| The main aim of WTO is to realize free and fair trade between its member states. Safeguard measure for trade restriction just contradicts the free trade spirit of WTO. 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 the 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 flexibility for WTO members to implement their treaty obligations.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 is the center of study of this paper——the "Special Safeguards on China" stipulated by Section 16 of the Protocol and Paragraph 242 of the Working Party Report.Generally speaking, 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 the WTO legal framework. The "Special Safeguards on China" is the combination of two special safeguard system: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", 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". This paper only forces on "Market Disruption Special Safeguards".In order to harness "Market Disruption Special Safeguards" of 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 United States. So this paper makes a deeper insight into the nature and operation of the "Market Disruption Special Safeguards" 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 paper, based on the thorough comments on the problems of lawfulness and serious defects "Market Disruption Special Safeguards" 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.This paper discusses "market disrupt" mechanism of TPS safeguard mainly from five aspects, which are:general description of China safeguard mechanism and market disrupt; China product market disrupt safeguard mechanism (including its essential condition, procedure condition, implementation way); legislation and practice of US aiming at China TPS safeguard; the author's comment on "market disrupt" under China safeguard mechanism (including legality problem and disadvantage analysis); China's strategies. The author hopes to protect China's legal profit to the maximum limit through using law properly in such disadvantageous outer environment. |
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