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Policy Analysis WTO 분쟁해결사례 연구 무역분쟁

저자 채욱, 서창배 발간번호 98-14 자료언어 Korean 발간일 1998.12.30

원문보기 저자별 보고서 주제별 보고서

코스타리카는 미국이 자국의 통합품목관세(HTSUS)규정에 근거하여 다시 미국으로 재수입하는 조건으로 수출된 제품에 부분적인 관세감면을 규정하여 왔음에도 불구하고 유독 코스타리카로부터의 섬유류 수입에 대해 과도적 세이프가드조치를 부과함으로써 섬유 및 의류협정(ATC)이나 GATT 1994하에서의 그들의 이익이 무효화 또는 침해되었다고 WTO에 제소했음.

당해사안에서는 ATC 제6조에 근거하여, 미국이 과도적 세이프가드조치를 부과하기 이전에 수입물량의 증가가 심각한 피해 혹은 실제적 피해위협을 유발하였다는 사실의 입증여부, 미국이 특정산업에 심각한 피해가 발생되었다는 사실을 입증하기 위하여 특정산업과 연관성이 있는 경제지표를 활용해야 하는 요건이 충족되었는지의 여부, 그리고 그와 같은 과도적 세이프가드조치가 미국의 국내생산을 보호하기 위한 목적으로 적용되었는지의 여부가 양국간에 주요 쟁점이 되었음.

패널은 미국이 자국내 산업이 코스타리카産 내의제품의 재수입으로 인해 심각한 피해 또는 실제적인 위협이 발생하였음을 입증하지 못한 채 코스타리카의 수출에 대해 수입규제조치를 부과함으로써 ATC 제6조 2항 및 4항에 위배했다고 평결함. 또한, 패널은 미국이 코스타리카의 재수입에 대한 보다 호의적인 조치를 허가하지 않음으로써 ATC 제6조 6항(d)을 위배하였고, ATC 제6조와 일치하지 않는 방식으로 수입규제조치를 부과함으로써 ATC 제2조 4항을 위배하였으며 협의요청일을 기준으로 규제기간의 개시를 설정함으로써 ATC 제6조 10항 및 GATT 1994 제10조 2항을 위배했다는 결론을 내림.

한편, 코스타리카는 패널의 특정 법 이슈 및 법 해석에 대해 상소기구에 상소하였는 바, 상소기구는 법 이슈 및 해석에 대해 패널평결중 일부의 오류를 지적하였으나, 대부분 패널평결을 지지하였음.

WTO체제의 출범이후 개도국이 선진국을 제소한 두 번째 분쟁인 당해 분쟁은 WTO 분쟁해결절차의 실효성 및 공정성을 확인함으로써 특히 개도국이 분쟁해결절차를 적극적으로 활용하는 계기를 제공하였으며, 상소기구의 새로운 법해석에 따라 과거 모호했던 세이프가드조치의 최초개시일과 관련하여 ATC 제6조 10항에 의거하여 과도적 세이프가드조치의 효력에 대한 소급적용을 원칙적으로 금지하고 있음을 분명히 하였음.
A Case Study on the WTO Dispute Settlement Mechanism:United States - Restrictions on Imports of Cotton and Man-Made Fibre UnderwearWook Chae & Chang-Bae Seo

1. Claims at the Panel Stage

On March 27, 1995, a formal complaint was made to the Dispute Settlement Body (DSB) of the World Trade Organization (WTO) by Costa Rica over the restriction of imports of cotton and man-made fibre underwear imposed by the United States. A panel was established by the DSB on March 5, 1996 accordingly to the complaint made by Costa Rica on February 22, 1996, that the import restriction measures imposed by the United States on textiles from Costa Rica were in violation of the Agreement on Textiles and Clothing (ATC).

The panel concluded that the import restriction measures imposed by the United States was not valid, with the final report of the panel being circulated to WTO members on November 8, 1996. In an appeal by Costa Rica to the Appellate Body on one aspect of the Panel's conclusion supporting the United States' backdating of the effectivity of its transitional safeguard measure, the Appellate Body ruled in favor of Costa Rica on that particular point. The report of the Appllate Body was circulated to WTO members on February 10, 1997 and adopted by the DSB on February 25, 1997. In a DSB meeting held on April 10, 1997, the United States announced that it has ended the measures subject to the dispute as of March 27, 1997 and since has not reinstated the measures.

The dispute arose from complaints by Costa Rica which argued that while the Harmonized Tariff Schedule of the United States (HTSUS) provides the basis for a type of outward processing regime which enables products re-imported to the US under the HTSUS with partial exemption from US duties, the transitional safeguard measures imposed by the United States solely on textiles imports from Costa Rica were in violation of the ATC and GATT rules. Accordingly, Costa Rica requested that the Panel, on the basis of Articles 2, 6 and 8 of the ATC, recommend to the United States the immediate withdrawl of the measure. The United States, in turn, requested the Panel to reject Costa Rica's argument as it had complied with the obligations under the ATC.

The major point at issue in the dispute can be classified into 5 categories:
On the standard of review, Costa Rica requested the Panel, based on the general principles of GATT rules and the provisions of the DSU, to undertake an analysis and monitor the following five aspects: compliance with the procedural rules; proper establishment of the facts; objective and impartial evaluation of the facts in the light of the rules of the ATC; proper exercise of discretion in interpretation of the rules; and compliance with the rules. However, the United States argued that the standard of review of the "fur felt hat" case should be applied equally to the pending case and should, accordingly, be based on whether a safeguard action was properly taken at the time that the decision was made.
On the burden of proof, while Costa Rica emphasized that the burden of proof in a dispute settlement proceeding under the DSU for the purpose of determining the consistency of a import restriction measure with Article 6 of the ATC fell upon the importing Member, the United States argued that the burden of proof fell upon Costa Rica.

