Trade Remedy Measures in the WTO and Regional Trade Agreements

292 Pages·2013·2.95 MB·English

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Trade Remedy Measures in the WTO
and Regional Trade Agreements

YANGYANG HUANG

Thesis submitted for the degree of Doctor of Philosophy
Law School
The University of Edinburgh
2012

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Acknowledgements

This thesis would not have been possible without the guidance of my tutors, help
from friends, and support from my family.

First of all, I would like to express my deepest gratitude to my supervisor, Dr James
Harrison, for his excellent guidance, caring and patience on my research.

I would also like to thank Professor John Usher, Dr Stephen Neff, Dr Robert Lane,
Professor Niamh Nic Shuibhne and Professor Alan Boyle for guiding my research
and academic life in the past several years. Special thanks go to Professor Joseph
McMahon and Dr Gracia Marin-Duran, who participated in my oral examinations
and provided valuable comments at the last stage.

I would like to convey thanks to my best friends, Ms Emily Morris, Dr Peng He and
Dr James Huang, who were always encouraging and taking care of me during my
study. In addition, many thanks to Mr Ray Holloway, who patiently corrected my
writing. My research would not have been possible without their helps.

Finally, I wish to express my gratitude to my family and my partner, Mr Zhixi Ding,
for their endless love, understanding and support through my good times and bad.

Table of Contents

Table of Contents 1
Abstract 5
List of Abbreviations 7
Introduction 9

1 WTO and the Regional Trade Agreements 17
1.1 Introduction 17
1.2 Multilateralism and Regionalism 17
1.3 Proliferation of RTAs and its Challenges to the Multilateral Trading System 27
1.4 WTO Rules on RTAs 32
1.5 GATT/WTO’s Surveillance on RTAs in History 36
1.6 Conclusion 39

2 Trade Remedy Rules in the GATT/WTO 43
2.1 Anti-Dumping Measures in the GATT/WTO 43
2.1.1 Introduction to Anti-Dumping Measures 43
2.1.2 Basic Rules of WTO Anti-Dumping Law 46
2.2 Subsidies and Countervailing Measures in the GATT/WTO 66
2.2.1 Introduction to the Subsidies and Countervailing Measures 66
2.2.2 Basic rules of WTO Subsidies and Countervailing Measures 70
2.3 Safeguard Measures in the GATT/WTO 85
2.3.1 Introduction to the Policies of Safeguard Measures 85
2.3.2 “Escape Clause”, GATT Article XIX and Agreement on Safeguards 87
2.3.3 Basic Rules on Safeguard Measures 89
2.4 Conclusion 106

3 Trade Remedy Measures in the Regional Trade Agreements 111
3.1 Introduction 111
3.2 Anti-dumping Measures in the RTAs 112
3.2.1 Maintenance of the Right to Apply Anti-Dumping Measures 113
3.2.2 Special Mechanism for Lesser Use of Anti-Dumping Measure 115
3.2.3 Abolition of Anti-Dumping Measures in the RTAs 120
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3.2.4 Potential Trade Diversion Effect of the Preferential Anti-Dumping
Measures in RTAs 130
3.3 Countervailing Duty Measures in RTAs 132
3.3.1 Maintenance of the Right to Apply CVD Measures 135
3.3.2 Special Mechanism for Lesser Use of CVD Measures 136
3.3.3 Abolition of CVD Measures in RTAs 142
3.3.4 Potential Trade Diversion Effect of the Preferential CVD Measures in
RTAs 143
3.4 Safeguard Measures in RTAs 144
3.4.1 Bilateral Safeguard Measures in RTAs 147
3.4.2 Global Safeguard Measure Provisions in RTAs 153
3.4.3 Trade Diversion Effect of the Preferential Safeguard Measures in RTAs 155
3.5 Special Institutional Mechanism Applied to TRM Issues in RTAs
and the Influence 156
3.6 Conclusion 161

4 Legal Criteria for WTO-Consistent Trade Remedy Measures in
Regional Trade Agreements 165
4.1 Introduction 165
4.2 “Parallelism” Requirement in Application of RTA-Related Global
Safeguard Measures 167
4.3 Relationship between Article XXIV and WTO Rules on Safeguards, Anti-
Dumping and Subsidies and Countervailing Measures 173
4.3.1 Relationship between Article XXIV and other provisions of the GATT 173
4.3.2 Relationship between Article XXIV and WTO Agreements (e.g. the WTO
Agreements on Anti-dumping, Countervailing Duty Measures and
Safeguards) 175
4.4 GATT Article XXIV & the 1994 Understanding 181
4.4.1 Article XXIV:5 – External Requirement on RTA 182
4.4.2 Article XXIV: 8 – Internal Requirement on RTA 191
4.5 “Necessity Test” in the Context of Article XXIV 206
4.5.1 “Necessity test” in the Context of Article XXIV:5 206
4.5.2 “Necessity test” in the Context of Article XXIV:8 208
4.5.3 “Necessity test” in Other GATT/WTO Provisions 213
4.5.4 Further Improve the “Necessity Test” in the Context of GATT Article XXIV 220
4.6 Conclusion 226
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5 WTO’s Surveillance Mechanism on RTAs 229
5.1 Introduction 229
5.2 Multilateral Review of RTAs 230
5.2.1 GATT Practice 231
5.2.2 WTO Practice 232
5.2.3 Renegotiation on the Multilateral Review of RTAs 236
5.3 Dispute Settlement and the Review of RTAs 238
5.3.1 GATT Practice 238
5.3.2 WTO Practice 239
5.3.3 Academic Debates Concerning WTO Panel’s Jurisdiction over RTAs 241
5.4 Interplay between Tracks I and II 250
5.4.1 CRTA Decision Followed by Dispute Settlement Proceedings 250
5.4.2 Dispute Settlement Proceedings Followed by CRTA Decision 252
5.4.3 Simultaneous Consideration 253
5.5 Conclusion 257

Concluding Remarks 259
Bibliography 265
Appendix I 281

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