Study On Section 337 Of American Tariff Law

Section 337 of the United States Tariff Law of 1930 is one of the mechanisms regulating import trade. Section 337 restricts the unfair practices in import trade and provides remedy measures to protect domestic industry in order to terminate the threat or negative effect of injury on the industry. Since 1994, Section 337 has been applied frequently in foreign trade practices and has attracted attention of Chinese legal academics. There is some concern on whether Section 337 could be developed into a new remedy measures.The first chapter of this paper reviews the formation and development of Section 337 and its basic structure. Based on the analysis, the chapter concludes that Section 337 is still believed to be a trade measure under the mechanism of GATT/WTO, however there is the possibility for Section 337 to become a trade remedy measure. In addition, the ambiguity on the concept of Section 337 opens up a possibility for the Section to become a measure conrolling foreign competition at international level. Section 337 is featured by its comprehensive jurisdiction, speedy investigation and determination procedures, and efficient remedy measures. Therefore, claimants prefer to apply this Section for the protection of their rights rather than litigating at court.Chapter 2 focuses on analyzing substantial factors of Section 337. These factors include unfair practices in import trade, the existence of domestic industry and jnjury to the industry. In practices, the unfair practices in import trade mostly are the acts infringing intellectual property. The chapter analyses the specific meanings of acts infringing intellectual property in the context of Section 337; furthermore, the chapter studies several cases of Section 337 and tries to summarize briefly the standards for determining the existence of industry and injury.Chapter 3 discusses the procedural issues of Section 337, such as the rules concerning its jurisdiction, investigation, determination, review and enforcement. The remedies under Section 337 consist of exclusion order, cease and desist order, penalty etc. The exclusion order is divided into general exclusion order and limited exclusion order. The former is applied to all imported products violating Section 337, no matter whether they have been investigated. The latter applied to the products which have been subject to specific investigsted under Section 337. The cease and desist order prohibits any further dealing of the product in the Uited States which has been found to have violated Section 337.Chapter 4 studies the basic principles underlying the protective measures of Section 337. The legality of Section 337 has been challenged by a number of countries. Canada and EC submitted the request of reviewing the legality of this Section in 1981 and 1988 respectively. The panel concluded that Section 337 violated the national treatment requirement of Art 3 of GATT and could not meet the requirements of Art 20(d) of GATT, which sets out exception for Art 3 of GATT. Section 337 was amended through Uruguay Round Agreement Act of the United States. However, presently the legality of Section 337 under WTO rules is still under dabate.Chapter 5 reviews the development concerning the debate on the legality of Section 337. It also analysizes the relationships between Arts 3 and 20(d) of GATT, as well as between TRIPs Agreement and Section 337. The conclusion is that certain measures and principles of Section 337 are inconsistent with the relevant princuiples of the WTO agreements. In addition, the ambiguity of the Section has also made the debate on its legality a difficult task.