A comparative study on the Trade Barriers Regulation and the Foreign Trade Barriers Investigation Rules

Journal of World Trade

Volumn 41, Issue 4, 2007, Pages 799-831

  Song, Junrong ^a  

^a Shanghai Institute of Politics and Law   (China)

Author keywords

[No Author keywords available]

Indexed keywords

COMPARATIVE STUDY; EUROPEAN UNION; INTERNATIONAL TRADE; PRIVATE SECTOR; TRADE POLICY;

ASIA; CHINA; EURASIA; EUROPE; FAR EAST;

EID: 34548305244     PISSN: 10116702     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (344)

1. Adam Smith, An Inquiry Into the Nature and Causes of the Wealth of Nations (J.R. M'culloch (ed.); Edinburgh: A. & C. Black, 1850 [1776]), pp. 260-362;
2. David Ricardo, Principles of Political Economy and Taxation (E.C.K Conner (ed.); London: Dent, 1911 [1817]), pp. 108-127.
3. In WTO dispute settlement system, independent customs territories such as Hong Kong also have standing to file a complaint.
4. Gregory C. Shaffer, Defending Interests - Public-Private Partnerships in WTO Litigation (Washington, DC: Brookings Institution Press, 2003), pp. 12-18, 33.
5. Council Regulation No. 3286/94 of 22 December 1994 Laying Down Community Procedures in the Field of the Common Commercial Policy in Order to Ensure the Exercise of the Community's Rights Under International Trade Rules, in Particular Those Established Under the Auspices of the World Trade Organization, 1994 O.J. (L349) 71 (EC), as amended by Council Regulation No. 356195 of 20 February 1995, 1995 O.J. (L041) 3 (EC). For the similarities and differences between the TBR and its US counterpart, Section 301 of the Trade Act of 1974, see Shaffer, as note 3 above.
6. Dui Wai Mao Yi Bi Lei Diao Cha Gui Ze [Foreign Trade Barriers Investigation Rules] (promulgated by the Ministry of Commerce, 2 February 2005, effective 1 March 2005); available at: (last visited 15 June 2006).
7. Council Regulation No. 3286/94, as note 4 above.
8. The Market Access Strategy was introduced in 1996, and this marked a transition in the EU from a defensive trade policy to a proactive and aggressive trade policy. See Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, The Global Challenge of International Trade: A Market Access Strategy for the European Union, COM (1996) 53 final (14 February 1996).
9. Apart from other commercial policy instruments such as anti-dumping and safeguards measures, the TBR is aimed to remove obstacles to trade which have an effect on third countries' market as well as on the Community market.
10. See Council Regulation No. 3286/94, as note 4 above, at Article 1.
11. Council Regulation No. 2641/84 of 17 September 1984 on the Strengthening of the Common Commercial Policy with Regard in Particular to Protection against Illicit Commercial Practices, Article 3, 1984 O.J. (L252) 1(EC).
12. Council Regulation No. 3286/94, as note 4 above, at Article 4. For the difference between the "Community industry" and "Community enterprises"; see definitions of these contained in Articles 2.5 and 2.6 of the TBR.
13. Council Regulation No. 2641/84, as note 10 above.
14. Council Regulation No. 3286/94, as note 4 above, at Article 2.
15. See Commission Notice of Initiation of an Examination Procedure Concerning an Obstacle to Trade, within the Meaning of Council Regulation (EC) No. 3286/94, Consisting of Trade Practices Maintained by Canada in relation to Certain Geographical Indications for Wines, 2002 O.J. (C124) 6; Commission Notice of initiation of an Examination Procedure Concerning an Obstacle to Trade, within the Meaning of Council Regulation (EC) No. 3286/94, Consisting of Trade Practices Maintained by the United States of America in Relation to Cross-border Music Licensing, 1997 O.J. (C177) 5.
16. Council Regulation No. 3286/94, as note 4 above, at Article 13.3.
17. Ibid., at Article 13.1, 13.2.
18. Ibid., at Article 14.4.
19. Marco Bronckers and Natalie McNelis, The EU Trade Barriers Regulation Comes of Age, 35 Journal of World Trade 4 (August 2001), 427, 444. 19 Foreign Trade Barriers Investigation Rules, as note 5 above.
