中 国 矿 业 大 学文 法 学 院 教 案
Chapter 8：World Trade Organization
教学目的及要求
通过本章教学，要求同学们了解WTO的发展历史、法律地位、运行机制和宏观法律框架，掌握WTO基本原则、反倾销法律制度、补贴与反补贴措施、保障措施和一些重要的非关税措施以及WTO的争端解决机制。
教 学 重 点
要求同学们掌握的内容为本章的教学重点，即如下内容：
①WTO基本原则；
②反倾销制度、补贴与反补贴措施、保障措施；
③技术性贸易壁垒等非关税措施；
④WTO的争端解决机制。
教 学 难 点
①反倾销制度、补贴与反补贴措施、保障措施；
②技术性贸易措施等非关税措施；
教 学 内 容 及 文 本 演 示
课外阅读法条
课 堂 讨 论
Section 1,General Introduction to WTO
Section 2,Major Principles of WTO
Multilateral Agreements on Trade in Goods
1,WTO第一案
Section 3,GATT Exceptions
2,1998年海龟案
Section 4,Anti-dumping
Section5,Subsidies and countervailing
measures
Section6,Safeguards
3.中国入世第一案
Section 7,Non-tariff measures
Section 8,GATS
GATS
Section 9,Dispute settlement
DSU
本章思考题：
1,针对国外的技术性贸易壁垒我国在对外贸易中应采取的措施。
2,WTO争端解决机制的不足与完善。
Chapter 8：World Trade Organization
Section 1,General Introduction to WTO
Section 2,Major Principles of WTO
Section 3,GATT Exceptions
Section 4,Anti-dumping
Section 5,Subsidies and countervailing measures
Section 6,Safeguards
Section 7,Non-tariff measures
Section 8,GATS
Section 9,Dispute settlement
Section 1,The Creation of WTO
Ⅰ,A Brief History of GATT
Ⅱ.The Differences and Relations Between WTO and GATT
Ⅲ,Nature
Ⅳ,Objectives
Ⅴ,Main functions
Ⅵ,Structure (Main Organs)
Ⅶ,Decision-making
Ⅷ,Legal Framework
I,A Brief History of GATT
The WTO's predecessor,the GATT,was established on a provisional basis after the Second World War in the wake of other new multilateral institutions dedicated to international economic cooperation - notably the "Bretton Woods" institutions now known as the World Bank and the International Monetary Fund,
The original 23 GATT countries were among over 50 which agreed a draft Charter for an International Trade Organization (ITO) - a new specialized agency of the United Nations,The Charter was intended to provide not only world trade disciplines but also contained rules relating to employment,commodity agreements,restrictive business practices,international investment and services,
In an effort to give an early boost to trade liberalization after the Second World War - and to begin to correct the large overhang of protectionist measures which remained in place from the early 1930s - tariff negotiations were opened among the 23 founding GATT "contracting parties" in 1946,This first round of negotiations resulted in 45,000 tariff concessions affecting $10 billion - or about one-fifth - of world trade,It was also agreed that the value of these concessions should be protected by early - and largely "provisional" - acceptance of some of the trade rules in the draft ITO Charter,The tariff concessions and rules together became known as the General Agreement on Tariffs and Trade and entered into force in January 1948,
Although the ITO Charter was finally agreed at a UN Conference on Trade and Employment in Havana in March 1948 ratification in national legislatures proved impossible in some cases,When the United States' government announced,in 1950,that it would not seek Congressional ratification of the Havana Charter,the ITO was effectively dead,Despite its provisional nature,the GATT remained the only multilateral instrument governing international trade from 1948 until the establishment of the WTO,
Although,in its 47 years,the basic legal text of the GATT remained much as it was in 1948,there were additions in the form of "plurilateral" - voluntary membership - agreements and continual efforts to reduce tariffs,Much of this was achieved through a series of "trade rounds",
There were altogether 8 rounds of negotiations under GATT,The last one was the Uruguay Round which created a new system—WTO,
After 8 years of negotiation,every issue was finally resolved in 1992,and on 15 April 1994,the deal was signed by Ministers from most of the 125 participating governments at a meeting in Marrakesh马拉克什,Morocco摩洛哥,
In accordance with WTO Agreement (Marrakesh Agreement Establishing the World Trade Organization),WTO came into being on January 1,1995.WTO is One of the youngest of the international organizations,and the only global international organization dealing with the rules of trade between nations
Ⅱ.The Differences Between WTO and GATT
The World Trade Organization is not a simple extension of GATT; on the contrary,it completely replaces its predecessor and has a very different character,Among the principal differences are the following,
1、The GATT was a set of rules,a multilateral agreement,with no institutional foundation,only a small associated secretariat which had its origins in the attempt to establish an International Trade Organization in the 1940s,The WTO is a permanent institution with its own secretariat,
2,The GATT was applied on a "provisional basis" even if,after more than forty years,governments chose to treat it as a permanent commitment,The WTO commitments are full and permanent,
3、The GATT rules applied to trade in merchandise goods,In addition to goods,the WTO covers trade in services and trade-related aspects of intellectual property,
4、While GATT was a multilateral instrument,by the 1980s many new agreements had been added of a plurilateral,and therefore selective,nature,The agreements which constitute the WTO are almost all multilateral and,thus,involve commitments for the entire membership,
5、The WTO dispute settlement system is faster,more automatic,and thus much less susceptible to blockages,than the old GATT system,The implementation of WTO dispute findings will also be more easily assured,
After WTO came into being on 1 January 1995,GATT lives on as "GATT 1994",the amended and up-dated version of GATT 1947,which is an integral part of the WTO Agreement and which continues to provide the key disciplines affecting international trade in goods,
Section 2,The Mechanism of WTO
Ⅰ,Nature >
Ⅱ,Objectives>
Ⅲ,Main functions>
Ⅳ,Structure (Main Organs)>
Ⅴ,Decision-making>
Ⅵ,Legal Framework>
Ⅶ,The outline for WTO agreements>
Ⅰ,Nature
The World Trade Organization (WTO) is the only global international organization dealing with the rules of trade between nations,At its heart are the WTO agreements,negotiated and signed by the bulk of the world’s trading nations and ratified in their parliaments,The goal is to help producers of goods and services,exporters,and importers conduct their business,It’s a rules-based,member-driven organization — all decisions are made by the member governments,and the rules are the outcome of negotiations among members,
Ⅱ,Objectives
1,To raise standards of living, Relations among Members of the WTO in the field of trade and economic endeavour should be conducted with a view to raising the standards of living of their populations.
2.To ensure full employment
3.Growing volume of real income and effective demand, to promote the steady growth of real incomes and effective demand in their markets,
4.Expanding the production of and trade in goods & services,
5.Sustainable development（可持续发展） and environmental protection,while allowing for the optimal use of the world's reserves in accordance with the objective of sustainable development,and protecting and preserving the environment。
6.Developing countries,in a manner consistent with the respective needs and concerns of Members at different levels of development.
世贸组织的目的是：为了提高生活水平，保证充分就业，扩大生产和贸易，保护和维护环境，寻求对世界资源的最佳利用，实现可持续发展的目标，保证发展中国家、特别是最不发达国家“在国际贸易增长中获得与其经济发展需要相当的份额”。
Ⅲ,Main functions
1.Implementation,administration and operation of the covered agreements
The WTO facilitates the implementation,administration and operation of the WTO Agreement and the Multilateral Trade Agreements,and furthers their objectives,It also provides the framework,for those of its Members that have accepted them,for the implementation,administration and operation of the Plurilateral Trade Agreements,世贸组织的重要职能之一是负责世贸组织各项协定和多边协议的履行、管理和实施，并促进其目标的实现；此外，还为已接受世贸组织各项协定或协议的成员方提供了执行、管理与运作的多边贸易合作框架。
2.Forum for negotiations发挥谈判论坛的作用
The WTO provides the forum for negotiations on multilateral trade relations in matters covered by its various agreements,It may also,on decision by the Ministerial Conference,provide a forum for further negotiations,and a framework for the implementation of their results,on other issues arising in the multilateral trade relations among its Members,世贸组织还为成员方之间开展多边贸易谈判和磋商提供了一个适宜的论坛：此外，它还根据部长级会议决定为进一步谈判提供了一个论坛，为执行谈判结果提供了框架，为解决各成员方之间在多边贸易关系发展中的其它问题提供了有效的途径。
3.Dispute settlement协调和解决贸易争端
The WTO administers the integrated dispute settlement system,which is a central element in providing security and predictability to the multilateral trading system,serving to preserve the rights and obligations of the Members of the WTO.。世贸组织管理《WTO协议》附件2（即《关于争端解决规则与程序的谅解》）所列的安排，解决成员问可能产生的贸易争端。为解决各成员方之间在货物贸易、服务贸易和知识产权等领域发生的争端，制定了一套有效的解决机制。这为保证多边贸易体制和提高其预见性发挥了核心作用，并有利于该组织各成员方权利与义务的保护与执行。
4.Review of national trade policies
The WTO administers the Trade Policy Review Mechanism,which is designed to contribute to greater transparency and understanding of the trade policies and practices of WTO Members,to their improved adherence to the rules,disciplines and commitments of the multilateral trading system,and hence to the smoother functioning of the system,审议和监督各成员方的贸易政策。世贸组织管理《WTO协议》附件3（即《贸易政策审议机制》）所列的安排，负责对各成员方国内贸易政策进行审议和监督。该审议制度是为了使各成员方对贸易政策和措施增加更大的透明度和更清楚的了解而制定的，使其保持与全球性经济政策与制度的统一性，促进各成员方坚持多边贸易体制的原则、规则，实现所作出的承诺，从而保证世贸组织的顺利运行。
5.Coherence in global economic policy-making
A Ministerial Declaration adopted at the Marrakesh Ministerial Meeting recognizes the role of trade liberalization in achieving greater coherence in global economic policy-making,For this purpose,the WTO cooperates,as appropriate,with the International Monetary Fund and with the World Bank,贸易自由化对实现全球经济决策更大的统一性发挥着重要作用，为保证全球经济决策一致性，必须与国际货币基金组织（IMF）和世界银行进行必要的合作。
Ⅳ,Structure (Main Organs)
Ministerial Conference
The Ministerial Conference is the supreme body of the WTO,composed of representatives of all Members,with the authority to carry out the functions of the WTO,take the actions necessary to this effect,and take decisions on matters under any of the Multilateral Trade Agreements if so requested by a Member,The Ministerial Conference is to meet at least once every two years,
General Council
The day to day business of the WTO is conducted by the General Council,also composed of representatives of all WTO Members,which meets on a regular basis (normally once every two months),The General Council acts on behalf of the Ministerial Conference in the periods between its meetings,and reports directly to it.
Dispute Settlement Body?
The General Council acts also as the Dispute Settlement Body (DSB),which has its own Chairman and its own rules of procedure,to discharge the functions assigned to the DSB under the Dispute Settlement Understanding.
Trade Policy Review Body
The General Council meets also as the Trade Policy Review Body,which again has its own Chairman and rules of procedure,to carry out the review of Members' trade policies and practices,as provided for in the Trade Policy Review Mechanism.
Councils
Three sectoral councils have been established for goods,services and TRIPs matters,respectively,These Councils,operating under the general guidance of the General Council,carry out the responsibilities assigned to them by their respective agreements and by the General Council; they meet as necessary to carry out their functions; and they are open to representatives of all WTO Members,They may also establish subsidiary bodies,such as committees and working parties.
Council for Trade in Goods, The Council for Trade in Goods oversees the functioning of the multilateral agreements on trade in goods,These include the General Agreement on Tariffs and Trade (GATT) and related Understandings,and twelve other agreements,as contained in Annex 1A to the WTO Agreement.
Council for Trade in Services, The Council for Trade in Services oversees the functioning of the General Agreement on Trade in Services (GATS).
Council for TRIPs, The Council for TRIPs oversees the functioning of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement).
Committees and other subsidiary bodies
Three main committees are established by the WTO Agreement,
the Committee on Trade and Development,
the Committee on Balance-of-Payments Restrictions,
the Committee on Budget,Finance and Administration,
Membership of these committees is also open to all Members of the WTO,The General Council has established two other committees reporting to it,the Committee on Trade and Environment and the Committee on Regional Trade Agreement.
Ⅴ,Decision-making
The WTO continues the practice of decision-making by consensus followed under the GATT 1947,Consensus is defined as the situation where no Member,present at a meeting where a decision is taken,formally objects to the proposed decision,However,it is recognized that there may be situations where a consensus cannot be reached,in which case the matter may be decided by voting,Voting rules are set out in the WTO Agreement.
采用合意决策的作法，即如果任何一个与会的成员方对拟通过的决议不正式提出反对，就算达成合意。 如通过合意未达成决定时，以投票决定。在部长会议和总理事会上，成员方均有一票投票权，除非另有规定，通常以多数票为准。 部长会议和总理事会拥有对世贸组织各项协议的解释权，运用解释作出的决定以成员方3/4的投票为准。 如要免除成员方义务，需部长会议以3/4的投票方式表决。
Ⅵ,Legal Framework
WTO Agreement,Marrakesh Agreement Establishing the World Trade Organization 建立世界贸易组织协定
ANNEX 1
Annex 1A,Multilateral Agreements on Trade in Goods (including GATT1994 and other multilateral agreements)
Annex 1B:GATS (the General Agreement on Trade in Service)
Annex 1C,TRIPS (the Agreement on Trade-Ralated Aspects of Intellectual Property Rights)
ANNEX 2,DSU (Understanding on rules and procedures governing the settlement of disputes)
ANNEX 3,Trade Policy Review Mechanism
ANNEX 4,Plurilateral Trade Agreements
Ⅶ,The outline of WTO agreements
Firstly,they start with broad principles reflected in GATT,GATS and TRIPS.
Then come extra agreements and annexes dealing with the special requirements of specific sectors or issues.
Finally there are the detailed and lengthy schedules (or lists) of commitments made by individual countries allowing specific foreign products or service providers access to the market.
