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United States—Definitive Anti-dumping and Countervailing Duties on Certain Products from China

Published online by Cambridge University Press:  02 March 2017

Dukgeun Ahn
Dukgeun Ahn*
Affiliation:
George Washington University Law School
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Type
International Decisions
Information
American Journal of International Law , Volume 105 , Issue 4 , October 2011 , pp. 761 - 767
Copyright
Copyright © American Society of International Law 2011

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References

1 Dumping and Subsidizing—Finding and Reasons, Inquiry No. NQ-2004-005: Certain Fasteners (Can. Int’l Trade Trib. Jan. 7 & 21,2005) & Inquiry No. NQ-2004-006: Laminate Flooring (Can. Int’l Trade Trib. June 16 & 30, 2005), 2005 CanLII 57594 & 57595 (CITT), at http://www.canlii.org/en/databases.html.

2 Georgetown Steel Corp. v. United States, 801 F.2d 1308 (Fed. Cir. 1986).

3 For a comprehensive review of countervailing duty actions brought by WTO members against China, see Ahn, Dukgeun & Lee, Jieun, Countervailing Duty Against China: Opening a Pandora’s Box in the WTO System?, 14 J. Int’l Econ.L. 329 (2011)Google Scholar.

4 Panel Report, United States—Definitive Anti-dumping and Countervailing Duties on Certain Products from China, WT/DS379/R (adopted Mar. 25,2011) [hereinafter Panel Report— U. S. Anti-dumping and Countervailing Duties], modified by Appellate Body Report, United States—Definitive Anti-dumping and Countervailing Duties on Certain Products from China, WT/DS379/AB/R (adopted Mar. 25, 2011) [hereinafter U.S.—Anti-dumping and Countervailing Duties]. The United States initiated nonmarket-economy dumping investigations regarding the same Chinese products simultaneously with the countervailing duty investigations. The documents of the WTO dispute settlement system and W T O and GATT legal texts cited in this case report are available online at http://www.wto.org/.

5 The European Union imposed its first countervailing duty together with an antidumping duty against China in May 2011, which was after the WTO decision to ban double remedies. Council Implementing Regulation (EU) 452/2011 of 6 May 2011 Imposing a Definitive Anti-subsidy Duty on Imports of Coated Fine Paper Originating in the People’s Republic of China, 2011 O.J. (L 128) 18; see also Council Implementing Regulation (EU) 451/2011 of 6 May 2011 Imposing a Definitive Anti-dumping Duty and Collecting Definitively the Provisional Duty Imposed on Imports of Coated Fine Paper Originating in the People’s Republic of China, 2011 O.J. (L 128) 1.

6 Agreement on Subsidies and Countervailing Measures, Apr. 15,1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1869 UNTS 14 [hereinafter SCM Agreement].

7 General Agreement on Tariffs and Trade 1994, Apr. 15,1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 190. Article VI of the GATT 1994defines dumping and permissible countervailing duties but prohibits both antidumping and countervailing duties in the same situation, and Article 19.3 of the SCM Agreement, supra note 6, deals with nondiscrimination in the imposition of countervailing duties, and Article 19.4 prohibits such duties in excess of the subsidy found to exist.

8 Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), reprinted in James Crawford, The International Law Commission’S Articles ON State Responsibility: Introduction, Text AND Commentaries (2002).

9 Panel Report, U.S.—Anti-dumping and Countervailing Duties, paras. 8.90, 8.91.

10 Panel Report, Korea—Measures Affecting Trade in Commercial Vessels, WT/DS273 (adopted Apr. 11, 2005).

11 Panel Report, U.S.—Anti-dumping and Countervailing Duties, para. 8.90.

12 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331.

13 For the Appellate Body’s approach to international law, see Isabelle, Van Damme, Treaty Interpretation by the WTO Appellate Body 355-74 (2009)Google Scholar.

14 Strikingly different legal interpretations between panels and the Appellate Body have often occurred in trade remedy cases dealing with, inter alia, zeroing practices in dumping investigations, “unforeseen developments” under GATT Article XIX, and the causation requirement for safeguard cases.

15 Protocol on the Accession of the People’s Republic of China §15, WTO Doc. WT/L/432 (Nov. 23, 2001), 2182 UNTS 138; see also Panel Report, U.S.—Anti-dumping and Countervailing Duties, para. 14.121 n.1029.

16 Panel Report, U.S.—Anti-dumping and Countervailing Duties, para. 14.112.

17 Agreement on Interpretation and Application of Articles VI, XVI and XXIII of the General Agreement on Tariffs and Trade, Apr. 12, 1979, GATT B.I.S.D. (26th Supp.) at 51 (1979) [hereinafter Tokyo Subsidies Code].

18 Panel Report, U.S.—Anti-dumping and Countervailing Duties, para. 14.119.

19 Id.

20 Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1 A, 1868 UNTS 201 [hereinafter Anti-dumping Agreement].

21 On the theoretical possibility of concurrently applying antidumping and countervailing duties and avoiding the double-remedy problem of excess assessments, see Kelly, Brian D., The Offsetting Duty Norm and the Simultaneous Application of Countervailing and Antidumping Duties (Sept. 2010), at http://ssrn.com/abstract_ id= 1653631 Google Scholar. But the practical feasibility of such cases is quite limited.

22 Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, Art. 8(b), June 30, 1967, GATT B.I.S.D. (15th Supp.) at 24, 31 (1968); Tokyo Subsidies Code, supra note 17, Art. 4(3), at 57.

23 Under Article 17.6 of the Anti-dumping Agreement, supra note 20, dispute settlement panels “shall find the [importing country’s] authorities’ measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations,” i.e., interpretations of die agreement determined by the panel to be permissible.