I. overview of WTO dispute settlement mechanism
Dispute Settlement Mechanism (the Dispute Settlement Mechanism is the core of the WTO system, shall be prescribed by the GATT article 22, article 23 trade Dispute Settlement Mechanism, after nearly half a century of accumulated experience and form the habit of rule, gradually formed a set of international judicial Mechanism is international economic law characteristics, is considered to be the most unique contribution to the "WTO".
Although in the past more than half a century, the GATT/WTO dispute settlement mechanism for the good operation of the multilateral trading system provides a strong guarantee, but how to effectively participate in developing countries and the use of this mechanism, has been the most prominent problems affecting its function into full play. The active participation of developing countries in the dispute settlement is the fundamental role of this mechanism to truly succeed and to better integrate developing countries into the multilateral trading system. Therefore, the special and differential treatment of developing countries is a basic principle of WTO multilateral trading system, and there are corresponding provisions and specific arrangements in WTO dispute settlement mechanism.
There is no denying the fact that the WTO is to give developing countries a lot of special and differential treatment (special anddifferential treatment), such as "on dispute settlement rules and procedures of understanding" (hereinafter referred to as "DSU") article 3.12 (about according to the parties to the general agreement on tariffs and trade (gatt) exception to all the April 5, 1966, decided to program), article 4.1 (about negotiation), article 8.1 (about the composition of the expert group), article 12.1 (about negotiation time), article 12.11 (report of the expert group), 21.2, 21.7, 21.8 (about) of article and article 24 (about the least-developed country members of the special program), article 27.2 (about the secretariat. The strengthened new WTO dispute settlement mechanism was seen as "a powerful tool to keep developing countries from suffering from the bilateral pressures of developed countries".
Ii. China's application of this mechanism for the possible obstacles to anti-dumping litigation
(I) the status quo of China's anti-dumping litigation
From 1979, the European Union to our country of saccharin sodium filed anti-dumping charges, as of the end of march, 21 years have been 29 countries and regions of 422, China's export products launched anti-dumping investigations involving 4, a variety of goods, first on the list of the world at least affect the exports of more than $1. In the past two years, there have been 38 cases of anti-dumping cases against Chinese bulk exports.
After joining the WTO, two key issues of the anti-dumping and anti-dumping siege of our export products still exist, and the first is the growing trend of countries that have filed anti-dumping charges against our country. Second, the foreign anti-dumping discriminatory policies in the near future will not have too big change, such as in determining the existence of dumping, still can use country way, which may make it easier for foreign anti-dumping litigation in China.
(2) China may encounter obstacles in the application of WTO dispute settlement mechanism
China's accession to the WTO as a developing country naturally enjoys the special and differential treatment of the above-mentioned series of developing countries. But none of these provisions of the text means that our country can "rely" on the "gift" of the membership of developing countries. It is not difficult to find out that developing countries should use the WTO dispute settlement mechanism to protect their rights and interests and inevitably encounter a series of problems:
Long deadlines
WTO dispute settlement schedule
Consultation 6,
Establish a panel of experts and appoint members 45 days
The final report was submitted for June
The final report is submitted to WTO members for 3 weeks
Dispute settlement body (if no appeal) 6
Total (without appeal) 1 year
The appellate body reports 6-9
The dispute settlement mechanism was reported by the appellate body for 3 days
Total (for example) 1 year and 3 months
Data source: WTO: \ Trading into the Future "(2ndedition revised, April 1999), p39.
The changes of the international market, rapidly changing, end of such a lengthy dispute settlement procedures, even if finally gets the result of "justice", might share of the international has long been dominated by other countries, "justice is unfair" for being late.
2. Limited compensation
Article 3.7 of the DSU specified "compensating method can only be immediately withdrawn measures not row can take, and should be effect before the cancellation are inconsistent with applicable agreement measures interim measures", the GATT is aimed to protect the competitive relationship between imported and domestic products, generally can't retroactively, and creating "has lost the competition opportunity", moreover, generally cannot calculate and pay "the volume of trade has lost". This impact on developing countries also particularly, because these countries do not have enough economic strength illegal measures to resolve the complaint in the period of the "legitimate" brought about by the negative effects.