1,Goods
Trade negotiations all began with trade in goods from 1947 to 1994,GATT was the forum for negotiating lower customs duty rates and other trade barriers; the text of GATT spelt out important rules,particularly nondiscrimination,
Since 1995,the updated GATT has become the WTO's umbrella agreement for trade in goods,It has annexes dealing with specific sectors such as agriculture and textiles,and with specific issues such as state trading product standards,subsidies and actions taken against dumping.
2,Services
Banks,insurance firms,telecommunications companies,tour operators,hotel chains and transport companies looking to do business abroad can now enjoy the same principles as free and fair trade that were originally only applied to trade in goods,These principles appear in the new General Agreement on Trade in Services (GATS),
WTO members have also made individual commitments under GATS stating which of their services sectors they are willing to open to foreign competitors,and how open those markets are.
3,Intellectual property
The WTO's intellectual property agreement amounts to rules for trade and investment in ideas and creativity,The rules state how copyrights,trademarks,geographical indication used to identify products,industrial designs,integrated circuit layout-designs and undisclosed information such as trade secrets should be protected when trade is involved.
4,Dispute settlement
The Understanding on Rules and Procedures Governing the Settlement of Disputes ( the Dispute Settlement Understanding or DSU ) carries forward and improves on the dispute settlement procedures of GATT 1947,Most importantly,the DSU establishes a unified system for settling disputes that arise under the WTO Agreement and its annexes ( other than the annex establishing the Trade Policy Review Mechanism).
5.,Policy review
Annex 3 of the WTO agreement establishes a Trade PoLicy Review Mechanism (TPRM) whose purpose is to improve transparency,to create a greater understanding of the policies that countries are adopting,and to assess their impact,Many members also see the review as constructive feedback on their policies.
Section 3,Major Principles of WTO
关于WTO基本原则的说明：
1、所谓的WTO原则，不是某一个WTO文件中规定的，而是学者的总结；
2、我国学者的观点也不完全一致，一般包括：非歧视原则、透明度原则、逐渐削减关税原则、一般取消数量限制原则、自由贸易原则、公平竞争原则、互惠原则等等。
3、本节以WTO网站自己公布的原则为讲解内容。
1,Trade without discrimination,Most-favoured-nation (MFN) and National treatment
2,Freer trade,gradually,through negotiation
3,Predictability,through binding and transparency
4,Promoting fair competition
5,Encouraging development and economic reform
1.Trade without discrimination
A country should not discriminate between its trading partners (giving them equally,most-favoured-nation” or MFN status); and it should not discriminate between its own and foreign products,services or nationals (giving them,national treatment”).
A,Most-favoured-nation treatment (MFN), treating other people equally
a,Meaning,Under the WTO agreements,countries cannot normally discriminate between their trading partners,Grant someone a special favour (such as a lower customs duty rate for one of their products) and you have to do the same for all other WTO members.
This sounds like a contradiction,It suggests special treatment,but in the WTO it actually means non-discrimination — treating virtually everyone equally,
b,Importance,It is one of the bedrock principles of the WTO,
It is the first article of GATT,which governs trade in goods,
MFN is also a priority in GATS (Article 2) and TRIPS (Article 4),although in each agreement the principle is handled slightly differently,
Together,those three agreements cover all three main areas of trade handled by the WTO,
c,Exceptions to MFN
Regional Economic Organization 区域性经济组织and Customs Union关税同盟①
Countries can set up a free trade agreement that applies only to goods traded within the group —? discriminating against goods from outside.
Generalized System of Preferences 普惠制
The Generalized System of Preferences or "GSP" is a system that grants products made in developing countries lower tariff rates than those normally enjoyed under Most-Favoured-Nation status as a special measure granted to developing countries in order to increase their export earnings and promote their development.
The GSP is defined in the Decision on,Generalized System of Preferences” of June 1971,and is a measure taken based on the Decision on,Differential and More Favourable Treatment,Reciprocity,and Fuller Participation of Developing Countries“《关于有差别与更优惠待遇、对等与发展中国家充分参与的决定,or the,Enabling Clause”（授权条款）。
The GSP has the following characteristics:
First,preferential tariffs may be applied not only to countries with special historical and political relationships4 (i.e,the British Commonwealth),but to developing countries more generally (thus the system is described as "generalized").
Second,the beneficiaries are limited to developing countries.
Third,it is a benefit unilaterally granted by developed countries to developing countries,
But the agreements only permit these exceptions under strict conditions,In general,MFN means that every time a country lowers a trade barrier or opens up a market,it has to do so for the same goods or services from all its trading partners — whether rich or poor,weak or strong.
①A Customs Union means that goods can move freely as within one customs territory and each party applies the same external tariff for imports from third countries and the same commercial policy,
B,National treatment,Treating foreigners and locals equally
a,Meaning
National treatment (GATT Article III) means imported and locally-produced goods should be treated equally — at least after the foreign goods have entered the market,The same should apply to foreign and domestic services,and to foreign and local trademarks,copyrights and patents,
National treatment only applies once a product,service or item of intellectual property has entered the market,Therefore,charging customs duty on an import is not a violation of national treatment even if locally-produced products are not charged an equivalent tax,
b,Importance
National treatment stands along side most-favored-nation treatment as one of the central principles of the WTO Agreement,
This principle of,national treatment” is also found in all the three main WTO agreements (Article 3 of GATT,Article 17 of GATS and Article 3 of TRIPS),although once again the principle is handled slightly differently in each of these.
c,Exceptions to National Treatment
⑴Government Procurement
GATT Article III:8(a) permits governments to purchase domestic products preferentially,making government procurement one of the exceptions to the national treatment rule,
This exception is permitted because the contracting parties recognized the role of government procurement in national policy,For example,there may be a security need to develop and purchase products domestically,or government procurement may,as is often the case,be used as a policy tool to promote smaller business,local industry,or advanced technologies,
While the GATT made government procurement an exception to the national treatment rule,the Plurilateral Agreement on Government Procurement resulting from the Tokyo Round mandates signatories to offer national treatment in their government procurement,However,the contracting parties to the WTO are under no obligation to join the Agreement on Government Procurement,In fact,it has mostly been developed countries which have joined the Agreement,Therefore,in the context of government procurement,the national treatment rule applies only between those who have signed the Agreement,For others,the traditional exception is still in force (see Chapter 8 on government procurement),
⑵Domestic Subsidies
GATT Article III:8(b) allows for the payment of subsidies exclusively to domestic producers as an exception to the national treatment rule,under the condition that it is not in violation of other provisions in Article III and the Agreement on Subsidies and Countervailing Measures,The reason for this exception is that subsidies were recognized to be an effective policy tool,and is recognized to be basically within the latitude of industrial policy authorities,However,because subsidies may have a negative effect on trade,the Agreement on Subsidies and Countervailing Measures imposes strict disciplines on the use of subsidies (see Chapter 6 on subsidies and countervailing measures),
案例：
在20世纪90年代的美国，为了提高市场份额，国内和国外的汽油销售公司的竞争变得异常激烈。在销售量衰退和新的要求提高汽油质量的环保标准压力下，美国大型石油公司发现了阻挡进口商的良机。美国石油公司积极支持美国环保局修订《净化空气法》。在1990年法案的修改中，国会指导环境保护局规定：在美国一些重污染区，采取新的规章来提高空气质量。只有经改良的、减少有毒物排放的汽油和天然气才能在这些地区销售。环保局负责签署改良汽油和惯用油标准原则。1991年，环保局提出了对于国内和国外炼油商不同的标准，他们认为国外炼油商缺乏1990年检测的、足以证明汽油质量的真实数据，只能通过一个“法令的底线”显示他们汽油的质量。而国内炼油商可以通过3种可行方法制定“独立的底线”。 同时，美国从加拿大进口的石油也采用了“独立底线”方案。
问题：美国的做法是否符合非歧视原则?
2,Freer trade,gradually,through negotiation
Lowering trade barriers is one of the most obvious means of encouraging trade,The barriers concerned include customs duties (or tariffs) and measures such as import bans or quotas that restrict quantities selectively,From time to time other issues such as red tape and exchange rate policies have also been discussed,Since GATT’s creation in 1947-48 there have been eight rounds of trade negotiations,A ninth round,under the Doha Development Agenda,is now underway,At first these focused on lowering tariffs (customs duties) on imported goods,As a result of the negotiations,by the mid-1990s industrial countries’ tariff rates on industrial goods had fallen steadily to less than 4%,But by the 1980s,the negotiations had expanded to cover non-tariff barriers on goods,and to the new areas such as services and intellectual property.
Opening markets can be beneficial,but it also requires adjustment,The WTO agreements allow countries to introduce changes gradually,through,progressive liberalization”,Developing countries are usually given longer to fulfill their obligations.
3,Predictability,through binding and transparency
Sometimes,promising not to raise a trade barrier can be as important as lowering one,because the promise gives businesses a clearer view of their future opportunities,With stability and predictability,investment is encouraged,jobs are created and consumers can fully enjoy the benefits of competition — choice and lower prices,The multilateral trading system is an attempt by governments to make the business environment stable and predictable.
In the WTO,when countries agree to open their markets for goods or services,they,bind” their commitments,For goods,these bindings amount to ceilings on customs tariff rates,Sometimes countries tax imports at rates that are lower than the bound rates,Frequently this is the case in developing countries,In developed countries the rates actually charged and the bound rates tend to be the same.
A country can change its bindings,but only after negotiating with its trading partners,which could mean compensating them for loss of trade,One of the achievements of the Uruguay Round of multilateral trade talks was to increase the amount of trade under binding commitments,In agriculture,100% of products now have bound tariffs,The result of all this,a substantially higher degree of market security for traders and investors.
The system tries to improve predictability and stability in other ways as well,One way is to discourage the use of quotas and other measures used to set limits on quantities of imports — administering quotas can lead to more red-tape and accusations of unfair play,Another is to make countries’ trade rules as clear and public (“transparent”) as possible,Many WTO agreements require governments to disclose their policies and practices publicly within the country or by notifying the WTO,The regular surveillance of national trade policies through the Trade Policy Review Mechanism provides a further means of encouraging transparency both domestically and at the multilateral level.
4,Promoting fair competition
The WTO is sometimes described as a,free trade” institution,but that is not entirely accurate,The system does allow tariffs and,in limited circumstances,other forms of protection,More accurately,it is a system of rules dedicated to open,fair and undistorted competition.
The rules on non-discrimination — MFN and national treatment — are designed to secure fair conditions of trade,So too are those on dumping (exporting at below cost to gain market share) and subsidies,The issues are complex,and the rules try to establish what is fair or unfair,and how governments can respond,in particular by charging additional import duties calculated to compensate for damage caused by unfair trade.
Many of the other WTO agreements aim to support fair competition,in agriculture,intellectual property,services,for example,The agreement on government procurement (a,plurilateral” agreement because it is signed by only a few WTO members) extends competition rules to purchases by thousands of government entities in many countries,And so on.
5,Encouraging development and economic reform
The WTO system contributes to development,On the other hand,developing countries need flexibility in the time they take to implement the system’s agreements,And the agreements themselves inherit the earlier provisions of GATT that allow for special assistance and trade concessions for developing countries.
Over three quarters of WTO members are developing countries and countries in transition to market economies,During the seven and a half years of the Uruguay Round,over 60 of these countries implemented trade liberalization programmes autonomously,At the same time,developing countries and transition economies were much more active and influential in the Uruguay Round negotiations than in any previous round,and they are even more so in the current Doha Development Agenda.
At the end of the Uruguay Round,developing countries were prepared to take on most of the obligations that are required of developed countries,But the agreements did give them transition periods to adjust to the more unfamiliar and,perhaps,difficult WTO provisions — particularly so for the poorest,“least-developed” countries,A ministerial decision adopted at the end of the round says better-off countries should accelerate implementing market access commitments on goods exported by the least-developed countries,and it seeks increased technical assistance for them,More recently,developed countries have started to allow duty-free and quota-free imports for almost all products from least-developed countries,On all of this,the WTO and its members are still going through a learning process,The current Doha Development Agenda includes developing countries’ concerns about the difficulties they face in implementing the Uruguay Round agreements,
Section 4,GATT Exceptions
Political and economic realities made GATT provide some exceptions from its free trade policies.
1,The general exceptions (GATT Article 20)
In order to protect certain essential public policy objectives,the GATT provisions allow a WTO member state to avoid its GATT obligations,take measures contrary to GATT,
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail,or a disguised restriction on international trade,nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures,
(a) necessary to protect public morals;
(b) necessary to protect human,animal or plant life or health;
(c) relating to the importation or exportation of gold or silver;
(d) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement,including those relating to customs enforcement,the enforcement of monopolies operated under paragraph 4 of Article II and Article XVII,the protection of patents,trade marks and copyrights,and the prevention of deceptive practices;
(e) relating to the products of prison labour;
(f) imposed for the protection of national treasures of artistic,historic or archaeological value;
(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption;
(h) undertaken in pursuance of obligations under any intergovernmental commodity agreement which conforms to criteria submitted to the CONTRACTING PARTIES and not disapproved by them or which is itself so submitted and not so disapproved;
(i) involving restrictions on exports of domestic materials necessary to ensure essential quantities of such materials to a domestic processing industry during periods when the domestic price of such materials is held below the world price as part of a governmental stabilization plan; Provided that such restrictions shall not operate to increase the exports of or the protection afforded to such domestic industry,and shall not depart from the provisions of this Agreement relating to non-discrimination;
(j) essential to the acquisition or distribution of products in general or local short supply; Provided that any such measures shall be consistent with the principle that all contracting parties are entitled to an equitable share of the international supply of such products,and that any such measures,which are inconsistent with the other provisions of this Agreement shall be discontinued as soon as the, conditions giving rise to them have ceased to exist,
2,The security exceptions (GATT Article 21)
The security exceptions allow member state to avoid any obligations they may have under the GATT that are contrary to their "essential security interests " or that conflict with their duties "under the United Nations Charter for the maintenance of international peace and security",Most of the exceptions listed in both Articles XX and XXI may be invoked only if they are "necessary" or "essential" to a member state's goals.
,Nothing in this Agreement shall be construed,
(a) to require any contracting party to furnish any information the disclosure of which it considers contrary to its essential security interests; or
(b) to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests
(i) relating to fissionable materials or the materials from which they are derived;
(ii) relating to the traffic in arms,ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;
(iii) taken in time of war or other emergency in international relations; or
(c) to prevent any contracting party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security,
Section 5,Anti-dumping
Ⅰ,Introduction
A.Dumping in the GATT/WTO?
a,What is dumping?
