Research On The Antidumping Legal System In The RTAs

With regional trade agreements between the members developing flourishingly,anti-dumping system arrangement in the RTAs has much effects on anti-dumpingmeasures of the regional member, has much influence on anti-dumping measures ofthe outer member, as well as on the WTO multilateral anti-dumping system, so theanti-dumping system arrangement is a problem that deserves attention.The full text is divided into five parts. The first part firstly explains the reason ofresearching the anti-dumping system in the regional trade agreements is rooted in therationality introspection on the current anti-dumping system. Anti-dumping system isa result of contradiction.The dumping actually does not necessarily have theaccountability, but the current anti-dumping system does not distinguish between themotivations of dumping, it is a clear violation of the principles of economics.Anti-dumping complaint as well as the implementation of the anti-dumping measureshas the effects of restricting competition. Although the lack of economic rationalityand the anti-competitive effect, it is a tool implementing the country’s trade policy,and the system services in the overall interests of one country, sometimes even somecountries have to exchange the anti-dumping system such embodiment of tradeprotectionism system for the support from the domestic interest groups on free trade agreement. Fortunately, things have two sides, the abuse of antidumping measuresnaturally disrupts the normal international trade order, on the other hand, countriesretaliated by application of antidumping measures on some popular antidumpingmeasures countries, which will produce certain deterrent. After a game, all countrieswill recognize this kind of trade protectionism will not benefit some one country, andgradually reduce and even abandon the use of anti-dumping measures. In the overall,we have to admit that there is some degree of necessity for a country to use theanti-dumping system allowed by WTO. On the basis of that, we should make greatefforts to seek the path to solve the problems about the lack of economic rationality,limitation of competition and thus hinder the normal trade. The specific path ofregional trade agreements may be special practice play a demonstration effect.In most cases, economists tend to believe that dumping is a kind of completerationality, legitimacy of profit maximization behavior, and the majority of dumpingdoes not reduce (but often increases) the global welfare. Importing countries to adoptanti-dumping, will inevitably lead to increase the import product sales prices or areduction in imports or even completely withdraw from the market, this approach willharm the interests of consumers of import country.The antitrust law regulating predatory pricing and price discrimination and theanti-dumping law regulating international price discrimination is substantiallydifferent, this different is based on the open degree to economics analysis.International Trade Law was not affected by even the most basic economic analysis.Generally speaking, the political demands provide regulators the motivation to applydifferent analysis instruments for antitrust and international trade problems.Government regulators were rewarded for promoting the active competitionamong the domestic manufacturers (as the loss from not competitive company will beoffset by increasing the efficiency of the more competitive market). But they won’t berewarded from the external competition, because foreign interests of producers are notthe source of the ballot of the elected official, but the loss of the some domesticproducers can make official loss some important votes. In addition, the governmentpromotes the free trade agreement negotiations for its economic development, when the government is more sensitive to pressures from the interest group, the tradeagreement with special provisions for the protection signed more easily.To a certain extent, antidumping system will generate anticompetitive effect, andmay lead to promote the process of cartel. This mainly reflects in the followingaspects: Antidumping remedy measures may provide the convenient for maintainingthe cartels, antidumping complaints may facilitate cartelization among thecomplainants（including two aspects: the possibility of the anti-dumping appeal itselfmay constitute a deterrent to foreign manufacturers, the qualification of theanti-dumping complaint may facilitate the cartelization among the complainants), theprice undertakings system may facilitate a cartel between the domestic manufacturersand the foreign manufacturers.Antidumping legislation promote a "legal cartel", in order to domestic industrialinterests, a government supervises and implements a fixed price mechanism in fact.According to this legal cartel, filing an antidumping complaint itself may lead todomestic and foreign manufacturers make an effective cooperation on the fixed price.The antidumping complaints are often filed by the domestic manufacturers of similarproducts that are the important part in the importing country. In the antidumpingcomplaints in the joint efforts, domestic producers naturally exchange theirinformations about the price and yield level. This communication in fact is thebeginning of a fixed price conspiracy.Although the antidumping measures may play a facilitating role on cartelization,it is a kind of special effects under a specific condition. Antidumping system from theappeal to the decision-made may produce some anticompetitive effects in manyaspects, and distort international trade natural flow and conflict with the goals andobjectives to the maintenance of fair trade, promoting fair competition, promotingtrade liberalization. Although the behavior of an antidumping complaint was protectedby the the Noerr-pennington rules, any agreement about the subsidiary fixed price orlimitation on the production is illegal in antitrust law, the high likelihood that the useof antidumping law provides some convenience for cartelization makes that it isjustified that anti-monopoly executive resource is allocated partially to the marked effected by antidumping order.Antidumping system is a country’s trade policy tools. Under the background ofeconomic globalization, the