International Trade and WTO Prof. Sohn, Taewoo

5. GATT/WTO The Fourth Pillar: Non-Tariff Barriers and GATT Article XI Article XI: General Elimination of Quantitative Restrictions (QRS) 1.       No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party. 2.       The provisions of paragraph 1 of this Article shall not extend to the following: (a)      Export prohibitions or restrictions temporarily applied to prevent or relieve critical shortages of foodstuffs or other products essential to the exporting contracting party; (b)      Import and export prohibitions or restrictions necessary to the application of standards or regulations for the classification, grading or marketing of commodities in international trade; (c)      Import restrictions on any agricultural or fisheries product, imported in any form, necessary to the enforcement of governmental measures which operate: (i)  to restrict the quantities of the like domestic product permitted to be marketed or produced, or, if there is no substantial domestic production of the like product, of a domestic product for which the imported product can be directly substituted; or   (ii)  to remove a temporary surplus of the like domestic product, or, if there is no substantial domestic production of the like product, of a domestic product for which the imported product can be directly substituted, by making the surplus available to certain groups of domestic consumers free of charge or at prices below the current market level; or (iii)  to restrict the quantities permitted to be produced of any animal product the production of which is directly dependent, wholly or mainly, on the imported commodity, if the domestic production of that commodity is relatively negligible. 제11조 수량제한의 일반적 철폐 다른 체약당사자 영토의 상품의 수입에 대하여 또는 다른 체약당사자 영토로 향하는 상품의 수출 또는 수출을 위한 판매에 대하여, 쿼타, 수입 또는 수출 허가 또는 그밖의 조치 중 어느 것을 통하여 시행되는지를 불문하고, 관세, 조세 또는 그밖의 과징금 이외의 어떠한 금지 또는 제한도 체약당사자에 의하여 설정되거나 유지되어서는 아니된다. 2. 이 조 제1항의 규정은 다음에 대하여는 적용되지 아니한다. (a) 식품 또는 수출체약당사자에게 불가결한 그밖의 상품의 중대한 부족을 방지 또는 완화하기 위하여 일시적으로 적용되는 수출의 금지 또는 제한 (b) 국제무역에 있어서 산품의 분류, 등급부여 또는 판매를 위한 표준 또는 규정의 적용에 필요한 수입 및 수출의 금지 또는 제한 (c) 다음 목적을 위하여 운영되는 정부조치의 시행에 필요한 것으로서 어떤 형태로든 수입되는 농산물 또는 수산물에 대한 수입의 제한 (i) 판매 또는 생산되도록 허용된 동종 국내상품의 수량, 또는 동종 상품의 실질적인 국내생산이 없는 경우에는 동 수입상품이 직접적으로 대체할 수 있는 국내상품의 수량을 제한하기 위한 것 또는 (ii) 동종 국내상품의 일시적인 과잉상태, 또는 동종 상품의 실질적인 국내생산이 없는 경우에는 동 수입상품이 직접적으로 대체할 수 있는 국내상품의 일시적인 과잉상태를 무상 또는 당시의 시장수준보다 낮은 가격으로 일정한 국내소비자집단에 이용가능하게 함으로써 제거하기 위한 것 또는 (iii) 어떤 산품의 국내생산이 상대적으로 경미한 경우에 생산의 전부 또는 대부분을 그 수입산품에 직접적으로 의존하는 동물성 상품의 생산이 허용되는 물량을 제한하기 위한 것 이 항 (c)호에 따라 상품의 수입에 대한 제한을 적용하는 체약당사자는 특정한 장래의 기간중에 수입이 허용될 상품의 총량 또는 총액과 이러한 물량 또는 금액에 있어서의 변경을 공고하여야 한다. 또한, 위 (i)에 의하여 적용되는 제한은, 제한이 없을 경우 양자간에 성립될 것이 합리적으로 기대되는 총국내생산에 대한 총수입의 비율과 비교하여 동 비율을 감소시키는 것이어서는 아니된다. 체약당사자는 동 비율을 결정함에 있어서 과거의 대표적인 기간 동안 우세하였던 비율과 당해 상품의 무역에 영향을 주었을 수도 있거나 영향을 주고 있을 수도 있는 특별한 요소에 대하여 적절한 고려를 한다.

5. GATT/WTO The Fourth Pillar: Non-Tariff Barriers and GATT Article XI 제11조 수량제한의 일반적 철폐 (iii) 어떤 산품의 국내생산이 상대적으로 경미한 경우에 생산의 전부 또는 대부분을 그 수입산품에 직접적으로 의존하는 동물성 상품의 생산이 허용되는 물량을 제한하기 위한 것 이 항 (c)호에 따라 상품의 수입에 대한 제한을 적용하는 체약당사자는 특정한 장래의 기간중에 수입이 허용될 상품의 총량 또는 총액과 이러한 물량 또는 금액에 있어서의 변경을 공고하여야 한다. 또한, 위 (i)에 의하여 적용되는 제한은, 제한이 없을 경우 양자간에 성립될 것이 합리적으로 기대되는 총국내생산에 대한 총수입의 비율과 비교하여 동 비율을 감소시키는 것이어서는 아니된다. 체약당사자는 동 비율을 결정함에 있어서 과거의 대표적인 기간 동안 우세하였던 비율과 당해 상품의 무역에 영향을 주었을 수도 있거나 영향을 주고 있을 수도 있는 특별한 요소에 대하여 적절한 고려를 한다. Article XI: General Elimination of Quantitative Restrictions Any contracting party applying restrictions on the importation of any product pursuant to subparagraph (c) of this paragraph shall give public notice of the total quantity or value of the product permitted to be imported during a specified future period and of any change in such quantity or value. Moreover, any restrictions applied under (i) above shall not be such as will reduce the total of imports relative to the total of domestic production, as compared with the proportion which might reasonably be expected to rule between the two in the absence of restrictions. In determining this proportion, the contracting party shall pay due regard to the proportion prevailing during a previous representative period and to any special factors which may have affected or may be affecting the trade in the product concerned. Trade restrictions should be in the form of duties, taxes and other charges whether effective through quotas, import and export licenses and other measures, ultimately requiring the tariffication of all quantitative restrictions. All new trade measures to be in the form of tariffs.

5. GATT/WTO The Fourth Pillar: Non-Tariff Barriers and GATT Article XI (2) Q1: Assume Japan imports automobiles from the United States made by General Motors (GM) and Ford, and these imports have left-hand drive steering. The Japanese drive on the left side of the road and Japanese cars have right-hand drive steering. Cars imported into Japan from all other countries except the United States also have right-hand drive steering. Japan establishes a technical regulation requiring all imported cars to have right-hand drive steering. Cars not meeting the requirement are banned from the Japanese market. The United States Trade Representative (USTR) protests. Is the Japanese regulation consistent with the WTO Agreement on Technical Barriers to Trade (TBT Agreement)?

5. GATT/WTO The Fourth Pillar: Non-Tariff Barriers and GATT Article XI (2) A1: No. First, the regulation applies only to imported cars, not domestically-produced cars. Consequently, there is a violation of the national treatment principle in Article 2:1 of the TBT Agreement. Second, under Articles 2:2 and 2:3 of that Agreement, the regulation arguably is more trade-restrictive than necessary to fulfill a legitimate objective. GM and Ford could equip their cars with right-hand drive steering at a factory located in Japan. There is no need to ban all non-conforming imports, rather, what is needed is to ensure that the imports are conforming before they are driven on the road. Third, whether the technical regulation serves a legitimate objective is unclear. Of the objectives listed in the non-exclusive list in Article 2:2 of the Agreement, the protection of human health and safety is the one that the ban is most likely to support. However, the Japanese government must make a case, based on objective data, that left-hand drive steering leads to an increased risk of accidents.