Dumping is,in general,a situation of international price discrimination,where the price of a product when sold in the importing country is less than the price of that product in the market of the exporting country,Thus,in the simplest of cases,one identifies dumping simply by comparing prices in two markets,However,the situation is rarely,if ever,that simple,and in most cases it is necessary to undertake a series of complex analytical steps in order to determine the appropriate price in the market of the exporting country (known as the,normal value”) and the appropriate price in the market of the importing country (known as the,export price”) so as to be able to undertake an appropriate comparison.
b,Article?VI of GATT and the Anti-Dumping Agreement
The GATT?1994 sets forth a number of basic principles applicable in trade between Members of the WTO,including the,most favoured nation” principle,It also requires that imported products not be subject to internal taxes or other changes in excess of those imposed on domestic goods,and that imported goods in other respects be accorded treatment no less favourable than domestic goods under domestic laws and regulations,and establishes rules regarding quantitative restrictions,fees and formalities related to importation,and customs valuation,Members of the WTO also agreed to the establishment of schedules of bound tariff rates,Article?VI of GATT?1994,on the other hand,explicitly authorizes the imposition of a specific anti-dumping duty on imports from a particular source,in excess of bound rates,in cases where dumping causes or threatens injury to a domestic industry,or materially retards the establishment of a domestic industry.
The Agreement on Implementation of Article?VI of GATT?1994,commonly known as the Anti-Dumping Agreement,provides further elaboration on the basic principles set forth in Article?VI itself,to govern the investigation,determination,and application,of anti-dumping duties.
c,Previous Agreements
As tariff rates were lowered over time following the original GATT agreement,anti-dumping duties were increasingly imposed,and the inadequacy of Article?VI to govern their imposition became ever more apparent,For instance,Article?VI requires a determination of material injury,but does not contain any guidance as to criteria for determining whether such injury exists,and addresses the methodology for establishing the existence of dumping in only the most general fashion,Consequently,contracting parties to GATT negotiated more detailed Codes relating to anti-dumping,The first such Code,the Agreement on Anti-Dumping Practices,entered into force in?1967 as a result of the Kennedy Round,However,the United States never signed the Kennedy Round Code,and as a result the Code had little practical significance.
The Tokyo Round Code,which entered into force in?1980,represented a quantum leap forward,Substantively,it provided enormously more guidance about the determination of dumping and of injury than did Article?VI,Equally important,it set out in substantial detail certain procedural and due process requirements that must be fulfilled in the conduct of investigations,Nevertheless,the Code still represented no more than a general framework for countries to follow in conducting investigations and imposing duties,It was also marked by ambiguities on numerous controversial points,and was limited by the fact that only the 27?Parties to the Code were bound by its requirements.
B,The UR Agreement
a,Basic principles
Dumping is defined in the Agreement on Implementation of Article?VI of the GATT?1994 (The Anti-Dumping Agreement) as the introduction of a product into the commerce of another country at less than its normal value,Under Article?VI of GATT?1994,and the Anti-Dumping Agreement,WTO Members can impose anti-dumping measures,if,after investigation in accordance with the Agreement,a determination is made (a)?that dumping is occurring,(b)?that the domestic industry producing the like product in the importing country is suffering material injury,and (c)?that there is a causal link between the two,In addition to substantive rules governing the determination of dumping,injury,and causal link,the Agreement sets forth detailed procedural rules for the initiation and conduct of investigations,the imposition of measures,and the duration and review of measures.
b,Committee on Anti-Dumping Practices
The Committee,which meets at least twice a year,provides Members of the WTO the opportunity to discuss any matters relating to the Anti-Dumping Agreement (Article?16),The Committee has undertaken the review of national legislations notified to the WTO,This offers the opportunity to raise questions concerning the operation of national anti-dumping laws and regulations,and also questions concerning the consistency of national practice with the Anti-Dumping Agreement,The Committee also reviews notifications of anti-dumping actions taken by Members,providing the opportunity to discuss issues raised regarding particular cases.
The Committee has created a separate body,the Ad Hoc Group on Implementation,which is open to all Members of the WTO,and which is expected to focus on technical issues of implementation,that is,the,how to” questions that frequently arise in the administration of anti-dumping laws.
c,Dispute settlement
Disputes in the anti-dumping area are subject to binding dispute settlement before the Dispute Settlement Body of the WTO,in accordance with the provisions of the Dispute Settlement Understanding (“DSU”) (Article?17),Members may challenge the imposition of anti-dumping measures,in some cases may challenge the imposition of preliminary anti-dumping measures,and can raise all issues of compliance with the requirements of the Agreement,before a panel established under the DSU,In disputes under the Anti-Dumping Agreement,a special standard of review is applicable to a panel's review of the determination of the national authorities imposing the measure,The standard provides for a certain amount of deference to national authorities in their establishment of facts and interpretation of law,and is intended to prevent dispute settlement panels from making decisions based purely on their own views,The standard of review is only for anti-dumping disputes,and a Ministerial Decision provides that it shall be reviewed after three years to determine whether it is capable of general application.
d,Notifications
All WTO Members are required to bring their anti-dumping legislation into conformity with the Anti-Dumping Agreement,and to notify that legislation to the Committee on Anti-Dumping Practices,While the Committee does not,approve” or,disapprove” any Members' legislation,the legislations are reviewed in the Committee,with questions posed by Members,and discussions about the consistency of a particular Member's implementation in national legislation of the requirements of the Agreement.
In addition,Members are required to notify the Committee twice a year about all anti-dumping investigations,measures,and actions taken,The Committee has adopted a standard format for these notifications,which are subject to review in the Committee.
Finally,Members are required to promptly notify the Committee of preliminary and final anti-dumping actions taken,including in their notification certain minimum information required by Guidelines agreed to by the Committee,These notifications are also subject to review in the Committee,
Ⅱ,Determination of dumping
A,Determination of normal value
a,General rule
The normal value is generally the price of the product at issue,in the ordinary course of trade,when destined for consumption in the exporting country market,In certain circumstances,for example when there are no sales in the domestic market,it may not be possible to determine normal value on this basis,The Agreement provides alternative methods for the determination of normal value in such cases.
b,Sales in the ordinary course of trade
One of the most complicated questions in anti-dumping investigations is the determination whether sales in the exporting country market are made in the,ordinary course of trade” or not,One of the bases on which countries may determine that sales are not made in the ordinary course of trade is if sales in the domestic market of the exporter are made below cost,The Agreement defines the specific circumstances in which home market sales at prices below the cost of production may be considered as not made in theordinary course of trade",and thus may be disregarded in the determination of normal value (Article?2),Those sales must be made at prices that are below per unit fixed and variable costs plus administrative,selling and general costs,they must be made within an extended period of time (normally one year,but in no case less than six months),and they must be made in substantial quantities,Sales are made in substantial quantities when (a)? the weighted average selling price is below the weighted average cost; of (b)? 20% of the sales by volume were below cost,Finally,sales made below costs may only be disregarded in the determination of normal value where they do not allow for recovery of costs within a reasonable period of time,If sales are below cost when made but are above the weighted average cost over the period of the investigation,the Agreement provides that they allow for recovery of costs within a reasonable period of time.
c,Insufficient volume of sales
If there are sales below cost that meet the criteria set out in the Agreement,they can simply be ignored in the calculation of normal value,and normal value will be determined based on the remaining sales,However,exclusion of these below-cost sales may result in a level of sales insufficient to determine normal value based on home market prices,It is obvious that,in the case where there are no sales in the exporting country of the product under investigation,it is not possible to base normal value on such sales,and the Agreement recognizes this,However,it is also possible that,while there are some sales in the exporting country's market,the level of such sales is so low that its significance is questionable,Thus,the Agreement recognizes that in some cases sales in the home market may be so low in volume that they do not permit a proper comparison of home market and export prices,It provides that the level of home market sales is sufficient if home market sales constitute 5 per cent or more of the export sales in the country conducting the investigation,provided that a lower ratio,should” be accepted if the volume of domestic sales nevertheless is,of sufficient magnitude” to provide for a fair comparison.
d,Alternative bases for calculating normal value
Two alternatives are provided for the determination of normal value if sales in the exporting country market are not an appropriate basis,These are (a)?the price at which the product is sold to a third country; and
(b)?the,constructed value” of the product,which is calculated on the basis of the cost of production,plus selling,general,and administrative expenses,and profits,The Agreement contains detailed and specific rules for the determination of a constructed value,governing the information to be used in determining the amounts for costs,expenses,and profits,the allocation of these elements of constructed value to the specific product in question,and adjustments for particular situations such as start-up costs and non-recurring cost items.
e,Constructed normal value
The determination of normal value based on cost of production,selling,general and administrative expenses,and profits is referred to as the,constructed normal value” The rules for determining whether sales are made below cost also apply to performing a constructed normal value calculation,The principal difference is the inclusion of a,reasonable amount for profits” in the constructed value.
f,Third country price as normal value
The other alternative method for determining normal value is to look at the comparable price of the like product when exported to an appropriate third country,provided that price is representative,The Agreement does not specify any criteria for determining what third country is appropriate.
g,Indirect exports
In the situation where products are not imported directly from the country of manufacture,but are exported from an intermediate country,the Agreement provides that the normal value shall be determined on the basis of sales in the market of the exporting country,However,the Agreement recognizes that this may result in an inappropriate or impossible comparison,for instance if the product is not produced in the exporting country,there is no comparable price for the product in the exporting country,or the product is merely transshipped through the exporting country,In such cases,the normal value may be determined on the basis of the price of the product in the country of origin,and not the price in the exporting country.?
h,Non-market economies
In the particular situation of economies where the government has a complete or substantially complete monopoly of its trade and where all domestic prices are fixed by the State,GATT?1994 and the Agreement recognize that a strict comparison with home market prices may not be appropriate,Importing countries have thus exercised significant discretion in the calculation of normal value of products exported from non-market economies,
B,Determination of export price
a.General rule
The export price will normally be based on the transaction price at which the foreign producer sells the product to an importer in the importing country,However,as is the case with normal value,the Agreement recognizes that this transaction price may not be appropriate for purposes of comparison.
b,Exceptions
There may be no export price for a given product,for instance,if the export transaction is an internal transfer,or if the product is exchanged in a barter transaction,In addition,the transaction price at which the exporter sells the product to the importing country may be unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party,In such a case,the transaction price may not be an arms-length market price,but may be manipulated,for instance for tax purposes,The Agreement recognizes that,in such cases,an alternative method of determining an appropriate export price for comparison is needed.
c,Alternative method of calculation
The Agreement provides that in circumstances where there is no export price,or where the export price is unreliable due to an association or compensatory arrangement between the exporter and the importer or a third party,an alternative method may be used to determine the export price,this results in a,constructed export price”,and is calculated on the basis of the price at which the imported products are first resold in an independent buyer,If the imported product is not resold to an independent buyer,or is not resold as imported,the authorities may determine a reasonable basis on which to calculate the export price,
C,Fair comparison of normal value and export price
a,Basic requirements
The Agreement requires that a fair comparison of the export price and the normal value be made,The basic requirements for a fair comparison are that the prices being compared are those of sales made at the same level of trade,normally the ex-factory level,and of sales made at as nearly as possible the same time,
As part of the Agreement's requirements regarding transparency and participation,the investigating authorities are required to inform parties of the information needed to ensure a fair comparison,for instance,information regarding adjustments,allowances,and currency conversion,and may not impose an,unreasonable burden of proof” on parties.
b,Allowance
To ensure that prices are comparable,the Agreement requires that adjustments be made to either the normal value,or the export price,or both,to account for differences in the product,or in the circumstances of sale,in the importing and exporting markets,These allowances must be made for differences in conditions and terms of sale,taxation,quantities,physical characteristics,and other differences demonstrated to affect price comparability.?
c,Adjustments in case of constructed export price
The Agreement also provides specific rules on the adjustment to be made if the comparison of normal value is to a constructed export price,In those circumstances,allowance must be made for costs,including duties and taxes,incurred between the importation of the product and the resale to the first independent purchaser,as well as for profits accruing,If price comparability has been affected,the Agreement requires either that the normal value be established at a level of trade equivalent to that of the constructed export price,which is likely to require an adjustment,or allowance must be made for differences in conditions and terms of sale,taxation,quantities,physical characteristics,and other matters demonstrated to affect price comparability.
d,Conversion of currency
Where the comparison of normal value and export price requires conversion of currency,the Agreement provides specific rules governing that conversion (Article?2.4.1),Thus,the exchange rate used should be that in effect on the date of sale (date of contract,invoice,purchase order or order confirmation,whichever establishes material terms of sale),If a forward currency sale is directly linked to export sale,the exchange rate of forward currency sale must be used,Moreover,the Agreement requires that exchange rate fluctuations be ignored,and that exporters be allowed at least 60?days to adjust export prices for sustained exchange rate movements.
