贸易战？
Posted on October 2, 2009 by Dr. Elliot J. Feldman
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President Obama, on September 11, announced that the United States would restrict imports of Chinese
commercial, low-cost tires. This action was foreseeable and foreseen (for example this blog foresaw
this action in articles titled Attack On China Rolls On New Tires and Consultations To Settle The
Tires Dispute: Too Little Too Late?). President Obama committed to additional tariffs of 35-30-25
percent stepped down over three years; the United States International Trade Commission had
recommended 55-45-35 percent over three years. Many analysts called the ITC’s recommendation
prohibitive; the Obama rates, according to United States Trade Representative Ron Kirk, were derived
from an economic model designed to reduce but not prohibit Chinese tires in the . market. The
victorious United Steelworkers predicted getting their lost jobs back; most analysts predicted that
exports from other countries, not domestic production, would fill in the missing Chinese tires.
Within twenty-four hours, China announced trade remedy investigations into chicken and automobile
parts from the United States. Observers were quick to label the announcement as “retaliation” (Inside
. Trade headline: CHINA RESPONDS TO TIRES SAFEGUARD WITH NEW AD
INVESTIGATIONS), which China denied. China announced a WTO appeal of an adverse decision
on the sale and distribution of visual works and music download services almost simultaneously,
and a WTO challenge to the tires safeguard decision within days.
Dire predictions, and accusations directed at President Obama, followed quickly. President Obama
was accused of breaking the word he gave, and the undertaking of world leaders that he had solicited,
at the last meeting of the G-20, to avoid any acts of trade protectionism in the midst of a global
recession. He was accused of inconsiderate timing, making his announcement on 9/11, a day that
ironically had brought the world together, and less than two weeks before the next G-20 in Pittsburgh,
where he would be the host. China complained, expressly, that President Obama seemed prepared to
trade off 5000 American jobs for 100,000 Chinese, seeking a superior moral ground. Trade analysts
rushed to predict a wave of safeguard actions against Chinese products. After all, if an apparently
weak claim could succeed with the Obama Administration, surely stronger claims could prevail, and
the standards for relief based on a safeguard action are much lower than for dumping and
countervailing duty petitions.
The safeguard action did not require any Chinese violations of any trade rules, and there were no
formal allegations of dumping or subsidies in the tires case. Had there been any, the law required them
to be disregarded in the decision process. Nonetheless, United Steelworkers President Leo Gerard
engaged in vitriolic denunciations of Chinese trade practices before, during, and after the President’s
decision. He quickly seized leadership in new petitions that did contain such allegations. The Obama
Administration said nothing publicly to recognize the difference between the decision on tires and
findings of subsidies or dumping, thereby possibly reinforcing an apparent Chinese impression that the
proceedings were unfair and ill-timed for global economic recovery. Gerard’s statements (and similar
statements from a Union witness, the Alliance of American Manufacturing, at the Trade Policy
Committee hearing), seem intended, in their disregard for the law and in their tone, to damage
. relations. As they were, in the tires case, outside the law, the Obama Administration may
need to be sensitive to an overtly warm embrace of the unions.
Did President Obama start a trade war? Is China retaliating? Will the G-20 countries conclude that the
. is not committed to free trade, and will they react by seeking to protect their own domestic
markets? Will this trade trigger reverse the promising signs of global recovery from the worst
recession since the 1930s?
There are no simple answers to these disturbing questions, but it is possible to address some of them
without hysteria. There is here much more than may seem apparent, and also a bit less.
The Decision On Tires
All trade disputes begin with domestic politics. The tires dispute began with Candidate Obama’s
promises to give meaning to the special China safeguard and to insist upon Chinese adherence to trade
laws and agreements, and the critical support he received from the trade unions in his run for the
presidency. It was sustained by a continuing anti-Chinese sentiment in Congress, where various bills
alleging currency manipulation and other unfair trade sins are introduced almost routinely. And it was
advanced by the analytical conclusion of four of the six Commissioners of the International Trade
Commission, led by a Chairwoman previously on the staff of the Democratic Chairman of the Senate
Finance Committee, who found that an increase in Chinese tire imports had disrupted the . market
and injured the . industry. The Democratic Chairman of the Senate Finance Committee,
coincidentally but instrumentally, is essential to the President in his efforts to reform health care, his
highest priority.