3. Weaknesses in retaliation
If the country is not revoked complaints by the DSB identified as "unacceptable" (inadmissible) measures, and its losses suffered by the affected country can take quite a retaliatory measures, namely the suspension to give the complaint within the framework of the WTO agreement of concessions or other commitments. But history shows that revenge is effective only in economic strength quite between countries, because it is self-destructive behavior, first of all it first to revenge the damage, especially in the international trade relations.
Huge expenditure and operational technical problems
The WTO dispute settlement mechanism involves many extremely complex and highly technical matters, and it is difficult for developing countries to find competent legal experts in their countries. Such financial and human resource constraints are sufficient to make use of the mechanism in these countries to constitute a serious "soft constraint". These problems have led to the choice of a clear policy in the choices for developed and developing countries seeking relief from the WTO.
According to the above analysis, we feel that if we want to reverse the adverse situation of our country in anti-dumping litigation, we must learn to use WTO dispute settlement skillfully and flexibly. And you can do now is based on the analysis of the existing in the WTO dispute settlement mechanism as a case, through the case analysis is familiar with the whole process, so as a case study of the WTO dispute settlement mechanism has an important reference to our country.
Case analysis -- the European Union and India cotton flaxen sheet anti-dumping case 8
As of December 31, 1999, deal with 123 kinds of products on the WTO dispute settlement mechanism, is of the highest rates of agricultural products, textiles and clothing, including textiles and clothing, a total of 12 kinds of 9.6% 9. India and China belong to developing countries, textiles are the major export products, the two countries and India have been involved in five disputes under the WTO dispute settlement mechanism, accumulated certain experience. Therefore, I think the reference of "India bed sheet case" has great reference value to our country.
In this case, the author thinks that the content of reference to our country is mainly concentrated in the following two points:
1, India think with the 1994 "anti-dumping agreement" (hereinafter referred to as the "agreement") methods, the ec methods lead to higher total dumping margins, "zeroing" do not tally with the anti-dumping agreement paragraph 2.4.2.
2 to the ec, India has repeatedly stressed: as a developing country, sheet exports and the textile industry is particularly important to India's domestic economy, the ec is not in accordance with article 15 "anti-dumping agreement" for developing countries preferential provisions of the "carefully study the possibility of using constructive remedies under this agreement" (Possibilities of constructive remedies provided for by thisAgreement shall be explored) anti-dumping duties.
Although the WTO panel has ruled that the eu has consistently adopted anti-dumping measures that are unreasonable and need to be amended. But at the same time, the panel think agreement article 15 although there is no required member states investigation authorities in the developed countries must accept a price undertaking from a developing countries, but the ec in India has a clear price undertakings desire pure passive state (pure passivity) in violation of the provisions of the agreement article 15. The author thinks that from the panel's report panel found more inclined to the damage for dumping, rather than the emphasis on the status of the developing countries, rather than the previous domestic scholars think "which better reflects the developing countries' interests". "Our country is a developing country and will enjoy the preferential treatment of developing countries after the resumption of the agreement... rule 15."
On the case analysis, further effectively proves that our country if you want to be overly dependent on the status of the developing countries, begging for hope from the WTO have special "care" for developing countries in the expectation of special interest is not too realistic. We should do is through correct understanding of the "game rules" of the WTO dispute settlement mechanism, active and good at using the mechanism, fair and reasonable solutions to the WTO after our country in the dumping in the field of international trade disputes, get rid of the past always in the passive situation in the field of anti-dumping, to maximize the interests of China's accession to the WTO, this is the right way to solve the pressure of our country's accession to the WTO.
Fourth, China faces antidumping litigation, what is the future?