20. See Xiaolan Fu, Exports, Foreign Direct Investment and Economic Development in China, (2004), 45-46;
21. Chengyan Lu, Legal Services in China: Facing the WTO, 20 UCLA Pac. Basin L.J. (2003), 278, 282.
22. WTO, Anti-Dumping Initiations: By Exporting Country, available at: (last visited 15 June 2006).
23. Dui Wai Mao Yi Bi Lei Diao Cha Zan Xing Gui Z [Provisional Rules for the Investigation of Foreign Trade Barriers] (promulgated by the former Ministry of Foreign Trade and Economic Cooperation, 23 September 2002, effective 1 November 2002), available at: (last visited 15 June 2006).
24. The former Ministry of Foreign Trade and Economic Cooperation was incorporated into the current Ministry of Commerce in March 2003. They are both departments of the State Council. Currently, the Ministry of Commerce is the authority in charge of foreign trade in China.
25. Legislation on Foreign Trade Barriers in China, available at: (last visited 15 June 2006).
26. Dui Wai Mao Yi Fa [Foreign Trade Law] (promulgated by the Standing Committee National People's Congress, 12 May 1994, amended by the Standing Committee National People's Congress, 6 April 2004, effective 1 July 2004). Standing Committee National People's Congress Gazette (2004), 4.
27. Ibid., at Articles 37-39.
28. Id.
29. Foreign Trade Barriers Investigation Rules, as note 5 above.
30. Foreign Trade Law, as note 25 above, at Articles 37-39.
31. Foreign Trade Barriers Investigation Rules, as note 5 above, at Article 3.
32. Ibid., at Article 2.
33. Id.
34. Ibid., at Article 1; Council Regulation No. 3286/94, as note 4 above, at Article 1.
35. Foreign Trade Barriers Investigation Rules, as note 5 above, at Article 3; Council Regulation No. 3286/ 94, as note 4 above, at Article 2.1.
36. Li fa fa [Law on Legislation] (promulgated by the Standing Committee National People's Congress, 15 March 2000, effective 1 July 2000), Article 78. Standing Committee National People's Congress Gazette (2000), 112.
37. Ibid., at Article 79.
38. Id.
39. Ibid., at Article 80.
40. Id.
41. Ibid., at Article 82. When conflict exists between the two, the State Council shall determine which of them prevails. See ibid., at Article 86.3.
42. Ibid., at Article 86.2.
43. Foreign Trade Barriers Investigation Rules, as note 5 above.
44. Fan Qin Xiao Tiao Li [Anti-Dumping Regulation] (promulgated by the Standing Council, 26 November 2001, amended by the Standing Council, 31 March 2004, effective 1 June 2004), available at: (last visited 15 June 2006);
45. Fan Bu Tie Tiao Li [Countervailing Regulation] (promulgated by the Standing Council, 31 October 2001, amended by the Standing Council, 31 March 2004, effective 1 June 2004), available at: (last visited 15 June 2006).
46. Council Regulation 3286/94, as note 4 above.
47. Ibid., Articles 3, 4, 6.
48. Ibid., at Articles 3, 4, 5.
49. Ibid., at Articles 3.1, 4.1, 5.1.
50. Ibid., at Article 3.1.
51. Ibid., at Article 3.2.
52. Jean Charles Van Eeckhaute, Private Complaints against Foreign Unfair Trade Practices: The EC's Trade Barriers Regulation, 33 Journal of World Trade 6 (December 1999), 199, 201.
53. Council Regulation 3286/94, as note 4 above, at Article 4.1.
54. Ibid., at Article 4.2.
55. Eeckhaute, as note 50 above, at 203.
56. Council Regulation No. 3286/94, as note 4 above, at Article 4.1.
57. See Bronckers, as note 18 above, at 434-445;
58. Crowell and Moring, Interim Evaluation of the European Union's Trade Barriers Regulation (2005), pp. 79-80, available at: (last visited 15 June 2006).
