 |
 |
|
 |
| 您正在阅读的论文题目是：Assessing the Fair Value (FV) of the Products Imported From China in the U.S. Antidumping (AD) Cases |
| 本文作者：冷帅 |
-Master Thesis-
Assessing the Fair Value (FV) of the Products Imported From China in the U.S. Antidumping (AD) Cases
Shuai Leng
Chinese Lawyer
LL.M Candidate-2007
E-Mail: shleng@iupui.edu
Telephone: 86-13869197728
Supervisors: Professor Swadesh Kalsi, Partner, Krieg DeVault LLP
Professor Dr. Frank Emmert, LL.M
Indiana University School of Law-Indianapolis
To the people I love and love me.
Table of Contents
Preface----------------------------------------------------------------------------------------- 1
I. Introduction to U.S. AD Law--------------------------------------------------------- 3
1. U.S. AD Regime-------------------------------------------------------------------- 3
a) Involved Institutions---------------------------------------------------------- 3
b) Substantive law---------------------------------------------------------------- 3
c) Procedural law----------------------------------------------------------------- 4
i. Initial Investigations and Determinations of AD Cases---------------- 5
ii. Administrative review------------------------------------------------------ 6
iii. Revocation of AD Duties and the Sunset Review--------------------- 6
iv. Judicial Review of AD cases------------------------------------------------ 8
d) Material Injury Analysis--------------------------------------------------------- 8
2. The U.S. AD law as protectionist device------------------------------------------ 10
II. Assessing standard of both the U.S. and the WTO------------------------------- 11
1. Assessing Criteria of the U.S. AD Law------------------------------------------- 11
a) Market Economy Methodology---------------------------------------------- 11
b)Non-Market Economy Methodology--------------------------------------- 12
c) Unfairness of the U.S. Criteria toward Chinese products----------------- 15
2. Assessing Criteria of the WTO----------------------------------------------------- 19
a) The WTO Criteria and China’s Accession Protocol----------------------- 19
b) Comparison between the U.S. Criteria and the WTO Criteria------------ 22
i. The Country-Wide Duty Rate is not Pursuant to the WTO agreements-- 22
ii. U.S. Market Oriented Industry (MOI) Test is not consistent with WTO-23
iii. Other Issues Not Specified by the WTO Agreements------------------ 24
III. Specific Factors Involved in Calculating Values of Chinese Products--------- 25
1. Non-Market Economy---------------------------------------------------------------- 25
a) Impact of NME status---------------------------------------------------------- 25
b) Whether China is Still a NME Country---------------------------------------- 27
c) Significant Changes Due to Transition from NME Methodology to ME Methodology------------------------------------------------------------------------------- 27
2. Surrogate Country Information----------------------------------------------------- 31
3. Exchange rate------------------------------------------------------------------------- 34
4. Investigation Questionnaires-------------------------------------------------------- 35
IV. Assessing Standard of European Union (EU)-------------------------------------- 37
1. Former Rules--------------------------------------------------------------------------- 38
2. Current rules---------------------------------------------------------------------------- 41
3. Comparison of criteria between E.U. and U.S.----------------------------------- 42
V. Analysis of Recent Cases--------------------------------------------------------------- 42
1. Representativeness of Country-wide Prices-------------------------------------- 43
2. Domestic Price over Import Price preference------------------------------------ 44
3. Context of Data Compilation------------------------------------------------------- 45
4. Contemporaneity and Substantial Similarity------------------------------------- 45
5. Quantity of Imports------------------------------------------------------------------ 46
6. Similarity of Products--------------------------------------------------------------- 47
7. Inconsistent Data-------------------------------------------------------------------- 47
8. Anomalies in Data------------------------------------------------------------------ 48
9. Producer’s Cooperation------------------------------------------------------------ 49
10. Suggestion for Chinese Companies---------------------------------------------- 50
VI. Conclusion------------------------------------------------------------------------------- 51
Preface
Through its transition from a centrally planned economy towards a market oriented economy, China’s rate of economic growth over the past twenty years has yielded increases in wealth,contributing to almost one-third of global GDP growth.The volume of trade conducted between China and other countries between 1999 and 2000 rose by 31.5%. China’s total exports grew eightfold—to over $380 billion—between 1999 and 2003; and its exports in the electronics industry accounted for 30% of Asia’s total exports in 2002.In 2002, Imports from China totaled nearly $147 billion, beating out Japan and Mexico as the United States’ second largest source of importsand in 2004, China together with America accounted for close to half of global growth.