The President’s rationale is uncomplicated. China agreed to the special safeguard. Its requirements
were met, at least insofar as the case was presented to the International Trade Commission, the United
States Trade Representative, and the Trade Policy Committee. Therefore, it was right and reasonable
to apply the law.
There is perhaps another explanation. The gathered political forces made a presidential refusal to act in
the tires case impossible. The trade unions and the Democratic Congress would have accused
President Obama of representing continuity with the Bush Administration, not the change he had
promised. He would have been seen to condone the offshoring of jobs, which the Chinese interests in
the case brazenly emphasized as the core of their defense. He would have been seen as “soft” on
China. Most important of all, he would have had no subsequent credibility with Congress or a probable
majority of Americans on trade. He would never have been able to advance a free trade
agenda. Indeed, he likely would never have been granted the trade negotiation authority that, at present,
he does not have but needs.
The Timing
The law, Section 421 et seq. of the Trade Agreements Act of 1974 , as amended, required presidential
action by September 17. The President could have let the date slip inasmuch as there is nothing in the
law to discipline him had he done so. However, President Obama is particularly respectful of the law,
and he would have been under unwelcome political pressure had he not acted when the statute required.
The President probably did not want to act while National People’s Congress Chairman Wu Bangguo
was in the United States, which China may have interpreted as insulting. The Chairman, after all,
seems to have raised the issue in meetings with the President, Vice President, and congressional leaders
during a visit of more than ten days, exactly during the initial window when the recommendation from
the Trade Policy Committee and the Trade Representative had reached the President’s desk.
With the September 17 deadline preceding the G-20 Summit in Pittsburgh (beginning exactly one week
later) the President surely wanted as much distance as possible between his announcement and the
Summit. At the Summit he wanted to discuss the world’s financial institutions, the economic crisis,
climate change. He did not want a diversion into a trade war.
Wu Bangguo left for China from Washington on Friday morning, September 11. The President
announced his decision that afternoon, which was already the weekend in China. It was the end of the
. news cycle for the week. It was as long before the Summit as possible once Wu Bangguo had left,
and it met the statutory deadline. It happened to be 9/11, but otherwise there could not have been
politically or diplomatically a better time.
The “Retaliation”
China’s nearly simultaneous announcement of antidumping and countervailing investigations could not
have been retaliatory in any normal meaning of that term. China’s bureaucracy, like the bureaucracy in
any major country, inevitably is large and slow. It could not have arranged to announce antidumping
and countervailing investigations on less than twenty-four hours notice. The investigations had to have
been planned long before the President’s decision was known.
The Chinese announcement, not the investigations themselves, may have been intended to appear
retaliatory, but it, too, had to have been planned. It is probable, therefore, that the President had told
Chinese officials during consultations (see Consultations To Settle The Tires Dispute: Too Little Too
Late?) when he would make his announcement so that they could prepare. It may even have been
agreed that the Chinese would announce the antidumping and countervailing investigations effectively
in conjunction with the President’s announcement, so that both sides could posture for their publics but
also sweep the dispute away a couple of weeks before the G-20 Summit.
That China has a growing agenda of trade grievances with the United States is not surprising,
particularly as a wave of trade remedy petitions has begun to flood agencies in the United States and
other countries against Chinese products. As much as China pledges to encourage more domestic
consumerism and to reduce reliance on exports (consistent with American requests in the G-20
framework), such a change will not come about quickly. China needs foreign markets to remain open
to its products, just as do other countries. China is appropriately aggrieved by the drive to close or
limit markets for its goods.
A dispute over chicken has been festering between China and the United States for a long
time. China’s domestic industry in auto parts has been troubled, especially in the recession. Both have
been likely sources of Chinese trade actions against foreign imports. The timing for these
investigations may not have been entirely coincidental, but it would also appear to have been less
calculated and calculating than to be called “retaliation.”
Within a week of these “retaliatory” Chinese actions, three more antidumping and countervailing duty
petitions were filed in Washington against Chinese products. No one suggested that these petitions
were part of a new trade war, or were retaliatory. Instead, they were understood to be part of the
normal course of trade relations between China and the United States, where China is still a major
producer of goods that Americans want to buy and American manufacturers and, more significantly it
seems, American trade unions, want to keep out. Notwithstanding the grand objectives of the G-20
Summit in Pittsburgh, to make China more a consumer society and less export-driven, while making
Americans greater savers with a reduced compunction to buy, the life of the two countries goes on, and
with it the rhythm of American trade complaints against Chinese products.
