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At the heart of the so-called "trade wars" engulfing contemporary international relations lies the ability of States to counteract unfair trade practices from other countries and to protect their domestic industries against external shocks in a globalised world. The World Trade Organization ("WTO") affords its Members three legal tools to respond to such situations – anti-dumping measures, countervailing measures, and safeguards (together, "trade remedies") – and most international and domestic trade disputes concern the use of those tools.
This subject examines the law governing these tools, and why their use (or misuse) is so contentious in international economic relations. It begins with the conceptual background behind trade remedies, and examines whether their rationale remains pertinent in the new global economic landscape. It then looks at the WTO rules and case law governing dumping, subsidization, and safeguards, as well as the legal concept of injury to domestic industry, and the rules concerning evidence and procedure in trade investigations. It then considers the interplay between domestic litigation and WTO disputes over these matters, including the role of WTO jurisprudence in Australian law. Finally, this subject evaluates the relationship between trade remedies and other policy interests, such as the national security tariffs set by the Trump Administration, the link between fisheries subsidies and dwindling fish stocks in the world's oceans, and the role of the environment concerns surrounding "eco-dumping".
Principal topics include:
- The concept in international relations of fair versus unfair trade: what is unfair trade in theory, how does unfair trade relate to globalization more broadly, and why is unfair trade a source of major tensions in international relations today?
- The framework in which unfair trade is regulated under the law of the World Trade Organization ('WTO'): conduct that is prohibited; conduct that can be investigated and counteracted; and the role of litigation in the WTO and domestic courts.
- The purpose, operation, and jurisprudence on the three legal tools that are available to States to counteract unfair trade and external shocks (anti-dumping measures against dumping; countervailing measures against subsidies; safeguards against external shocks).
- The legal concept of "injury to domestic industry" in counteracting unfair trade practices and external shocks.
- The nature and operation of litigation proceedings at the WTO involving trade remedies.
- Major issues in current WTO trade remedies litigation, eg.:
- The Trump Administration's application of tariffs for national security reasons
- China as a "non-market economy";
- "public body" and state-owned enterprises.
- The role of WTO jurisprudence in domestic litigation in Australia.
- The relationship between WTO law on trade remedies and other policy interests:
- Negotiations in the WTO to address subsidies that harm global fisheries
- The application of policy-based exceptions (environment, national security, etc) to WTO rules on unfair trade
- The ability to address environmental and other concerns through WTO rules on unfair trade (eg. "eco-dumping").
Intended learning outcomes
A student who has successfully completed this subject will:
- Have advanced technical skills required to analyse which types of conduct involving unfair trade can be lawfully counteracted in international economic law
- Have a sophisticated understanding of the framework in which unfair trade is regulated in international economic law, including the mechanisms available to States to address unfair trade (investigations; WTO litigation; domestic litigation)
- Have specialised knowledge of the key legal tools available to States under WTO law to counteract unfair trade (anti-dumping measures; countervailing measures; safeguards).
- Have specialised knowledge of the legal, evidentiary, and procedural steps that must be demonstrated in an investigation before remedial measures can be taken against unfair trade.
- Have a detailed understanding of major contemporary controversies in WTO litigation on trade remedies.
- Have a detailed understanding of the relationship between WTO rules on unfair trade and other policy interests.
- Be able to critically assess the effectiveness of the tools and remedies that States can use to counteract unfair trade under existing WTO law and jurisprudence.
Last updated: 29 October 2020