When imports are sold at a lower price in the U.S. than comparable domestic goods, the domestic industry loses sales and market share, resulting in a lose in profit and potentially exiting the market.Since 2000, the U.S. has lost over 2.7 million manufacturing jobs due to domestic inability to compete with Chinese companies.At a result, the U.S. government aids the domestic industry in competing with the cheaper imports by imposing a duty on the cheaper imports.The International Trade Administration of the Department of Commerce (the ITA) may want to impose a high duty on imports to ensure that the domestic industry can compete and to maintain a check on “Chinese hegemonic aspirations.”The growing trade deficit between China and the U.S. has increased the call for protection; Congress had “considered proposals for across-the-board tariffs on China.”However, China may not necessarily be the main cause of U.S. job loss because the “biggest job losses have been in industries in which America’s imports from China are small.”
To June 2003, ninety-seven U.S. AD cases against Chinese companies, which is the biggest number compared to other countries and takes 18.4% of all global AD cases towards Chinese products.From 1980 through 2004, the ITA processed 1,046 AD petitions and issued 455 AD duty orders.One hundred and ten of those petitions (11%) and 68 of those orders (15%) focused on China—both are the largest number against any U.S. trade partner.
U.S. law incorporates the definition of “dumping,” substantially as it is defined in the Article VI of the General Agreement on Tariffs and Trade 1947, as Amended (GATT) and the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (WTO AD Agreement).Under U.S. law, a product is dumped if it is sold in the United States at Less Than Fair Value (LTFV).This term is the same as the WTO agreements’ concept of “normal value” (NV).NV is defined in the section 773 of the Tariff Act 1930, 19 U.S.C. 1677b.
Determination of dumping depends on three elements: fair value, export price, and dumping margin. The last one is the result of the comparison of the former two.The calculation of FV is more complex than calculation of export price.Fair value is vital in an AD case because it is used to decide the dumping margin or even whether the importation is dumping. It is taken into accounts by authorities in every stage of an AD case.
Part I of this article gives some background of U.S. AD law. Part II examines the assessing criteria used by U.S. authorities to decide the FV of products imported from the People’s Republic of China (China), and makes a comparison between these criteria and the WTO AD Agreement. Part III discusses some specific factors involved in calculating the FV of the imports from China. Part IV makes a reference to the European Union standards on assessing FV of the imports from China. Part V analyzes recent cases against Chinese products. Part VI concludes that the U.S. should change the law corresponding to the changes occurring in the China’s economy and limit the discretion of administration authorities.
VII. Introduction to U.S. AD Law
1. U.S. AD Regime
a) Involved Institutions
The two main institutions in charge of U.S. AD cases are the International Trade Administration of the U.S. Department of Commerce (typically referred to as the “ITA” or “Commerce” or “DOC”), which determines whether dumping has occurred and the International Trade Commission (typically referred to as the “ITC” or the “Commission”), which determines whether U.S. industry has demonstrated sufficient injury.”
b) Substantive law
The first specific American AD statute is known as the AD Act of 1916, which is still in force.Most binding laws are codified into the Tariff Act of 1930, which has been amended many times. An overview of the U.S. AD law is as follows:
Because of the onerous predatory intent requirement, there is little judicial interpretation of the law. The law has never been reviewed by the U.S. Supreme Court, and the U.S. Department of Justice has never successfully prosecuted a criminal case under the Act. All court decisions addressing its meaning have involved civil complaints, but not criminal prosecutions. Furthermore, no civil suit has resulted in recovery, although one case was settled. This parallels experience under predatory pricing provisions in domestic antitrust laws, where convictions or successful civil suits are rare. The Congress enacted the AD Act of 1921 to provide complainants with a greater scope for relief than the 1916 Act. The current American legislation is embodied in Title VII of the Tariff Act of 1930.
c) Procedural law
There are three distinct stages in the U.S. AD cases: first, the initial investigation, which determines whether or not an AD order will be issued; second, the annual review procedure, in which the actual amount of AD duties to be collected is established; third, the revocation procedures, by which cases are finally terminated. In addition, there is judicial review of all final determinations in these three stages.
i. Initial Investigations and Determinations of AD Cases
An AD proceeding is typically commenced by determination of ITA or the filing of a petition in respect to a specific product on behalf of the U.S. domestic industry producing that product.Thereafter, the statute establishes strict deadlines for completion by the ITA and ITC of the various phases of the initial investigation.The order of their determinations after initiation is as follows: first, the ITC makes a preliminary injury determination; then, the ITA makes both its preliminary and final dumping determination; and finally, the ITC makes its final injury determination.“The time limits established by Congress for these determinations are as follows:
Action Days after Petition Filed
the ITA decision to initiate investigation 20 days
ITC preliminary injury determination 45 days
the ITA preliminary dumping determination 160 days
the ITA final dumping determination 235 days
ITC final injury determination 280 days
* These deadlines are subject to modification in certain cases, which means that AD cases usually take longer than 280 day to complete.”
