The Offsetting Duty Norm and the Simultaneous Application of Countervailing and Antidumping Duties

The Offsetting Duty Norm and the Simultaneous Application of Countervailing and Antidumping Duties
Author: Brian D. Kelly
Publisher:
Total Pages: 0
Release: 2010
Genre:
ISBN:

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World Trade Organization members have long expressed a norm concerning the trade “remedies” of countervailing (anti-subsidy) duties and antidumping duties: that these measures offset the behavior that gives rise to them. This paper analyzes the simultaneous application countervailing duties and antidumping duties in light of this norm. Once rare, simultaneous countervailing and antidumping duty proceedings have recently become perhaps the most prominent expression of trade protection permitted under WTO rules. The chief analytic focus is whether, or to what extent, the duties should be cumulative when they are simultaneously applied. The analysis first adopts the assumption that underlies modern countervailing duty laws, that the subsidies that the duties offset are passed on fully in prices. The analysis is then broadened to consider cases in which pass-through of the subsidy to prices is not perfect. The paper establishes the theoretical conditions to identify any overlap in the application of countervailing and antidumping responses to subsidization and to dumping. These conditions have direct application to current policy debate.

Resolving the Double Remedy Dispute

Resolving the Double Remedy Dispute
Author: Matthew Kelly
Publisher:
Total Pages: 0
Release: 2013
Genre:
ISBN:

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On March 29, 2007, the United States Department of Commerce (Commerce) reversed its long-standing policy prohibiting the application of countervailing duties against non-market economy countries. Consequently, Commerce began to apply countervailing duties to products from China and Vietnam that were also subject to antidumping duties. China challenged the new U.S. practice before a World Trade Organization (WTO) panel. China argued that Commerce's actions were inconsistent with the United States' WTO obligations under the General Agreement on Tariffs and Trade 1994 (GATT 1994), the Agreement on Subsidies and Countervailing Measures (SCM Agreement), the Antidumping Agreement (AD Agreement), and the Protocol on the Accession of the People's Republic of China (Accession Protocol). China argued that Commerce's application of both countervailing and antidumping duties resulted in a “double remedy” for the U.S. industry, specifically that the effect of Commerce's methodology for determining antidumping duties against non-market economy countries was to offset the same instance of subsidization twice -- once through the imposition of the countervailing duty and again through the application of the antidumping duty. Although the Panel found that a double remedy was “likely,” it held that “China did not establish that the United States acted inconsistently with its obligations under ... the SCM Agreement.” China appealed the latter conclusion, along with other aspects of the Panel decision, to the WTO Appellate Body (AB). The AB reversed the Panel Report's conclusion -- but haphazardly provided an attempted solution to the double remedy dispute in a section, titled “The Completion of the Analysis”. This Note is about the AB's decision, particularly the “Completion of the Analysis” section. The AB held that the application of concurrent duties that offset the same subsidization twice is not consistent with Article 19.3 of the SCM Agreement because that article requires that an investigating authority collect countervailing duties “in the appropriate amounts.” But in doing so, the AB concluded that an investigating authority has an affirmative obligation under the SCM Agreement to ascertain the amount by which a countervailed subsidy lowers the export price of a product, which depends on whether and to what extent domestic subsidies have “passed through” to the export price. As such, the investigating authority has to take the necessary steps to adjust its methodology to take account of this factual situation, including the degree of pass-through of the subsidy. The AB's decision has had a powerful and ongoing effect, leading to the United States Congress's March 2012 passage of “An Act to Apply the Countervailing Duty Provisions of the Tariff Act of 1930 to Nonmarket Economy Countries, and for Other Purposes” and extensive changes in Commerce's administrative practice for extant and newly filed trade cases. The new controversial practices are now again before the WTO's AB to determine their consistency with the decision that this Note addresses. The AB's Completion of the Analysis poses several questions. Must an investigating authority adjust for pass-through in both the countervailing and antidumping calculations, the countervailing duty set equal only to the portion of the subsidy passed through to export price, the antidumping calculation then adjusting for the double remedy still represented in a diminished countervailing duty? Does the AB's decision account for the U.S. law that requires that the amount of the countervailing duty must be equal to the amount of subsidy that is found to exist, making a countervailing duty adjustment under U.S. law impossible? In order to meet its WTO obligations, should the United States return to its long standing policy of prohibiting the imposition of countervailing duties to non-market economies? This Note argues that the Completion of the Analysis neither factually nor legally solves the double remedy dispute. Part II provides background on U.S. countervailing and antidumping duty law. Part III introduces the double remedy dispute in greater detail, examines the AB's analysis of the double remedy issue, and illustrates its failure to factually and legally solve the double remedy dispute. Part IV suggests three adjustments to the United States' countervailing and antidumping methodologies that might resolve the double remedy dispute. Part V concludes.

