国际贸易管理法.docx

国际贸易管理法

Administration Law on International Trade
1
Introduction
Regulations and Administrations on International Trade in PRC
WTO Rules Regulating Its Members
WTO and China
Dispute Settlement for the WTO
2
Introduction
Government Controls over International Trade
Importing and exporting is governed by the law and regulations of the countries through which goods and services pass. Nations regulates international trade in many ways.
The most common methods are tariffs and non-tariffs measures.

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Tariffs (p170-172)
关税（tariff/ custom duties）是指一国海关根据其国家公布的海关税则对进出口关境的物品、货物所征收的税。
Categories:
Import custom duties：自由化与不断减让
Export custom duties:保护本国经济或资源
Additional import duties：临时性、针对性，包括临时附加税、反倾销税与反补贴税
4
Non-tariff measures（p172-175）
除关税以外，一切旨在为商品的进出口设置障碍或关卡，控制或限制商品进出口的各种贸易措施。
Categories:
Import and export quotas 进出口配额
Important and export permit/license 进出口许可证
Control measures over foreign currencies外汇管制
Inspection and quarantine检验检疫及技术标准
Anti-dumping measures反倾销
Countervailing measures反补贴
Safeguard measures保障措施

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Regulations and Administrations on International Trade in PRC
Legal Framework(p175):
Foreign Trade Law of the PRC
Regulations of the PRC on Anti-dumping
Regulations of the PRC on Countervailing Measures
Regulations of the PRC on Safeguards

6

Foreign Trade Law of the PRC
(Adopted on May 12, 1994, and amended on April 6, 2004)
Important Amendments in 2004
Sphere of Application
Restriction and Prohibition on Foreign Trade

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Important Amendments in 2004(P176-177)

Reasons：WTO’s requirements
Principles:This Law is enacted with a view to opening wider to the outside world, developing foreign trade, maintaining foreign trade order, protecting the legitimate rights and interests of foreign trade dealers and promoting the sound development of the socialist market economy. (Art 1)
Amendments:
1、自然人可以从事外贸经营活动
2、外贸经营权由审批制改为登记制
3、加强了与对外贸易有关的知识产权保护
4、进一步完善我国对外贸易的救济制度
5、进一步加大了对违法行为的处罚力度

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Sphere of Application

Subject(Art 8)——foreign trade dealers(外贸经营者)
foreign trade dealers refer to the legal persons, other organizations or individuals that have gone through the formalities of industrial, commercial or other registration in accordance with law and engage in foreign trade activities in compliance with the provisions of this Law and relevant laws and administrative regulations.
Object(Art 2)——foreign trade and the protection of foreign-trade-related aspects of intellectual property rights.
foreign trade refers to the import and export of goods and technologies, and international service trade.
Area(Art 69)——not applicable to the separate customs territories(单独关税区)：HK，Macao and Taiwan

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下列关于2004年修订的《中华人民共和国对外贸易法》的表述，正确的是？
A 个人须委托具有资格的法人企业才能办理对外贸易业务
B 对外贸易经营者向国务院主管部门办妥审批手续后方能取得对外贸易经营的资格C 该法不适用于香港、澳门地区
D该法只适用于货物进出口
【答案】C
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Restriction or prohibition on import and export of goods and technologies(Art 16)

1. Reasons for restriction or prohibition
(1) safeguarding State security, and public interests and ethics——import or export
(2) protecting human health or safety, the lives or health of animals and plants, or the environment——import or export
(3)implementing the measures related to the import and export of gold and silver——import or export
(4) because of short supply on domestic market or for effective conservation of exhaustible natural resources——export
(5) required by laws and administrative regulations; or in accordance with the provisions of international treaties or agreements signed or acceded to by the PRC——import or export
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2.Reasons for restriction

(1) the limited market capacity of the importing country or region——export
(2) serious chaos in export order ——export
(3) for establishing or speeding up the establishment of a particular domestic industry ——import
(4) for agricultural, animal husbandry and fishery products of any form ——import
(5) maintaining the State's international financial position and the balance of international receipts and payments ——import
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Restriction or prohibition on International Trade on Services(Art 26)

(1) safeguarding State security and public interests and ethics——R or P import or export
(2) protecting human health or safety, the lives or health of animals and plants, or the environment——R or P import or export
(3) establishing or speeding up the establishment of a particular domestic service industry——R import
(4) maintaining the balance of receipts and payments of the State in foreign exchanges——R import
(5) required by laws and administrative regulations; or in accordance with the provisions of international treaties or agreements signed or acceded to by the PRC——R or P import or export

