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Wto Safeguards System Theory And Dispute Resolution Practice,

Posted on:2005-09-20Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y X XiaoFull Text:PDF
GTID:1116360122481898Subject:International Law
Abstract/Summary:PDF Full Text Request
Like anti-dumping measures and countervailing measures, safeguard measures are trade remedies allowed by WTO to protect domestic industries. A Member may apply a safeguard measure to a product only if that Member has determined a product is being imported into its territory in such increased quantities, absolute or relative to domestic production, and under such conditions as to cause or threaten to cause serious injury to the domestic industry that produces like or directly competitive products. The main regulations of safeguard measures include Article XXI of GATT1994 and Agreement on Safeguards. Most WTO members keep their own safeguards regulations basically comply with Agreement on Safeguards.The effect of safeguard measures is more direct and effective than that of other trade remedies. As safeguard measures apply to fair trade practice, their preconditions of application are more restrictive than that of anti-dumping measures and countervailing measures which apply to unfair trade practice. Four requirements must be satisfied when applying safeguard measures: (a) the existence of unforeseen development; (b) increased imports of a product; (c) serious injury or threat thereof caused to domestic industries and (d) the casual link between increased imports and serious injury or threat thereof.Unforeseen developments are developments occurring after the negotiations of the relevant tariff concession which it would not be reasonable to expect that the negotiators of the country making the concession could and should have foreseen at the time when the concession was negotiated. Safeguard measures constitute "emergency action" and are only to be imposed when the alleged increase in imports arises out of unforeseen developments. It was recognized by the Panel and Appellate Body that unforeseen developments must be demonstrated as a matter of fact though they are not independent conditions for the application of a safeguard measure. An increase in imports means imports increase in absolute and relative terms. Simply an increase in imports is not enough; it must cause or threat to cause serious injury to domestic industries producing like or directly competitive products. Anyway, an increase in imports must be "recent, sudden, sharp and significant"."Serious injury" shall be understood to mean a significant overall impairment in the position of a domestic industry. In the investigation to determine whether increased imports have caused or are threatening to cause serious injury to a domestic industry, the competent authorities shall evaluate all relevant factors of an objective and quantifiable nature having a bearing on the situation of that industry, in particular, the rate and amount of the increase in imports of the product concerned in absolute and relative terms, the share of the domestic market taken by increased imports, changes in the level of sales, production, productivity, capacity utilization, profits and losses, and employment. The competent authorities shall consider the overall conditions of the industry rather one segment of it and they can seek information from any relevant sources.Causal link means a genuine and substantial relationship of cause and effect between increased imports and serious injury. The competent authorities' first step is to determine that the injurious effects caused to the domestic industry by increased imports aredistinguished from the injurious effects caused by other factors. Then, as a second step in their examination, attribute to increased imports, on the one hand, and to other relevant factors, on the other hand, injury caused by all of these different factors, including increased imports. In this way, the competent authorities determine, as a final step, whether "the causal link" exists between increased imports and serious injury, and whether this causal link involves a genuine and substantial relationship of cause and effect between these two elements. The causation test in US Trade Act of 1974 is "substantial cause" that diverges from the causation...
Keywords/Search Tags:Safeguard Measures, Unforeseen Development, Increased Import, Serious Injury, Causual Link, Parellalism, Special Safeguards
PDF Full Text Request
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