The Maturing Of China
Although life goes on, there are unmistakable changes, precipitated in part by the global recession, but
also by the maturing of China in the international system. China made significant sacrifices to join the
WTO, including negotiating compromises that created exposure to the special safeguard that produced
President Obama’s tires decision. China has been exposed to the WTO disciplines, and nine Chinese
actions have been challenged in cases filed in the WTO against Chinese practices. However, China
during the last twelve months alone has launched four cases against others. China has begun to
recognize the WTO not only as a forum where it might be brought to judgment, but also one where it
may challenge others.
China’s growing engagement in the WTO is part of its growing engagement more generally, whether in
the G-8 or the G-5, the G-20 or the International Monetary Fund. China is growing into a new role,
still a developing country, but one with a voice to be heard. Rather than characterize China’s use of
trade laws as “retaliation,” these actions more properly can be seen as maturation, China’s willingness,
ability, even determination to act like other countries participating at comparable levels in the world’s
trading system.
China is now neither first nor last in the invocation of trade remedies and dispute settlement. It is one
among few, but it is more inside the norms of international organizations than out.
These developments signal more than mere maturation. They also signal that China accepts the
legitimacy of international institutions, and their disciplines. China accepts full international
citizenship, claiming its rights as well as its responsibilities. Instead of finding fault or danger or risk
when China exercises these rights, it is probably wiser to find relief as China integrates into the global
economy and polity. It was not so very long ago when China was an effective member of neither.
The Next Road For Tires
There is no forum other than the WTO where China can appeal the Section 421 safeguard
decision. Nonetheless, China is likely to be disappointed there. Were it to win, it would not be a
victory that could be finalized soon enough to impact the tires trade (especially as all WTO relief is
prospective), nor to head off other safeguard actions much before the expiration of Section 421 at the
end of 2012. China, therefore, should not permit the safeguard actions to create an illusion about the
WTO, nor exaggerated expectations.
The tires decision may also have limited effect encouraging other safeguard actions. It took seven
months from the filing of the petition to reach presidential decision, which means that “full” relief
(three years) requires beginning a case with at least 43 months left in the statute. It is no longer
possible to bring any safeguard action under this provision of the law and obtain a result that could
yield even three years of relief, as only 39 months of legal authority remain. With every passing day,
the potential length of time for relief diminishes because of the law’s mandatory expiration.
It would be more prudent and effective for Chinese interests to continue pressing for reconsideration in
the White House, where the statute directs everyone after a year. Were the first year of relief to
produce American jobs, a continuing challenge to the President’s decision likely would be futile, but
should the predictions of the economists engaged by the Chinese side prove correct, such that
safeguard relief does little or nothing for American jobs, the President might be willing to rethink, just
as President Bush was forced to do after two years of steel safeguards. In the latter, even as the
President was driven to give up the relief, there was a significant recovery in the domestic
industry. Without any recovery in the tires industry, the likely scenario, the President would be that
much less likely to continue the relief in a form harmful to China.
