Critical Issues in the Application of the WTO Rules on Safeguards: In the Light of the Recent Panel Reports and the Appellate Body Decisions

Journal of World Trade

Volumn 34, Issue 2, 2000, Pages 131-147

  Lee, Yong Shik ^a,b,c  

^a Law (United States)   (United States)

^b Supreme Court of England and Wales ^*  (United Kingdom)

^c Min of Foreign Affairs and Trade   (South Korea)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0347616169     PISSN: 10116702     EISSN: None     Source Type: Journal    
DOI: 10.1023/A:1009006508471     Document Type: Article

References (66)

1. See Y.S. Lee and Jai S. Mah (1998) Reflections on the Agreement on Safeguards in the WTO 21 W. Comp. 6, for discussions on the general characteristics of the Agreement.
2. Art. 11 of the Agreement provides that "a Member shall not seek, take or maintain any voluntary export restraints, orderly marketing arrangements or any other similar measures on the export or the import side".
3. See Lee and Mah, as note 1, above, pp. 26-28 for details of the improvements made in the Agreement on Safeguards.
4. See Lee and Mah, as note 1, above, pp. 28-30.
5. For the procedural aspects of those cases, see WTO document WT/DS98R, paras 1.1-1.10 for Korea-Dairy Products and WT/DS121/R, paras 1.1-1.9 for Argentina - Footwear.
6. For the procedural aspects of those cases, see WTO document WT/DS98R, paras 1.1-1.10 for Korea-Dairy Products and WT/DS121/R, paras 1.1-1.9 for Argentina - Footwear.
7. For instance, in Korea - Dairy Products, Korea and the United States maintained that the Agreement on Safeguards is the sole articulation of the rules on safeguards while the European Communities argued that both Article XIX and the Agreement on Safeguards apply to safeguards.
8. Art. 1 of the Agreement provides that "an antidumping measure shall be applied only under the circumstances provided for in Article VI of GATT 1994 and pursuant to investigations initiated and conducted in accordance with the provisions of this Agreement. The following provisions govern the application of Article VI of GATT 1994 in so far as action is taken under antidumping legislation or regulation." This provision defines the legal relationship between Art. VI and the Agreement.
9. The General Interpretative Note to Annex IA of the WTO Agreement indicates that to the extent of the conflict between the text of Art. XIX and the Agreement on Safeguards, the rules in the Agreement on Safeguards prevail over the conflicting rules in Art. XIX of the GATT.
10. WTO document WT/DS98/R, paras 4.418 and 4.169-4.195.
11. WTO document WT/DS98/R, paras 5.4-5.8.
12. WTO document WT/DS98/R, paras 4.142-4.146 and 4.149-4.168.
13. WTO document WT/DS121/R, Section VA.
14. WTO document WT/DS98/R, para. 7.39.
15. WTO document WT/DS98/R, para. 7.42.
16. WTO document WT/DS121/R, para. 8.69.
17. WTO document WT/DS121/R, para. 8.56.
18. WTO document WT/DS98/AB/R, para. 77.
19. WTO document WT/DS98/AB/R, para. 85.
20. WTO document WT/DS98/AB/R, para. 85.
21. The Appellate Body found that "such emergency actions are to be invoked only in situations when, as a result of obligations incurred under the GATT, a Member finds itself confronted with developments it had not 'foreseen' or 'expected' when it incurred that obligation. WTO document, WT/DS121/AB/R, para. 92, WT/ DS98/AB/R, para. 86.
22. As note 20, above.
23. The fact of foresight has to be distinguished from the question of foreseeability. In other words, the complainant would not be able to argue that the Member applying a safeguard measure should have or could have foreseen the developments that resulted in the increase in imports.
24. MTN.GNG/NG9AV/25, 27 June 1989.
25. WTO document WT/DS121/AB/R.
26. See M. Trebilcock and R. Howse (1999) The Regulation of International Trade, 2nd edition (Routledge, London), p. 228; and M. Bronckers (1995) Voluntary Export Restraints and the GATT 1994 Agreement on Safeguards, in J.H.J. Bourgeois, F. Berrod and E. Fournier (eds) The Uruguay Round Results: A European Lawyers' Perspective (European University Press), p. 275.
