新疆维吾尔自治区和田地区行署办公室


关于印发和田地区建设项目“黑名单”制度管理（试行）办法的通知
(和行办发〔2005〕21号)

各县市人民政府，行署各部门、直属机构，各事业、企业单位，驻和各单位，各群众团体：
　　《和田地区建设项目“黑名单”制度管理（试行）办法》已经行署2005年第一次常务会议研究通过，现印发你们，请认真贯彻执行。
　　

　　二〇〇五年四月五日


和田地区建设项目“黑名单”制度管理（试行）办法

　　第一条 为进一步加强建设项目勘察、设计、招标代理、监理、施工以及评标专家等规范管理，根据《中华人民共和国招标投标法》和《评标专家和评标专家库管理暂行办法》等有关规定，制定本办法。
　　第二条 本办法适用于在和田地区范围内从事项目勘察、设计、招标代理、监理、施工以及评标等业务的单位和个人的管理活动。
　　第三条 对在和田地区范围内从事项目勘察、设计、招标代理、监理、施工的单位，以及列入地区评标专家库的评标专家实行“黑名单”管理制度。
　　第四条 勘察、设计单位有下列情形之一的，列入“黑名单”：
　　(一)与建设单位串通，或者相互之间串通，采用不正当手段承接勘察、设计业务的；
　　(二)超越资质等级范围承接勘察设计业务的；
　　(三)将承接的勘察、设计业务转包或者违法分包的；
　　(四)因勘察、设计原因造成经济损失、重大设计变更或工程重大质量安全事故的；
　　(五)设计单位违反规定指定建筑材料、建筑构配件的生产厂、供应商的；
　　(六)勘察、设计单位未按有关规定派设计代表进驻施工现场的；
　　(七)转让资质证书的；
　　(八)为其他企业提供图章、图签的；
　　(九)伪造、涂改资质证书的；
　　(十)被国内其他地区级以上(包括地区级和地级市)单位列入“黑名单”的。
　　第五条 招标代理机构有下列情形之一的，列入 “黑名单”：
　　(一)与行政机关有隶属关系或者其他利益关系的；
　　(二)没有固定的营业场所和开展工程招标代理业务所需设施及办公条件的；
　　(三)国家投资或者国有资金控股的建设项目开标时，未在自治区、地区统一的评标专家库中抽取专家的；
　　(四)与建设单位或施工单位相互串通招标投标的；
　　(五)以管理为名，非法干预评标专家评标活动的；
　　(六)在保密时限内向他人透露标底的；
　　(七)超越代理业务范围承揽招标代理业务的；
　　(八)允许其他单位或个人以本单位的名义承接招标代理业务的；
　　(九)转让招标代理业务的；
　　(十)被国内其他地区级以上(包括地区级和地级市)单位列入“黑名单”的招标代理机构；
　　(十一)其他违反《中华人民共和国招标投标法》开展招标代理业务的。
　　第六条 监理单位有下列情形之一的，列入“黑名单”：
　　(一)超越本单位资质等级承揽监理业务的；
　　(二)与建设单位或者工程监理企业之间相互串通投标，或者以行贿等不正当手段谋取中标的；
　　(三)与建设单位或者施工单位串通，弄虚作假、降低工程质量的；
　　(四)未按照合同和监理大纲规定派驻相应监理人员(总监、监理工程师及监理人员)参加工程监理的；
　　(五)未实行“旁站监理”，或者由于监理人员人为造成工期拖延，影响工程进度的；
　　(六)无证上岗的；
　　(七)未按照批准的设计文件和监理大纲履行监理职责，造成工程质量隐患和经济损失的；
　　(八)未经审批擅自追加(减)工程量或追加(减)投资的；
　　(九)不合格的建设工程、建筑材料、建筑构配件和设备按照合格签字的；
　　(十)允许其他单位或个人以本单位的名义承接监理业务的；
　　(十一)转让工程监理业务的；
　　(十二)因监理责任而发生一起工程建设重大质量事故或者在以往工程建设中发生过一起工程建设重大质量事故的；
　　(十三)被国内其他地区级以上(包括地区级和地级市)单位列入“黑名单”的监理单位。
　　第七条 施工企业及项目经理有下列情形之一的，列入 “黑名单”：
　　(一)在工程招投标中采取行贿、送礼、串标等不正当竞争手段，扰乱市场秩序的；
　　(二)由于施工企业或项目经理原因拖欠农民工工资并造成恶劣影响的；
　　(三)转包或非法分包工程的；
　　(四)出现工程质量问题，拒不返工的；
　　(五)进场的项目经理、主要设备及技术人员(包括安全、技术、施工、材料保管、预算员)与投标文件不一致的；
　　(六)项目经理超越权限承揽工程的；
　　(七)未按设计文件施工的；
　　(八)出现1次以上(包括1次)重大质量问题的；
　　(九)由于项目经理管理不善，造成施工企业被列入“黑名单”，该项目经理将同时列入“黑名单”；
　　(十)被国内其他地区级以上(包括地区级和地级市)单位列入“黑名单”的施工企业和项目经理。
　　第八条 评标专家有下列情形之一的，列入 “黑名单”：
　　(一)私下接触投标人的；
　　(二)收受利害关系人的财物或者其他好处的；
　　(三)向他人透露投标文件的评审和比较、中标候选人的推荐，以及与评标有关的其他情况的；
　　(四)不能客观公正履行职责的；
　　(五)无正当理由，拒不参加评标活动的；
　　(六)不参加年审的；
　　(七)在保密时限内向他人透露标底的；
　　(八)不公正评标，相互串通、倾向性评标的。
　　第九条 和田地区建设项目“黑名单”，由行业主管部门提出，经地区发展计划委员会初审，报行署审定后在相关媒介定期公布。
　　第十条 列入地区建设项目“黑名单”的单位和个人，三年内不得在和田地区范围内参与工程建设的相关活动。
　　第十一条 列入和田地区建设项目“黑名单”的单位和个人处罚期限届满，由该单位和个人提出申请，经地区发展计划委员会会同地区行业主管部门审查，报行署审定后在相关媒介定期公布，其名单从和田地区建设项目“黑名单”中除名。
　　第十二条 本办法由和田地区发展计划委员会会同有关部门负责解释。
　　第十三条 本办法从下发之日起试行。