The step where Chinese exporters may participate starts at the third stage, namely the ITA preliminary dumping determination because the first stage is “largely pro forma” and “does not permit arguments against initiation to be made by respondents.”At the second stage, the ITC collects information only from the U.S. industry and others through questionnaires and uses other information available to it about the industry.This questionnaire is different from the questionnaire used to collect information from Chinese exporters.
The ITA sends out questionnaires to the involved parties in the third stage, such as exporters, importers, and other parties. On the basis of the questionnaire responses, the ITA determines on a preliminary basis whether the foreign goods are being sold in the U.S. at LTFV.Between the ITA’s preliminary and final determinations, it verifies the questionnaire responses, typically by sending the ITA personnel to conduct an on-site examination of the books and records of the respondent.In addition, both the respondent and the petitioner typically file comments in respect of the preliminary determination.In its final determination, the ITA responds to these comments and revises its preliminary determination in light of those comments that it accepts and whatever additional relevant information has come to its attention.
Assuming the ITA makes an affirmative preliminary dumping determination, the ITC commences a further investigation into the injury issue.In the final ITC investigation, a hearing is scheduled, at which the parties can present witnesses and legal arguments.If the ITC makes an affirmative injury finding, an AD order is issued under the
19 U.S.C.§1673e (a).
ii. Administrative review
19 U.S.C. 1675 provides with the rules of administrative review of determinations by the ITA and the ITC. At the request of an interested party, the ITA will conduct a review each year to establish the exact dumping margin, and the importer either receives a refund plus interest if the amount deposited was too high or pays an additional sum plus interest if it was too low.In approximately 50-60% of the cases, such a request is made.An administrative review may also be requested by a new foreign exporter who did not export the merchandise during the period of investigation and is not affiliated with any exporter or producer who exported the subject merchandise to the U.S. during that period ; or on grounds of changed circumstance.
iii. Revocation of AD Duties and the Sunset Review
AD orders remain in effect until they are revoked.19 U.S.C. 1675(d) provides with the rules of revocation of AD duty order or finding and termination of suspended investigation. The ITA may revoke an AD duty order or finding, or terminate a suspended investigation, after review under subsection 19 U.S.C. 1675 (a) and 19 U.S.C. 1675 (b).
However, the reviews under 19 U.S.C 1675 (d) (1) are rarely conducted and only a handful of cases have succeeded.“[R]evocation is relatively rare unless there is no opposition from U.S. industry.”Only about 7.5% of the cases can be revoked under this optional revocation clause in practice.
Subsection 19 U.S.C. 1675(d) (2) gives a provision, under which the ITA shall revoke an AD duty order or finding, or terminate a suspended investigation. There are three conditions: first, the review is conducted under the subsection (c), which is so-called sunset review clause; second, the ITA determines that dumping would not likely to continue or recur; and third, the ITC determines that material injury would not be likely to continue or recur as described in section 1675a (a).
The sunset review procedure was added to U.S. statute after the Uruguay Round Negotiation which ended in 1994. Consistent with the WTO agreements, the Uruguay Round Agreements Act (URAA) implements the WTO sunset review provisions in U.S. domestic law.More detailed rules and regulations on the sunset review of U.S. law are provided in 19 U.S.C 1675 (c), 19 U.S.C. 1675a and 19 C.F.R 351.218.
The sunset review clause was expected to decrease AD measures adopted by WTO members.Article 11.3 of WTO AD Agreement provides that “[A]ny definitive anti dumping duty shall be terminated on a date not later than five years from its imposition, unless the authorities determine … that the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury.”This rule did not function in the way it was intended in the U.S., for example, according to the ITC, from July 1998 to March 2003, 191 out of 360 cases (54%) were extended for another five years.
iv. Judicial Review of AD cases
U.S. AD law provides for appeals from final determinations of the ITA or ITC to the Court of International Trade (CIT) in New York City.But the standards of proof are different from one stage to the other. Decisions by the ITA not to initiate an investigation and negative preliminary decisions by the ITC are reviewed to see if they are “arbitrary, capricious, or an abuse of discretion, or otherwise not in accordance with law,” while final determinations by the ITA and the ITC are reviewed to see if they are “unsupported by substantial evidence on the record, or otherwise not in accordance with law.”The judgments of the CIT are appealable to the Court of Appeals for the Federal Circuit in Washington, D.C., and to the Supreme Court on writ of certiorari.The judicial review in the CIT is a time-costly process, usually more than a year, and rarely causes significant change in result.Therefore, it is not good to solve the problem relying on the judicial review; instead, the foreign company shall provide information and comments in the initial investigations. Otherwise, authorities may make their decision based on the best available information to them, which will be the “substantial evidence” in the judicial reviews.
