Beijing claimed that the US law caused an "advance in a rate of duty or other charge on imports under an established and uniform practice" or imposed "a new or more burdensome requirement, restriction, or prohibition on imports" within the meaning of that provision.
Double Remedies in Double Courts | European Journal of International Law | Oxford Academic
GATT Article X:2 prohibits the enforcement of measures of general application that increase a rate of duty or impose a new or more burdensome requirement before their official publication. The Appellate Body indicated that the analysis under Article X:2 requires a comparison between the new measure and the previously published measure that it replaced or modified.
This, therefore, requires the identification of a "baseline" of comparison in the law that was in force prior to the new measure. China's appeal focused on the panel's interpretation and application of that baseline. The WTO judges stressed that the practice of the administrative agency should not be the only element in deciding whether a new or more burdensome requirement has been imposed.
For the Appellate Body, the panel left open the possibility that an unlawful practice of an administering agency could constitute a relevant baseline under Article X Furthermore, they said, the panel should have focused on ascertaining the meaning of the previous measure — Section a of the US Tariff Act — in order to determine whether the current version increased duties or imposed new or more burdensome requirements relative to the original law. The Appellate Body stressed that, in this process, the panel should have taken into account all other relevant elements, including Commerce Department practice, as well as the related judicial decisions on the meaning of Section a , in order to determine the meaning of the US countervailing duty law applicable to non-market economies prior to Section 1 of the GPX legislation.
The Appellate Body could not complete the analysis — and thus reach a conclusion — on whether Section 1 had changed the US countervailing duty law. It was therefore unable to determine whether Section 1 of GPX legislation effected an "advance" in a rate of duty or imposed a "new or more burdensome" requirement or restriction on imports within the meaning of Article X:2 of the GATT Changing the assumptions leads to equally questionable results.
This seems highly unlikely. Trade: Competitive Conditions and Effects on U. This unpredictability is most clearly seen in the 15th, 17th, and 18th reviews. In the preliminary determination for the 15th administrative review, which covered most of , the Commerce Department used surrogate values from India when calculating the factors of production. However, before issuing its final determination, the Commerce Department was persuaded to switch from using a generic wholesale price index to a garlic specific price index and to use more recent records when looking at an Indian company to see what appropriate financial ratios were for similar businesses.
Before issuing its final determination, the Commerce Department was persuaded that the database it used to determine the price of garlic bulbs in Ukraine was unreliable and switched to a different Ukrainian database. The Commerce Department chose the Philippines even though that country produced only 9, metric tons of fresh garlic during the year in question, which was less than 0.
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After having its first remand results—noting that the Philippines was forty-third out of ninety-five garlic producing countries—struck down, the Commerce Department reluctantly settled on Ukraine as the surrogate country in the second remand results. The Commerce Department responded by essentially arguing that even when looking for a surrogate for the largest producer of garlic, greater production does not make a country a better surrogate.
Consequently, not being the greatest producer of garlic does not preclude a country from being a significant producer. Thus, the Commerce Department refused in this case to select Thailand over the Philippines simply because Thailand had greater production. This decision conforms with Policy Bulletin Calgon dealt with an appeal of a dumping margin calculation for the antidumping duty on certain activated carbon products from China.
A party challenged that the merchandise being used to calculate the primary factor of production was not actually comparable. Order, ECF Nos. Calgon Carbon Corp.
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If the Commerce Department had reason to think why the Philippines report did not also have a broader definition of anthracite coal, the Commerce Department declined to state what it was, and instead seemed to have relied on the fact that the parties had waived their right to complain about its accuracy. Calgon Carbon Corp , F. In these remand results the Commerce Department explained how it ended up with Thailand as the surrogate country instead of South Africa or Ukraine.
This contradiction is technically justifiable because of the difference in circumstances between the two calculations. Unlike in Fresh Garlic , the Commerce Department in Calgon decided to go with the largest producer only after first going through the entire sequential analysis and determining that three economically comparable countries who were significant producers all had equally reliable data sets. The Commerce Department is not alone among the administering agencies of antidumping measures to use a questionable method. The dumping margin assigned is equal to the normal value minus the export price of the goods.
