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Safeguard measures

Import restriction measures adopted by Members in accordance with the 1994 GATT when import surges and causes or threatens to cause serious harm to their domestic industries

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It refers to when unforeseen developments lead to Imported Increase in quantity, so that the production of similar or Direct competitive products Of domestic industry When serious damage or threat of serious damage is caused, the importing Member may Principle of non discrimination On the basis of limit 。

Chinese name: Safeguard measures
Foreign name: safeguardmeasures

Meaning: Unforeseeable development
Methods: Enforcement restrictions

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Overview of terms

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Safeguard measures refer to the measures taken by Members in accordance with the 1994 GATT when their imports surge and cause or threaten to cause serious damage to their domestic industries Import restrictions measures. The measure is that the member government Terms of trade It is an important means to safeguard the interests of domestic industries, which is different from the measures against unfair trade. The purpose of setting up such measures is to make the international obligations undertaken by members have certain flexibility, so that they can be exempted from their obligations under relevant WTO agreements in case of special circumstances, so as to remedy the serious damage caused or avoid the possible consequences of the threat of serious damage.

The safeguard measures are International law On“ Principle of change of circumstances ”(principle of change of circles) in international trade relations. This principle was put forward by private law scholars in the 16th and 17th centuries. Its original meaning was that the contract itself implied the situation at the time of signing the contract Constant period The continuing terms of the contract, namely Unchanged clause 。 Later, international jurists argued that international treaty This jurisprudence should also apply. 1969《 Vienna Convention on the Law of Treaties 》On the one hand, it is recognized that the basic change of circumstances can be invoked as the basis for terminating international treaties or withdrawing from international treaties. On the other hand, it has also taken a prudent approach, which has severely restricted the application of this principle.

Safeguards were incorporated into international treaties for the first time since the United States and Mexico Reciprocity signed trade agreement 》（Reciprocal Trade Agreement）。 Article 11 of the Agreement stipulates: "If unexpected circumstances develop and this Agreement is annexed schedule of concessions As a result of the concession of any goods listed in, the quantity of such goods imported has greatly increased, and in such cases, serious damage or threat of serious damage has been caused to domestic producers of the same or similar products. Either government shall freely withdraw the concession in whole or in part, or modify the concession within the extent and time necessary to prevent such damage. " Since then Bilateral trade agreement All contain terms similar to the above. February 1947 Truman The President also announced administrative decree It is required that every US trade agreement should include such clauses. Four years later, US Congress Such provisions shall be stipulated in relevant legislative documents. stay International Trade Organization In the process of establishment, the United States initiated and the negotiators agreed that the Charter of the International Trade Organization and the 1947 GATT both stipulated safeguards.

In the 1947 GATT, the provisions that play the role of safeguard mainly include: Article 12 (to safeguard Balance of international payments And quantitative restrictions), Article 18 (on Less developed countries Assistance measures for its economic development), Article 6（ Countervailing And anti-dumping Measures), article 28 (on Tariff concession ), Article 35 (on Parties The provisions of the General Agreement shall not apply), Article 20（ General exceptions ）, Article 21 (national security exceptions), Article 23 (remedies for loss or damage of interests), Article 19 (on imports of certain products Emergency measures ）。 "The above provisions are applicable to different occasions as stipulated in the GATT, especially Article 19."

above Exceptions It plays an important role in safeguarding the interests of GATT members, but the frequent application of exception clauses is detrimental to GATT liberalization of trade Purpose, for members to implement Trade protectionism It provides breeding soil. To prevent members from abusing emergency Safeguard clause , prevent“ Grey area measures ”(measures in grey area) spread, Uruguay Round Reached Agreement on Safeguards 。 This agreement is based on the provisions of Article 19 of the 1994 GATT and is of great significance for the appropriate implementation of safeguard measures, containment and even elimination of "gray area measures".

