反补贴协议SCM.docx

1、反补贴协议SCMAgreement on Subsidies and Countervailing MeasuresMembers hereby agree as follows:Part I: General ProvisionsArticle 1: Definition of a Subsidy1.1 For the purpose of this Agreement, a subsidy shall be deemed to exist if:(a)(1)there is a financial contribution by a government or any public bod

2、y within the territory of a Member (referred to in this Agreement as “government”), i.e. where:(i) a government practice involves a direct transfer of funds (e.g. grants, loans, and equity infusion), potential direct transfers of funds or liabilities (e.g. loan guarantees);(ii) government revenue th

3、at is otherwise due is foregone or not collected (e.g. fiscal incentives such as tax credits)(1);(iii) a government provides goods or services other than general infrastructure, or purchases goods;(iv) a government makes payments to a funding mechanism, or entrusts or directs a private body to carry

4、 out one or more of the type of functions illustrated in (i) to (iii) above which would normally be vested in the government and the practice, in no real sense, differs from practices normally followed by governments;or(a)(2)there is any form of income or price support in the sense of ArticleXVI of

5、GATT1994;and(b) a benefit is thereby conferred.1.2 A subsidy as defined in paragraph1 shall be subject to the provisions of PartII or shall be subject to the provisions of PartIII orV only if such a subsidy is specific in accordance with the provisions of Article2.Article 2: Specificity 2.1 In order

6、 to determine whether a subsidy, as defined in paragraph1 of Article 1, is specific to an enterprise or industry or group of enterprises or industries (referred to in this Agreement as “certain enterprises”) within the jurisdiction of the granting authority, the following principles shall apply:(a)

7、Where the granting authority, or the legislation pursuant to which the granting authority operates, explicitly limits access to a subsidy to certain enterprises, such subsidy shall be specific.(b) Where the granting authority, or the legislation pursuant to which the granting authority operates, est

8、ablishes objective criteria or conditions(2) governing the eligibility for, and the amount of, a subsidy, specificity shall not exist, provided that the eligibility is automatic and that such criteria and conditions are strictly adhered to. The criteria or conditions must be clearly spelled out in l

9、aw, regulation, or other official document, so as to be capable of verification.(c) If, notwithstanding any appearance of nonspecificity resulting from the application of the principles laid down in subparagraphs (a) and (b), there are reasons to believe that the subsidy may in fact be specific, oth

10、er factors may be considered. Such factors are: use of a subsidy programme by a limited number of certain enterprises, predominant use by certain enterprises, the granting of disproportionately large amounts of subsidy to certain enterprises, and the manner in which discretion has been exercised by

11、the granting authority in the decision to grant a subsidy(3). In applying this subparagraph, account shall be taken of the extent of diversification of economic activities within the jurisdiction of the granting authority, as well as of the length of time during which the subsidy programme has been

12、in operation.2.2 A subsidy which is limited to certain enterprises located within a designated geographical region within the jurisdiction of the granting authority shall be specific. It is understood that the setting or change of generally applicable tax rates by all levels of government entitled t

13、o do so shall not be deemed to be a specific subsidy for the purposes of this Agreement.2.3 Any subsidy falling under the provisions of Article3 shall be deemed to be specific.2.4 Any determination of specificity under the provisions of this Article shall be clearly substantiated on the basis of pos

14、itive evidence.Part II: Prohibited SubsidiesArticle 3: Prohibition 3.1 Except as provided in the Agreement on Agriculture, the following subsidies, within the meaning of Article1, shall be prohibited:(a) subsidies contingent, in law or in fact(4), whether solely or as one of several other conditions

15、, upon export performance, including those illustrated in AnnexI(5);(b) subsidies contingent, whether solely or as one of several other conditions, upon the use of domestic over imported goods.3.2 A Member shall neither grant nor maintain subsidies referred to in paragraph1.Article 4: Remedies 4.1 W

16、henever a Member has reason to believe that a prohibited subsidy is being granted or maintained by another Member, such Member may request consultations with such other Member.4.2 A request for consultations under paragraph 1 shall include a statement of available evidence with regard to the existen

