Research On Dispute Settlement Mechanism Of China-ASEAN Free Trade Area

January 1, 2010 China - ASEAN Free Trade Area (China-ASEAN Free Trade Area) fully completed, known as CAFTA. CAFTA is the first of China's foreign negotiations of a free trade area, also the first free trade area of ASEAN countries which in the talks as a union. The establishment of free trade areas of economic integration and regional integration in the global context, free trade area as an important form of regional integration, which focus on promoting free trade area members of the economic and trade exchanges, common prosperity. The FTA mainly include trade in goods, trade in services, investment measures, how to protect the effective operation of these systems, and a free trade area agreements compliance, there must be appropriate dispute settlement mechanism as a safeguard. "China - ASEAN Free Trade Area Agreement" is produced in this context.Full-text is divided into four parts. First of all, there is an overview of China - ASEAN dispute settlement mechanism; Secondly, the world's other major existing dispute settlement mechanism was introduced, and with China - the ASEAN dispute settlement mechanism of the system comparison; then, by comparing the foregoing summary of induction, obtained China - ASEAN Dispute Settlement Mechanism and shortcomings; Finally, it proposed the goals of study and practice, and specific response for the China - ASEAN mechanisms.The first chapter, the author first introduced the China - ASEAN Dispute Settlement Mechanism of the production, "China - ASEAN Dispute Settlement Mechanism Agreement" was signed by the leaders of both sides on November 29, 2004, held in the Laos capital of Vientiane, the Eighth China-ASEAN Summit. From the reality-based perspective, analyzed the necessity and possibility of establishment on the Dispute Settlement Mechanism of CAFTA, the reality of a necessity that comes from several aspects: the establishment of a free trade area after the rapid growth of bilateral economic exchanges, the two sides complement the internal economic structure and competitiveness, history, culture, geography and so on. Next, the author expounds CAFTA dispute settlement mechanism of the main content and scope of the dispute, the procedures for consultation, mediation and conciliation, the arbitral tribunal and other procedural requirements set were presented and analyzed. End of this chapter, the author was discussed the significance of CAFTA dispute settlement mechanism, CAFTA dispute settlement mechanism is the "framework agreement" and even the Free Trade Area of the "safety valve"; the same time, CAFTA dispute settlement mechanism is the solution of international disputes and the free trade area their integration characteristics of a successful experiment, both flexible and consultations, conciliation, mediation, there are mandatory and binding arbitration, such a political solution and the combination of legal solutions to represent the trend of international dispute settlement.The second chapter, the author From the WTO, NAFTA, the EU dispute settlement mechanism of the characteristics of the starting, respectively, compare CAFTA dispute settlement mechanism in the specific system. WTO mechanism is more mature in the "Justice", have a permanent dispute settlement body and appeal procedures, as well as "reverse consensus" vote on this innovation. NAFTA mechanism characterized by its "dispersion", that is, the different areas covered in the NAFTA dispute settlement issues set different dispute settlement bodies and dispute settlement procedures. In the NAFTA dispute settlement mechanism, the parties of a dispute, to adopt the negotiation - mediation - arbitration, dispute resolution, is launched by the members of the party, with great autonomy solution, therefore, the model essentially is a non-litigation, non-confrontational means of quasi-judicial relief. EU integration is the highest in the world, not only in developing a sound legislative law is in the implementation of the development of appropriate structures and systems as a guarantee, especially the introduction of regional economic integration judicial system of dispute settlement. The establishment of the European Court with Supra-national elements makes the EC's economic integration with the mandatory rules and judicial protection. The court's decision is mandatory for Member States, can not be circumvented by domestic law of member states. European Court of Justice can resolve disputes in the EU economic integration, maintenance and promotion of European economic integration and the formation of the EC regional economic integration judicial mode of dispute settlement, European Court of Justice in the development of regional economic integration in the legal system and to the global economic integration has played an immeasurable influence and role.The third chapter, the author, based on Chapter II and other dispute settlement mechanism, and obtains the CAFTA dispute settlement mechanism of the features and shortcomings. Characterized in that: 1, the dispute settlement mechanism and limitation of freedom of choice of the combination; 2, case range of clarity; 3, the use of arbitration system; 4, consultation and mediation of non-essential procedures; 5, there is, the implementation of the program. The drawback is that: 1.The shortage of main scope. It defined as no requirement for businesses, individuals, social groups involved in the content of dispute settling, the protection of private principal interests is dissatisfied.2. The composition of arbitration court is short-handed. The ability of arbitrators is too broad, while the identity of the arbitrator is not similar stringent as the requirement of arbitration court president. It may lead to harm for arbitrators'independency and qualification. Also this would establish an adverse impact between the consistency and credibility in Dispute Settlement Mechanism.3. The procedure of arbitration court is deficient.4. Lack of arbitrament review procedure. Inappropriate composition of the arbitration court can not be avoided to beyond the authority, or influence the fairness under an unclear circumstance for making judgments.5. Lack of implementation procedures. Under CAFTA Dispute Settlement Mechanism, it lacks of similar system as the WTO's following implementation supervision system, about the suggestion and arbitrament of the DSB will be placed under the supervision until the problem can be solved. Therefore, CAFTA is unable to ensure that the interests of the prevailing party can not be fully realized.6. Lack of punishment mechanism. CAFTA Dispute Settlement Mechanism has no specification to regulate the extent of suspension of concessions or benefits.In the fourth part, the author analyzed that the Dispute Settlement Mechanism of CAFTA influences to our China, solving the Dispute Settlement Mechanism of CAFTA has the important meaning to our China again, then respectively analyzed from the macro and micro, inquired into that our China should have law strategy on solving the mechanism of dispute. for example, Establishing early warning mechanisms.Overall view, The Dispute Settlement Mechanism of CAFTA established to China and ASEAN for the economic development of a fair, transparent external conditions for the coordination of trade relations, the settlement of trade conflicts, the maintenance of trade and economic cooperation as the good functioning of a "safety valve" role between China and ASEAN.