• International Commerce and Information Review
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• v.8 no.2
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• pp.211-226
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• 2006

This paper discusses the definition of the term "domestic industry" in relation to the application of the safeguards provisions of the WTO through the judicial interpretation made by the WTO Appellate Body and panel. The requirements for the imposition of safeguards include a rapid increase in import quantity, the existence of serious injury or threat of serious injury to the domestic industry, and a causal relationship between the increase in imports and the industrial injury. The domestic industry refers to the producers that account for a considerable portion of the total national production, or the national producers who produce articles "like" or "directly competitive" with the specific imports. Chronically, there have been controversial disputes relating to the interpretation of the term "like" or "directly competitive". Reviewing the disputes relating to the term "domestic industry" in application of the safeguards provisions since the establishment of the WTO, the interpretation of the term "like" has been made imposing weight on the physical characteristics of the products. This interpretation is in contrast with that of the interpretation of the term "directly competitive" which has been interpreted with imposed weight on the commercial elasticity of substitution which can be measured by the final use or consumer's taste.

• International Commerce and Information Review
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• v.13 no.1
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• pp.271-298
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• 2011

This paper seeks the proper and efficient operation of Korea's safeguard mechanism by examining the judicial interpretation and application of the safeguard measures under the WTO Safeguard Agreement. The judicial examination is focused on the terms of "unforeseen development" in GAIT XIX, "evaluation of all relevant factors", and "clear justification of measure" in Safeguard Agreement. Such an intensive examination. of the judicial interpretation is used for the comparative analysis of the Korea's domestic provisions to find out problems in operation and the interpretative and legislative responses to them. It is found that the Korea's adaptation of the Safeguard Agreement into the domestic provisions and the operation of such provisions in the practical field have generally been consistent with the WTO's basic principles and provisions. Korea's safeguard mechanisms should stably be operated for securing the proper protection of domestic industry under certain emerging circumstances. For such policy objective to be ensured, it is legislatively required to make additional provisions in line with the appellate body's consistent interpretations of the debating issues including the term of unforeseen development.

• International Commerce and Information Review
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• v.19 no.1
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• pp.155-187
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• 2017

In the US, the Sections 301 of the Trade Act of 1974 are still being used to resolve disputes. The U.S' such unilateral retaliations grounded on the Sections 301 of the Trade Act, in fact, violate the WTO agreements and hinder the development of international trade as the trade partner may assume it as a reprisal move impeding the fair settlement of disputes. Here, this study is going to examine the characteristics and functions of the WTO dispute settlement system briefly and compare the countermeasures recognized to be legitimate by the WTO with the U.S' unilateral retaliation. Also, this author will analyse the US-Japan Automobiles (DS6) and EC-Bananas III (DS27) as one of the typical cases resulted from the unilateral retaliation. According to the result, these cases do not conform to WTO-consistency, and it implies that it is absurd to accept the US' unilateral retaliation internationally. In conclusion, presently, it is a global trend to solidify protectionism, and to vitalize trade and resolve trade disputes efficiently, it is needed to prohibit the recourse to unilateral retaliations and also positively apply the WTO dispute settlement system(DSU) defining rules about how to strengthen the multilateral system.

• International Commerce and Information Review
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• v.8 no.4
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• pp.209-227
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• 2006

This paper analyse current interpretation of the "causal link" that in particular, focuses principally on the so-called "non-attribution" requirement of Article 4.2(b) of the Safeguards Agreement. The safeguard measures are justified as a temporary economic adjustment to harm that is caused by an increase in imports. The problem with this justification is that there are other kinds of economic forces that may injure domestic industries, such as changes in consumer tastes, government spending or a lack thereof, and economic downturns. These problems do not justify government-imposed remedies. When factors therefore other than increased imports are causing injury to the domestic industry at the same time, such injury shall not be attributed to increased imports. The Appellate Body stressed that a contribution of third-party imports to the existence of serious injury must be sufficiently clear as to establish the existence of the causal link required, it found that Article 4.2(b) does not suggest that increased imports be the sole cause of the serious injury, or that other factors causing injury must be excluded from the determination of serious injury. The interest in separation is to ensure that a measure is not applied to remedy harm not caused by imports, but this basic point assumes that the harm is distinguishable in the first place. It also assumes that the safeguard is designed to respond to harm caused by imports. In fact safeguards were never intended to respond to this kind of unfair trade, but rather to provide whatever emergency relief might assist an ailing domestic industry if imports happened to be a part of that injury. The Appellate Body's insistence in breaking cause and effect down to minutia in the non-attribution analysis seems to be so overly intricate that it conflicts with it's broader focus on evaluating factors that effect harm on the industry as a whole.