Article 2   Preparation, Adoption and Application of Technical Regulations by Central Government Bodies With respect to their central government bodies: 2.1 Members shall ensure that in respect of technical regulations, products imported from the territory of any Member shall be accorded treatment no less favourable than that accorded to like products of national origin and to like products originating in any other country. 2.2 Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. For this purpose, technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create. Such legitimate objectives are, inter alia: national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment. In assessing such risks, relevant elements of consideration are, inter alia: available scientific and technical information, related processing technology or intended end-uses of products. 2.3 Technical regulations shall not be maintained if the circumstances or objectives giving rise to their adoption no longer exist or if the changed circumstances or objectives can be addressed in a less trade-restrictive manner. 2019-06-09 국제거래법

a disguised barrier to imports of foreign cars? 5. GATT/WTO The Fourth Pillar: Non-Tariff Barriers and GATT Article XI (2) Q2: Assume Germany establishes new recycling requirements that require all automobile manufacturers to take back and recycle old cars. Are these requirements a disguised barrier to imports of foreign cars? A2: Possibly. The recycling requirements may favor products manufactured in or close to the home market. For example, German car companies may be more advanced than American and Japanese producers in designing cars that can be recycled. Moreover, it is probably easier for Mercedes, Audi, and Volkswagen to take back and recycle a car from Frankfurt than for Chrysler or Toyota to do so.

6. Limitation of powers of Contracting Party in nondiscriminatory actions * While GATT does permit nondiscriminatory “duties, taxes and other charges,” the powers of Contracting Party are limited even as to these devices. Article X: Publication and Administration of Trade Regulations 1.       Laws, regulations, judicial decisions and administrative rulings of general application, made effective by any contracting party, pertaining to the classification or the valuation of products for customs purposes, or to rates of duty, taxes or other charges, or to requirements, restrictions or prohibitions on imports or exports or on the transfer of payments therefor, or affecting their sale, distribution, transportation, insurance, warehousing inspection, exhibition, processing, mixing or other use, shall be published promptly in such a manner as to enable governments and traders to become acquainted with them. Agreements affecting international trade policy which are in force between the government or a governmental agency of any contracting party and the government or governmental agency of any other contracting party shall also be published. The provisions of this paragraph shall not require any contracting party to disclose confidential information which would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private. 2.       No measure of general application taken by any contracting party effecting an advance in a rate of duty or other charge on imports under an established and uniform practice, or imposing a new or more burdensome requirement, restriction or prohibition on imports, or on the transfer of payments therefor, shall be enforced before such measure has been officially published. 제10조 무역규정의 공표 및 시행 1. 체약당사자가 시행하고 있는 법률·규정·사법판결 및 일반적으로 적용되는 행정결정으로서 관세목적을 위한 상품의 분류 또는 평가, 관세, 조세 또는 그밖의 과징금의 율, 수입 또는 수출, 또는 이를 위한 지급이전에 대한 요건, 제한 또는 금지에 관한 것이거나 상품의 판매, 유통, 운송, 보험, 창고보관, 검사, 전시, 가공, 혼합 또는 그밖의 사용에 영향을 주는 것은 각 정부 및 무역업자가 알 수 있도록 하는 방식으로 신속히 공표되어야 한다. 체약당사자 정부 또는 정부기관과 다른 체약당사자 정부 또는 정부기관간에 유효한, 국제무역정책에 영향을 주는 협정 또한 공표되어야 한다. 이 항의 규정은 체약당사자가 법률의 시행을 방해하거나 달리 공익에 반하거나 공사를 불문한 특정기업의 정당한 상업적 이익을 저해할 수 있는 비밀정보를 공개하도록 요구하는 것은 아니다. 2. 체약당사자가 취하는 일반적으로 적용되는 어떠한 조치도, 확립되고 일관된 관행 하에서 수입에 부과되는 관세 또는 그밖의 과징금의 율을 증가시키는 것이거나 수입 또는 수입을 위한 지급이전에 대하여 새롭거나 더 부담이 되는 요건, 제한 또는 금지를 부과하는 것은 동 조치가 공식적으로 공표되기 이전에 시행되어서는 아니된다.

6. Limitation of powers of Contracting Party in nondiscriminatory actions Article X: Publication and Administration of Trade Regulations 3.       (a)      Each contracting party shall administer in a uniform, impartial and reasonable manner all its laws, regulations, decisions and rulings of the kind described in paragraph 1 of this Article. (b)      Each contracting party shall maintain, or institute as soon as practicable, judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review and correction of administrative action relating to customs matters. Such tribunals or procedures shall be independent of the agencies entrusted with administrative enforcement and their decisions shall be implemented by, and shall govern the practice of, such agencies unless an appeal is lodged with a court or tribunal of superior jurisdiction within the time prescribed for appeals to be lodged by importers; Provided that the central administration of such agency may take steps to obtain a review of the matter in another proceeding if there is good cause to believe that the decision is inconsistent with established principles of law or the actual facts.  (c)      The provisions of subparagraph (b) of this paragraph shall not require the elimination or substitution of procedures in force in the territory of a contracting party on the date of this Agreement which in fact provide for an objective and impartial review of administrative action even though such procedures are not fully or formally independent of the agencies entrusted with administrative enforcement. Any contracting party employing such procedures shall, upon request, furnish the CONTRACTING PARTIES with full information thereon in order that they may determine whether such procedures conform to the requirements of this subparagraph. 제10조 무역규정의 공표 및 시행 3. (a) 각 체약당사자는 이 조 제1항에 기재된 종류의 자신의 모든 법률, 규정, 판결 및 결정을 일관되고 공평하며 합리적인 방식으로 시행한다. (b) 각 체약당사자는 특히 관세와 관련된 행정적 조치의 신속한 검토 및 시정의 목적을 위하여 사법, 중재 또는 행정 재판소 또는 절차를 유지하거나 실행가능한 한 조속히 설치한다. 동 재판소 또는 절차는 행정적 시행을 담당하는 기관으로부터 독립되어야 하며, 그 판결은 상소가 수입자에 의하여 제기되도록 정하여진 기간 내에 상위관할권의 법원 또는 재판소에 상소가 제기되는 경우가 아니면 동 기관에 의하여 이행되고 또한 동 기관의 행위를 규율한다. 단, 동 기관의 중앙행정관청은 그 판결이 확립된 법원칙이나 실제사실과 일치하지 아니한다고 믿을만한 충분한 이유가 있는 경우 다른 심의과정에서 동 문제에 관한 검토를 받기 위한 조치를 취할 수 있다. (c) 이 항 (b)호의 규정은 이 협정일자에 체약당사자의 영토에서 유효한 절차로서, 행정적 시행을 담당하는 기관으로부터 충분히 또는 정식으로 독립되어 있지 아니하다 하더라도 행정조치의 객관적이고 공평한 검토를 제시하는 절차의 철폐 또는 대체를 요구하는 것은 아니다. 동 절차를 채용하는 체약당사자는, 요청이 있을 경우, 동 절차가 이 호의 요건에 합치하는지 여부를 체약당사자단이 결정할 수 있도록 동 절차에 관한 충분한 정보를 체약당사자단에 제공한다. All trade measures of Members should be published and therefore transparent

Is the United States correct? Why or why not? [See GATT Panel Report, Article X: Publication and Administration of Trade Regulations (Q) The liquor board of the province of British Columbia, Canada, establishes a new pricing policy. Information about this policy is shared with domestic brewers before it is made available to American authorities or brewers. The policy is announced in the British Columbia legislature only five days before it enters into effect. The United States alleges that British Colombia has violated GATT Article X. Is the United States correct? Why or why not? [See GATT Panel Report, Canada — Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Agencies, B.I.S.D. (39th Supp.) at 27 (1991-92) (adopted 18 February 1992)]. (A) No. As the case citation in the Question suggests, the facts are drawn from an actual dispute. In the Canada — United States dispute, a GATT Panel found that while Article X imposes requirements relating to the prompt publication of trade regulations, this provision does not require a Contracting Party to make information available to domestic and foreign suppliers, or domestic suppliers and foreign authorities, at the same time. In addition, the Panel held, this Article does not require contracting parties to publish trade regulations in advance of their entry into force. Thus, publication and enforcement can occur simultaneously. Query whether the United States might have a claim under GATT Article III.

