Materi Kuliah Hukum Perdagangan Internasional
6/20/2016
Safeguard Measures
The right to apply safeguard measures reflects the
recognition that in some situations, certain
measures (tariffs that exceed bindings or
quantitative restrictions) may be available to
members to, conditionally and temporarily,
protect domestic industry against unforeseeable
and unexpected economic circumstances. Unlike
anti-dumping and countervailing measures, the
application of safeguards do not depend on
"unfair trade actions.
6/20/2016
General Safeguard
A WTO Member may impose a safeguard measure
(i.e.), temporarily restrict imports of a product to
protect a domestic industry from an increase in
imports of a product which causes or threatens to
cause serious injury to the domestic industry.
Safeguard measures can take the form of an
increased tariff (customs duty) at a higher level than
the bound rate, or a quota. In principle, the MFN
Principle must be observed, as safeguard measures
have to be applied irrespective of the source of
imports.
GATT Article XIX: Emergency Action on
Imports of Particular Products
If, as a result of unforeseen developments and of the
effect of the obligations incurred by a Member under
this Agreement, including tariff concessions, any
product is being imported into the territory of that
Member in such increased quantities and under such
conditions as to cause or threaten serious injury to
domestic producers in that territory of like or directly
competitive products, the Member shall be free, in
respect of such product, and to the extent and for
such time as may be necessary to prevent or remedy
such injury, to suspend the obligation in whole or in
part or to withdraw or modify the concession.
6/20/2016
GATT Article XIX
" if, , any product is being imported
in such
increased quantities and under such conditions "; and
Agreement on Safeguards Art. 2.1
" if,
that such product is being imported
in such
increased quantities, absolute or relative to domestic
production, and under such conditions
The reference to increased quantities being
imported, either in absolute or in relative terms, is
an indication of a surge in imports. Surge in
imports should be examined in the light of:
the relevant period prior to the safeguard
measure to be undertaken; and
like domestic product.
6/20/2016
GATT Article XIX and Agreement on Safeguards Article 2.1
" to cause or threaten (to cause) serious injury to domestic
producers
"Serious injury" is another concept central to the use of
safeguard measures. Before a safeguard measure can be
imposed, the WTO Member must have determined that:
The quantity of imported products has increased (see
above);
The domestic industry that produces like or directly
competitive products is suffering serious injury or if there is a
threat it will suffer serious injury; and
The cause of the serious injury (or threat thereof) is the
increase in imports (causality link).
Agreement on Safeguards Article 3
" A Member may apply a safeguard measure only
following an investigation "
Safeguard investigations under the Agreement on
Safeguards has to fulfil certain requirements such as, it must
include public notice for hearings and other appropriate
means for interested parties to present evidence, including
on whether a measure is in the public interest.
In critical circumstances, a provisional safeguard measure
may be imposed if there is a preliminary determination that
an industry suffers serious injury. However, the provisional
measure should not exceed 200 days. Article 3 of the
Agreement on Safeguards contains the detail of the
procedure.
6/20/2016
Agreement on Safeguards Article 5.1 level of the safeguard
measure
"A Member shall apply safeguard measures only to the extent
necessary to prevent or remedy serious injury and to facilitate
adjustment "
However, "extent necessary to prevent or remedy serious
injury" is not easy to determine. Generally, where
quantitative restrictions are imposed, they should
normally not reduce the quantities of imports below the
annual average for the last three representative years
for which statistics are available, unless clear justification
is given that a different level of restriction is necessary to
prevent or remedy the serious injury or threat thereof.
Agreement on Safeguards Article 7
safeguard measure.
duration of the
A WTO Member may apply safeguard measures
only for the time necessary to prevent or remedy
serious injury and to facilitate adjustment. The
period shall not exceed four years, unless it is
extended under paragraph 2 of Article 7.
6/20/2016
Forms of Safeguard Measures
Safeguard measures can take the form of an
increased tariff (customs duty) at a higher level than
the bound rate (see the "Binding" Principle), or a quota
(see the "QR prohibition" Principle). In principle, the
MFN Principle must be observed, as safeguard
measures have to be applied irrespective of the
source of imports.
GATT Art XII ‐ Safeguard Measures In Situations of
Balance‐of‐payment (BOP) Difficulties
GATT Article XII Restrictions to Safeguard the Balance of
Payments
Notwithstanding the provisions of paragraph 1 of Article
XI, any Member, in order to safeguard its external
financial position and its balance-of-payments, may
restrict the quantity or value of merchandise permitted
to be imported, subject to the provisions of the following
paragraphs of this Article.
6/20/2016
Special Safeguards (Agriculture)
The special "agricultural" safeguard can be used:
Where imports of a product exceed the trigger
volume -a level relating to the existing market access
opportunities for that product.
Where the price at which imports of a product enter
the territory falls below a reference price (the trigger
price), which is equal to the average 1986 to 1988
reference price for the product. This reference period
was agreed upon by the participants in the Uruguay
Round.
If the pertinent WTO Member has reserved its right to
use the special agricultural safeguard, indicating it in
its Schedule.
Safeguard Measures Under GATS
Emergency safeguards in services are expected to
allow for the temporary suspension of market access,
national treatment and/or any additional
commitments that members had assumed in each
services sector.
