The purpose of this article is to search for the legal and systemic bases in WTO Anti-Dumping Agreement that may assist in developing Korea’s newly emerging industries in the changing world of competitive international trade. For this purpose, this article analyzes the meaning of “injury” in WTO Antidumping agreement in order to come up with the factors that prevent “material retardation” of the establishment of a domestic industry. Through examining these factors, it has become certain that a country is able to take anti-dumping measures based on “material retardation of the establishment of a domestic industry” under the 1994 GATT and the WTO’s Antidumping Agreement. Their provisions, however, are so general and abstract that they can not produce specific and clear criteria, thus posing a problem that could not be solved by analyzing the findings of the WTO’s Dispute Settlement Body. Accordingly, it de facto entrusts the WTO members with deciding on and applying the applicable criteria for the material retardation of the establishment of a domestic industry.
As the matters stand, this article endeavors to search out confirmable or referable criteria from the rules and practices of the United States, EU and existing Korean to protect Korea’s newly emerging industries. Especially, according to the findings of the authorities of United States, EU and Korea, there was a tendency of accepting an argument for ‘material retardation’ in cases of applying some objective standards to pending cases. On the contrary, the contention of material retardation was not accepted in case that there was no real business activities, or if the argument depended on only expectations of a business. These examples are founded in the cases of “outboard motors originating in Japan” and “mechanical wrist-watches originating in the USSR.” Meanwhile, there are some points which deserve the Korean government’s attention in using antidumping measures to build up and develop newly emerging industries. First, the disputes related to application of “material retardation” of the establishment of a domestic industry are decided by the WTO’s Dispute Settlement Body (DSB). It would be worthwhile, therefore, to keep track of the tendency of the DSB findings that continuously suggest concreteness of the law, and to use the rules within that boundary. Second, the application of “material retardation” of the establishment of a domestic industry runs reciprocally between the member countries of the WTO. It means that a member cannot unilaterally impose and apply its own criteria and. And finally, there needs to be a balance between political and legal considerations. This suggests that if the political considerations, although they derive themselves out of policy concerns, deviate from the WTO rules, they could be treated as violations of international laws. Consequently, as political considerations for preventing domestic newly emerging industries are limited by the WTO rules, they need to keep mindful of their legal assessment.