The WTO Agreement on Safeguards prescribes each member to adopt appropriate domestic legislation before it imposes safeguard measures. Historically, Jordan enacted its first WTO-compatible safeguard law, known as the National Production Protection Law No.4 of 1998 (“NPP Law”), in 1998 on the eve of Jordan’s accession to the WTO. Afterward, it amended its NPP Law of 1998. So now, Jordan’s safeguard system is based on the amended NPP Law No. 50 of 2002 and Regulation on Safeguard of National Production. The article also examines safeguard measures under the U.S.-Jordan Free Trade Agreement.
In conformity with Berne Convention, the IP Law of Vietnam also provides, under Article 6.1, that “Copyright shall arise at the moment a work is created and fixed in a certain material form, irrespective of its content, quality, form, mode and language and irrespective of whether or not such work has been published or registered”. The aforesaid legislation means that copyright registration is not a pre-requisite for entitlement of copyright protection and proceeding with legal actions. A work is automatically protected in Vietnam without having to register it with Vietnamese competent authority.
If you're thinking of enforcing against an infringement of your intellectual property rights in Vietnam under administrative proceedings, a thorough understanding of functions, tasks, and capacities of a law enforcement authority in Vietnam will enable you to choose an authority that is competent to handle IPR infringement, to avoid unexpected delays and to maximise the authority’s strength in subsequent enforcement actions.
1. The Inspectorate of Science and Technology
The Inspectorate of Science and Technology include:
(i) the Inspectorate of Ministry of Science and Technology, and
(ii) the Inspectorate of Department of Science and Technology at the provincial level.
http://www.dica.gov.mm/sites/dica.gov.mm/files/document-files/mir_english_0.pdf
Myanmar Investment Rules-Investment Related Laws of Myanmar-Press Release for the meeting with chairman of Myanmar Investment Commission
It has never been easier or more lucrative to do business in Myanmar. With new laws, special economic zones, a floated Kyat, tax reforms and other sweeping reforms, the door is growing more and more open for investment and trade. This section offers an overview of the laws, reforms and other legal framework surrounding investment and businesses in Myanmar.
Click the following links for more information about…
MYANMAR COMPANIES ACT
FOREIGN INVESTMENT
MYANMAR CITIZEN INVESTMENT
LABOR
STATE OWNED ENTERPRISES
SPECIAL ECONOMIC ZONES
STATE OWNED ENTERPRISES
ENVIRONMENTAL REGULATION
INVESTMENT AGREEMENTS
Overview of major economic laws
In recent years the government of Myanmar has enacted several laws that either replace or build upon its existing legal framework. In the following you will find the most significant existing laws.
Research Interests: Foreign Direct Investment, Myanmar In International Business, and MYANMAR INVESTMENT LAW
Since intellectual property rights (IPRs) constitute a civil right, civil enforcement plays a critical role in
IPR enforcement. However, our analysis of statistics on IPR infringement and enforcement in reports
from enforcement agencies reveals that the vast majority of IPR infringement cases in Vietnam have
been resolved under administrative route over the past time. While thousands of IP infringement
cases are handled administratively each year, only a few cases are tried by courts. The administrative
mechanism is said to be more expeditious, compact, simple, and economical in handling IPR
infringements than the lengthy trial, complicated, and costly procedures of the civil mechanism. The
above dispute-resolution situation in Vietnam results in a fact that civil relations and civil disputes are
largely resolved under administrative proceedings, resulting in inadequate protection of IPRs and,
more seriously, many violations continuing to reoccur through larger scale and more sophisticated
tricks.
In conformity with Berne Convention, the IP Law of Vietnam also provides, under Article 6.1, that “Copyright shall arise at the moment a work is created and fixed in a certain material form, irrespective of its content, quality, form, mode and language and irrespective of whether or not such work has been published or registered”. The aforesaid legislation means that copyright registration is not a pre-requisite for entitlement of copyright protection and proceeding with legal actions. A work is automatically protected in Vietnam without having to register it with Vietnamese competent authority.
If you're thinking of enforcing against an infringement of your intellectual property rights in Vietnam under administrative proceedings, a thorough understanding of functions, tasks, and capacities of a law enforcement authority in Vietnam will enable you to choose an authority that is competent to handle IPR infringement, to avoid unexpected delays and to maximise the authority’s strength in subsequent enforcement actions.
1. The Inspectorate of Science and Technology
The Inspectorate of Science and Technology include:
(i) the Inspectorate of Ministry of Science and Technology, and
(ii) the Inspectorate of Department of Science and Technology at the provincial level.
http://www.dica.gov.mm/sites/dica.gov.mm/files/document-files/mir_english_0.pdf
Myanmar Investment Rules-Investment Related Laws of Myanmar-Press Release for the meeting with chairman of Myanmar Investment Commission
It has never been easier or more lucrative to do business in Myanmar. With new laws, special economic zones, a floated Kyat, tax reforms and other sweeping reforms, the door is growing more and more open for investment and trade. This section offers an overview of the laws, reforms and other legal framework surrounding investment and businesses in Myanmar.
Click the following links for more information about…
MYANMAR COMPANIES ACT
FOREIGN INVESTMENT
MYANMAR CITIZEN INVESTMENT
LABOR
STATE OWNED ENTERPRISES
SPECIAL ECONOMIC ZONES
STATE OWNED ENTERPRISES
ENVIRONMENTAL REGULATION
INVESTMENT AGREEMENTS
Overview of major economic laws
In recent years the government of Myanmar has enacted several laws that either replace or build upon its existing legal framework. In the following you will find the most significant existing laws.
Research Interests: Foreign Direct Investment, Myanmar In International Business, and MYANMAR INVESTMENT LAW
Since intellectual property rights (IPRs) constitute a civil right, civil enforcement plays a critical role in
IPR enforcement. However, our analysis of statistics on IPR infringement and enforcement in reports
from enforcement agencies reveals that the vast majority of IPR infringement cases in Vietnam have
been resolved under administrative route over the past time. While thousands of IP infringement
cases are handled administratively each year, only a few cases are tried by courts. The administrative
mechanism is said to be more expeditious, compact, simple, and economical in handling IPR
infringements than the lengthy trial, complicated, and costly procedures of the civil mechanism. The
above dispute-resolution situation in Vietnam results in a fact that civil relations and civil disputes are
largely resolved under administrative proceedings, resulting in inadequate protection of IPRs and,
more seriously, many violations continuing to reoccur through larger scale and more sophisticated
tricks.
Laws Regulating Drugs and Medical DevicesAshish vishal
This is the umbrella legislation which deals with regulation of drugs and medical devices in India. It is from Section 12 of this Act that the Central Government derives the power to make rules and as a result the Drugs and Cosmetics Rules, 1945 were formulated. https://www.rickychopra.co/
Partners Rory McPhillips, Stuart Kennedy and Senior Associate Stephen Gardiner of the Aviation Finance and Transportation team co-author an article for Lexology Navigator - Aviation in Ireland.
Texto Consolidado del ACTA, "Anti-Counterfeiting Trade Agreement (ACTA, Acuerdo comercial anti-falsificación)" que afecta muy seriamente los derechos de todos los usuarios de todo tipo de dispositivo capaz de manipular obras con copyright.
http://es.wikipedia.org/wiki/Anti-Counterfeiting_Trade_Agreement
LEGAL FRAMEWORK FOR ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
A patent infringement case in Vietnam adjudicated under civil proceedings – s...KENFOX IP & Law Office
Based on the VIPRI’s expert opinion (witness), the plaintiff filed a lawsuit against Nong Phat before a court in Ho Chi Minh City, Vietnam (“the Court”) for hearing. In the lawsuit petition, the plaintiff requested the Ho Chi Minh People’s Court to order the defendant (i) to cease manufacturing, distributing, storing, circulating, offering for sales, advertising the pesticides named “SESPA GOLD”, (ii) to stop importing material, additives for manufacturing “SESPA GOLD” and “HUMMER” products, (iii) to recall the “SESPA GOLD” products, (iv) to withdraw the dossier for registration for circulation of this product at Plant Protection Department, (v) to not register for circulation of any products containing “Fipronil” and “Imidacloprid”, (vi) pay a compensation damage of VND 200 million (~US$8,700) for hiring lawyer to engage in the lawsuit and (vii) make a public apology in local newspapers.
Finance and Capital Market partners Rory McPhillips and Stuart Kennedy and senior associate, Stephen Gardiner co-author the Ireland chapter of GTDT Air Transport 2020.
Lexology Getting the Deal Through Air Transport 2020Matheson Law Firm
Finance and Capital Markets partners Rory McPhilips and Stuart Kennedy and senior associate, Stephen Gardiner co-author the Ireland chapter of Getting the Deal Through Air Transport 2020.
Checklist of Compliance Issues Under the International Traffic in Arms Regula...Doug Bowman
The following is a Checklist of key issues for companies to consider in assessing compliance under the International Traffic In Arms Regulations (“ITAR”). This is not intended as a complete listing of all ITAR requirements but rather as a tool for evaluating the most common compliance risks for U.S. and foreign companies.
NEW WHISTLEBLOWER INCENTIVES AND PROTECTION IN THE DODD-FRANK ACTptcollins
On July 21, 2010, President Obama signed into law the “Dodd-Frank Wall Street Reform and Consumer Protection Act” (“Dodd-Frank Act”). The legislation is primarily designed to increase overall regulation of the financial industry, but it also contains numerous provisions designed to encourage and protect whistleblowers in and outside of the financial industry.