(2) Article XXVIII: Modification of Schedules & Tariff Negotiations 6. Limitation of powers of Contracting Party in nondiscriminatory actions (2) Article XXVIII: Modification of Schedules & Tariff Negotiations Article XXVIII: Modification of Schedules 1.       On the first day of each three-year period, the first period beginning on 1 January 1958 (or on the first day of any other period* that may be specified by the CONTRACTING PARTIES by two-thirds of the votes cast) a contracting party (hereafter in this Article referred to as the “applicant contracting party”) may, by negotiation and agreement with any contracting party with which such concession was initially negotiated and with any other contracting party determined by the CONTRACTING PARTIES to have a principal supplying interest* (which two preceding categories of contracting parties, together with the applicant contracting party, are in this Article hereinafter referred to as the “contracting parties primarily concerned”), and subject to consultation with any other contracting party determined by the CONTRACTING PARTIES to have a substantial interest* in such concession, modify or withdraw a concession* included in the appropriate schedule annexed to this Agreement. 2.       In such negotiations and agreement, which may include provision for compensatory adjustment with respect to other products, the contracting parties concerned shall endeavour to maintain a general level of reciprocal and mutually advantageous concessions not less favourable to trade than that provided for in this Agreement prior to such negotiations. 제28조 양허표의 수정 1. 체약당사자(이하 이 조에서는 갽1 신청체약당사자괽1 라 칭한다)는 이 협정에 부속된 해당 양허표에 포함된 양허에 대하여, 동 양허를 최초로 협상한 체약당사자 및 체약당사자단이 주요공급이해를 가진다고 결정하는 다른 체약당사자(앞의 두 범주의 체약당사자는 신청체약당사자와 함께 이 조에서는 이하 갽1 주요관련체약당사자들괽1 이라 칭한다)와 협상하고 합의함으로써, 그리고 동 양허에 대하여 실질적인 이해관계를 가진다고 체약당사자단이 결정하는 다른 체약당사자와 협의할 것을 조건으로, 1958년 1월 1일에 그 첫번째 기간이 시작되는 각 3년 기간의 첫째날(또는 행사된 투표의 3분의 2로 체약당사자단에 의하여 정하여질 수 있는 다른 기간의 첫째날)에 동 양허를 수정하거나 철회할 수 있다. 2. 다른 상품에 관하여 보상적 조정을 위한 규정을 포함할 수 있는 동 협상 및 합의에 있어서 관련체약당사자는 동 협상 이전에 이 협정에 제시된 것보다 무역에 불리하지 아니한 상호적이고 호혜적인 양허의 일반적 수준을 유지하도록 노력한다. Regulations concerning the modification of the schedule of trade regulations (‘bound’ rates). The use of negotiations to further reduce tariffs and other trade measures between Members on a reciprocal and mutually advantageous basis.

6. Limitation of powers of Contracting Party in nondiscriminatory actions (2) Article XXVIII*: Modification of Schedules 3.       (a)      If agreement between the contracting parties primarily concerned cannot be reached before 1 January 1958 or before the expiration of a period envisaged in paragraph 1 of this Article, the contracting party which proposes to modify or withdraw the concession shall, nevertheless, be free to do so and if such action is taken any contracting party with which such concession was initially negotiated, any contracting party determined under paragraph 1 to have a principal supplying interest and any contracting party determined under paragraph 1 to have a substantial interest shall then be free not later than six months after such action is taken, to withdraw, upon the expiration of thirty days from the day on which written notice of such withdrawal is received by the CONTRACTING PARTIES, substantially equivalent concessions initially negotiated with the applicant contracting party. (b)      If agreement between the contracting parties primarily concerned is reached but any other contracting party determined under paragraph 1 of this Article to have a substantial interest is not satisfied, such other contracting party shall be free, not later than six months after action under such agreement is taken, to withdraw, upon the expiration of thirty days from the day on which written notice of such withdrawal is received by the CONTRACTING PARTIES, substantially equivalent concessions initially negotiated with the applicant contracting party. 4.       The CONTRACTING PARTIES may, at any time, in special circumstances, authorize* a contracting party to enter into negotiations for modification or withdrawal of a concession included in the appropriate Schedule annexed to this Agreement subject to the following procedures and conditions: (a)      Such negotiations* and any related consultations shall be conducted in accordance with the provisions of paragraph 1 and 2 of this Article.  (b)      If agreement between the contracting parties primarily concerned is reached in the negotiations, the provisions of paragraph 3 (b) of this Article shall apply.  (c)      If agreement between the contracting parties primarily concerned is not reached within a period of sixty days* after negotiations have been authorized, or within such longer period as the CONTRACTING PARTIES may have prescribed, the applicant contracting party may refer the matter to the CONTRACTING PARTIES.  (d)      Upon such reference, the CONTRACTING PARTIES shall promptly examine the matter and submit their views to the contracting parties primarily concerned with the aim of achieving a settlement. If a settlement is reached, the provisions of paragraph 3 (b) shall apply as if agreement between the contracting parties primarily concerned had been reached. If no settlement is reached between the contracting parties primarily concerned, the applicant contracting party shall be free to modify or withdraw the concession, unless the CONTRACTING PARTIES determine that the applicant contracting party has unreasonably failed to offer adequate compensation.* If such action is taken, any contracting party with which the concession was initially negotiated, any contracting party determined under paragraph 4 (a) to have a principal supplying interest and any contracting party determined under paragraph 4 (a) to have a substantial interest, shall be free, not later than six months after such action is taken, to modify or withdraw, upon the expiration of thirty days from the day on which written notice of such withdrawal is received by the CONTRACTING PARTIES, substantially equivalent concessions initially negotiated with applicant contracting party.

3. (a) 1958년 1월 1일 이전 또는 이 조 제1항에 예견된 기간의 만료 이전에 주요관련체약당사자들간에 합의가 이루어질 수 없는 경우, 동 양허를 수정하거나 철회하겠다고 제의하는 체약당사자는 이에 불구하고 그렇게 할 자유가 있으며, 이러한 조치가 취하여지는 경우 동 양허를 최초로 협상한 체약당사자, 제1항 하에서 주요공급이해를 가진다고 결정되는 체약당사자, 그리고 제1항 하에서 실질적인 이해관계를 가진다고 결정되는 체약당사자는 동 조치가 취하여진 후 6월 이내에, 체약당사자단이 철회의 서면통보를 접수한 날로부터 30일이 만료된 때에 신청체약당사자와 최초로 협상한 실질적으로 동등한 양허를 철회할 자유가 있다. (b) 주요관련체약당사자들간에는 합의가 이루어졌으나 이 조 제1항 하에서 실질적인 이해관계가 있다고 결정된 다른 체약당사자가 만족하지 아니하는 경우 동 다른 체약당사자는 동 합의 하에서의 조치가 취하여진 후 6월 이내에, 체약당사자단이 철회의 서면통보를 접수한 날로부터 30일이 만료된 때에 신청체약당사자와 최초로 협상한 실질적으로 동등한 양허를 철회할 자유가 있다. 4. 체약당사자단은 특별한 상황에서는 언제든지, 다음 절차 및 조건에 따를 것을 조건으로 체약당사자가 이 협정에 부속된 해당 양허표에 포함된 양허의 수정 또는 철회를 위한 협상을 개시하도록 승인할 수 있다. (a) 동 협상 및 관련협의는 이 조 제1항 및 제2항의 규정에 따라 이루어진다. (b) 협상에서 주요관련체약당사자들간에 합의가 이루어지는 경우 이 조 제3항(b)의 규정이 적용된다. (c) 협상이 승인된 후 60일의 기간 이내 또는 체약당사자단이 정하였을 수 있는 더 긴 기간 이내에 주요관련체약당사자들간에 합의가 이루어지지 아니하는 경우 신청체약당사자는 동 문제를 체약당사자단에 회부할 수 있다. (d) 동 회부가 있는 경우 체약당사자단은 동 문제를 신속히 검토하고 해결을 위하여 체약당사자단의 견해를 주요관련체약당사자들에게 제출한다. 해결이 되는 경우 주요관련체약당사자들간에 합의가 이루어진 것처럼 제3항(b)의 규정이 적용된다. 주요관련체약당사자들간에 해결이 되지 아니하는 경우 신청체약당사자가 충분한 보상을 불합리하게 제공하지 아니하였다고 체약당사자단이 결정하지 아니하는 한 신청체약당사자는 동 양허를 수정하거나 철회할 자유가 있다. 이러한 조치가 취하여지는 경우 동 양허를 최초로 협상한 체약당사자, 제4항(a) 하에서 주요공급이해를 가진다고 결정되는 체약당사자, 그리고 제4항(a) 하에서 실질적인 이해관계를 가진다고 결정되는 체약당사자는 동 조치가 취하여진 후 6월 이내에, 체약당사자단이 철회의 서면통보를 접수한 날로부터 30일이 만료된 때에 신청체약당사자와 최초로 협상한 실질적으로 동등한 양허를 수정하거나 철회할 자유가 있다. 2019-06-09 국제거래법

