国际经济法精品教学（华南师范大学）legalsystemonsafeguardmeasures.ppt

Chapter 9 Legal System on Safeguard Measures,Section 1 An Overview,“clausula rebus sic stantibus” when legitimate imports cause or threaten serious injury to domestic production, safeguard procedures may be invoked safeguards constitute a right or response to fair trade practices Article 19 of the GATT 1994 provides for the use of safeguards where increased imports “cause or threaten serious injury” (and for the imposition of substantially equivalent concessions in the event safeguards are imposed),GATT 1947,Article 19 - Emergency Action on Imports of Particular Products 1. (a) If, as a result of unforeseen developments and of the effect of the obligations incurred by a contracting party under this Agreement, including tariff concessions, any product is being imported into the territory of that contracting party in such increased quantities and under such conditions as to cause or threaten serious injury to domestic producers in that territory of like or directly competitive products, the contracting party shall be free, in respect of such product, and to the extent and for such time as may be necessary to prevent or remedy such injury, to suspend the obligation in whole or in part or to withdraw or modify the concession.,Safeguards,under Article 19, safeguards must be applied on a MFN basis (imports of the product from all sources must be treated equally; it is not possible to impose safeguards only against imports from selected countries; this feature tended to increase the “cost” of imposing safeguards, as many nations might be affected, and might seek retaliatory action) the result is that safeguards were rarely used, and anti-dumping and countervailing duties were a more attractive and less costly way to protect domestic production (because they could be selective and there was no requirement of compensation),Agreement on Safeguards 1994,the Agreement on Safeguards of the Uruguay Round provides a much more stringent standard for administrative proceedings leading to the adoption of safeguard measures (note Article XIX of the GATT 1994 which deals with safeguards) the Agreement provides that safeguards may only be imposed if increased imports, as a result of trade concessions, are the cause or threaten to cause serious injury to the production of like domestic products (as is the case under Article XIX of the GATT 1994) Article 2(2) restates the MFN obligation, thus rejecting selective measures (but see Article 5(2)(b) which provides for some selective measures if a Member can demonstrate that imports from certain Members have increased disproportionately, and the such a selective reduction is equitable and can be justified),Agreement on Safeguards,Article 3 requires a safeguard investigation pursuant to published transparent procedures Article 4 clarifies how a serious injury or threat thereof shall be determined; serious injury is defined as “a significant overall impairment in the position of a domestic industry”; all relevant factors must be considered and there must be evidence of a “causal link” between the imports and the injury being suffered they must be periodically reviewed (at least every four years) and must not remain in force for more than eight years (Article 7) WTO Members must compensate other members in order to maintain a substantially equivalent level of concessions (Article 8),Section 2 Major Legal Sources of Safeguard,1. Article 19 of GATT 1994 2. Agreement on Safeguards 3. Agreements on Agriculture Article 5 4. Article 16 of the Chinas Accession Protocol Discriminative transitional safeguards specially targeted against the products exported by Chinese exporter. 5. Section 242 of the Working Party under Chinas Accession Protocol,Section 3 A Detailed Analysis of the ASG,1. Substantive Rules,实施保障措施的条件：1.有关产品的进口大量增加; 2. 由不可预见的发展和承担总协定义务造成的;3.对国内产业造成严重损害或严重损害威胁;4. 进口增加与国内产业损害有因果关系。,Determination of injury- Article 4 of the SA,Definition of Serious Injury/ Threat of Serious Injury,serious injury that is clearly imminent (shall be based on facts and not merely on allegation, conjecture or remote possibility),a significant overall impairment in the position of a domestic industry;,“严重损害”指对国内某一产业的状况造成重大的总体损害。“严重损害威胁”：指对国内某一产业的地位造成的重大总体损害还没有发生，但已迫在眉睫。“国内产业”，指在成员方领土内生产相似产品或直接竞争产品的国内生产者全体，或相似产品或直接竞争产品的总体产量占该成员国内总产量主要部分的生产者。,Injury factors must be concerned,Definition of the Domestic Industry the producers making products, which are “like” or “directly competitive” to the imports targeted by the investigation. either the whole of such domestic industry, or to that part thereof which amounts to a “major proportion”.,Injury Factors (Article 4.2(a)SA),the competent authorities shall evaluate all relevant factors of an objective and quantifiable nature having a bearing on the situation of that industry, the rate and amount of the increase in imports of the product concerned in absolute and relative terms, the share of the domestic market taken by increased imports, changes in the level of sales, production, productivity, capacity utilization, profits and losses, employment.,进口成员的调查机构必须评估与该产业状况相关的所有客观的和可量化的因素。包括：绝对或相对条件下的有关产品的进口的比例和数量，增加的进口所占有的市场份额，销售水平、产量、生产率、设备利用率、盈亏及就业状况的变化情况。,Causal link,When factors other than increased imports are causing injury to the domestic industry at the same time, such injury shall not be attributed to increased imports.,如进口增加之外的因素正在同时对国内产业造成损害，则此类损害不得归因于进口增加,Case Study,Textbook, p. 244-246.,2. Safeguard Measures and Provisional Safeguard Measures Provisional Measures Based on preliminary confirmative determination Duration: not exceed 200 days Form: tariff increase Definitive measures Form: tariff increase, quantities restrictions and tariff-quota Duration Not to exceed four years initially, and may be extended to the maximum of eight years (including the period of provisional measure). Levels of Quantitative Restrictions Must, in principle, not fall below the average of imports in the last three representative years (Art 5).,3. The Rules for the Imp