NMM Law Alert
· Read the overview for Module 4· From the textbook, Internation.docxLynellBull52
· Read the overview for Module 4
· From the textbook, International business law and its environment, read the following chapters:
· National Lawmaking Powers and the Regulation of U.S. Trade
· GATT Law and the World Trade Organization: Basic Principles
· Law Governing Access to Foreign Markets
· From the Argosy University online library resources, read:
· Desai, M., Foley, C., & Hines Jr., J. (2004, December). Foreign direct investment in a world of multiple taxes.Journal of Public Economics, 88(12), 2727–2744. (LIRN Article A152498641)
· Gunter, H. (2006). Global expansion plans broaden horizons. Hotel & Motel Management, 221(18), 1–49. Retrieved from EBSCO database http://search.ebscohost.com/ login.aspx?direct=true&db=buh&AN=22746846&site=ehost-live
· International growth. (2009). Franchising World, 41(2), 93. Retrieved from EBSCO databasehttp://libproxy.edmc.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=bsh&AN=36530783&site=ehost-live
Growth in International Markets
Can managers afford to be conservative when taking decisions related to potential growth prospects?
After a company has successfully entered a foreign market, it may decide to continue to grow. Decisions to invest further can become easier to make based on the company’s experience in that market.
In early 2009, the Hongkong and Shanghai Banking Corporation (HSBC), Europe’s largest bank, announced that it was retreating from its expansion plans in the U.S. HSBC had recorded a $16 billion bad-debt loss in 2008. The loss was from an acquisition that initially cost the bank $14.8 billion. HSBC also had an additional $10 billion write-down on goodwill from its acquisition. The decision was primarily influenced by the eroding U.S. real estate market and a decline in the lending portfolio value of Household Financial, a six-year-old acquisition. Federal policies and regulations such as reduced interest rates, increased money supply, and Troubled Assets Relief Program (TARP) funds were contributing factors.
Raising capital, finding labor, and leveraging existing distribution channels all play a part in the decision to grow further. However, growth in international markets continues to be a challenge despite any circumstances.
Module 4 Overview (2 of 2)
Growth in International Markets
This module will cover the risks associated with growth in international markets.
You will compare the risks of further expansion in an existing market with the risks of expanding into a new market. In your assignment, you will also investigate economic incentives offered to companies that plan on investing. You will also look at the various regulatory issues companies need to take into account prior to further expansion.
CHAPTER 10: Laws Governing Access to Foreign Markets
Left to their own devices, the natural inclination of most nations is to protect their domestic industrial and agricultural base from foreign competition. National governments are easily tempted by t.
How the Law protects Investment in Technology - Trade secrets, Patents, Copyr...Jane Lambert
This is the handout for my presentation on how the law protects investment in technology that I gave on 27 Nov 2013. In it you will find links to the treaties, statutes and other materials as well as some background discussion.
Intellectual Property Rights and Competition Law A Cont.docxvrickens
Intellectual Property Rights and Competition
Law: A Context for Coordination and
Harmonization
Gwen Grecia-De Vera*
I. INTRODUCTION ........................................................................ 1111
II. OVERVIEW OF THE PHILIPPINE COMPETITION ACT .................. 1113
III. THE INTELLECTUAL PROPERTY CODE ..................................... 1120
IV. INTELLECTUAL PROPERTY AND COMPETITION ........................ 1132
V. COORDINATION AND HARMONIZATION ................................. 1153
I. INTRODUCTION
The Intellectual Property Code of the Philippines1 (IP Code) was enacted in
light of the State policy to protect and secure, for a specific statutory
duration, the exclusive rights of scientists, artists, and other gifted citizens of
their intellectual and industrial property under the 1987 Constitution.2 Since
its effectivity in 1998,3 the IP Code has provided the legislative and
* ’95 LL.B, University of the Philippines College of Law. The Author served as
the Philippine Competition Commission’s first Executive Director. She was the
former Dean of the Manuel Luiz Quezon University School of Law. She is currently
a Senior Lecturer at the University of the Philippines College of Law.
Cite as 62 ATENEO L.J. 1111 (2018).
1. An Act Prescribing the Intellectual Property Code and Establishing the
Intellectual Property Office, Providing for Powers and Functions, and for Other
Purposes [INTELL. PROP. CODE], Republic Act No. 8293 (1998).
2. PHIL. CONST. art. XIV, § 13.
3. The Intellectual Property Code (IP Code) took effect on 1 January 1998 and, by
its express provision, repealed the following laws: the Trademark Law, the
Patent Law, Articles 188 and 189 of the Revised Penal Code, the Decree on
Intellectual Property, and the Decree on Compulsory Reprinting of Foreign
Textbooks. The IP Code was enacted to strengthen the intellectual and
industrial property system in the Philippines as mandated by the country’s
accession to the Agreement Establishing the World Trade Organization. See
INTELL. PROP. CODE, §§ 2 & 240 (as amended).
1112 ATENEO LAW JOURNAL [vol. 62:1111
institutional framework for the protection and enforcement of intellectual
property rights (IPR) across patents, trademarks, copyright, geographic
indications, and trade secrets.4 It reflects the core inducement for innovation
and artistic creation in the grant of exclusive rights to use and exploit an
invention or artistic work. However, the welfare effects of the IPR
protection under the IP Code remain unclear, such that under the Philippine
Development Plan 2017-2022 (PDP 2017-2022),5 the country’s performance
in the science, technology, and innovation (STI) sector remained dismal.
Against this backdrop, competition law and policy was sought to be
implemented with the enactment of Republic Act No. 10667, or the
Philippine Competition Act (PCA),6 in 2015. This is of particular interest,
because at the center of compe ...
Laws Regulating Drugs and Medical DevicesAshish vishal
This is the umbrella legislation which deals with regulation of drugs and medical devices in India. It is from Section 12 of this Act that the Central Government derives the power to make rules and as a result the Drugs and Cosmetics Rules, 1945 were formulated. https://www.rickychopra.co/
Partners Rory McPhillips, Stuart Kennedy and Senior Associate Stephen Gardiner of the Aviation Finance and Transportation team co-author an article for Lexology Navigator - Aviation in Ireland.
Texto Consolidado del ACTA, "Anti-Counterfeiting Trade Agreement (ACTA, Acuerdo comercial anti-falsificación)" que afecta muy seriamente los derechos de todos los usuarios de todo tipo de dispositivo capaz de manipular obras con copyright.
http://es.wikipedia.org/wiki/Anti-Counterfeiting_Trade_Agreement
LEGAL FRAMEWORK FOR ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
A patent infringement case in Vietnam adjudicated under civil proceedings – s...KENFOX IP & Law Office
Based on the VIPRI’s expert opinion (witness), the plaintiff filed a lawsuit against Nong Phat before a court in Ho Chi Minh City, Vietnam (“the Court”) for hearing. In the lawsuit petition, the plaintiff requested the Ho Chi Minh People’s Court to order the defendant (i) to cease manufacturing, distributing, storing, circulating, offering for sales, advertising the pesticides named “SESPA GOLD”, (ii) to stop importing material, additives for manufacturing “SESPA GOLD” and “HUMMER” products, (iii) to recall the “SESPA GOLD” products, (iv) to withdraw the dossier for registration for circulation of this product at Plant Protection Department, (v) to not register for circulation of any products containing “Fipronil” and “Imidacloprid”, (vi) pay a compensation damage of VND 200 million (~US$8,700) for hiring lawyer to engage in the lawsuit and (vii) make a public apology in local newspapers.
Finance and Capital Market partners Rory McPhillips and Stuart Kennedy and senior associate, Stephen Gardiner co-author the Ireland chapter of GTDT Air Transport 2020.
Lexology Getting the Deal Through Air Transport 2020Matheson Law Firm
Finance and Capital Markets partners Rory McPhilips and Stuart Kennedy and senior associate, Stephen Gardiner co-author the Ireland chapter of Getting the Deal Through Air Transport 2020.
Checklist of Compliance Issues Under the International Traffic in Arms Regula...Doug Bowman
The following is a Checklist of key issues for companies to consider in assessing compliance under the International Traffic In Arms Regulations (“ITAR”). This is not intended as a complete listing of all ITAR requirements but rather as a tool for evaluating the most common compliance risks for U.S. and foreign companies.
NEW WHISTLEBLOWER INCENTIVES AND PROTECTION IN THE DODD-FRANK ACTptcollins
On July 21, 2010, President Obama signed into law the “Dodd-Frank Wall Street Reform and Consumer Protection Act” (“Dodd-Frank Act”). The legislation is primarily designed to increase overall regulation of the financial industry, but it also contains numerous provisions designed to encourage and protect whistleblowers in and outside of the financial industry.
NMM Law Alert
· Read the overview for Module 4· From the textbook, Internation.docxLynellBull52
· Read the overview for Module 4
· From the textbook, International business law and its environment, read the following chapters:
· National Lawmaking Powers and the Regulation of U.S. Trade
· GATT Law and the World Trade Organization: Basic Principles
· Law Governing Access to Foreign Markets
· From the Argosy University online library resources, read:
· Desai, M., Foley, C., & Hines Jr., J. (2004, December). Foreign direct investment in a world of multiple taxes.Journal of Public Economics, 88(12), 2727–2744. (LIRN Article A152498641)
· Gunter, H. (2006). Global expansion plans broaden horizons. Hotel & Motel Management, 221(18), 1–49. Retrieved from EBSCO database http://search.ebscohost.com/ login.aspx?direct=true&db=buh&AN=22746846&site=ehost-live
· International growth. (2009). Franchising World, 41(2), 93. Retrieved from EBSCO databasehttp://libproxy.edmc.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=bsh&AN=36530783&site=ehost-live
Growth in International Markets
Can managers afford to be conservative when taking decisions related to potential growth prospects?
