WTO 세이프가드 인과관계 기준 및 수준에 관한 연구

As a trade remedy against increased imports of a particular product irrespective of being fair or unfair, safeguard measures differ from antidumping measures targeted only for unfair trade like dumped imports. Accordingly, it is clear that a higher injury standard should apply for safeguard determination than antidumping determination, but whether the causation standard for safeguard determination should be higher than the causation standard for antidumping determination has been a subject of debate. Based on WTO dispute cases and certain WTO members’ legislations, there exist three different views regarding the causation standard for safeguard determination. The first view is that the causation standard should be met only if increased imports in and of themselves are sufficient to cause serious injury. The second view is that increased imports should be at least one of the most important causes of serious injury. The third view is that the causation standard can be met when there exists a genuine and substantial relationship of cause and effect between increased imports and serious injury. This study touches on the interpretations of WTO panel and appellate body on the causation provisions of the WTO Safeguard Agreement and such alternative causation standards as those of the US Trade Act of 1974 and the common law. While the WTO appellate body has strictly applied the Safeguard Agreement to and ruled against all the disputed safeguard measures, it has not been able to come up with specific standards and methodology to prove the causation between increased import and serious injury with legal uncertainties augmented. It comes to a conclusion that we need not change the current causation standard under the Safeguard Agreement as interpreted by the Appellate Body. This is so because, while such standards as the substantial cause under the US Trade Act and the factual/proximate cause under the common law seem to be based upon anti-protectionism to control the abuse of trade remedies, it is nearly impossible for safeguard measures to pass the hurdle of the non-attribution and serious injury as well even under the current causation standard of the Safeguard Agreement.