the non-market economy provisions of subparagraph (a) shall no longer apply to that industry or sector.

16. Transitional Product-Specific Safeguard Mechanism

1. In cases where products of Chinese origin are being imported into the territory of any WTO Member in such increased quantities or under such conditions as to cause or threaten to cause market disruption to the domestic producers of like or directly competitive products, the WTO Member so affected may request consultations with China with a view to seeking a mutually satisfactory solution, including whether the affected WTO Member should pursue application of a measure under the Agreement on Safeguards. Any such request shall be notified immediately to the Committee on Safeguards.

2. If, in the course of these bilateral consultations, it is agreed that imports of Chinese origin are such a cause and that action is necessary, China shall take such action as to prevent or remedy the market disruption. Any such action shall be notified immediately to the Committee on Safeguards.

3. If consultations do not lead to an agreement between China and the WTO Member concerned within 60 days of the receipt of a request for consultations, the WTO Member affected shall be free, in respect of such products, to withdraw concessions or otherwise to limit imports only to the extent necessary to prevent or remedy such market disruption. Any such action shall be notified immediately to the Committee on Safeguards.

4. Market disruption shall exist whenever imports of an article, like or directly competitive with an article produced by the domestic industry, are increasing rapidly, either absolutely or relatively, so as to be a significant cause of material injury, or threat of material injury to the domestic industry. In determining if market disruption exists, the affected WTO Member shall consider objective factors, including the volume of imports, the effect of imports on prices for like or directly competitive articles, and the effect of such imports on the domestic industry producing like or directly competitive products.

5. Prior to application of a measure pursuant to paragraph 3, the WTO Member taking such action shall provide reasonable public notice to all interested parties and provide adequate opportunity for importers, exporters and other interested parties to submit their views and evidence on the appropriateness of the proposed measure and whether it would be in the public interest. The WTO Member shall provide written notice of the decision to apply a measure, including the reasons for such measure and its scope and duration.

6. A WTO Member shall apply a measure pursuant to this Section only for such period of time as may be necessary to prevent or remedy the market disruption. If a measure is taken as a result of a relative increase in the level of imports, China has the right to suspend the application of substantially equivalent concessions or obligations under the GATT 1994 to the trade of the WTO Member applying the measure, if such measure remains in effect more than two years. However, if a measure is taken as a result of an absolute increase in imports, China has a right to suspend the application of substantially equivalent concessions or obligations under the GATT 1994 to the trade of the WTO Member applying the measure, if such measure remains in effect more than three years. Any such action by China shall be notified immediately to the Committee on Safeguards.

7. In critical circumstances, where delay would cause damage which it would be difficult to repair, the WTO Member so affected may take a provisional safeguard measure pursuant to a preliminary determination that imports have caused or threatened to cause market disruption. In this case, notification of the measures taken to the Committee on Safeguards and a request for bilateral consultations shall be effected immediately thereafter. The duration of the provisional measure shall not exceed 200 days during which the pertinent requirements of paragraphs 1, 2 and 5 shall be met. The duration of any provisional measure shall be counted toward the period provided for under paragraph 6.

8. If a WTO Member considers that an action taken under paragraphs 2, 3 or 7 causes or threatens to cause significant diversions of trade into its market, it may request consultations with China and/or the WTO Member concerned. Such consultations shall be held within 30 days after the request is notified to the Committee on Safeguards. If such consultations fail to lead to an agreement between China and the WTO Member or Members concerned within 60 days after the notification, the requesting WTO Member shall be free, in respect of such product, to withdraw concessions accorded to or otherwise limit imports from China, to the extent necessary to prevent or remedy such diversions. Such action shall be notified immediately to the Committee on Safeguards.

9. Application of this Section shall be terminated 12 years after the date of accession.

17. Reservations by WTO Members

All prohibitions, quantitative restrictions and other measures maintained by WTO Members against imports from China in a manner inconsistent with the WTO Agreement are listed in Annex 7. All such prohibitions, quantitative restrictions and other measures shall be phased out or dealt with in accordance with mutually agreed terms and timetables as specified in the said Annex.