17、ce and nature of the subsidy in question.4.3 Upon request for consultations under paragraph1, the Member believed to be granting or maintaining the subsidy in question shall enter into such consultations as quickly as possible. The purpose of the consultations shall be to clarify the facts of the si

18、tuation and to arrive at a mutually agreed solution.4.4 If no mutually agreed solution has been reached within 30 days(6) of the request for consultations, any Member party to such consultations may refer the matter to the Dispute Settlement Body (“DSB”) for the immediate establishment of a panel, u

19、nless the DSB decides by consensus not to establish a panel.4.5 Upon its establishment, the panel may request the assistance of the Permanent Group of Experts(7) (referred to in this Agreement as the “PGE”) with regard to whether the measure in question is a prohibited subsidy. If so requested, the

20、PGE shall immediately review the evidence with regard to the existence and nature of the measure in question and shall provide an opportunity for the Member applying or maintaining the measure to demonstrate that the measure in question is not a prohibited subsidy. The PGE shall report its conclusio

21、ns to the panel within a time-limit determined by the panel. The PGEs conclusions on the issue of whether or not the measure in question is a prohibited subsidy shall be accepted by the panel without modification.4.6 The panel shall submit its final report to the parties to the dispute. The report s

22、hall be circulated to all Members within 90days of the date of the composition and the establishment of the panels terms of reference.4.7 If the measure in question is found to be a prohibited subsidy, the panel shall recommend that the subsidizing Member withdraw the subsidy without delay. In this

23、regard, the panel shall specify in its recommendation the timeperiod within which the measure must be withdrawn.4.8 Within 30 days of the issuance of the panels report to all Members, the report shall be adopted by the DSB unless one of the parties to the dispute formally notifies the DSB of its dec

24、ision to appeal or the DSB decides by consensus not to adopt the report.4.9 Where a panel report is appealed, the Appellate Body shall issue its decision within 30 days from the date when the party to the dispute formally notifies its intention to appeal. When the Appellate Body considers that it ca

25、nnot provide its report within 30 days, it shall inform the DSB in writing of the reasons for the delay together with an estimate of the period within which it will submit its report. In no case shall the proceedings exceed 60 days. The appellate report shall be adopted by the DSB and unconditionall

26、y accepted by the parties to the dispute unless the DSB decides by consensus not to adopt the appellate report within 20 days following its issuance to the Members.(8)4.10 In the event the recommendation of the DSB is not followed within the timeperiod specified by the panel, which shall commence fr

27、om the date of adoption of the panels report or the Appellate Bodys report, the DSB shall grant authorization to the complaining Member to take appropriate(9) countermeasures, unless the DSB decides by consensus to reject the request.4.11 In the event a party to the dispute requests arbitration unde

28、r paragraph 6 of Article 22 of the Dispute Settlement Understanding (“DSU”), the arbitrator shall determine whether the countermeasures are appropriate.(10)4.12 For purposes of disputes conducted pursuant to this Article, except for timeperiods specifically prescribed in this Article, timeperiods ap

29、plicable under the DSU for the conduct of such disputes shall be half the time prescribed therein.Part III: Actionable SubsidiesArticle 5: Adverse Effects No Member should cause, through the use of any subsidy referred to in paragraphs 1 and 2 of Article1, adverse effects to the interests of other M

30、embers, i.e.:(a) injury to the domestic industry of another Member(11);(b) nullification or impairment of benefits accruing directly or indirectly to other Members under GATT1994 in particular the benefits of concessions bound under ArticleII of GATT1994(12);(c) serious prejudice to the interests of

31、 another Member.(13)This Article does not apply to subsidies maintained on agricultural products as provided in Article 13 of the Agreement on Agriculture.Article 6: Serious Prejudice 6.1 Serious prejudice in the sense of paragraph (c) of Article5 shall be deemed to exist in the case of:(a) the total advalorem subsidization(14)of a product exceeding 5per cent(15):(b) subsidies to cover operating losses sustained by an industry;(c) subsidies to cover operating losses sustained by an enterprise, other than one-time measur