Implementation conditions

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Paragraph 1 of Article 19 of the 1994 GATT stipulates: "If an accident occurs or a Member assumes obligations under this Agreement (including Tariff concession (including), which greatly increases the quantity of a product imported into the territory of the member Similar products Or with Direct competitive products When the domestic producer of the said product causes serious damage or threatens to cause serious damage, the said member may, within the limits and time necessary to prevent or correct such damage, suspend the implementation of its obligations for the said product in whole or in part, or revoke or modify concessions. " 《 Safeguard agreement 》(hereinafter referred to as the Agreement) Paragraph 1 of Article 2 further clearly states: "A member can take safeguard measures for a product only in accordance with the following provisions, that is, the member has determined that the product is being imported into its territory at a rapidly increasing quantity (absolute or relative increase compared with domestic production), and in this case, the member can take safeguard measures for products that produce similar or directly competitive products domestic industry Causing serious damage or threat of serious damage. " Accordingly, a member shall meet the following conditions when implementing safeguard measures:

Import surge

The import surge specified in the agreement refers to the sharp increase in the quantity of imported products, including "relative increase" and "absolute increase". The absolute increase is the actual increase in the number of imported products. For example, the import volume of a product increased from 1000 tons to 2000 tons. The relative increase is relative to the total domestic production of the importing country market share Increase of; Moreover, the actual import volume does not necessarily change. For example, an importing country imports 1000 color TV sets every year, and its domestic color TV sets output From 4000 units/year to 2000 units/year; With the import volume unchanged, the market share of imported products increased from 20% to 33.3%.

Reasons for sharp increase in imports

The reason for the sharp increase in imports is the "unexpected circumstances" stipulated in the 1994 GATT and the "result of the import members' undertaking WTO obligations". What is an "accident"? Some scholars or laws also call it "unforeseen circumstances" or "unexpected circumstances". The GATT 1994 and the Agreement on Safeguards did not give a clear explanation. "In 1950 Czechoslovakia In the "fur hat case" against the United States, General Agreement on Tariffs and Trade The Working Group has interpreted 'unforeseen circumstances' as circumstances that could not be reasonably foreseen at the time of tariff concessions. " Chinese experts pointed out: "It is generally believed that 'unexpected circumstances' refer to the relevant State party The unforeseen circumstances that occur after the assumption of the relevant obligations of the GATT, that is, the situation after the assumption of the obligations has changed unexpectedly compared with the situation at the time of the assumption of the obligations. " It can be seen that the unexpected situation is that a member is undertaking WTO Agreement Circumstances that occurred in the course of obligations and could not be reasonably foreseen at the time of conclusion of these agreements. It is Principle of change of circumstances The specific performance of.

The so-called "result of importing members' undertaking WTO obligations" means that when members fulfill WTO obligations, the most important thing is tariff concessions and reductions Non-tariff barrier Obligations have improved the competitiveness of imported products, resulting in a sharp increase in the number of imported products.

Consequences of import surge

The consequence of the import surge is that it causes serious damage or threat of serious damage to the domestic industry of the importing country. Article 19 of the 1994 GATT does not define serious damage and threat of serious damage, but the agreement clearly stipulates this. Paragraph 1 of Article 4 of the Agreement stipulates that serious damage should be understood as "significant overall damage" to the domestic industry of a member; The threat of serious damage is "clearly imminent". Moreover, the determination of the existence of the threat of serious damage should be based on facts, not just imagination, speculation or long-term possibility.

Therefore, the so-called serious damage refers to the major damage to the overall state of a member's domestic industry. The threat of serious damage refers to the fact that there is an obvious and imminent threat of damage, which is not imaginable, speculative or long-term Possible The fact that.

When determining or judging whether serious damage or threat of serious damage is caused to the domestic industry of the importing country, the competent authority shall evaluate or measure all the objective and quantifiable factors that affect the situation of the domestic industry. These related factors mainly include: ① the proportion and quantity of absolute or relative increase of relevant imported products; ② Imported products in domestic market Market share of Sales level of domestic industry total output 、 productivity 、 Equipment utilization , profit and loss, employment change, etc.

