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指导法律ESSAY-以下是该指导essay文章的结构： 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 指导法律ESSAY-以下是该指导essay文章，assignment按照以下要求写作： 1 不需要Introduction。 2 2.1.1章节要阐述： 2 2.1.2章节需要表明关贸总协定第6条对反倾销的定义，要求，和它的地位，特殊之处。 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 2 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) 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． 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 Agreement 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 dumping 2. Determination of injury 3. “Sunset” provision and transparency principle 4. Initiation of investigation 5. Principle of “Best Information Available” 6. 指导法律ESSAY-Dispute settlement
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