d) Material Injury Analysis
There is no precise definition of “material injury” in the Uruguay Round Agreement, but the Agreement directs authorities to examine a number of specific factors, such as changes in output, prices, employment or profitability in the domestic industry.In the U.S., most cases focus on actual or threatened material injury, which is defined as harm that is not “inconsequential, immaterial or unimportant.”The injury test requires an analysis of domestic industry conditions, such as the volume of dumped imports, their effect on domestic prices of like products and their impact on domestic producers of like products.In its evaluation of the volume of imports, the ITC considers both the absolute level of imports at the time of the proceeding and whether the level is increasing either relatively or absolutely.With respect to the effect on prices, the ITC considers any evidence of undercutting and determines whether there is any indication that the effect of the dumping has been to depress domestic prices.
I do not expand the material injury issue in this article. One reason is that determination of material injury is under the authority of ITC rather than ITA, while determination of FV is a major responsibility of the ITA. Determination of FV and determination of material injury are two relatively separate issues designed by the statute. Furthermore, chances to avoid AD liability through the injury analysis are generally slim. Firstly, the injury analysis involves the examination of all relevant factors as abovementioned. Secondly, the current U.S. legislation apparently favors the American complainants in this regard, as long as they claim foreign exportation “causing or threatening material injury to American industry.” Third, the burden of proof based on this analysis can often be overwhelming and prevent the foreigners from making a successful argument of innocence.
However, I want to declare that an AD case shall not exist if there is no material injury. An AD case only exists if imports occur at LTFV and are causing or threatening material injury to American industry.Unless it is evident that a dumped product has caused or threatened by “material injury” to certain industries of the U.S., no AD measure will be taken against this product.
Additionally, one real reason for U.S. domestic producers to claim for AD remedy may be that U.S. products can not compete on an equal footing with the foreign imports. This provides the investigated Chinese companies a solid legal ground upon which there have been quite a few Chinese parties released from the specter of adverse findings and avoided the AD duties.Low price import may not be a substantial reason for the injury of a domestic industry.Other causes can be derived to the design of a product, technology research and development, and so forth.
2. The U.S. AD law as protectionist device
The U.S. AD rules are traditionally viewed as protectionist measures.Before enacting the WTO AD agreement, U.S. law request “injury” rather than “material injury” for domestic industry.
Protectionist policies adopted towards China due to the fear of China becoming the next “superpower” will subject U.S. AD policies to more criticism and less credibility within trade relations.As a matter of fact, the true reason may be with respect to the lower productivity or higher cost of domestic producers. The AD law is abused to punish foreign firms rather than protect domestic industry from the effects of foreign companies dumping their products.“While the case against protectionism is strong, political leaders continue to advocate the policies, protecting only one special interest, even though these policies have failed in the past.”
One of the reasons protectionism succeeds is that special interests, such as auto manufacturers, steel companies, the textile industry and so forth, have much to gain by enlisting the aid of the government to protect them from foreign competition. … On the other hand, the large majority of the population comprised of unorganized consumers has little to lose by any particular protectionist legislation. They may not even know that the measure is costing their money in the form of higher prices. … The actual net effect of protectionism is reduction in the total number of jobs, inefficient government subsidization, slowed economic growth and standard of living, reduction in entrepreneurial initiative, lower product quality, and loss of individual rights since consumers and producers – buyers and sellers – are less free to enter into contracts. … Costs are also involved in administering the various protectionist schemes, which must be paid by taxpayers, consumers, and those whose livelihood depends on importing products.
VIII. Assessing standard of both the U.S. and the WTO
10. Assessing Criteria of the U.S. AD Law
First of all, the Tariff Act of 1930 divides exporting countries into market economy countries (ME) and non-market economy countries (NME). The calculation of the FV of a product depends on the categorization of the country from which the product is exported.
a) Market Economy Methodology
For a product originating from a market economy, the ITA employs a standard methodology for determining a product’s FV.The FV is equal to the price at which the product is “first sold (or, in the absence of a sale, offered for sale) for consumption in the exporting country (firm’s domestic market),” after accounting for differences in sales conditions and merchandise characteristics.If the product “is not sold (or offered for sale) for consumption in the exporting country or the “aggregate quantity” of the product sold in the exporting country is less than five percent of the aggregate quantity (or value) of the subject merchandise sold in the U.S. or for export to the U.S., the FV is decided by the exporting price to the third country or a constructed price.
When the ITA decides to construct a price for the foreign imports, the values must be calculated as accurately as possible to assess an AD duty.Accuracy is necessary because the “duty is not intended to punish the foreign firm; rather, it is intended to deter the foreign firm from continuing its dumping practices.”
b)Non-Market Economy Methodology
However, for the NME countries, the process of calculating the FV is more difficult.
