United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China: Passing the Buck on Pass-Through

Abstract

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.

Revisiting Procedure and Precedent in the WTO: An Analysis of US Countervailing and Anti-Dumping Measures (China)

“…Instead, the AB report ruled that double remedies are "likely" to occur when CVDS are imposed concurrently with ADs under the United States' NME Methodology. 61 As Prusa and Vermulst (2013) argue, however, this ruling opens the door for future AB cases addressing whether CVDs and ADs are acceptable in a given case, despite the fact double remedies are almost certain when a NME Methodology like the United States' is used. 62 The claim raised by China in US-CVD and AD Measures (China) (DS449) demonstrates that Prusa and Vermulst were correct.…”

US – OCTG (Korea): Legal Boundary of 'Political' Remedy

“…2 There are a number of analyses of OCTG-related WTO disputes. See e.g., Grossman and Mavroidis (2005), Bown and Wauters (2008), Grossman and Wauters (2008), Prusa and Vermulst (2013), Ahn and Zanardi (2017). ,249,251,252,253,254,258,259 are merged in one panel and Appellate Body proceeding.…”

China and International Commercial Dispute Resolution

“…Rather than operate transparently, arbitration processes sometimes are closed to public scrutiny; ISA awards produce ad hoc determinations that are often difficult to predict. 94 The principles governing investor protection and state intervention are sometimes too amorphous to produce consistent ISA determinations. A less than heartening observation is that ICSID annulment proceedings are "not designed to bring about consistency in the interpretation and application of international investment law".95 Nevertheless, China's influence over treaty and customary investment jurisprudence is likely to gain traction.…”

“…8.101. authority' test. 94 No matter how the AB's legal standard will be applied in practice going forward, any evaluation of Chinese SOEs is likely to reveal a mixed picture. Some characteristics of Chinese SOEs may suggest that the Chinese government's control of these entities is manifold and that the Chinese government has exercised meaningful control over them.…”