After a company has successfully entered a foreign market, it may decide to continue to grow. Decisions to invest further can become easier to make based on the company’s experience in that market.
In early 2009, the Hongkong and Shanghai Banking Corporation (HSBC), Europe’s largest bank, announced that it was retreating from its expansion plans in the U.S. HSBC had recorded a $16 billion bad-debt loss in 2008. The loss was from an acquisition that initially cost the bank $14.8 billion. HSBC also had an additional $10 billion write-down on goodwill from its acquisition. The decision was primarily influenced by the eroding U.S. real estate market and a decline in the lending portfolio value of Household Financial, a six-year-old acquisition. Federal policies and regulations such as reduced interest rates, increased money supply, and Troubled Assets Relief Program (TARP) funds were contributing factors.
Raising capital, finding labor, and leveraging existing distribution channels all play a part in the decision to grow further. However, growth in international markets continues to be a challenge despite any circumstances.
Module 4 Overview (2 of 2)
Growth in International Markets
This module will cover the risks associated with growth in international markets.
You will compare the risks of further expansion in an existing market with the risks of expanding into a new market. In your assignment, you will also investigate economic incentives offered to companies that plan on investing. You will also look at the various regulatory issues companies need to take into account prior to further expansion.
CHAPTER 10: Laws Governing Access to Foreign Markets
Left to their own devices, the natural inclination of most nations is to protect their domestic industrial and agricultural base from foreign competition. National governments are easily tempted by t.
How the Law protects Investment in Technology - Trade secrets, Patents, Copyr...Jane Lambert
This is the handout for my presentation on how the law protects investment in technology that I gave on 27 Nov 2013. In it you will find links to the treaties, statutes and other materials as well as some background discussion.
Intellectual Property Rights and Competition Law A Cont.docxvrickens
Intellectual Property Rights and Competition
Law: A Context for Coordination and
Harmonization
Gwen Grecia-De Vera*
I. INTRODUCTION ........................................................................ 1111
II. OVERVIEW OF THE PHILIPPINE COMPETITION ACT .................. 1113
III. THE INTELLECTUAL PROPERTY CODE ..................................... 1120
IV. INTELLECTUAL PROPERTY AND COMPETITION ........................ 1132
V. COORDINATION AND HARMONIZATION ................................. 1153
I. INTRODUCTION
The Intellectual Property Code of the Philippines1 (IP Code) was enacted in
light of the State policy to protect and secure, for a specific statutory
duration, the exclusive rights of scientists, artists, and other gifted citizens of
their intellectual and industrial property under the 1987 Constitution.2 Since
its effectivity in 1998,3 the IP Code has provided the legislative and
* ’95 LL.B, University of the Philippines College of Law. The Author served as
the Philippine Competition Commission’s first Executive Director. She was the
former Dean of the Manuel Luiz Quezon University School of Law. She is currently
a Senior Lecturer at the University of the Philippines College of Law.
Cite as 62 ATENEO L.J. 1111 (2018).
1. An Act Prescribing the Intellectual Property Code and Establishing the
Intellectual Property Office, Providing for Powers and Functions, and for Other
Purposes [INTELL. PROP. CODE], Republic Act No. 8293 (1998).
2. PHIL. CONST. art. XIV, § 13.
3. The Intellectual Property Code (IP Code) took effect on 1 January 1998 and, by
its express provision, repealed the following laws: the Trademark Law, the
Patent Law, Articles 188 and 189 of the Revised Penal Code, the Decree on
Intellectual Property, and the Decree on Compulsory Reprinting of Foreign
Textbooks. The IP Code was enacted to strengthen the intellectual and
industrial property system in the Philippines as mandated by the country’s
accession to the Agreement Establishing the World Trade Organization. See
INTELL. PROP. CODE, §§ 2 & 240 (as amended).
1112 ATENEO LAW JOURNAL [vol. 62:1111
institutional framework for the protection and enforcement of intellectual
property rights (IPR) across patents, trademarks, copyright, geographic
indications, and trade secrets.4 It reflects the core inducement for innovation
and artistic creation in the grant of exclusive rights to use and exploit an
invention or artistic work. However, the welfare effects of the IPR
protection under the IP Code remain unclear, such that under the Philippine
Development Plan 2017-2022 (PDP 2017-2022),5 the country’s performance
in the science, technology, and innovation (STI) sector remained dismal.
Against this backdrop, competition law and policy was sought to be
implemented with the enactment of Republic Act No. 10667, or the
Philippine Competition Act (PCA),6 in 2015. This is of particular interest,
because at the center of compe ...
Indian governments Fiscal incentives for R&D are among the most unimaginative and unresponsive in the world. See how other nations proliferated their support measures while still playing by the WTO rule book.
Do you have questions in relation to Irish and European Union law and legal procedure relating to product liability? Do you want to keep updated on proposed developments in the law relating to class actions in Ireland? Matheson’s head of Commercial Litigation and Dispute Resolution Department Tom Hayes and partner Michael Byrne answer your questions in the 17th edition of The International Comparative Legal Guide to Product Liability 2019.
A highlight of the various US regulations and standards for Disaster Recovery, Security, and Business Continuity that are in place for companies. This presentation was given to the Contingency Planners of Ohio North region on April 21, 2010.
By Bernard Galea
The purpose behind this report is to analyse the major provisions of the main legislation concerning waste in India. It is an examination of the provisions that would be relevant to companies and enterprises engaged in activities and industries which are capable of producing waste.
Bashar Malkawi, Iraq Back on Track_ The Case for Expediting WTO Accession.pdfBashar H Malkawi
This paper advocates that the World Trade Organization
(“WTO”) should revise the accession process for countries
classified by the World Bank as “Fragile and Conflict Affected”
(“FCA”), in order to expedite the accession timeline and allow
more expansive concessions, transition times, and technical
assistance, similar to the terms of accession currently applied to
Least Developed Countries (“LDCs”). Specifically, WTO should
permit FCA countries recovering from crisis, genocide, natural
disaster, or other severe unrest, to take advantage of the more
flexible “special and differential treatment” accession provisions
typically accorded to LDCs in the existing WTO system, while
also providing enhanced “trade-related technical assistance”
(TRTA) programming to such FCA countries to speed their
accession process. This paper describes the WTO accession
challenges faced by Iraq as a case study in why expediting WTO
membership of FCAs is a critically important way to help such
countries attract new investment and encourage economic growth
and diversification of economies that tend to rely heavily in single
commodities such as oil
Bashar Malkawi, Here’s how China is responding to US sanctions – with blockin...Bashar H Malkawi
After a recent meeting between U.S. Treasury Secretary Janet Yellen and officials in Beijing, China released a statement demanding “practical action” over the issue of sanctions. The implication was that the punitive measures – imposed by the U.S. government on hundreds of Chinese individuals and entities over the past few years – impede any alleviation of the strained relations between the two economic giants.
The statement followed a testy encounter in May 2023 in which Chinese Defense Minister Li Shangfu refused to meet his American counterpart because of sanctions. Clearly, the economic measures are hurting China – prompting not only tough words but also countermeasures to limit their impact.
As a professor of law and an expert on international trade, I study both how the U.S. sanctions China and how China attempts to counter these sanctions. I also analyze whether China’s countermeasures are working.
Direct and indirect expropriation of FDI Supervised by Bashar H. MalkawiBashar H Malkawi
There are unseen difficulties arise along with the government measures whose main object is not to expropriate or to nationalize the foreign investment, but to deprive the rights attached to the investments of the foreign. These measures are generally known as measures of indirect expropriation or nationalization.
Bashar H. Malkawi, legal architecture and design for gcc economic integrationBashar H Malkawi
The Cooperation Council for the Arab States of the Gulf (GCC) is generally regarded as a success story for economic integration in Arab countries. The idea of regional integration
gained ground by signing the GCC Charter.
Parliamentary participation in international economic agreements by Bashar H....Bashar H Malkawi
Trade policy increasingly intersects with areas of domestic, economic, and social policy in Jordan.Therefore, it is vital that
elected representatives’ views influence the direction of international trade negotiations.
The role of parliament in the treaty-making process has been the subject of debate in Jordan for several years. Although exact comparison with other countries proves difficult due to different political and constitutional structures, there is a
compelling need for Jordan to catch up to other more comparable legislative systems in the area of parliamentary scrutiny of executive treaty-negotiating and treatymaking
powers.
Contents and Features of dispute settlement under US Jordan FTA by Bashar H. ...Bashar H Malkawi
In the area of dispute resolution, the U.S. FTAs with Arab countries share some commonalities. However, the US – JO FTA clearly differs from other U.S. FTAs with Arab countries. Areas of difference include treatment of perishable goods, appeal, panel report, and implementation of panel report. The dispute settlement mechanism in the US – JO FTA can be improved in several concrete ways.
The purpose of the article is to analyse and assess the dispute settlement mechanism provided for by the US – JO FTA. The article concludes by proposing improvements to the US – JO FTA dispute resolution mechanism and additions to its existing provisions. These improvements will address potential concerns and should contribute to a higher utilization of the FTA as well as serve as a template for a more expansive US-led regional FTA.
Catalogue of college of law University of Sharjah (UAE). Academic programs (Bachelor, LLM, and Phd). College of Law description of its administration, structure, and faculty members. The new LLM in Air & Space Law offered by the college.
Bashar H. Malkawi
Anatomy of the case of arab countries and the wto Bashar H. MalkawiBashar H Malkawi
The article proceeds to discuss in section I representation of Arab countries in the multilateral trading system. Section II examines accession of Arab countries to the WTO and some of the obstacles they face in their accessions. Section III discusses the Fourth WTO Ministerial Conference held in Qatar in 2001. Section IV studies participation of Arab countries
in the WTO dispute settlement mechanism. Section V analyzes the impact of the multilateral trading system on Arab countries in selected sectors such as agriculture and oil. Section VI uncovers the opposing positionsof Arab officials and civil societies in Arab countries toward globalization
and the multilateral trading system.
