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It can be said that gaining custody of children is always the most concerned issue after divorce. Depending on the agreement, economic conditions or ability to care for the parents, the Court will decide who has custody of the children. In addition, the law currently stipulates that when a child is under 36 months old, it will be given to the mother to directly raise and care for. However, in not all cases does the mother have the right to raise a child under 36 months old, but the father will also have the right if he meets all the legal conditions. So what are those conditions? Let’s join Bach Tuyet Law Firm to find out and analyze the above issue!
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Overview of trade safeguard measures
Trade safeguard measures, as one of a number of trade defense measures, are designed to temporarily limit the import of one or several types of goods when their rapid increase in import causes or threaten to cause serious damage to the domestic industry. Thus, in essence, trade safeguard measures are considered an exceptional case in which WTO members are exempt from implementing a number of obligations under the provisions of GATT and related WTO commitments.
Legal framework for trade safeguard measures in the GATT/WTO trading system
2.1. Conditions for applying trade safeguard measures
According to Clause 1, Article 2 of the Trade Safeguards Agreement, trade safeguard measures are applied if and only if the competent authority of the importing member (in the WTO) has fully concluded as follows:
- There is an increase in imported goods being investigated
Regarding the proliferation of goods, Article 2.1 of the Trade Safeguards Agreement provides that a member has determined to be:
(i) there is an absolute increase in imported products, (a specific quantitative increase in tons of imported goods or number of units of imported goods); or
(ii) there is a relative increase in imported products, (an increase in the volume of imported goods in comparison with the volume of domestically produced goods).
(2) There is an unforeseen development that results from the obligations that importing members applying trade safeguard measures must comply with under the provisions of GATT 1994.
Unforeseen developments are understood as developments that take place after WTO members have negotiated tariff reductions and that these members did not and could not have known at the time of negotiations. Detail:
– An increase in imports that causes or threatens to cause serious injury to the domestic industry of the importing member that is producing like or directly competitive products;
– There is a cause and effect relationship between increased imports and damage that threatens to cause serious damage to the domestic industry.
(3) There is serious damage
Article XIX GATT 1994 and Article 4 of the Trade Safeguards Agreement require members to consider whether a domestic industry would be seriously injured or threatened with serious injury from a sudden increase in goods imported or not. In particular, “serious damage” is understood as a significant overall decline in the position of the domestic industry. And “threat of serious damage” is serious damage that will clearly occur in the very near future, assessed based on specific, existing evidence rather than speculative allegation, which is not a possibility in the distant future.
In addition, to determine the presence of damage and its severity, GATT/WTO requires members to evaluate all relevant factors in Article 4.2 of the Trade Safeguards Agreement as follows: : rate, amount of import increase, domestic market share of the increase, change in sales levels, production, productivity, capacity utilization, profits, losses and employment.
(4) Requirements for cause and effect relationships
A mandatory condition for applying trade safeguard measures is that the importing member must prove:
– Causal relationship between increased imports and damage/threat of serious damage;
– Determine whether the relevant damages could be the result of other factors. In case there is damage caused by another factor, this damage is not counted as due to increased imported goods. The importing country must make laws
The importing country must provide sufficient arguments and evidence about the nature and extent of the damage to distinguish damage caused by other factors from serious damage caused by an increase in imports.
2.2. Principles of applying trade safeguard measures
(1) Principle of non-discrimination
Trade safeguard measures apply to imported goods regardless of origin, except for related goods imported from developing country members whose market share does not exceed 3% individually (the level de miminis market share) or not exceeding 9% combined even though the individual market share is less than 3%.
(2) Principles of ensuring compensation for commercial losses
Importing members are obliged to commit to compensating members whose goods are subject to trade safeguard measures. The level and method of compensation will be made based on agreement between the parties. If the importing member cannot agree with other members on the level and method of compensation, other members are entitled to take retaliatory measures by suspending the performance of one or more of their trade obligations. for countries applying trade defense measures without making compensation according to regulations.
(3) Principle of priority for developing countries
The World Trade Organization (WTO) recognizes the need to provide developing and underdeveloped countries with more favorable conditions and special preferential treatment regimes in international trade without requiring reciprocity in commit. For example, Article 9 of the Trade Safeguards Agreement (SA Agreement) stipulates that safeguard measures cannot be applied to goods originating from a developing member country if the country’s export market share in the country imported no more than 3%. Or if there are many developing member countries with each country’s market share below 3% and the total market share of these countries not exceeding 9%, then no safeguard measures will be applied.
(4) Principles of applying self-defense measures within the necessary scope and extent
Trade safeguard measures are only applied to the extent necessary to prevent serious damage to the domestic industry, so that the domestic industry has time to adjust. In particular, the level of necessity is understood to mean that trade defense measures are only applied at a level appropriate to the damage caused by the increased imports themselves, excluding damage from other factors.
2.3. Application period
In principle, trade safeguard measures are only temporary measures, applied only after the importing member’s final investigation decision and for a maximum of 4 years. In case of necessity, if the competent authority proves that the continued application of trade safeguards is necessary to prevent serious damage that may occur to the domestic industry and this authority can present evidence related to the adjustment of the domestic manufacturing industry, it can be extended for another 4 years. For developing members, the SA Agreement allows that developing member to apply trade safeguard measures for a maximum of 10 years, instead of 8 years like other members.
Trade safeguard measures
Trade safeguard measures
3.1. Tariff measures
Tariffs are revenues in the form of taxes levied on products when goods are imported into the domestic market. This is a measure that the WTO allows member countries to use to protect their domestic markets. The reason tariffs are chosen as a popular tool to apply is because of the following reasons:
First, tariffs contribute to increasing revenue for the State budget, especially for developing countries.
Second, tariffs help domestic manufacturers sell goods on the domestic market without facing great competitive pressure, demonstrating the function and goal of taxes is to protect production.
Third, tariffs have the effect of regulating the import of goods flowing into a certain market. A high tax rate on a good will cause the amount of imports to decrease. The application of tariffs does not lead to the destruction of trade relations, because even if tax rates increase, foreign goods still have a chance to penetrate the domestic market.
3.2. Non-tariff measures
Within the framework of the GATT/WTO system, non-tariff barriers are understood as non-tariff measures of the Government that hinder international trade. These measures are diverse such as: quantitative restrictions, administrative/customs procedures, fees and charges, technical quality standards, labeling of goods, etc. In general, the WTO tends to restrict member countries from establishing and applying non-tariff barriers. However, that country can still apply non-tariff measures if they ensure the content and process requirements according to the provisions of WTO law.
In the next article, we will provide readers with some practical cases of applying Trade Safeguards in Vietnam as well as countries around the world.
Above is the advice of Bach Tuyet Law Firm on the topic “Commercial safeguard measures”. If you have any other questions, please contact us with the following information:
1/ Head office: 1132 Le Duc Tho, Ward 13, Go Vap District, Ho City Chi Minh
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2/ Branch: 144D Nguyen Dinh Chinh, Ward 8, Phu Nhuan District, Ho Chi Minh City
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