International Trade Remedy Investigation System In The Wto System

Based on Judicial Review System in International Trade Remedies under WTO Regime: Basic Theory and Specific Chinese Cases achieved as the research result of the first part of an international cooperation project, trying to take a methodology of a systematic problem-oriented doctrine, attempting to establish an analysis frame of international trade dispute settlement through domestic public law, whose theoretical basis is a interests-balancing value orientation, this dissertation is going to theoretically expound the core concepts, the basic attributions and the general patterns of the review system in international trade remedies under WTO regime and by using the foreign experience in rule of law for reference, to advance some ideas on the reform of the Chinese review system in trade remedies under WTO regime. This dissertation attempts to expand the boundary of the rational knowledge for review system in international trade remedies and to deepen the research in international economic public law. The whole dissertation, except the Introduction, is composed of five chapters and an epilogue. Chapter one, "Analysis of the Concept of Review System in International Trade Remedies under WTO Regime", defines the main concepts and lays the logic foundation of the whole dissertation. At the first level, this chapter discusses the review system in international trade remedies under WTO regime from a general approach. Firstly, it points out that international trade remedies refers to all the administrative actions taken by an administrative agency of international trade of the WTO members on the purpose of maintain international trade order and the interests of the international trade partners, including specific administrative actions and abstract administrative actions. Secondly, it clarifies that international trade remedy system is the actions taken by a statutory agency which will reevaluate the legality and properness of the international trade remedies provided from factual and legal aspects according to law, correct and sanction the illegal (unreasonable) norms and actions that impede the freedom of international trade and protect and provide remedies to the injured parties'interests in free international trade. Finally, it points out that the review system in international trade remedies under WTO regime refers to the system which is established by the WTO members according to the WTO regime requirements, aiming to correct and sanction the illegal (unreasonable) norms and actions that impede the freedom of international trade and protect and provide remedies to the injured parties'interests in free international trade. The review system in international trade remedies covers a wide range. However, from the angle of the connection of international and domestic law, the most urgent core issue of the system is the issue about the subject, coverage and standards of the review. At the second level, this chapter discusses the systems of review subject, coverage and standards from a specific approach. It provides definitions to the three core concepts: "Review subject", "Review coverage", "Review standards". Chapter two, "Theoretical Basis for Review in International Trade Remedies under WTO Regime". The chapter firstly lays its emphasis on the interconnection between the system features of WTO and the review system in international trade remedies, as is to focus on the necessity, possibility and guiding requirements of the reform of (Chinese) review system in international trade remedies under WTO regime. To see the necessity of improving the review system in international trade remedies by members under WTO regime from the mutuality in interests(利益交互性)and the rule-orientation (规则导向性) under WTO. The unity of the standard of value in WTO law does not lead to the corresponding unity in WTO operation mode. Instead, different members adopt different WTO law operation modes according to their respective domestic environment. The combination of universality and particularity(普适殊别性) in WTO law makes possible the designing of a review system in administrative actions specifically for China. From the feature of bidirectional consideration under WTO, it can be seen that one of the principal requirements for the reform of review system in international trade remedies in the members is to giveconsideration to both freedom to trade and fairness in trade. From the feature of procedural justice under WTO, it can be seen that one of the principles of such reform is to lay stress on the due process of law. The chapter continues to discuss "the relationship between WTO dispute settlement mechanism and the review system in international trade remedies under WTO regime."It points out: WTO dispute settlement mechanism is a symbolic mechanism that stands for the transition of GATT/WTO from "orientation by power to "orientation by rules", and is also a key mechanism that ensures WTO regime legally operate according to "orientation by rules". Chapter three, "The Value Orientation of Review System in International Trade Remedies under WTO Regime. The discussion mainly takes a juries-sociological view and reaches its conclusion that the value orientation of the review system in international trade remedies under WTO regime is the balance of interests. Firstly, it indicates that under WTO regime, the interests of the economic subjects undoubtedly depend upon the public interests of the members. The realization of the interests of the economic subjects certainly depends upon the realization of the public interests of the members. Each member is composed of numerous economic subjects; and the members make up a plural WTO interests system which is owned and shared by all members. The plural WTO interests system is a balanced one. Theoretically speaking, the review system in international trade remedies should be interests-balancing oriented. Pragmatically speaking, such interests-balancing orientation is a must and an inevitable requirement to meet with in order to ensure the fulfillment of WTO rules. Secondly, it points out that the interests-balancing principle should be adopted as the guiding principle for the review