scholarly journals China – Countervailing and Anti-dumping Duties on Grain Oriented Flat-rolled Electrical Steel from the United States: exporting US AD/CVD methodologies through WTO dispute settlement?

2014 ◽  
Vol 13 (2) ◽  
pp. 229-266 ◽  
Author(s):  
THOMAS J. PRUSA ◽  
EDWIN VERMULST
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
Electrical Steel ◽  
The United States ◽  
Republic Of China ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The Us ◽  
Target Country ◽  
Injury Analysis

AbstractIn July 2009, Chinese steel producers of grain oriented electrical steel filed anti-dumping (AD) and countervailing duty (CVD) cases against US and Russian producers. The US challenged the duties for a variety a reasons, many of which involved deficiencies in the producers' application to China's investigating authority, the Ministry of Commerce of the People's Republic of China (MOFCOM). The US also challenged certain aspects of MOFCOM's injury analysis. The Panel and Appellate Body ruled in favor of the US on virtually every issue. Given the deficiencies in the application and China's handling of the case, the Panel and AB decisions were justified. In a larger sense, however, we believe China may well emerge as the ‘winner’ in this dispute as this case establishes important standards for allegations and evidence in applications, standards that other countries (including the US) likely have failed to meet when they have imposed AD and CVD orders on the largest target country, China.

Extraterritorial Shrimps, NGOs and the WTO Appellate Body

1999 ◽  
Vol 48 (1) ◽  
pp. 199-206 ◽  
Author(s):  
Asif H. Qureshi
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
Market Access ◽  
The United States ◽  
Consultation Process ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The Us ◽  
Wto Appellate Body ◽  
Dispute Settlement System

At the centre of the international trading order, under the framework of the World Trade Organization (WTO), lies a dispute-settlement system. This system offers a graduated conflict-resolution mechanism that begins with a consultation process; progresses to adjudication, through a panel system, and ends in an appellate process.1 Under this machinery, in October 1996 India, Malaysia, Pakistan and Thailand (the complainants) requested joint consultations with the United States, regarding the US prohibition on the importation of certain shrimps and shrimp products caught with fishing technology considered by the United States adversely to affect the population of sea turtles—an endangered species under CITES.2 The US prohibition arose from section 609 of Public Law 101–1623 and associated regulations and judicial rulings (hereafter referred to as section 609). In a nutshell the complainants claimed denial of market access to their exports, and the United States justified this on grounds of conservation. However, as a consequence of the failure of the consultations, the WTO Dispute Settlement Body established a panel, around April 1997, to consider a joint complaint against the United States in relation to section 609. Australia, Ecuador, the European Communities, HongKong, China, Mexico and Nigeria joined the complainants as third parties. In May 1998 the panel's report was published, containing a decision in favour of the complainants. In July 1998 the United States appealed to the WTO Appellate Body, and in October 1998 the Appellate Body issued its report.4

scholarly journals United States – Continued Existence and Application of Zeroing Methodology: the end of Zeroing?

2011 ◽  
Vol 10 (1) ◽  
pp. 45-61 ◽  
Author(s):  
THOMAS J. PRUSA ◽  
EDWIN VERMULST
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
The United States ◽  
Appellate Body Report ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The Us ◽  
The Subject ◽  
Continued Use ◽  
New Perspective

AbstractThis is the eighth Appellate Body Report in which some aspect of zeroing was adjudicated. As in the prior cases, the AB again found the US practice inconsistent with several aspects of the Anti-Dumping Agreement. The novelty in this dispute was the EC attempt to broaden the concept of what constitutes an appealable measure. The EC challenged whether a WTO decision regarding zeroing could apply to subsequent proceedings that might modify duty levels and asked the AB to decide whether the United States' continued use of zeroing in the context of a given case was consistent with WTO obligations. The AB stated that in its attempt to bring an effective resolution to the zeroing issue, the EC is entitled to frame the subject of its challenge in such a way as to bring the ongoing use of the zeroing methodology in these cases, under the scrutiny of WTO dispute settlement. The AB then cautiously applied the new perspective to US zeroing practice.

