United States - Countervailing Duty Measures on Certain Products from China (WT/DS437): Report of the Appellate Body

Summary

INTRODUCTION

China and the United States each appeals certain issues of law and legal interpretations developed in the Panel Report, United States – Countervailing Duty Measures on Certain Products from China (Panel Report). The Panel was established to consider a complaint by China with respect to the imposition by the United States of countervailing duties on certain products from China.

This dispute concerns countervailing duties imposed by the United States following 17 countervailing duty investigations initiated by the US Department of Commerce (USDOC) between 2007 and 2012. Before the Panel, China challenged several aspects of the investigations leading to the imposition of these duties, including the USDOC's application of an alleged “rebuttable presumption” to determine whether Chinese state-owned enterprises (SOEs) can be characterized as “public bodies” within the meaning of the Agreement on Subsidies and Countervailing Measures (SCM Agreement).

The 17 countervailing duty investigations at issue in this dispute concern a variety of products. With respect to 14 of these investigations, China's claims related to the USDOC's determinations that: (i) Chinese SOEs are public bodies; (ii) the provision of certain inputs by Chinese SOEs conferred a benefit; (iii) subsidies arising from the provision of inputs for less than adequate remuneration are specific; and (iv) there was sufficient evidence with respect to the specificity of the alleged subsidies to justify the initiation of the underlying countervailing duty investigations. With regard to seven investigations, China challenged the USDOC's determinations that subsidies in the form of the provision of land-use rights are specific. With respect to 15 of the investigations at issue, China's claims concerned the USDOC's resort to the use of “adverse” facts available. Finally, with respect to two of the investigations, China's claims related to the USDOC's initiation of investigations into export restraints and the determinations made by the USDOC that such export restraints are financial contributions.