奥巴马总统于 9 月 11 日宣布美国将限制中国产商用低价轮胎出口至美国。这一决定已被广为预
见、并不出人意料（如本博客文章 Attack On China Rolls On New Tires and Consultations To Settle
The Tires Dispute: Too Little Too Late?)。奥巴马总统决定在未来三年内分别向中国轮胎征收百分
之三十五、三十和二十五的额外税率，美国国际贸易委员会此前则建议追加百分之五十五、四十
五和三十五的税率。许多分析员都认为美国国际贸易委员会的建议将把中国产品排除在美国市场
之外。根据美国贸易谈判代表柯克，奥巴马总统的方案建立在一个将降低但不排除中国轮胎出口
到美国的经济模型之上。胜利的美国钢铁工人联合会预计将赢回失去的就业机会，然而大多数分
析家认为其他国家生产的轮胎将填补中国轮胎原先占有的市场份额，而非美国本土生产的轮胎。
不到 24 小时，中国就宣布对美国禽类产品和汽车零部件展开贸易救济调查。观察家立即把这一
声明贴上“报复”的标签（《美国贸易内幕》刊登了题为《中国以反倾销调查回应轮胎特保案》的
文章），中国政府予以否认。几乎同时，中国宣布将在世贸组织上诉不利于中国的、有关视听产
品下载服务销售和分销的裁决，稍候又向世贸组织上诉轮胎特保案裁决。
耸人听闻的预测以及针对奥巴马总统的指责随即而来。奥巴马总统面临违背承诺的指责，违背在
他推动下、各国首脑在上届 G-20 会议上做出的、为避免全球经济衰退而回避贸易保护行动的承
诺。他还面临宣布这一决定时机不对的指责，在 9/11 这一把全世界团结在一起的日子宣布裁决、
在匹兹堡 G-20 首脑会议即将举行之际，更何况美国还是东道国。中国公开抱怨奥巴马总统准备
用十万个中国就业机会换取五千个美国工作，争取道德制高点。贸易专家急忙预测一系列针对中
国产品的保障案件将立即到来。总而言之，如果一个软弱无力的指控能得到奥巴马政府的支持，
那么更强有力的指控一定将赢得胜利。而且采取保障救济的标准比反倾销、反补贴调查低得多。
在贸易保障调查中不需要证明中方违背了贸易规则，在本案中没有任何反补贴或反倾销指控。即
使有不正当贸易行为，法律规定在裁决时无须考虑这些行为。但是，美国钢铁工人联合会主席 Leo
Gerard在总统宣布决定前后公开诋毁中国的贸易行为，他还立马带头在新的申诉中包括这些指控。
奥巴马政府没有公开评论轮胎特保案决定与反倾销、反补贴裁决之间的差别，因此更强化了中方
认为这一裁决不公且时机不当的印象。Gerard 的评论（以及钢铁工人联合会证人和美国制造业联
盟在贸易政策委员会听证会上的发言）显示他们置法律于不顾、破坏中美关系。观察他们在轮胎
案中的表现，奥巴马政府应注意工会热情的拥抱。
奥巴马总统真的展开一场新的贸易战吗？中国是否采取了报复行动？G-20 成员国是否得出美国
并不坚信自由贸易的结论，并采取行动保护本国市场呢？这一案件是否会影响刚刚开始的全球经
济复苏、使自 1930 年代以来最严重的经济危机又走下坡路呢？
这些令人不安的问题并没有简单答案，但是不用歇斯特里就可回答其中一些问题。有些并不显而
易见，有些却明白无误。
轮胎案裁决
所有的贸易纠纷都源自国内政治。轮胎案起源于奥巴马在竞选美国总统时承诺将赋予针对中国产
品的特保条款意义、督促中国遵守贸易法及协定，以及工会支持为他赢得选举起的关键性作用。
同时，国会内的反华情绪也起到一定作用，国会指控中国操纵汇率及采取其他不正当贸易行为似
乎已成为惯例。美国国际贸易委员会六位委员中、包括主席在内四位委员的研究结论起到了推波
助澜作用，这位主席曾为参议员金融委员会民主党主席的工作人员。这四位委员认定中国轮胎出
口增长已经扰乱美国市场、使美国产业受损。参议员金融委员会的这位民主党主席恰好在总统的
医疗改革中起关键作用，而医疗改革是总统的首要任务。
总统的逻辑并不复杂。中国接受了特殊保障条款。条款规定的要求已经达到，至少这一案件已由
国际贸易委员会、美国贸易代表办公室和贸易政策委员会审核。因此，实施这一法律是正确且合
理的。
或许还有一种解释。种种政治力量使得总统在轮胎案中否决贸易救济行动不切实际。工会和民主
党国会已经指责奥巴马总统沿用布什政府政策，而非承诺的改革。如不批准救济行动，那么奥巴
马将被认为对本土工作流失漠不关心，在本案中中方抗辩的立足点就是就业这一点。他将被认为
对中国太“软弱”。最重要的一点，他将失去国会乃至大多数美国民众在贸易问题上的信任。他将
无法推动自由贸易。他现在没有但却需要国会授予贸易谈判的权利，如果不这么做，他将永远无
法得到授权。
时机
修订后的《1974 年贸易协定法案》第 421 条要求总统在 9 月 17 日之前采取行动。总统可以错过
这一截止日期，因为法律中不包含惩罚条款。但是，奥巴马总统特别尊重法律；如果不依法行事，
他将面临许多不利的政治压力。
总统或许是希望避免在全国人大常委会委员长吴邦国访美期间采取行动，因为中方可能会视此为
侮辱。在十多天行程中，吴邦国委员长在与总统、副总统和国会领导会晤时多次提到轮胎案，这
恰好是贸易政策委员会和美国贸易代表办公室提交的意见抵达白宫、总统可作出决定这一时间段
的初期。
9 月 17 日这一截止日期恰好在匹兹堡 G-20 首脑会议召开前一周，总统当然希望能尽量提前宣布。
在首脑会议上，奥巴马希望讨论全球金融体系、经济危机和气候变化。他不希望将话题转至贸易
战。
吴邦国于 9 月 11 日（周五）上午离开美国返回中国。总统在这天下午宣布决定，此时中国已是
周末。对于美国媒体而言，这是一周新闻的尾声。同时这也是吴邦国委员离美后、距离 G-20 首
脑会议最远的时间点，且符合美国法律规定。这一天恰好是 9 月 11 日，但是从政治、外交角度
而言的最佳时机。
报复