Arab countries participation in the wto dispute settlement mechanism bashar h...Bashar H Malkawi
The paper analyzes Arab countries participation or non-participation in the WTO dispute settlement mechanisn. Specifically, the paper examines the reasons for Arab countries under participation in the WTO dispute settlement mechanism and other alternatives to remedy this state of affair.
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Safeguard Mechanism in Jordan by Bashar H Malkawi
1. Safeguard Mechanism in Jordan
Bashar Malkawi
The WTO Agreement on Safeguards prescribes each member to adopt appropriate
domestic legislation before it imposes safeguard measures.1
Historically, Jordan
enacted its first WTO-compatible safeguard law, known as the National Production
Protection Law No.4 of 1998 (“NPP Law”), in 1998 on the eve of Jordan’s accession
to the WTO. Afterward, it amended its NPP Law of 1998. So now, Jordan’s safeguard
system is based on the amended NPP Law No. 50 of 2002 and Regulation on
Safeguard of National Production.2
The NPP Law of 2002 is a framework law that
does not cover, as its name might suggest, all trade remedy legislations such as
antidumping and countervailing.3
In other words, the NPP Law No. 50 of 2002 is in
fact neither an antidumping nor a countervailing duty law.
The organization in charge of the NPP Law is the Directorate of National
Production Protection.4
In particular, the Safeguards Department, a non-independent
1
Jordan committed in its accession to the WTO that it would not apply an anti-dumping,
countervailing, or safeguard measure to imports from WTO members until it had notified and
implemented appropriate laws in conformity with the provisions of the WTO agreements on
safeguards, subsidies and countervailing measures, and antidumping. See Working Party Report, supra
note 223, at 107.
2
See Provisional Law on National Production Protection No. 50 of 2002, Official Gazette No. 4560
(August. 15, 2002). The new NPP Law is essentially modeled on the old NPP Law of 1998. However,
the new NPP Law has been elaborated upon in terms of adding new articles such as article 3 which
states explicitly that NPP Law of 2002 applies to agricultural as well as industrial products or new
definitions such as that of like products and serious injury. See also Regulation on Safeguard of
National Production No. 55 of 2000, Official Gazette No. 4465 (Nov. 16, 2000). The Regulation on
Safeguard of 2000 has a total of thirty-nine articles. In these articles, the
Regulation sets forth basic principles and concepts. It stipulates the conditions,
investigation, forms, time limits, and review of safeguard measures.
3
Jordan had to follow up the adoption of the NPP Law with implementing regulations. It seems that
Jordan was not able to counter-argue that no implementing regulations were needed given that the NPP
Law contained description of investigation concepts such as injurious practices, increase imports, and
serious and material injury.
4
The National Production Protection Directorate, which was set up in 2001, is divided into two
departments: the Safeguards Department and the Anti-dumping Department (on file with author). There
is also the Council on Tariff which is entrusted in recommending the application of safeguard measures
to the Council of Ministers.
2. organ under the umbrella of MIT, is in charge of administering safeguard cases.
5
It
conducts safeguard investigations with regard to serious injury caused by increase
imports, recommends initiation of investigation, and relief measures.
6
Although the
Department may recommend to the minister of industry and trade a particular course
of action in a safeguard investigation, its recommendation(s) may not be binding.
7
Regarding the initiation of a safeguard proceeding, domestic producers or their
representatives such as trade associations or chief administrative officials of the
domestic producers are eligible to petition for investigation into an increase imports
and serious injury.
8
A complainant who petitions for investigation must submit the
required documentary evidence and the application form along with additional items
specified in the Regulation on Safeguard.
9
Among the documents provided, those that
are submitted on a confidential basis may not be open to the public without clear
consent of the document provider.
10
5
As of 2004, the Safeguards Department comprises seven permanent staff who presumably is
appointed by the minister of industry and trade. It includes persons experienced in cost accounting and
economics (on file with author).
6
See Regulation on Safeguard of National Production No. 55 of 2000, supra note 631, arts. 6, 11 & 23.
7
Id. arts. 10 & 11. The Safeguards Department’s report to the minister is advisory. Thus,
the minister can override any course of action recommended by the Department.
8
In order to restrict frivolous petitions, the Regulation on Safeguard defines domestic
producers as those who produce the total number of domestic product or a major
portion of the total amount of domestic production. Moreover, the regulation provides
that a petitioner must not only be a member of the domestic producers, but also that
firms accounting for no less than 25 percent of the total domestic production of the
article involved must support the petition. Id. arts. 2, 7 & 11. Therefore, a prospective
petitioner ought to persuade as many other firms as possible to join in the petition
because the Department would be reluctant to institute an investigation unless the
petition has broad support within the domestic producers. The Regulation does not
recognize a union or a group of workers as an entity who may file a safeguard
petition. This means that chief officials of the domestic producers are the ones who
decide on petitioning. Additionally, the Regulation does not include the National
Assembly as petitioner. However, according to article 35, it includes the ministry as a
petitioner despite the fact that the Department is not at arm’s length from the MIT.
The record of the Safeguards Department indicates that it has never initiated a
safeguard investigation on its own motion.
9
A petitioner, in its filing, must set forth, the following information among others: (1)
its identity (2) the identity of all known domestic producers of the domestic like
product (3) the volume and value of the imported product (4) a description of the
imported product (5) the name of each country in which the imported product
originates (6) the identity of each known importer of the imported product and (7) the
nature of its injury. Id. art. 8.
10
The Department may not demand confidential documents but only a summary
report. Id. art. 17. Non-confidential documents are generally made available and could be obtained
from the reading room in MIT. An example of confidentiality would be to remove concrete
3. The Regulation sets procedures for the execution of a safeguard investigation
including time limits.11
Once the Department initiates an investigation, it conducts the
investigation by consulting sources such as surveys, administrative organs,
hearing(s), and on-the-spot verifications.
12
The hearing(s) held by the Department
ought to be open to the public in principle, although the Regulation does not have a
clear-cut provision on this matter, except when it is necessary to protect public
interests or trade secrets.
13
The Regulation contains a provision concerning public
interest information supplied by downstream industrial users of the imported product
or consumers in safeguard investigation.
14
For example, comments of the domestic
coat industry would be taken into account in case being affected by the tariff increase
on imports of leather that causes serious injury to the domestic leather industry. This
would allow for broader public interest participation in safeguard investigation by
determining whether other interests would be harmed by the imposition of safeguard
measures.
numbers for the level of profits by whitening out the information when the
Department publishes its edited version of the safeguard decision. However, excessive
confidential designation for submitted documents could undermine the Department’s ability to issue
reasons for its decisions publicly. The current language of article 17 of the Regulation on Safeguard
does not offer sufficient guidance on the treatment of confidential business documents. The
Department may need to supplement its obligation of protecting commercially sensitive information by
developing manuals that include, among other things, how information could be designated as
confidential, destruction of documents related to confidential information within specific period after
the conclusion of a case, separate protected and public files, signing a declaration of non-disclosure,
access of domestic and foreign experts and counsels to documents, commitments of the Department’s
staff, and sanctions for any violation of confidentiality.
11
When a petition of investigation is filed with the Department, the minister must
decide within thirty days whether or not to initiate an investigation. Additionally, the
investigation must be finalized within six months of its initiation. Id. arts. 10.a. See
also Provisional Law on National Production Protection No. 50 of 2002, supra note 631, arts. 12.a.
12
See Regulation on Safeguard of National Production No. 55 of 2000, supra note 631,arts. 13, 14 &
16. The Safeguards Department as a whole conducts a safeguard investigation. Therefore, no
special investigation team is formed.
13
To increase public participation, the investigative authority in Jordan may need to hold some fact-
finding hearings in different cities. This will make it possible for citizens to participate in the decision-
making process. Also, these out-of-Amman hearings would enable the media to cover trade matters
more extensively.
14
Id. art. 15. Public interest information provided could include the likely effects of safeguard
measures on domestic producers that use the imported product as input in their production of other
goods or the effects on competition in the domestic market.
4. The requirements for imposing safeguard measures include an increase in
imports,
15
the existence of serious injury to the domestic industry or threat thereof,
16
and a causal relationship between the increase in imports and the injury.
17
Additionally, if the Department recognizes that without urgent action the industry
subject to the investigation may suffer irreparable harm, provisional relief measures
may be recommended to the Council of Ministers.
18
Although the Regulation on
Safeguard of 2000 does not state whether a judgment on increase in imports or
serious injury should pass by a majority vote of the Department’s staff or by
consensus, it is the practice that no voting occurs.
The Department can recommend that the minister takes certain relief measures
for a designated period of time.
19
Based on the recommendations, the Council of
Ministers finalizes the relief measures.
20
The relief measures could be quotas, tariff-
rate quota, or increase in tariffs.
21
However, the Regulation does not include among
relief measures assistance measures such as financial assistance and training.
15
The term should be construed here to include both absolute and relative increases
in imports. Id. arts. 3& 6.a. This term is also specified in article 2.1 of the WTO Agreement on
Safeguards. Increase in imports in absolute terms could be easily established
compared with increase in imports in relative terms especially if the latter involves
decline in imported quantities.
16
Id. art. 3.