On the Legality of the United States Action of Terminating India’s GSP Status

2020 ◽  
Vol 55 (1) ◽  
pp. 119-129
Author(s):  
R. Rajesh Babu
Keyword(s):  
Developing Countries ◽  
Dispute Settlement ◽  
Developed Countries ◽  
The United States ◽  
Appellate Body ◽  
Generalized System Of Preferences ◽  
Wto Dispute Settlement ◽  
The Us ◽  
Developmental Opportunities ◽  
Enabling Clause

Since the US Presidential Proclamation terminating India status as a Generalized System of Preferences (GSP) beneficiary with effect from 5 June 2019, questions are raised on the WTO legitimacy of such an action. The US measure, which appears to have a punitive element—a move precipitated by lack of reciprocity from India by not providing ‘equitable and reasonable access’ for US products in Indian markets—challenges the fundamentally premise of the GSP schemes. Since the GSP schemes are established to provide economic and developmental opportunities for developing countries, and once established must be administered as per the 1979 General Agreement on Tariffs and Trade Enabling Clause, meaning it must be on a ‘generalised’, ‘non-reciprocal’ and ‘non-discriminatory’ basis, can India raise a legitimate challenge against the US action at the WTO Dispute Settlement Body? Or can the GSP schemes, being voluntary and unilaterally administered, be structured by developed countries as trade policy tools with stringent trade and non-trade conditionalities? The decision of the Appellate Body in European Communities—Tariff Preferences, the contested nature of the Enabling Clause and the heterogeneous nature of developing countries at the WTO makes the interpretation knotty. In this context, this article provides a brief comment on the legal basis of the Enabling Clause in the WTO framework and the legitimacy of the US action of termination of India from the beneficiary status. Keeping aside the legal question, the author is also of the view that time is ripe for India to consider ‘graduating’ itself from such preferential arrangements and engage in binding obligations that are reciprocal and sustainable. JEL Codes: K33, O24

scholarly journals China–GOES (Article 21.5): Time to Clarify the Standard for Price Suppression and Price Depression in AD/CVD Investigations

2017 ◽  
Vol 16 (2) ◽  
pp. 203-226 ◽  
Author(s):  
JULIA QIN ◽  
HYLKE VANDENBUSSCHE
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
Electrical Steel ◽  
The United States ◽  
Economic Modeling ◽  
Objective Standard ◽  
Price Effects ◽  
The Us ◽  
Countervailing Duties

AbstractThis dispute concerns the measures China took to implement the Dispute Settlement Body's rulings inChina–GOES, which had found a number of violations with respect to China's antidumping and countervailing duties imposed on grain oriented flat-rolled electrical steel (GOES) imported from the United States. In this compliance proceeding, the United States claimed that the Redetermination issued by China's Ministry of Commerce (MOFCOM) continued to violate WTO law. At the center of the dispute were MOFCOM's findings that the US imports had the effect of suppressing and/or depressing the prices of domestic like products. While the Panel reached the conclusion that the MOFCOM findings were inconsistent with WTO rules, it did not clarify the criteria for determining such price effects. In this comment, we call for the adoption of a clearer and more objective standard for determining price suppression and price depression in antidumping and countervailing duty investigations, via the tools of economic modeling.

scholarly journals Dictum on Dicta: Obiter Dicta in WTO Disputes

2018 ◽  
Vol 17 (3) ◽  
pp. 509-533 ◽  
Author(s):  
HENRY GAO
Keyword(s):  
Legal System ◽  
Dispute Settlement ◽  
Common Law ◽  
The United States ◽  
Legal Issue ◽  
Recent Attempt ◽  
Stare Decisis ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The Us

AbstractThis paper discusses an important legal issue raised by the United States in its recent attempt to block the reappointment of an Appellate Body member. According to the US, in some of his decisions, the member has made overreaching findings that amount to obiter dicta. As obiter dictum is a unique concept in the Common Law system, the US argument may only stand if the concept may be found in the WTO legal system as well. With a careful analysis of the concept of dicta in Common Law and a close examination of the effects of past panel and Appellate Body decisions in WTO dispute settlement, the paper rejects the US argument by refuting each of the three premises of the US argument, i.e., the WTO legal system based on Common Law; WTO follows stare decisis; and the WTO has rules against dicta. In addition to original contributions on the nature of the WTO dispute settlement system in theory, the article also provides some practical advice on how the controversy may be resolved.

scholarly journals Book Review: Jens Lehne, Crisis at the WTO: Is the Blocking of Appointments to the WTO Appellate Body by the United States Legally Justified?

sui generis ◽  
2020 ◽  
Author(s):  
Charlotte Sieber-Gasser
Keyword(s):  
Dispute Settlement ◽  
The United States ◽  
Settlement System ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The Us ◽  
Legal Arguments ◽  
Wto Appellate Body ◽  
Dispute Settlement System

The US policy of blocking new appointments to the WTO Appellate Body relied on a number of legal arguments against the body’s work and ultimately succeeded in rendering the appellate mechanism of the WTO dispute settlement system inoperable in December 2019. In his book, Jens Lehne carefully analyses the various legal arguments officially brought forward by the US until summer 2019. His analysis is proof of the vulnerability of the WTO: despite equality of WTO members enshrined in the WTO treaties, the fate of the WTO remains largely dependent on the willingness of large economies to comply with a legally binding dispute settlement system.

