Transcript 攻撃的法律主義」の行方ー日本とガット・WTOの紛争

The Evolution of Japan’s
Aggressive Legalism
Ichiro Araki (Yokohama National
University)
Tsuyoshi Kawase (Research Institute
of Economy, Trade and Industry)
Overview of the
Presentation
Review of Araki’s previous article on
Japan’s aggressive legalism
What are the challenges facing trade
policy people in Japan in dealing with
disputes at the WTO?
Do we need a Japanese version of
Section 301 or the Trade Barriers
Regulation?
March 13, 2004
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I. Summary of Beyond Aggressive Legalism:
Japan and the GATT/WTO Dispute
1.
Definition of “aggressive legalism”
“active use of the legal rules in the treaties and agreements overseen by the
WTO to stake out positions, to advance and rebut claims, and to embroil all
concerned in an intricate legal game” –Saadia Pekkanen
2.
Prominent GATT/WTO Cases Involving Japan
(a) The “Sword” Aspect at Work
- Parts and Components
- Section 301 (Automobiles)
(b) The “Shield” Aspect at Play
- Leather
- Consumer Photographic Film and Paper (Kodak-Fuji)
3.
Policy Implications
March 13, 2004
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The “Sword” Aspect at Work (1)
— Complaints by Japan under the
GATT
Jul. 1960
May 1977
May 1980
Feb. 1981
Dec. 1982
Apr. 1987
Jul. 1988
Aug. 1988
Sep. 1991
Apr. 1992
May 1992
Jun. 1993
March 13, 2004
Italian Import Restrictions
United States – Suspension of Customs Liquidation (Zenith Case)
United States – Tariff Measures on Light Truck Cab Chassis
Austria – Quantitative Restrictions on Imports of Japanese Video Tape
Recorders
EC – Import Restrictive Measure on Video Tape Recorders
United States – Unilateral Measures on Imports of Certain Japanese
Products
EC – Regulation on Imports of Parts and Components (under the AntiDumping Code)
EC – Regulation on Imports of Parts and Components*
Korea – Imposition of Anti-Dumping Duties on Imports of Polyacetal
Resins (under the Anti-Dumping Code)
EC – Treatment of Anti-Dumping Duties as a Cost in Refund Proceedings
EC – Anti-Dumping Proceedings in the European Community on Audio
Tapes and Cassettes Originating in Japan (under the Anti-Dumping
Code)*
United States – Provisional Anti-Dumping Measures against Imports of
Certain Steel Flat Products (under the Anti-Dumping Code)
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The “Sword” Aspect at Work (2)
— Complaints by Japan under the
WTO
May 1995
Jul. 1996
Oct. 1996
Nov. 1996
Jul. 1997
Jul. 1998
Feb. 1999
Nov. 1999
Dec. 2000
Jan. 2002
Mar. 2002
March 13, 2004
United States – Imposition of Import Duties on Automobiles from Japan
under Sections 301 and 304 of the Trade Act of 1974 (WT/DS6)
Brazil – Certain Automotive Investment Measures (WT/DS51)
Indonesia – Certain Measures Affecting the Automobile Industry
(WT/DS55)*
Indonesia – Certain Measures Affecting the Automobile Industry
(WT/DS64)*
United States – Measure Affecting Government Procurement
(WT/DS95)*
Canada – Certain Measures Affecting the Automobile Industry
(WT/DS139)*
United States – Anti-Dumping Act of 1916 (WT/DS162)*
United States – Anti-Dumping Measures on Certain Hot-Rolled Steel
Products from Japan (WT/DS184)*
United States – Continued Dumping and Subsidy Offset Act of 2000
(WT/DS217)*
United States – Sunset Review of Anti-Dumping Duties on CorrosionResistant Carbon Steel Flat Products from Japan (WT/DS244)*
United States – Definitive Safeguard Measures on Imports of Certain
Steel Products (WT/DS249)*
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The “Shield” Aspect at Play (1)
— Complaints against Japan under
the GATT
Nov. 1961
Jan. 1964
Nov. 1974
Jul. 1978
Jul. 1978
Oct. 1979
Nov. 1979
Apr. 1980
Oct. 1980
Sep. 1982
Jan. 1983
Apr. 1983
Mar. 1984
Nov. 1984
Nov. 1984
Mar. 1985
Jul. 1986
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Uruguayan Recourse to GATT Article XXIII*
Japan – Tariff Treatment of Sea Water Magnesite
Japan – Restrictions on Imports of Beef and Veal
Japan – Measures on Imports of Thrown Silk Yarn*
Japanese Measures on Imports of Leather*
Japan’s Measures on Imports of Leather*
Japan – Restraints on Imports of Manufactured Tobacco*
Japan – Measures on Imports of Leather
Japanese Measures on Edible Fats
Japan – Certification Procedures for Metal
Softball Bats (under the Standards Code)
