Comparative Study Of Special Safeguard Measures Under WTO Legal Framework

Through the analyses of WTO rules related to general safeguard measures and special safeguard measures, this dissertation aims to explore the issues of legal regulations and practical operation of the so-called"Special Safeguards on China"stipulated in accordance with PROTOCAL ON THE ACCESSION OF THE PEOPLE'S RRPUBLIC OF CHINA (Protocol) and REPORT OF THE WORKING PARTY ON THE ACCESSION OF CHINA (Working Party Report), as well as China's tackling tactics toward this special mechanism.After some discussions on the theoretical basis, basic principles and historical evolution, this dissertation makes a comprehensive study on the basic framework, application conditions and procedures related with general and special safeguard measures under WTO legal system. In this way, it has laid down basis for exploration and comparison of the"Special Safeguards on China".In the author's view, the setting-up of safeguard mechanism is a restriction per se on free trade and is inconsistent with WTO Principles. However, practically speaking, the effect of safeguard measures is regarded as congruent with major WTO purposes which strive for fair trade and the equal promotion of economic development levels of all WTO members. In another word, the safeguard measures system exists in WTO legal framework as a lawful exception to WTO rules. This is a demonstration of the balance between the freedom demanded by international trade and the flexibility for WTO members to implement their treaty obligations1.Although regulated by special rules of the WTO, the goals for introducing special safeguard measures are the same with those of general safeguard measures. The difference lies in the specific implementation conditions and requirements. Under the WTO legal framework, there are generally two categories of special safeguard measures: the first category is based on the relevant provisions in the Agreement on Agriculture, Agreement on Textiles and Clothing (terminated) and General Agreement on Trade in Services (the Enabling provision); the second category is the center of study of this dissertation– the"Special Safeguards on China"stipulated by Section 16 of the Protocol and Paragraph 242 of the Working Party Report.Generally speaking, the"Special Safeguards on China"is the combination of two special safeguard systems: the first is focused on textiles and clothing products originating from China, named as"Special Safeguards against Textiles and Clothing products"or"Paragraph 242 Special Safeguards", with its effective period until December 31st,2008; the second is targeted generally at all products originating from China, named as"Transitional Product-Specific Safeguard Mechanism"("TPS Special Safeguards"), with its effective period until December 10th, 2013. The"TPS Special Safeguards"can be divided into"Market Disruption Special Safeguards"and"Trade Diversion Special Safeguards", the two different but also closely connected special systems.As the reluctant concession and commitment made by China in its accession to the WTO after weighting a balance between costs and benefits, the"Special Safeguards on China"is currently the only effective discriminating safeguard mechanism under WTO legal framework, which failed to balance the rights and obligations of China and other WTO members in respect of such aspects as implementation conditions, consultation, application standards, investigating procedures, compensation and relief, right of retaliation, adoption of"grey area"measures and the implementation period1.In order to harness the"Special Safeguards on China"to impede products imports originating from China, many WTO members have respectively issued special domestic laws and put them into practice. Among them, the most influential is the legislations and practices of the EU and United States. So this dissertation selects the EU and United States as representative examples so as to make a deeper insight into the nature and operation of the"Special Safeguards on China"through the analyses of individual case and practice. It also questions the possibility of abuse by other WTO members.In the last part of this dissertation, based on the thorough comments on the problems of lawfulness and serious defects of the"Special Safeguards on China", the author tries to construct a comprehensive integrated tactical framework for China to tackle the"Special Safeguards on China"from the two perspectives of internal and external. It has also been specified into specific constructing methods and steps, aiming at protecting to the maximum extent lawful interests of Chinese governments and enterprises against the backdrop of disadvantaging objective circumstances.