Chapter V
Guidelines for Interpretation
of the WTO Covered Agreements


OUTLINE

I Introduction
II Application of Arts. 31, 32 of the Vienna Convention
III WTO Rules on Conflicts: Effective Interpretation
IV The Status of Legitimate Expectations in Interpretation



I Introduction
According to Art. 11 of the DSU, the panel's role is to “make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability and conformity with the relevant covered agreements”. In the previous chapter, we have examined the general standard of review labeled as “an objective assessment” regarding “the facts of the case”; clearly, for panels to fulfil appropriately their functions as designated in Art. 11 of the DSU, it is also indiscerptible to make such an objective assessment of “the applicability and conformity with the relevant covered agreements”. Therefore, the interpretation issue of the covered agreements arises. In this section, the author will scrutinize guidelines for interpretation applied under the WTO jurisprudence.
To resolve a particular dispute, before addressing the parties' arguments in detail, it is clearly necessary and appropriate to clarify the general issues concerning the interpretation of the relevant provisions and their application to the parties' claims. However, the complex nature of the covered agreements has given rise to difficulties in interpretation.
As noted previously, GATT/WTO jurisprudence should not be viewed in isolation from general principles developed in international law or most jurisdictions; and according to Art. 3.2 of the DSU, panels are bound by the “customary rules of interpretation of public international law” in their examination of the covered agreements. A number of recent adopted reports have repeatedly referred, as interpretative guidelines, to “customary rules of interpretation of public international law” as embodied in the text of the 1969 Vienna Convention on the Law of Treaties (‘Vienna Convention’), especially in its Arts. 31, 32. It is in accordance with these rules of treaty interpretation that panels or the Appellate Body have frequently examined the WTO provisions at issue, on the basis of the ordinary meaning of the terms of those provisions in their context, in the light of the object and purpose of the covered agreements and the WTO Agreement. These Vienna Convention articles provide as follows:

“Art. 31: General Rule of Interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.

Art. 32 Supplementary Means of Interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.”