6. Limitation of powers of Contracting Party in nondiscriminatory actions 5. 1958년 1월 1일 이전 그리고 제1항에서 예견된 기간의 종료 이전에 체약당사자는 체약당사자단에 통보함으로써 제1항 내지 제3항의 절차에 따라 해당 양허표를 수정할 권리를 차기 기간 동안 유보할 것을 선택할 수 있다. 어떤 체약당사자가 그렇게 선택하는 경우 다른 체약당사자는 동일한 절차에 따라 동 체약당사자와 최초로 협상한 양허를 수정하거나 철회할 권리를 동일한 기간 동안 가진다. 제28조의2 관세협상 1. 체약당사자들은 관세가 종종 무역에 대한 심각한 장애를 구성하며, 따라서 관세와 수입 및 수출에 대한 그밖의 과징금의 일반적 수준의 실질적인 인하, 특히 최소 수량의 수입까지도 억제하는 높은 관세의 인하를 지향하고 아울러 이 협정의 목적과 개별 체약당사자의 다양한 필요를 적절히 고려하여 이루어지는 상호적이고 호혜적인 기초 위에서의 협상이 국제무역의 확대에 매우 중요하다는 것을 인정한다. 그러므로 체약당사자단은 수시로 이러한 협상을 후원할 수 있다 (2) Article XXVIII*: Modification of Schedules 5.       Before 1 January 1958 and before the end of any period envisaged in paragraph 1 a contracting party may elect by notifying the CONTRACTING PARTIES to reserve the right, for the duration of the next period, to modify the appropriate Schedule in accordance with the procedures of paragraph 1 to 3. If a contracting party so elects, other contracting parties shall have the right, during the same period, to modify or withdraw, in accordance with the same procedures, concessions initially negotiated with that contracting party. Article XXVIII bis: Tariff Negotiations 1.       The contracting parties recognize that customs duties often constitute serious obstacles to trade; thus negotiations on a reciprocal and mutually advantageous basis, directed to the substantial reduction of the general level of tariffs and other charges on imports and exports and in particular to the reduction of such high tariffs as discourage the importation even of minimum quantities, and conducted with due regard to the objectives of this Agreement and the varying needs of individual contracting parties, are of great importance to the expansion of international trade. The CONTRACTING PARTIES may therefore sponsor such negotiations from time to time.

Article XXVIII bis: Tariff Negotiations 6. Limitation of powers of Contracting Party in nondiscriminatory actions 제28조의2 관세협상 1 2. (a) 이 조 하에서의 협상은 선별적인 상품별 기초 위에서 또는 관련체약당사자에 의하여 수락될 수 있는 다자간 절차의 적용에 의하여 수행될 수 있다. 이러한 협상은 관세의 인하, 당시 존재하던 수준에서의 관세의 양허 또는 개별관세나 특정 범주의 상품에 대한 평균관세가 특정한 수준을 초과하지 아니한다는 약속을 지향할 수 있다. 낮은 관세 또는 무관세대우를 인상하지 아니하겠다고 양허하는 것은 원칙적으로 높은 관세를 인하하는 것과 그 가치에 있어서 동등한 양허로 인정된다. (b) 체약당사자들은 일반적으로 다자간 협상의 성공이 그들 상호간 대외무역의 상당한 부분을 행하는 모든 체약당사자의 참가에 달려 있음을 인정한다. 3. 협상은 다음을 고려할 충분한 기회를 부여하는 기초 위에서 이루어져야 한다. (a) 개별 체약당사자 및 개별 산업의 필요 (b) 저개발국이 그들의 경제개발을 지원하기 위하여 관세보호를 더 융통성 있게 이용할 필요 및 이러한 국가가 세입 목적을 위하여 관세를 유지할 특별한 필요, 그리고 (c) 관련체약당사자의 재정상, 개발상, 전략상 및 그밖의 필요를 포함하는 그밖의 모든 관련상황 Article XXVIII bis: Tariff Negotiations 2.       (a)      Negotiations under this Article may be carried out on a selective product-by-product basis or by the application of such multilateral procedures as may be accepted by the contracting parties concerned. Such negotiations may be directed towards the reduction of duties, the binding of duties at then existing levels or undertakings that individual duties or the average duties on specified categories of products shall not exceed specified levels. The binding against increase of low duties or of duty-free treatment shall, in principle, be recognized as a concession equivalent in value to the reduction of high duties.       (b)      The contracting parties recognize that in general the success of multilateral negotiations would depend on the participation of all contracting parties which conduct a substantial proportion of their external trade with one another. 3.       Negotiations shall be conducted on a basis which affords adequate opportunity to take into account: (a)      the needs of individual contracting parties and individual industries;  (b)      the needs of less-developed countries for a more flexible use of tariff protection to assist their economic development and the special needs of these countries to maintain tariffs for revenue purposes; and  (c)      all other relevant circumstances, including the fiscal, developmental, strategic and other needs of the contracting parties concerned.

7. Safety valves for domestic pressures (1) Antidumping duties and Countervailing subsidies: GATT Article VI Members may apply duties and other measures can be applied to goods originating in other Members which are dumped and/or enjoy export subsidies subject to specific conditions. Article VI: Anti-dumping and Countervailing Duties 1.       The contracting parties recognize that dumping, by which products of one country are introduced into the commerce of another country at less than the normal value of the products, is to be condemned if it causes or threatens material injury to an established industry in the territory of a contracting party or materially retards the establishment of a domestic industry. For the purposes of this Article, a product is to be considered as being introduced into the commerce of an importing country at less than its normal value, if the price of the product exported from one country to another (a)      is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country, or,  (b)      in the absence of such domestic price, is less than either  (i)  the highest comparable price for the like product for export to any third country in the ordinary course of trade, or  (ii)  the cost of production of the product in the country of origin plus a reasonable addition for selling cost and profit. Due allowance shall be made in each case for differences in conditions and terms of sale, for differences in taxation, and for other differences affecting price comparability. 2.       In order to offset or prevent dumping, a contracting party may levy on any dumped product an anti-dumping duty not greater in amount than the margin of dumping in respect of such product. For the purposes of this Article, the margin of dumping is the price difference determined in accordance with the provisions of paragraph 1. 제6조 반덤핑 및 상계 관세 1. 체약당사자들은 덤핑, 즉 일국의 상품이 그 상품의 정상가격보다 낮게 타국의 상거래에 도입되는 것이 체약당사자 영토내의 기존 산업에 실질적인 피해를 야기하거나 야기할 우려가 있는 경우 또는 국내산업의 설립을 실질적으로 지연시키는 경우 이러한 덤핑이 비난받아야 한다는 것을 인정한다. 이 조의 목적상 일국에서 타국으로 수출되는 상품의 가격이 다음의 어느 하나에 해당되는 경우 동 상품은 정상가격보다 낮게 수입국의 상거래에 도입되는 것으로 간주된다. (a) 수출국에서 소비용인 때의 동종 상품에 대하여 정상적인 거래과정에서의 비교가능한 가격보다 낮은 경우 또는 (b) 이러한 국내가격이 없는 경우에는 다음 둘 중 하나보다 낮은 경우 (i) 정상적인 거래과정에서 제3국으로의 수출을 위한 동종 상품에 대한 최고의 비교가능한 가격 또는 (ii) 원산국에서의 상품의 생산비용에 판매비용 및 이윤을 합리적으로 가산한 것 판매조건의 차이, 과세의 차이 및 가격 비교가능성에 영향을 미치는 그밖의 차이점들에 대하여서도 각각의 경우에 적절한 고려를 한다. 2. 체약당사자는 덤핑을 상쇄하거나 방지하기 위하여 덤핑된 상품에 대하여 동 상품에 대한 덤핑마진을 초과하지 아니하는 만큼의 반덤핑관세를 부과할 수 있다. 이 조의 목적상 덤핑마진은 제1항의 규정에 따라 결정되는 가격차이다.

