■ 당해사안에서는 입증책임, 사안의 검토기준, 그리고 미국의 과도적 세이프가드 조치가 ATC 제6조에 부합되게 적용되었는지의 여부, 심각한 피해가 발생했는지의 여부가 양당사국간에 주요쟁점이 되었음.
■ 패널은 미국측의 과도적 세이프가드 조치가 ATC 제2조에 부합하지 않는다는 사실에 대한 입증책임은 제소국인 인도에게 있으며, 검토기준은 미국의 조치가 WTO 규정에 잘 부합하는지에 대한 객관성 평가를 하는데에 제한된다고 평결함. 패널은 또한 미국이 과도적 세이프가드 조치를 부과하기 위한 ATC 제6조의 실체적 요건을 충족시키지 못함으로써 ATC 제6조는 물론이고 ATC 제2조를 위배했다고 평결함.
■ 한편, 인도는 패널의 특정 법이슈 및 해석에 대해 상소기구에 상소하였는 바, 상소기구는 일부 패널논리의 명확성에 대한 문제점을 지적하였으나, 패널이 법적 오류를 범하지는 않았다며 패널평결을 지지하였음.
■ 당해분쟁은 입증책임의 소재, 심사범위를 결정하는 검토기준, 심각한 피해에 관한 입증등 향후 각종 분쟁에서 매우 중요하게 다루어질 가능성이 있는 법적·경제적 이슈에 대한 기준과 지침을 제시하고 있음. 동 사안은 특히 향후 섬유교역과 관련된 분쟁은 물론이고 일반세이프가드 조치와 관련된 분쟁에도 좋은 시사점을 제공할 것으로 보임.
1. Claims at the Panel Stage
India claimed that the United States violated Article 6 of the Agreement on Textile and Clothing ("ATC") in imposing the safeguard measure. India brought the matter before the DSB, arguing that the United States nullified or impaired benifits accruing to India under the ATC. However, the United States rejected those claims, arguing that it had complied with all the requirements of Article 6 of the ATC. Major issues in the dispute are as follows:
On the issue of burden of proof, India argued that, since the transitional safeguard measure taken by the the exceptions. On the other hand, the United States argued that India, as the party making the claim, bore the burden of presenting a prima facie case of violation before panel.
On the issue of standard of review, India argued that the task of the Panel was to determine whether the United States had observed the requirements of Article 6 in good faith, not whether it had acted reasonably. On the other hand, the United States responded that the task of the Panel was to consider whether the US authorities could reasonably and in good faith have determined that serious damage or actual threat thereof existed, not whether serious damage or actual threat thereof existed as such.
On the role of the Textiles Monitoring Board("TMB"), India asserted that the United States had failed to obtain the endorsement by the TMB of the proposed safeguard measure. On the substantive requirements of Article 6 of the ATC, India argued that the US determination had not met the requirements of Article 6 of the ATC in terms of economic factors and data to be considered for determination of serious damage or actual threat thereof as well as causation. The United States rejected the claims, arguing that it had complied with all the requirements of Article 6 of the ATC.
2. Panel Findings
The Panel supported the main claims of India, and made the following principal findings and conclusions:
o On burden of proof, the Panel found that since India was the party that initiated the dispute settlement proceedings, it was for India to put forward factual and legal arguments in order to establish that the US restriction was inconsistent with Article 2 of the ATC and that the US determination was inconsistent with Article 6 of the ATC;
o On the standard of review, the Panel found that its function was limited to making an objective assessment of the facts surrounding the application of the specific restraint by the United States, and of the conformity of such restraint with the relevant WTO agreements;o On the role of the TMB and DSU processes, the Panel concluded that its was required to make an objective assessment as to whether the United Sates respected the conditions of Article 6.2 and 6.3 of the ATC at the time of the determination by the United States;o On the substantive requirements of Article 6 of the ATC, the Panel found that the United States had not met its obligations, since of the eleven economic criteria mentioned in Article 6.3 of the ATC, no information or comment was provided by the United States in respect of productivity, inventories and exports;
3. Claims at the Appeals Stage
Although India agreed with the overall conclusions of the Panel, it appealed certain of its findings of law:
o on burden of proof, India contested the Panel's finding that India had the obligation to establish that the United States had violated Article 6 of the ATC, or that it had the obligation to present a prima facie case to that effect;
o on the relationship between the TMB and the DSU process, India asserted that the Panel's finding on TMB powers denied exporting Members two important procedural rights:the right to hold consultations on a proposed transitional safeguard action on the basis of specific and factual information, and the right to a review of a transitional safeguard action by the TMB.
o on the general powers of the TMB, India asserted that the Panel made statements giving the TMB powers that went far beyond those attributed to it by the ATC.
o on whether the Panel should have made findings on all the issues raised, India argued that the determination on the two issues that the Panel did not make findings on was necessary to resolve the dispute.
The United States disagreed with India's claims, arguing that:
o the Panel correctly required India to meet the burden of going forward with the evidence;
o the Panel's discussion of the TMB and its powers was mere obiter dicta, and that in any case nothing in the text of the ATC supported India's assertion; and
o the Panel did not err by declining to rule on all claims made by India.
4. Appollate Body's Findings
The Appellate Body upheld all the Panel findings under appeal. In particular:
o On burden of proof, it agreed with the Panel that it was for India to present evidence of an argument sufficient to establish a presumption that the transitional safeguard determination by the United States was inconsistent with its obligations under Article 6 of the ATC;
o On the relationship between the TMB and the DSU, the Appellate Body did not consider the comment by the Panel on this issue to be "a legal finding or conclusion" which the Appellate Body" may uphold, modify or reverse"; and
o On the issue of judicial economy, the Appellate Body agreed with the Panel that nothing in Article 11 of the DSU required the panel to examine all legal claims made by the complaining party.
The dispute provides good guidelines for developing relevant logics in the future disputes regarding the legal and economic issues as follows;
First, it is found that the party initiating a dispute settlement proceeding has the burden of putting forward factual and legal arguments in order to establish its case, while the defending party as respondent has the burden of demonstrating that it has complied with the relevant conditions of application of the provisions which it invoked.
Second, in establishing damages, all the relevant variables including those specified in the relevant provisions should be examined in order to provide an accurate picture of the dynamics of the industry concerned. In doing that, the reliability and representativeness of the data is crucial.
Third, in order to justifiably impose a restraint, it is crucial to establish that an increase in imports, not some other factors, is causing serious damage or actual threat thereof in the domestic industry. To prove it, it is strongly desired to make comparison between the current situation and the situation in the absence of the import surge, which may require econometric analysis to forecast future trends in various economic indices.
1. 사안의 개요
3. 패널의 결정(Findings)
1. 절차적 진행
3. 상소기구의 평결
2. 경제적 이슈
같은 주제의 보고서
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