17
The Regulation mentions, in particular, the rate and amount of increase imports as statistical
correlation in investigating the casual relationship. Id. art. 6. However, it does not sufficiently describe
methodologies for establishing a casual relationship between increase imports and serious injury when
factors other than increase imports may cause serious injury. Therefore, it is important to establish
procedures and criteria to analyze the casual relationship in a reasoned, clear, and adequate fashion. For
example, the Department may need to study the entirety of factors causing serious injury by separating
every factor and the effects of such factor so as to establish a genuine and substantial casual
relationship.
18
Id. art. 20. According to the provisions of article 6 of the WTO Safeguards Agreement
the duration of provisional emergency duties may not exceed two hundred days.
19
The minister shall recommend to the tariff Council his decision. In turn, the Tariff Council
recommends its decision to the Council of Ministers. Id. art. 23. Relief measures proposed by
the Department have often been accepted by the minister.
20
The Council of Ministers must decide within thirty days of the minister’s suggestions
whether or not the relief measures will be implemented. See Provisional Law on National
Production Protection No. 50 of 2002, supra note 631, art. 17.a. The NPP Law of 2002 does not
specify whether in imposing a relief measure there must be evaluation of the impact
of the relief measure on international trade relationships and the domestic economy.
21
See Regulation on Safeguard of National Production No. 55 of 2000, supra note 631, art. 25, 26 &
27. In Jordan, quotas restrictions could be more effective than tariff measures because
the tariff rate increase may not significantly affect the total price for cheap imports.
5. The application of safeguard measures is limited to the extent of the injury
caused by increase imports.
22
In other words, safeguard measures must not be
applied to an extent beyond what is necessary to prevent or remedy serious injury
and facilitate adjustment. The justification for such language is clear. The purpose of
safeguard law is not to protect the domestic industry from unfair trade practices. If
the pain inflicted on exporters by the application of safeguard measures is permitted
to have effects beyond the share of injury caused by increase imports then this would
mean that these exceptional remedies could be applied in a more restrictive manner
than antidumping duties.
The duration of relief measures may not exceed four years.
23
However, it could
be extended through a sunset review process for a period not exceeding ten years,
included in the ten year the period of initial application. On record, no extension in the
application of safeguard measures has been requested by Jordanian domestic
industries. It would be interesting to see whether future sunset reviews would lead to
the continuation of safeguard measures as a de facto matter.
The Department should review the effectiveness of the relief measures.
24
Based
on this analysis, the corresponding measures may be phased down or cancelled. In
order to restrict indiscreet petitions, the Regulation provides that the Department
shall not commence a second escape clause investigation of the same subject matter
unless half the earlier safeguard measures period or two years have passed since the
previous investigation, except if the new safeguard measures do not exceed 180
days.
25
The NPP Law of 2002 could also be applicable to products of non-WTO
members.26
For example, as a de jure matter, Jordan would apply its safeguard laws
and regulations to imported products from Egypt since the latter is member of the
WTO. On the other hand, Jordan may not rely on its laws to impose safeguard
22
Id. art. 27.
23
Id.
24
Id. art. 30.
25
Id. art. 28.
26
See also Provisional Law on National Production Protection No. 50 of 2002, supra note 631, art.
3.b.
6. measure on imports from Lebanon since the latter is not yet a WTO member.
However, as a de facto matter, nothing could prevent Jordan from imposing safeguard
measures on imports from Lebanon especially that the latter is in the pipeline of
acceding to the WTO.
Although the “rebalancing” principle is not addressed directly, article 33 of the
Regulation contains it as required by article 8 of the WTO Agreement on Safeguards.
It requires MIT to conduct prior consultations with interested WTO members before
applying or extending definitive safeguard measures. The purpose of the
“rebalancing” principle is to maintain a substantially equivalent level of concessions
between a member imposing a safeguard measure and exporting members affected by
the measure.27
Therefore, Jordan has to offer compensation for the adverse effects of a
safeguard measure on trade of other WTO members.
Articles 32 and 38 of the Regulation made a special reference to developing
countries. It exempts developing countries such as Egypt from the safeguard measure
if their share of imports does not exceed three percent of total imports of the product
covered by the measure. On this basis, an exporting developing country would argue
that its own exports of the product covered by the safeguard measure represent less
than 3 percent of the Jordanian market and therefore should not be subject to
safeguard measures.
The Regulation addresses several issues of timing with regard to safeguard
investigation and implementation. According to articles 12.1 of the WTO Agreement
27
To achieve this, the members concerned may agree on any adequate means of trade compensation for
the adverse effects of the measure on their trade. If no agreement on compensation is reached, the
exporting members may proceed to suspend the application of “substantially equivalent concessions”.
Normally, exercising the right to retaliate cannot occur during the first three years a safeguard measure
is in place. However, retaliation can occur before then if the measure is found not to comply with the
provisions of the Safeguards Agreement or if it was not in response to an absolute increase in imports.
The right to retaliate under article 8 of the WTO Safeguards Agreement must be exercised with a 90
day period from the date the safeguard was imposed. However, in practice, nothing could prevent the
country imposing the safeguard measure and other WTO members from reaching a procedural
agreement on exercising the right to retaliate beyond the 90 day deadline.
7. on Safeguards, the emphasis in notification is on “immediately”. Article 12 of the
Regulation requires notification of Jordan’s initiation of a safeguard investigation. As
an example, the probe on increase imports of aerated waters was launched on Sep. 17,
2002 and the WTO Safeguards Committee was notified the same day on Sep. 17,
2002.28
A five or three-day delay between the time Jordan decides to apply safeguard
measures and notification to the WTO could be acceptable. However, a 20-day wait
could not be acceptable unless perhaps there are reasons that would justify such a
delay.
One could argue that Jordan’s NPP Law of 2002 and Regulation on Safeguard as
being to large extent in accordance with the requirements of the WTO Safeguards
Agreement, but there are several comments worth mentioning regarding Jordan’s
safeguard law and practice. The NPP Law defines domestic industry for purposes of a
safeguard investigation. However, it does not address the case when a domestic
producer imports and produces different kinds of products including the one subject to
a safeguard investigation. Also an issue related to the definition of a domestic
industry is whether or not domestic industry should be interpreted to include
producers who have special arrangement, through joint ventures for example, with
the importers or exporters where there is a coincidence of economic interests among
them. Obviously, since Jordan is a small country, the case of a regionally dispersed
industry, as supposed to national market, would not raise a controversy.
29
Therefore,
Jordan would not have a regional industry.
28
See Committee on Safeguards-Notification under Article 12.1(a) of the Agreement on Safeguards on
Initiation of an Investigation and the Reasons for it-Jordan, Sep. 20, 2002, WTO Doc. No.
G/SG/N/6/JOR/9.
29
In the U.S., in some instances the ITC may conduct a regional market analysis in dumping or
countervailing duty investigations. See Committee for Fairly Traded Venezuelan Cement v. United
States, 372 F.3d 1284, 1287-1288, 1290 (C.A. Fed. 2004) (in performing a regional market analysis,
the ITC must find on a case-by-case basis a concentration of dumped imports into the regional market.
In this context, the ITC must decide whether the ratio of subject imports to consumption is clearly
higher in the regional market such as in Florida region than the rest of the U.S. market. Additionally,
the ITC must find that imports in the region in question must account for a substantial portion of total
subject imports entering the U.S.).
8. With respect to serious injury in the agricultural sector, including perishable
agricultural products, the NPP Law of 2002 and Regulation on Safeguard do not set
specific factors to be considered in analyzing serious injury different from those of
other industries. Special factors in investigating serious injury to agriculture industries
could include whether there is an idling of cultivated land. The seasonal nature of
agricultural products such as garlic, onion, and potatoes, which have a longer
production period and a shorter sale period, merits special treatment. Therefore,
regarding investigating serious injury of agricultural industries, greater details are
needed.
Jordan’s NPP Law refers to manufactured as well as agricultural products in a
safeguard investigation, but there is no reference to services.
30
It seems that the
current Law is not sufficient in addressing an injury to the domestic industry due to
rapid import increase in services. One could interpret the absence of reference to
services on the ground that MIT is a ministry, as its name indicates, concerned with
“industry” while insurance and banking for example could fall under the jurisdiction of
other government entities. Another interpretation is that a service safeguard could be
unprecedented. As such, it would be a contentious issue in the WTO. At any rate, it is
unclear how a service safeguard would work in practice because it requires a
mechanism to track increasing imports which can be difficult in the case of services.
The Regulation in article 30 requires the Department to submit a mid-term evaluation
report of the relief measures. It seems that in few instances have relief measures
been evaluated. Therefore, in order to apply the safeguard system constructively, the
Department needs to evaluate whether or not the safeguard measures effected
positive adjustment.
31
This would help re-orienting of the NPP Law and Regulation
from being simply a relief system to an adjustment system since safeguard measures
are extraordinary measures to be taken only in emergency situations.
30
A provision for a service safeguard would say that if import of services causes or threaten to cause
serious injury to domestic industries that provide like or directly competitive services, the Department
may adopt relief measures as necessary to remedy such injury or threat thereof.
31
Examples of positive adjustment include consolidation, increase investment, transfer of resources to
different products along the production line, or transfer resources to different industries all together.
9. In principle, safeguard measures cannot be targeted at imports from a particular
country and safeguard investigations should not be country specific. In other words,
safeguard measures shall be applied to an imported product irrespective of its
source.
32
However, in the case of China, a safeguard measure could be
country/product-specific.
33
Therefore, Jordan may want to implement paragraph 16 of
China’s Protocol of Accession to the WTO into domestic law.