59. Council Regulation 3286/94, as note 4 above, at Article 6.1.
60. Ibid., at Article 6.2.
61. Commission Notice of Initiation of an Examination Procedure Concerning an Obstacle to Trade, within the Meaning of Council Regulation (EC) No. 3286/94, Consisting of Subsidies Afforded by the United States of America to Oilseed Production, 2003 O.J. (C58) 3.
62. Commission Notice of Initiation of an Examination Procedure Concerning an Obstacle to Trade, within the Meaning of Council Regulation (EC) No. 3286/94, Consisting of Trade Practices Maintained by Korea Affecting Trade in Commercial Vessels, 2000 O.J. (C345) 5;
63. Commission Notice of Initiation of an Examination Procedure Concerning an Obstacle to Trade within the Meaning of Council Regulation (EC) No. 3286/94, Consisting of the Brazilian Export Financing Programme PROEX, 1999 O.J. (C108) 33;
64. Commission Notice of Initiation of an Examination Procedure Concerning an Obstacle to Trade, within the Meaning of Council Regulation (EC) No. 3286/94, Consisting of Trade Practices Maintained by Chile in Relation to the Transit and Transshipment of Swordfish in Chilean Ports, 1998 O.J. (C215) 2.
65. All of the investigations are listed in the annex.
66. Id.
67. Council Regulation No. 3286/94, as note 4 above, at Article 5.4.
68. Id.
69. Ibid., at Article 8.1.
70. Ibid., at Article 7.
71. Ibid., at Article 8.1(a).
72. Ibid., at Article 8.1(c).
73. Ibid., at Article 8.2(a).
74. Ibid., at Article 8.2(b).
75. Ibid., at Article 8.3.
76. Ibid., at Article 8.5.
77. Ibid., at Article 8.6.
78. Ibid., at Article 8.4(a).
79. Ibid., at Article 8.8.
80. Id.
81. Crowell and Moring, as note 55 above, at 104.
82. Eeckhaute, as note 50 above, at 205.
83. Shaffer, as note 3 above, at 46-47.
84. Eeckhaute, as note 50 above, at 206.
85. Council Regulation No. 3286/94, as note 4 above, at Article 5.4.
86. Ibid., at Article 8.
87. Ibid., at Articles 5.3, 8.1(a), 8.4(a).
88. Treaty Establishing the European Communities, Article 230, 10 November 1997, 1997 O.J. (C340) 3 (hereinafter EC Treaty).
89. Council Regulation No. 3286/94, as note 4 above, at Article 12.
90. Ibid., at Article 8.4.
91. Ibid., at Article 8.5.
92. Foreign Trade Barriers Investigation Rules, as note 5 above.
93. Ibid., at Article 5.
94. Ibid., at Article 6.
95. Ibid., at Article 7.
96. Id.
97. Id.
98. Id.
99. Id.
100. Id.
101. Ibid., at Article 8.
102. Ibid., at Article 4.
103. The Ministry of Commerce Announcement No. 16, 2004, Initiation of an Investigation on Japan Restriction Measures of Laver Importation (22 April 2004), available at: (last visited 16 June 2006).