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Trade Remedy Measures:

1.Anti-dumping 反倾销
2.Countervailing 反补贴
3.Safeguard Measures 保障措施

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Regulations of the PRC on Anti-dumping
(Promulgated on Nov 26,2001, and revised on Mar 31, 2004)

Anti-dumping regulations of WTO（p183-191）：
1.“GATT1994 Art 6” (关税与贸易总协定第6条)
2.“Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994”(Anti-dumping Agreement)——关于实施1994年关税与贸易总协定第6条的协议，反倾销协议

2002年12月，我国正式成为WTO的成员，根据反倾销协议的规定，我国有义务使我国的反倾销立法与实践与WTO反倾销协议规定的原则和规则保持一致
商务部进出口公平贸易局

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Regulations of the PRC on Anti-dumping
Conditions of Implementing Anti-dumping Measures
Anti-dumping Investigation and Procedure
Anti-dumping Measures
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Anti-dumping
Where an imported product is dumped into the market of the People's Republic of China and causes material injury or threat of material injury to an established domestic industry, or causes material obstruction to the establishment of such an industry, an anti-dumping investigation shall be initiated and anti-dumping measures applied in accordance with the provisions of these Regulations.
进口产品以倾销方式进入中华人民共和国市场，并对已经建立的国内产业造成实质损害或者产生实质损害威胁，或者对建立国内产业造成实质阻碍的，依照本条例的规定进行调查采取反倾销措施。(Art 2)

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Conditions of Implementing Anti-dumping Measures

1.Determination of Dumping
2.Determination of Injury
3.Causality between Dumping and Injury
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1.Dumping
Definition:
The term"dumping" means that an imported product is introduced, in the ordinary course of trade, into the market of the People's Republic of China at an export price less than its normal value
倾销，是指在正常贸易过程中进口产品以低于其正常价值的出口价格进入中华人民共和国市场(Art 3)

Determination:
1.Normal Value
2.Export Price
3.Comparison between normal value and export price——margin of dumping

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Normal Value

Art 4:The normal value of an imported product shall be determined according to the following methods by distinguishing among different cases:
(1) where there is a comparable price for the like product of the imported product in the ordinary course of trade in the domestic market of the exporting country (region), such comparable price shall be the normal value;
(2)where there are no sales of the like product of the imported product in the ordinary course of trade in the domestic market of the exporting country (region), or the price and the quantity of such sales do not permit a fair comparison, the normal value shall be the comparable price of the like product when exported to an appropriate third country (region) or the cost of production of the like product in the country (region) of origin plus a reasonable amount for expenses and for profits.

non-market economy?
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Export Price
Art 5. The export price of an imported product shall be determined according to the following methods by distinguishing among differing cases:
(1) the price actually paid or payable for the imported product shall be the export price;
(2) in cases where there is no export price for the imported product or the price is unreliable, the export price may be fixed on the basis of the price at which the imported product is first resold to an independent buyer;
however, if the imported product is not resold to an independent buyer, or not resold in the condition as imported, the export price may be determined on the basis of a reasonable price fixed by MOFCOM.

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Comparison between normal value and export price

Margin of dumping:
Art 6. The margin of dumping is the amount by which the export price of an imported product is less than its normal value.
Measures of comparison:
The margin of dumping shall be established on the basis of a comparison of a weighted average normal value with a weighted average of prices of all comparable export transactions or by a comparison of normal value and export price on a transaction-to-transaction basis.

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2.Injury

Definition:
Art 7. The term "injury" means material injury or threat of material injury to an established domestic industry or material obstruction of the establishment of such a domestic industry.
损害，是指倾销对已经建立的国内产业造成实质损害或者产生实质损害威胁，或者对建立国内产业造成实质阻碍。
Determination:
1. material injury; threat of material injury to an established domestic industry ; material obstruction of the establishment of such a domestic industry
2. domestic industry
3.examine factors

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Material Injury
实质性的损害，WTO没有对损害程度予以明确规定，由各国根据判定损害的因素决定

threat of material injury to an established domestic industry
实质损害威胁：进口国有关工业虽尚未处于已被实质性损害的境地，但有关事实证明将会导致这种结果的发生

material obstruction of the establishment of such a domestic industry
实质性阻碍了进口国同类产业的建立
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Domestic Industry

