I. Background of the safeguard system

1947 signed the General Agreement on Tariffs and Trade (GATT) which stipulated the terms of safeguard measures. However, in practice, GATT contracting parties increasingly use so-called "grey area" measures, aiming at restricting the import of certain products, such as "voluntary export restraints" and "orderly sales arrangement", which affects normal trade and its legitimacy is questioned.

The Safeguards Agreement, which is now applicable, originated from the Uruguay Round negotiations and explicitly prohibits the use of "grey area" measures.

Second, the conditions for the use of safeguard measures

The implementation of safeguard measures must meet the following conditions:

(a) the surge in imports of a certain product, and the surge in imports is the result of unforeseen circumstances and the performance of WTO obligations by members;

(two) the surge in imports has caused serious damage or threatened serious damage to domestic industries that produce similar products or directly competitive products;

(3) There is a causal relationship between the surge in imports and the serious damage or threat of serious damage to domestic industries.

1, imports surged.

Refers to the substantial increase in product imports, including absolute growth and relative growth. Absolute growth refers to the increase in the actual import quantity of products; Relative growth refers to the increase of market share of imported products relative to domestic production in importing countries (the actual import volume does not necessarily change).

2. Serious damage or threat of serious damage

The so-called "serious damage" means "significant overall damage to a country's industrial situation." "Serious damage threat" refers to serious damage that is obviously imminent, or a key and obvious threat.

3. Causality

The investigation organ must prove that there is a causal relationship between the increase in imports of related products and serious damage or threat of serious damage according to objective evidence.

4. Unforeseen development

According to Article 19 of GATT, the contracting parties can only invoke safeguard measures when there is an unforeseeable situation (during the original tariff concession negotiations), that is, "unforeseeable development".

5. No discrimination

Safeguard measures should be applied to imported products, regardless of their source, that is, they must be implemented on the basis of non-discriminatory treatment.

Third, the specific implementation of safeguard measures.

(a) Form and duration of implementation

1, form

Safeguard measures can be tariff measures (raising tariffs to a level higher than that stipulated by GATT) or import quantity restrictions (including pure quantity restrictions and tariff quota restrictions), but they should only be implemented within the scope necessary to prevent or remedy serious damage.

2. Time limit

WTO members should only implement safeguard measures within the period necessary to prevent or remedy serious damage and promote industrial adjustment. Generally speaking, this period shall not exceed 4 years, unless it is still necessary to prevent or remedy serious damage according to new investigation, and there is evidence that the industry is undergoing adjustment, and this period can be extended. However, the full implementation period of a safeguard measure (including temporary safeguard measures) shall not exceed 8 years.

(ii) Temporary safeguard measures

In case of emergency where the delay will cause irreparable damage, the importing member may take temporary safeguard measures without consultation. The competent authorities can only take measures when it is preliminarily determined that the surge in imports has caused or is causing serious damage or threat of damage. The implementation period shall not exceed 200 days, which shall be included in the total duration of safeguard measures.

Temporary safeguard measures should take the form of raising tariffs. If the subsequent investigation cannot prove that the surge in imports has caused damage or threat of damage to domestic related industries, the increased tariffs should be refunded quickly. Members shall notify the Committee on Safeguards before taking temporary safeguard measures and consult with all stakeholders as soon as possible after taking measures.

(3) Some restrictions on the implementation of safeguard measures

If the application period of safeguard measures is expected to exceed 1 year, the importer shall gradually relax the measures at regular intervals during the application period; If the implementation period exceeds 3 years, the importer shall conduct an interim review, and cancel or accelerate the relaxation of the measure according to the review results. During the extension period, the safeguard measures should not be stricter than those originally applied, and should continue to be relaxed.

When applying safeguard measures to the same imported product again, the following provisions shall be observed: in general, there should be an inapplicable interval between two safeguard measures, which should not be shorter than the implementation period of the first safeguard measure, at least 2 years; If the application period for safeguard measures is ≤ 180 days, and safeguard measures have not been taken twice for the same product within five years before the implementation date of this measure, a new application for safeguard measures can be made for the same imported product after 1 year from the implementation date of this measure, and the implementation period is at most 180 days.