7. Safety valves for domestic pressures (1) Article VI: Anti-dumping and Countervailing Duties 3.       No countervailing duty shall be levied on any product of the territory of any contracting party imported into the territory of another contracting party in excess of an amount equal to the estimated bounty or subsidy determined to have been granted, directly or indirectly, on the manufacture, production or export of such product in the country of origin or exportation, including any special subsidy to the transportation of a particular product. The term “countervailing duty” shall be understood to mean a special duty levied for the purpose of offsetting any bounty or subsidy bestowed, directly, or indirectly, upon the manufacture, production or export of any merchandise. 4.       No product of the territory of any contracting party imported into the territory of any other contracting party shall be subject to anti-dumping or countervailing duty by reason of the exemption of such product from duties or taxes borne by the like product when destined for consumption in the country of origin or exportation, or by reason of the refund of such duties or taxes. 5.       No product of the territory of any contracting party imported into the territory of any other contracting party shall be subject to both anti-dumping and countervailing duties to compensate for the same situation of dumping or export subsidization. 제6조 반덤핑 및 상계 관세 3. 다른 체약당사자의 영토내로 수입되는 체약당사자 영토의 상품에 대하여는, 특정상품의 운송에 대한 특별보조금을 포함하여 원산국 또는 수출국에서 동 상품의 제조, 생산 또는 수출에 대하여 직접적 또는 간접적으로 지급된 것으로 결정된 장려금 또는 보조금의 추산액과 동일한 금액을 초과하여 어떠한 상계관세도 부과되지 아니한다. 상계관세라는 용어는 상품의 제조, 생산 또는 수출에 대하여 직접적 또는 간접적으로 부여된 장려금 또는 보조금을 상쇄할 목적으로 부과되는 특별관세를 의미하는 것으로 양해한다. 4. 다른 체약당사자의 영토로 수입되는 체약당사자 영토의 어떠한 상품도 원산국 또는 수출국에서 소비용인 때의 동종 상품이 부담하는 관세 또는 조세로부터 동 상품이 면제된다는 이유로 또는 이러한 관세 또는 조세가 환불된다는 이유로 반덤핑 또는 상계 관세의 부과대상이 되지 아니한다. 5. 다른 체약당사자의 영토 내로 수입되는 체약당사자 영토의 어떠한 상품도 덤핑 또는 수출보조금지급이라는 동일한 상황을 보상하기 위한 반덤핑 및 상계 관세의 병과대상이 되지 아니한다.

7. Safety valves for domestic pressures 제6조 반덤핑 및 상계 관세 (a) 어떠한 체약당사자도 덤핑 또는 보조금지급의 효과가 기존 국내산업에 실질적인 피해를 야기하거나 야기할 우려가 있는 정도이거나 국내산업의 설립을 실질적으로 지연시키는 정도라고 결정한 경우가 아니면 다른 체약당사자 영토의 상품수입에 대하여 반덤핑 또는 상계 관세를 부과하지 아니한다. (b) 체약당사자단은 체약당사자가 그 영토에 상품을 수출하는 또 다른 체약당사자 영토의 산업에 실질적인 피해를 야기하거나 야기할 우려가 있는 덤핑 또는 보조금지급을 상쇄할 목적으로 그 상품의 수입에 대하여 반덤핑 또는 상계 관세를 부과할 수 있도록 허용하기 위하여 이 항 (a)호의 요건을 면제할 수 있다. 체약당사자단은 보조금이 수입체약당사자의 영토에 관련상품을 수출하는 또 다른 체약당사자 영토의 산업에 실질적인 피해를 야기하거나 야기할 우려가 있다는 것을 인정하는 경우 상계관세를 부과할 수 있도록 이 항 (a)호의 요건을 면제하여야 한다. (c) 그러나 지연으로 인해 회복하기 어려운 손해가 초래될 수도 있는 예외적인 상황에서는, 체약당사자는 이 항 (b)에 언급된 목적을 위하여 체약당사자단의 사전승인 없이도 상계관세를 부과할 수 있다. 단, 동 조치는 즉시 체약당사자단에 보고되어야 하며, 체약당사자단이 승인하지 아니하는 경우에는 상계관세는 즉시 철회되어야 한다. 6.       (a)  No contracting party shall levy any anti-dumping or countervailing duty on the importation of any product of the territory of another contracting party unless it determines that the effect of the dumping or subsidization, as the case may be, is such as to cause or threaten material injury to an established domestic industry, or is such as to retard materially the establishment of a domestic industry. (b)  The CONTRACTING PARTIES may waive the requirement of subparagraph (a) of this paragraph so as to permit a contracting party to levy an anti-dumping or countervailing duty on the importation of any product for the purpose of offsetting dumping or subsidization which causes or threatens material injury to an industry in the territory of another contracting party exporting the product concerned to the territory of the importing contracting party. The CONTRACTING PARTIES shall waive the requirements of subparagraph (a) of this paragraph, so as to permit the levying of a countervailing duty, in cases in which they find that a subsidy is causing or threatening material injury to an industry in the territory of another contracting party exporting the product concerned to the territory of the importing contracting party.*  (c)  In exceptional circumstances, however, where delay might cause damage which would be difficult to repair, a contracting party may levy a countervailing duty for the purpose referred to in subparagraph (b) of this paragraph without the prior approval of the CONTRACTING PARTIES; Provided that such action shall be reported immediately to the CONTRACTING PARTIES and that the countervailing duty shall be withdrawn promptly if the CONTRACTING PARTIES disapprove.

(1) Article VI: Anti-dumping and Countervailing Duties 7. Safety valves for domestic pressures (1) Article VI: Anti-dumping and Countervailing Duties 7.       A system for the stabilization of the domestic price or of the return to domestic producers of a primary commodity, independently of the movements of export prices, which results at times in the sale of the commodity for export at a price lower than the comparable price charged for the like commodity to buyers in the domestic market, shall be presumed not to result in material injury within the meaning of paragraph 6 if it is determined by consultation among the contracting parties substantially interested in the commodity concerned that: (a)      the system has also resulted in the sale of the commodity for export at a price higher than the comparable price charged for the like commodity to buyers in the domestic market, and  (b)      the system is so operated, either because of the effective regulation of production, or otherwise, as not to stimulate exports unduly or otherwise seriously prejudice the interests of other contracting parties. 제6조 반덤핑 및 상계 관세 7. 수출가격의 변동과는 독립적으로 일차산품의 국내가격 또는 국내생산자의 소득을 안정시키기 위한 체제는 때때로 동종산품에 대하여 국내시장에서 구매자에게 부과되는 비교가능한 가격보다 낮은 가격으로 동 산품을 수출용으로 판매하는 결과를 초래하는 바, 당해 산품에 대하여 실질적인 이해관계가 있는 체약당사자간의 협의에 의하여 다음과 같이 결정되는 경우 제6항의 의미 내에서의 실질적인 피해를 야기하지 아니하는 것으로 추정된다. (a) 동 체제가 동종산품에 대하여 국내시장에서 구매자에게 부과되는 비교가능한 가격보다 높은 가격으로 동 산품을 수출용으로 판매하는 결과를 또한 초래하였다. 그리고, (b) 동 체제가, 효과적인 생산규제나 여타의 방법 둘 중 하나에 의하여 수출을 부당하게 촉진하거나 달리 다른 체약당사자의 이익을 심각하게 저해하지 아니하도록 운영된다.

