WTO 분쟁해결체제 하의 선결적 항변에 관한 연구

It is noteworthy that WTO panels and Appellate Body sometimes uphold preliminary objections of the disputing parties with respect to the request for the establishment of a panel and terms of reference even though the jurisdiction of the WTO dispute settlement system is compulsory unlike the International Court of Justice. There are no cases where WTO adjudicators accept all the preliminary objections of the respondents and do not go into the merits. While the provisions relating to preliminary objections are normally laid down in other international judicial systems including the ICJ, WTO panels and Appellate Body, in practice, have accepted preliminary objections on the basis upon the inherent powers theory without any express provisions. When it comes to the basic terms, ‘preliminary objections’ in the early days and the request for a ‘preliminary ruling’ at present is usually used. In addition, some preliminary ruling reports are circulated to the WTO Members prior to the circulation of the final panel report. Having regard to preliminary objections examined in the WTO dispute settlement proceedings, they are mainly raised because of the inconsistency of panel requests with the requirements under Article 6.2 of the Dispute Settlement Understanding. In these cases, the requirements whether the specific measures at issue and the legal basis of the complaint are not only sufficiently precise but also the respondents’ defence rights are prejudiced are interpreted in light of object and purpose of Article 6.2 on a case-by-case basis by the adjudicators. Above all, it is preferred that a defending party should submit any request for a preliminary ruling not later than its first written submission, in spite of the fact that WTO panels and Appellate Body do not occasionally reject late jurisdictional objections. Our government has requested or has been requested preliminary rulings in the WTO dispute settlement system. Until now, many of our preliminary objections have been rejected while preliminary objections of our trading partners have fairly been upheld in the cases Korea made. Accordingly, when we make a complaint our government has to consider that we sufficiently write clear specific measures as well as legal basis of the complaint in panel requests in order to prevent the respondents from issuing preliminary objections. Besides, our government has to raise preliminary objections in a timely manner focusing upon lack of requirements of Article 6.2 in panel requests when a complaint is made.