scholarly journals US‒Carbon Steel (India):Multi-Product Firms and the Cumulation of Products

2016 ◽  
Vol 15 (2) ◽  
pp. 351-373
Author(s):  
ALAN SPEAROT ◽  
DUKGEUN AHN
Keyword(s):  
Carbon Steel ◽  
Burden Of Proof ◽  
Legal Issues ◽  
Appellate Body ◽  
Economic Reality

AbstractOne of the key findings inUS-Carbon Steel (India)deals with the appropriate method to determine material injury when imported products are subject to simultaneous anti-dumping and countervailing duty (CVD) investigations. Along with addressing a number of legal issues concerning CVD investigations, the Appellate Body clarified restrictions on cross-cumulation of injury, essentially prohibiting the current US practice, and implicitly raising the burden of proof for parallel claims of dumping and subsidies. This decision is justified on economic grounds, where cumulation imposes a counterfactual scenario against which marginal damages of dumping and subsidies by each country cannot be properly evaluated. However, what the legal rulings by the Appellate Body did not recognize is the economic reality that many like products produced by the firms alleged to have received subsidies were selectively absent from the investigation, which more generally complicates the assessment of injury in dumping and subsidy cases.

Competition, Not Regulation – or Regulated Competition?

2015 ◽  
Vol 6 (3) ◽  
pp. 405-417
Author(s):  
Alexia Herwig
Keyword(s):  
Imperfect Competition ◽  
Burden Of Proof ◽  
Equal Treatment ◽  
Perfect Competition ◽  
Appellate Body ◽  
Treatment Standard ◽  
Regulatory Purpose ◽  
Definition Of ◽  
Regulated Competition ◽  
Domestic Products

GATT Article III:4 aims at equal treatment in respect of competitive opportunities of imports and competing domestic products by preventing protectionism. A key question is whether regulations with heavier burdens on imported products than on domestic products and a valid regulatory purpose are consistent with Article III:4. Inquiry into regulatory purpose under Article III:4 would allow by-passing Article XX whose list of regulatory objectives is a closed one and which puts the burden of proof on the defending WTO member. In EC-Seal Products, the Appellate Body has rejected any role for the regulatory purpose inquiry under Article III:4. This article shows why a purely empirical definition of likeness and less favourable treatment as disparate impact cannot logically lead to a finding of a violation of Article III:4. It then argues that regulatory purpose continues to play a role under Article III:4 because of the centrality of the notion of competition. It proposes to frame that competition as perfect competition. It shows that the adoption of perfect competition as the evaluative benchmark for all of Article III:4 makes better legal sense than starting from imperfect competition for the likeness analysis and perfect competition for the less favourable treatment standard, as is proposed in the literature. It also shows that even in case where imperfect competition is used as the sole benchmark for both parts of Article III:4, an assessment of how regulation interacts with competition continues to play some role.

Onus and Quantum of Proof for Breaching the Standard of Procedure during the Movement Control Order

2021 ◽  
Vol SI ◽  
pp. 37-43
Author(s):  
Mohamad Ismail Mohamad Yunus
Keyword(s):  
Federal Government ◽  
Research Methodology ◽  
Burden Of Proof ◽  
Movement Control ◽  
Legal Issues ◽  
Trial Court ◽  
Social Distancing ◽  
Standard Of Proof ◽  
The Social ◽  
Control Order

The objective of this research paper is to highlight on the issues relating to the onus and quantum of proof for breaching the standard of procedure (SOP) during the movement control order (MCO) due to Pandemic Covid 19 in Malaysia. In tackling the issues, the research methodology applied by the author is by analysing and evaluating some decided cases, studying the substantive laws, regulations, and procedure in enforcing movement control order. The contemporary legal issues in this article are on whom the onus (burden) of proof lies and what is the quantum (standard) of proof required for the offence of breaching social distancing during the movement control order, be it conditional, restricted or recovery. The standard of procedure always changing based on the types of movement control order made by the Federal Government. In the New Straits Times dated 4 April 2021, it was reported that 17 publics were compounded for not practicing social distancing. Many questions raise as what is the real meaning of social distancing? In which type of offence, the social distancing offence lies on? What are the elements that will constitute the offence? As to the remedies, the author has submitted the nature of the offence for breaching the SOP during MCO. The expectation result of this paper is to give a clear picture as to the matter of standard of proof and burden of proof that to be considered by the trial court in deciding the issue of breaching SOP. The significance of this paper is to point out some contemporary identical legal issues relating to SOP during MCO. The issues will be highlighted in this article.

scholarly journals Thailand–Cigarettes (Philippines): A More Serious Role for the ‘Less Favourable Treatment’ Standard of Article III:4

2013 ◽  
Vol 12 (2) ◽  
pp. 163-193 ◽  
Author(s):  
WILLIAM J. DAVEY ◽  
KEITH E. MASKUS
Keyword(s):  
Market Analysis ◽  
Legal Issues ◽  
External Cost ◽  
National Treatment ◽  
Appellate Body Report ◽  
Appellate Body ◽  
Treatment Standard ◽  
Treatment Principle ◽  
Policy Impacts

