The Legal Analysis, Third Edition
Chapter 5: Article 4 - injury and causation
The injury determination constitutes a core stage in the investigation for a safeguard measure, as safeguard measures remedy or prevent serious injury to the domestic industry (Article 2.1). Article 4.1 provides a series of definitions for the terms relevant to the injury determination. For instance, "serious injury" is defined as "a significant overall impairment in the position of a domestic industry" (Article 4.1(a)) and "threat of serious injury" as "serious injury that is clearly imminent, in accordance with the provisions of paragraph 2" (Article 4.1(b)). These brief definitions do not remove the inherent subjectivity in the injury determination. It is left to the national authorities to assess whether the investigated injury constitutes "an overall impairment in the position of the domestic industry" and, in the case of a threat, whether the injury is "imminent." Injury determination is an art, rather than a precise science, and a certain degree of subjectivity is inevitable. Nevertheless, in conjunction with the specific injury factors specified in Article 4.2(a) and the reasoned explanations and analysis required for the injury determination under Articles 3 and 4.2(c), these provisions of the SA reduce the arbitrariness of the injury assessment.
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