7. Safety valves for domestic pressures (2) Anti-dumping actions If a company exports a product at a price lower than the price it normally charges on its own home market, it is said to be “dumping” the product. Is this unfair competition? Opinions differ, but many governments take action against dumping in order to defend their domestic industries. The WTO agreement does not pass judgement. Its focus is on how governments can or cannot react to dumping — it disciplines anti-dumping actions, and it is often called the “Anti-Dumping Agreement”. (This focus only on the reaction to dumping contrasts with the approach of the Subsidies and Countervailing Measures Agreement.) The legal definitions are more precise, but broadly speaking the WTO agreement allows governments to act against dumping where there is genuine (“material”) injury to the competing domestic industry. In order to do that the government has to be able to show that dumping is taking place, calculate the extent of dumping (how much lower the export price is compared to the exporter’s home market price), and show that the dumping is causing injury or threatening to do so. GATT (Article 6) allows countries to take action against dumping. The Anti-Dumping Agreement clarifies and expands Article 6, and the two operate together. They allow countries to act in a way that would normally break the GATT principles of binding a tariff and not discriminating between trading partners — typically anti-dumping action means charging extra import duty on the particular product from the particular exporting country in order to bring its price closer to the “normal value” or to remove the injury to domestic industry in the importing country.

(2-1) AD Agreement (a) Introduction The Anti-Dumping Agreement of the World Trade Organization (WTO), commonly known as the AD Agreement, governs the application of anti-dumping measures by WTO member countries. A product is considered to be "dumped" if it is exported to another country at a price below the normal price of a like product in the exporting country. Anti-dumping measures are unilateral remedies (the imposition of anti-dumping duties on the product in question) that the government of the importing country may apply after a thorough investigation has determined that the product is, in fact, being dumped, and that sales of the dumped product are causing material injury to a domestic industry that produces a like product. All members of the WTO are parties to this Agreement, whose full name is the "Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994". It went into effect on January 1, 1995. Pursuant to the Doha Ministerial Declaration, negotiations for the Anti-Dumping Agreement are currently underway. The agreement has no expiration date. The AD Agreement ensures that WTO members will not apply anti-dumping measures arbitrarily. It provides detailed substantive requirements for determining whether dumping and injury are, in fact, taking place, and sets forth elaborate procedures that governments must follow when they conduct anti-dumping investigations and impose anti-dumping duties. The Agreement ensures that all proceedings will be transparent and that all interested parties have a full opportunity to defend their interests.

(2-1) AD Agreement (b) Substantive Requirements Since a determination of dumping requires a comparison between the export price of a product and its normal value in the exporting country, the AD Agreement sets forth rules for the calculation of export price and normal value. It then explains how a "fair comparison" is made between the two. The government conducting an anti-dumping investigation uses this fair comparison as the basis for determining the "margin of dumping". The Agreement then sets forth rules for determining whether dumped imports are causing injury to a domestic industry that produces a like product. Injury is defined to mean material injury itself, the threat of material injury or material retardation in the establishment of a domestic industry. The government authorities must establish injury to the domestic industry and that the dumped imports are a cause of that injury. The AD Agreement provides for "cumulative assessments" of the effects of imports on a domestic industry when imports of a product from more than one country are simultaneously subject to anti-dumping investigations.

(2-1) AD Agreement (c) Investigations A government normally initiates an anti-dumping investigation on the basis of a written application by a domestic industry, although in special circumstances the government itself can initiate the investigation on the industry's behalf. The application must provide evidence of dumping, injury and a causal link between the two. It must include a complete description of the allegedly dumped product, information on the like product produced by the applicant, evidence regarding export price and normal value, an assessment of the impact of the imports on the domestic industry and information concerning industry support for the application. The rules set forth in the Agreement for the collection of evidence state that as soon as government authorities initiate an investigation, they must provide the full text of the written application to all known exporters. All interested parties are given access to non-confidential information and the opportunity to meet with the parties that have adverse interests, so that opposing views can be presented and rebuttal arguments offered. Before they make a final determination of whether dumping has occurred, the government authorities must inform all interested parties of the essential facts under consideration, giving them sufficient time to defend their interests. An application will be rejected, according to the Agreement, and an investigation promptly terminated if the government authorities conclude that there is insufficient evidence of either dumping or injury. The Agreement provides that unless there are special circumstances, investigations will be concluded within one year and will continue in no case more than 18 months after their initiation.

(2-1) AD Agreement (d) Price Undertakings The Agreement provides that government authorities can suspend or terminate an anti-dumping proceeding if they receive voluntary undertakings from an exporter that it will revise its prices or cease exporting to the area in question at dumped prices. Investigating authorities have the option of accepting price increases that are less than the margin of dumping if they are adequate to remove the injury to the domestic industry. (e) Imposition of Anti-dumping Duties Under the Agreement, it is up to the government of the importing country to decide whether or not to impose anti-dumping duties. (The Agreement provides an option of not imposing duties in cases where all requirements for imposing such duties have been fulfilled, but not all authorities allow such an option.) The amount of the duty set by the government cannot exceed the margin of dumping, but the Agreement permits it to be lower if it is adequate to remove the injury to the domestic industry. Normally anti-dumping duties are applied to all imports of the subject merchandise made on or after the date on which there is a preliminary determination of dumping, injury and causality. The Agreement states that an anti-dumping duty shall remain in force as long as necessary to counteract dumping that is causing injury. It contains a "sunset" provision that provides that the duty will be terminated five years from the date of its imposition unless the government authorities determine in a review that termination of the duty would lead to continuation or recurrence of dumping and injury.

(2-1) AD Agreement (f) The Committee; Notifications The Agreement established a Committee on Anti-dumping Practices, composed of representatives of each WTO member country. This Committee meets not less than twice a year and affords members the opportunity to consult on any matters relating to the operation of the Agreement. Member countries are required to notify this Committee of their anti-dumping legislation and/or regulations, their anti-dumping actions and the names, addresses and contact numbers of officials responsible for anti-dumping matters.

7. Safety valves for domestic pressures (2-2) Anti-dumping actions There are many different ways of calculating whether a particular product is being dumped heavily or only lightly. The agreement narrows down the range of possible options. It provides three methods to calculate a product’s “normal value”. The main one is based on the price in the exporter’s domestic market. When this cannot be used, two alternatives are available — the price charged by the exporter in another country, or a calculation based on the combination of the exporter’s production costs, other expenses and normal profit margins. And the agreement also specifies how a fair comparison can be made between the export price and what would be a normal price. Calculating the extent of dumping on a product is not enough. Anti-dumping measures can only be applied if the dumping is hurting the industry in the importing country. Therefore, a detailed investigation has to be conducted according to specified rules first. The investigation must evaluate all relevant economic factors that have a bearing on the state of the industry in question. If the investigation shows dumping is taking place and domestic industry is being hurt, the exporting company can undertake to raise its price to an agreed level in order to avoid anti-dumping import duty.

7. Safety valves for domestic pressures (2-3) Anti-dumping actions Detailed procedures are set out on how anti-dumping cases are to be initiated, how the investigations are to be conducted, and the conditions for ensuring that all interested parties are given an opportunity to present evidence. Anti-dumping measures must expire five years after the date of imposition, unless an investigation shows that ending the measure would lead to injury. Anti-dumping investigations are to end immediately in cases where the authorities determine that the margin of dumping is insignificantly small (defined as less than 2% of the export price of the product). Other conditions are also set. For example, the investigations also have to end if the volume of dumped imports is negligible (i.e. if the volume from one country is less than 3% of total imports of that product — although investigations can proceed if several countries, each supplying less than 3% of the imports, together account for 7% or more of total imports). The agreement says member countries must inform the Committee on Anti-Dumping Practices about all preliminary and final anti-dumping actions, promptly and in detail. They must also report on all investigations twice a year. When differences arise, members are encouraged to consult each other. They can also use the WTO’s dispute settlement procedure.

