指导法律ESSAY-以下是该指导essay文章的结构：Chapter 2 2.1 Overview of the WTO Anti-dumping Agreement 2.1.1 The WTO Anti-dumping agreement in globalization
2.1.2 Anti-dumping (Article VI) in the general agreement on tariffs and trade．
2.1.3 Anti-dumping Agreement in the Uruguay Round Agreement
2 2.1.1章节要阐述：1 globalization 对The WTO Anti-dumping agreement的影响。 2 The WTO Anti-dumping agreement 对作为成员国的中国成为外国反倾销头等目标有何影响。
3 2.1.3阐述乌拉圭回合中《关于执行<1994年关贸总协定) 第6条的协议》
Chapter 22.1 Overview of the WTO Anti-dumping Agreement2.1.1 The WTO Anti-dumping agreement in globalization With the economic globalization’s acceleration and the development of trade liberalization, the tariff barriers and non-tariff barriers among the countries gradually decrease. Anti-dumping, as a legal means to protect domestic market approved by WTO, is adopted widely in the world to safeguard the fair trade environment and boycott unfair competition.
The economic globalization made an unprecedented impact on laws, which not only reflects in the international laws, but also in the domestic laws. As far as the anti-dumping legislation, the effect of globalization mainly manifests in the following two aspects: First, the globalization of economy calls for, in the legal system, especially in international economic law, adopting unified norms as much as possible around the world to make more and more legal phenomenon reflected in the process of economic globalization. The WTO rules such as Anti-Dumping Agreement is a typical of international laws affected by economic globalization. Second, economic globalization has an effect on Anti-Dumping Agreement by means of the domestic laws. In fact, the effect of the economic globalization on the domestic laws is manifested through the multinational trading system of WTO. WTO agreements, as the core of WTO system, which are negotiated and signed by most trading nations and approved by their own congresses, are fundamental rules of law in the international business. On behalf of their common interest, they make governments of member countries restrict themselves to regulating their own trade policies within the framework of the agreements. WTO also examines member countries’ trade policies at regular intervals, supervises their trade system, and coordinates and settles their trade disputes.#p#分页标题#e#
In Article VI of THE GENERAL AGREEMENT ON TARIFFS AND TRADE (hereinafter “GATT 1947”, “contracting parties retain the right to protect themselves from dumping and subsidization, which cause or threaten material injury to an established domestic industry, or retard the establishment of a domestic industry”. According to this Article, anti-dumping, as a protective trade measures, is an internationally recognized means to protect domestic industries and an essential tool to cope with unfair competition. In terms of Article I of Anti-Dumping Agreement 1994, “an anti-dumping measure shall be applied only under the circumstances provided for in Article VI of GATT 1994 and pursuant to investigations initiated and conducted in accordance with the provisions of this Agreement”. That is, if countries prepare to levy anti-dumping tariff on some imported products, they must certify the occurrence of dumping and the damage to the similar domestic industries. But in this agreement, there is no specific standard. Therefore, anti-dumping measures are often taken to cope with alleged unfair import competition by many countries. Due to the anti-dumping policy’s unpredictability, severe disruptiveness and chilling impact on trade, sometimes, anti-dumping is considered as “trade terrorism”. With the reduction of tariff, it’s impossible to protect domestic industries by means of tariff barriers. Tariff concession is bilateral; no party can increase the tariff at will. But, anti-dumping is one-sided, importing country has the discretionary power and anti-dumping tariff is higher than custom duties. Therefore, every country can adopt this legitimate and convenient method to transfer the economic crisis, protect domestic industries and even expand market share of domestic products and crowd out the imported products. Scholars pointed out, anti-dumping investigation is easily to forester unethical business practices at the expense of exporting countries’ firms.
In the US, the EU and Canada etc., some important sectors are suffered severe foreign competition even in their domestic countries. Due to the pressure of public and parties, their governments provide many measures to relief their domestic industry, and most of these measures are anti-dumping measure. China is competitive because of its comparative advantage of enormous labor and raw material. In recent years, more and more anti-dumping investigations were launched on Chinese products by many countries. According to the statistic from the Ministry of Commerce, the anti-dumping investigations against china have soared by 15% from 5% in 1990s for the last few years, which exceeds china’s share in the world trade.