(4) Compensation and retaliation

Since safeguard measures are aimed at the import of products under fair trade conditions, their implementation will inevitably affect the legitimate interests of exporters. Therefore, relevant members can negotiate appropriate trade compensation methods on the adverse effects of safeguard measures on trade. Compensation is usually in the form of reducing tariffs on goods of interest to the exporting member countries affected by the measures. If the compensation agreement cannot be reached within 30 days, the affected exporters may suspend the substantially equivalent concessions or other obligations to the importers under GATT 1994 on the basis of reciprocity, that is, take reciprocal retaliation. However, reciprocal retaliation should be implemented within 90 days after the importer implements safeguard measures and within 30 days after the Council for Trade in Goods receives the written notice from the exporter on the suspension of obligations, and the Council for Trade in Goods has no objection to the suspension.

However, if the safeguard measures are taken due to the absolute increase of imports, and the measures comply with the provisions of the Agreement on Safeguards, the exporters shall not take reciprocal retaliatory measures within three years from the date of implementation of the safeguard measures.

Four. Procedural requirements

The Agreement on Safeguard Measures stipulates the detailed procedures for implementing safeguard measures, which mainly includes three links: investigation, notification and consultation.

Verb (abbreviation of verb) preferential treatment for developing country members

The Agreement on Safeguards has made special provisions for developing members. For products from developing members, as long as the import share of related products does not exceed 3% and the total import share from developing members does not exceed 9% in the total import of related products, safeguard measures shall not be implemented for products from developing members.

Developing members also enjoy special treatment in the extension and re-implementation of safeguard measures. Developing members have the right to extend the implementation period of safeguard measures for another two years (that is, as long as 10 year) on the basis of the prescribed maximum period. In the re-application of safeguard measures, the provisions for developing members are also more relaxed.

The application of safeguard measures for intransitive verbs in recent years

With the implementation of 1995, the original "grey field" measures have been replaced by safeguard measures, and safeguard measures are easier to start than anti-dumping investigations because there is no requirement for dumping calculation. In recent years, safeguard measures have been used more and more in international trade, and some safeguard measures have become alternative tools for anti-dumping measures. In fact, the impact of safeguard investigation is far greater than that of anti-dumping investigation, because anti-dumping measures are aimed at a single country, while safeguard measures are aimed at all foreign imports. Usually, the countries participating in the investigation of safeguard measures are usually 5- 10 countries. In this way, the 132 safeguard investigation initiated in 2002 is actually equivalent to the 660- 1320 anti-dumping investigation. A particularly noteworthy trend is that some developing countries have also joined the ranks of users of safeguard measures.

On the other hand, we can also see that it is not easy for a safeguard measure to meet so many conditions at the same time. In fact, almost all cases of safeguard measures violated several requirements for implementing safeguard measures to some extent, so the party taking safeguard measures was declared to have lost the case. In June 2003, 5438+065438+1October 10, the Appellate Body of WTO made a ruling report on the case of EU, Brazil, China and other members v. US 20 1 Steel Safeguard Measures, which supported most of the conclusions made by the expert group earlier and concluded that the US measures were not in conformity with the WTO Safeguard Agreement and GATT/KLOC.

Therefore, it can be predicted that with the rise of protectionist forces in international trade, the application of safeguard measures will definitely increase in the next few years. At the same time, the number of disputes about submitting safeguard measures to the WTO will also increase.

Seven. conclusion

As a temporary measure, safeguard measures are aimed at reducing product imports so that domestic industries can adapt to the increasing competitive pressure from foreign suppliers. For members, GATT Article 19 and the Agreement on Safeguards become safety valves to protect them from damage due to the sharp increase in imports.

From the legislative point of view, the implementation of the Agreement on Safeguards is a great progress compared with the situation before the establishment of WTO, but its shortcomings and ambiguities still exist. For this reason, the WTO dispute settlement body has accepted more and more disputes caused by the use of safeguard measures by member States. In order to prevent the improper use of this measure, it is necessary to correctly interpret and apply the relevant safeguard measures of WTO. It is believed that the new round of multilateral trade negotiations of the WTO will discuss and clarify relevant issues.