| The overlap and interrelation between trade law and competition law has become an unavoidable problem due to the fast development of international trade. However, this overarching problem has emerged on different levels of practice under rules from both legal areas. This article only aim at discussing one of the specific practical problems, that is, the "double review" of on Chinese exports cartels under both trade law and competition law, where the Chinese companies have shown a mixed feature of both private act and state act. Therefore, these exports cartels have subject to the jurisdiction of American domestic competition law jurisdiction and parallel WTO dispute resolution jurisdiction.In addition to that, the anti-dumping and anti-subsidy measures allowed under WTO agreements might also interact with and overlap the competition law of United States while trying to offer damages to those domestic industry and domestic manufactures that suffered from the same harmful act of export cartel. To further inspect this phenomenon, this article takes the perspective of Chinese regulators and export companies in the analysis, trying to summarize the unclear status of this area of mixed practice. Moreover, the article tries to explain the characteristic of the "multiple remedies" for Chinese export cartel, and is also making the efforts to explain the how the practice of "multiple remedies" happened. Further, this article takes a deeper look and analyze on the legality and rationale of such interaction and overlap of trade remedies. By doing so, the paper tries to offer a better understanding on the merits of multiple remedies for Chinese export companies and related legal regulators. Also, it tries to argue that while facing the parallel disputes raised by either American privates or trade representatives, the Chinese should take the current international trade law and US domestic antitrust law as a whole and work out a integrated defense strategy.To do that, Part One of the paper made a short list and summarized the status of all the antitrust suits processing or has went through the US federal courts where the export cartels conducted by Chinese companies are the focus, together with the direct interference of related WTO agreements, that caused mainly by the mixed feature of the Chinese conducts. Hereby, the paper noted the conflicts of logic led by the double review from both WTO law and US antitrust law. Nevertheless, the paper also noticed the existence of multiple remedies from anti-dumping law, anti-subsidy law and antitrust law, and their common goal to offer damages for the same Chinese export cartel.Part Two takes a further step, and it tries to categorize the aforementioned double regulations to either a direct or indirect way. Despite the differences between direct double regulations and indirect double regulations, they share a key feature, that is, the overlap of trade remedy measures adopted by the United States against the same Chinese export cartel. Nevertheless, the "Indirect Double Regulation", containing the overlap of anti-dumping law, anti-subsidy law and antitrust law, should be considered the general mode and the core subject for discussion in this article, while it will trigger the concealed conflict of legal logic. The paper emphasis that, anti-dumping law, anti-subsidy law and antitrust law share similar legal logic structures. Because of this, although the "result element" of the legal logic structure remain differently, the common ground of the similar "structural element", the other element for the legal logic structure and the virtual attribution of liabilities, will finally lead to the confusing overlap between damages offered by all these sources. Obviously, all of the confusing on the source and reasoning of offering the overlapping damages have cast doubt on the appropriateness of the cumulative effect of these remedying measures.Part Three faces these doubts and conducted a detailed analysis on the legitimacy and rationale of the overlapping trade remedying effects caused by the "double regulations". Under current legal system, despite that there is no general rules governing the issue, the "double regulation" still does not gain its de facto legitimacy by arguing the mere absence prohibiting rules. Following the lead of analyzing the legitimacy of double regulation within either US antitrust law or WTO agreements, in other words, analyzing whether Chinese export cartels fall within the scope of state defense and whether it should be considered as a factor in the calculation of damage under anti-dumping or anti-subsidy law, there remains challenges against the legitimacy of the cumulative effects of remedies even with the review under applying laws. Besides all of that, from the perspective of rationality review, the repeated measures of paying for the same damage suffered by the overlapping group of domestic manufacturers or the same domestic industry obviously is conflict with the principle against double jeopardy. Also, the repeated calculation on the same damage and the effort of making up to it led by the parallel application of both antitrust law and trade law in nature, challenged the rationality of such overlapping remedies in another way. |
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