中国几乎同时宣布对美国产品展开反补贴、反倾销调查，但这并不是报复。中国的官僚体系和其
他国家的官僚体系一样，只不过更大更慢。中国不可能在不到 24 小时就做好准备、宣布展开调
查。这些贸易调查早在总统宣布决定前就已经开始酝酿了。
中国的声明可能显得这些贸易调查是报复行径，而不是这些调查本身。所以，总统可能在中美磋
商过程中（见 Consultations To Settle The Tires Dispute: Too Little Too Late?一文）告诉中方他准备
如此宣布，希望中方做好准备。可能美方也默许中方将于这一时间宣布展开贸易救济调查，这样
双方都可尽早在 G-20 首脑会议召开前对国内公众有所交待。
在贸易领域，中国对美国不满的清单越列越长并不令人奇怪，尤其是当中国产品在美国和其他国
家面临一波接一波的贸易救济案。虽然中国承诺鼓励国内消费、减少出口依赖（这与美国在 G-20
首脑会议的要求吻合），但这一变化不会很快到来。中国需要海外市场继续对中国产品敞开大门、
享受和其他国家产品同等的待遇。中国对单单针对中国产品的市场限制理所当然有所不满。
中美鸡肉产品纠纷持续已久。中国国内的汽车零部件产业陷入困境，尤其是在经济衰退中。这是
中国采取贸易行动的源泉。这些调查展开的时间可能并非完全巧合，但也不一定是精心策划的“报
复”。
在中国宣布报复行动后短短一周内，美国企业针对中国产品递交了三份反补贴、反倾销申诉。没
有人认为这些申诉是新一轮贸易战的一部分、或是报复。恰恰相反，它们被认为是中美正常贸易
的一部分。中国是美国希望购买的产品的主要生产国，但是美国生产商以及（尤其是）美国工会
希望把这些产品排除在美国市场之外。匹兹堡 G-20 首脑会议的宏伟目标包括鼓励中国向消费型
经济发展、减少出口依赖，同时鼓励美国减少消费、增加储蓄，两个国家的命运在美国对中国贸
易政策的抱怨声中延续。
日趋成熟的中国
虽然命运在延续，全球经济衰退以及中国的成长也带来许多变化。中国为加入世贸组织作出许多
牺牲，包括谈判妥协最终导致特保条款及轮胎救济行动。中国已经多次面临世贸组织的管理，迄
今为止中国因为九项贸易举动成为多个世贸案件的辩护方。同时，中国在过去一年里也向世贸组
织递交了四份申诉。中国已经意识到世贸组织不仅是她面临指控的法律论坛，同时也是挑战其他
国家的场所。
中国更积极地参与世贸组织活动是她积极参与国际舞台的一部分，其他场所还包括在 G-8,
G-5,G-20 及国际货币基金组织。虽然仍为发展中国家，但是中国已经逐渐扮演新角色，是世界
需要倾听的声音。与其简单地把中国使用贸易法视为“报复”，这些行动更应当被视为成熟的表现，
中国愿意、有能力、甚至决心和其他国家一样行事、在同一平台参与世界贸易体系。
中国既不是第一个、也不是最后一个使用贸易救济和纠纷解决机制的国家。她是使用这一机制少
数国家之一，但至少中国已经成为国际组织内的一员、而不是徘徊在组织之外。
这些发展不仅显示中国已更加成熟，同时亦显示中国已经承认国际组织的合法性并接受管理。中
国已经接受国际国籍，维护自己的权利并履行自己的职责。与其寻找中国在履行职责时犯的错误、
带来的危险，更明智的做法是对中国融入全球经济和政治长舒一口气。不久前，中国还不是有影
响力的成员。
轮胎的另一条道路
世贸组织是中国唯一可以上诉 421 条款特保决定的场所。但是，在那里中国很可能会感到失望。
即使中国胜诉，这一胜利也遥遥无期、无法影响轮胎贸易（更何况世贸裁决针对未来），更无法
阻止在 2012 年底 421 条款失效前面临更多特保案件。因此，中国不应当允许特保行动以造成对
世贸组织的错觉，更不应该夸大期望。
轮胎案的裁决可能不会激发其他特保案件。从递交申诉至总统裁决需要 7 个月，这说明如想寻求
全面特保救济（横跨 3 年）应当在这一法律条款失效前 43 个月启动案件。现在距离这一条款失
效仅剩 39 个月，因此已经不可能通过特保案获得全面救济。因为这一条款在 2012 年底失效，随
着时间一天天推移，美国企业可享受救济的时间也一点点减少。
更谨慎和有效的做法是中国应当继续向白宫施压、要求重新考虑，因为这是法律规定一年后应采
取的行动。如果第一年的贸易救济的确为美国带来更多就业机会，那么挑战总统的决定将毫无意
义；但如果中方聘请的经济专家的预言正确——贸易救济对美国就业没有或只有极小影响，那么
总统可能愿意重新考虑，就像布什总统在钢铁保障生效后两年被迫放弃这一贸易救济。在钢铁保
障案中，虽然总统被迫放弃救济行动，但是国内产业已经复苏。如果轮胎产业没有恢复，最可能
的情况是奥巴马总统更不可能维持这一危害中国的救济行动。
（翻译：朱晶）
TAGS: China Safeguard, Obama, Safeguard, Section 421, Tires, Trade Disputes
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Current status back to top
Report(s) adopted, no further action required on 5 October 2011
Key facts back to top
Short title: US — Tyres (China)
Complainant: China
Respondent: United States
Third Parties: European Union; Japan; Chinese Taipei; Turkey;
Viet Nam
Agreements cited:
(as cited in request for consultations)
Protocol of Accession: Art. , , ,
