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The Challenge of Safeguards in the WTO . by Fernando Piérola. Cambridge University Press, 2014

In this well written and very readable book, the author Fernando Piérola, Senior Counsel at the Advisory Center on WTO Law, lecturer at several universities, and a respected trade lawyer, provides an excellent overview of the WTO law and practice relating to safeguards. He first provides a detailed 82-page overview of the history of safeguards in the GATT and the WTO as well as the proffered rationales for such clauses and measures imposed pursuant to them (Part 1). The rest of the book is then devoted to analysis of the WTO Agreement on Safeguards (AS). On the basis of the WTO Appellate Body report in US–Line Pipe, he distinguishes between the right to apply a safeguard measure (Part 2) and the application of such a measure (Part 3). The final Part 4 deals with procedural aspects, covering both domestic investigatory requirements and multilateral obligations. The concluding remarks provide both a useful overview of the key issues discussed and recommendations for improvement, based on the shortcomings that the author perceives within the system as described in the earlier sections of the book. The interesting section on rationales for safeguard measures covers the full gammut of justifications underpinning safeguard measures, namely: flexibility (expectations and transaction costs, rebus sic stantibus); compensation and adjustment (efficiency counter-argument, compensation, industrial adjustment); and political valve and institutional channel arguments, before concluding that ‘[s]ome of these objectives are debatable. However, it is accepted that the safeguard mechanism advances the objectives of the multilateral trading system by addressing political economy concerns that may otherwise frustrate taking any step forwards’ (p. 97). It may be noted as an aside that the same ‘realpolitik’ comment could be made about the other two trade remedies: anti-dumping and the countervailing duty instruments. In Part 2, Piérola first covers the two threshold issues that cover the scope of the investigation, namely the period of investigation (POI) and the definition of the product concerned, i.e. the imported product. He then discusses the three prerequisite determinations of unforeseen developments, increased imports, as well as injury and the causal link. With respect to the ‘controversial’ (p. 139) Appellate Body ruling that the ‘unforeseen developments’1 requirement in Article XIX:1(a) of the GATT 1994 co-exists with the AS requirements for imposing safeguard measures, the author raises two interesting consequences. First of all, it would seem that there must be a causal link between unforeseen developments and increased imports. If so, then supposedly the Article 4.2 (b) AS causation analytical requirements, as developed by the Appellate Body, apply in this context too, which imposes a substantial burden upon investigating authorities.