Panel on Japanese Measures on Import of Leather*
Japan – Nullification and Impairment of Benefits
And Impediment to the Attainment of GATT Objectives
Japan – Measures Affecting the World Market for
Copper Ores and Concentrates
Japan – Single Tendering Procedures (under the
Government Procurement Code)
Japan – Quantitative Restrictions or Measures
Having Equivalent Effect Applied on Imports of Various Products
Japan – Quantitative Restrictions on Imports of Leather Footwear*
Japan – Restrictions on Imports of Certain Agricultural Products*
Uruguay
United States
Australia
United States
United States
Canada
United States
India
New Zealand
United States
United States
EC
EC
United States
Chile
United States
United States
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The “Shield” Aspect at Play (2)
— Complaints against Japan under
the GATT (continued)
Jul. 1986
Oct. 1986
Feb. 1987
Nov. 1987
Mar. 1988
Apr. 1988
May 1988
Feb. 1991
Apr. 1991
Aug. 1991
Oct. 1994
March 13, 2004
Japan – Customs Duties, Taxes and Labelling
Practices on Imported Wines and Alcoholic Beverages*
Japan – Restrictions on Imports of Herring, Pollack and Surimi
Japan – Trade in Semi-Conductors*
Japan – Tariff on Imports of Spruce, Pine, Fir
(SPF) Dimension Lumber*
Japan – Restrictions on Imports of Beef and Citrus Products*
Japan – Restrictions on Imports of Beef*
Japan – Restrictions on Imports of Beef
Japan – Restrictions on Imports of Certain Agricultural Products
Japan – Restrictions on Imports of Certain Agricultural Products
Japan – Restrictions on Imports of Certain Agricultural Products
Japan – Measures Affecting Imports of Certain
Telecommunications Equipment
EC
United States
EC
Canada
United States
Australia
New Zealand
United States
Australia
New Zealand
EC
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The “Shield” Aspects at Play (3) –
Complaints against Japan under
the WTO
Jun. 1995
Jul. 1995
Jul. 1995
Aug. 1995
Feb. 1996
May 1996
Jun. 1996
Jun. 1996
Jan. 1997
Mar. 1997
Apr. 1997
Oct. 1998
Mar. 2002
March 13, 2004
Japan – Taxes on Alcoholic Beverages (WT/DS8)*
Japan – Taxes on Alcoholic Beverages (WT/DS10)*
Japan – Taxes on Alcoholic Beverages (WT/DS11)*
Japan – Measures Affecting the Purchase of
Telecommunications Equipment (WT/DS15)
Japan – Measures Concerning Sound Recordings (WT/DS28)
Japan – Measures Concerning Sound Recordings (WT/DS42)
Japan – Measures Affecting Consumer Photographic
Film and Paper (WT/DS44)*
Japan – Measures Affecting Distribution Services (WT/DS45)
Japan – Measures Affecting Imports of Pork (WT/DS66)
Japan – Procurement of a Navigation Satellite (WT/DS73)
Japan – Measures Affecting Agricultural Products (WT/DS76)*
Japan – Tariff Quotas and Subsidies Affecting Leather
(WT/DS147)
Japan – Measures Affecting the Importation of Apples
(WT/DS245)*
EC
Canada
United States
EC
United States
EC
United States
United States
EC
EC
United States
EC
United States
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Our Observations
Japan’s aggressive legalism is here to stay.
More detailed analysis on recent trade
remedy cases will be given in our paper.
“Practice makes perfect” – despite the
possible setback through defeat in the Sunset
Review case.
The negative impact of the recent enthusiasm
toward FTA/CEPA on Japan’s aggressive
legalism is limited.
March 13, 2004
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II. Challenges for Japan in
Dealing with WTO Disputes
Lack of Legal Resources
“In-house” Legal Resources
 Outside Legal Counsels

Turf Battles between Ministries
Coordination does not appear to be a big issue
in cases involving ministries other than METI.
 Even with METI/MOFA, the situation appears to
be improving, but institutional tensions remain.

March 13, 2004
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III. A Japanese Version of
Section 301 or the Trade Barriers
Regulation?
Lack of a national procedure to counter foreign trade
barriers
Recent Keidanren proposal
Proposed amendment to China’s foreign trade law
Who decides when to sue whom on what subject?


So far, METI has played the role of the “sword”.
Factors to be considered:



March 13, 2004
Pressure from the business community
Leverages at the WTO negotiations
Diplomatic considerations
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