The Legal Analysis, Third Edition
Chapter 7: Application of safeguard measures
The proper application of a safeguard measure requires three considerations. First, the measure has to be taken in the circumstances authorized by the SA - that is, serious injury (or threat thereof) to the domestic industry caused by an increase in imports. Secondly, the measure should comply with all the procedural requirements for its application, notably the requirements concerning investigation, notification, and consultation. Finally, the measure itself should not be excessive, and it must be proportionate to the extent of injury caused by the increased imports. Therefore, due consideration should be given to the appropriateness of the proposed measure prior to its application. Unlike GATT Article XIX, the SA provides rules concerning the duration, extension, re-application, and mid-term review of the measure, and these rules provide a control on the application of safeguards as follows. The Agreement on Safeguards specifies the maximum period for safeguard measures as not exceeding four years (Article 7.1). If the continuation of the measure is determined necessary to remedy or prevent serious injury and if there is evidence that the industry is adjusting, the measure may be extended once, for up to four years (Article 7.2). The total period of a safeguard measure, including the period of any preceding provisional measure, cannot exceed eight years, including the once-only extension (Article 7.3).
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