Precedent in the WTO: Retrospective Reflections for a Prospective Dispute Settlement Mechanism

2020 ◽  
Vol 11 (2) ◽  
pp. 262-277
Author(s):  
Mariana Clara de Andrade
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
The United States ◽  
Dispute Settlement Mechanism ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
Wto Appellate Body ◽  
Legitimacy Crisis ◽  
Settlement Mechanism

Abstract Several factors triggered the legitimacy crisis which paralysed the WTO Appellate Body in December 2019. This article focuses on one of them: the criticism expressed by the United States that the ‘Appellate Body claims its reports are entitled to be treated as precedent’. This work describes the origins of the problem and examines the issue of the precedential value of adopted reports within the WTO dispute settlement. It argues that the problem cannot be addressed through textual attempts to better define the value of precedent, as some have suggested, but can be alleviated through the practice of adjudicators. Moreover, it argues that the criticisms regarding the precedential value of past reports is due to the inherent hierarchy ensuing from the existence of an appeals organ. Therefore, the demise of the Appellate Body may weaken the precedential value of past adopted reports.

China – Countervailing and Anti-Dumping Duties on Grain Oriented Flat-rolled Electrical Steel from the United States, Article 21.5 – US (China–GOES, DS414)

2016 ◽  
Vol 15 (1) ◽  
pp. 165-166
Author(s):  
Geoffrey Carlson
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
Electrical Steel ◽  
The United States ◽  
People’S Republic Of China ◽  
People's Republic Of China ◽  
Republic Of China ◽  
Countervailing Duties

This compliance proceeding under Article 21.5 of the DSU concerned measures taken by China to implement the recommendations and rulings of the Dispute Settlement Body (DSB) in China – GOES. In China – GOES, the DSB found that the imposition by the Ministry of Commerce of the People's Republic of China (MOFCOM) of countervailing and anti-dumping duties on grain-oriented flat-rolled electrical steel (GOES) from the United States violated certain provisions of the Anti-Dumping Agreement and the SCM Agreement. In response, MOFCOM issued a redetermination of the matter, pursuant to which China continued to impose anti-dumping and countervailing duties on imports of GOES from the United States. That redetermination was the focus of this compliance proceeding.

The United States embargo on shrimp imports: legal and economic considerations

1998 ◽  
Vol 3 (2) ◽  
pp. 197-219 ◽  
Author(s):  
TAIMOON STEWART
Keyword(s):  
United States ◽  
Dispute Settlement ◽  
The United States ◽  
Legal Issues ◽  
Current Case ◽  
Wto Dispute Settlement ◽  
The Us ◽  
Shrimp Industry ◽  
Economic Considerations ◽  
Trade Measures

The use of trade measures for environmental purposes has given rise to a series of economic and legal issues. These are explored in the paper through an examination of the United States embargo on imports of shrimp from several countries for environmental reasons, currently being considered by a WTO dispute settlement panel. The paper examines the effect on competitiveness of compliance with the higher standard imposed by the US, the appropriateness of universalizing those standards, and whether the US action is consistent with WTO rules. The major findings are that, in the case of Trinidad, (a) the competitiveness of the affected fishermen was reduced, (b) the US regulation was inappropriate to the conditions which prevailed in the shrimp industry there, and (c) the US action was WTO inconsistent given current interpretation of WTO rules. The paper anticipates that the current case could lead to a review of WTO rules, in favour of the environment.

scholarly journals US – Lamb: United States – Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia: What Should be Required of a Safeguard Investigation?

2003 ◽  
Vol 2 (S1) ◽  
pp. 72-114 ◽  
Author(s):  
Henrik Horn ◽  
Petros C. Mavroidis
Keyword(s):  
United States ◽  
New Zealand ◽  
Dispute Settlement ◽  
The United States ◽  
Safeguard Measures ◽  
Lamb Meat ◽  
Wto Dispute Settlement ◽  
The Us ◽  
Serious Injury ◽  
Gatt 1994

The United States (US) imposed, in July 1999, a safeguard on lamb meat, in the form of tariff rate import quotas, which were to be applied for a period of three years. The measure was based on findings by the US International Trade Commission that increased imports of lamb meat were a substantial cause of threat of serious injury to the US industry producing the like product. Following complaints by New Zealand and Australia that the measure was inconsistent with Articles I, II and XIX of GATT 1994, and several provisions of the Agreement on Safeguards, the World Trade Organization (WTO) Dispute Settlement Body established, in November 1999, a panel to review the consistency of the US measure with the mentioned WTO rules.

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