| Section 337 of the Tariff Act of 1930, entitled unfair methods of competition or unfair acts in the importation of goods into the United States, is collected in 19 U.S.C.A.§1337.It directs mainly two types of unfair methods of competition or unfair acts, one is unfair methods of competition or the acts with violating of U.S. intellectual property rights, and the other is the unfair methods of competition or acts outside of intellectual property. Section 337 mainly applies to the infringement of Intellectual Property. The investigation according to Section 337 is called investigation of Section 337. This provision is a complete system. It provides unfair methods of competition or unfair acts of identification, investigation procedures and the appropriate remedies from the procedural and substantive provisions of the systematic.It is said that China has become one of the worst-hit countries of investigation of Section 337, and in the first place of the countries (regions) involved investigation of Section 337. The frequent use of Section 337 has constituted excessive protection of American domestic industry. In the meantime, the frequent use has already set up trade barriers for the Chinese exports to the United States and caused unreasonable restrictions for international trade. As in August 2010, China has been American largest source of imports and the second largest trading partner. It suggested that, in a long period of time, China will still be subjected to a lot of investigations according to Section 337. Thus, it is necessary to study Section 337 and then make recommendations for our government, industry associations and companies on how to deal with it.United States International Trade Commission (USITC) has been in charge of Section 337 since 1972, and now the number of the cases has reached 768, involving finished cases and pending cases. Comparing to the previous thesis, this article focuses on analyzing the cases which have been finished by the USITC. In addition to introduction and conclusion, this paper is divided into four parts.The preface is a brief summary of the applications of Section 337 and the serious satiations our country has been suffered, with the purpose of indicating the necessity of the study.Part one is about the legislative history and the main content of Section 337. Legislative history of Section 337 indicates that through successive modification, the extent of authority of USITC gradually expanded, which make it perform its discretion flexibly to protect domestic industries. And the main content of Section 337 in force provides the legal basis for the protection of domestic industry.Part two focuses on the legal nature of Section 337 and the relationship with GATT or WTO. Firstly, the article hold the point that the legal nature of Section 337 can be defined as a measure of trade remedy, after analyzing the elements of the trade remedy and the purpose of Section 337. But this does not prevent the excessive protection of domestic industries. Then after introducing two cases in GATT period time, the article analyzes the Panel's different outcome. The difference existed because the Panel held different attitude of the relationship between Article 3 and Article 20 of the GATT 1947.Therefore, it is necessary to analyze the relationship of the two articles. This paper considers that it should first analyze whether the measures taken has complied with Article 3 of the principle of national treatment. If the discrepancies found then invoke the provisions of Article 20 of general exceptions. After analyzing 337 identified a GATT 1947 breach of the provisions of paragraph 3 Lower Dir, and the discrepancy can not invoke Article 20 of the general exceptions. After the Panel's report passed, the United States amended Section 337 accordingly in Uruguay Round Agreements Act in 1994. As a matter of fact, the amendments do not involve the substance elements of principle of national treatment, so it still violates the principle of national treatment. And in another view, the type of companies involved in the cases ruled by the International Trade Commission mainly is located in the USA, so it can be identified that Section 337 set up unreasonable restrictions on international trade.Part three centers on the key elements of interpretation of Section 337 in the specific cases. USITC has been granted wide discretion to identify standard of the unfair methods of competition or act, in doing so, they can extend their jurisdiction in case some new problems will be arisen. Apart from that, in order to protect the domestic industry, USITC widely define the constitution of domestic industry in intellectual property cases. Although Section 337 has established some standards for the application of the general exclusion order, which is one of the remedies, USITC developed other standards in practice. Thus in a specific case, the standards varies and become uncertain. In addition, before granting a remedy, Section 337 requires USITC to weigh the results of the order and the element of public interest. It includes USITC makes it clear that the importance of the elements involved in public interest is different. They will consider "the public health and welfare, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, and United States consumers". USITC expresses clearly that they will firstly consider the "the public health and welfare", then "the consumers", and "competitive conditions in the United States economy" in the last. But in one case, USITC obviously violates this order. So, after analyzing the interpretation of the constitution of Section 337, it can be concluded that USITC is granted wide discretion to define whether one behavior violets Section 337 or not, and the purpose is to protect their domestic industry.Part four focuses on how to cope with the investigation of Section 337. This paper concludes that the frequent investigations of Section 337 against our country have set up trade barriers for Chinese products exported to the United States. And in the present, the measures provided in Trade Law and the Rules of Investigation for Foreign Trade Barriers can perform a role. Further more, from the government point of view, it should on the one hand concentrate on drawing up the guidelines of dealing with Section 337, encouraging enterprises actively participate in responding the investigations, and on the other hand it can make full use of the measures provided in laws and regulations to cope with 337 investigations. From the perspective of industry associations, they can collect information and offer advice for the involving enterprises. When it comes to the involving enterprises, first of all they should actively respond to the complaints, actively seek reconciliation with the complaints or propose an effective defense. But more importantly is to improve the quality of the products and pay attention on the development and research.The last part is the conclusion. There are four conclusions:first, Section 337 is one of the trade remedies rather than trade sanctions; second, Section 337 violates Article 3 of the principle of national treatment of GATT, and the violation can't cite Article 20 of the general exception; third, in practice USITC has wide discretion in defining whether the imports violates Section 337, so it has provided excessive protection to domestic industries; fourth, in order to cope with the frequently subjected investigation of Section 337 at the stage, our government, industry associations and enterprises should unite to counter it. |