Chart1: Anti-dumping investigations in china and the world (2001-2008)The YearThe Survey of Anti-dumping in the WorldThe Survey of Anti-dumping in ChinaProportion （Percentage）20013665414.8#p#分页标题#e#20023125116.320032325222.420042144922.920052005527.520062027135.120071646637.22008（half of the year）853743.5Total177543524.5Source: Arranged according to WTO Secretariat Reportshttp://www.wto.org/english/news_e/pres09_e/pr556_e.htm
From the above chart we can see that although anti-dumping investigations in the world decrease，the anti-dumping investigations against china and their proportion to all the investigations increase instantly year after year. By 2007, the anti-dumping investigations against china had accounted for more than 1/3 of all the investigations in the world.
In the recent years, the typical cases of anti-dumping are as follows: In 2002, America initiated the anti-dumping lawsuits against china’s six main steel enterprises which include Baosteel Group Corporation, Angang Steel Company LTD, Wuhan Iron & Steel Corporation, Anyang Iron & Steel Corporation LTD, Benxi Iron & Steel Corporation LTD and Laiwu Iron & Steel Corporation LTD; In 2005, the anti-dumping lawsuits against china’s textile involved 200 million dollars； In 2005, the anti-dumping lawsuits against china’s leather shoes by EU involved more than 1000 enterprises and the money involved amounted to 600 million dollars; EU initiated the anti-dumping lawsuits against china’s color TV in 2006, which almost covers all the main manufacturers of color TV in china and the enterprises involved included Prima, Haier, Hisense, Zarva, TCL and Skyworth; Obama entered lawsuits against china’s products when he came into power in April, 2009. The case of special safeguard Sino-US tire inflicted heavy losses on china’s tire industry.
2.1.2 Anti-dumping (Article VI) in the general agreement on tariffs and trade．Since Canada promulgated the first anti-dumping law in the world in 1904, many countries followed its example, such as New Zealand (1905), Austrlia (1906), US (1916), and UK (1921). The domestic anti-dumping laws need to be coordinated internationally for the transnational mobility of the dumped products themselves determines that the impact of anti-dumping measures will involve other countries and areas. Taking the anti-dumping law of America as a blueprint, anti-dumping and countervailing duties, which is Article VI of the GATT, was concluded in a concerted effort of every country in 1947.
The anti-dumping investigation is seldom until the advent of GATT. Article VI of GATT 1947 regulates basic criteria for anti-dumping measures, but due to Article VI deprived from American Anti-dumping Law which is not mature in many aspects, and due to the appellations and definitions of Article VI are ambiguous, the implementation of anti-dumping laws is difficult. The final anti-dumping measures are to impose anti-dumping tariff on the dumping enterprise and increase the importing custom duty. Although Article VI of GATT 1947 directly comes from the anti-dumping law of America, it is restricted by viewpoints of exporting countries and finally came into being. Because of the principle of anti-dumping and ambiguity of its wording, there is much space left for making different explanations according to the development of international trade.#p#分页标题#e#
Article VI of GATT 1947 is the outline of Article VI of GATT 1994 and the WTO Anti-dumping Agreements. Article VI of GATT 1994 regulates more specific criteria, within which, two sentences are most important. The first one is in paragraph 1 of Article VI of GATT 1994, “[T]he Members recognize that dumping, by which products of none country are introduced into the commerce of another country at less than the normal value of the products, is to be condemned if it causes or threatens material injury to an established industry in the territory of a Member or materially retards the establishment of a domestic industry”; The second one is in paragraph 2, “[I]n order to offset or prevent dumping, a Member may levy on any dumped product an anti-dumping duty no greater in amount than the margin of dumping in respect of such product.” The specialties of Article VI of GATT 1994 can be summarized into the following points：
1）Article VI does not oppose dumping absolutely. Article VI explains very clearly that dumping should be condemned only when dumped imports cause or threaten material injury to an established domestic industry. The clause has no explanation for dumping not causing the injury. According to the inference logic of law that no opposition is permission, dumping without injury is permitted. Generally, this clause includes two aspects. The first one is the definition of dumping; the second is the definition of whether causing material injury to the domestic like industry. The American scholar Jackson once said that, what the anti-dumping tariff restricts, and what is permitted by the international system，is not the dumping itself but the dumping that causes injury.