104. Foreign Trade Barriers Investigation Rules, as note 5 above, at Article 10.
105. Ibid., at Articles 12 and 13.
106. Ibid., at Article 14.
107. Ibid., at Article 16.
108. Id.
109. Id.
110. Id.
111. Ibid. at Article 19.
112. Ibid. at Article 20.
113. Ibid. at Article 21.
114. Ibid. at Article 22.
115. Ibid. at Article 25.
116. Ibid. at Article 32.
117. Ibid. at Article 10.
118. Ibid. at Article 12.
119. Ibid. at Article 13.
120. Ibid. at Article 13.
121. Ibid. at Articles 23 and 24.
122. The Ministry of Commerce Announcement No. 16, 2004, as note 98 above.
123. Shaffer, as note 3 above, at pp. 15-16.
124. Foreign Trade Barriers Investigation Rules, as note 5 above, at Articles 7 and 8.
125. Ibid., at Article 16.
126. Ibid., at Article 30.
127. Ibid., at Article 21.
128. Council Regulation No. 3286/94, as note 4 above, at Article 8.2(b).
129. Id.
130. Ibid., at Article 2.5.
131. Id.
132. Id.
133. Id.
134. Id.
135. Id.
136. Ibid., at Article 2.6.
137. Id.
138. Ibid., at Article 2.1.
139. Id.
140. General Agreement on Tariffs and Trade, Articles 23.1(b), 30 October 1947, 61 Stat. A-11, 55 U.N.T.S. 194 (hereinafter GATT). It refers to the situation where the benefit accruing to one WTO Member State is nullified or impaired by the application of another WTO Member State of any measure, whether or not it conflicts with the provisions of the Agreement.
141. Robert M. Maclean, The European Community's Trade Barriers Regulation Takes Shape: Is It Living Up to Expectations?, 33 Journal of World Trade 6 (December 1999), 69, 73.
142. Id.
143. Council Regulation 3286/94, as note 4 above, at Article 2.1.
144. Bronckers, as note 18 above, at 436.
145. Crowell and Moring, as note 55 above, at Annex F.
146. Ibid, at 35-37.
147. Council Regulation No. 3286/94, as note 4 above, at Article 3.2.
148. Ibid., at Article 2.3.
149. Ibid., at Article 10.1.
150. Id.
151. Id.
152. Ibid., at Article 10.2.
153. Commission Notice of Initiation of an Examination Procedure Concerning an Obstacle to Trade, within the Meaning of Council Regulation (EC) No. 3286/94, Consisting of Subsidies Afforded by the United States of America to Oilseed Production, 2003 O.J. (C58) 3.
154. Id.
155. European Commission, Directorate-General for Trade, General Overview of Active WTO Dispute Settlement Cases Involving the EC as Complainant or Defendant and of Active Cases Under the Trade Barriers Regulation (2006), p. 29, available at: (last visited 16 June 2006).
156. Id.
157. European Commission, Report to the Trade Barriers Regulation Committee: TBR Proceedings Concerning Chilean Practices Affecting Transit of Swordfish in Chilean Ports (23 March 1999), p. 67, available at: (last visited 16 June 2006);
158. European Commission, Report to the Trade Barriers Regulation Committee: TBR Proceedings Concerning Brazilian Subsidies for Export of Regional Aircraft (27 October 1999), available at: (last visited 16 June 2006);
159. European Commission, Report to the Trade Barriers Regulation Committee: Examination Procedure Concerning an Obstacle to Trade, Within the Meaning of Council Regulation (EC) No. 3286/94, Consisting of Trade Practices Maintained by Korea Affecting Trade in Commercial Vessels (8 May 2001), p. 67, available at: (last visited 16 June 2006).
160. Council Regulation No. 3286/94, as note 4 above, at Article 4.2.
161. Ibid., at Article 10.4.
162. Id.
163. Eeckhaute, as note 50 above, at 202-203.
164. Id.
165. Id.
166. Maclean, as note 136 above, at 88.
167. Id.
168. Id.
169. Council Regulation No. 3286/94, as note 4 above, at Article 10.4.
170. Id.
171. Crowell and Moring, as note 55 above, at 84;
172. Maclean, as note 136 above, at 83-87.
173. Council Regulation No. 3286/94, as note 4 above, at Article 10.4.
174. European Commission, Report to the Trade Barriers Regulation Committee: TBR Proceedings Concerning Trade Practices Maintained by the United States of America in Relation to the Imports of Prepared Mustard (6 March 2002), p. 30, available at: (last visited 16 June 2006).
175. Case T-317/02, FICF v. Comm'n of the European Communities, para. 64-74, available, at: (last visited 15 June 2006). Article 230 of the EC Treaty confers the Court of Justice the right to review the act of the Commission. This Article also confers any natural or legal person the right to institute proceedings against a decision that is addressed or of direct and individual concern to himself/ herself. According to Article 1.1 of the Council Decision 93/350 of 8 June 1993 amending Council Decision 88/ 591/ ECSC, EEC, E.U.ratom establishing a Court of First Instance of the European Communities (OJ 1993 L 144/ 21), the Court of First Instance shall exercise at first instance the jurisdiction conferred on the Court of Justice by the EC Treaty.
