Trade remedy measures (TRMs) in international economic law refer to antidumping measures, countervailing duties and safeguard measures. They are designed to respond to unfair trade practices or to compensate the negative impact on domestic industries resulting from tariff concessions made under the trade liberalization arrangements. Due to the importance of these instruments, the rules on TRMs are strengthened in the WTO legal framework and established on non-discriminatory basis towards all WTO Members. However, with the proliferation of regional trade agreements (RTA) in recent decades, it was noticed that, most RTAs adopted innovative approaches on TRMs among their regional partners. Such incoherence has brought a series of trade disputes and arguments concerning the conflicts between the WTO and RTA. Current central issues in this area are whether those innovative TRMs are consistent with WTO law and what is the appropriate approach to examine the legality of those measures. Against the canvas of WTO trade remedy rules, this research first investigates the diversified trade remedy approaches in RTAs and their impact on international trade. It then clarifies the ambiguous legal criteria against which TRMs in RTAs should be judged in order to be WTO-consistent. Thereafter, a methodology through which a RTA-specific TRM could be tested against the WTO’s criteria is also developed. It is argued that facilitating TRMs in RTAs must always adhere to the criteria laid down by the WTO, e.g. GATT Article XXIV. In particular, a “necessity test” should be applied when examining the legality of a special TRM in RTAs, in the case where a dispute arises between the RTA members and third countries on the issue. In order to bring the RTA-specific TRMs into compliance with WTO law, this research also looks at the WTO surveillance mechanism on RTAs. Considering a number of difficulties that have arisen in the GATT/WTO’s surveillance of RTAs in the past, the thesis addresses what positive measures can be taken in the future and whether TRMs in RTAs should be scrutinized by WTO political organs or through the dispute settlement mechanism.

This thesis takes a corporate political strategy perspective of antidumping and countervailing duty cases to understand why some firms are more successful at the prosecution of these trade remedy measures. Trade remedy measures are long standing tools of US trade policy and their use has continued to grow globally amongst member countries of the World Trade Organisation. Between 1980 and 2007 a total of 1606 of these trade remedy cases were investigated by the Department of Commerce and International Trade Commission, an average of 41 antidumping and 17 countervailing duty cases a year, with a value of around US$ 63 billion or 0.3% of all US imports. Thirty-seven percent of the cases by number and 54% by value resulted in duties being imposed on the subject imports. This study uses archival material for five recent trade remedy investigations and forty-five semistructured interviews with business interests, trade attorneys and economic consultants that have experience of prosecuting these cases to understand why some firms may be more successful than others at achieving their preferred policy outcome. The imposition of duties is found to be only the simplest measure of success for US firms that file a case and does not capture the range of potential outcomes for foreign firms that face the duties. Successful prosecution of a trade case has been found to be firm specific, as the DOC determination of individual firm duty rates significantly affects what the outcome of case means for each firm in the US and foreign industries. The successful prosecution of US trade remedy cases is argued to be an informational corporate political strategy that is affected by statutory and administrative biases in the execution of the agency investigations, and creates the potential for indirect rent-seeking bias in the outcomes of cases. This informational corporate political strategy is based on three capabilities that firms need to develop, the capability to gather information, the capability to build and shape the administrative record at the agencies to reflect a firm’s policy preferences and the capability to align business practices with the US trade remedy institutions. These three capabilities are enabled by the bundling of corporate political expertise resources, organisational resources, financial resources and reputational resources. Some of these resources are internal to the firms, including staff, money and information, while other resources are external, such as the trade attorneys and economic consultants.

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Magister Legum - LLM