GATT 1994: Art. I:1, II, XIX
Request for
Consultationsreceived:
14 September 2009
Panel Reportcirculated: 13 December 2010
Appellate Body
Reportcirculated:
5 September 2011
Summary of the dispute to date back to top
The summary below was up-to-date at 21 September 2011
Consultations
Complaint by China.
On 14 September 2009, China requested consultations with the United States concerning increased
tariffs on certain passenger vehicle and light truck tyres (subject tyres) from China. The decision was
announced on 11 September 2009 following an investigation pursuant to section 421 of the Trade Act
of 1974 (19 . 2451 et seq.). The USITC determined that there was market disruption as a result
of rapidly increasing imports of subject tyres from China that were a significant cause of material
injury to the domestic industry. Following a Presidential decision additional duties were imposed on
subject tyres imports for a three year period in the amount of 35 per cent ad valorem in the first year,
30 per cent ad valoremin the second year and 25 per cent ad valorem in the third year
(the tyresmeasure). This measure took effect on 26 September 2009.
According to China the higher tariffs are inconsistent with Article I:1 of the GATT 1994 and have not
been properly justified pursuant to Article XIX of the GATT 1994 and the Agreement on Safeguards.
China also maintains that these measures are not properly justified as China-specific restrictions under
paragraph 16 of its Protocolof Accession. Specifically, China alleges that the US statute defines
“significant cause” more narrowly than required by the ordinary meaning of that phrase as used in
paragraph of the Protocol of Accession.
China also alleges that these measures are also inconsistent, as applied, with the United States'
obligations under China's Protocol of Accession,specifically:
paragraphs and because (a) imports from China were not “in such increased
quantities” and were not “increasing rapidly”; (b) imports from China were not a “significant
cause” of material injury or threat thereof; and (c) the domestic tyre producers were not
experiencing “market disruption” or “material injury”;
paragraph because the restrictions are being imposed beyond the “extent necessary to
prevent or remedy” any alleged market disruption; and
paragraph because the restrictions are being imposed for a period of time longer than
“necessary to prevent or remedy” any alleged market disruption.