176. European Commission, Report to the Trade Barriers Regulation Committee: TBR Examination Procedure Concerning an Obstacle to Trade, Within the Meaning of Council Regulation (EC) No. 3286/94, Consisting of Trade Practices Maintained by Canada in Relation to Certain Geographical Indication for Wines (24 January 2003), pp. 22-23, available at: (last visited 16 June 2006).
177. Ibid.; Council Regulation No. 3286/94, as note 4 above, at Article 2.4.
178. Foreign Trade Barriers Investigation Rules, as note 5 above.
179. Ibid., at Article 1.
180. Id.
181. Ibid., at Article 3.
182. Id.
183. Id.
184. Id.
185. Id.
186. Id.
187. Ibid., at Article 3.
188. Council Regulation No. 3286/94, as note 4 above, Article 2.1.
189. See GATT, as note 135 above, at Article 23.1.
190. Council Regulation No. 3286/94, as note 4 above, Article 2.1.
191. Id.
192. Id.
193. Ibid., at Article 2.1.
194. Id.
195. The New Oxford American Dictionary (2nd edn: 2005), p. 1022.
196. Ibid., at 1699.
197. See Bronckers, as note 18 above, at 436.
198. Nevertheless, there is a WTO case relevant here, namely, Canada - Measures Affecting the Importation of Milk and the Exportation of Dairy Products (WT/DS103, WT/DS113). In this case, a Canadian special milk classes scheme was challenged by the United States and New Zealand. One of the complainants' claims is that the scheme violates Article 9.1(c) of the Agreement on Agriculture. Article 9.1 of the Agreement on Agriculture lists six kinds of export subsidies that shall be subject to reduction commitments. Subparagraph (c) deals with "payments on the export of an agricultural product that are financed by virtue of governmental action...". The panel found that, "although the payment under this scheme is not financed directly with governmental funds, is, nevertheless, financed by virtue of governmental action in the sense of Article 9.1(c)". This finding was upheld by the Appellate Body.
199. See Panel Report, Canada - Measures Affecting the Importation of Milk and the Exportation of Dairy Products, WT/ DS103/R (17 May 1999);
200. Appellate Body Report, Canada - Measures Affecting the Importation of Milk and the Exportation of Dairy Products, WT/DS103/AB/R (13 October 1999).
201. Council Regulation No. 2641/84, as note 10 above.
202. 88/287/EEC, Commission Decision of 11 May 1988 terminating the examination procedure concerning the unauthorized reproduction of sound recordings in Indonesia consequent on the Republic of Indonesia's undertaking to give sound recordings by nationals of Community Member States the same protection as sound recordings by Indonesian nationals, 1988 OJ. (L123) 51 (EC).
203. See Bronckers, as note 18 above, at 436.
204. Council Regulation No. 2641/84, as note 10 above, at Article 2.1.
205. 871553/EEC, Commission Decision of 23 November 1987 suspending the illicit commercial practices procedure concerning the unauthorized reproduction of sound recordings in Indonesia, 1987 O.J. (L335) 22 (EC).