economic connection between the countrys isstrengthened increasingly, but the national interest conflicts resulting from the uneveneconomic development still exist. Countries in the international trade arena as muchas possible safeguard their own interests, in the pursuit of trade liberalization, and tryto make all sorts of safeguarding national interests, especially with the trade intereststhat are closely related to the industry benefits system. Trade protection has beenaccompanied by the free trade around, even as a means of promoting the liberalizationof international trade.In addition to the national interest, as a domestic industry policy and the tools ofthe trade, antidumping system protects its domestic weak industry because of thepolitical pressure from domestic interest groups. The political mechanism of theantidumping system being used broadly is a problem that does not allow to be ignoredwhen we research on the rationality of the antidumping system. So we cannot makean analysis from the pure economics perspective on the problem of the rationality ofthe antidumping system, we also consider the political interests demand, what we cando is to explore what kind of path should be selected to gradually correct theireconomic irrationality.The second part is an empirical analysis on the categories in the regional tradeagreements in anti-dumping system. This part mainly introduced the regional tradeagreements shock on the multilateral trade system, resulting in a plurality ofanti-dumping system. Apart from this, the anti-dumping system present situationunder the typical national/regional trade agreements and the antidumping clausecategories under the regional trade agreements were summarized and analysed. On thebasis of the analysis on anti-dumping system arrangement in Australia, USA, SouthKorea, Japan and other countries in the region trade agreement, this part summarizedthe anti-dumping system under the regional trade agreement as main types: internalcancellation of anti-dumping measures arrangement, following the rights andobligations from the WTO agreement, the arrangement of the dumping system under WTO agreement was modified to strict anti-dumping discipline arrangements.The third part is about the legality of the anti-dumping system in regional tradeagreements. This part mainly analyzes two questions: one is the WTO anti-dumpingsystem is an exception to the non-discriminatory treatment; the second is about thequestion of the lawfulness that regional trade agreement modifies the WTOantidumping system.This dichotomy on the antidumping law and competition law violates nationaltreatment under the GATT, because their substantive and procedure standards can notprovide an equal opportunity for foreign and domestic products. This differentialtreatment resulted in the treatment of domestic manufacturers is superior to thetreatment of the importer, the differential treatment is carried out on the basis of thesource of the products, and in essence conflict with the WTO national treatmentprinciple. However, the sixth clause of GATT clearly legalized the anti-dumpingsystem.On the validity problems about the regional trade agreement to modify the WTOanti-dumping system, this thesis discusses whether the modification of the WTOagreement is in accordance with GATT article24. First of all, according to the WTOdispute settlement mechanism’s practice about VCLT41(1) can be applied to WTO,unless the relevant agreement expressly provides it is not applicable; the ninth andtenth clauses of the Marrakech agreement allow the mutual modification, they areseen as providing more detailed rules than the forty-first clause of VCLT, so prior toforty-first article applies. However, in fact, the ninth and tenth clauses of theMarrakech agreement are not specifically targeted at mutual modification, in theRTAs context, mutual modification especially is considered based on the GATT1994twenty-fourth clause. This confirms that the Marrakech agreement of ninth and tenthdon’t involve mutual modification problems. GATTT1994twenty-fourth has no clearprovision to explicitly prohibit such amendment, modification must meet theconditions in the VCLT forty-first (1)(b)(I) and (II)(The modification does not affectthe rights or obligations of the third party under the WTO agreement, and not involvethe derogation to the clause conflict with the the overall goals and objectives of the WTO agreement). These conditions reinforce the goal of an RTA under GATT1994twenty-fourth, and enhance the nessity of minimizing the twist to the external trade ofthe WTO member while internal free trade realizes the maximum. Article24.4and24.8reflect the conditions under VCLT41(1)(b).RTA members should remove the tariffs and other restrictive regulations ofCommerce in the ‘substantially all the trade’, but in case of necessity, the customsduties and other restrictive regulations of commerce allowed by the specified inarticles from the eleventh to fifteenth, twentieth are the exceptions. Therefore, as towhether a RTA should cancel the antidumping measures, the key issue is to judgewhether antidumping duties are ‘restrictve commercial tariffs’or whether antidumpinglaw belongs to the " other restrictive regulations of Commerce "; if the answer is yes,then further judge whether antidumping measures are allowed to exist as an exeption.Although the RTA member’s intentions for further liberalization and facilitation ofmutual trade are harmless, but the special anti-dumping rules among the members ofthe RTA will be substantially distort competition conditions. The interpretations onarticle24.5will banned from RTA member establishing any the preferentialarrangement on the antidumping rules, includes not only modifing the rules portionlybut also completely removal of antidumping system as a preferred scheme betweenRTA member. This will lead to a party member more use of anti-dumping measuresdirected to nonpartes, so as to create a trade restrictions, constitutes a form ofdiscrimination.The fourth part gives some examples analysis on the anti-dumping system in theRegion Trade Agreement. Respectively, to establish regional anti-dumpingcoordination mechanism of the North American Free Trade Agreement, thecancellation of anti-dumping in the Australia-New