D,Calculation of dumping margins and duty assessment
a,Calculation of dumping margins
The Agreement contains rules governing the calculation of dumping margins,In the usual case,the Agreement requires either the comparison of the weighted average normal value to the weighted average of all comparable export prices,or a transaction-to-transaction comparison of normal value and export price (Article?2.4.2),A different basis of comparison can be used if there is,targeted dumping”,that is,if a pattern exists of export prices differing significantly among different purchasers,regions or time periods,In this situation,if the investigating authorities provide an explanation as to why such differences cannot be taken into account in weighted average-to-weighted average or transaction-to-transaction comparisons,the weighted average normal value can be compared to the export prices on individual transactions.
b,Refund or reimbursement
The Agreement requires Members to collect duties on a non-discriminatory basis on imports from all sources found to be dumped and causing injury,except with respect to sources from which a price undertaking has been accepted,Moreover,the amount of the duty collected may not exceed the dumping margin,although it may be a lesser amount,The Agreement specifies two mechanisms to ensure that excessive duties are not collected,The choice of mechanism depends on the nature of the duty collection process,If a Member allows importation and collects an estimated anti-dumping duty,and only later calculates the specific amount of anti-dumping duty to be paid,the Agreement requires that the final determination of the amount must take place as soon as possible,upon request for a final assessment,In both cases,the Agreement provides that the final decision of the authorities must normally be made within 12? months of a request for refund or final assessment,and that any refund should be made within 90?days.
c,Individual exporter dumping margins
The Agreement requires that,when anti-dumping duties are imposed,a dumping margin be calculated for each exporter,However,it is recognized that this may not be possible in all cases,and thus the Agreement allows investigating authorities to limit the number of exporters,importers,or products individually considered,and impose an anti-dumping duty on uninvestigated sources on the basis of the weighted average dumping margin actually established for the exporters or producers actually examined,The investigating authorities are precluded from including in the calculation of that weighted average dumping margin any dumping margins that are de minimis,zero,or based on the facts available rather than a full investigation,and must calculate an individual margin for any exporter or producer who provides the necessary information during the course of the investigation.
d,New shippers
The Agreement makes provision for the assessment of anti-dumping duties on exports from producers or exporters who were not sources of imports considered during the period of investigation,In this circumstance,the investigating authorities are required to conduct an expedited review to determine a specific margin of dumping attributable to the exports of such a,new shipper”,While that review is in progress,the authorities may request guarantees or withhold appraisement on imports,but may not actually collect anti-dumping duties on those imports.
Ⅲ,Determination of injury and casual link
A,Like product
a.Definition (Article 2.6)
An important decision must be made early in each investigation to determine the domestic,like product”,Like product is defined in the Agreement as,a product which is identical,i.e,alike in all respects to the product under consideration or,in the absence of such a product,another product which,although not alike in all respects,has characteristics closely resembling those of the product under consideration”,The determination involves first examining the imported product or products that are alleged to be dumped,and then establishing what domestically produced product or products are the appropriate,like product”,The decision regarding the like product is important because it is the basis of determining which companies constitute the domestic industry,and that determination in turn governs the scope of the investigation and determination of injury and causal link.
B,Domestic industry
a,Definition (Article 4)
The Agreement defines the term,domestic industry” to mean,the domestic producers as a whole of the like products or those of them whose collective output of the products constitutes a major proportion of the total domestic production of those products”.
b,Related domestic producers
The Agreement recognizes that in certain circumstances,it may not be appropriate to include all producers of the like product in the domestic industry,Thus,Members are permitted to exclude from the domestic industry producers related to the exporters or importers under investigation,and producers who are themselves importers of the allegedly dumped product,The Agreement provides that a producer can be deemed,related” to an exporter or importer of the allegedly dumped product if there is a relationship of control between them,and if there is reason to believe that the relationship causes the domestic producer to behave differently from non-related producers.
c,Regional domestic industry
The Agreement contains special rules that allow in exceptional circumstances,consideration of injury to producers comprising a,regional industry”,A regional industry may be found to exist in a separate competitive market if producers within that market sell all or almost all of their production of the like product in that market,and demand for the like product in that market is not to any substantial degree supplied by producers of the like product located outside that market,If this is the case,investigating authorities may find that injury exists,even if a major proportion of the entire domestic industry,including producers outside the region,is not materially injured,However,a finding of injury to the regional industry is only allowed if (1) there is a concentration of dumped imports into the market served by the regional industry,and (2) dumped imports are causing injury to the producers of all or almost all of the production within that market.
d,Imposition of duties in regional industry cases
If an affirmative determination is based on injury to a regional industry,the Agreement requires investigating authorities to limit the duties to products consigned for final consumption in the region in question,if constitutionally possible,If the Constitutional law of a Member precludes the collection of duties on imports to the region,the investigating authorities may levy duties on all imports of the product,without limitation,if anti-dumping duties cannot be limited to the imports from specific producers supplying the region,However,before imposing those duties,the investigating authorities must offer exporters an opportunity to cease dumping in the region or enter a price undertaking.
C．Injury
a,Types of injury
The Agreement provides that,in order to impose anti-dumping measures,the investigating authorities of the importing Member must make a determination of injury,The Agreement defines the term,injury” to mean either (i) material injury to a domestic industry,(ii) threat of material injury to a domestic industry,or (iii) material retardation of the establishment of a domestic industry,but is silent on the evaluation of material retardation of the establishment of a domestic industry.
b,Basic requirements for determination of material injury
The Agreement does not define the notion of,material”,However,it does require that a determination of injury must be based on positive evidence and involve an objective examination of (i) the volume of dumped imports and the effect of the dumped imports on prices in the domestic market for like products,and (ii) the consequent impact of the dumped imports on domestic producers of the like product,Article 3 contains some specific additional factors to be considered in the evaluation of these two basic elements,but does not provide detailed guidance on how these factors are to be evaluated or weighed,or on how the determination of causal link is to be made.
c,Basic requirements for determination of threat of material injury
The Agreement sets forth factors to be considered in the evaluation of threat of material injury,These include the rate of increase of dumped imports,the capacity of the exporter(s),the likely effects of prices of dumped imports,and inventories,There is no further elaboration on these factors,or on how they are to be evaluated,The Agreement does,however,specify that a determination of threat of material injury shall be based on facts,and not merely on allegation,conjecture,or remote possibility,and moreover,that the change in circumstances which would create a situation where dumped imports caused material injury must be clearly foreseen and imminent,
D,Elements of analysis
a.Consideration of volume effects of dumped imports
The Agreement requires investigating authorities to consider whether there has been a significant increase in the dumped imports,either in absolute terms or relative to production or consumption in the domestic industry,Consideration of price effects of dumped imports
b,Consideration of price effects of dumped imports
In addition,the Agreement requires investigating authorities to consider whether there has been significant price undercutting by the dumped imports as compared with the price of a like product of the importing Member,Investigating authorities are also required to consider whether the effect of dumped imports is,otherwise” to depress prices to a significant degree,or to prevent price increases,which otherwise would have occurred,to a significant degree.
c,Evaluation of volume and price effects of dumped imports
The Agreement provides that no one or several of these factors can necessarily give decisive guidance,It does not specify how the investigating authorities are to evaluate the volume and price effects of dumped imports,merely that consideration of these effects is required,Thus,investigating authorities have to develop analytical methods for undertaking the consideration of these factors,Moreover,since no single factor or combination of factors will necessarily result in either an affirmative or negative determination,in each case investigating authorities have to evaluate which factors are relevant,and which are important,in light of the circumstances of the particular case at issue.
d,Examination of impact of dumped imports on the domestic industry
The Agreement provides that,in examining the impact of dumped imports on the domestic industry,the authorities are to evaluate all relevant economic factors bearing upon the state of the domestic industry,The Agreement lists a number of factors which must be considered,including actual or potential declines in sales,profits,output,market share,productivity,return on investments,utilization of capacity,actual or potential effects on cash flow,inventories,employment,wages,growth,ability to raise capital or investments,and the magnitude of the margin of dumping,However,the list is not exhaustive,and other factors may be deemed relevant,In addition,the Agreement again specifies that no single factor or combination of factors will necessarily lead to either an affirmative or negative determination.
e,Demonstration of causal link
The Agreement requires a demonstration that there is a causal relationship between the dumped imports and the injury to the domestic industry,This demonstration must be based on an examination of all relevant evidence,The Agreement does not specify particular factors or give guidance in how relevant evidence is to be evaluated,Article 3.5 does require,however,that known factors other than dumped imports which may be causing injury must be examined,gives examples of factors (such as changes in the pattern of demand,and developments in technology) which may be relevant,and specifies that injury caused by such,other factors” must not be attributed to dumped imports,Thus,the investigating authorities must develop analytical methods for determining what evidence is or may be relevant in a particular case,and for evaluating that evidence,taking account of other factors which may be causing injury.
f,Cumulative analysis
Cumulative analysis refers to the consideration of dumped imports from more than one country on a combined basis in assessing whether dumped imports cause injury to the domestic industry,Obviously,since such analysis will increase the volume of imports whose impact is being considered,there is a greater possibility of an affirmative determination in a case involving cumulative analysis,The practice of cumulative analysis was the subject of much controversy under the Tokyo Round Code,and in the negotiations for the Agreement,Article 3.3 of the Agreement establishes the conditions in which a cumulative evaluation of the effects of dumped imports from more than one country may be undertaken,The authorities must determine that the margin of dumping from each country is not de minimis,that the volume of imports from each country is not negligible,and that a cumulative assessment is appropriate in light of the conditions of competition among the imports and between the imports and the domestic like product,De minimis dumping margins and negligible import volumes are defined in the Agreement.
Ⅳ,Procedural requirements
A,Investigation
a,Initiation
Agreement Article 5 of the Agreement establishes the requirements for the initiation of investigations,The Agreement specifies that investigations should generally be initiated on the basis of written request submitted,by or on behalf of” a domestic industry,This,standing” requirement includes numerical limits for determining whether there is sufficient support by domestic producers to conclude that the request is made by or on behalf of the domestic industry,and thereby warrants initiation,The Agreement establishes requirements for evidence of dumping,injury,and causality,as well as other information regarding the product,industry,importers,exporters,and other matters,in written applications for anti-dumping relief,and specifies that,in special circumstances when authorities initiate without a written application from a domestic industry,they shall proceed only if they have sufficient evidence of dumping,injury,and causality,In order to ensure that investigations without merit are not continued,potentially disrupting legitimate trade,Article 5.8 provides for immediate termination of investigations in the event the volume of imports is negligible or the margin of dumping is de minimis,and establishes numeric thresholds for these determinations,In order to minimize the trade-disruptive effect of investigations,Article 5.10 specifies that investigations should be completed within one year,and in no case more than 18 months,after initiation.
b,Conduct
Article 6 of the Agreement sets forth detailed rules on the process of investigation,including the collection of evidence and the use of sampling techniques,It requires authorities to guarantee the confidentiality of sensitive information and verify the information on which determinations are based,In addition,to ensure the transparency of proceedings,authorities are required to disclose the information on which determinations are to be based to interested parties and provide them with adequate opportunity to comment,The Agreement establishes the rights of parties to participate in the investigation,including the right to meet with parties with adverse interests,for instance in a public hearing,Further guidance on the conduct of investigations is contained in two Annexes to the Agreement,which set forth rules for the on-the-spot investigations to verify information obtained from foreign parties,as well as rules for the use of best information available in the event a party refuses access to,or does not provide,requested information,or significantly impedes the investigation.
B,Provisional measures and price understandings
a,Imposition of provisional measures
Article 7 of the Agreement provides rules relating to the imposition of provisional measures,These include the requirement that authorities make a preliminary affirmative determination of dumping,injury,and causality before applying provisional measures,and the requirement that no provisional measures may be applied sooner than 60 days after initiation of an investigation,Provisional measures may take the form of a provisional duty or,preferably,a security by cash deposit or bond equal to the amount of the preliminarily determined margin of dumping,The Agreement also contains time limits for the imposition of provisional measures— generally four months,with a possible extension to six months at the request of exporters,If a Member,in its administration of anti-dumping duties,imposes duties lower than the margin of dumping when these are sufficient to remove injury,the period of provisional measures is generally six months,with a possible extension to nine months at the request of exporters.
b,Price undertakings
Article 8 of the Agreement contains rules on the offering and acceptance of price undertakings,in lieu of the imposition of anti-dumping duties,It establishes the principle that undertakings between any exporter and the importing Member,to revise prices,or cease exports at dumped prices,may be entered into to settle an investigation,but only after a preliminary affirmative determination of dumping,injury and causality has been made,It also establishes that undertakings are voluntary on the part of both exporters and investigating authorities,In addition,an exporter may request that the investigation be continued after an undertaking has been accepted,and if a final determination of no dumping,no injury,or no causality results,the undertaking shall automatically lapse.
C,Collection of duties
a,Imposition and collection of duties
Article 9 of the Agreement establishes the general principle that imposition of anti-dumping duties is optional,even if all the requirements for imposition have been met,It also states the desirability of application of a,lesser duty” rule,Under a lesser duty rule,authorities impose duties at a level lower than the margin of dumping if this level is adequate to remove injury,In addition,the Agreement contains rules intended to ensure that duties in excess of the dumping margin are not collected,and rules for applying duties to new shippers.
b,Retroactive application of duties
The Agreement sets forth the general principle that both provisional and final anti-dumping duties may be applied only as of the date on which the determinations of dumping,injury and causality have been made,However,recognizing that injury may have occurred during the period of investigation,or that exporters may have taken actions to avoid the imposition of an anti-dumping duty,Article 10 contains rules for the retroactive imposition of dumping duties in specified circumstances,If the imposition of anti-dumping duties is based on a finding of material injury,as opposed to threat of material injury or material retardation of the establishment of a domestic industry,anti-dumping duties may be collected as of the date provisional measures were imposed,If provisional duties were collected in an amount greater than the amount of the final duty,or if the imposition of duties is based on a finding of threat of material injury or material retardation,a refund of provisional duties is required,Article 10.6 provides for retroactive application of final duties to a date not more than 90 days prior to the application of provisional measures in certain exceptional circumstances involving a history of dumping,massive dumped imports,and potential undermining of the remedial effects of the final duty,
D,Review and public notice
a,Duration,termination,and review of anti-dumping measures
Article 11 of the Agreement establishes rules for the duration of anti-dumping duties,and requirements for periodic review of the continuing need,if any,for the imposition of anti-dumping duties or price undertakings,These requirements respond to the concern raised by the practice of some countries of leaving anti-dumping duties in place indefinitely,The,sunset” requirement establishes that dumping duties shall normally terminate no later than five years after first being applied,unless a review investigation prior to that date establishes that expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury,This five year,sunset” provision also applies to price undertakings,The Agreement requires authorities to review the need for the continued imposition of a duty upon request of an interested party.