system in international trade remedies. The guiding principle of Chinese review system in international trade remedies ——interest-balancing refers to the guiding principle that should be adopted by Chinese review in international trade remedies (to adjust the conflicts in the pluralistic WTO interests system by WTO rules and other relevant laws in order to realize interestsmaximization under WTO regime), according to the regular pattern of interests flowing under WTO regime and based upon the pluralistic feature of WTO interests. Lastly, it claims that the interest-balancing principle should be followed so that the maximization of different interests can be realized under WTO regime. The guiding effects, directivity and all-around governing ability are both the advantage and disadvantage of the interest-balancing principle so that the following concrete principles should be observed: 1) balance respect and supervise; 2) national economic interests in priority; 3) honesty and credibility; and 4) fairness. The interest-balancing principle and other relevant principles should be adopted by Chinese review system in international trade remedies. Chapter four, "A Comparative Research of Review System in Trade Remedies under WTO regime."From an angle of comparative law, this chapter analyzed in detail the systems of review subject, coverage and standards of review in trade remedies in EU and US, and by a series of comparative analysis unveils the general rule of the review systems in trade remedies under (GATT) WTO regime. Taking interest-balancing as the value orientation, the chapter furthers a systematic analysis in comparison with the relevant regulations of China's current system and thus lays a foundation for the reference of foreign systems to "the improvement of Chinese review system in international trade remedies under WTO regime"to be discussed in chapter five. The chapter starts with the analysis of the review subject system, pointing out that in EU it is the ordinary courts (普通法院) that enjoys the jurisdiction of (judicial) review in international trade remedies. The courts of first instance in EU members reviews the first-instance cases arising out of appealing against the anti-dumping measures by EU; and EU courts are responsible for the cases appealing against the decisions by the first-instance courts. In US a special court ----US International Trade Court has the exclusive first-instance jurisdiction over the international trade remedies and the US federal circuit appellate court hears the international trade cases on appeal. The judicial review of international trade remedies falls into the jurisdiction of theAdministrative Procedural Law in China's judicial system; and the cases therein should be heard by an intermediate people's court designated by the higher people's court located of the place where the defendant is located or by that higher people's court directly. In the analysis of the review coverage system, chapter shows that the judicial power under EU or US systems can supervise all administrative acts so that the review in trade remedies covers both abstract and specific administrative acts. Despite the fact that the abstract administrative acts are excluded from Chinese judicial review coverage, in Legislation Law and Administrative Review Law of People's Republic of China we can find the space left in the judicial system for review of abstract administrative acts (of international trade). The analysis of the review standards system ending the chapter points out that in major western developed nations the (judicial) review coverage and standards of the international trade remedies all emphasized two aspects: 1) factual standards (reasonableness standard in fact); and 2) legal standard. EU courts generally take a legal trial approach. The courts only review legal and procedural issues and pays full respect to the decided judgments upon acknowledge of facts made by other EU institutions. In US, judicial review usually adheres to perform both factual and legal reviews but different review standards are applied to factual and legal issues. To be more specific, more respects are paid to the administrative agencies during a factual review; however the courts enjoy more discretion in a legal review. In China the review relies mainly on legal reviews while making factual reviews subsidiary. The courts review whether the laws and regulations in performing the specific administrative acts are applied correctly and whether the application of laws and regulations meets with statutory procedures. Besides whether the facts acknowledged in performing the specific administrative acts are clear and the proofs are irrefutable are also the objects of the review. Chapter five, "A blueprint on the Reform of Review System in International Trade Remedies under WTO Regime. A review system in trade remedies review has been preliminarily established inChina. The main flaws are: the coverage is too narrow; the standard is too strict; comprehensive and thorough reviews are applied to both factual and legal issues; the procedural review is limited only to statutory procedural review; the review institution is limited and there lacks review power. I hereby suggest that following reforms be carried out upon the systems of review subject, coverage and standards, according to the "rule of law"principle and the requirements of WTO rules, taking for reference other countries'relevant experience and based upon the idea of interest-balancing: 1) establish a composite system frame of international trade remedies review subjects, which combines supreme caurt review and specialized court review, NPC (National People's Congress) review; 2) properly expand the review in trade remedies coverage by bringing some abstract administrative norm, administrative final rulings and the negative administrative action of non-performing trade remedies duty into the review coverage; and 3) distinguish the factual issues from legal issues in trade remedies measures, establish flexible standards of review and adopt due process principle as part of the judicial review standards so that a series of review standards which both respect and supervise the administrative agencies can be founded.