II Application of Arts. 31, 32 of the Vienna Convention
Pursuant to Art. 31.1 of the Vienna Convention, the duty of a treaty interpreter is to determine the meaning of a term in accordance with the ordinary meaning to be given to the term in its context and in light of the object and purpose of the treaty. As noted by the Appellate Body in its Report on Japan-Alcoholic Beverages (DS8/DS10/DS11), “Article 31 of provides that the words of the treaty form the foundation for the interpretive process: ‘interpretation must be based above all upon the text of the treaty’. The provisions of the treaty are to be given their ordinary meaning in their context. The object and purpose of the treaty are also to be taken into account in determining the meaning of its provisions”. And in US ? Shrimps (DS58), the Appellate Body accordingly states: “A treaty interpreter must begin with, and focus upon, the text of the particular provision to be interpreted. It is in the words constituting that provision, read in their context, that the object and purpose of the states parties to the treaty must first be sought. Where the meaning imparted by the text itself is equivocal or inconclusive, or where confirmation of the correctness of the reading of the text itself is desired, light from the object and purpose of the treaty as a whole may usefully be sought.”
More specifically, the Panel in US-Sections 301-310 (DS152) rules that: “Text, context and object-and-purpose correspond to well established textual, systemic and teleological methodologies of treaty interpretation, all of which typically come into play when interpreting complex provisions in multilateral treaties. For pragmatic reasons the normal usage, and we will follow this usage, is to start the interpretation from the ordinary meaning of the ‘raw’ text of the relevant treaty provisions and then seek to construe it in its context and in the light of the treaty's object and purpose. However, the elements referred to in Article 31 - text, context and object-and-purpose as well as good faith - are to be viewed as one holistic rule of interpretation rather than a sequence of separate tests to be applied in a hierarchical order. Context and object-and-purpose may often appear simply to confirm an interpretation seemingly derived from the ‘raw’ text. In reality it is always some context, even if unstated, that determines which meaning is to be taken as ‘ordinary’ and frequently it is impossible to give meaning, even ‘ordinary meaning’, without looking also at object-and-purpose. As noted by the Appellate Body: ‘Article 31 of the Vienna Convention provides that the words of the treaty form the foundation for the interpretive process: 'interpretation must be based above all upon the text of the treaty'’. It adds, however, that ‘[t]he provisions of the treaty are to be given their ordinary meaning in their context. The object and purpose of the treaty are also to be taken into account in determining the meaning of its provisions’.” 1
In sum, as noted by the Panel in Canada-Automotive Industry (DS139/DS142), “understanding of these rules of interpretation is that, even though the text of a term is the starting-point for any interpretation, the meaning of a term cannot be found exclusively in that text; in seeking the meaning of a term, we also have to take account of its context and to consider the text of the term in light of the object and purpose of the treaty. Article 31 of the Vienna Convention explicitly refers to the ‘ordinary meaning to be given to the terms of the treaty in their [the terms'] context and in the light of its [the treaty's] object and purpose’. The three elements referred to in Article 31 - text, context and object and purpose - are to be viewed as one integrated rule of interpretation rather than a sequence of separate tests to be applied in a hierarchical order. Of course, context and object and purpose may simply confirm the textual meaning of a term. In many cases, however, it is impossible to give meaning, even ‘ordinary meaning’, without looking also at the context and/or object and purpose”. 2
With regard to Art. 32 of the Vienna Convention, it is repeatedly ruled that, “[t]he application of these rules in Article 31 of the Vienna Convention will usually allow a treaty interpreter to establish the meaning of a term. However, if after applying Article 31 the meaning of the term remains ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable, Article 32 allows a treaty interpreter to have recourse to ‘... supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion’. With regard to 'the circumstances of [the] conclusion' of a treaty, this permits, in appropriate cases, the examination of the historical background against which the treaty was negotiated.” 3
As a whole, under the WTO jurisprudence, with regard to the dispute among the parties over the appropriate legal analysis to be applied, as general principles or guidelines of interpretation, it is often begun with Art. 3.2 of the DSU. To go further, as noted by the Panel in Japan-Alcoholic Beverages, “the ‘customary rules of interpretation of public international law’ are those incorporated in the Vienna Convention on the Law of Treaties (VCLT). GATT panels have previously interpreted the GATT in accordance with the VCLT. The Panel noted that Article 3:2 DSU in fact codifies this previously-established practice”. Consequently, “the Panel concluded that the starting point of an interpretation of an international treaty, such as the General Agreement on Tariffs and Trade 1994, in accordance with Article 31 VCLT, is the wording of the treaty. The wording should be interpreted in its context and in the light of the object and the purpose of the treaty as a whole and subsequent practice and agreements should be taken into account. Recourse to supplementary means of interpretation should be made exceptionally only under the conditions specified in Article 32 VCLT”. 4