The methodology that the ITA employs in NME cases differs from its usual approach, namely ME methodology, in two key ways.First, rather than depend entirely on information from the exporting country itself to establish a product’s FV, the ITA uses price information from surrogate countries to construct these values.The rationale is that the price at which the product is sold is not the product’s value because the resources used in the production are not allocated according to the market concept of supply and demand, but rather by some other criteria set or intervened by the government.While the FV of goods from a market economy is the price at which the product is sold in the exporting country,the value of the goods from a NME country is on the basis of the surrogate country’s value of the factors of production utilized in producing the merchandise and to which shall be added an amount for general expenses and profit plus the cost of containers, covering, and other expenses.
Second, rather than consider all companies eligible for individually determined duty rates, the ITA requires companies from NME counties to meet certain criteria to be considered eligible for such rates.As shown in figure 1, the ITA usually employs different approaches to calculate duty rates for companies which do and do not pass the separate rates test.If they pass the test, the companies are entitled to individual rates; otherwise, they are subject to the country-wide duty rate. The ITA’s methodology for calculating AD duties on NME limits eligibility for individual rates to the companies that show their export activities are not subject to government control because of implication of surrogate country information.
To pass the separate rates test, the NME companies must meet two criteria: they must demonstrate that their export activities are free from government control both in law and fact.The companies under investigation shall submit the information regarding (1) whether there are restrictive stipulations associated with an individual exporter’s business and export license, and (2) Any legislative enactments decentralizing control of companies, and (3) any other formal measures decentralizing government control of companies, and (4) whether export prices are set by or subject to approval by the government, and (5) whether companies has authority to negotiate and sign contracts, and (6) whether the company has authority in selecting its management, and (7) whether the company retains the proceeds of its export sales and makes independent decisions regarding deposition of profits or financing of losses.
Furthermore, “the valuation of the factors of production shall be based on the best available information regarding the values of such factors in a market economy country or countries considered to be appropriate by the administering authority.”
Therefore, the FV of imported goods from a NME country is decided by the importing U.S. administering authority, namely the ITA, in a huge discretion rather than foreign producers and products themselves.The FV is not based on the home market price of production factors, but on the market values of such factors within one or several (in case of constructed price) surrogate market economy countries;unless the “producer’s cost reflect the values that would prevail if such prices were determined by market forces.”
Any determination that a foreign country is a NME country shall remain in effect until revoked by the administering authority; and the administering authority may make a determination with respect to any foreign country at any time. 19 U.S.C §1677 (18) (C) (i) & (ii). The issue whether China is stills a NME country will be discussed below in the next part.
d) Unfairness of the U.S. Criteria toward Chinese products
Even though the provisions of U.S. AD law towards NME and China has been changed a lot , many unfairnesses still exist.
The U.S. AD law is left open to criticism not only due to the protectionist policies it can foster, but also because of its unpredictability and lack of accuracy.Although it is not feasible to eliminate NME methodology in a short period , treating all Chinese companies as NME enterprises by default is unfair. Many Chinese companies are being operated under market economy conditions in various industries after years of market economy reform in China.
The requirements for the initial information to make a AD petition are lenient in order not to place undue burden on the party bringing the action,usually an interested domestic party on behalf of the U.S. industry injured by importation of the foreign goods.On the other hand, the ITA can demand unlimited quantities of documents from the accused companies with a short turnaround time and impose heavy penalties for failure to comply.
If a party cannot provide the information that the ITA requested in a timely manner and the required form, or if the party refuses to do so, then the ITA may use “other available information.”The ITA can in such instances also rely on adverse facts—date provided by the petitioners—which may have been manipulated by the petitioners.
Furthermore, the ITA does not have to rely on date and information submitted by the foreign producer, but can move to information that it determines more appropriately represents the company’s costs.By reason that it is supplied by interested parties, the information is subject to various inaccuracies.The ITA has relied on annual reports in determining costs of production for market exporters where other information received was unclear.However, “‘annual reports issued by companies are crated [by company executives] to inform investors of their company’s financial position,’ which will usually be portrayed in a positive light.”
The ITA’s discretion in choosing its date is limited by the statute’s ultimate goal “to construct the product’s normal value as it would have been if the NME country were a market economy country”by using the “best available information.”However, the statute does not define the best available information.The undefined discretion results not only in a lack of predictability in the information chosen, but in a lack of in accuracy in the final dumping margin.“This discretion, permitting [the ITA] to move further and further away from the actual values, leads to inaccurate dumping margins contravening the statute’s intention of calculating the dumping margins as accurately as possible.” Specific examples will be analyzed below in Part V.