Art 11. The term "domestic industry" means the domestic producers as a whole of the like products within the People's Republic of China or those of them whose collective output of the product constitutes a major proportion of the total production of those products
Art10. The effect of the dumped imports shall be assessed in relation to the separate identification of the domestic production of the like product.
If separate identification of that production is not possible, the effect of the dumped imports shall be assessed by the examination of the production of the narrowest group or range of products, including the like domestic product.
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Examine Factors
Art 8. The following factors shall be examined in the determination of injury caused by dumping to a domestic industry:
(1)whether the volume of dumped imports, including the volume of dumped imports either in absolute terms or relative to the production or consumption of a like domestic product, has been increasing significantly, or the possibility of a significant increase in dumped imports;
(2) the effects of dumped imports on prices, including the price undercutting by the dumped imports, or the significant suppressing or depressing effects on the price of a like domestic product, etc.;
(3) the consequent impact of the dumped imports on the relevant economic factors and indices of the domestic industry;
(4) the production capacity or export capacity of the exporting country (region) or the country (region) of origin, and inventories of the product under investigation;
(5) other factors that may cause or have caused injury to a domestic industry.

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3. Causality between Dumping and Injury

When determining the injury caused by dumping to a domestic industry, the determination shall be based on positive evidence, and the injuries caused by factors other than dumping must not be attributed to dumping.
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实施反倾销税的条件之一是倾销进口与国内产业损害间存在因果关系。关于这一条件的下列表述何者为正确？
A倾销进口是国内产业损害的惟一原因
B倾销进口必须是造成国内产业损害的一个原因
C其他因素造成的国内产业损害不得归因于倾销进口
D没有倾销进口，就没有国内产业损害
【答案】BC

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Anti-dumping Investigation and Procedure
1. Initiation（受理立案）
2. Investigation（调查）
3. Preliminary Determination（初步裁定）
4. Final Determination（最终裁定）
5.Judicial Review（司法审查）

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Initiation

Art 13. Any domestic industry or natural person, legal person or relevant organization on behalf of the domestic industry (hereinafter collectively referred to as "the applicant") may make a written application to MOFCOM for an anti-dumping investigation in accordance with the provisions of these Regulations.
Art 16. MOFCOM shall, within 60 days from the date of receipt of the application and relevant evidence submitted by the applicant, examine whether the application is made by or on behalf of the domestic industry, the contents of the application and the evidence attached thereto, and shall decide whether or not to initiate an investigation.
Art 18. If, in exceptional circumstances, MOFCOM does not receive any written application for an anti-dumping investigation, but has sufficient evidence of dumping, injury and causality between the two, it may decide to initiate the investigation.
Art 14/15/17/19

支持者的产量占支持者和反对者的总产量的50%以上，并且 支持者的产量占国内同类产品总产量的25%以上

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Investigation
Art 20. MOFCOM may conduct investigation and collect information from interested parties by, among others, sending questionnaires, using samples, holding public hearings and making on-the-spot verification.
Art 20-23
Preliminary Determination
Art 24. MOFCOM shall, on the basis of their findings, make a preliminary determination on dumping, injury, whether a causal link exists between dumping and injury, and publish the preliminary determinations.
No provisional anti-dumping measures shall be applied within 60 days from the date of publication of the decision to initiate the investigation.

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Final Determination
Art 25. In cases where a preliminary determination on dumping, injury and the causal link between the two is affirmative, MOFCOM shall carry out further investigations on dumping, the margin of dumping, injury and its degree, and, on the basis of their findings, make final determinations respectively. The final determinations shall be published.
Time Limit
Art 26. An anti-dumping investigation shall be concluded within 12 months from the date of publication of the decision to initiate the investigation, and the period may be extended in special circumstances, but in no case shall the extension be more than 6 months.

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Termination Circumstances in Investigation
Art 27. In any one of the following circumstances, an anti-dumping investigation shall be terminated and such termination shall be published by MOFCOM:
(1) the application has been withdrawn by the applicant;
(2) there is not sufficient evidence of the existence of dumping, injury and the causal link between the two;
(3) the margin of dumping is less than 2 per cent;
(4) the actual or potential volume of dumped imports or the injury is negligible; 
(5) other circumstances that MOFCOM considers not appropriate to continue the anti-dumping investigation.

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Anti-dumping Measures

1. Provisional Measures（临时措施）
2. Price Undertakings （价格承诺）
3. Definitive Anti-dumping Duties（终裁征收反倾销税）

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Provisional Measures—preliminary determination

Art 28. The following provisional anti-dumping measures may be applied if the preliminary determination establishes the existenc