18. Transitional Review Mechanism

1. Those subsidiary bodies1 of the WTO which have a mandate covering China's commitments under the WTO Agreement or this Protocol shall, within one year after accession and in accordance with paragraph 4 below, review, as appropriate to their mandate, the implementation by China of the WTO Agreement and of the related provisions of this Protocol. China shall provide relevant information, including information specified in Annex 1A, to each subsidiary body in advance of the review. China can also raise issues relating to any reservations under Section 17 or to any other specific commitments made by other Members in this Protocol, in those subsidiary bodies which have a relevant mandate. Each subsidiary body shall report the results of such review promptly to the relevant Council established by paragraph 5 of Article IV of the WTO Agreement, if applicable, which shall in turn report promptly to the General Council.

2. The General Council shall, within one year after accession, and in accordance with paragraph 4 below, review the implementation by China of the WTO Agreement and the provisions of this Protocol. The General Council shall conduct such review in accordance with the framework set out in Annex 1B and in the light of the results of any reviews held pursuant to paragraph 1. China also can raise issues relating to any reservations under Section 17 or to any other specific commitments made by other Members in this Protocol. The General Council may make recommendations to China and to other Members in these respects.

3. Consideration of issues pursuant to this Section shall be without prejudice to the rights and obligations of any Member, including China, under the WTO Agreement or any Plurilateral Trade Agreement, and shall not preclude or be a precondition to recourse to consultation or other provisions of the WTO Agreement or this Protocol.

4. The review provided for in paragraphs 1 and 2 will take place after accession in each year for eight years. Thereafter there will be a final review in year 10 or at an earlier date decided by the General Council.

Part II - Schedules

1. The Schedules annexed to this Protocol shall become the Schedule of Concessions and Commitments annexed to the GATT 1994 and the Schedule of Specific Commitments annexed to the GATS relating to China. The staging of concessions and commitments listed in the Schedules shall be implemented as specified in the relevant parts of the relevant Schedules.

2. For the purpose of the reference in paragraph 6(a) of Article II of the GATT 1994 to the date of that Agreement, the applicable date in respect of the Schedules of Concessions and Commitments annexed to this Protocol shall be the date of accession.

Part III - Final Provisions

1. This Protocol shall be open for acceptance, by signature or otherwise, by China until 1 January 2002.

2. This Protocol shall enter into force on the thirtieth day following the day of its acceptance.

3. This Protocol shall be deposited with the Director-General of the WTO. The Director-General shall promptly furnish a certified copy of this Protocol and a notification of acceptance by China thereof, pursuant to paragraph 1 of Part III of this Protocol, to each WTO Member and to China.

4. This Protocol shall be registered in accordance with the provisions of Article 102 of the Charter of the United Nations.

Done at Doha this tenth day of November two thousand and one, in a single copy, in the English, French and Spanish languages, each text being authentic, except that a Schedule annexed hereto may specify that it is authentic in only one or more of these languages.

1 Council for Trade in Goods, Council for Trade-Related Aspects of Intellectual Property Rights, Council for Trade in Services, Committees on Balance-of-Payments Restrictions, Market Access (covering also ITA), Agriculture, Sanitary and Phytosanitary Measures, Technical Barriers to Trade, Subsidies and Countervailing Measures, Anti-Dumping Measures, Customs Valuation, Rules of Origin, Import Licensing, Trade-Related Investment Measures, Safeguards, Trade in Financial Services.