b,Public notice
Article 12 sets forth detailed requirements for public notice by investigating authorities of the initiation of investigations,preliminary and final determinations,and undertakings,The public notice must disclose non-confidential information concerning the parties,the product,the margins of dumping,the facts revealed during the investigation,and the reasons for the determinations made by the authorities,including the reasons for accepting and rejecting relevant arguments or claims made by exporters or importers,These public notice requirements are intended to increase the transparency of determinations,with the hope that this will increase the extent to which determinations are based on fact and solid reasoning,
Chapter 8：World Trade Organization
教学目的及要求
通过本章教学，要求同学们了解WTO的发展历史、法律地位、运行机制和宏观法律框架，掌握WTO基本原则、反倾销法律制度、补贴与反补贴措施、保障措施和一些重要的非关税措施以及WTO的争端解决机制。
教 学 重 点
要求同学们掌握的内容为本章的教学重点，即如下内容：
①WTO基本原则；
②反倾销制度、补贴与反补贴措施、保障措施；
③技术性贸易壁垒等非关税措施；
④WTO的争端解决机制。
教 学 难 点
①反倾销制度、补贴与反补贴措施、保障措施；
②技术性贸易措施等非关税措施；
教 学 内 容 及 文 本 演 示
课外阅读法条
课 堂 讨 论
Section 1,General Introduction to WTO
Section 2,Major Principles of WTO
Multilateral Agreements on Trade in Goods
1,WTO第一案
Section 3,GATT Exceptions
2,1998年海龟案
Section 4,Anti-dumping
Section5,Subsidies and countervailing
measures
Section6,Safeguards
3.中国入世第一案
Section 7,Non-tariff measures
Section 8,GATS
GATS
Section 9,Dispute settlement
DSU
本章思考题：
1,针对国外的技术性贸易壁垒我国在对外贸易中应采取的措施。
2,WTO争端解决机制的不足与完善。
Chapter 8：World Trade Organization
Section 1,General Introduction to WTO
Section 2,Major Principles of WTO
Section 3,GATT Exceptions
Section 4,Anti-dumping
Section 5,Subsidies and countervailing measures
Section 6,Safeguards
Section 7,Non-tariff measures
Section 8,GATS
Section 9,Dispute settlement
Section 1,The Creation of WTO
Ⅰ,A Brief History of GATT
Ⅱ.The Differences and Relations Between WTO and GATT
Ⅲ,Nature
Ⅳ,Objectives
Ⅴ,Main functions
Ⅵ,Structure (Main Organs)
Ⅶ,Decision-making
Ⅷ,Legal Framework
I,A Brief History of GATT
The WTO's predecessor,the GATT,was established on a provisional basis after the Second World War in the wake of other new multilateral institutions dedicated to international economic cooperation - notably the "Bretton Woods" institutions now known as the World Bank and the International Monetary Fund,
The original 23 GATT countries were among over 50 which agreed a draft Charter for an International Trade Organization (ITO) - a new specialized agency of the United Nations,The Charter was intended to provide not only world trade disciplines but also contained rules relating to employment,commodity agreements,restrictive business practices,international investment and services,
In an effort to give an early boost to trade liberalization after the Second World War - and to begin to correct the large overhang of protectionist measures which remained in place from the early 1930s - tariff negotiations were opened among the 23 founding GATT "contracting parties" in 1946,This first round of negotiations resulted in 45,000 tariff concessions affecting $10 billion - or about one-fifth - of world trade,It was also agreed that the value of these concessions should be protected by early - and largely "provisional" - acceptance of some of the trade rules in the draft ITO Charter,The tariff concessions and rules together became known as the General Agreement on Tariffs and Trade and entered into force in January 1948,
Although the ITO Charter was finally agreed at a UN Conference on Trade and Employment in Havana in March 1948 ratification in national legislatures proved impossible in some cases,When the United States' government announced,in 1950,that it would not seek Congressional ratification of the Havana Charter,the ITO was effectively dead,Despite its provisional nature,the GATT remained the only multilateral instrument governing international trade from 1948 until the establishment of the WTO,
Although,in its 47 years,the basic legal text of the GATT remained much as it was in 1948,there were additions in the form of "plurilateral" - voluntary membership - agreements and continual efforts to reduce tariffs,Much of this was achieved through a series of "trade rounds",
There were altogether 8 rounds of negotiations under GATT,The last one was the Uruguay Round which created a new system—WTO,
After 8 years of negotiation,every issue was finally resolved in 1992,and on 15 April 1994,the deal was signed by Ministers from most of the 125 participating governments at a meeting in Marrakesh马拉克什,Morocco摩洛哥,
In accordance with WTO Agreement (Marrakesh Agreement Establishing the World Trade Organization),WTO came into being on January 1,1995.WTO is One of the youngest of the international organizations,and the only global international organization dealing with the rules of trade between nations
Ⅱ.The Differences Between WTO and GATT
The World Trade Organization is not a simple extension of GATT; on the contrary,it completely replaces its predecessor and has a very different character,Among the principal differences are the following,
1、The GATT was a set of rules,a multilateral agreement,with no institutional foundation,only a small associated secretariat which had its origins in the attempt to establish an International Trade Organization in the 1940s,The WTO is a permanent institution with its own secretariat,
2,The GATT was applied on a "provisional basis" even if,after more than forty years,governments chose to treat it as a permanent commitment,The WTO commitments are full and permanent,
3、The GATT rules applied to trade in merchandise goods,In addition to goods,the WTO covers trade in services and trade-related aspects of intellectual property,
4、While GATT was a multilateral instrument,by the 1980s many new agreements had been added of a plurilateral,and therefore selective,nature,The agreements which constitute the WTO are almost all multilateral and,thus,involve commitments for the entire membership,
5、The WTO dispute settlement system is faster,more automatic,and thus much less susceptible to blockages,than the old GATT system,The implementation of WTO dispute findings will also be more easily assured,
After WTO came into being on 1 January 1995,GATT lives on as "GATT 1994",the amended and up-dated version of GATT 1947,which is an integral part of the WTO Agreement and which continues to provide the key disciplines affecting international trade in goods,
Section 2,The Mechanism of WTO
Ⅰ,Nature >
Ⅱ,Objectives>
Ⅲ,Main functions>
Ⅳ,Structure (Main Organs)>
Ⅴ,Decision-making>
Ⅵ,Legal Framework>
Ⅶ,The outline for WTO agreements>
Ⅰ,Nature
The World Trade Organization (WTO) is the only global international organization dealing with the rules of trade between nations,At its heart are the WTO agreements,negotiated and signed by the bulk of the world’s trading nations and ratified in their parliaments,The goal is to help producers of goods and services,exporters,and importers conduct their business,It’s a rules-based,member-driven organization — all decisions are made by the member governments,and the rules are the outcome of negotiations among members,
Ⅱ,Objectives
1,To raise standards of living, Relations among Members of the WTO in the field of trade and economic endeavour should be conducted with a view to raising the standards of living of their populations.
2.To ensure full employment
3.Growing volume of real income and effective demand, to promote the steady growth of real incomes and effective demand in their markets,
4.Expanding the production of and trade in goods & services,
5.Sustainable development（可持续发展） and environmental protection,while allowing for the optimal use of the world's reserves in accordance with the objective of sustainable development,and protecting and preserving the environment。
6.Developing countries,in a manner consistent with the respective needs and concerns of Members at different levels of development.
世贸组织的目的是：为了提高生活水平，保证充分就业，扩大生产和贸易，保护和维护环境，寻求对世界资源的最佳利用，实现可持续发展的目标，保证发展中国家、特别是最不发达国家“在国际贸易增长中获得与其经济发展需要相当的份额”。
Ⅲ,Main functions
1.Implementation,administration and operation of the covered agreements
The WTO facilitates the implementation,administration and operation of the WTO Agreement and the Multilateral Trade Agreements,and furthers their objectives,It also provides the framework,for those of its Members that have accepted them,for the implementation,administration and operation of the Plurilateral Trade Agreements,世贸组织的重要职能之一是负责世贸组织各项协定和多边协议的履行、管理和实施，并促进其目标的实现；此外，还为已接受世贸组织各项协定或协议的成员方提供了执行、管理与运作的多边贸易合作框架。
2.Forum for negotiations发挥谈判论坛的作用
The WTO provides the forum for negotiations on multilateral trade relations in matters covered by its various agreements,It may also,on decision by the Ministerial Conference,provide a forum for further negotiations,and a framework for the implementation of their results,on other issues arising in the multilateral trade relations among its Members,世贸组织还为成员方之间开展多边贸易谈判和磋商提供了一个适宜的论坛：此外，它还根据部长级会议决定为进一步谈判提供了一个论坛，为执行谈判结果提供了框架，为解决各成员方之间在多边贸易关系发展中的其它问题提供了有效的途径。
3.Dispute settlement协调和解决贸易争端
The WTO administers the integrated dispute settlement system,which is a central element in providing security and predictability to the multilateral trading system,serving to preserve the rights and obligations of the Members of the WTO.。世贸组织管理《WTO协议》附件2（即《关于争端解决规则与程序的谅解》）所列的安排，解决成员问可能产生的贸易争端。为解决各成员方之间在货物贸易、服务贸易和知识产权等领域发生的争端，制定了一套有效的解决机制。这为保证多边贸易体制和提高其预见性发挥了核心作用，并有利于该组织各成员方权利与义务的保护与执行。
4.Review of national trade policies
The WTO administers the Trade Policy Review Mechanism,which is designed to contribute to greater transparency and understanding of the trade policies and practices of WTO Members,to their improved adherence to the rules,disciplines and commitments of the multilateral trading system,and hence to the smoother functioning of the system,审议和监督各成员方的贸易政策。世贸组织管理《WTO协议》附件3（即《贸易政策审议机制》）所列的安排，负责对各成员方国内贸易政策进行审议和监督。该审议制度是为了使各成员方对贸易政策和措施增加更大的透明度和更清楚的了解而制定的，使其保持与全球性经济政策与制度的统一性，促进各成员方坚持多边贸易体制的原则、规则，实现所作出的承诺，从而保证世贸组织的顺利运行。
5.Coherence in global economic policy-making
A Ministerial Declaration adopted at the Marrakesh Ministerial Meeting recognizes the role of trade liberalization in achieving greater coherence in global economic policy-making,For this purpose,the WTO cooperates,as appropriate,with the International Monetary Fund and with the World Bank,贸易自由化对实现全球经济决策更大的统一性发挥着重要作用，为保证全球经济决策一致性，必须与国际货币基金组织（IMF）和世界银行进行必要的合作。
Ⅳ,Structure (Main Organs)
Ministerial Conference
The Ministerial Conference is the supreme body of the WTO,composed of representatives of all Members,with the authority to carry out the functions of the WTO,take the actions necessary to this effect,and take decisions on matters under any of the Multilateral Trade Agreements if so requested by a Member,The Ministerial Conference is to meet at least once every two years,
General Council
The day to day business of the WTO is conducted by the General Council,also composed of representatives of all WTO Members,which meets on a regular basis (normally once every two months),The General Council acts on behalf of the Ministerial Conference in the periods between its meetings,and reports directly to it.
Dispute Settlement Body?
The General Council acts also as the Dispute Settlement Body (DSB),which has its own Chairman and its own rules of procedure,to discharge the functions assigned to the DSB under the Dispute Settlement Understanding.
Trade Policy Review Body
The General Council meets also as the Trade Policy Review Body,which again has its own Chairman and rules of procedure,to carry out the review of Members' trade policies and practices,as provided for in the Trade Policy Review Mechanism.
Councils
Three sectoral councils have been established for goods,services and TRIPs matters,respectively,These Councils,operating under the general guidance of the General Council,carry out the responsibilities assigned to them by their respective agreements and by the General Council; they meet as necessary to carry out their functions; and they are open to representatives of all WTO Members,They may also establish subsidiary bodies,such as committees and working parties.
Council for Trade in Goods, The Council for Trade in Goods oversees the functioning of the multilateral agreements on trade in goods,These include the General Agreement on Tariffs and Trade (GATT) and related Understandings,and twelve other agreements,as contained in Annex 1A to the WTO Agreement.
Council for Trade in Services, The Council for Trade in Services oversees the functioning of the General Agreement on Trade in Services (GATS).
Council for TRIPs, The Council for TRIPs oversees the functioning of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement).
Committees and other subsidiary bodies
Three main committees are established by the WTO Agreement,
the Committee on Trade and Development,
the Committee on Balance-of-Payments Restrictions,
the Committee on Budget,Finance and Administration,
Membership of these committees is also open to all Members of the WTO,The General Council has established two other committees reporting to it,the Committee on Trade and Environment and the Committee on Regional Trade Agreement.
Ⅴ,Decision-making
The WTO continues the practice of decision-making by consensus followed under the GATT 1947,Consensus is defined as the situation where no Member,present at a meeting where a decision is taken,formally objects to the proposed decision,However,it is recognized that there may be situations where a consensus cannot be reached,in which case the matter may be decided by voting,Voting rules are set out in the WTO Agreement.
采用合意决策的作法，即如果任何一个与会的成员方对拟通过的决议不正式提出反对，就算达成合意。 如通过合意未达成决定时，以投票决定。在部长会议和总理事会上，成员方均有一票投票权，除非另有规定，通常以多数票为准。 部长会议和总理事会拥有对世贸组织各项协议的解释权，运用解释作出的决定以成员方3/4的投票为准。 如要免除成员方义务，需部长会议以3/4的投票方式表决。
Ⅵ,Legal Framework
WTO Agreement,Marrakesh Agreement Establishing the World Trade Organization 建立世界贸易组织协定
ANNEX 1
Annex 1A,Multilateral Agreements on Trade in Goods (including GATT1994 and other multilateral agreements)
Annex 1B:GATS (the General Agreement on Trade in Service)
Annex 1C,TRIPS (the Agreement on Trade-Ralated Aspects of Intellectual Property Rights)
ANNEX 2,DSU (Understanding on rules and procedures governing the settlement of disputes)
ANNEX 3,Trade Policy Review Mechanism
ANNEX 4,Plurilateral Trade Agreements
Ⅶ,The outline of WTO agreements
Firstly,they start with broad principles reflected in GATT,GATS and TRIPS.
Then come extra agreements and annexes dealing with the special requirements of specific sectors or issues.
Finally there are the detailed and lengthy schedules (or lists) of commitments made by individual countries allowing specific foreign products or service providers access to the market.
1,Goods
Trade negotiations all began with trade in goods from 1947 to 1994,GATT was the forum for negotiating lower customs duty rates and other trade barriers; the text of GATT spelt out important rules,particularly nondiscrimination,
Since 1995,the updated GATT has become the WTO's umbrella agreement for trade in goods,It has annexes dealing with specific sectors such as agriculture and textiles,and with specific issues such as state trading product standards,subsidies and actions taken against dumping.