One other point that is currently missing in the Jordanian Regulation on
Safeguard of 2000 is any mention of article XIX of GATT 1994.34
For example, there
is no reference in the Regulation of the circumstance of “unforeseen developments” as
stipulated by article XIX.1(a) of GATT 1994. This circumstance is a prerequisite for
imposing a safeguard measure before meeting other conditions.35
As it stands, the
Department is not obliged by the NPP Law of 2002 or the Regulation to examine the
existence of “unforeseen developments” in its investigation.36
Requiring a WTO
32
See Provisional Law on National Production Protection No. 50 of 2002, supra note 631, art. 19.
33
Paragraph 16 of China’s Protocol of Accession provides that where products of Chinese origin are
being imported into the territory of any WTO Member in such increased quantities or under such
conditions as to cause or threaten to cause “market disruption” to the domestic producers of like or
directly competitive products, the WTO Member so affected may request consultations with China
with a view to seeking a mutually satisfactory solution, including whether the affected WTO Member
should pursue application of a measure under the Agreement on Safeguards. If consultations do not
lead to an agreement between China and the WTO Member concerned within 60 days of the receipt of
a request for consultations, the WTO Member affected “shall be free”, in respect of such products, to
withdraw concessions or otherwise to limit imports only to the extent necessary to prevent or remedy
such market disruption. The application of China’s safeguard provision shall be terminated
12 years after the date of accession. See Accession of the People’s Republic of China,
Nov. 23, 2001, WTO Doc. No. WT/L/432, para. 16. Rather than adopting a “market
disruption” standard, the WTO Agreement on Safeguards in article 2.1 requires that a
product is being imported under such conditions as to cause or threaten to cause
“serious injury” to the domestic industry.
34
The WTO Agreement on Safeguards and article XIX of GATT 1994 must be read cumulatively. This
is supported by article 1 of the WTO Agreement on Safeguards which states that the Agreement
establishes rules for the application of safeguard measures which shall be understood to mean those
provided for in article XIX of GATT 1994.
35
According to some commentators, earlier in the history of article XIX of GATT, the requirement of
“unforeseen development” was not required. See Ezra Ginzburg, An Analysis of Article XIX: The
Safeguard Problem after the Uruguay Round, 17 NEB. L. REV. 566, 568 (1992) (the unforeseen
development requirement has little meaning. It has been read out of existence under the GATT).
However, recent WTO Appellate Body decisions have restored the requirement of “unforeseen
developments” in applying safeguard measures. See Report of the Appellate Body, United States-
Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat from New Zealand and
Australia, May. 1, 2001, WTO Doc. No. WT/DS177/AB/R, para. 69.
36
In actuality, the Department had factored “unforeseen developments” requirement in all safeguard
cases it examined. However, this practice may not be satisfactory until the Regulation is amended to
10. member to establish import surges as “unforeseen developments” as a condition for
its application of safeguards could make it difficult for a member to utilize safeguard
measures since such import surges may not easily be said to be unforeseen.
Proper and accurate translation seems to be an issue to NPP Law and Regulation
on Safeguard in Jordan.
37
Mistranslation or literal translation could affect the
application of the NPP Law. For example, precision in translating one of the most
important terms in the safeguard provisions, serious injury, could pose a problem.
One should not regard mistranslation of certain terms as inconsequential. Inaccurate
or deliberate misleading translations of WTO safeguard provisions may make the
translated law or regulation subject to criticism by other trading partners. Therefore,
Jordan would have to update its vocabularies to reflect the WTO Safeguards
Agreement so equivalents for words of the Agreement are available.
In effect, Jordan adopted the unified system in its safeguard law. In other words,
one organ, the Safeguards Department, is the one which investigates increase
imports and serious injury to the domestic industry.
38
This is reasonable because the
Department would perform its function quickly and efficiently. On the other hand, it
could be disadvantageous because the investigation of increase imports and the
judgment of injury may lack objectivity by centralizing the authority into the same
Department.
Jordan, in its attempt to improve its regime of safeguard measures, must take
note that the WTO Agreement on Safeguards is a procedural agreement establishing
explicitly make reference to “unforeseen developments” requirement. The WTO Appellate Body in the
Lamb case rejected the U.S. argument that the “unforeseen developments” needed to justify a
safeguard measure could be inferred from the factual record of the investigating authority and
demonstrated during WTO dispute settlement proceedings. See United States-Safeguard Measures on
Imports of Fresh, Chilled or Frozen Lamb Meat, supra note 663, at paras. 67 & 74. Sources in the
Safeguards Department indicated that it currently prepares a daft regulation implementing the
requirement of “unforeseen developments”.
37
See Committee on Anti-Dumping Practices-Committee on Subsidies and Countervailing Measures-
Notification of Laws and Regulations under Articles 18.5 and 32.6 of the Agreements, June 8, 2004,
WTO Doc. No. G/ADP/N/1/JOR/2/Corr.1 (stating that a material error affected the translation of
article 11(a) (2) [in the NPP Law of 2002] as the word “public” was replaced by “personal”). Certain
linguistic characteristics such as the use of passive voice sentences and different tenses could
contribute to further problems in translation.
38
This is compared with the dual system in which two organs, whether independents or
not, conduct the investigation of increase imports and the judgment of an injury.
11. certain minimal procedural requirements.
39
It does not have to adhere to the exact
words of certain provisions of the Safeguards Agreement. In other words, Jordan
could modify its law in a way that is different from the Agreement. The WTO
Agreement on Safeguards permits the use of safeguard for up to eight or ten years.
However, for example, Jordan could only have it for three years. Moreover, Jordan
must take into account the WTO panel decisions. For example, recent WTO panel
decisions have brought to life the requirement of “unforeseen developments” or
require the competent authority to provide “explicit” findings that are “clear and
unambiguous” and “do not merely imply or suggest an explanation”.
40
To meet the future demand of relief measures, Jordan must put in place a plan to
help small and medium-sized firms access the safeguard system. The current system
may pose problems for these companies in terms of the costs of complying with the
Law or Regulation requirements including paper burden, formality, complexity, and
duration of the process, lack knowledge and expertise about safeguard law and its
procedures, the need to work with other small producers or producer association, and
the cost of hiring external counsels.
The Safeguard Department may want to self-initiate safeguard investigation
rather than wait for domestic industry to petition for it. Self-initiation of safeguard
investigation may enable the Safeguard Department to limit imports more quickly. If
the domestic industry petitions for safeguard measures, it would take longer time to
impose restrictions on imports because the safeguard investigation would require
longer process. Therefore, self-initiation of safeguard investigation could produce
faster results by cutting time needed to conduct an investigation.
Courts in Jordan have not developed an extensive jurisdiction in the area of trade
remedy laws. This may be interpreted to the inexperience of Jordan’s courts in
39
The WTO Agreement on Safeguards does not impose a simple arithmetic
standard for determining increased imports or requires a certain pattern of
imports.
40
None of these terms appears in article 3.1 of the WTO Agreement on
Safeguards which requires only publication of the findings and reasoned
conclusions reached on all pertinent issues of fact and law. The ordinary meaning
of these terms does not establish any level of clarity for the competent authority
or require that it states its findings with a particular explicitness.
12. reviewing remedy law cases. Another interpretation would be that Jordan’s trade
remedy system is a relatively young one (Jordan did not have an antidumping
regulation until 2003).
Based on data collected in February 2003, fourteen investigations on the application
of safeguard measures have been either self-initiated by the competent authority or
initiated upon petition from the domestic industries of Arab countries members of the
WTO. Egypt, Jordan, and Morocco are the frequent users of safeguard provisions. Of
those fourteen petitions, Jordan has investigated nine, Egypt has investigated three,
and Morocco has investigated two. Of Jordan’s petitions, the competent authority
found serious injury in four, terminated four, and there is one outstanding
investigation.41
Of the three petitions of Egypt, the competent authority found merit in
all of them.42
Of the two petitions of Morocco, the competent authority imposed
safeguard measures in one and terminated the other without imposing any safeguard
41
Jordan found serious injury and applied safeguard measures on imports of biscuits and chocolates,
(Aug. 24, 2001, WTO Doc. No.G/SG/N/8/JOR/1, WTO Doc. No. G/SG/N/10/JOR/1), imports of
unrecorded media tapes (magnetic tapes) for sound recording or similar recording of other phenomena
of a width not exceeding 4 mm, (June 19, 2002, WTO Doc. No. G/SG/N/8/JOR/2/Corr.1, WTO Doc.
No. G/SG/N/10/JOR/2/Corr.1), imports of pasta in all its forms, (Jan. 27, 2003, WTO Doc. No.
G/SG/N/8/JOR/3, Feb. 24, 2003, WTO Doc. No. G/SG/N/10/JOR/3), imports of sanitary products in
all its forms and specifications, (Jan. 31, 2003, WTO Doc. No. G/SG/N/8/JOR/4, Feb. 21, 2003, WTO
Doc. No. G/SG/N/10/JOR/4). Jordan terminated safeguard investigation on chocolate containing over 5
percent of coconut butter substitute, (July 3, 2001, WTO Doc. No. G/SG/N/9/JOR/1), imports of
cooking appliances and plate-warmers - for gas fuel or for both gas and other fuels, (Oct. 31, 2002,
WTO Doc. No. G/SG/N/9/JOR/4, G/SG/N/9/JOR/5), electric accumulators, including separators
thereof, whether or not rectangular (including square) lead-acid, of a kind used for starting piston
engines, (Oct. 31, 2002, WTO Doc. No. G/SG/N/9/JOR/3), and imports of Unglazed ceramic flags and
paving, hearth or wall tiles; unglazed ceramic mosaic cubes and the like, whether or not on a backing
and glazed ceramic flags and paving (Oct. 31, 2002, WTO Doc. No. G/SG/N/9/JOR/2). There was an
outstanding investigation on imports of aerated waters containing added sugar or other sweeteners or
flavors (Sep. 20, 2002, WTO Doc. No. G/SG/N/6/JOR/9).