Safeguard Measures
The right to apply safeguard measures reflects the
recognition that in some situations, certain
measures (tariffs that exceed bindings or
quantitative restrictions) may be available to
members to, conditionally and temporarily,
protect domestic industry against unforeseeable
and unexpected economic circumstances. Unlike
anti-dumping and countervailing measures, the
application of safeguards do not depend on
"unfair trade actions.
6/20/2016
General Safeguard
A WTO Member may impose a safeguard measure
(i.e.), temporarily restrict imports of a product to
protect a domestic industry from an increase in
imports of a product which causes or threatens to
cause serious injury to the domestic industry.
Safeguard measures can take the form of an
increased tariff (customs duty) at a higher level than
the bound rate, or a quota. In principle, the MFN
Principle must be observed, as safeguard measures
have to be applied irrespective of the source of
imports.
GATT Article XIX: Emergency Action on
Imports of Particular Products
If, as a result of unforeseen developments and of the
effect of the obligations incurred by a Member under
this Agreement, including tariff concessions, any
product is being imported into the territory of that
Member in such increased quantities and under such
conditions as to cause or threaten serious injury to
domestic producers in that territory of like or directly
competitive products, the Member shall be free, in
respect of such product, and to the extent and for
such time as may be necessary to prevent or remedy
such injury, to suspend the obligation in whole or in
part or to withdraw or modify the concession.
6/20/2016
GATT Article XIX
" if, , any product is being imported
in such
increased quantities and under such conditions "; and
Agreement on Safeguards Art. 2.1
" if,
that such product is being imported
in such
increased quantities, absolute or relative to domestic
production, and under such conditions
The reference to increased quantities being
imported, either in absolute or in relative terms, is
an indication of a surge in imports. Surge in
imports should be examined in the light of:
the relevant period prior to the safeguard
measure to be undertaken; and
like domestic product.
6/20/2016
GATT Article XIX and Agreement on Safeguards Article 2.1
" to cause or threaten (to cause) serious injury to domestic
producers
"Serious injury" is another concept central to the use of
safeguard measures. Before a safeguard measure can be
imposed, the WTO Member must have determined that:
The quantity of imported products has increased (see
above);
The domestic industry that produces like or directly
competitive products is suffering serious injury or if there is a
threat it will suffer serious injury; and
The cause of the serious injury (or threat thereof) is the
increase in imports (causality link).
Agreement on Safeguards Article 3
" A Member may apply a safeguard measure only
following an investigation "
Safeguard investigations under the Agreement on
Safeguards has to fulfil certain requirements such as, it must
include public notice for hearings and other appropriate
means for interested parties to present evidence, including
on whether a measure is in the public interest.
In critical circumstances, a provisional safeguard measure
may be imposed if there is a preliminary determination that
an industry suffers serious injury. However, the provisional
measure should not exceed 200 days. Article 3 of the
Agreement on Safeguards contains the detail of the
procedure.
6/20/2016
Agreement on Safeguards Article 5.1 level of the safeguard
measure
"A Member shall apply safeguard measures only to the extent
necessary to prevent or remedy serious injury and to facilitate
adjustment "
However, "extent necessary to prevent or remedy serious
injury" is not easy to determine. Generally, where
quantitative restrictions are imposed, they should
normally not reduce the quantities of imports below the
annual average for the last three representative years
for which statistics are available, unless clear justification
is given that a different level of restriction is necessary to
prevent or remedy the serious injury or threat thereof.
Agreement on Safeguards Article 7
safeguard measure.
duration of the
A WTO Member may apply safeguard measures
only for the time necessary to prevent or remedy
serious injury and to facilitate adjustment. The
period shall not exceed four years, unless it is
extended under paragraph 2 of Article 7.
6/20/2016
Forms of Safeguard Measures
Safeguard measures can take the form of an
increased tariff (customs duty) at a higher level than
the bound rate (see the "Binding" Principle), or a quota
(see the "QR prohibition" Principle). In principle, the
MFN Principle must be observed, as safeguard
measures have to be applied irrespective of the
source of imports.
GATT Art XII ‐ Safeguard Measures In Situations of
Balance‐of‐payment (BOP) Difficulties
GATT Article XII Restrictions to Safeguard the Balance of
Payments
Notwithstanding the provisions of paragraph 1 of Article
XI, any Member, in order to safeguard its external
financial position and its balance-of-payments, may
restrict the quantity or value of merchandise permitted
to be imported, subject to the provisions of the following
paragraphs of this Article.
6/20/2016
Special Safeguards (Agriculture)
The special "agricultural" safeguard can be used:
Where imports of a product exceed the trigger
volume -a level relating to the existing market access
opportunities for that product.
Where the price at which imports of a product enter
the territory falls below a reference price (the trigger
price), which is equal to the average 1986 to 1988
reference price for the product. This reference period
was agreed upon by the participants in the Uruguay
Round.
If the pertinent WTO Member has reserved its right to
use the special agricultural safeguard, indicating it in
its Schedule.
Safeguard Measures Under GATS
Emergency safeguards in services are expected to
allow for the temporary suspension of market access,
national treatment and/or any additional
commitments that members had assumed in each
services sector.