(1) Antidumping duties and Countervailing subsidies: GATT Article VI (Q1) Suppose the United States enacts a system of “reference prices” for computer accessories. A reference price is assigned to each accessory. For 3½ inch computer disks, that price is $2.25. If an imported disk is sold in the United States at a price below this reference price, and injury to an American disk manufacturer is shown, then an AD duty is imposed. The amount of the duty equals the difference between the reference price and the “dumped” price. Is the reference price system consistent with GATT Article VI? (A) The 1955 GATT Panel Report in the Swedish Antidumping Duties case suggests the reference price system is consistent with Article VI. See Report of the GATT Panel, Swedish Antidumping Duties, GATT B.I.S.D. (3rd Supp.) at 81 (1955) (adopted 26 February 1955). The Swedish government imposed basic prices on imports of nylon stockings. These prices served as fixed minimum prices, and Sweden imposed an AD duty whenever the importer’s invoice price was below the minimum price. When establishing the basic prices, Sweden did not consider differential costs of production in Italy and Sweden, nor did it ensure the basic prices were related to the actual price of nylons in Italy. Nevertheless, the basic price system was held to be consistent with Article VI as long as the basic price of nylons was equal to or below the actual price of nylons in the market of the lowest cost producer. Thus, if the reference price of $2.25 is equal to or below the price of 3½ computer disks in the market of the lowest cost producer of such disks, then that reference price does not violate Article VI.

Videoclip1: Cheap Chinese tyres may flood Indian markets (2:31 min) Videoclip2: Eu launches aluminum anti-dumping probe (0:35 min) Videoclip3: China opposes against U.S. anti-dumping duties on steel products (1 min)

7. Safety valves for domestic pressures (3) Subsidies and countervailing measures [ Agreement on Subsidies and Countervailing Measures (“SCM Agreement”)] The Agreement on Subsidies and Countervailing Measures (“SCM Agreement”) addresses two separate but closely related topics: multilateral disciplines regulating the provision of subsidies, and the use of countervailing measures to offset injury caused by subsidized imports. Multilateral disciplines are the rules regarding whether or not a subsidy may be provided by a Member. They are enforced through invocation of the WTO dispute settlement mechanism. Countervailing duties are a unilateral instrument, which may be applied by a Member after an investigation by that Member and a determination that the criteria set forth in the SCM Agreement are satisfied.

Structure of the Agreement 7. Safety valves for domestic pressures (3) Agreement on Subsidies and Countervailing Measures (“SCM Agreement”) Structure of the Agreement Part I provides that the SCM Agreement applies only to subsidies that are specifically provided to an enterprise or industry or group of enterprises or industries, and defines both the term “subsidy” and the concept of “specificity.” Parts II and III divide all specific subsidies into one of two categories: prohibited and actionable, and establish certain rules and procedures with respect to each category. Part V establishes the substantive and procedural requirements that must be fulfilled before a Member may apply a countervailing measure against subsidized imports. Parts VI and VII establish the institutional structure and notification/surveillance modalities for implementation of the SCM Agreement. Part VIII contains special and differential treatment rules for various categories of developing country Members. Part IX contains transition rules for developed country and former centrally-planned economy Members. Parts X and XI contain dispute settlement and final provisions.

(b) Coverage of the Agreement 7. Safety valves for domestic pressures (3) Agreement on Subsidies and Countervailing Measures (“SCM Agreement”) (b) Coverage of the Agreement Part I of the Agreement defines the coverage of the Agreement. Specifically, it establishes a definition of the term “subsidy” and an explanation of the concept of “specificity”. Only a measure which is a “specific subsidy” within the meaning of Part I is subject to multilateral disciplines and can be subject to countervailing measures. Definition of subsidy Unlike the Tokyo Round Subsidies Code, the WTO SCM Agreement contains a definition of the term “subsidy”. The definition contains three basic elements: (i) a financial contribution (ii) by a government or any public body within the territory of a Member (iii) which confers a benefit. All three of these elements must be satisfied in order for a subsidy to exist. The concept of “financial contribution” was included in the SCM Agreement only after a protracted negotiation. Some Members argued that there could be no subsidy unless there was a charge on the public account. Other Members considered that forms of government intervention that did not involve an expense to the government nevertheless distorted competition and should thus be considered to be subsidies. The SCM Agreement basically adopted the former approach. The Agreement requires a financial contribution and contains a list of the types of measures that represent a financial contribution, e.g., grants, loans, equity infusions, loan guarantees, fiscal incentives, the provision of goods or services, the purchase of goods.

(b) Coverage of the Agreement 7. Safety valves for domestic pressures (3) Agreement on Subsidies and Countervailing Measures (“SCM Agreement”) (b) Coverage of the Agreement In order for a financial contribution to be a subsidy, it must be made by or at the direction of a government or any public body within the territory of a Member. Thus, the SCM Agreement applies not only to measures of national governments, but also to measures of sub-national governments and of such public bodies as state-owned companies. A financial contribution by a government is not a subsidy unless it confers a “benefit.” In many cases, as in the case of a cash grant, the existence of a benefit and its valuation will be clear. In some cases, however, the issue of benefit will be more complex. For example, when does a loan, an equity infusion or the purchase by a government of a good confer a benefit? Although the SCM Agreement does not provide complete guidance on these issues, the Appellate Body has ruled (Canada – Aircraft) that the existence of a benefit is to be determined by comparison with the market-place (i.e., on the basis of what the recipient could have received in the market). In the context of countervailing duties, Article 14 of the SCM Agreement provides some guidance with respect to determining whether certain types of measures confer a benefit. the context of multilateral disciplines, however, the issue of the meaning of “benefit” is not fully resolved.

7. Safety valves for domestic pressures (3) Agreement on Subsidies and Countervailing Measures (“SCM Agreement”) (c) Specificity. Assuming that a measure is a subsidy within the meaning of the SCM Agreement, it nevertheless is not subject to the SCM Agreement unless it has been specifically provided to an enterprise or industry or group of enterprises or industries. The basic principle is that a subsidy that distorts the allocation of resources within an economy should be subject to discipline. Where a subsidy is widely available within an economy, such a distortion in the allocation of resources is presumed not to occur. Thus, only “specific” subsidies are subject to the SCM Agreement disciplines. There are four types of “specificity” within the meaning of the SCM Agreement: Enterprise-specificity. A government targets a particular company or companies for subsidization; Industry-specificity. A government targets a particular sector or sectors for subsidization. Regional specificity. A government targets producers in specified parts of its territory for subsidization. Prohibited subsidies. A government targets export goods or goods using domestic inputs for subsidization.

(d) Categories of Subsidies (3) Agreement on Subsidies and Countervailing Measures (“SCM Agreement”) (d) Categories of Subsidies The SCM Agreement creates two basic categories of subsidies: those that are prohibited, those that are actionable (i.e., subject to challenge in the WTO or to countervailing measures). All specific subsidies fall into one of these categories. Prohibited subsidies: subsidies that require recipients to meet certain export targets, or to use domestic goods instead of imported goods. They are prohibited because they are specifically designed to distort international trade, and are therefore likely to hurt other countries’ trade. They can be challenged in the WTO dispute settlement procedure where they are handled under an accelerated timetable. If the dispute settlement procedure confirms that the subsidy is prohibited, it must be withdrawn immediately. Otherwise, the complaining country can take counter measures. If domestic producers are hurt by imports of subsidized products, countervailing duty can be imposed. * Actionable subsidies: in this category the complaining country has to show that the subsidy has an adverse effect on its interests. Otherwise the subsidy is permitted. The agreement defines three types of damage they can cause. One country’s subsidies can hurt a domestic industry in an importing country. They can hurt rival exporters from another country when the two compete in third markets. And domestic subsidies in one country can hurt exporters trying to compete in the subsidizing country’s domestic market. If the Dispute Settlement Body rules that the subsidy does have an adverse effect, the subsidy must be withdrawn or its adverse effect must be removed. Again, if domestic producers are hurt by imports of subsidized products, countervailing duty can be imposed.