The outcome of an AD investigation on FV is also unpredictable because a NME country has no advance knowledge of which surrogate will be used to determine its prices.Furthermore, the ITA has insisted that it can only decide on a case-by-case basis which countries will be considered to have an economy that is state controlled for purposes of certain industries, and which surrogate values will be accepted or rejected.A producer cannot “know before an export is made whether the question of FV will be determined on the basis of the exporting nation’s home market price or data from an as yet unidentified surrogate.”Thus, the producer in China would have no means of finding out at the time of its export that it should, in effect, have been pricing as producer in the surrogate country which was chosen in the end.
Moreover, the ITA can even use a combination of sources and surrogates to determine FV of goods from NME country.This approach not only disregards the comparative advantage of exporting country, but results in producer and exporter’s inability to predict the data which the ITA will accept or reject for value its factors of production, and even to plan ahead to set its prices to assure compliance with the AD law.
Furthermore, where unnaturally high duties are imposed on goods from NME countries, the manufacturer’s ability to export their products into the U.S. is decreased.On the other hand, “[r]educing the access of NME in transition manufacturers to the United States market will harm the process of market reform, because successful implementation of many of the market reforms requires economy in transition countries to export products...”
In addition to the inaccurate margins, unpredictability and decreased cooperation in international norms, AD calculations toward NMEs have also been criticized as “bureaucrat’s Nirvana,” often occurring “as a result of American bureaucrat’s manipulation of numbers, rather than actual foreign business practices.”
The U.S. criteria contrast to the basic economic doctrines. “[N]o rational, unsubsidized company would undertake the risk of pursuing predatory pricing in a foreign market,” because the company would not have enough time to recoup its losses through monopoly power.By the time a monopoly is acquired, another firm will enter the market where there is a profit to be make by underpricing the company maintaining a monopoly in the market.
There are three types of dumping which are particularly damaging: one, state trade dumping from economies whose main aim may not be cost efficiency but to earn hard currency at any price. Two, cyclical dumping occurs in industries subject to periodic excess supply and capacity in which there is an incentive to export during the period of shrinking domestic demand to dump the excess production at prices below full cost, thus exporting unemployment. Three, strategic dumping aimed at achieving a strong position on important export markets through an aggressive export strategy.The second strategy occurs in the industries with a dark perspective, like some sunset industries; while the third strategy usually is used in the industries with a bright perspective, like new and high technology industry.
It should be decided whether the exportation of Chinese products falls into one of the strategies. At present, most imports from China can not fall down into either of three categories.
AD measures can be used as a national robbery tool after U.S. enacting the Byrd Amendment, because U.S. domestic producers do nothing but get the money from the government collected by imposing AD duties. Chinese made a lot of efforts but gain very little or even sustains losses in business.
11. Assessing Criteria of the WTO
a) The WTO Criteria and China’s Accession Protocol
Article VI of the GATT says that “[t]he contracting parties recognize that dumping, by which products of one country are introduced into the commerce of another country at less than the normal value of the products, is to be condemned if it causes or threatens material injury to an established industry in the territory of a contracting party or materially retards the establishment of a domestic industry,” which is the basic definition of dumping under the GATT. The provision also gives guidance to decide fair value.
[F]or the purposes of this Article, a product is to be considered as being introduced into the commerce of an importing country at less than its normal value, if the price of the product exported from one country to another (a) is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country, or, (b) in the absence of such domestic price, is less than either (i) the highest comparable price for the like product for export to any third country in the ordinary course of trade, or (ii) the cost of production of the product in the country of origin plus a reasonable addition for selling cost and profit.
Therefore, the FV normally equals to the “comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country.” Although the AD Agreement does not provide a definition for the term “ordinary course of trade,” it is normally be considered that “prices between related parties that do not reflect market (arm’s length) conditions do not meet this standard,”such as productions under the safeguard or subsidy.
In order to assess whether domestic prices are at market condition, some investigation authorities compare them to domestic prices of independent market-conditional countries in the term of averages; if the difference between the two sets of average prices is significant, domestic prices to related parties may be considered as not reflective of market conditions and therefore outside the ordinary course of trade.
Apart from reason of particular market condition, such as NME, domestic price of like products in the exporting country can be disregarded for other two reasons. One is that no sales of the like product in the ordinary course of trade in the domestic market of the exporting country; the other is the low volume of the sales in the domestic market of the exporting country, namely the domestic sales are less than 5% of the sales of product under consideration to the importing country.
If there is no domestic price in the exporting country, FV can be measured by the highest comparable price for the like product for export from exporting country to any third country in the ordinary course of trade, including importing country, provided that this price is representative; or constructed by “the cost of production of the product in the country of origin plus a reasonable addition for selling cost and profit.”
