In this important book, three of the leading authors in the field
of international economic law discuss the law and economics of the
three most frequently used contingent protection instruments:
anti-dumping, countervailing measures, and safeguards. When
discussing countervailing measures, the authors also discuss legal
challenges against prohibited and/or actionable subsidies. The
authors' choice is mandated by the fact that the effects of a
subsidy cannot always be confined to the market of the WTO Member
wishing to react against it. Assuming there are effects outside its
market, an injured WTO Member can challenge the scheme as such
before a WTO Panel. Taking the three agreements for granted as a
starting point, the book provides comprehensive discussion of both
the original contracts, and the case law that has substantially
contributed to the understanding of these agreements. The
agreements discussed by the authors provide generally worded
disciplines on Members and leave a lot of discretion to the
investigating authorities of such Members. A great number of the
many questions that arise in the course of a domestic trade
remedies investigation are not explicitly addressed in these
agreements. In such a situation, the authors highlight the
important role that the judge has to play. Much like domestic
investigating authorities adopt a line which is either more liberal
or more protectionist in the application of trade remedies, the WTO
adjudicator on numerous occasions was faced with similar policy
problems in applying the general rules to the facts of the case
before them. The authors point out that the adjudicating bodies
have insisted on the unfair character of dumping in order to
substantiate their relatively deferential standard of review. In
the anti-dumping / countervailing duties context, case law has
generally emphasized the limited character of the obligations on
investigating authorities. This implies that domestic investigating
authorities, following the evolution of case law, are now facing a
deferential standard of review when imposing anti-dumping and
countervailing duties. The book offers a contrasting view of the
Agreement on Safeguards, an instrument the use of which, according
to the authors, could, in principle, be defensible: WTO Members
will have extra incentives to make commitments within a flexible
contract. Moreover, safeguards can, in their view, help ease the
pressures from domestic lobbies by facilitating (sometimes
necessary) adjustment costs. However, the case law is described by
the authors as having adopted a rather inflexible stance, the end
result of which is that no imposition of safeguards has survived
the test of consistency with WTO law. They identify the apparent
rationale for the case law as an over-insistence on what they label
the highly uninformative fair/unfair trade distinction. The
economic analysis employed by the authors would suggest that - in
the light of the unsatisfactory nature of anti-dumping measures,
contrasted with the positive incentives inherent in safeguards -
ultimately one could envisage merging the three instruments of
contingent protection into one new safeguards instrument. Equally,
they argue, this economic approach, combined with legal doctrine,
offers great insight into the current provisions, allowing them to
be interpreted in a more coherent and meaningful manner.
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