2,Services
Banks,insurance firms,telecommunications companies,tour operators,hotel chains and transport companies looking to do business abroad can now enjoy the same principles as free and fair trade that were originally only applied to trade in goods,These principles appear in the new General Agreement on Trade in Services (GATS),
WTO members have also made individual commitments under GATS stating which of their services sectors they are willing to open to foreign competitors,and how open those markets are.
3,Intellectual property
The WTO's intellectual property agreement amounts to rules for trade and investment in ideas and creativity,The rules state how copyrights,trademarks,geographical indication used to identify products,industrial designs,integrated circuit layout-designs and undisclosed information such as trade secrets should be protected when trade is involved.
4,Dispute settlement
The Understanding on Rules and Procedures Governing the Settlement of Disputes ( the Dispute Settlement Understanding or DSU ) carries forward and improves on the dispute settlement procedures of GATT 1947,Most importantly,the DSU establishes a unified system for settling disputes that arise under the WTO Agreement and its annexes ( other than the annex establishing the Trade Policy Review Mechanism).
5.,Policy review
Annex 3 of the WTO agreement establishes a Trade PoLicy Review Mechanism (TPRM) whose purpose is to improve transparency,to create a greater understanding of the policies that countries are adopting,and to assess their impact,Many members also see the review as constructive feedback on their policies.
Section 3,Major Principles of WTO
关于WTO基本原则的说明：
1、所谓的WTO原则，不是某一个WTO文件中规定的，而是学者的总结；
2、我国学者的观点也不完全一致，一般包括：非歧视原则、透明度原则、逐渐削减关税原则、一般取消数量限制原则、自由贸易原则、公平竞争原则、互惠原则等等。
3、本节以WTO网站自己公布的原则为讲解内容。
1,Trade without discrimination,Most-favoured-nation (MFN) and National treatment
2,Freer trade,gradually,through negotiation
3,Predictability,through binding and transparency
4,Promoting fair competition
5,Encouraging development and economic reform
1.Trade without discrimination
A country should not discriminate between its trading partners (giving them equally,most-favoured-nation” or MFN status); and it should not discriminate between its own and foreign products,services or nationals (giving them,national treatment”).
A,Most-favoured-nation treatment (MFN), treating other people equally
a,Meaning,Under the WTO agreements,countries cannot normally discriminate between their trading partners,Grant someone a special favour (such as a lower customs duty rate for one of their products) and you have to do the same for all other WTO members.
This sounds like a contradiction,It suggests special treatment,but in the WTO it actually means non-discrimination — treating virtually everyone equally,
b,Importance,It is one of the bedrock principles of the WTO,
It is the first article of GATT,which governs trade in goods,
MFN is also a priority in GATS (Article 2) and TRIPS (Article 4),although in each agreement the principle is handled slightly differently,
Together,those three agreements cover all three main areas of trade handled by the WTO,
c,Exceptions to MFN
Regional Economic Organization 区域性经济组织and Customs Union关税同盟①
Countries can set up a free trade agreement that applies only to goods traded within the group —? discriminating against goods from outside.
Generalized System of Preferences 普惠制
The Generalized System of Preferences or "GSP" is a system that grants products made in developing countries lower tariff rates than those normally enjoyed under Most-Favoured-Nation status as a special measure granted to developing countries in order to increase their export earnings and promote their development.
The GSP is defined in the Decision on,Generalized System of Preferences” of June 1971,and is a measure taken based on the Decision on,Differential and More Favourable Treatment,Reciprocity,and Fuller Participation of Developing Countries“《关于有差别与更优惠待遇、对等与发展中国家充分参与的决定,or the,Enabling Clause”（授权条款）。
The GSP has the following characteristics:
First,preferential tariffs may be applied not only to countries with special historical and political relationships4 (i.e,the British Commonwealth),but to developing countries more generally (thus the system is described as "generalized").
Second,the beneficiaries are limited to developing countries.
Third,it is a benefit unilaterally granted by developed countries to developing countries,
But the agreements only permit these exceptions under strict conditions,In general,MFN means that every time a country lowers a trade barrier or opens up a market,it has to do so for the same goods or services from all its trading partners — whether rich or poor,weak or strong.
①A Customs Union means that goods can move freely as within one customs territory and each party applies the same external tariff for imports from third countries and the same commercial policy,
B,National treatment,Treating foreigners and locals equally
a,Meaning
National treatment (GATT Article III) means imported and locally-produced goods should be treated equally — at least after the foreign goods have entered the market,The same should apply to foreign and domestic services,and to foreign and local trademarks,copyrights and patents,
National treatment only applies once a product,service or item of intellectual property has entered the market,Therefore,charging customs duty on an import is not a violation of national treatment even if locally-produced products are not charged an equivalent tax,
b,Importance
National treatment stands along side most-favored-nation treatment as one of the central principles of the WTO Agreement,
This principle of,national treatment” is also found in all the three main WTO agreements (Article 3 of GATT,Article 17 of GATS and Article 3 of TRIPS),although once again the principle is handled slightly differently in each of these.
c,Exceptions to National Treatment
⑴Government Procurement
GATT Article III:8(a) permits governments to purchase domestic products preferentially,making government procurement one of the exceptions to the national treatment rule,
This exception is permitted because the contracting parties recognized the role of government procurement in national policy,For example,there may be a security need to develop and purchase products domestically,or government procurement may,as is often the case,be used as a policy tool to promote smaller business,local industry,or advanced technologies,
While the GATT made government procurement an exception to the national treatment rule,the Plurilateral Agreement on Government Procurement resulting from the Tokyo Round mandates signatories to offer national treatment in their government procurement,However,the contracting parties to the WTO are under no obligation to join the Agreement on Government Procurement,In fact,it has mostly been developed countries which have joined the Agreement,Therefore,in the context of government procurement,the national treatment rule applies only between those who have signed the Agreement,For others,the traditional exception is still in force (see Chapter 8 on government procurement),
⑵Domestic Subsidies
GATT Article III:8(b) allows for the payment of subsidies exclusively to domestic producers as an exception to the national treatment rule,under the condition that it is not in violation of other provisions in Article III and the Agreement on Subsidies and Countervailing Measures,The reason for this exception is that subsidies were recognized to be an effective policy tool,and is recognized to be basically within the latitude of industrial policy authorities,However,because subsidies may have a negative effect on trade,the Agreement on Subsidies and Countervailing Measures imposes strict disciplines on the use of subsidies (see Chapter 6 on subsidies and countervailing measures),
案例：
在20世纪90年代的美国，为了提高市场份额，国内和国外的汽油销售公司的竞争变得异常激烈。在销售量衰退和新的要求提高汽油质量的环保标准压力下，美国大型石油公司发现了阻挡进口商的良机。美国石油公司积极支持美国环保局修订《净化空气法》。在1990年法案的修改中，国会指导环境保护局规定：在美国一些重污染区，采取新的规章来提高空气质量。只有经改良的、减少有毒物排放的汽油和天然气才能在这些地区销售。环保局负责签署改良汽油和惯用油标准原则。1991年，环保局提出了对于国内和国外炼油商不同的标准，他们认为国外炼油商缺乏1990年检测的、足以证明汽油质量的真实数据，只能通过一个“法令的底线”显示他们汽油的质量。而国内炼油商可以通过3种可行方法制定“独立的底线”。 同时，美国从加拿大进口的石油也采用了“独立底线”方案。
问题：美国的做法是否符合非歧视原则?
2,Freer trade,gradually,through negotiation
Lowering trade barriers is one of the most obvious means of encouraging trade,The barriers concerned include customs duties (or tariffs) and measures such as import bans or quotas that restrict quantities selectively,From time to time other issues such as red tape and exchange rate policies have also been discussed,Since GATT’s creation in 1947-48 there have been eight rounds of trade negotiations,A ninth round,under the Doha Development Agenda,is now underway,At first these focused on lowering tariffs (customs duties) on imported goods,As a result of the negotiations,by the mid-1990s industrial countries’ tariff rates on industrial goods had fallen steadily to less than 4%,But by the 1980s,the negotiations had expanded to cover non-tariff barriers on goods,and to the new areas such as services and intellectual property.
Opening markets can be beneficial,but it also requires adjustment,The WTO agreements allow countries to introduce changes gradually,through,progressive liberalization”,Developing countries are usually given longer to fulfill their obligations.
3,Predictability,through binding and transparency
Sometimes,promising not to raise a trade barrier can be as important as lowering one,because the promise gives businesses a clearer view of their future opportunities,With stability and predictability,investment is encouraged,jobs are created and consumers can fully enjoy the benefits of competition — choice and lower prices,The multilateral trading system is an attempt by governments to make the business environment stable and predictable.
In the WTO,when countries agree to open their markets for goods or services,they,bind” their commitments,For goods,these bindings amount to ceilings on customs tariff rates,Sometimes countries tax imports at rates that are lower than the bound rates,Frequently this is the case in developing countries,In developed countries the rates actually charged and the bound rates tend to be the same.
A country can change its bindings,but only after negotiating with its trading partners,which could mean compensating them for loss of trade,One of the achievements of the Uruguay Round of multilateral trade talks was to increase the amount of trade under binding commitments,In agriculture,100% of products now have bound tariffs,The result of all this,a substantially higher degree of market security for traders and investors.
The system tries to improve predictability and stability in other ways as well,One way is to discourage the use of quotas and other measures used to set limits on quantities of imports — administering quotas can lead to more red-tape and accusations of unfair play,Another is to make countries’ trade rules as clear and public (“transparent”) as possible,Many WTO agreements require governments to disclose their policies and practices publicly within the country or by notifying the WTO,The regular surveillance of national trade policies through the Trade Policy Review Mechanism provides a further means of encouraging transparency both domestically and at the multilateral level.
4,Promoting fair competition
The WTO is sometimes described as a,free trade” institution,but that is not entirely accurate,The system does allow tariffs and,in limited circumstances,other forms of protection,More accurately,it is a system of rules dedicated to open,fair and undistorted competition.
The rules on non-discrimination — MFN and national treatment — are designed to secure fair conditions of trade,So too are those on dumping (exporting at below cost to gain market share) and subsidies,The issues are complex,and the rules try to establish what is fair or unfair,and how governments can respond,in particular by charging additional import duties calculated to compensate for damage caused by unfair trade.
Many of the other WTO agreements aim to support fair competition,in agriculture,intellectual property,services,for example,The agreement on government procurement (a,plurilateral” agreement because it is signed by only a few WTO members) extends competition rules to purchases by thousands of government entities in many countries,And so on.
5,Encouraging development and economic reform
The WTO system contributes to development,On the other hand,developing countries need flexibility in the time they take to implement the system’s agreements,And the agreements themselves inherit the earlier provisions of GATT that allow for special assistance and trade concessions for developing countries.
Over three quarters of WTO members are developing countries and countries in transition to market economies,During the seven and a half years of the Uruguay Round,over 60 of these countries implemented trade liberalization programmes autonomously,At the same time,developing countries and transition economies were much more active and influential in the Uruguay Round negotiations than in any previous round,and they are even more so in the current Doha Development Agenda.
At the end of the Uruguay Round,developing countries were prepared to take on most of the obligations that are required of developed countries,But the agreements did give them transition periods to adjust to the more unfamiliar and,perhaps,difficult WTO provisions — particularly so for the poorest,“least-developed” countries,A ministerial decision adopted at the end of the round says better-off countries should accelerate implementing market access commitments on goods exported by the least-developed countries,and it seeks increased technical assistance for them,More recently,developed countries have started to allow duty-free and quota-free imports for almost all products from least-developed countries,On all of this,the WTO and its members are still going through a learning process,The current Doha Development Agenda includes developing countries’ concerns about the difficulties they face in implementing the Uruguay Round agreements,
Section 4,GATT Exceptions
Political and economic realities made GATT provide some exceptions from its free trade policies.
1,The general exceptions (GATT Article 20)
In order to protect certain essential public policy objectives,the GATT provisions allow a WTO member state to avoid its GATT obligations,take measures contrary to GATT,
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail,or a disguised restriction on international trade,nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures,
(a) necessary to protect public morals;
(b) necessary to protect human,animal or plant life or health;
(c) relating to the importation or exportation of gold or silver;
(d) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement,including those relating to customs enforcement,the enforcement of monopolies operated under paragraph 4 of Article II and Article XVII,the protection of patents,trade marks and copyrights,and the prevention of deceptive practices;
(e) relating to the products of prison labour;
(f) imposed for the protection of national treasures of artistic,historic or archaeological value;
(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption;
(h) undertaken in pursuance of obligations under any intergovernmental commodity agreement which conforms to criteria submitted to the CONTRACTING PARTIES and not disapproved by them or which is itself so submitted and not so disapproved;
(i) involving restrictions on exports of domestic materials necessary to ensure essential quantities of such materials to a domestic processing industry during periods when the domestic price of such materials is held below the world price as part of a governmental stabilization plan; Provided that such restrictions shall not operate to increase the exports of or the protection afforded to such domestic industry,and shall not depart from the provisions of this Agreement relating to non-discrimination;
(j) essential to the acquisition or distribution of products in general or local short supply; Provided that any such measures shall be consistent with the principle that all contracting parties are entitled to an equitable share of the international supply of such products,and that any such measures,which are inconsistent with the other provisions of this Agreement shall be discontinued as soon as the, conditions giving rise to them have ceased to exist,
2,The security exceptions (GATT Article 21)
The security exceptions allow member state to avoid any obligations they may have under the GATT that are contrary to their "essential security interests " or that conflict with their duties "under the United Nations Charter for the maintenance of international peace and security",Most of the exceptions listed in both Articles XX and XXI may be invoked only if they are "necessary" or "essential" to a member state's goals.
,Nothing in this Agreement shall be construed,
(a) to require any contracting party to furnish any information the disclosure of which it considers contrary to its essential security interests; or
(b) to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests
(i) relating to fissionable materials or the materials from which they are derived;
(ii) relating to the traffic in arms,ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;
(iii) taken in time of war or other emergency in international relations; or
(c) to prevent any contracting party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security,
Section 5,Anti-dumping
Ⅰ,Introduction
A.Dumping in the GATT/WTO?
a,What is dumping?
