2013年-WTO世界贸易组织_Mapping_of_Safeguard_Provisionsin_Regional_Trade_Agreements_45页_380kb

Summary of "Mapping of Safeguard Provisions in Regional Trade Agreements"

Core Content

This study provides an analysis of safeguard provisions in 232 regional trade agreements (RTAs) notified to the WTO up to December 31, 2012. It examines how RTAs handle global and bilateral safeguard measures in comparison to the multilateral rules set out in GATT Article XIX and the WTO Agreement on Safeguards. The paper highlights differences in the design and application of these provisions across various RTAs and identifies trends in their evolution.

Main Points

1. Safeguard Provisions in RTAs

Safeguard provisions are a common feature in RTAs, providing temporary protection against increased imports that cause or threaten serious injury to domestic producers. These provisions can be either global (applicable to all WTO members) or bilateral/intra-RTA (applicable only to RTA partners).

2. Global Safeguard Measures

• Definition: A global safeguard is invoked under GATT Article XIX and the Agreement on Safeguards.
• Exclusion of RTA Partners: Some RTAs explicitly exclude RTA partners from global safeguard actions, subject to specific criteria.
• Key Findings:
  • About 26 RTAs allow for the possible exclusion of RTA partners from global safeguards, based on whether such imports are a "substantial cause" of injury.
  • 34 RTAs require exclusion with conditions, such as "substantial share" of total imports.
  • 2 RTAs exclude RTA partners without any conditions.
  • 117 RTAs make no reference to global safeguards in their legal text.
  • 53 RTAs retain rights under GATT Article XIX and the Safeguards Agreement with little elaboration.
• Examples:
  • Singapore-New Zealand and Singapore-Australia definitively exclude RTA partners from global safeguard actions.
  • EU has provisions allowing exclusion of ACP partners from global safeguards in some Economic Partnership Agreements (EPAs).
  • NAFTA and some newer RTAs allow for the re-inclusion of previously excluded partners if imports contribute significantly to injury.

3. Bilateral Safeguard Provisions

• Trigger Mechanism: RTAs may use looser language to define when a safeguard measure can be invoked, potentially allowing for more flexibility.
• Injury Assessment: The study compares how RTAs define injury, causation, and the causal link between imports and injury.
• Types of Measures:
  • RTAs vary in the types of measures permitted, such as tariffs, quotas, or other restrictions.
  • Some RTAs limit the duration of safeguard measures, require tariff-based actions, or bind measures to transition periods.
• Provisions on Compensation and Retaliation: RTAs may provide specific rules on compensation and retaliation, though the study does not analyze their actual usage.
• Notification Requirements: RTAs may have different notification standards compared to the multilateral framework.

4. Special Safeguard Provisions

• Infant Industry Safeguards: Found in RTAs such as those of ASEAN, Australia, New Zealand, Chile, China, India, Malaysia, Pakistan, Turkey, and the US, where parties retain their rights under the WTO.
• Balance of Payments Safeguards: RTAs like EU-ACP, Turkey-Textiles, and others allow for measures to protect the balance of payments.
• Special Safeguards for Agricultural Products: RTAs such as China-Singapore, China-New Zealand, and others include provisions for special safeguards on agricultural goods.

5. Welfare Effects and Legal Challenges

• Welfare Impact: Excluding RTA partners from global safeguards can increase discrimination against non-members, leading to trade distortion and diversion.
• Legal Uncertainty: The relationship between Article XXIV and the Safeguards Agreement remains unresolved, with the Appellate Body in US-Line Pipe not addressing the issue of whether Article XXIV can justify exclusion of RTA partners from global safeguards.
• Jurisprudence: In Argentina-Footwear, the Appellate Body upheld the parallelism between the scope of a safeguard investigation and the application of measures, implying that all imports must be considered if the investigation includes them.

6. Procedural and Transitional Provisions

• Some RTAs bind safeguard measures to transition periods, ensuring alignment with multilateral rules.
• Others specify procedural steps for the application of safeguard measures, including notification requirements and rules for compensation and retaliation.

Key Information

• Total RTAs Analyzed: 232
• Global Safeguard Exclusion Types:
  • No reference: 117 RTAs
  • Retention of rights: 53 RTAs
  • Exclusion without conditions: 2 RTAs
  • Exclusion with conditions: 34 RTAs
  • Possible exclusion: 26 RTAs
• Examples of Exclusion Criteria:
  • Peru-Singapore: "Substantial cause of serious injury"
  • Nicaragua-Chinese Taipei: Imports not exceeding 7% of total imports
  • EU-ACP: Exclusion for five years, possibly extended
  • Mexico-Central America: Exclusion if imports from a single partner account for 80% of total imports
• Margin of Preference: Some RTAs, such as EU-Albania and Israel-Mexico, ensure that a margin of preference is retained for RTA partners even when global safeguards are applied.
• Multilateral vs. Bilateral Rules: Bilateral safeguard provisions in some RTAs are more flexible than multilateral rules, allowing for a broader range of measures and less stringent conditions.

Conclusion

The study identifies a divergence between RTA rules and multilateral safeguard provisions, with some RTAs offering more flexibility in the application of safeguard measures. It also notes that few RTAs explicitly exclude partners from global safeguard actions, and where they do, the conditions vary. The legal implications of these provisions remain uncertain, particularly regarding non-discrimination and jurisprudential consistency with WTO rules. The analysis serves as a baseline for understanding the evolution of safeguard provisions in RTAs and highlights the need for further research and legal clarification.