In 2007, the United States reversed its long-standing policy prohibiting the simultaneous imposition of anti-dumping duties (ADDs) and countervailing duties (CVDs) against nonmarket economies. Subsequently, the United States has imposed concurrent ADDs and CVDs in numerous cases against China. China challenged a number of aspects of the US practice, most notably the double-remedies issue, which occurs when a domestic subsidy is offset by both an ADD and CVD. The Appellate Body (AB) correctly ruled that double remedies are inconsistent with the Agreement on Subsidies and Countervailing Measures and that the burden was on the investigating authorities to ensure that double remedies were not being imposed; however, the AB largely limited its discussion to measurement concerns, an approach that may have inadvertently opened the door to future double-remedies disputes involving other methods for computing normal value. Two other issues that are likely to have significant long-term ramifications are (i) the scope of the term 'public body' and (ii) the appropriate use of out-of-country benchmarks. On both issues, we believe the AB's conclusions and analysis were correct.
This paper examines issues that came before the Appellate Body in two disputes, US–Zeroing (EC) and the US–Zeroing (Japan). The core issue in both the disputes involves the US Department of Commerce's practice of zeroing. The scope of the claims in both cases was considerably broader than in the previous WTO disputes involving zeroing. The two arguments in support of the practice were that (a) the practice of zeroing has been a standard administrative practice for many years and (b) the Antidumping Agreement does not clearly prohibit it and hence deference must be given to national authorities. While, the Appellate Body was arguably correct in prohibiting the use of zeroing under the main methods of Article 2.4.2 AD Agreement as well as in various reviews, we consider that it overreached in considering zeroing to be in violation of Article 2.4 AD Agreement and possibly as inconsistent with Article 2.4.2, exceptional method. Finally, while the AB found zeroing in reviews violated Article 2.4.2 AD Agreement, we believe it would have been preferable for the AB to have limited its findings of inconsistency to Article 9.3 AD Agreement.
This paper examines one political‐economy aspect of the European Communities’ (EC) anti‐dumping policy that has tended to be overlooked in prior studies; namely, the role that member states play in deciding whether to impose definitive duties on imports that have been found to be dumped and that are deemed to have injured a European industry. We find that, in the late 1990s, numerous disagreements between member states occurred over the merits of imposing anti‐dumping duties. These disagreements may well have been partly responsible for the strong decline in the number of European anti‐dumping investigations initiated after 1999.
This is the eighth Appellate Body Report in which some aspect of zeroing was adjudicated. As in the prior cases, the AB again found the US practice inconsistent with several aspects of the Anti-Dumping Agreement. The novelty in this dispute was the EC attempt to broaden the concept of what constitutes an appealable measure. The EC challenged whether a WTO decision regarding zeroing could apply to subsequent proceedings that might modify duty levels and asked the AB to decide whether the United States' continued use of zeroing in the context of a given case was consistent with WTO obligations. The AB stated that in its attempt to bring an effective resolution to the zeroing issue, the EC is entitled to frame the subject of its challenge in such a way as to bring the ongoing use of the zeroing methodology in these cases, under the scrutiny of WTO dispute settlement. The AB then cautiously applied the new perspective to US zeroing practice.
In July 2009, Chinese steel producers of grain oriented electrical steel filed anti-dumping (AD) and countervailing duty (CVD) cases against US and Russian producers. The US challenged the duties for a variety a reasons, many of which involved deficiencies in the producers' application to China's investigating authority, the Ministry of Commerce of the People's Republic of China (MOFCOM). The US also challenged certain aspects of MOFCOM's injury analysis. The Panel and Appellate Body ruled in favor of the US on virtually every issue. Given the deficiencies in the application and China's handling of the case, the Panel and AB decisions were justified. In a larger sense, however, we believe China may well emerge as the 'winner' in this dispute as this case establishes important standards for allegations and evidence in applications, standards that other countries (including the US) likely have failed to meet when they have imposed AD and CVD orders on the largest target country, China. * 7 Article 11.2 of the SCM Agreement provides: 'An application under paragraph 1 shall include sufficient evidence of the existence of (a) a subsidy and, if possible, its amount, (b) injury within the meaning of Article VI of GATT 1994 as interpreted by this Agreement, and (c) a causal link between the subsidized imports and the alleged injury. Simple assertion, unsubstantiated by relevant evidence, cannot be considered sufficient to meet the requirements of this paragraph.'
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