However, the situations for when the special procedures come in are quite similar. Compare id. These values are found in the same way they are in the United States—by looking to another country. Canadian law and practice does differ from that of the United States in two crucial ways.
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First, rather than require that respondents and petitioners provide data from a list of potential surrogate countries, the CBSA simply sends out a request for information to producers of other countries. Border Serv. Unsurprisingly, these requests rarely produce viable information. Thus, the Canadian government actually has significantly more discretion than the Commerce Department in how to select a surrogate country. As the Federal Court of Appeal noted in a case,. The questions of whether the President.
The International Trade Law Review
These issues are technical and the statute [in establishing the factors of production method]. Were courts to become mired in all the minutia of detail informing a margin of dumping calculation, it is sure that they would not see the light of the day beneath the volumes of evidence that would assuredly be produced—as they were in this case—on judicial review. This factor points to more, and considerable, deference. KG,  FCA , para. Andrew M. Press noting that in the nineteen years between and , only eight challenges to a dumping margin made it up to the Federal Court of Appeals. This does not necessarily mean, though, that Canadian determinations are more accurate or even are more predictable in arriving at a surrogate country.
Unfortunately, the CBSA does not publicly release the value of the antidumping duties it assesses. Any differences would be the result of the different methodologies used by each administering agency. When read together, the first sentence seems to be stating that, if China proves itself to be a market economy before the fifteenth anniversary, then WTO members must treat China as a market economy.
The second sentence then explains what must happen, no matter what, once fifteen years have passed. At that point, WTO members must use Chinese domestic prices in their antidumping duty calculations. Others interpret the provision differently. China feels so strongly that its interpretation is correct that it filed disputes in the WTO against both the United States and the EU on December 12, While arguments will continue about the legality of the U. Considering the control exerted and aid provided by the Chinese government in many sectors, this is, at the very least, an easily defensible position.
However, this does not mean that the Commerce Department or Congress should not seek to improve the current system. The Commerce Department should consider promulgating a rule that sets forth a mathematical formula that makes arriving at a surrogate country more predictable. The Y represents the yearly production of comparable merchandise to D for each country. Because of the vast differences in scale between the GNI per capita numbers G and the production numbers Y , for every set of s-score calculations made for D and E, the G and Y values would have to be normalized to the same scale.
To provide the desired predictability, the normalization process would have to be set as a part of the regulation. I would suggest normalizing production and GNI numbers, respectively, according to the per country and per capita numbers for the set of countries that individually make up at least 0. More specifically, I would suggest comparing the z-scores generated from the G and Y numbers of countries with at least 0. Having calculated the s-score for all countries meeting the 0.
What a Dump! The Current State of Antidumping Duty Calculations in Non-Market Economy Cases
Here, the Commerce Department should keep the accessibility requirement but add that, unless accompanied by a full translation and step-by-step instructions for reproducing the information, data from non-English websites will be deemed unreliable. This method can be summarized as a six-step process. Step 1: Create a list consisting of the GNI per capita and amount of goods produced for every country. Step 2: Remove all countries whose production is less than 0. Step 3: For the remaining countries, transform their GNI per capita and production numbers into z-scores.
Step 4: Calculate the s-scores from the z-scores. Step 5: Remove any NME country from the list. Step 6: Remove countries with unreliable data or data the Commerce Department believes are significantly distortive because of differences in factors of production. Whatever remaining country has the smallest s-score should be the surrogate country.
Without the dye, its production did not meet the 0. Of the countries for which an s-score was calculated, Uzbekistan had the lowest, but its status as an NME means it too is disqualified. However, it is preferable to have NMEs remain in the s-score analysis until the very end because of how beneficial additional data is to the calculations. April 23, It has been viewed 55 times. More information about this report can be viewed below. People and organizations associated with either the creation of this report or its content.
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