On The Application Prerequisites For Safeguard Measures

This paper intends to analyze the substantial prerequisites (conditions) for applying safeguard measures that should be abided by and how to abide by them under GATT/WTO setting. Under the contemporary multilateral trade system, the application prerequisites are mainly an issue of rule level. The legal source includes both international law and domestic law. Therefore, this paper mainly employs the methods of rule analysis and comparative research in order to fully uncover the legislative merit, the effects of rules and practical problems of the application prerequisites.Starting with analysis of the fundamental theories of safeguards system, this paper surveys the historical change, economic root, constitutional and administrative structure, jurisprudence base and application principles of safeguard measures in order to define their unique function and effect under the multilateral trade system. This paper holds that safeguard measures are the trade protective measures under a free trade system, designed to balance the conflicting relations between the market opening and industrial security, and relations of different opening extent and different trade profits of different states. In the importing state, the domestic trade protectionists group is wild about driving safeguard measures. But this driving can be restrained by international law formed under reciprocal arrangement, especially the compensation and retaliation system of safeguards. As treaty rules, safeguard system is helpful to maintain the stability of trade treaty relations. Safeguard measures are of the anti-competition nature. Thus the legislation on safeguards should do its best to restrain this anti-competition nature and to harmonize the conflicts between the object of competition rules and safeguard rules. In accordance with the universal obligations of free trade, safeguard measures should be applied non-discriminatively. Grey area's deviation from multilateral trade system discloses on the negative side the necessity of conductingmultilateral control over the application prerequisites for safeguard measures.Defining the function and effect of safeguards will determine the systematic construction of application prerequisites. Application prerequisites are mainly stipulated by Article II and Article N of Agreement on Safeguards. Based on these two articles, and combined with the judicial interpretation of DSB and related domestic legislations, this paper offers detailed academic interpretation and merit review over the rules' content and practices of application prerequisites. As for harmonizing effect relations between GATT Article XIX and Agreement, this paper believes that these two should be applied cumulatively. "Unforeseen developments" is an independent application prerequisite, but its concrete content and provable standard still raise many questions. But "the effect of GATT obligations" prerequisite does not have real substantial content. "Increased import" includes relative increase. The increase of import should reach a certain extent, and the importing member shall evaluate it both qualitatively and quantitatively. This evaluation method shall mainly be analyzing the importing trend of a certain investigation term. On the prerequisite of industrial injury, this paper denies the US's judging criterion of a like product, and defines the obligation scope of the importing member's investigation and evaluation. The importing member should offer conclusive rulings for serious injury or threat thereof. The rulings for serious injury or threat thereof shall be made separately. As for the casual link, this paper puts forward its double significance in safeguard measures. Comparing and evaluating the understandings about casual link of US's law, Panel and Appellate Body, this paper points out the legal problems left behind of "non-attribution principle" in Agreement.The operation of safeguard measures on regional level and individual state level embodies the multiphase and complicated nature of international law on safeguards. Beginning with the relation between GATT Article XXIV and Agreement and citing NAFTA as a main example, this paper points out that the member of an RTA can exclude intra-regional members from safeguard measures, and there are some particularities in the safeguards investigation and application of regional institutions andregional members. Based on this, this paper evaluates the legitimacy of CEPA's safeguards under WTO agreements, and puts forward the problems of application prerequisites left unsolved by CEPA. On the special safeguards, this paper lays emphasis on the comparative research of rules and historical analysis, defines preliminarily the application prerequisites for special safeguards. Besides, it points out the priority of the effect of special safeguards, and offers practical advices for our state's coping with the special safeguards clauses on legal level.