Furthermore, Ad Article VI of the GATT says that “in the case of imports from a country which has a complete or substantially complete monopoly of its trade and where all domestic prices are fixed by the State, special difficulties may exist in determining price comparability for the purposes of paragraph 1 [Paragraph 1 of Article VI of GATT 1947, as Amended], and in such cases importing contracting parties may find it necessary to take into account the possibility that a strict comparison with domestic prices in such a country many not always be appropriate.”
Besides above doctrines, Article 2 of the WTO AD Agreement specifies the rules to calculate the exported price (EP) and NV, and to adjust EP and NV. However, these rules are all based on market economy condition. If a product is regarded as imported from a NME country or industry, these rules can not be applied. In the Article 15 of the WTO AD Agreement regarding to the developing country members, the provision only simply states that “[p]ossibilities of constructive remedies provided for by this Agreement shall be explored before applying anti-dumping duties where they would affect the essential interests of developing country Members.”Thus, no specific binding rule is given to calculate the FV of imported product from a transitional developing country, like China, in both the GATT and the WTO AD Agreement.
In the Article 15 of the Protocol on the Accession of the People’s Republic of China (the Protocol), some provisions are concerning the determination of the price comparability in AD investigation. Article 15 (a) says that,
[I]n determining price comparability under Article VI of the GATT 1994 and the Anti Dumping Agreement, the importing WTO Member shall use either Chinese prices or costs for the industry under investigation or a methodology that is not based on a strict comparison with domestic prices or costs in China based on the following rules: (i) [i]f the producers under investigation can clearly show that market economy conditions prevail in the industry producing the like product with regard to the manufacture, production and sale of that product, the importing WTO Member shall use Chinese prices or costs for the industry under investigation in determining price comparability; (ii) [t]he importing WTO Member may use a methodology that is not based on a strict comparison with domestic prices or costs in China if the producers under investigation cannot clearly show that market economy conditions prevail in the industry producing the like product with regard to manufacture, production and sale of that product.
But no definition and criterion of market economy are described in the Protocol; it is left to be regulated by national law of importing country Members. Once China has established, under the national law of the importing WTO Member, that it is a market economy, the provisions of 15 (a) shall be terminated provided that the importing member's national law contains market economy criteria as of the date of accession.In any event, the provisions of 15 (a) (ii) shall expire 15 years after the date of accession, namely in 2016.In addition, if China establishes, pursuant to the national law of the importing WTO Member, that market economy conditions prevail in a particular industry or sector, the non market economy provisions of 15 (a) shall no longer apply to that industry or sector.Under the Article 15 (c), the importing Member has obligations notify the Committee on Anti-Dumping Practices methodologies used in accordance with 15(a).
b) Comparison between the U.S. Criteria and the WTO Criteria
i. The Country-Wide Duty Rate is not Pursuant to the WTO agreements.
While the WTO AD Agreement requires determination of AD duty based on individual rates and weighted average rates,U.S. law apply the country-wide duty rates to the Chinese companies which fail to pass the separate test. The country-wide duty rates are neither individual rates nor weighted average rates. According to the Article 9.4 of the WTO AD Agreement, any AD duty applied to imports from exporters or producers not included in the examination shall not exceed the weighted average margin of dumping established with respect to the selected exporters or producers.
China’s WTO accession agreement provides that in determining price comparability in AD investigations WTO members may use “a methodology that is not based on a strict comparison with domestic prices or costs in China.”But the methodology does not automatically allow applying country-wide duty rates but weighted average rates. Country-wide duty rate is absolutely a trade barrier and put all potential Chinese exporters or producers in a competitive disadvantage. If they want to sell their goods to U.S., they must first pay a substantially high AD duty, which equals a new tariff.
Imposing country-wide duty is suitable to protect U.S. domestic industry from Chinese unfair competition. Fewer and fewer Chinese companies continue to export products to U.S. with a high duty or tariff rate. However, the measure is not necessary, because imposing weighted average duty rate is enough to protect U.S. domestic industry. Since the ITA has employed surrogate country information to construct the FV and calculate the dumping margin, the date is accurate to reflect the true value of merchandise. Therefore, there is no reason to apply another punitive measure as country-wide duty. Lastly, imposing country-wide duty is not proportionate. Substantially high country-wide duty rates de facto prohibits Chinese like products entering into U.S. market. U.S. consumers have to buy high-price domestic products. This is inconsistent with the trade liberalization traditionally supported by the U.S.
ii. U.S. Market Oriented Industry (MOI) Test is not consistent with WTO Provisions
The Department of Commerce has the authority to designate individual NME industries as market oriented in character, but has denied all such requests to date.The ITA decided in a 1992 case that, short of finding that an entire country merits designation as a market economy, it could find specific industries within such countries to be market oriented in character.Article 15 (a) of the Protocol has similar rules. The ITA’s criteria for designation as a market oriented industry (MOI) are: (1) virtually no government involvement in setting prices or amounts to be produced, (2)industry characterized by private or collective (not state) ownership, and (3) market-determined prices for all significant inputs, and for all but an insignificant proportion of minor inputs.In addition, an MOI allegation must cover all (or virtually all) of the exporters or producers in the industry in question.