企业家如何防范法律风险•之九

企业合同法律风险防范(中)

唐青林 项先权


◎合同争议的解决：尽量争取到自己的“地盘上”打官司
　　合同争议不可避免，有了争议就要解决。如果是跨地域的合作双方发生了争议，由哪个地方的法院或者仲裁机构来裁判案件呢？
　　我们中国人很相信“天时地利人和”，总希望解决争议的法院或者仲裁机构就在企业所在地的城市，一般不愿意千里迢迢地到外地进行一场诉讼或仲裁。在本地打官司，可以“熟门熟路”，而到千里之外打官司会有异地“作战”的种种不便、出差的奔波劳顿。所以，通过合同约定尽量争取到自己的“地盘上”打官司就显得异常重要了。
　　首先，选择解决争议的方式，是仲裁还是诉讼。
　　在我国，解决合同争议的途径可以选择(一)提请人民法院诉讼解决；(二)提交仲裁机关仲裁。但是二者只能选择一种，而且一旦选择一种就不能选择另外一种方式。如选择了仲裁，就不能到法院进行诉讼，即你自己已放弃了诉讼的权利，所以认为仲裁和诉讼可并存是错误的。
　　那么，到底是选择诉讼解决还是选择仲裁更好？为了作出有利于企业的选择，企业在作出选择之前应了解法院诉讼和仲裁二者的如下区别：
　　(1)启动程序的条件不同。如果没有在合同中明确约定仲裁条款和具体的仲裁机构，案件就只能通过法院诉讼解决；(2)受案范围不同。仲裁机构一般只受理民商、经济类案件，不受理婚姻、收养、监护、抚养、继承纠纷案件和刑事、行政案件；(3)管辖级别不同。仲裁机构之间不存在上下级之间的隶属关系，仲裁不实行级别管辖和地域管辖。当事人可以在全国范围内任意选择信誉好的仲裁机构，而不论纠纷发生在何地、争议的标的有多大。而法院实行级别管辖和地域管辖。根据当事人之间发生的争议的具体情况来确定由哪一级法院及由哪个地区的法院管辖。无管辖权的法院不得随意受理案件，当事人也不得随意选择；(4)公开程度不同。仲裁一般不公开进行，所以如果案件商业秘密需要保密的，最好选择仲裁裁决。人民法院审理，一般应当公开进行，但涉及国家秘密、个人隐私或法律另有规定的，不公开审理。离婚案件、涉及商业秘密的案件，当事人申请不公开审理的，可以不公开审理；(5)选择裁判员的权利不同。在仲裁中，当事人可以根据自身的情况来选择仲裁机构、选择仲裁员，甚至选择仲裁的时间和地点，选择适用的实体法。而法院诉讼中，当事人无权选择审判员。当然，如果有法定情形的，当事人可以要求审判员回避。所以，仲裁更加具有灵活性；(6)终局的程序不同。仲裁实行一裁终局制，仲裁裁决一经作出就立即生效。而法院诉讼则实行两审终审制，一个案件经过两级人民法院审理。一个案件一审法院审理后，当事人还可以上诉到上级法院。二审法院审理结束后案件即告终结，发生法律上的效力。因此，仲裁的时间效率更高，能更快得到裁决结果。
　　其次，选择解决争议的地点。
　　我国《民事诉讼法》第二十五条规定，合同的双方当事人可以在书面合同中协议选择被告住所地、合同履行地、合同签订地、原告住所地、标的物所在地人民法院管辖。所以，只要企业能在合同条款谈判中占主动权的，尽量利用该法律条文的规定，约定由自己所在地的法院管辖。这样就可以避免到千里之外的异地去打官司。
　　如果选择仲裁的，也可以通过合同条款约定管辖地点。例如一家北京的公司和一家深圳的公司签署了一份合同，北京的公司希望仲裁解决争议，而且希望在北京仲裁，那么可以这样撰写合同条款：“如果各方因合同产生争议，各方应首先尝试通过友好协商解决上述争议。如果无法通过友好协商得到解决，则应将争议提交中国国际经济贸易仲裁委员会，根据提交仲裁时有效的仲裁委员会仲裁规则进行有约束力的仲裁。仲裁地点为北京。仲裁裁决是终局的，并对各方均具有约束力，各方同意受其约束并依其行事”。