The Legal and Economic Analysis of the WTO/FTA System

The Legal and Economic Analysis of the WTO/FTA System
Author: Dukgeun Ahn
Publisher: World Scientific
Total Pages: 384
Release: 2016-02-29
Genre: Business & Economics
ISBN: 9814704369

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The Legal and Economic Analysis of the WTO/FTA System presents a collation of interdisciplinary studies covering a wide range of issues from WTO dispute settlement issues to trade remedy systems and FTA negotiations. The author applies legal as well as economic rationales and methods to analyze core issues in the world trading system and in doing so, sheds an interesting light on various trade issues. The interdisciplinary analysis on WTO and FTA issues provides a unique opportunity to reconsider many conventional trade topics. For instance, the author shows that third country dumping rarely used in the GATT/WTO system may have a new role with economic incentives in the context of FTAs. Contents:Dispute Settlement in the WTO System:Understanding Non-litigated Disputes in the WTO Dispute Settlement SystemKorea in the GATT/WTO Dispute Settlement System: Legal Battle for Economic DevelopmentPractices and Theoretical Foundations of the Trade Remedy System:Alternative Approach to Causation Analysis in Trade Remedy Investigations: 'Cost of Production' TestThird Country Dumping: Origin, Evolution and ProspectRestructuring the WTO Safeguard Mechanism in The WTO Trade Remedy SystemFoe or Friend of GATT Article XXIV: Diversity in Trade Remedy RulesCountervailing Duty against China: Opening a Pandora's Box in the WTO System?United States — Anti-Dumping Measures on Certain Shrimp and Diamond Sawblades from China: Never Ending Zeroing in the WTO?International Decisions: United States — Definitive Anti-Dumping and Countervailing Duties on Certain Products from ChinaInterrelation between Trade and Finance:Linkages between International Trade and Financial Institutions: IMF, World Bank and WTOWTO Disciplines Under the IMF Program: Congruence or Conflict?Is the Chinese Exchange-rate Regime 'WTO-legal'?Book Review: International Law in Financial Regulation and Monetary AffairsLegal and Economic Analysis of Free Trade Agreements:Dispute Settlement Systems in Asian FTAs: Issues and ProblemsAnalysis of Anti-dumping Use in Free Trade AgreementsLegal Issues for Korea's "Internal Trade" in the WTO System Readership: Researchers, students, and members of the public who are interested in international trade or economic law, international economics and international political economy.

The European Union’s Trade Defence Modernisation Package

The European Union’s Trade Defence Modernisation Package
Author: Patricia Trapp
Publisher: Springer Nature
Total Pages: 342
Release: 2022-01-03
Genre: Law
ISBN: 3030913635

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Anti-dumping and anti-subsidy measures are the most important elements of the European Union's trade defence instruments. Since the beginning of the European integration process, they have been used to combat trade practices which are considered "unfair" and their distortive effects on competition in the internal market. However, while the imposition of trade defence measures aims to level the playing field between EU producers and their foreign competitors, it also produces negative effects on competition itself. Based on the role attributed to competition and trade defence policy respectively throughout the European integration process, this book argues that the trading bloc's trade defence instruments should not be designed or applied with the objective of granting maximum protection to EU producers, but that their use should be limited to what is necessary to ensure fairness in competition between EU producers and exporting producers. However, an analysis of the changes made to the European Union's Basic Anti-Dumping Regulation and the Basic Anti-Subsidy Regulation by the Trade Defence Modernisation Package reveals that several aspects of the European Union's modernised trade defence instruments do not meet this requirement. Rather than being limited to offsetting the unfair competitive advantages of producers practicing dumping or benefiting from subsidies, the reformed provisions go beyond this, distorting competition in favour of the EU industry instead. Furthermore, the book critically assesses the reformed rules relating to the integration of social and environmental aspects in the imposition of anti-dumping or anti-subsidy measures as well as the modernised basic regulations’ compatibility with WTO law.

The WTO Anti-Dumping Agreement

The WTO Anti-Dumping Agreement
Author: Philippe De Baere
Publisher: Cambridge University Press
Total Pages: 500
Release: 2021-08-31
Genre: Law
ISBN: 9781108423519

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A unique article-by-article commentary on the WTO Anti-Dumping Agreement, offering an essential and comprehensive insight into WTO case-law. This commentary is an indispensable reference tool for government officials, practitioners and academics working on anti-dumping issues. The commentary's structure allows the reader to identify immediately which disputes are relevant for the interpretation of each provision. It offers a clear analysis of the applicable rules and a comprehensive explanation of what, as a result of the WTO case-law, those rules mean. This commentary has been written by practitioners who have all been directly involved in a large number of WTO disputes and who have extensive experience in anti-dumping investigations and in challenging anti-dumping determinations before the WTO and before national courts.

