Foreign Trade in the Present and a New International Economic Order by Detlev Chr Dicke

Author:Detlev Chr Dicke [Dicke, Detlev Chr]
Language: eng
Format: epub
ISBN: 9780429730221
Goodreads: 51859748
Publisher: Routledge
Published: 2019-04-11T00:00:00+00:00

5. For the same reasons, the large number of governmental VERs and VRAs Introduced in the context of antidumping or countervailing duty proceedings are likely to impair the rights and competitive benefits accruing to third GATT contracting parties under the General Agreement. Governmental export restraints inconsistent with GATT Articles XI or XIII cannot be justified by Article VI because the General Agreement prohibits neither dumping nor export subsidies in an unconditional manner and provides only for the possibility of antidumping or countervailing duties in the importing country which alone is in a position to decide whether dumped or subsidized imports "cause or threaten material injury to an established domestic industry" (Article VI) and whether the cheap imports should be subjected to antidumping or countervailing duties because of their trade-distorting effects. The 1979 GAIT Antidumping Agreement admits private "voluntary undertakings from any exporter to revise its prices or to cease exports to the area in question at dumped prices" (Article 7) but does not authorize governmental export restraints inconsistent with GATT Articles XI or XIII as an admissible antidumping measure. The 1979 GATT Subsidy Code does, as a matter of fact, provide for the possibility of both private price undertakings to eliminate the injurious effects of subsidized exports as well as governmental undertakings "to eliminate or limit the subsidy or take other measures concerning its effects" (Article 4). But such governmental undertakings can be implemented in a GATT-conforming manner (e.g. through a nondiscriminatory export tariff). Article 4 of the Subsidy Code must therefore be construed in conformity with GATT law and cannot curtail the rights of third GATT contracting parties under GATT Article XXIII to request the withdrawal of governmental export restraints inconsistent with GATT Articles I, XI or XIIL

6. Most governmental VERs are not published and thus contravene also GAIT Article X, according to which "Laws, regulations..., decisions and administrative rulings of general application, made effective by any contracting party, pertaining to ... rates of duty, taxes or other charges, or to requirements, restrictions or prohibitions on imports or exports or ... affecting their sale ... or other use, shall be published promptly in such a manner as to enable governments and traders to become acquainted with them". The same is true for bilaterally agreed VRAs because Article X:1 stipulates that "Agreements affecting international trade policy which are in force between the government or a governmental agency of any contracting party and the government or governmental agency of any other contracting party shall also be published". The secrecy surrounding many "grey area trade restrictions" may be inconsistent not only with these transparency requirements which were designed to increase the legal certainty and reduce the international transaction costs of traders and producers in all GATT member countries, but they may also render ineffective the obligation under GATT Article X:3 to make available "judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review and correction of administrative action relating to customs matters".

7. The GATT obligations for non-discriminatory trade competition pursue also important "domestic policy objectives".

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