◎如何防范“表见代理”给企业带来损失
　　单纯说“表见代理”，可能有些人不懂，那么让我们从一个案例来看“表见代理”给公司带来损失的案例。
　　刘某是浙江省台州市H机械制造厂驻哈尔滨业务代表。刘某从2005年以来，一直代表浙江省台州市H机械制造厂与哈尔滨市的客户进行商贸往来。2008年6月27日，刘某被浙江省台州市H机械制造厂辞退。辞退后，刘某在H厂完全不知情的情况下，利用手上剩余的一些盖有H厂公章的空白合同，与哈尔滨客户A、B公司签了两份协议，并利用个人账户收取定金360余万元后潜逃。事发后，A、B公司要求台州市H厂按照签署的合同履行，或者双倍返还定金共计720余万元。该案经法院审理后，法院判决台州市H厂双倍返还定金共计720余万元给A、B公司，造成台州市H厂经济损失720多万元。
　　法院凭什么判决H机械制造厂败诉？其法律根据就是“表见代理”。我国《合同法》第四十九条规定，行为人没有代理权、超越代理权或者代理权终止后以被代理人名义订立合同，相对人有理由相信行为人有代理权的，该代理行为有效。
　　在本案件中，刘某已经被H机械制造厂辞退，不再有权代表公司签署任何合同。但是A、B公司作为与他长期经贸往来的公司，并未收到台州市H厂关于刘某被辞退的通知。A、B公司完全有理由相信，刘某和他们签署合同的时候，还是台州市H机械制造厂驻哈尔滨的代表。所以他们与刘某签署合同(合同盖有H厂的公章)后，该合同当然被认定有效。
　　企业在发展的不同阶段，必不可少会发生辞退业务员、经理、驻各地的业务代表。这些业务代表在被辞退后进行的业务行为，很可能被认定符合“表现代理”，最后要公司承担责任。所以企业应重视这类风险的防范。
　　防范这类法律风险的策略就是：(1)保管好盖章的空白合同。盖章的空白合同的总数、已经签署的合同都应该登记在册。辞退之前，应要求被辞退的业务员、业务代表将盖章的空白合同上交公司。(2)在被辞退的业务员、业务代表的影响范围内，发布通知、人事变动公告(例如本案中，就可以在哈尔滨当地报纸发布人事变动公告)。通知公司的客户有关该业务代表已经离职的事实。当然，《通知》可以写得客气、婉转，可以同时对客户一直以来的关照表示感谢等等。如新任的业务代表已经到位，可以同时在《通知》中告知新业务代表的姓名和联系方式，便于新业务代表迅速开展工作。一旦公司通知了，就不会被认定为“相对人有理由相信行为人有代理权”，公司就不需要承担不利的法律责任。
◎签署合同如何避免防范泄露商业秘密
　　有时候企业对商业外谈判、签署协议的过程中，为了达成合同条款，双方需要逐步向对方提供一些信息、产品资料、性能数据等。有些场合下，可能最终协议没签成，却反而泄露了商业秘密。如何防止商业秘密被泄露？这就要充分利用保密协议或者框架协议中的保密条款。
　　为了保护商业秘密，防范法律风险，我们建议企业在对外进行商业谈判之初就签署保密协议。尤其是涉及到重大投资、融资、增资扩股、公司并购等项目中，签署一份完善的保密协议是非常必要的。这样可以保证即便最终未能成交，不会因为谈判的进展而泄露商业秘密。否则，若没签署保密合同，就可能导致要么企业不敢给对方提供必要的交易参考信息，造成交易障碍；要么提供这类信息后被对方泄露出去，影响公司未来经营。
　　一般保密合同可以包括如下条款：
　　一、保密信息接受方的公司高层管理人员包括董事，合伙人，高级职员，雇员，法律顾问及代表人或代理人，在保密协议中承诺对有关本项目的资料、信息进行保密。