On Article 6 of the ATC, Costa Rica argued that the United States had failed to comply with the two principles applicable to the adoption of a safeguard measure under Article 6 of the ATC, establishing the sparing application of the transitional safeguard, and the consistent application of the transitional safeguard with the provisions of Article 6.1 of the ATC and the effective implementation of the integration process under the ATC. On the other hand, the United States argued that Article 6 of the ATC did not include more detailed procedures for investigation, nor did it provide more specific definitions to interpret the standard of law to applied and thus the appropriate standard ot apply to the importing country's determination was a standard of reasonableness.

On the determination of serious damage or actual threat thereof, Costa Rica noted that most of the information initially provided by the United States regarding the issue at hand were based on the purported existence of serious damage to the US industry and did not consider the existence of threat of injury. The United States maintained that since the ATC did not provide separate requirements for determinations of threat of injury and, thus, had not been employed in the CITA determination of March 1995, the determination by the United States of serious damage or actual threat of thereof was fully consistent with Articles 6.2 and 6.3 of the ATC.

On the existence of a causal link, Costa Rica claimed that since the United States failed to demonstrate the existence of a causal link between the supposed increase in imports and the supposed serious damage or actual threat of serious damage to the domestic industry, the United States consequently violated Articles 6.2 of the ATC. However, the United States stressed that export restraint settlements with other countries were not within the Panel's terms of reference and thus was not a matter to be considered by the Panel. They argued that the restraint on Costa Rican underwear was imposed in a broader context.

2. Panel Findings
In regard to the major points of issue in the textile dispute between Costa Rica and the United States, the Panel made the following findings:

(ⅰ) the United States violated its obligations under Article 6.2 and 6.4 of the ATC by imposing a restriction on Costa Rican exports without having demonstrated that serious damage of actual threat thereof was caused by such imports to the United States' domestic industry;

(ⅱ) the United States violated its obligations under Article 6.6(d) of the ATC by not granting the more favorable treatment to Costa Rican re-imports contemplated by that sub-paragraph;

(ⅲ) the United States violated its obligations under Article 2.4 of the ATC by imposing a restriction in a manner inconsistent with its obligations under Article 6 of the ATC; and
(ⅳ) the United States violated its obligations under Article Ⅹ:2 of the General Agreement on Tariffs and Trade 1994 and Article 6.10 of the ATC by setting the start ofthe restraint period on the date of the request for consultations, rather than the subsequent date of publication of information about the restraint.

The Panel recommended that the DSB request the United States to bring the measure challenged by Costa Rica into compliance with the United States' obligations under the ATC. The Panel further suggested that the United States bring the measure challenged by Costa Rica into compliance with United States' obligations under the ATC by immediately withdrawing the restriction imposed by the measure.

3. Claims at the Appeals Stage
On November 11, 1996, Costa Rica notified the DSB of the WTO of its decision to appeal certain issues of law covered in the Panel Report and legal interpretations developed by the Panel, pursuant to paragraph 4 of Article 16 of the DSU, and filed a Notice of Appeal with the Appellate Body, pursuant to Rule 20 of the Working Procedures for Appellate Review. Costa Rica's appeal only concerned the Panel's finding recognizing backdating the effectivity of United State's transitional safeguard measure and the Panel's legal interpretation recognizing the imposition of a backdated quota by such a safeguard measure. The United States, on the other hand, argued that a transitional safeguard measure was imposed on Costa Rica pursuant to Article 6.10 of the ATC, stressing that no provisions of the ATC or of the GATT prohibits the setting as the initial date of a transitional safeguard measure of the date of the public notice announcing the request for consultations.

4. Appellate Body's Findings
With regard to the issues raised in the appeal, the Appellate Body found that the Panel erred in law on the issue relating to the setting of the initial date of the transitional safeguard measure. In addition, it concluded that the Panel went outside the limits of the ATC by taking its assumed premise literally that Article 6.10 is "silent about the initial date from which the restraint period should be conducted" and describing the issue as "a technical question regarding the opening date of a quota period". However, the Appellate Body's conclusion leaves intact the conclusions of the Panel that were not the subject of appeal. Therefore, the Appellate Body recommended that the DSB request the United States to bring its measure restricting Costa Rican exports of cotton and man-made fibre underwear into conformity with its obligations under the ATC.

5. Implications
The dispute provides standards and guidelines on various legal and economic issues for future disputes. In addition, it provides various implications for developing countries in utilizing the WTO dispute settlement procedure by affirming the effectiveness and credibility of the procedure.
As a legal issue, the Panel's findings clearly prohibits retroactive application of the effectivity of a safeguard measure and reaffirms the need to prove the existence of increase in imports and serious damage or actual threat thereof prior to imposing a transitional safeguard measure. Also, the findings and conclusions in this dispute has become a precedent case which stresses the importance of Article Ⅲ: 2 of the GATT 1994 in order to apply an appropriate legal analysis.

With respect to the economic aspects, an importing country must render Most-Favored Nations treatment to the re-imported products, while providing a clear standard of review in showing damage to the domestic industry. Moreover, Article 6.2 of the ATC provides that an importing country must not only provide proof of burdenin determining serious damage or actual threat thereof, but also demonstrate the existence of a causal link between the supposed increase in imports and the supposed serious damage or actual threat of serious damage to the domestic industry.
서 언

Ⅰ.패널節次
1.事案의 槪要
2. 主要爭點
3.패널의 評決(Findings)

Ⅱ. 上訴節次
1. 節次的 進行
2. 主要爭點
3. 上訴機構의 平均

Ⅲ. 示唆點
1. 法的 이슈
2. 經濟的 이슈
3. WTO 紛爭解決節次의 實效性 認識

參考文獻

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