WTO Appellate Body Repertory of Reports and Awards

WTO Appellate Body Repertory of Reports and Awards
Author:
Publisher: Cambridge University Press
Total Pages: 2597
Release: 2014-09-25
Genre: Law
ISBN: 1139917226

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The fifth edition of the WTO Appellate Body Repertory of Reports and Awards (the 'Repertory') serves first and foremost as a source of information for those interested in the field of international trade law and international dispute settlement. Initially developed as an internal research tool to assist the Appellate Body Secretariat in carrying out its duty to provide legal support to Appellate Body Members, the Repertory has become a practical tool for officials from WTO Member States, and in particular for Members (including developing-country Members) that may not have the resources to prepare a similar compendium in-house. The Repertory is also a useful publication for academics, students, private practitioners, trade officials and other followers of international trade law and international dispute settlement.

Treaty Interpretation by the WTO Appellate Body

Treaty Interpretation by the WTO Appellate Body
Author: Isabelle Van Damme
Publisher:
Total Pages: 487
Release: 2009
Genre: Law
ISBN: 0199562237

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This book analyzes how the Appellate Body uses particular principles of general international law in interpreting the WTO covered agreements. It deals equally with general international law and WTO law. The aim is to explain how the Appellate Body interprets and applies customary international law on treaty interpretation in dealing with the WTO covered agreements. The main concern is to analyze the judicial reasoning and ways of justifying judicial decision-making. In particular, it answers the question of how the Appellate Body explains its reading of WTO treaty language. It is argued that the Appellate Body has interpreted the WTO covered agreements in a contextual and effective manner, an approach that corresponds with general international law. The character of the WTO covered agreements has, nevertheless, confronted the Appellate Body with some questions of interpretation that were until recently unexplored or neglected by other courts and tribunals. In that sense, the Appellate Body has contributed to the development of general international law on treaty interpretation, or at least to its practice. WTO law is primarily treaty law, but increasingly soft law and broader themes and values from other disciplines, such as governance, variable geometry and legitimacy, are introduced and discussed. Customary international law - with the exception of the principles of treaty interpretation - and general principles of law are often seen as excluded entirely. An ancillary theme of this proposed monograph is the extent to which customary international law and general principles of law have penetrated WTO law through the technique of treaty interpretation.

Development Studies in Regional Science

Development Studies in Regional Science
Author: Zhenhua Chen
Publisher: Springer Nature
Total Pages: 568
Release: 2020-02-21
Genre: Business & Economics
ISBN: 9811514356

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This book examines major policy and planning issues in development studies from the regional science perspective. It investigates questions such as: “How are communities able to deal with uncertainties raised by conflicts, technology, and external shocks in the process of development?”; “How can nations achieve sustainable development in terms of resource allocation and management?”; and “How can developing countries improve their economic competitiveness while maintaining the objectives of equitable and coordinated growth among different regions?” using case studies that focus on different subfields, like infrastructure, environment, data science, sustainability and resilience. The book is organized in three parts. Part I clarifies fundamental issues regarding development studies and regional science in general, while Part II includes several case studies that address development-related opportunities and challenges with a focus on Asian countries. Lastly, Part III offers a global perspective and explores development experiences from countries throughout the world. Featuring contributions by leading academics and practitioners working at various organizations linked to international development, and including multidisciplinary analyses, the book appeals to students who are interested in development studies and regional science. It also offers planners and policymakers fresh insights into regional economic development.

WTO Disciplines on Subsidies and Countervailing Measures

WTO Disciplines on Subsidies and Countervailing Measures
Author: Dominic Coppens
Publisher: Cambridge University Press
Total Pages: 695
Release: 2014-05-22
Genre: Law
ISBN: 1139916017

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Does the WTO leave appropriate policy space to its Members to pursue legitimate objectives, such as the economic development of developing countries, the conversion to a greener economy, or recovery in times of a global economic downturn? This legal and normative analysis of the WTO rules on subsidies and countervailing measures sheds light on why governments resort to subsidization and, by tracing the historical origins of the SCM Agreement and the Agreement on Agriculture, on why they have been willing to gradually confine their policy space. This sets the stage for a systematic and comprehensive legal analysis of both agreements, which integrates the vast amount of case law and proposals tabled in the Doha round. A separate case study explores the complex rules on export credit support, and the book closes with an in-depth normative assessment of these WTO rules on subsidies and countervailing measures.

Preferential Trade Agreements and International Law

Preferential Trade Agreements and International Law
Author: Graeme Baber
Publisher: Routledge
Total Pages: 316
Release: 2018-12-07
Genre: Law
ISBN: 1351258982

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The multilateral trade agreements in the Annexes to the Agreement Establishing the World Trade Organization provide a comprehensive structure for international trade. Why would trading partners in different countries feel the need to go outside this framework in order to set up preferential trade arrangements? This book considers the structure of the World Trade Organization’s agreements and the types of preferential trade arrangements, and deliberates the value of the latter in the light of the operation of the former. Preferential Trade Agreements and International Law offers a comprehensive examination of preferential trade agreements and considers the features of specific regional and bilateral trade agreements without drawing upon systematic features and trends. It shows the latest state of knowledge on the topic and will be of value to researchers, academics, policymakers, and students interested in international trade and economic law.