五、多边竞争协议对特殊和差别待遇的适用
特殊和差别待遇的实施是发展中国家关注的主要问题。在WTO多边竞争协议中适用特殊和差别待遇的目的在于灵活地、渐进地促进发展目标,使发展中国家更有能力履行协议,更充分地参与贸易自由化。特殊和差别待遇在GATT/WTO体制中经历了一段发展历程,其作用和缺陷都已得到了一定程度的体现。发展中国家认为特殊和差别待遇或者太广泛、太原则性,或者仅仅是劝告性,不产生法律上可实施的义务;另外,过渡期和技术援助没有充分考虑到发展中国家的特殊需要等。在WTO多边竞争协议中适用特殊和差别待遇必然要以GATT/WTO体制中原有的特殊和差别待遇为基础,借鉴其经验,并尽可能避免其缺陷。因此,多边竞争协议中采用特殊和差别待遇首先应以足够精确的语言起草条文,选择具有实质意义的特殊与差别待遇模式,并制定监控程序或后继程序以便成员国更好地履行特殊和差别待遇。
多边竞争协议应允许成员国在其国内竞争法中规定豁免和除外制度。竞争法的豁免和除外对象一般是对维护本国整体经济利益和社会公共利益有重大意义的行业或领域以及那些对市场竞争影响不大,但对整体利益有益的限制竞争行为。因此,发展中国家可以根据其市场结构、发展程度、具体特征等确定竞争法的豁免与除外对象,以实现其优先政策目标,促进本国经济发展。但是,为了防止对豁免和除外制度的滥用,多边竞争协议应要求成员国承诺对豁免和除外制度的设置和实施予以严格控制,确保豁免和除外制度设置的合理性、实施的透明性以及豁免和除外制度的实际效果能够得到定期审查。由于各国的政治体制不同,关于控制豁免和除外制度设置和实施的具体做法,多边竞争协议应留给成员国自主决定。这样,既可以灵活、渐进地促进发展目标,又可以避免豁免和除外制度对竞争可能产生的扭曲作用。
多边竞争协议还应通过规定技术援助和能力建设来适用特殊和差别待遇。由于发展中国家竞争法发育程度较低,执行能力有限,因此,帮助其进行能力建设,对于促使其切实履行多边竞争协议是非常关键的。但是,技术援助应有针对性,应符合发展中国家的具体需要,以使发展中国家能真正地从中获益。技术援助的形式可以多种多样,包括帮助发展中国家制定和完善国内竞争法、支持发展中国家建立国内竞争当局、培训发展中国家竞争当局的人员、与发展中国家竞争当局交换经验等。技术援助还应重视协调一致性,给予方、接受方和组织者三方面的协调是确保技术援助取得效益的关键因素,这能够避免技术援助和能力建设的重复以及地区失衡。另外,技术援助还应具有连贯性,不能仅考虑发展中国家临时性的需要,而是应从其长期效益着手,这样才能取得良好效果。为了保证技术援助计划的落实,多边竞争协议可考虑建立一个专门的委员会,以监督技术援助计划的执行,便利成员国竞争当局之间信息和经验的交换,并最终促进发展中国家履行多边竞争协议的能力的提高。
【注释】
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