On 9 December 2009, China requested the establishment of a panel. At its meeting on 21 December
2009, the DSB deferred the establishment of a panel.
Panel and Appellate Body proceedings
At its meeting on 19 January 2010, the DSB established a panel pursuant to the request from
China. The European Union, Japan, Chinese Taipei, Turkey and Viet Nam reserved their third-party
rights. On 2 March 2010, China requested the Director-General to determine the composition of the
panel. On 12 March 2010, the Director-General composed the panel. On 31 May 2010, the Chairman
of the panel informed the DSB that the panel would not be able to complete its work in six months in
light of scheduling conflicts. The panel expected to complete its work in November 2010.
On 8 November 2010, the final report was issued to the parties. On 13 December 2010, the panel
report was circulated to Members. China made seven specific claims in this dispute based on
paragraph 16 of the Protocol, and GATT 1994. In respect of the Protocol, China asked the panel to
find that:
i. the United States failed to evaluate properly whether imports from China were in “such
increased quantities” and “increasing rapidly” as required by paragraphs and of the
Protocol;
ii. the US statute implementing the causation standard of paragraph 16 into US law was
inconsistent “as such” with paragraphs and of the Protocol;
iii. the United States failed to evaluate properly whether imports from China were a “significant
cause” as required by paragraphs and of the Protocol;
iv. the United States imposed a transitional safeguard measure that went beyond the “extent
necessary”, and thus it was inconsistent with paragraph of the Protocol;
v. the United States imposed a transitional safeguard measure for a three-year period that went
beyond “such period of time” that was “necessary”, and thus it was inconsistent with
paragraph of the Protocol.
Regarding China's claims under GATT 1994, China asked the panel to find that:
i. the transitional safeguard measure was inconsistent with Article I:1 of the GATT 1994 as the
United States did not accord the same treatment that it grants to passenger vehicle and light
truck tyres originating in other countries to like products originating in China;
ii. the transitional safeguard measure is inconsistent with Article II:1(b) of the GATT 1994 as the
tariffs consist of unjustified modifications of US concessions on passenger vehicle and light
truck tyres under the GATT 1994.
China asked that the panel recommend that the United States promptly comply with its obligations and
withdraw the tyres measure.
The United States asked the panel to reject China's claims in their entirety.
The relationship between paragraphs and paragraph of the Protocol
China argued that the phrase “in such increased quantities” in paragraph of the Protocol, which
also appears in Article of the Agreement on Safeguards, was a base level requirement in addressing
increasing imports under the Protocol. In accordance with case law under the Agreement on
Safeguards, China argued that imports, as a first step, needed to be sudden enough, sharp enough, and
significant enough to cause injury. Only after that first step had been achieved would the focus then
shift to paragraph of the Protocol where imports would also need to meet the requirement of
“increasing rapidly”.
The panel rejected this approach. The panel found that paragraph clarified the substance of the
conditions for taking action under paragraph 16 of the Protocol — . that imports had to be
“increasing rapidly” and that there had to be “a significant cause” of material injury to the domestic
industry. Therefore, in this regard the panel's findings focused on paragraph of the Protocol rather
than paragraph .
Panel's findings and conclusions
Essentially, China's claims focused on five issues:
i. China argued that despite the absolute increases in subject imports, a decline in the rate of
increase in the final year of the period of investigation (2008) meant that subject imports were
not “increasing rapidly” in accordance with paragraph of the Protocol. The panel
disagreed and found that subject imports were increasing rapidly, both absolutely and
relatively, in accordance with the Protocol.
ii. China asserted that the United States' “contributes significantly” definition in its statute was at
odds with the ordinary meaning of the “significant cause” standard in paragraph of the
Protocol. The panel rejected this “as such” argument.
iii. China claimed that the USITC failed to properly demonstrate that subject imports were a
“significant cause” of market disruption. China's claim was based on three principal
arguments: (1) a failure by the USITC to show conditions of competition between subject
imports and the domestic product to support a finding of causation; (2) a failure by the USITC
to establish any temporal correlation between rapidly increasing subject imports and material
injury to the domestic industry; and (3) a failure by the USITC to address alternative causes of
material injury to the domestic industry. The panel rejected all of China's arguments.
iv. China claimed that the remedy applied in this case was inconsistent with paragraph of the
Protocol as it was not limited to the market disruption caused by rapidly increasing imports;
and that, contrary to paragraph , the three year duration exceeded the period of time
necessary to prevent or remedy the market disruption. The panel found that China had failed
to establish a prima facie case in relation to both of these remedy claims.
v. The panel found that China's claims under GATT 1994 were dependent on its claims under
paragraph 16 of the Protocol. They were, therefore, similarly unsuccessful.