Dumping is,in general,a situation of international price discrimination,where the price of a product when sold in the importing country is less than the price of that product in the market of the exporting country,Thus,in the simplest of cases,one identifies dumping simply by comparing prices in two markets,However,the situation is rarely,if ever,that simple,and in most cases it is necessary to undertake a series of complex analytical steps in order to determine the appropriate price in the market of the exporting country (known as the,normal value”) and the appropriate price in the market of the importing country (known as the,export price”) so as to be able to undertake an appropriate comparison.
b,Article?VI of GATT and the Anti-Dumping Agreement
The GATT?1994 sets forth a number of basic principles applicable in trade between Members of the WTO,including the,most favoured nation” principle,It also requires that imported products not be subject to internal taxes or other changes in excess of those imposed on domestic goods,and that imported goods in other respects be accorded treatment no less favourable than domestic goods under domestic laws and regulations,and establishes rules regarding quantitative restrictions,fees and formalities related to importation,and customs valuation,Members of the WTO also agreed to the establishment of schedules of bound tariff rates,Article?VI of GATT?1994,on the other hand,explicitly authorizes the imposition of a specific anti-dumping duty on imports from a particular source,in excess of bound rates,in cases where dumping causes or threatens injury to a domestic industry,or materially retards the establishment of a domestic industry.
The Agreement on Implementation of Article?VI of GATT?1994,commonly known as the Anti-Dumping Agreement,provides further elaboration on the basic principles set forth in Article?VI itself,to govern the investigation,determination,and application,of anti-dumping duties.
c,Previous Agreements
As tariff rates were lowered over time following the original GATT agreement,anti-dumping duties were increasingly imposed,and the inadequacy of Article?VI to govern their imposition became ever more apparent,For instance,Article?VI requires a determination of material injury,but does not contain any guidance as to criteria for determining whether such injury exists,and addresses the methodology for establishing the existence of dumping in only the most general fashion,Consequently,contracting parties to GATT negotiated more detailed Codes relating to anti-dumping,The first such Code,the Agreement on Anti-Dumping Practices,entered into force in?1967 as a result of the Kennedy Round,However,the United States never signed the Kennedy Round Code,and as a result the Code had little practical significance.
The Tokyo Round Code,which entered into force in?1980,represented a quantum leap forward,Substantively,it provided enormously more guidance about the determination of dumping and of injury than did Article?VI,Equally important,it set out in substantial detail certain procedural and due process requirements that must be fulfilled in the conduct of investigations,Nevertheless,the Code still represented no more than a general framework for countries to follow in conducting investigations and imposing duties,It was also marked by ambiguities on numerous controversial points,and was limited by the fact that only the 27?Parties to the Code were bound by its requirements.
B,The UR Agreement
a,Basic principles
Dumping is defined in the Agreement on Implementation of Article?VI of the GATT?1994 (The Anti-Dumping Agreement) as the introduction of a product into the commerce of another country at less than its normal value,Under Article?VI of GATT?1994,and the Anti-Dumping Agreement,WTO Members can impose anti-dumping measures,if,after investigation in accordance with the Agreement,a determination is made (a)?that dumping is occurring,(b)?that the domestic industry producing the like product in the importing country is suffering material injury,and (c)?that there is a causal link between the two,In addition to substantive rules governing the determination of dumping,injury,and causal link,the Agreement sets forth detailed procedural rules for the initiation and conduct of investigations,the imposition of measures,and the duration and review of measures.
b,Committee on Anti-Dumping Practices
The Committee,which meets at least twice a year,provides Members of the WTO the opportunity to discuss any matters relating to the Anti-Dumping Agreement (Article?16),The Committee has undertaken the review of national legislations notified to the WTO,This offers the opportunity to raise questions concerning the operation of national anti-dumping laws and regulations,and also questions concerning the consistency of national practice with the Anti-Dumping Agreement,The Committee also reviews notifications of anti-dumping actions taken by Members,providing the opportunity to discuss issues raised regarding particular cases.
The Committee has created a separate body,the Ad Hoc Group on Implementation,which is open to all Members of the WTO,and which is expected to focus on technical issues of implementation,that is,the,how to” questions that frequently arise in the administration of anti-dumping laws.
c,Dispute settlement
Disputes in the anti-dumping area are subject to binding dispute settlement before the Dispute Settlement Body of the WTO,in accordance with the provisions of the Dispute Settlement Understanding (“DSU”) (Article?17),Members may challenge the imposition of anti-dumping measures,in some cases may challenge the imposition of preliminary anti-dumping measures,and can raise all issues of compliance with the requirements of the Agreement,before a panel established under the DSU,In disputes under the Anti-Dumping Agreement,a special standard of review is applicable to a panel's review of the determination of the national authorities imposing the measure,The standard provides for a certain amount of deference to national authorities in their establishment of facts and interpretation of law,and is intended to prevent dispute settlement panels from making decisions based purely on their own views,The standard of review is only for anti-dumping disputes,and a Ministerial Decision provides that it shall be reviewed after three years to determine whether it is capable of general application.
d,Notifications
All WTO Members are required to bring their anti-dumping legislation into conformity with the Anti-Dumping Agreement,and to notify that legislation to the Committee on Anti-Dumping Practices,While the Committee does not,approve” or,disapprove” any Members' legislation,the legislations are reviewed in the Committee,with questions posed by Members,and discussions about the consistency of a particular Member's implementation in national legislation of the requirements of the Agreement.
In addition,Members are required to notify the Committee twice a year about all anti-dumping investigations,measures,and actions taken,The Committee has adopted a standard format for these notifications,which are subject to review in the Committee.
Finally,Members are required to promptly notify the Committee of preliminary and final anti-dumping actions taken,including in their notification certain minimum information required by Guidelines agreed to by the Committee,These notifications are also subject to review in the Committee,
Ⅱ,Determination of dumping
A,Determination of normal value
a,General rule
The normal value is generally the price of the product at issue,in the ordinary course of trade,when destined for consumption in the exporting country market,In certain circumstances,for example when there are no sales in the domestic market,it may not be possible to determine normal value on this basis,The Agreement provides alternative methods for the determination of normal value in such cases.
b,Sales in the ordinary course of trade
One of the most complicated questions in anti-dumping investigations is the determination whether sales in the exporting country market are made in the,ordinary course of trade” or not,One of the bases on which countries may determine that sales are not made in the ordinary course of trade is if sales in the domestic market of the exporter are made below cost,The Agreement defines the specific circumstances in which home market sales at prices below the cost of production may be considered as not made in theordinary course of trade",and thus may be disregarded in the determination of normal value (Article?2),Those sales must be made at prices that are below per unit fixed and variable costs plus administrative,selling and general costs,they must be made within an extended period of time (normally one year,but in no case less than six months),and they must be made in substantial quantities,Sales are made in substantial quantities when (a)? the weighted average selling price is below the weighted average cost; of (b)? 20% of the sales by volume were below cost,Finally,sales made below costs may only be disregarded in the determination of normal value where they do not allow for recovery of costs within a reasonable period of time,If sales are below cost when made but are above the weighted average cost over the period of the investigation,the Agreement provides that they allow for recovery of costs within a reasonable period of time.
c,Insufficient volume of sales
If there are sales below cost that meet the criteria set out in the Agreement,they can simply be ignored in the calculation of normal value,and normal value will be determined based on the remaining sales,However,exclusion of these below-cost sales may result in a level of sales insufficient to determine normal value based on home market prices,It is obvious that,in the case where there are no sales in the exporting country of the product under investigation,it is not possible to base normal value on such sales,and the Agreement recognizes this,However,it is also possible that,while there are some sales in the exporting country's market,the level of such sales is so low that its significance is questionable,Thus,the Agreement recognizes that in some cases sales in the home market may be so low in volume that they do not permit a proper comparison of home market and export prices,It provides that the level of home market sales is sufficient if home market sales constitute 5 per cent or more of the export sales in the country conducting the investigation,provided that a lower ratio,should” be accepted if the volume of domestic sales nevertheless is,of sufficient magnitude” to provide for a fair comparison.
d,Alternative bases for calculating normal value
Two alternatives are provided for the determination of normal value if sales in the exporting country market are not an appropriate basis,These are (a)?the price at which the product is sold to a third country; and
(b)?the,constructed value” of the product,which is calculated on the basis of the cost of production,plus selling,general,and administrative expenses,and profits,The Agreement contains detailed and specific rules for the determination of a constructed value,governing the information to be used in determining the amounts for costs,expenses,and profits,the allocation of these elements of constructed value to the specific product in question,and adjustments for particular situations such as start-up costs and non-recurring cost items.
e,Constructed normal value
The determination of normal value based on cost of production,selling,general and administrative expenses,and profits is referred to as the,constructed normal value” The rules for determining whether sales are made below cost also apply to performing a constructed normal value calculation,The principal difference is the inclusion of a,reasonable amount for profits” in the constructed value.
f,Third country price as normal value
The other alternative method for determining normal value is to look at the comparable price of the like product when exported to an appropriate third country,provided that price is representative,The Agreement does not specify any criteria for determining what third country is appropriate.
g,Indirect exports
In the situation where products are not imported directly from the country of manufacture,but are exported from an intermediate country,the Agreement provides that the normal value shall be determined on the basis of sales in the market of the exporting country,However,the Agreement recognizes that this may result in an inappropriate or impossible comparison,for instance if the product is not produced in the exporting country,there is no comparable price for the product in the exporting country,or the product is merely transshipped through the exporting country,In such cases,the normal value may be determined on the basis of the price of the product in the country of origin,and not the price in the exporting country.?
h,Non-market economies
In the particular situation of economies where the government has a complete or substantially complete monopoly of its trade and where all domestic prices are fixed by the State,GATT?1994 and the Agreement recognize that a strict comparison with home market prices may not be appropriate,Importing countries have thus exercised significant discretion in the calculation of normal value of products exported from non-market economies,
B,Determination of export price
a.General rule
The export price will normally be based on the transaction price at which the foreign producer sells the product to an importer in the importing country,However,as is the case with normal value,the Agreement recognizes that this transaction price may not be appropriate for purposes of comparison.
b,Exceptions
There may be no export price for a given product,for instance,if the export transaction is an internal transfer,or if the product is exchanged in a barter transaction,In addition,the transaction price at which the exporter sells the product to the importing country may be unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party,In such a case,the transaction price may not be an arms-length market price,but may be manipulated,for instance for tax purposes,The Agreement recognizes that,in such cases,an alternative method of determining an appropriate export price for comparison is needed.
c,Alternative method of calculation
The Agreement provides that in circumstances where there is no export price,or where the export price is unreliable due to an association or compensatory arrangement between the exporter and the importer or a third party,an alternative method may be used to determine the export price,this results in a,constructed export price”,and is calculated on the basis of the price at which the imported products are first resold in an independent buyer,If the imported product is not resold to an independent buyer,or is not resold as imported,the authorities may determine a reasonable basis on which to calculate the export price,
C,Fair comparison of normal value and export price
a,Basic requirements
The Agreement requires that a fair comparison of the export price and the normal value be made,The basic requirements for a fair comparison are that the prices being compared are those of sales made at the same level of trade,normally the ex-factory level,and of sales made at as nearly as possible the same time,
As part of the Agreement's requirements regarding transparency and participation,the investigating authorities are required to inform parties of the information needed to ensure a fair comparison,for instance,information regarding adjustments,allowances,and currency conversion,and may not impose an,unreasonable burden of proof” on parties.
b,Allowance
To ensure that prices are comparable,the Agreement requires that adjustments be made to either the normal value,or the export price,or both,to account for differences in the product,or in the circumstances of sale,in the importing and exporting markets,These allowances must be made for differences in conditions and terms of sale,taxation,quantities,physical characteristics,and other differences demonstrated to affect price comparability.?
c,Adjustments in case of constructed export price
The Agreement also provides specific rules on the adjustment to be made if the comparison of normal value is to a constructed export price,In those circumstances,allowance must be made for costs,including duties and taxes,incurred between the importation of the product and the resale to the first independent purchaser,as well as for profits accruing,If price comparability has been affected,the Agreement requires either that the normal value be established at a level of trade equivalent to that of the constructed export price,which is likely to require an adjustment,or allowance must be made for differences in conditions and terms of sale,taxation,quantities,physical characteristics,and other matters demonstrated to affect price comparability.
d,Conversion of currency
Where the comparison of normal value and export price requires conversion of currency,the Agreement provides specific rules governing that conversion (Article?2.4.1),Thus,the exchange rate used should be that in effect on the date of sale (date of contract,invoice,purchase order or order confirmation,whichever establishes material terms of sale),If a forward currency sale is directly linked to export sale,the exchange rate of forward currency sale must be used,Moreover,the Agreement requires that exchange rate fluctuations be ignored,and that exporters be allowed at least 60?days to adjust export prices for sustained exchange rate movements.