AbstractThis paper analyzes a number of economic and legal issues raised by the Appellate Body Report in the Thai–Cigarettes case. The paper suggests two improvements that could be made to Panel procedures; supports the Appellate Body's interpretation of Article XX(d) in the present case, which seems to discard an earlier mistaken approach to Article XX; and examines, in some detail, whether the Appellate Body's application of the ‘less favourable treatment’ component of GATT Article III:4 in this and other cases is consistent with its jurisprudence under GATT Article III:2 and TBT Article 2.1. From an economics perspective, the case is straightforward on its face. However, the Appellate Body's rigorous application of the ‘less favourable treatment’ principle might not survive a fuller market analysis in terms of policy impacts on conditions of competition. Further, while we agree with the rejection of Thailand's Article XX claim, we raise the question of whether a strict national-treatment rule may be an unwarranted constraint on policy where there is a clear trade-related external cost to address.

scholarly journals Appellate Body Report, India – Additional and Extra-Additional Duties on Imports from the United States (WT/DS360/AB/R, adopted on 17 November 2008)

2010 ◽  
Vol 9 (1) ◽  
pp. 239-263 ◽  
Author(s):  
PAOLA CONCONI ◽  
Jan Wouters
Keyword(s):  
United States ◽  
Burden Of Proof ◽  
The United States ◽  
Central Point ◽  
National Treatment ◽  
Appellate Body Report ◽  
Appellate Body ◽  
Border Tax Adjustments ◽  
National Governments

AbstractThis paper critically reviews the main findings of the Appellate Body in the case India – Additional and Extra-Additional Duties on Imports from the United States (India–Additional Import Duties). This ruling sheds light on the interplay between two core provisions of the GATT, namely Article II GATT (Schedules of Concessions) and III GATT (National Treatment on Internal Taxation and Regulation). Linked to this demarcation, the question on the allocation of the burden of proof was a central point of contention in this dispute. The ruling also establishes the principle that WTO Members are allowed to use border tax adjustments, as long as the tax imposed on imports does not exceed the domestic tax. We argue that this principle can help to reconcile the objectives of the WTO with those of national governments.

scholarly journals United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products From Japan (AB-2003-5, WT/DS244/AB/R): A Legal and Economic Analysis of the Appellate Body Ruling

2006 ◽  
Vol 5 (S1) ◽  
pp. 31-51
Author(s):  
Robert Howse ◽  
Robert W. Staiger
Keyword(s):  
United States ◽  
Carbon Steel ◽  
Economic Analysis ◽  
The United States ◽  
The Sun ◽  
International Trade Commission ◽  
Corrosion Resistant ◽  
Domestic Trade ◽  
Appellate Body

The WTO Anti-Dumping (AD) Agreement requires that anti-dumping duties be reviewed at least every five years (Art. 11.3); pursuant to this requirement, domestic trade authorities in the United States are charged with the task of making a determination as to whether, after five years, revoking the duties would be likely to lead to continuation or recurrence of dumping (Commerce) and of material injury (US International Trade Commission, or USITC). This is called a Sunset Review; a negative determination of likelihood, either with respect to dumping or injury, will result in the duties expiring, the “sun” setting, as it were.

Just Between You and Me: Mutual Recognition Agreements and the Most-Favoured Nation Principle

2015 ◽  
Vol 15 (1) ◽  
pp. 3-23 ◽  
Author(s):  
JOSHUA A. ZELL
Keyword(s):  
Mutual Recognition ◽  
Legal Issues ◽  
Conformity Assessment ◽  
Broad Application ◽  
Appellate Body ◽  
Wto Appellate Body ◽  
Assessment Procedures ◽  
Gatt 1994 ◽  
Technical Regulations ◽  
The Way

AbstractMutual recognition agreements present unique legal issues in the application of the most-favoured nation obligations flowing from Article I:1 of GATT 1994 and Articles 2.1 and 5.1.1 of the TBT Agreement. Mutual recognition agreements come in two types – those recognizing the equivalence of technical regulations, and those recognizing the equivalence of conformity assessment procedures. Both carry potential trade advantages for state parties, but both also carry the potential to create unintended trade consequences for state parties if combined with a broad application of the most-favoured nation principle. The WTO Appellate Body has touched on a number of the relevant legal issues in a series of reports culminating in the May 2014 EC–Seals decision, but many questions remain. This article seeks to provide states and practitioners with a guide to the issues and the way in which the Appellate Body would most likely address the remaining questions, based on the existing jurisprudence.

Standard of Review and Burden of Proof in WTO Jurisprudence

2012 ◽  
pp. 795-811
Author(s):  
Srikanth Hariharan
Keyword(s):  
Expert Testimony ◽  
De Novo ◽  
Scientific Evidence ◽  
Burden Of Proof ◽  
Case Law ◽  
Trade Disputes ◽  
Appellate Body ◽  
The Law ◽  
Insight Into

This paper analyses the law on the standard of review and burden of proof in the trade disputes before the WTO Panel and Appellate Body Proceedings. The approach adopts a case-law analysis for a practical insight into the various issues that concern here. The paper structures its arguments on the de novo and the total deference approach and then proceeds to analyze the standard of review for a trade remedy case, expert testimony and in cases involving evaluation of scientific evidence. Further, the paper analyses the burden of proof mechanism employed in the adjudicatory proceedings.

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