The panel concluded that in imposing the transitional safeguards measure on 26 September 2009 in
respect of imports of subject tyres from China, the United States did not fail to comply with its
obligations under paragraph 16 of the Protocol and Articles I:1 and II:1 of the GATT 1994. The panel
also found that there was no “as such” violation in respect of the US statute implementing the causation
standard of paragraph 16 of the Protocol.
On 27 January 2011, China and the United States requested the DSB to adopt a draft decision
extending the 60-day time period stipulated in Article of the DSU, to 24 May 2011. At its
meeting on 7 February 2011, the DSB agreed that, upon a request by China and the United States, the
DSB, shall no later than 24 May 2011, adopt the panel report, unless the DSB decides by consensus not
to do so or China or the United States notifies the DSB of its decision to appeal pursuant to Article
of the DSU.
On 24 May 2011, China notified the DSB of its decision to appeal to the Appellate Body certain issues
of law and legal interpretation covered in the panel report. On 22 July 2011, the Chair of the Appellate
Body informed the DSB that due to the time required for completion of its report, the Appellate Body
would not be able to circulate its report within 60 days. The Appellate Body estimated that the report
will be circulated no later than 5 September 2011.
On 5 September 2011, the Appellate Body report was circulated to Members.
Summary of key findings
China appealed aspects of the Panel's finding that, in imposing the safeguard measure in respect of
imports of certain passenger vehicle and light truck tyres from China, the United States did not act
inconsistently with its obligations under Section 16 of China's Accession Protocol. Under Section 16
of the Protocol, other WTO Members have the right to impose safeguard measures on imports from
China alone when such imports are “increasing rapidly” so as to be a “significant cause” of material
injury to the domestic industry.
The Appellate Body upheld the Panel's finding that the USITC did not fail to properly evaluate
whether imports from China met the specific threshold under Paragraph of China's Accession
Protocol of “increasing rapidly”. The Appellate found that Paragraph requires investigating
authorities to assess import trends over a sufficiently recent period, and to determine whether imports
are increasing significantly, either in absolute or relative terms, within a short period of time.
With respect to the particular causation standard set out under Paragraph of China's Accession
Protocol, the Appellate Body found that the term “a significant cause” in Paragraph of the
Protocol requires that rapidly increasing imports make an “important” or “notable” contribution in
bringing about material injury to the domestic industry. The Appellate Body explained that an
investigating authority can make a determination as to whether subject imports are a “significant”
cause of material injury only if it ensures that effects of other known causes are not improperly
attributed to subject imports.
Turning to China's specific claims of error in relation to the Panel's review of the USITC's causation
analysis, the Appellate Body upheld the Panel's finding that the USITC did not err in its assessment
of the conditions of competition in the overall US tyres market. The Appellate Body
furtherupheld the Panel's finding that the USITC's reliance on overall coincidence between an
upward movement in imports from China and a downward movement in injury factors supported the
USITC's finding that rapidly increasing imports from China were a significant cause of material
injury to the domestic industry.
The Appellate Body also upheld the Panel's finding that China failed to establish that the USITC
improperly attributed injury caused by other factors to imports from China. The Appellate Body
found that the Panel did not err in its review of the USITC's analysis of the US industry's business
strategy and the reasons for certain US plant closures; did not err in concluding that the USITC
properly found that imports from China had injurious effects independent of changes in demand; and
did not improperly attribute to Chinese imports the effects of imports from third countries. The
Appellate Body said it considered the Panel's analysis to have been sufficient particularly given that,
under Paragraph of the Protocol, rapidly increasing imports from China may be one of several
causes that contribute to producing or bringing about material injury to the domestic industry.
Finally, the Appellate Body found that the Panel did not act inconsistently with Article 11 of the
DSU in its review of the USITC's causation analysis.