Practice has proved that the WTO trade dispute, involving the interests of the state and the welfare of the people, the WTO trade dispute, for example, in the case of countries, once lost, lost is not as measured by the number can corresponding market share not only may be lost, but also to change the law, to further open the market. Therefore, we must pay more attention to the anti-dumping case and make full use of our rights as a member of the WTO and fulfill relevant obligations. In the face of the great pressure of the anti-dumping lawsuit brought by China after entering wto, the author thinks that the following five aspects can be carried out:
1. Establish monitoring mechanism and correction mechanism for anti-dumping, and achieve the effect of early warning.
In principle, all export enterprises can be accused of dumping, so the author believes that it is better to establish a better mechanism for the monitoring of antidumping. WTO members undertake the obligation to review all factors that may cause domestic industry damage. These include the reduction and transformation of demand, technological progress or the level of domestic industrial production and low capacity. Under certain antidumping regimes, the domestic industry's own decline may be seen as an excuse for dumping. So our country should pay attention to all aspects of the information collection, collect information, to conduct the risk assessment of the possibility of new anti-dumping investigations, establish correct mechanism to limit exports or adjust the export prices, thus reducing the margin of risk or reduce the damage caused by anti-dumping investigation. At the same time, China should use the WTO dispute settlement mechanism more reasonably and effectively, such as taking full advantage of the "non-illegal prosecution" of article 23 of the GATT.
Of course is not advocated to all disputes to the DSB, frequently on the litigation both in human and financial resources of our country are unbearable, but our country can use the WTO dispute settlement mechanism of "diplomacy" seek timely solutions.
2. Determination of substitute country standard
Anti-dumping measures, as the WTO's permitted trade policy instruments, will remain in the WTO framework for a long time. After China's accession to the world trade organization, its products and enterprises are subject to anti-dumping investigation by other countries or regions, which will not improve or change rapidly. On the contrary, due to a variety of China's accession to the WTO tariff or non-tariff barriers disappear completely or is greatly abate, other countries or regions will be more dependent on anti-dumping measures under the WTO legal measures against Chinese products, to protect their own industries, therefore, "on a world scale, our country export enterprise anti-dumping environment" is likely to get worse.
We must admit that the problem facing Chinese exporters is more serious because he is not automatically seen as a market economy country's export. The author thinks that, choose a market economy country to determine China's domestic price or the cost of production of the products is a risky behavior, and will never get the right results, because due to the different products, what's more, the economic environment may exist significant difference. Transfer to the website at www.kanzhun.com
In accordance with the protocol of the People's Republic of China on accession to the world trade organization (the protocol), the third country can still be used instead of the price of the third country. General provisions in the wto protocol article 15 a (ii) "if the manufacturer of the surveyed could not made it clear that the production of similar products industry in the manufacturing of the product, production and sales of market economy. So, as the importer of the wto members can use some not strictly based on China's domestic prices or costs more." Once the normal value is not reasonable, dumping is easy to be determined, and in anti-dumping litigation, China is more likely to lose.
Therefore, our country has also made detailed regulations on this issue in the WTO entry document, which prevents other members of the WTO from abusing this power, which has damaged our legitimate interests. Article 151 of the report on China joining the working group is also limited to the use of comparable prices:
(a) when WTO members importer in some cases to determine price comparability way not to compared with China's domestic prices and costs strictly do foundation, the member states should ensure that clear and announced in advance... It is.
(b) WTO member importing countries should ensure that their market economy standards and price-comparability methods are notified of the anti-dumping committee of practices before they are implemented.
(c) the investigation process should be transparent.
(d) WTO member importing countries should give notice of the situation it needs and provide sufficient opportunities for Chinese manufacturers and exporters to give evidence in writing of a specific event.
(e) WTO member importing countries should provide China's manufacturers and exporters with a full opportunity to protect their interests in a specific event.
(f) WTO member importing countries should provide detailed reasoning on their initial and final determination in a particular event.
And the calculation method is also not use forever, general provisions in China's wto accession protocol specified in article 15 (d) "in China based on as the importer of the world trade organization (wto) members of the national law confirmed that its economy is a market economy under the provisions of the (a) above shall terminate, if the members of the national law in its accession to the wto contain the characteristics of the market economy".
3. Improve relevant laws and regulations and establish perfect anti-dumping and prosecution mechanisms
In China's accession working party report and the fourth part of the policy of "affect trade in goods" section 13 (B) "anti-dumping duties and countervailing duties" to "national law" article 149 made a clearly defined, in the protocol section 15 (d) a small section of the "national law" in a word, should be interpreted to include not only the law but also on the laws, regulations and administrative rules. Once China joins the WTO, it will abide by its package agreement and guarantee domestic legislative, judicial and administrative aspects