27. See M. Trebilcock and R. Howse (1999) The Regulation of International Trade, 2nd edition (Routledge, London), p. 228; and M. Bronckers (1995) Voluntary Export Restraints and the GATT 1994 Agreement on Safeguards, in J.H.J. Bourgeois, F. Berrod and E. Fournier (eds) The Uruguay Round Results: A European Lawyers' Perspective (European University Press), p. 275.
28. Preamble of the Agreement on Safeguards.
29. For detail statistics of the import and contesting arguments of the parties, see WTO document WT/ DS121/R, paras 5.144-5.166.
30. WTO document WT/DS121/AB/R, para. 131.
31. WTO document WT/DS121/AB/R, paras 131 and 132.
32. For instance, a sudden increase in imports towards the end point and the following sharp decrease may not be considered a sufficient increase justified under Arts 2.1 and 4.2(a) even if the end point shows significantly higher imports.
33. Art. 4.1(a) of the Agreement on Safeguards.
34. See Lee and Mah, as note 1, above, pp. 28-29, for discussions on this subject.
35. WTO document WT/DS98/R, para. 7.55.
36. WTO document WT/DS121/R, para. 8.206 and WTO document WT/DS121/AB/R, para. 136.
37. WTO document WT/DS121/AB/R, paras 138 and 139.
38. Art. 3 of the Agreement provides in the relevant part: "The Competent authorities shall publish a report setting forth their findings and reasoned conclusions reached on all pertinent issues of fact and law."
39. WTO document WT/DS98/R, paras 7.58-7.59.
40. WTO document WT/DS98/R, para. 7.59.
41. WTO document WT/DS98/R, para. 7.30 and WT/DS121/R, para. 8.117.
42. WTO document WT/DS98/R, para. 7.58 and WT/DS121/R, para. 8.137.
43. In Korea - Dairy Products, Korea's analyses to supplement its reasoning in the investigation report were not accepted as they were not made at the time of its investigation.
44. Korea presented its rebuttal to this position, but the Panel did not accept it as it was not made at the time of its investigation: WTO document WT/DS98/R, para. 7.72 and footnote 441.
45. WTO document WT/DS98/R, para. 7.82.
46. WTO document WT/DS98/R, para. 7.72.
47. WTO document WT/DS121/R, para. 8.229.
48. The similar requirement for causation was an issue in those cases. The Antidumping Code and the Subsidies Code, the relevant GATT laws in those cases, include the requirement on causation as Art. 4.2(b) of the Agreement on Safeguards: injury caused by factors other than a dumping/subsidy shall not be attributed to a dumping/subsidy.
49. As previously mentioned, one area of concern is the problem of "simultaneously operating causes". Future panels or the Appellate Body may wish to complement the three-pronged test by providing a solution to this problem.
50. Future panels or the Appellate Body may choose to modify this test to provide an answer to the question of "simultaneously operating causes". However, the modification will be a helpful addition to the test but not its relaxation that enables Members to establish the requisite causality based on a mere correlation.
51. In Korea - Dairy Products, Korea argued that the first sentence of Art. 5.1 ("A Member shall apply safeguard measures only to the extent necessary to prevent or remedy serious injury and to facilitate adjustment") does not impose a clear obligation on a Member applying a safeguard measure. In Korea's view, the provision articulates a principle or an objective. The EC argued that the provision does impose on a Member a mandatory obligation.
52. WTO document WT/DS98/R, para. 7.101.
53. WTO document WT/DS98/R, para. 7.101.
54. WTO document WT/DS98/AB/R, para. 96.
55. WTO document WT/DS98/A13/R, para. 99.
56. WTO document WT/DS98/R, para. 4.611.
57. WTO document WT/DS98/R, para. 7.108.
58. WTO document WT/DS98/R, paras 4.616-4.618.
59. WTO document WT/DS98/R, Section IV.F.(b).
60. WTO document WT/DS98/R, Section IV.I. and WT/DS121/R, Section V.C.6.
61. WTO document WT/DS98/R, para. 7.127.
62. WTO document WT/DS98/R, paras 7.130-7.145.
63. WTO document WT/DS98/AB/R, para. 108.
64. WTO document WT/DS98/AB/R, para. 109.
65. WTO document, WT/DS98/R, paras 7.130-7.145.
66. GATT, New Zealand Submission on Safeguards, 26 September 1990.