　　二、对保密信息进行定义。“保密信息”指所有由披露方向接受方及其代表通过任何形式或媒介提供的与本项目有关的所有非公开的信息。保密信息包括但不限于，由接受方及其代表整理的所有分析、编辑及其他包含与本项目有关信息的文件(也就是派生文件)。
　　三、保密信息的例外。保密信息不包含以下信息：(1)并非由本协议接受方违背本协议所造成的、已经或正在公开的信息；(2)接受方在非保密的基础上，已经或正在获得的信息，并且接受方并未知道提供信息的来源方对保密信息赋有保密义务的信息；(3)接受方或其代表在接受披露方提供此信息前已经获取的信息；(4)在未使用保密信息的情况下，由接受方或其代表开发的信息。
　　四、泄密赔偿的约定。保密信息的接受方同意，在其违约泄密的情况下，承诺赔偿经济损失。包括全部直接损失和间接损失。包括诉讼发生的全部费用、合理的律师费等。
　　五、保密信息的销毁。在保密信息披露方的要求下，接受方将销毁或返还披露方所有保密信息(包括电脑硬盘中的电子文档)，销毁所有派生文件。
　　如果在洽商、谈判过程中被对方泄露商业秘密或者不当使用企业的商业秘密，企业可以拿起法律武器保护自身合法权益。我国合同法第四十三条规定，当事人在订立合同过程中知悉的商业秘密，无论合同是否成立，不得泄露或者不正当地使用。泄露或者不正当地使用该商业秘密给对方造成损失的，应当承担损害赔偿责任。
◎注意区分《意向书》与《合同》
　　经常有企业家向我们咨询意向书是否具有法律效力、签署意向书之后是否需要承担法律责任。为了防范签署意向书带来的法律风险，我们要正确区分《意向书》与《合同》的区别。
　　实践中，合同可以以不同的名称出现，如合同，合同书，协议，协议书，备忘录、契约等。合同就是具有特定内容的协议，用来约定当事人相互之间的权利义务关系。同样具备上述特征的协议就是合同。至于合同的名字并不重要，关键是看其实质性内容。
　　而意向书是双方当事人通过初步洽商，就各自的意愿达成一致认识而签订的书面文件，是双方进行实质性谈判的依据，是签订正式合同的前奏。
　　两者之间有诸多的区别。(1)内容不同。合同的内容是合同各方之间的民事权利义务关系进行实质性的约定；而意向书的内容仅是合同各方就进行某交易进行了洽商，并一致决定继续洽商、谈判、缔约的意向，并没有对双方民事权利义务关系进行具体的约定。(2)签订时间不同。意向书是双方达成意向后签署，是签署正式合同的前奏。所以一般意向书在前，正式合同签署时间在后。(3)法律后果不同。签署正式合同后，合同会对签约主体具有法律约束力。违反合同的要承担违约责任；而违反签署的意向书，除非具有缔约过失的需要承担缔约过失责任，否则无需承担其他法律责任。我国《合同法》第四十二条规定，当事人在订立合同过程中有下列情形之一，给对方造成损失的，应当承担损害赔偿责任：假借订立合同，恶意进行磋商；故意隐瞒与订立合同有关的重要事实或者提供虚假情况；有其他违背诚实信用原则的行为。(4)两者之间可能混同。如果一份协议尽管名字是《意向书》，但是如果其内容具体约定了签约主体之间权利义务关系，那么对合同各方是具备法律约束力的，实际上已经是合同了。所以不能片面地认为意向书绝对不具备法律效力，关键还是要看其内容是否具备了合同的内容。


注：
1、本文首次刊登于《法制日报•周末》，作者为唐青林（北京市安中律师事务所律师）、项先权（浙江新台州律师事务所律师）。
2、本文为“企业家法律风险防范”系列文章之一。主要内容摘自作者于2008年11月在北京大学出版社出版的《企业家法律风险防范》（MBA、EMBA教材）。

■唐青林 北京市安中律师事务所律师
■项先权 浙江新台州律师事务所律师