D,Calculation of dumping margins and duty assessment
a,Calculation of dumping margins
The Agreement contains rules governing the calculation of dumping margins,In the usual case,the Agreement requires either the comparison of the weighted average normal value to the weighted average of all comparable export prices,or a transaction-to-transaction comparison of normal value and export price (Article?2.4.2),A different basis of comparison can be used if there is,targeted dumping”,that is,if a pattern exists of export prices differing significantly among different purchasers,regions or time periods,In this situation,if the investigating authorities provide an explanation as to why such differences cannot be taken into account in weighted average-to-weighted average or transaction-to-transaction comparisons,the weighted average normal value can be compared to the export prices on individual transactions.
b,Refund or reimbursement
The Agreement requires Members to collect duties on a non-discriminatory basis on imports from all sources found to be dumped and causing injury,except with respect to sources from which a price undertaking has been accepted,Moreover,the amount of the duty collected may not exceed the dumping margin,although it may be a lesser amount,The Agreement specifies two mechanisms to ensure that excessive duties are not collected,The choice of mechanism depends on the nature of the duty collection process,If a Member allows importation and collects an estimated anti-dumping duty,and only later calculates the specific amount of anti-dumping duty to be paid,the Agreement requires that the final determination of the amount must take place as soon as possible,upon request for a final assessment,In both cases,the Agreement provides that the final decision of the authorities must normally be made within 12? months of a request for refund or final assessment,and that any refund should be made within 90?days.
c,Individual exporter dumping margins
The Agreement requires that,when anti-dumping duties are imposed,a dumping margin be calculated for each exporter,However,it is recognized that this may not be possible in all cases,and thus the Agreement allows investigating authorities to limit the number of exporters,importers,or products individually considered,and impose an anti-dumping duty on uninvestigated sources on the basis of the weighted average dumping margin actually established for the exporters or producers actually examined,The investigating authorities are precluded from including in the calculation of that weighted average dumping margin any dumping margins that are de minimis,zero,or based on the facts available rather than a full investigation,and must calculate an individual margin for any exporter or producer who provides the necessary information during the course of the investigation.
d,New shippers
The Agreement makes provision for the assessment of anti-dumping duties on exports from producers or exporters who were not sources of imports considered during the period of investigation,In this circumstance,the investigating authorities are required to conduct an expedited review to determine a specific margin of dumping attributable to the exports of such a,new shipper”,While that review is in progress,the authorities may request guarantees or withhold appraisement on imports,but may not actually collect anti-dumping duties on those imports.
Ⅲ,Determination of injury and casual link
A,Like product
a.Definition (Article 2.6)
An important decision must be made early in each investigation to determine the domestic,like product”,Like product is defined in the Agreement as,a product which is identical,i.e,alike in all respects to the product under consideration or,in the absence of such a product,another product which,although not alike in all respects,has characteristics closely resembling those of the product under consideration”,The determination involves first examining the imported product or products that are alleged to be dumped,and then establishing what domestically produced product or products are the appropriate,like product”,The decision regarding the like product is important because it is the basis of determining which companies constitute the domestic industry,and that determination in turn governs the scope of the investigation and determination of injury and causal link.
B,Domestic industry
a,Definition (Article 4)
The Agreement defines the term,domestic industry” to mean,the domestic producers as a whole of the like products or those of them whose collective output of the products constitutes a major proportion of the total domestic production of those products”.
b,Related domestic producers
The Agreement recognizes that in certain circumstances,it may not be appropriate to include all producers of the like product in the domestic industry,Thus,Members are permitted to exclude from the domestic industry producers related to the exporters or importers under investigation,and producers who are themselves importers of the allegedly dumped product,The Agreement provides that a producer can be deemed,related” to an exporter or importer of the allegedly dumped product if there is a relationship of control between them,and if there is reason to believe that the relationship causes the domestic producer to behave differently from non-related producers.
c,Regional domestic industry
The Agreement contains special rules that allow in exceptional circumstances,consideration of injury to producers comprising a,regional industry”,A regional industry may be found to exist in a separate competitive market if producers within that market sell all or almost all of their production of the like product in that market,and demand for the like product in that market is not to any substantial degree supplied by producers of the like product located outside that market,If this is the case,investigating authorities may find that injury exists,even if a major proportion of the entire domestic industry,including producers outside the region,is not materially injured,However,a finding of injury to the regional industry is only allowed if (1) there is a concentration of dumped imports into the market served by the regional industry,and (2) dumped imports are causing injury to the producers of all or almost all of the production within that market.
d,Imposition of duties in regional industry cases
If an affirmative determination is based on injury to a regional industry,the Agreement requires investigating authorities to limit the duties to products consigned for final consumption in the region in question,if constitutionally possible,If the Constitutional law of a Member precludes the collection of duties on imports to the region,the investigating authorities may levy duties on all imports of the product,without limitation,if anti-dumping duties cannot be limited to the imports from specific producers supplying the region,However,before imposing those duties,the investigating authorities must offer exporters an opportunity to cease dumping in the region or enter a price undertaking.
C．Injury
a,Types of injury
The Agreement provides that,in order to impose anti-dumping measures,the investigating authorities of the importing Member must make a determination of injury,The Agreement defines the term,injury” to mean either (i) material injury to a domestic industry,(ii) threat of material injury to a domestic industry,or (iii) material retardation of the establishment of a domestic industry,but is silent on the evaluation of material retardation of the establishment of a domestic industry.
b,Basic requirements for determination of material injury
The Agreement does not define the notion of,material”,However,it does require that a determination of injury must be based on positive evidence and involve an objective examination of (i) the volume of dumped imports and the effect of the dumped imports on prices in the domestic market for like products,and (ii) the consequent impact of the dumped imports on domestic producers of the like product,Article 3 contains some specific additional factors to be considered in the evaluation of these two basic elements,but does not provide detailed guidance on how these factors are to be evaluated or weighed,or on how the determination of causal link is to be made.
c,Basic requirements for determination of threat of material injury
The Agreement sets forth factors to be considered in the evaluation of threat of material injury,These include the rate of increase of dumped imports,the capacity of the exporter(s),the likely effects of prices of dumped imports,and inventories,There is no further elaboration on these factors,or on how they are to be evaluated,The Agreement does,however,specify that a determination of threat of material injury shall be based on facts,and not merely on allegation,conjecture,or remote possibility,and moreover,that the change in circumstances which would create a situation where dumped imports caused material injury must be clearly foreseen and imminent,
D,Elements of analysis
a.Consideration of volume effects of dumped imports
The Agreement requires investigating authorities to consider whether there has been a significant increase in the dumped imports,either in absolute terms or relative to production or consumption in the domestic industry,Consideration of price effects of dumped imports
b,Consideration of price effects of dumped imports
In addition,the Agreement requires investigating authorities to consider whether there has been significant price undercutting by the dumped imports as compared with the price of a like product of the importing Member,Investigating authorities are also required to consider whether the effect of dumped imports is,otherwise” to depress prices to a significant degree,or to prevent price increases,which otherwise would have occurred,to a significant degree.
c,Evaluation of volume and price effects of dumped imports
The Agreement provides that no one or several of these factors can necessarily give decisive guidance,It does not specify how the investigating authorities are to evaluate the volume and price effects of dumped imports,merely that consideration of these effects is required,Thus,investigating authorities have to develop analytical methods for undertaking the consideration of these factors,Moreover,since no single factor or combination of factors will necessarily result in either an affirmative or negative determination,in each case investigating authorities have to evaluate which factors are relevant,and which are important,in light of the circumstances of the particular case at issue.
d,Examination of impact of dumped imports on the domestic industry
The Agreement provides that,in examining the impact of dumped imports on the domestic industry,the authorities are to evaluate all relevant economic factors bearing upon the state of the domestic industry,The Agreement lists a number of factors which must be considered,including actual or potential declines in sales,profits,output,market share,productivity,return on investments,utilization of capacity,actual or potential effects on cash flow,inventories,employment,wages,growth,ability to raise capital or investments,and the magnitude of the margin of dumping,However,the list is not exhaustive,and other factors may be deemed relevant,In addition,the Agreement again specifies that no single factor or combination of factors will necessarily lead to either an affirmative or negative determination.
e,Demonstration of causal link
The Agreement requires a demonstration that there is a causal relationship between the dumped imports and the injury to the domestic industry,This demonstration must be based on an examination of all relevant evidence,The Agreement does not specify particular factors or give guidance in how relevant evidence is to be evaluated,Article 3.5 does require,however,that known factors other than dumped imports which may be causing injury must be examined,gives examples of factors (such as changes in the pattern of demand,and developments in technology) which may be relevant,and specifies that injury caused by such,other factors” must not be attributed to dumped imports,Thus,the investigating authorities must develop analytical methods for determining what evidence is or may be relevant in a particular case,and for evaluating that evidence,taking account of other factors which may be causing injury.
f,Cumulative analysis
Cumulative analysis refers to the consideration of dumped imports from more than one country on a combined basis in assessing whether dumped imports cause injury to the domestic industry,Obviously,since such analysis will increase the volume of imports whose impact is being considered,there is a greater possibility of an affirmative determination in a case involving cumulative analysis,The practice of cumulative analysis was the subject of much controversy under the Tokyo Round Code,and in the negotiations for the Agreement,Article 3.3 of the Agreement establishes the conditions in which a cumulative evaluation of the effects of dumped imports from more than one country may be undertaken,The authorities must determine that the margin of dumping from each country is not de minimis,that the volume of imports from each country is not negligible,and that a cumulative assessment is appropriate in light of the conditions of competition among the imports and between the imports and the domestic like product,De minimis dumping margins and negligible import volumes are defined in the Agreement.
Ⅳ,Procedural requirements
A,Investigation
a,Initiation
Agreement Article 5 of the Agreement establishes the requirements for the initiation of investigations,The Agreement specifies that investigations should generally be initiated on the basis of written request submitted,by or on behalf of” a domestic industry,This,standing” requirement includes numerical limits for determining whether there is sufficient support by domestic producers to conclude that the request is made by or on behalf of the domestic industry,and thereby warrants initiation,The Agreement establishes requirements for evidence of dumping,injury,and causality,as well as other information regarding the product,industry,importers,exporters,and other matters,in written applications for anti-dumping relief,and specifies that,in special circumstances when authorities initiate without a written application from a domestic industry,they shall proceed only if they have sufficient evidence of dumping,injury,and causality,In order to ensure that investigations without merit are not continued,potentially disrupting legitimate trade,Article 5.8 provides for immediate termination of investigations in the event the volume of imports is negligible or the margin of dumping is de minimis,and establishes numeric thresholds for these determinations,In order to minimize the trade-disruptive effect of investigations,Article 5.10 specifies that investigations should be completed within one year,and in no case more than 18 months,after initiation.
b,Conduct
Article 6 of the Agreement sets forth detailed rules on the process of investigation,including the collection of evidence and the use of sampling techniques,It requires authorities to guarantee the confidentiality of sensitive information and verify the information on which determinations are based,In addition,to ensure the transparency of proceedings,authorities are required to disclose the information on which determinations are to be based to interested parties and provide them with adequate opportunity to comment,The Agreement establishes the rights of parties to participate in the investigation,including the right to meet with parties with adverse interests,for instance in a public hearing,Further guidance on the conduct of investigations is contained in two Annexes to the Agreement,which set forth rules for the on-the-spot investigations to verify information obtained from foreign parties,as well as rules for the use of best information available in the event a party refuses access to,or does not provide,requested information,or significantly impedes the investigation.
B,Provisional measures and price understandings
a,Imposition of provisional measures
Article 7 of the Agreement provides rules relating to the imposition of provisional measures,These include the requirement that authorities make a preliminary affirmative determination of dumping,injury,and causality before applying provisional measures,and the requirement that no provisional measures may be applied sooner than 60 days after initiation of an investigation,Provisional measures may take the form of a provisional duty or,preferably,a security by cash deposit or bond equal to the amount of the preliminarily determined margin of dumping,The Agreement also contains time limits for the imposition of provisional measures— generally four months,with a possible extension to six months at the request of exporters,If a Member,in its administration of anti-dumping duties,imposes duties lower than the margin of dumping when these are sufficient to remove injury,the period of provisional measures is generally six months,with a possible extension to nine months at the request of exporters.
b,Price undertakings
Article 8 of the Agreement contains rules on the offering and acceptance of price undertakings,in lieu of the imposition of anti-dumping duties,It establishes the principle that undertakings between any exporter and the importing Member,to revise prices,or cease exports at dumped prices,may be entered into to settle an investigation,but only after a preliminary affirmative determination of dumping,injury and causality has been made,It also establishes that undertakings are voluntary on the part of both exporters and investigating authorities,In addition,an exporter may request that the investigation be continued after an undertaking has been accepted,and if a final determination of no dumping,no injury,or no causality results,the undertaking shall automatically lapse.
C,Collection of duties
a,Imposition and collection of duties
Article 9 of the Agreement establishes the general principle that imposition of anti-dumping duties is optional,even if all the requirements for imposition have been met,It also states the desirability of application of a,lesser duty” rule,Under a lesser duty rule,authorities impose duties at a level lower than the margin of dumping if this level is adequate to remove injury,In addition,the Agreement contains rules intended to ensure that duties in excess of the dumping margin are not collected,and rules for applying duties to new shippers.
b,Retroactive application of duties
The Agreement sets forth the general principle that both provisional and final anti-dumping duties may be applied only as of the date on which the determinations of dumping,injury and causality have been made,However,recognizing that injury may have occurred during the period of investigation,or that exporters may have taken actions to avoid the imposition of an anti-dumping duty,Article 10 contains rules for the retroactive imposition of dumping duties in specified circumstances,If the imposition of anti-dumping duties is based on a finding of material injury,as opposed to threat of material injury or material retardation of the establishment of a domestic industry,anti-dumping duties may be collected as of the date provisional measures were imposed,If provisional duties were collected in an amount greater than the amount of the final duty,or if the imposition of duties is based on a finding of threat of material injury or material retardation,a refund of provisional duties is required,Article 10.6 provides for retroactive application of final duties to a date not more than 90 days prior to the application of provisional measures in certain exceptional circumstances involving a history of dumping,massive dumped imports,and potential undermining of the remedial effects of the final duty,
D,Review and public notice
a,Duration,termination,and review of anti-dumping measures
Article 11 of the Agreement establishes rules for the duration of anti-dumping duties,and requirements for periodic review of the continuing need,if any,for the imposition of anti-dumping duties or price undertakings,These requirements respond to the concern raised by the practice of some countries of leaving anti-dumping duties in place indefinitely,The,sunset” requirement establishes that dumping duties shall normally terminate no later than five years after first being applied,unless a review investigation prior to that date establishes that expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury,This five year,sunset” provision also applies to price undertakings,The Agreement requires authorities to review the need for the continued imposition of a duty upon request of an interested party.
b,Public notice
Article 12 sets forth detailed requirements for public notice by investigating authorities of the initiation of investigations,preliminary and final determinations,and undertakings,The public notice must disclose non-confidential information concerning the parties,the product,the margins of dumping,the facts revealed during the investigation,and the reasons for the determinations made by the authorities,including the reasons for accepting and rejecting relevant arguments or claims made by exporters or importers,These public notice requirements are intended to increase the transparency of determinations,with the hope that this will increase the extent to which determinations are based on fact and solid reasoning,