In short, it is may be the case that, it is generally considered that the fundamental rules of treaty interpretation set out in Arts. 31 and 32 of the Vienna Convention have attained the status of rules of customary international law. In recent years, the jurisprudence of the Appellate Body and WTO panels has become one of the richest sources from which to receive guidance on their application.
III WTO Rules on Conflicts: Effective Interpretation
The Panel Report on Turkey-Textile and Clothing Products (DS34) states concerning the conflicts issue that: 5
“As a general principle, WTO obligations are cumulative and Members must comply with all of them at all times unless there is a formal ‘conflict’ between them. This flows from the fact that the WTO Agreement is a ‘Single Undertaking’. On the definition of conflict, it should be noted that: ‘… a conflict of law-making treaties arises only where simultaneous compliance with the obligations of different instruments is impossible. ... There is no conflict if the obligations of one instrument are stricter than, but not incompatible with, those of another, or if it is possible to comply with the obligations of one instrument by refraining from exercising a privilege or discretion accorded by another’.
This principle, also referred to by Japan in its third party submission, is in conformity with the public international law presumption against conflicts which was applied by the Appellate Body in Canada - Periodicals and in EC - Bananas III, when dealing with potential overlapping coverage of GATT 1994 and GATS, and by the panel in Indonesia - Autos, in respect of the provisions of Article III of GATT, the TRIMs Agreement and the SCM Agreement. In Guatemala - Cement, the Appellate Body when discussing the possibility of conflicts between the provisions of the Anti-dumping Agreement and the DSU, stated: ‘A special or additional provision should only be found to prevail over a provision of the DSU in a situation where adherence to the one provision will lead to a violation of the other provision, that is, in the case of a conflict between them’.
We recall the Panel's finding in Indonesia - Autos, a dispute where Indonesia was arguing that the measures under examination were subsidies and therefore the SCM Agreement being lex specialis, was the only ‘applicable law’ (to the exclusion of other WTO provisions): ‘14.28 In considering Indonesia's defence that there is a general conflict between the provisions of the SCM Agreement and those of Article III of GATT, and consequently that the SCM Agreement is the only applicable law, we recall first that in public international law there is a presumption against conflict. This presumption is especially relevant in the WTO context since all WTO agreements, including GATT 1994 which was modified by Understandings when judged necessary, were negotiated at the same time, by the same Members and in the same forum. In this context we recall the principle of effective interpretation pursuant to which all provisions of a treaty (and in the WTO system all agreements) must be given meaning, using the ordinary meaning of words.’
In light of this general principle, we will consider whether Article XXIV authorizes measures which Articles XI and XIII of GATT and Article 2.4 of the ATC otherwise prohibit. In view of the presumption against conflicts, as recognized by panels and the Appellate Body, we bear in mind that to the extent possible, any interpretation of these provisions that would lead to a conflict between them should be avoided.”
It is clearly implied by the ruling above that, in the WTO system, any interpretation of the covered agreements that would lead to a conflict between them should be avoided. In this respect, as to WTO rules of conflicts, in the context that all WTO agreements were negotiated “at the same time, by the same Members and in the same forum”, the principle of effective interpretation is recalled. What a principle is it?
As ruled by the Panel in Japan-Alcoholic Beverage (DS8/DS10/DS11), effective interpretation is a principle “whereby all provisions of a treaty must be, to the extent possible, given their full meaning so that parties to such a treaty can enforce their rights and obligations effectively…. this principle of interpretation prevents [the panel] from reaching a conclusion on the claims … or the defense …, or on the related provisions invoked by the parties, that would lead to a denial of either party's rights or obligations.” 6 This ruling is upheld by the Appellate Body when ruling that, “[a] fundamental tenet of treaty interpretation flowing from the general rule of interpretation set out in Article 31 is the principle of effectiveness (ut res magis valeat quam pereat). In United States - Standards for Reformulated and Conventional Gasoline, we noted that ‘[o]ne of the corollaries of the ‘general rule of interpretation’ in the Vienna Convention is that interpretation must give meaning and effect to all the terms of the treaty. An interpreter is not free to adopt a reading that would result in reducing whole clauses or paragraphs of a treaty to redundancy or inutility’.” 7