(e) Subsidies and countervailing measures Some of the disciplines are similar to those of the Anti-Dumping Agreement. Countervailing duty (the parallel of anti-dumping duty) can only be charged after the importing country has conducted a detailed investigation similar to that required for anti-dumping action. There are detailed rules for deciding whether a product is being subsidized (not always an easy calculation), criteria for determining whether imports of subsidized products are hurting (“causing injury to”) domestic industry, procedures for initiating and conducting investigations, and rules on the implementation and duration (normally five years) of countervailing measures. The subsidized exporter can also agree to raise its export prices as an alternative to its exports being charged countervailing duty. Subsidies may play an important role in developing countries and in the transformation of centrally-planned economies to market economies. Least-developed countries and developing countries with less than $1,000 per capita GNP are exempted from disciplines on prohibited export subsidies. Other developing countries are given until 2003 to get rid of their export subsidies. Least-developed countries must eliminate import-substitution subsidies (i.e. subsidies designed to help domestic production and avoid importing) by 2003 — for other developing countries the deadline was 2000. Developing countries also receive preferential treatment if their exports are subject to countervailing duty investigations. For transition economies, prohibited subsidies had to be phased out by 2002.

* videoclip: U.S. Auto dumping case (1:34 min) (4) AD-CVD’? People sometimes refer to the two together — “AD-CVD” — but there are fundamental differences Dumping and subsidies — together with anti-dumping (AD) measures and countervailing duties (CVD) — share a number of similarities. Many countries handle the two under a single law, apply a similar process to deal with them and give a single authority responsibility for investigations. Occasionally, the two WTO committees responsible for these issues meet jointly. The reaction to dumping and subsidies is often a special offsetting import tax (countervailing duty in the case of a subsidy). This is charged on products from specific countries and therefore it breaks the GATT principles of binding a tariff and treating trading partners equally (MFN). The agreements provide an escape clause, but they both also say that before imposing a duty, the importing country must conduct a detailed investigation that shows properly that domestic industry is hurt. But there are also fundamental differences, and these are reflected in the agreements. Dumping is an action by a company. With subsidies, it is the government or a government agency that acts, either by paying out subsidies directly or by requiring companies to subsidize certain customers. But the WTO is an organization of countries and their governments. The WTO does not deal with companies and cannot regulate companies’ actions such as dumping. Therefore the Anti-Dumping Agreement only concerns the actions governments may take against dumping. With subsidies, governments act on both sides: they subsidize and they act against each others’ subsidies. Therefore the subsidies agreement disciplines both the subsidies and the reactions. * videoclip: U.S. Auto dumping case (1:34 min)

(5) Safeguards: GATT Article XIX 7. Safety valves for domestic pressures (5) Safeguards: GATT Article XIX Safeguard measures are defined as “emergency” actions with respect to increased imports of particular products, where such imports have caused or threaten to cause serious injury to the importing Member's domestic industry. Article XIX 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.

Article XIX Emergency Action on Imports of Particular Products (b) If any product, which is the subject of a concession with respect to a preference, is being imported into the territory of a contracting party in the circumstances set forth in sub-paragraph (a) of this paragraph, so as to cause or threaten serious injury to domestic producers of like or directly competitive products in the territory of a contracting party which receives or received such preference, the importing contracting party shall be free, if that other contracting party so requests, to suspend the relevant obligation in whole or in part or to withdraw or modify the concession in respect of the product, to the extent and for such time as may be necessary to prevent or remedy such injury. 2. Before any contracting party shall take action pursuant to the provisions of paragraph 1 of this Article, it shall give notice in writing to the CONTRACTING PARTIES as far in advance as may be practicable and shall afford the CONTRACTING PARTIES and those contracting parties having a substantial interest as exporters of the product concerned an opportunity to consult with it in respect of the proposed action. When such notice is given in relation to a concession with respect to a preference, the notice shall name the contracting party which has requested the action. In critical circumstances, where delay would cause damage which it would be difficult to repair, action under paragraph 1 of this Article may be taken provisionally without prior consultation, on the condition that consultation shall be effected immediately after taking such action.

Article XIX Emergency Action on Imports of Particular Products 3. (a) If agreement among the interested contracting parties with respect to the action is not reached, the contracting party which proposes to take or continue the action shall, nevertheless, be free to do so, and if such action is taken or continued, the affected contracting parties shall then be free, not later than ninety days after such action is taken, to suspend, upon the expiration of thirty days from the day on which written notice of such suspension is received by the CONTRACTING PARTIES, the application to the trade of the contracting party taking such action, or, in the case envisaged in paragraph 1 (b) of this Article, to the trade of the contracting party requesting such action, of such substantially equivalent concessions or other obligations under this Agreement the suspension of which the CONTRACTING PARTIES do not disapprove. (b) Notwithstanding the provisions of sub-paragraph (a) of this paragraph, where action is taken under paragraph 2 of this Article without prior consultation and causes or threatens serious injury in the territory of a contracting party to the domestic producers of products affected by the action, that contracting party shall, where delay would cause damage difficult to repair, be free to suspend, upon the taking of the action and throughout the period of consultation, such concessions or other obligations as may be necessary to prevent or remedy the injury.

(4) Safeguards: GATT Article XIX In the technical language of WTO system, a safeguard is used to restrain international trade in order to protect a certain home industry from foreign competition. A member may take a “safeguard” action (e.g. restrict importation of a product temporarily) to protect a specific domestic industry from an increase in imports of any product which is causing, or which is threatening to cause, serious injury to the domestic industry that produces like or directly competitive products. Safeguard measures were always available under GATT Article XIX. However, they were infrequently used, and some governments preferred to protect their industries through “grey area” measures (“voluntary” export restraint arrangements on products such as cars, steel and semiconductors). As part of the WTO deal, members gave up these “grey area” measures and adopted a specific WTO Safeguards Agreement which disciplines the use of safeguard measures.

(5) Safeguards: GATT Article XIX Safeguards are usually seen as responses to fair trade behaviour, as opposed to unfair trade practices such as Dumping Subsidy As such they are supposed to be used only in very specific circumstances, with compensation, and on a universal basis, i.e., a member restricting imports for safeguard purposes will have to restrict imports from all other countries. However, exceptions to this non-discriminatory rule are provided for in the Agreement on Safeguards itself as well as in some ad hoc agreements. In this last respect it is worthwhile noting that the People's Republic of China has accepted that discriminatory safeguards may be imposed on its exports to other WTO members until 2013. Regional trading arrangements have their own rules relating to safeguards. Some safeguard measures can be resorted to in the area of services, as provided for in the General Agreement on Trade in Services (GATS).

What Does Voluntary Export Restraint - VER Mean? A trade restriction on the quantity of a good that an exporting country is allowed to export to another country. This limit is self-imposed by the exporting country. Typically, VERs are a result of requests made by the importing country to provide a measure of protection for its domestic businesses that produce substitute goods. VERs are often created because the exporting countries would prefer to impose their own restrictions than risk sustaining worse terms from tariffs and/or quotas. The most notable example of VERs is when Japan imposed a VER on its auto exports into the U.S. as a result of American pressure in the 1980s. The VER subsequently  gave the U.S. auto industry some protection against a flood of foreign competition. However, there are ways in which a company can avoid a VER. For example, the exporting country's company can always build a manufacturing plant in the country to which exports would be directed. By doing so, the company will no longer need to export goods, and should not be bound by its country's VER. VERs are typically implemented on a bilateral basis, that is, on exports from one exporter to one importing country. VERs have been used since the 1930s at least, and have been applied to products ranging from textiles and footwear to steel, machine tools and automobiles. They became a popular form of protection during the 1980s, perhaps in part because they did not violate countries' agreements under the GATT. As a result of the Uruguay round of the General Agreement on Tariffs and Trade (GATT), completed in 1994, World Trade Organization (WTO) members agreed not to implement any new VERs and to phase out any existing VERs over a four year period. Exceptions can be granted for one sector in each importing country.