Abstract
This chapter explores the possibility of formulating the causation standard in trade law based upon the general theories of causation in law. In particular, this chapter also explores the suitability of the “necessary element of a sufficient set” (NESS) test which incorporates a weak necessity and strong sufficiency element. The chapter also compares the efficacy of the NESS test vis-à-vis the “but-for” test in the context of trade remedy investigations.
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Notes
- 1.
For a discussion on the negotiating proposals, see Chap. 6 of this study, supra section titled “Degree of Causal Relationship”.
- 2.
Id.
- 3.
Panel Report, United States – Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities, WT/DS166/R (January 19, 2001).
- 4.
David Hume, A Treatise of Human Nature 14-15(A Selby-Biggee and P. Nidditch eds., 2nd edn., 1978).
- 5.
Id.
- 6.
John s. Mill, A System of Logic Ratiocinative and Inductive (8th edition, London, 1886).
- 7.
Jane Stapleton, Unpacking Causation, in Relating to Responsibility: Essays for Tony Honore on his Eightieth Birthday 145, 145-46 (Peter Cane & John Gardner eds, Hart Publishing, 2001). Hart and Honore use the analogy of a railway accident to clarify Mil’s point. If the speed of a train, the nature of the track, a bent rail and other externalities are all required for a particular accident to happen, all the factors being equally relevant and important to cause the accident, Mill is of the opinion that the bent rail, being the most recent act is the cause. Though Mill notes the arbitrary nature of this, he seems to think that the answer lies in principles of common sense.
- 8.
Hart and Honoré, Causation in Law 35-36 (2 nd ed. 1985).
- 9.
Id.
- 10.
See the discussions in Chapter I entitled Philosophical Preliminaries, at 9–25.
- 11.
Hart and Honoré, Causation in Law, at 35–36.
- 12.
Id.
- 13.
Dukgeun Ahn & William J. Moon, Alternative Approach to Causation Analysis in Trade Remedy Investigations: ‘Cost of Production’ Test, 44(5) Journal of World Trade 1023-1052 (2010).
- 14.
John Mackie, Causes and Conditions, 4 (2) American Philosophical Quarterly, 245, 245-255(1965) (arguing that the INUS test, i.e. Insufficient but Necessary part of an Unnecessary but Sufficient set, could explicate the causal relationship)
- 15.
David Hume, A Treatise of Human Nature 14-15 (A Selby-Biggee ed., rev’d P. Nidditch 1978).
- 16.
Richard Wright, Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof: Pruning the Bramble Bush by Clarifying the Concepts, 73 Iowa Law Review 1001, 1788-91 (1988) (hereinafter Bramble Bush).
- 17.
Id.
- 18.
Id. See also Wright, Causation in Tort Law, 73 California Law Review 1735, 1788-91 (1985).
- 19.
See generally, Tony Honoré, Responsibility and Fault 14-32 (1999).
- 20.
T. Beauchamp & A. Rosenberg, Hume and the Problem of Causation 23, 88-91 (1981).
- 21.
Panel Report, United States – Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities, ¶ 8.140 WT/DS166/R (January 19, 2001), as modified by Appellate Body Report WT/DS166/AB/R;
- 22.
Appellate Body, US—Wheat Gluten, ¶ 66.
- 23.
For a discussion on the negotiating proposals, see Chap. 6 of this study, supra section titled “Degree of Causal Relationship”.
- 24.
Richard Wright, Bramble Bush, supra note 16, at 1035.
- 25.
Richard Wight, Bramble Bush, supra note 16.
- 26.
Panel Report, United States – Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia, ¶ 224 WT/DS177/AB/R (March 16, 2001).
- 27.
Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan, ¶ ¶. 224, 228 WT/DS184/AB/R (Aug. 23, 2001).
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Nedumpara, J.J. (2016). General Principles of Law on Causation: Application in the Field of Trade Remedy Investigations. In: Injury and Causation in Trade Remedy Law. Springer, Singapore. https://doi.org/10.1007/978-981-10-2197-8_7
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