FTA 세이프가드 규정의 WTO 세이프가드 규정 합치성 검토

The Free Trade Agreements (FTAs) have been proliferated at a faster speed under the World Trade Organization (WTO) than under the pre-WTO stage, namely, the General Agreement on Tariffs and Trade (GATT). Although the provisions under FTAs are different from those under the WTO Agreement in character, the difference may not affect the legal ties between the two Agreements. However, the difference may only suggest that it could be a good reason for discriminating against non-FTA members in the WTO system. The WTO encourages its members to conclude FTAs in order to facilitate free trade in the world trading system. It may be considered as legitimate, only when the FTAs are modified within the boundaries of the WTO Agreement. The WTO provides such boundaries under its Agreement: Article XXIV of GATT, Article V of GATS, and the so-called enabling clause. In this paper, in order to specify and narrow down the study, I have focused on the consistency of FTA safeguard provisions with the WTO Agreement. In general, a safeguard measure under the WTO Agreement shall be applied based on the nondiscrimination or Most-Favored Nation (MFN) principle. However, there were a number of cases where the measure has been applied in a discriminatory manner. This may be because the cases concerned not only a safeguard measure but also Regional Trade Agreements (RTAs). The major cases are Argentina-Footwear, US-Wheat Gluten, US-Steel Safeguards, and US-Line Pipe (the safeguards cases). Unfortunately, the Turkey-Textiles case, which found a conflict with the WTO Agreement over RTAs, provides us few hints to resolve difficulties of the safeguards cases. It has been also criticized that the decisions and reasoning of the panel and Appellate Body were not legally convincing. First, the panel and the Appellate Body have developed parallelism so as to analogize the application of safeguard measure with that of investigation. The parallelism doctrine is based on the point that 'a product…being imported' in Article 2.1 of the WTO Safeguard Agreement is parallel to 'increased imports' in Article 4.2 ⒜. Second, the panel and Appellate Body have decided that the increased imports due to the FTA, which would be exempted from a WTO safeguard measure, are a non-attribution. In this situation, a respondent has a burden of proof that the increased imports do not cause a serious injury. The central problem of safeguard cases intermingled with FTAs would be the difference between the FTAs and the WTO Agreements. Thus, the panel and Appellate Body should have concluded a discriminative application of a WTO safeguard measure, which would be inconsistent with Article XXIV: 8 ⒝ and Article XXIV: 4 of GATT, and the preamble of the WTO Safeguard Agreement. This would also be inconsistent with the purpose of Article XXIV. Lastly, the extent of increasing imports from the FTA partner(s) should be examined at the time when a safeguard measure has been investigated and applied. Furthermore, it may be necessary to propose an amendment to relevant provisions. There could be a few differences in the contexts of the FTA and the WTO Agreement. It is the point that these differences dose not mean that the FTA and WTO Agreement couldn't exist in the world trading system. Both are considered to coexist and to be compatible together through an alone legitimate interpretation and, when necessary, amendment.