42
Egypt found serious injury on imports of matches, (Aug. 11, 1998, WTO Doc. No.
G/SG/N/7/EGY/1, Feb. 10, 1999, WTO Docs. No. G/SG/N/8/EGY/1, G/SG/N/10/EGY/1), imports of
Common Fluorescent Lamps, (Mar. 1, 2000, WTO Docs. No. G/SG/N/8/EGY/2, G/SG/N/10/EGY/2,
Feb. 28, 2001, WTO Docs. No. G/SG/N/8/EGY/3, G/SG/N/10/EGY/3), and imports of Powdered Milk
(Sep. 26, 2000, WTO Doc. No. G/SG/N/7/EGY/2, Apr. 3, 2001, WTO Doc. No. G/SG/N/8/EGY/4,
G/SG/N/10/EGY/4).
13. measure.43
Thus, almost 80 percent of the petitions resulted in import restrictions.
Other Arab countries members of the WTO have not taken any safeguard action.44
Since their accession to the GATT/WTO, many Arab countries still impose
safeguard measures as trade remedy measures. There have been no major structural
changes in their respective trade remedy policies. If the purpose is to protect Arab
countries’ industries, then it is more advantageous to use antidumping and
countervailing duty laws. For example, if Jordan uses its antidumping law to protect
its domestic industry, it can target a particular industry of a country rather than
imposing a safeguard measure against all countries as required by article 2.2 of the
WTO Agreement on Safeguards. In this way, Jordan will not upset its trade
relationship with other countries. Moreover, Jordan does not need to provide
compensation to the exporting country(s) in the case of imposing antidumping duty,
while under article 8.1 of the WTO Agreement on Safeguard Jordan has to maintain
the same level of concession in case it imposes a safeguard measure. Finally, by
imposing an antidumping duty Jordan will tell the world that its industries are just as
competitive but because other countries dump in its market, it cannot compete. On the
other hand, if Jordan imposes a safeguard measure, that is similar to saying “we
confess and declare that our industries are not competitive, so would you please give
us more time”. Bluntly, safeguard law is a weak defense measure for weak countries.
Based on reports submitted to WTO committees in various periods, no Arab country
undertook antidumping duty actions.45
Egypt is the only Arab country member of the
43
Morocco took safeguard measures on the importation of Bananas (Nov. 1, 2000, WTO Doc. No.
G/SG/N/7/MAR/1, May 22, 2001, WTO Doc. No.G/SG/N/8/MAR/1, G/SG/N/10/MAR/1). Morocco
terminated the investigation without applying any safeguard measure on rubber plate and sheet
products (Jan. 10, 2002, WTO Doc. No. G/SG/N/9/MAR/1).
44
See for instance UAE (Feb. 3, 1998, WTO Doc. No. G/SG/Q1/ARE/2), Bahrain (Jan. 16, 1998,
WTO Doc. No. G/SG/Q1/BHR/2, 13. Oct. 2000, WTO Doc. No. Para. 26. WT/TPR/M/74), Qatar (Jan.
12, 1999 WTO Doc. No. G/SG/Q1/QAT/2), Oman (Apr. 10, 2001 WTO Docs. No.
G/ADP/N/1/OMN/1, G/SCM/N/1/OMN/1, G/SG/N/1/OMN/1), and Tunisia (Sep. 11, 2001, WTO
Docs. No. G/ADP/Q1/TUN/5, G/SCM/Q1/TUN/5).
14. WTO that has taken an antidumping or countervailing duty action.46
Thus, history
shows that Egypt is the only Arab country that has launched and imposed
antidumping measures.47
This is ironic considering that other countries, such as the
U.S., imposes antidumping and countervailing duties on exports of Arab countries.
For example, the U.S. has imposed countervailing duty on imports of carbon steel
wire rods from Saudi Arabia.48
The EC has also imposed antidumping orders of 40
percent on imports of urea from Libya and Saudi Arabia.49
In its accession negotiations, Jordan attempted to apply for certain agricultural
products such as olive oil, sheep, and poultry meat as special safeguard goods
(SSG).50
If Jordan were able to designate those agricultural products as SSG, the
WTO Agreement on Agriculture would have applied to them.51
However, Jordan was
45
See Committee on Subsidies and Countervailing Measures, Semi-Annual Reports under Article 25.11
of the Agreement, G/SCM/N/52/Add.1/Rev.5 (Oct. 18, 2002).
46
For example from the period 1996-2002 the following countries have submitted reports on whether a
countervailing duty action has been taken or not: Kuwait, Morocco, Qatar, Tunisia, and United Arab
Emirates. No reports have been received from the following Members: Bahrain, Djibouti, and
Mauritania. See G/SCM/N/19/Add.1/Rev.10.
47
See Press Release, WTO Secretariat Reports Significant Decline in Anti-Dumping
Investigations, PRESS/374 (Apr. 20, 2004) (the WTO Secretariat stated that in the later part of 2003
115 investigations had been initiated. On the other hand, final antidumping duty orders imposed
remained relatively constant. For example, over the same period in 2002 there were 113 final
antidumping orders compared with 107 final orders in 2003).
48
The case involved Saudi Iron and Steel Co. challenging the USITA methodology for determining the
amount of Saudi subsidy, loan in that case. See Georgetown Steel Corp. v. U.S. 810 F.Supp. 318 (Ct. Intl.
Trade 1992).
49
The European Court of Justice overruled the antidumping order on the basis that the defendants were
denied access to information. See Case C-49/88, Al-Jubail Fertilizer Co. & others v. Council, 1991
E.C.R. I-03187 (1991).
50
Even after Jordan acceded to the WTO, Jordan argues for SSG designation for olive oil, sheep, and
poultry meat. See Proposal by Jordan, WTO Negotiations on Agriculture, G/AG/NG/W/140 (Mar. 22,
2001) (page references are not avail.).
51
Article 5 of the WTO Agreement on Agriculture is a special safeguard article for agricultural
products. However, in order to apply this special safeguard provision, any non-tariff measure imposed
on the imported agriculture product in question would have to be converted into tariff. Additionally, the
agricultural product must be designated as SSG. Moreover, there are two conditions the presence of
either one of them is sufficient to trigger the special safeguard. First, the volume of imported
15. not able to designate olive oil, sheep, and poultry as SSG. Instead, WTO working
party members determined whether a product of an acceding country such as Jordan
merited designation as SSG or not but not for Jordan itself. Other WTO members
were concerned that if Jordan was able to designate certain agricultural products as
SSG, it would set a precedent for future acceding countries who would request
designating their own agricultural products as SSG. This would have created a
situation that seemed to be unacceptable for members of the working party on
Jordan’s accession to the WTO.
Trade Remedy Measures of the US-JO FTA
According to the US-JO FTA, parties can apply safeguard measures based on
bilateral or global basis.52
Either party can take safeguard measures against
originating goods of the other party in situations in which such goods may cause or
threaten to cause serious injury. The imposition of a safeguard measure under the
FTA is tied to obligations. There must be a link between increased imports and the
FTA’s tariff concessions.53
However, such a link is subject to a proviso that “only”
agricultural product will have to exceed a trigger level. Second, the price of imported agricultural
product must fall below the trigger price in the base period (1986-1990). If the first condition is
satisfied, then an additional duty will be applied for the rest of the year in question (the additional duty
may not exceed 33.3% of the ordinary tariff in effect the year the action was taken). If the second
criterion is met, then additional duty will be imposed on a shipment-by-shipment basis. Article 5 of the
WTO Agreement on Agriculture is a special provision since it does not require a serious injury test, the
safeguard measure will in the form of additional duty only, and no retaliation is allowed. This is
contrary to the WTO Safeguards Agreement which requires an injury test, a safeguard measure could
be in the form of tariff or quota, and there could be counter-retaliation. In order to obtain SSG status,
an acceding country has to convert non-tariff trade measures into tariffs. Jordan did not convert non-
tariff trade measures into tariffs as required under article 4 of the WTO Agreement on Agriculture, a
condition that is vital for applying SSG measure. Rather, Jordan set tariffs on agricultural imports at
lower levels and bound them.
52
The terms safeguard measures, escape clause, and emergency actions are interchangeable. Chapter
eight of NAFTA is titled “emergency action”. See NAFTA, supra note 697, at 383. They carry the
meaning that a country can escape its obligations of a free trade agreement under certain conditions.
NAFTA also establishes two safeguard actions. Safeguard actions can be imposed on “originating
goods” from NAFTA region that are imported in such quantities that cause or threaten to cause serious
injury. Additionally, NAFTA party can impose safeguard measures on imported goods from “all
countries”, including NAFTA region. Id. arts. 801& 802.
16. the reduction or elimination of a duty is a “significant cause” that leads to an increase
in imports, but need not be equal to or greater than any other cause.54
The requirement
that tariff concession be a “significant cause” of increased imports is extracted from
U.S. law.55
To impose a safeguard measure, Jordan will have to meet what could be
christened as “double test”. First, Jordan must prove that tariff concession is a
“significant cause” of increased imports.56
If successful, then Jordan will have to
prove that increased imports are “substantial cause” of serious injury. There is a
presumption that increased imports are not the result of tariff concessions, unless
proven otherwise.
To impose safeguard measures under the FTA there must be an importation of
goods in increased quantities, in either absolute or relative terms.57
Moreover, imports
of goods must constitute a “substantial cause” of serious injury, or threat thereof to a
domestic industry that produce like or directly competitive product. The term
“substantial cause” is defined as a cause that is “important” and “not less than any
other cause,” a definition derived directly from U.S. trade remedy law.58
According to
53
See United States (U.S.)-Jordan: Agreement Between The United States of America and the
Hashemite Kingdom of Jordan on The Establishment of a Free Trade Area, supra n. 695, art.10.1.