2）Article VI does not oppose all the dumping and therefore the second standard “material injury” is the core content with decisive factor in the clause. This clause is also reflected in later anti-dumping practice of each country. The purpose of anti-dumping laws is not to resist the dumping itself but to resist the dumping which causes injury to the domestic industry. Therefore, only by assuring dumped imports cause injury to the domestic industry can the investigation authorities take anti-dumping measures. Otherwise, the investigation authorities cannot take anti-dumping measures even the amount of dumping is huge.
3) In Article VI, what is the nature of the “be condemned” dumping which causes “material injury” to domestic industry legally? This is indeed a tough question to answer. In the clause, the word “condemn” seems to be selected after serious consideration. Van Den Bossche and Peter states that, dumping is condemned, but is not prohibited. Maybe it’s the reason way the clause of GATT prescribes that the means to offset or interdict dumping are strictly confined to “anti-dumping duty”.
Its temperate and distinctive description of the Article VI not only provides the space for its continuous existence until today, but also lays foundations for making adaptive explanations on the basis of modern life. Within the field of anti-dumping law, especially in the international and multi-lateral system, rules of law are difficult to operate practically without flexible extenuatory request while facing various situations and legal systems of various markets, as well as the rapid development of science and technology. For instance, series of terms in Article VI, such as “like product”, “domestic industry”, “normal value” and “material injury”, are difficult to be given accurate legal definitions. Therefore, it becomes a tough problem to prevent legal departments from abusing extenuatory disposal, the power with high flexibility, and fill the gap of protectionism.#p#分页标题#e#
To sum up, as a clause about principle and nature, the implementation of Article VI of the GATT 1994 requires urgently working out a detailed set of rules. In addition, with Protocol of Provisional Application as its basis, GATT is applicable temporarily. It has to make way for the present domestic laws (“Grandfather clause”) because of its lower legal status. This directly causes the later establishment of AGREEMENT ON IMPLEMENTATION OF ARTICLE VI OF THE GENERAL AGREEMENT ON TARIFFS AND TRADE 1994 (Anti-dumping Agreement) in the Uruguay Round.
2.1.3 Anti-dumping Agreement in the Uruguay Round AgreementSince 1980s, the anti-dumping law was increasingly more and more extreme and the anti-dumping measures also became a new form of trade barrier. The Uruguay Round negotiations again included the modification of anti-dumping agreement into its agenda. Korea first proposed to include anti-dumping into the Uruguay Round, because at that time Hyundai Motor, the fastest growing export of the country, was investigated for anti-dumping by Canada. Therefore, the negotiation representative of Korean government proposed to modify the anti-dumping agreement on 21, May 1987. An informal drafting group headed by Carlisle, the Deputy General Director of GATT, produced the first draft of anti-dumping, and released a discussing draft for a possible Anti-dumping Code. Most developing countries were against this draft for it contains many items to meet the demands of European countries and United States. Afterwards though GATT made lots of efforts to harmonize the conflicts between developing and developed countries, they still could not reach agreement until the appearance of Draft Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiation. (Hereinafter Dunkel Text).
Though Dunkel Text fully considered the demands of United States and European Union, the two largest members, it did not include all of their proposals particularly the one that United States demanded to regulate the situations of avoiding the products assembled in third party countries and to establish the dispute settlement mechanism. On the basis of this text, Uruguay Round successfully ended in 1994 and issued the Agreement on Implementation of ArticleⅥ of the General Agreement on Tariffs and Trade 1994, which is the anti-dumping law for the current WTO and a part of the multi-lateral agreement on non-tariff barriers in the WTO law system, establishing the general framework for all WTO members. Meanwhile, it further relaxed the requirements of applying the anti-dumping measures and extended the scope of application of anti-dumping laws, enhancing the transparency, predictability, and operability of international anti-dumping. More importantly, different from the anti-dumping agreements made in Kennedy and Tokyo Round that were only in effect for the signatory countries, this agreement is binding to all member countries. Its influence is much stronger than previous agreements. Obviously, the Anti-dumping Agreement of 1994 is the major achievement of the world economic integration.#p#分页标题#e#
Different from the Anti-dumping Code, the Anti-dumping Agreement requires all the member countries of WTO to sign and implement it. It also makes new changes or regulations on substantive and procedural laws.