206. See Bronckers, as note 18 above, at 463.
207. Id.
208. Council Regulation No. 3286/94, as note 4 above, Articles 3, 4.
209. Crowell and Moring, as note 55 above, at 123.
210. Council Regulation No. 3286/94, as note 4 above.
211. Ibid., at Articles 11, 12.1.
212. Ibid., at Article 11.2.
213. Ibid., at Article 11.3.
214. Id.
215. Eeckhaute, as note 50 above, at 209.
216. Crowell and Moring, as note 55 above, at 52; see also Annex.
217. Id.
218. Council Regulation No. 3286/94, as note 4 above, at Article 12.1.
219. Ibid., at Article 12.2.
220. Id.
221. Ibid., at Article 12.3.
222. Id.
223. Id.
224. Id.
225. Crowell and Moring, as note 55 above at 53; see also Annex.
226. Council Regulation No. 3286/94, as note 4 above, at Article 11.1.
227. European Commission, as note 166 above.
228. See the Annex.
229. Foreign Trade Barriers Investigation Rules, as note 5 above.
230. Foreign Trade Barriers Investigation Rules, as note 5 above, at Article 26.
231. Id.
232. Id.
233. Id.
234. Ibid., at Article 27.
235. Ibid., at Article 28.
236. Ibid., at Article 30.
237. Id.
238. Foreign Trade Barriers Investigation Rules, as note 5 above, at Article 29.
239. Id.
240. Id.
241. Ibid., at Article 31. In practice, the decision concerned is published on the Gazette of the Ministry of Commerce.
242. Foreign Trade Barriers Investigation Rules, as note above, at Article 33.
243. See Eeckhaute, as note 50 above, at 209.
244. Understanding on Rules and Procedures Governing the Settlement of Disputes, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, Legal Instruments - Results of the Uruguay Round, Article 4, 33 I.L.M. 1125 (1994) (hereinafter DSU).
245. Council Regulation No. 3286/94, as note 4 above, at Article 11.2; Foreign Trade Barriers Investigation Rules, as note 5 above, at Article 27.
246. Council Regulation No. 3286/94, as note 4 above, at Article 12.2.
247. Ibid., at Article 12.3.
248. Foreign Trade Barriers Investigation Rules, as note 5 above, at Article 33.
249. DSU, as note 234 above, at Article 23.
250. In this respect, a WTO case is worth mentioning. On 2 February 1999, the European Communities initiated a dispute challenging the consistency of sections 301-310 of the US Foreign Trade Act of 1974 with US obligations under WTO agreements, in which other 16 WTO Member States participated as third parties. According to the Panel, the statutory language of Sections 304, 305 and 306 allows the USTR to exercise its discretion contrary to US obligations under Article 23 of the DSU, therefore constituting a prima facie violation of Article 23. Nevertheless, the Panel noted that the US Administration had pledged in the SAA, and before the Panel, that it would not exercise its discretion contrary to its obligations under Article 23. The Panel held that these undertakings effectively and legally curtailed the offending discretionary element, and therefore removed the prima facie WTO inconsistencies created by the statutory language of Sections 301-310. Thus, the Panel found that Sections 304(a)(2)(A), 305(a) and 306(b) of the US Trade Act of 1974 were not inconsistent with DSU Article 23.2(a) or (c) or with any of the GATT 1994 provisions cited. However, the Panel stated that should those undertakings be repudiated or in any other way removed, its findings of conformity would no longer be warranted. The DSB adopted the Panel Report at its meeting on 27 January 2000. See Panel Report, United States - Sections 301-310 of the Trade Act of 1974, WT /DS152/ R, (22 December 1999).
251. Council Regulation No. 3286/94, as note 4 above.
252. These issues include the admissibility of the complaint, initiation of dispute settlement procedure, termination or suspension of procedure, and adoption of commercial policy measures.
253. EC Treaty, as note 83 above, at Article 230.
254. FICF v. Commission of the European Communities, as note 167 above, at para. 41.
255. Id.
256. Council Regulation 3286/94, as note 4 above, at Articles 2.1, 2.4, 8.5, 8.8, 10.5, 11.1.
257. Ibid., at para. 43.
258. Ibid., at para. 202.
259. Foreign Trade Barriers Investigation Rules, as note 5 above.
260. Zhong Hua Ren Min Gong He Guo Xing Zheng Fu Yi Fa [Administrative Review Law] (promulgated by the National People's Congress, 29 April 1999, effective 1 October 1999), Article 6, Standing Committee National People's Congress Gazette (1999), 3.
261. Zhong Hua Ren Min Gong He Guo Xing Zheng Su Song Fa [Administrative Procedure Law] (promulgated by the National People's Congress, 4 April 1989, effective 1 October 1990), Article 2, available at: (last visited 16 June 2006) (P.R.C.).