54
Id.
55
See Trade Act of 1974, 19 U.S.C. § 2436 (2000). Section 406 of the Trade Act permits
safeguard measures to counter market disruption from communist countries where rapid imports is
“significant cause”, but need not be equal to or greater than any other cause, of material injury.
56
Absence the test for the link between tariff concession and increase imports, the safeguard provision
of the US-JO FTA would be a mere measure for determining what is an unacceptable level of imports
without the need to meet such a difficult test. Moreover, “significant cause” is not defined in the FTA.
Is it the same as “substantial cause”, less, or more? Does significant cause require cut-off such as 50
percent or 60 percent threshold among other causes? Significant cause requires analysis on a case-by-
case basis.
57
Under NAFTA, a party may impose a safeguard measure if there is increase in import in absolute
quantities only. See NAFTA, supra n. 697, art. 801. 1.
58
Section 201 of the U.S. trade act of 1974 permits imports to be restricted, for a limited time, and on a
non-discriminatory basis, if they are substantial cause of serious injury to U.S. firms or workers. Under
the U.S. Trade Expansion Act of 1962, imports must have been “the major factor” causing injury. The
Tariff Commission, now called the ITC, has interpreted this to mean that the increased imports were a
more important cause of injury than all other causes combined. It is obvious that this interpretation was
17. this definition of substantial cause, two prongs must be met. First, imports must be an
“important” cause of serious injury. Second, imports must be “not less than any other
cause”. This “substantial cause” test has so difficult to overcome that section 201 of
the the U.S. Trade Act has fallen largely into disuse. Aggrieved industries now rely
upon the less stringent burdens of the countervailing and antidumping provisions of
U.S. trade law to address injuries and threats from imports.
59
Under the FTA, a safeguard measure may be imposed for a period of time no
more than four years.60
After the expiration of the transition period for imposing a
safeguard measure, neither party can impose such a measure unless the other party
consents. One can reason that this discrepancy in the ability to apply a safeguard
measure without consent during the transition period and the requirement of obtaining
consent after the transition period is based on the thought that the free trade area
formed by the US-JO FTA would make a safeguard measure less necessary. It is also
thought that local industries will have adjusted to trade competition by the time that
the transition period ends.
Article 10 of the US-JO FTA establishes procedural obligations for conducting a
safeguard investigation and providing notification and consultation with respect to
that investigation.61
The US-JO FTA stipulates that an investigation must be
too restrictive. See Peter Bernardi, The Great Escape, 7 D.C.L. J. Intl. L. & Prac. 69, 80 (1998). By
adopting, the substantial causation test, the U.S. Congress intended to provide a lower burden of proof
than that contained in the 1962 Trade Expansion Act. Moreover, article 2 of the WTO Agreement on
Safeguards allows a member to apply a safeguard measure to a product only if that member has
determined that such product is being imported into its territory in such increased quantities as to
“cause” or threaten to cause serious injury to domestic industry. It is noticeable the absence of
“substantial cause” from the language of the WTO Agreement on Safeguards.
59
The only success story recalled for section 201 petitions is Harley-Davidson case of 1983 of
imposing tariffs on inventories of motorcycles from Japan of 700cc models. See Annual Report of the
United States International Trade Commission 1-2 (1983) (tariffs increased on completed heavyweight
motorcycles by 45 percent ad valorem, declining to 35, 20, 15, and 10 in subsequent years). In 1987,
before the end of the safeguard protection period, Harley-Davidson requested the termination of the
safeguard since the company has adjusted to competition from Japan.
60
United States (U.S.)-Jordan: Agreement Between The United States of America and the Hashemite
Kingdom of Jordan on The Establishment of a Free Trade Area, supra n. 695, art. 10.2.d.ii.
18. conducted by a comptent authority.62
For purposes of conducting an investigation, the
US-JO FTA also incorporates some provisions of the WTO Agreement on Safeguard.
For example, while conducting an investigation, either party to the FTA must provide
reasonable public notice, a public hearing, and publish a report that sets forth the
“findings” and “reasoned conclusions” reached on all pertinent issues of facts and
laws. Moreover, either party to the FTA must evaluate all relevant factors of an
“objective and quantifiable” nature that have a bearing on the situation of the industry
seeking protection.
The US-JO FTA covers “global action” safeguards.63
Any safeguard measure
imposed according to the “global action” provision must comply with the
requirements of article XIX of GATT 1994 and the WTO Agreement on Safeguard.
Any safeguard measure must be applied on a MFN basis.64
The “global action”
provision allows a party to impose a safeguard against the other as part of a
multilateral safeguard action taken under article XIX of the GATT and WTO safeguard
agreement. However, imports of one party to the FTA may be excluded from an
MFN safeguard measure if such imports are not a substantial cause of serious injury
or threat thereof. The FTA is silent as to whether imports from a party alone constitute
substantial cause of serious injury to the domestic industry, what should the form of
the safeguard measure be, or the type of compensation to be provided.65
The FTA
61
Id. art.10.2.c.
62
Id. 10.2.
63
“Each Party retains its rights and obligations under Article XIX of GATT 1994 and the WTO
Agreement on Safeguards”. Id. art.10.8.
64
“Safeguard measures shall be applied to a product being imported irrespective of its source”. See
WTO Agreement on Safeguard, art. 2.1.
65
Under NAFTA for example, in order to determine in global action whether imports from NAFTA
party are substantially cause serious injury to the domestic industry, imports from that NAFTA party
must be among the top five suppliers of the good. See NAFTA, supra n. 697, art. 802. 2.a.
19. parties could have agreed that imports less than 10 percent of total imports would not
be considered substantial.
The US-JO FTA has an industrial policy language aimed at protecting some
industries that initially cannot offer competitive prices and quality as competing
imports but nonetheless by giving them breathing room can develop over time into
competitive price and quality industries.66
An infant industry is defined, in the US-JO
FTA, as an industry that has recently begun to produce like or directly competitive
product. It is not clear whether the infant industry provision applies to infant
industries that existed prior to the conclusion of the FTA or is limited only to infant
industries established after the FTA came into existence. Based on the FTA language,
an infant industry is a new industry. This definition does not include an already
established industry that produces a new line of product or an expansion of an already
existing industry supplying small proportion of the domestic market, or an industry
that had previously been destroyed as a result of hostilities or natural disasters. The
definition of an infant industry has a narrow scope.67
The FTA infant industry provision suggests that Jordan can shield its domestic
industries by keeping out U.S. competitors. Depending on how a panel may interpret
the infant industry provision, the provision may be found to have little value. First,
even assuming that the FTA gives preferential consideration for Jordan’s infant
industry preferential treatment is limited to procedures used in conducting a safeguard
66
The FTA states that the Parties recognize that, because it has recently begun to produce a like or
directly competitive product described in paragraph 1 [originating good of the other party], an infant
industry may face challenges that more mature industries do not encounter. As such, each Party shall
ensure that the procedures described in paragraph 2 [the procedures for safeguard investigation] do not
create obstacles to infant industries that seek the imposition of such measures”. See United States
(U.S.)-Jordan: Agreement Between The United States of America and the Hashemite Kingdom of
Jordan on The Establishment of a Free Trade Area, supra n. 695, art.10.5.
67
The definition of an infant industry in article XVIII.2 of GATT 1994 is broader. It includes new
industry, a new branch of production in an existing industry, substantial transformation of an existing
industry, expansion of an existing industry supplying a relatively small proportion of domestic demand,
and an industry destroyed or substantially damaged as a result of hostilities or natural disasters.
20. investigation. In other words, the investigation authority in Jordan may give an infant
industry more time to respond for a request for a public hearing, present its evidence,
or provide a counter-argument against an exporter or importer. The preferential
treatment does not mean that an infant industry will be guaranteed a positive
determination by imposing a safeguard measure. Second, the ultimate purpose of the
US-JO FTA is to liberalize trade; the industrial policy article is at odds with this
objective. While article XVIII of GATT 1994 allows additional facilities for infant
industry such as tariff protection, government assistance through non-tariff measures,
and subsidies, the FTA ‘s infant industry provision restricts in scope and time
Jordan’s ability to provide protection for its infant industries.68
The only import relief mechanisms available under the US-JO FTA are safeguard
measures. The FTA does not have a provision on antidumping or countervailing
duties. The inclusion of a safeguard measures under the US-JO FTA reflects the U.S.
requirement that all trade agreements must have, at minimum, a provision for
safeguard measures.69
Thus, the US-JO FTA leaves domestic antidumping and
countervailing duty laws untouched.
68
The discussion has focused so far on the assumption that the FTA article applies only to infant
industry of Jordan. The question that arises is whether the FTA infant industry language applies also to
the U.S. which is often acknowledged as having no industrial policy. See Fair Trade and
Harmonization: Prerequisites for Free Trade 306-309 (Jagdish Bhagwati & Robert E. Hudec eds.,
MIT Press
1996) (the United States has not had an avowed industrial policy. However, some critics have
contended that the U.S. does in fact have an industrial policy in the broad sense. The U.S. has an
implicit and decentralized industrial policy. The U.S. government and laws do advantage some
industries over others).
69
Following World War II, the U.S. president continued this policy by issuing an executive order
requiring the presence of an escape clause in all future trade agreements. See Paul C. Rosenthal &
Robin H. Gilbert, The 1988 Amendments to Section 201: It is not Just for Import Relief Anymore, 20
Law & Policy Intl. Bus. 403, 406 (1989).