탄소강관 수입에 대한 미국의 세이프가드 조치 분쟁사건

The safeguard measures taken on February 11, 2000 by the U.S. against the imports of circular welded carbon quality line pipe (line pipe) from Korea were found to be violation of the Article XIII and XIX of GATT 1994 and several provisions of the Agreement on Safeguards. Korea had brought a complaint respectively to these measures before WTO Dispute Settlement Body (DSB). The panel was established on October 23, 2000 and the DSB adopted the Appellate Body Report (ABR) and the Panel Report modified by the ABR on March 8, 2002. This case raised a number of significant issues related to the interpretation and application of provisions of safeguard measures, The main legal issues are as follows: (ⅰ) determination of serious injury or threat of serious injury; (ⅱ) parallelism; (ⅲ) non-Attribution of the injurious effect of other factors; (ⅳ) GATT Article XXIV defense. Regarding determination of serious injury or threat of serious injury issue, the Panel found that an investigating authority must make a discrete determination of either serious injury or threat of serious injury, and USITC violated Article 4 of Agreement on Safeguards, The Appellate Body reversed the Panel's finding, concluding that determinations by investigating authorities may take either approach: they may either combine the two standards as done by the ITC, or they may make separate findings of either serious injury or of threat of serious injury. Under the Appellate Body's ruling, a majority may be formed based on the support of those who find serious injury and those who find threat of serious injury. Regarding the requirement of parallelism, the Appellate Body reversed the Panel' s finding and concluded that line pipe safeguard measure violated the parallelism requirement because there was a gap between imports covered under the investigation and imports falling within the scope of the measure. With the recognition that Korea made a prima facie case of the absence of parallelism, the Appellate Body considered whether the ITC provided a reasoned and adequate explanation that imports from non- NAFTA countries satisfied the condition for application of a safeguard measure and concluded that the parallelism requirement was not met since ITC did not provide that explanation expressly. Regarding the requirement of non-Attribution of the injurious effect of other factors, the Appellate Body reversed the Panel's finding and provided some guidance on how to determine whether this requirement has been met. It observed that Article 4.2(b) of Agreement on Safeguards established two legal requirements for the application of a safeguard measure: (ⅰ) there must be a demonstration of the existence of the causal link between increased imports of the product and concerned serious injury or threat there of: (ⅱ) the injury caused by factors other than the increased imports must not be attributed to increased imports. In this regard, it stated that investigation authorities must establish explicitly, through a reasoned and adequate explanation that injury caused by factors other than increased imports is not attributed to increased imports and found that the ITC has not met this requirement. Regarding GATT Article XXIV as a defense in the application of safeguard measures, Korea argued that the U.S. violated the MFN principle by excluding Canada and Mexico from the safeguard measures. The U.S. responded that the exclusion of Canada and Mexico was permitted under GATT Article XXIV since they were partners in the NAFTA. The Panel concluded that the U.S. is entitled to rely on Article XXIV as a defense to Korea's claims under Articles I, XIII and XIX of GATT 1994, and Article 2.2 of the Agreement on Safeguards. The Appellate Body, however, stated this issue briefly at the end of the parallelism section and concluded that there was no need to address the Article XXIV defense because this question would become relevant only where the parallelism requirement was met. In this case, because the ITC failed to comply with the parallelism requirement in the investigation, the Appellate Body said that it need not rule on the question of Article XXIV defense.

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