Zealand Closer EconomicRelations and trade agreements as well as the European Union as a sample for thepromotion of the system in the analysis of possibility. The mechanism of NAFTAproblem is the mechanism whose cost is significant. The government sometimesdelayed payment of remuneration for members of the expert group, the parties did notallocate enough funds to programs. The United States government is not satisfied with the nineteenth chapter, thus, giving NAFTA the United States of the Secretariat of theserious shortage of funds and personnel, but not to follow in a future free tradeagreement. Secondly, let from different legal culture’s lawyers tried to explain anotherstate law exists inherent difficulties. Thirdly, the nineteenth chapter is not required.First of all, the mechanism of WTO performing international anti-dumping disputesettlement of any legitimacy needs. Secondly, we present the NAFTA partner andfuture new partners have shown nineteenth chapter in future trade agreements are notrequired.Through the competition law jurisdiction expanded, the separation of theAustralian and New Zealand markets and the implementation of differential pricingbehavior can be incorporated into the abuse of market dominance behavior within thecontext, which is transferred from the competition authority, without legal vacuum. Inthe antitrust law enforcement action to assist each other, ANZ agreement than mostjudicial assistance agreement will go farther. ANZ agreement recognizes the otherparty of national competition authorities to the territory of another state occurs butaffects their market behavior to apply their own competition law, namely the mutualrecognition to the “principle “as the foundation of the domestic competition rules ofextraterritorial effect. In order to ensure the application effectiveness, Australia-NewZealand bilateral competition authorities may be in another country to hold a hearing,forced forensics and execute the command. ANZ agreement indicates two nearergeographical location, economic level, with similar historical background andtraditional country in the competition rules of bilateral coordination on reached a highdegree of agreement.For the EU as a whole, due to geopolitical relations and historical and culturaltraditions of the proximity, European countries have lots in common interests, theymore easily than other countries combined together to form a common market,eliminate the member between goods, services, labor and capital barriers to the freeflow, so as to promote the overall economic development in Europe. At the same time,the EU Member States will also quite a large part of the power delivered to therelevant authorities, by them to formulate and implement the applicable in all Member States of the policy and legal system, members shall not violate. Therefore, theEuropean Union is a supranational political, economic and social institution, like thedomestic trade without the use of anti-dumping law, European Union trade betweenMember States also without the use of anti-dumping law is necessary.As to repealing the antidumping system, the EC Treaty and Australia-NewZealand agreement show that it needs some strict conditions, other bilateral orregional agreements are hard to follow. The root of the difficulty is that, the currentinternational anti-monopoly law to exist great difference, many substantive standardsand procedural standards are inconsistent, in this case, if we want to be mutual trustbetween each other’s anti-monopoly legislation and law enforcement in two or severalcountries, to recognize its effectiveness, it is very difficult. The EC has established anideal model, namely with a uniform set of antitrust rules instead of each membercountry antimonopoly law in the cross member competition case application, at thesame time by the unified law enforcement. But this ideal mode only associated withhighly degree of integration.The fifth part mainly analyzes the problems of the anti-dumping systemarrangement under the regional trade agreement signed by China. First of all, thisthesis summed up the antidumping system and categories under the regional tradeagreements signed by China: from the view of the patterns, there are mainly two kindsof patterns; from the category view, mainly there are three types (following up WTO,abandoning the antidumping system, China-ASEAN special arrangement). Secondly,the antidumping practices taken by the members of RTAs signed by China areanalyzed: after the signing of RTAs, the antidumping measures taken by China’s RTAsmember does not fall instead increases on the whole. Third, analysis of theantidumping system under the cross-strait economic cooperation frameworkagreement (ECFA) is made, ECFA is a special free trade zone, ECFA retains theWTO antidumping provisions of the rights and obligations. Fourth, antidumpingsystem is considered under the negotiations in China-Australia FTA. From thepractice of antidumping between China and Australia and the current present ofinternal industry, China-Australia free trade agreement may be have to remain the antidumping system.The last part is the conclusion of the thesis and puts forward the prospect.Anticompetitive issues caused by antidumping has made important progress, althoughthe small number of RTA eliminate antidumping relief, an increasing number of RTAto apply further strict constraints of antidumping. Even so, the issue there is no visibleprogress in the WTO. Antitrust, an alternative path is difficult to cross some barriers,the international community will not easily give up the antidumping system. In thiscontext, it is important that we make the active promotion for functionallycomplement each other between antidumping and anti-monopoly. It should bementioned that, the negation of the antidumping system is not the same as denying aState to provide essential protection for domestic industry needs. Therefore, we can orshould try to seek other programmes to facilitate cross-border regulation ofinternational trade flows. In addition, we expect within the boundaries of the freetrade area, natural depletion may occur for antidumping, and revenge effects betweenthe States may allow some countries to gradually abandon antidumping to find otherpaths to properly protect the domestic industry.