• Korea Trade Review
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• v.44 no.4
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• pp.19-34
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• 2019

This study investigates the WTO dispute over Japanese fishery products originated from Fukushima and another seven prefectures. Being subject to an import ban and additional radioactive test requirements, Japan complained that the Korean government's trade measures are inconsistent with the principles of the Agreement on Sanitary and Phytosanitary Measures. This paper considered the contrasting judicial decisions made by the Panel and Appellate Body and analyzed the debates with respect to their trade-discriminatory effects (Article 2.4), the relevance of appropriate level of protection (Article 5.6) and the precautionary approaches (Article 5.7). Consistent with the final rulings, this paper identifies the need for a broaden understanding of regional conditions and qualitative aspects of protection in risk analysis. Findings also suggest that Korea has diverted its fishery imports from Japan to other countries, while Japan has created export diversion from Korea to other destinations.

• Analyses & Alternatives
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• v.2 no.1
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• pp.31-69
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• 2018

This study examines the role of science in resolving trade disputes. After the Great East Japan Earthquake of 11 March 2011 that not only jeopardized the people of Japan, but also put the safety of an entire region at risk, the Republic of Korea (Korea) has imposed import bans as well as increased testing and certification requirements for radioactive material on Japanese food products. Japan has challenged these restrictions at the World Trade Organizations Dispute Settlement Body (DSB). This study aims to explain how international trade agreements and previous DSB rulings have dealt with different scientific viewpoints provided by confronting parties. In doing so, it will contrast the viewpoints espoused by Korean and Japanese representatives, and then analyzes the most similar case studies previously ruled on by the DSB, including the case of beef hormones and the case of genetically modified crops including biotech corn, both between the United States and the European Communities (EC). This study finds that science is largely subordinate to national interests in the case of state decision-making within the dispute settlement processes, and science has largely been relegated to a supportive role. Due to the ambiguity and lack of truly decisive decisions in the Appellate Body in science-based trade disputes, this study concludes that the Appellate Body avoids taking a firm scientific position in cases where science is still inconclusive in any capacity. Due to the panel's unwillingness to establish expert review boards as it has the power to do, instead favoring an individual-based system so that all viewpoints can be heard, it has also developed a system with its own unique weaknesses. Similar to any court of law in which each opposing party defends its own interests, each side brings whatever scientific evidence it can to defend its position, incentivizing them to disregard scientific conclusions unfavorable to their position. With so many questions that can arise, combined with the problems of evolving science, questions of risk, and social concerns in democratic society, it is no wonder that the panel views scientific information provided by the experts as secondary to the legal and procedural issues. Despite being ruled against the EC on legal issues in two previous cases, the EC essentially won both times because the panel did not address whether its science was correct or not. This failure to conclusively resolve a debate over whose science is more scientific enabled the EC to simply fix the procedural issues, while continuing to enforce trade restrictions based on their scientific evidence. Based on the analysis of the two cases of disputes, Korea may also find itself guilty of imposing an unwarranted moratorium on Japan's fish exports, only to subsequently pass new restrictions on labelling and certification requirements because Japan may have much scientific evidence at its disposal. However, Korea might be able to create enough uncertainty in the panel to force them to rule exclusively on the legal issues of the case. This will then equip Korea, like the EC in the past, with a way of working around the ruling, by changing whatever legal procedure they need to while maintaining some, if not most, of its restrictions when the panel fails to address its case on scientific grounds.