262. Ibid., at Article 11, 38; Administrative Review Law, as note 250 above, at Article 5.
263. Administrative Procedure Law, as note 251 above, at Article 60.
264. Shang Wu Bu Xing Zheng Fu Yi Shi Shi Ban Fa [Implementation Measures for Administrative reconsideration of the Ministry of Commerce] (promulgated by the Ministry of Commerce, 20 May 2004, effective 1 July 2004), Article 2, available at (last visited 16 June 2006) (P.R.C.).
265. Administrative Procedure Law, as note 251 above at Article 14.
266. Council Regulation 3286/94, as note 4 above.
267. As note 7 above.
268. EU Market Access, (last visited 16 June 2006). The Database provides a wide range of market access information, including economic and regulatory information, applied tariff levels and analyses of trade issues, and the material is updated regularly throughout the year.
269. Michael Sanchez Rydelshi and G.A.V.R. Zonnekeyn, The EC Trade Barriers Regulation: The EC's move towards a more aggressive market access strategy, 31 Journal of World Trade 5 (October 1997), 147, 160.
270. Europa I-Centre, (last visited 16 June 2006). The notices of initiation and investigation reports after 1997 could be searched through this engine.
271. Model TBR Complaint, (last visited 16 June 2006).
272. Eeckhaute, as note 50 above, at 209.
273. For detailed information regarding the cases, please refer to the Annex.
274. Id.
275. The Revenue Act of 1916, 15 U.S.C. § 72 (repealed 2006). 266 Id.
276. Eeckhaute, as note 50 above, at 212.
277. Founded in 1976, European Confederation of Iron and Steel Industries is composed of steel companies and national steel associations throughout the European Union. Its members represent almost 100 percent of steel production in the EU, available at: (last visited 16 June 2006).
278. Id.
279. Notice of Initiation of an Examination Procedure Concerning an Obstacle to Trade within the Meaning of Council Regulation No. 3286/94 - Failure of the United States of America to Repeal the Antidumping Act of 1916, 1997 OJ. (C058) 14.
280. GATT, as note 135 above, at Articles III, IV.
281. Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, Articles 1, 18.4, 9.3, 10, 5, 2, 3, 11.1, 15 April 1994, 33 I.L.M. 1125 (1994) (hereinafter Anti-Dumping Agreement).
282. Agreement Establishing the World Trade Organization, Article XVI:4, 15 April 1994, 33 I.L.M. 1125 (1994).
283. As note 270 above.
284. Id.
285. Id.
286. Id.
287. Council Regulation No. 3286/94, as note 4 above, at Article 8.1(a). 279 Id.
288. Id.
289. Commission Report to the Committee Established Under Article 7 of Council Regulation (EC) No. 3286194 (The "Trade Barriers Regulation") - Trade Barriers Regulation Examination Procedure Concerning The United States Antidumping Act of 1916 (1997), available at: (last visited 16 June 2006) (hereinafter 1916 Act Report).
290. Id.
291. 19 USC §§ 3501-3624 (2000).
292. 1916 Act Report, as note 281 above.
293. Id.
294. Council Regulation No. 3286/94, as note 4 above, at Article 8.
295. 1916 Act Report, as note 281 above.
296. Ibid. The Commission's conclusions on this case are as follows: (a) the 1916 Act is inconsistent with Article VI of GATT 1994, Articles 2, 3, 5.4, 9 of the WTO Anti-Dumping Agreement, as well as Article XVI:4 of the WTO Agreement, which constitute international trade rules conferring to the Community a fight of action under Article 2(1) of the TBR; (b) the 1916 Act is also inconsistent with the Article III:4 of GATT 1994, in that it is discriminatory against the internal sale of foreign products after importation. Therefore, Article III:4 of GATT 1994 appeared to be another international trade rule possibly conferring to the Community a right of action under Article 2(1) of the TBR; (c) in the US domestic law system, the 1916 Act prevails over the Uruguay Round Agreements Act and WTO provisions in case of conflict.
297. Id.
298. Id.
299. Id.
300. For legal reasons, the European Union is known officially as the European Communities in the WTO business. 293 DSU, as note 234 above, at Article 4.