1. The determination of dumpingFirst, according to the Anti-dumping agreement, the calculation of dumping margin should be the comparison of the weighted average export price with the weighted average price in domestic market of the foreign exporting country during the investigation period, or the comparison of the individual export price with the foreign exporting country’s individual domestic market. Such provision is conducive to fair calculation of anti-dumping margins. Second, when calculating the constructed value, the Agreement provides that constructed value should include the cost of manufacturing, selling, general and administrative expenses, the used sales management expenses should be based on the “average experience” pertaining to normal production and sales and the actual data; if this method cannot work, it provides alternative choice; provides that the amount for profit so established shall not exceed the profit normally realized by other exporters or producers of the like product. Third, when calculating the weighted average price in the domestic market, the Anti-dumping Agreement for the first time gives clear provision allowing the removal of selling beneath costs while at the same time provides conditions more strictly to apply, that is, “such sales are made within an extended period of time in substantial quantities and are at prices which do not provide for the recovery of all costs within a reasonable period of time.”
2. Determination of injuryThe Anti-dumping Agreement provides new clauses of determining injury in anti-dumping investigation. The Agreement for the first time clearly provides that in determination of injury the dumped imports from all countries should be all together taken into account, if : 1) the margin of dumping established in relation to the imports from each country exceeds the minimal value regulated in the Agreement and the volume of imports from each country is not negligible and 2) a cumulative assessment of the effects of the imports is appropriate in light of the conditions of competition between the imported products and the conditions of competition between the imported products and the like domestic product. Moreover, concerning the factors of injury determination, the Anti-dumping Agreement adds the item of dumping margin.
3. “Sunset” provision and transparency principle“Sunset” provision establishes that dumping duties should not last more than five years after first being applied unless a review investigation determines that expiry of the duty would likely to lead to continuation or recurrence of dumping and injury to domestic industry. In increasing the transparency of dumping determination and administrative review, the Agreement requires related administrative authorities to issue public notice on the investigation process, including initiation of investigation, enterprises and countries involved, preliminary, and final determinations, reasons for determinations, and important information concerning anti-dumping. Meanwhile, the Agreement provides that the judicial court, arbitration tribunal or administrative tribunal of the country demanding review investigation should be independent of its anti-dumping administrative authorities. These clauses are in line with the transparency principle and regulation required by WTO.#p#分页标题#e#
4. Initiation of investigationBecause the anti-dumping investigation will consume a lot of energy and money for the enterprise, the Anti-dumping Agreement provides several clauses to prevent anti-dumping investigation unless http://www.ukassignment.org/daixieEssay/falvessaydaixie/enough solid reason and proof is provided. The Agreement regulates that the related authorities can only initiated the application of anti-dumping investigation if they have the clear support of the domestic producers whose collective output is more than 50 per cent of the total production and 25 per cent of the total production of the like product in domestic industry.
5. Principle of “Best Information Available” The Anti-dumping Agreement provides that when the investigated enterprise has difficult in submitting the information requested by the anti-dumping administrative authorities or when they fail to provide sufficient information, the authorities can apply the “Best Information Available” rules. It requires that the authorities should give enough notice and opportunity for the interested party to present all evidence and at least 30 days to for them to reply the questionnaire. It also provides that due consideration should be given to any request for extension of the time to reply and requires that “the authorities shall take due account of any difficulties experienced by interested parties, in particular, small companies, in supplying information requested, and shall provide any assistance practicable”.
6. 指导法律ESSAY-Dispute settlementThe Anti-dumping Agreement provides to submit the disputes to the Dispute Settlement Body rather than the Committee on Antidumping Practices as provided in the Code. The 3-month mediation period was cancelled as well. The DSB will establish a dedicated panel to address the disputes concerning anti-dumping and provides that the investigate country shall conform to the determination of no anti-dumping ruling by the expert panel. Therefore, any country that violated the Anti-dumping Agreement spirit to rule the antidumping duty can not hinder the smooth solution of disputes as before using the provisions of the Code.