Implementation

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About safeguard measures

according to World Trade Organization According to the statistics of the Secretariat, as of March 2013, World Trade Organization Members launched 255 safeguards investigations. Among WTO members, 48 members are users of safeguard measures, of which India is the most frequent user, and 29 investigations have been launched. Other major users include Indonesia (23 cases) and Turkey (17 cases), Jordan (16 cases) Chile (13 cases) Ukraine (10 cases), the United States (10 cases) Czech Republic (9 cases) Egypt (9 cases) the Philippines (9 cases), etc. Products involved in safeguard measures are concentrated in chemical industry Products of related industries (43 cases); Base metal And its products (42 cases); Stone, gypsum, cement asbestos 、 mica And products of similar materials, ceramic products, glass and its products (23 cases); Food, beverage and products of wine, vinegar, tobacco and tobacco substitutes (21 cases); Live animals, Animal products (18 cases); Plant products (18 cases); Textile raw materials And textile products (16 cases).^[1]

Implementation procedures

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investigation

The application for investigation procedure shall first be made by the legally qualified person. The application for investigation shall be made by the domestic industry whose total output or its output accounts for a major proportion of the total domestic production of similar products, or by the member government. The application is based on Written form Propose. application The content of "" shall mainly describe the domestic serious damage or threat of serious damage caused by the sharp increase of imported products. After the relevant authorities accept the application, review it and decide to file the case, they will start an investigation.

The main contents of the investigation include: reviewing the evidence, evaluating all relevant factors, and confirming the relationship between the sharp increase in imports and the damage causal relationship 。

The specific rules of the investigation require that appropriate announcements be made to all interested parties, public hearings be held, and importers exporter And other interested parties to provide appropriate opportunities to state evidence and views, and to respond to the statements of other interested parties. After the investigation, the relevant authorities shall publish investigation report And list the investigation results of all relevant facts and legal issues, as well as the reasonable conclusions made.

Notification and consultation

Paragraph 2 of Article 19 of the 1994 GATT stipulates that Members implementing safeguard measures shall "notify all Members in writing as far in advance as possible, so that all Members and Members having a major interest in the export of the product may, have a chance to Consult with them on the proposed action ". Article 12 of the Agreement provides detailed and systematic provisions, which reflect the WTO's The principle of transparency 。

First, notice. Members implementing safeguard measures The Immediately notify the Committee on Safeguard of the investigation process, investigation conclusion and decision to implement or extend the implementation of safeguard measures related to serious damage or threat of serious damage. The contents of the notice shall be as detailed and specific as possible, including: relevant evidence, involved products, proposed measures, time and gradual relaxation table. And, Trade in goods The Council or the Committee on Safeguards may, when necessary, request members implementing safeguards to provide Supplementary materials 。

Second, consultation. The members concerned shall specify the contents and methods of safeguard measures or Temporary safeguard measures Conduct consultations, exchange views and reach an understanding. The results of the consultations shall be notified to the Council for Trade in Goods in a timely manner through the Committee on Safeguards.

In addition, the agreement requires that members shall administrative procedure Timely notify the Safeguards Committee. Moreover, if any member considers that a member has failed to do so, it may notify the committee of the relevant situation. Of course, the agreement also requires that the provisions on the notice do not require any member to disclose to the detriment of its Law enforcement Or against it public interest Or endanger the legitimate commercial interests of its specific enterprises Confidential information 。

Implementation of safeguard measures

After the import authorities have investigated and confirmed the sharp increase in imports, the causes and consequences, and fulfilled their obligations of notification and consultation, the import member governments can take safeguard measures.

First, the implementation of safeguard measures. The implementation of safeguard measures mainly includes: raising tariffs and implementing Tariff quota as well as Quantity limit Etc. However, the safeguard measures shall be within the necessary limits to prevent or remedy serious damage or threat of serious damage.