301. GATT, as note 135 above, at Article XXIII.
302. Request for Consultations by the European Communities, United States - Anti-Dumping Act of 1916, WT/ DS136/1 (4 June 1998).
303. Request for the Establishment of a Panel by the European Communities, United States - Anti-Dumping Act of 1916, WT/DS136/2 (12 November 1998).
304. Id.
305. Panel Report, United States - Anti-Dumping Act of 1916, para. 7.1, WT/DS136/R (31 March 2000).
306. GATT, as note 135 above, at Article VI.
307. Anti-Dumping Agreement, as note 272 above, at Articles 1, 4, 5.5.
308. Agreement Establishing the World Trade Organization, as note 273 above, at Article XVI:4.
309. Notification of an Appeal by the United States, United States - Anti-Dumping Act of 1916, WT/DS136/5 (29 May 2000).
310. Appellate Body Report, United States - Anti-Dumping Act of 1916, para. 155, WT/DS136/AB/R (28 August 2000).
311. Request for Arbitration under Article 21.3(c) of the DSU by the European Communities, United States - Anti-Dumping Act of 1916, WT/DS136/9 (21 November 2000).
312. Arbitration Award under Article 21.3(c) of the DSU, United States - Anti-Dumping Act of 1916, para. 45, WT/DS136/11 (28 February 2001).
313. European Commission, Report on US Barriers to Trade and Investment 48 (2004), available at: (last visited 16 June 2006).
314. Council Regulation (EC) No 2238/2003 of 15 December 2003 protecting against the effects of the application of the United States Anti-Dumping Act of 1916, and actions based thereon or resulting therefrom, 2003 O.J. (L333) 1.
315. Recourse by the European Communities to Article 22.2 of the DSU, United States - Anti-Dumping Act of 1916, WT/DS136/15 (11 January 2002).
316. DSU, as note 234 above, at Article 22.6.
317. Decision on the Arbitration under Article 22.2 of the DSU, United States - Anti-Dumping Act of 1916, WT/DS136/ARB (24 February 2004).
318. The Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, Title II, § 2006(a), 118 Stat. 2597.
319. 1916 Act Report, as note 281 above. This report said that there have been three cases involving EC companies since the initiation of the WTO proceeding, two of which were started after the 1916 Act was declared WTO incompatible.
320. Foreign Trade Barriers Investigation Rules, as note 5 above.
321. Barriers on Trade and Investment; (last visited 16 June 2006).
322. Id.
323. China Has Done a Good Job in Responding to Trade Conflict, available at: (last visited 16 March 2006).
324. The Ministry of Commerce Announcement No. 16, 2004, as note 98 above.
325. China Appreciates the Adjustment of Japan Regulation on Importation Quota of Laver (30 May 2005); available at: (last visited 16 June 2006).
326. Id.
327. The Ministry of Commerce Announcement No. 16, 2004, as note 98 above.
328. Id.
329. Id.
330. Id.
331. Id.
332. The Ministry of Commerce Announcement No. 65, 2004, Suspension of the Investigation on Japan Restriction Measures of Laver Importation (21 October 2004), available at: (last visited 16 June 2006).
333. Id.
334. Id.
335. Id.
336. Id.
337. The Ministry of Commerce Announcement No. 10, 2005, Termination of the Investigation on Japan Restriction Measures of Laver Importation; available at: , (last visited 16 June 2006).
338. Id.
339. Japan Barrier on Importation of Laver was Removed and Laver Export from Jiangsu Province Soared by 70 Times; available at: (last visited 16 June 2006).
340. Id.
341. See Shaffer, as note 3 above, at 20; Eeckhaute, as note 50 above, at 210; Bronckers, as note 18 above, at 461.
342. Chengyan Lu, Legal Services in China: Facing the WTO, 20 UCLA Pac. Basin L.J. 25 (2003), 278.
343. Council Regulation No. 3286/94, as note 4 above, at Article 1.
344. See Official Journal of the European Communities; Trade Barriers Regulation: List of Cases, available at: (http://Europa.eu.int/comm/ trade/issues/respectrules/tbr/cases/cases_list_en.htm> (last visited 16 June 2006).