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안덕근(AHN DUKGEUN),이효영 법무부 국제법무정책과 2010 통상법률 Vol.- No.92
The World Trade Organization (WTO) dispute settlement system authorizes cross-retaliation under which the impact of disputed issues can extend not only to the pertaining industry or Agreement but, if necessary, to other covered Agreements as well. Such is one of the key features of the WTO dispute settlement system, comparable to the GATT system under which retaliation was limited only to goods trade. Furthermore, under the current WTO system, winning parties are indeed engaging in trade retaliatory measures against responding parties, while the number of cases where cross-retaliation has been authorized is on the rise. The WTO provision regulating cross retaliation is DSU Article 22. According to Article 22.3 of the DSU, which provides for the general principles and procedures on the implementation of compensation and suspension of concessions, while complaining parties should first seek to suspend concessions or other obligations with respect to the same sector(s) as that in which a violation has been found, if deemed not practicable or effective to suspend concessions with respect to the same sector(s), the party can seek retaliation under other covered agreements ('cross-sector retaliation'). In addition to that, if the party considers that the “circumstances are serious enough”, it may seek retaliation under another covered agreement (‘cross-agreement retaliation’). One of the most striking legal problems with regard to cross-retaliation concerns is the suspension of concessions under the TRIPS Agreement. With the authorization of cross-agreement retaliation, WTO members are now practically able to suspend their commitments against reneging countries within the range of authorized suspensions on goods, services trade and intellectual property protection. As a result, since the TRIPS Agreement provides for the rights of intellectual property, unlike the GATT or GATS which covers market access concessions, the legal impact of retaliation under the TRIPS Agreement can turn out quite differently. Furthermore, retaliation under the TRIPS Agreement may raise issues with regard to the direct impairment of IPR, which under normal circumstances need be preserved, economic losses to third parties, and the difficulty of calculating the appropriate level of suspensions regarding intellectual property. Up to now, there have been three cases in which cross-retaliation has been authorized: EC-Bananas III, U.S.-Gambling Services and U.S.-Upland Cotton. With regard to major legal issues, it seems that the series of arbitration panels have been able to develop more elaborate legalistic approaches, while on the other hand, there has been disagreeing positions among arbitration panels on the same issues. Such intricacies are bound to complicate future arbitration rulings, and will become subject to academic discussions regarding the guidelines and directions for the proper interpretation approaches since arbitration decisions cannot be appealed under the current dispute settlement system.
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안덕근(AHN DUKGEUN),유지영(Ji Yeong Yoo),김민정(Minjung Kim) 법무부 국제법무정책과 2015 통상법률 Vol.- No.123
As Chinese central and local governments provide numerous subsidies under the name of state capitalism, the United States, Canada, and EU are actively enforcing countervailing measures in order to cope with ever increasing Chinese exports and trade surplus. By recently concluding an FTA with China, Korea is also under strong pressure to prepare itself for potential enforcement of countervailing measures against China, in order to prevent damage on domestic industry. This study analyzes the legal basis and unique characteristics of China's subsidy measures that have been subjected to countervailing measures by WTO major trading countries. The paper sorted Chinese subsidies into four categories: 1) provision of goods by SOEs, 2) policy lending by SOBs, 3) tax benefits, and 4) grants. WTO cases, United States - Definitive Anti-Dumping and Countervailing Duties on Certain Products from China (DS379) and United States - Countervailing Duty Measures on Certain Products from China (DS437), are scrutinized for legal analysis. Eventually the paper lays out major concerns and implications for Korea's potential utilization of countervailing measures against China. Because the transitional economic system of China is the major source of ongoing trade conflict, disputes based on such extensive list of Chinese subsidy measures will only expand in the near future. Moreover, the WTO Panel and AB rulings also largely acknowledge the investigation decisions of the importing countries. Therefore, despite the political pressure, enforcement of a reasonable level of countervailing duty can be under consideration for Korea as well. Korea should equip itself with competitive investigation and enforcement capacity in order to counter, if needed, such broad and numerous Chinese subsidy measures.
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중국 환율정책에 대한 법적 대응조치와 WTO 합치성 분석
안덕근(AHN DUKGEUN),김민정(Minjung Kim) 법무부 국제법무정책과 2012 통상법률 Vol.- No.106
The exchange rate misalignment and its potential cause to bilateral trade imbalance is a recurrent and critical issue for the modern international trade regime. The political and trade conflict between US and China in recent years is a good example and the overblown threat posed by the US Congress to correct its ever-increasing trade deficit as an alleged consequence of undervalued Chinese currency suggests limited remedial mechanism in current international economic system. From the legal and regulatory perspectives, this paper reviews whether relevant IMF and WTO provisions to a Member country's exchange rate policy can effectively address the legal issues of recent US-China currency dispute: namely, legality of exchange rate policy under the GATT XV, legality under the subsidy rules, feasibility of non-violation complaints and effective redress under the IMF regime. The IMF seems to have a direct jurisdiction over the exchange rate policy but its fundamental lack of effective enforcement mechanism may prevent countries from seeking a direct and effective redress under the IMF system. On the contrary, WTO has a better enforcemenet mechanism than the IMF system but its rules are not devised to directly and effectively deal with the trade consequences of exchange rate policy.
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