Whereas Non tariff measures It has a great distorting effect on international trade. Article 5 of the agreement stipulates the restrictions on the implementation of quantitative restrictions and quota measures, that is, the implementation of quantitative restrictions shall not make the import volume lower than the past three Representativeness The average import level of the year, unless the importer has justified the need to adopt a different import level. When implementing quota restrictions, the importer shall consult with interested exporters on quota allocation. If the consultation fails, the importing party shall allocate based on the import share of the exporting party in the previous representative year, unless it is proved in the consultation presided over by the Committee on Safeguards that there is a legitimate reason for not allocating according to this method.

Second, the implementation period of safeguard measures. The agreement requires that the implementation period of safeguard measures should not exceed 4 years in general. If it is necessary to take safeguard measures to prevent damage or remedy the damaged industry, or there is evidence that the industry is undergoing adjustment, the implementation period can be extended. However, the total period of implementation of safeguard measures (including temporary safeguard measures) shall not exceed 10 years.

Third, Temporary safeguard measures 。 The agreement stipulates that in an emergency, if delay in taking measures will cause irreparable damage, the importer may take temporary safeguard measures without consultation. The conditions for the implementation of the temporary safeguard measures are: ① The import authority can only Preliminary determination Temporary safeguard measures can be taken only when the sharp increase in imports has caused or is causing serious damage or threat of serious damage; ② The implementation period of temporary safeguard measures shall not exceed 200 days, and this period shall be included in the total period of safeguard measures; ③ Temporary safeguard measures should be mainly in the form of tariffs. If the subsequent investigation cannot prove that the sharp increase in imports has caused serious damage or threat of serious damage to the domestic industry, the tariffs collected shall be promptly refunded; ④ Members shall notify the Committee on Safeguards before implementing provisional safeguards, and shall consult with all interested parties as far as possible after taking such measures.

Enforcement restrictions

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Appropriateness of implementation

Safeguards must be implemented to the extent and within the time necessary to prevent or remedy damage. If safeguards Applicable period The time limit is expected to exceed one year, and the importer shall, within this time limit time interval Gradually relax the measures; If the implementation period exceeds 3 years, the importer shall conduct a mid-term review, and withdraw or accelerate the relaxation of the measures according to the review results. During the extension period, the safeguard measures shall not be more stringent than the initial application and shall continue to be relaxed. If the safeguard measures are applied again to the same imported product, generally, there should be an interval of not less than the first implementation period, at least 2 years; If the applicable period is less than or equal to 180 days, and the guarantee measures for similar products have not been implemented twice within 5 years before the implementation date, the measures can be implemented again after 1 year from the implementation date, with a maximum period of 180 days.

Non discriminatory implementation

The implementation of safeguard measures should follow the principle of non discrimination, and all similar imported products should be treated equally. That is, according to the provisions of the agreement, safeguard measures should not only be applied to the imported products of one member, but also to the similar products of other members. Therefore, "regardless of product source" is actually the principle of non discrimination or Most favored nation treatment principle Concrete wording in terms of safeguards.

Grey area measures

The so-called grey area measures refer to bilateral or Multilateral agreements To restrict the export of certain products. The measures include: improving product price , limiting the number of exports or Price commitment , avoiding the non discrimination provisions of GATT 1994 (such as orderly sales arrangements Automatic export restriction , export control Export price Or import adjustment mechanism , export or import supervision, mandatory Cartel 、 Arbitrariness Export or Import License System ）Etc. Since these measures are not subject to the laws of GATT 1994, they need not be implemented before and after their implementation Notification obligation As a result, there is a lack of transparency. Some measures are not even known whether the government will intervene, so they are generally called "gray area measures". In response to this measure, the first paragraph of Article 11 of the Agreement clearly states that "Members shall not take or seek any emergency action for the import of specific products as provided for in Article 19 of the GATT 1994, unless the second order action is in conformity with the provisions of this Article applicable in accordance with this Agreement." Here, the Agreement makes explicit provisions prohibiting the application of "gray area measures".

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