Chinese companies may request designation as MOI so that Chinese domestic price may be utilized to calculate FV. Even though Chinese companies have tried on several occasions, the ITA has denied such requests primarily on the grounds that the Chinese companies in question submitted information that was insufficient, or was provided too late in the ITA’s process to allow an informed decision, or does not satisfy the second prong of the MOI test.
Failure to pass the MOI test leads Chinese Companies to a higher duty rate. However, China is a socialist country, which means publicly-owned enterprises, such as state owned enterprises (SOEs) or the collective-owned enterprises take dominant position in domestic economy.As a result, many Chinese domestic industries are not able to satisfy the second prong of the U.S. MOI criteria. However, socialist countries are limited in contemporary world. Due to the special characteristic of socialist countries, U.S. criteria may be based on nationalities.
According to the Article I of GATT, as amended, namely the Most-Favored-Nation (MFN) treatment, “with respect to customs duties and charges of any kind imposed on or in connection with importation or exportation…, any advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for any other county shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties.”
Therefore, the U.S. MOI test composites a discriminatory measure towards China and contrast to the MFN treatment. Also, it makes the U.S. fail to discharge its obligation of tariff concessions under the Article II of the GATT.
iii. Other Issues Not Specified by the WTO Agreements
Other issues not specified by the WTO agreement are up to U.S. law, but China may make a proposal to WTO agreement for all transitional countries.
No specific rule regards to transitional ME countries in the WTO AD provisions. The only possible provision applied to NME is the Ad Article VI of the GATT. However, at first, this article applies to the country that “has a complete or substantially complete monopoly of its trade and where all domestic prices are fixed by the state.” Obviously, it can not be applied to nowadays China because most Chinese domestic industries are not monopolies, and the most domestic prices are decided by market.Secondly, “WTO rules do not provided any specific guidance about how this provision should be implemented; such decisions appear to be left up to individual members.”In any case, Member States must implement this rule complying with proposes and doctrines of the WTO agreements.
IX. Specific Factors Involved in Calculating Values of Chinese Products
1. Non-Market Economy
a) Impact of NME status
In the following discussion of NME, it is assumed that sufficient domestic sales of investigated products exist in China.
As mentioned above about “ordinary course of trade”, China-U.S. trade is not under the condition of “ordinary course of trade”, but under the NME condition. “China (NME) duties were over 20 percentage points higher than those applied to [ME]s, on average. This is because average China country-wide rates were over 60 points higher than comparable market economy rates.”
Statue gives a definition of “Nonmarket economy country”. The term “non-market economy country” means any foreign country that the administering authority determines does not operate on market principles of cost or pricing structures, so that sales of merchandise in such country do not reflect the FV of the merchandise. 19 U.S.C §1677 (18) (A).
To decide whether a country is NME country, the following factors should be considered. “(i) the extent to which the currency of the foreign country is convertible into the currency of other countries; (ii) the extent to which wage rates in the foreign country are determined by free bargaining between labor and management, (iii) the extent to which joint ventures or other investments by firms of other foreign countries are permitted in the foreign country, (iv) the extent of government ownership or control of the means of production, (v) the extent of government control over the allocation of resources and over the price and output decisions of enterprises, and (vi) such other factors as the administering authority considers appropriate.” 19 U.S.C §1677 (18) (B).
When assessing the FV of exports from a NME country, the ITA employs surrogate country methodology rather than depends on the information from exporting country. Furthermore, the exporters or producers in the NME countries are subject to substantially high country-wide duty rates unless they pass the separate rates test.
In addition, the ITA must collect and assess considerably more data than for products from free-market economies because the foreign market price is distorted by nonmarket influences and must be adjusted.“While, as a practical matter, NME countries have traditionally been equated with communist countries, this bright line is fading, demanding a harder look at the economic characteristics displayed by these nations.”
Non-market economy is not essential to communist or socialist countries, which is only a phrase in the histories of economic development in these countries. It is a landmark improvement that nonmarket economy was replaced by market economy in our civilian history.Non-market economy has a long history, at the least, from feudal society. For example, the feudal government had controlled important producing and living materials, such as salt, for an extended period of time. Moreover, market economy can be used by both the capitalist and the communist or socialist countries.Non-market economy decision seems like an economic issue, but it may be a political issue that aims to force China and other communist or socialist countries to give up their political opinion. This is out of range of this article, so it is irrelevant to continue talking about it any more.
b) Whether China is Still a NME Country
It is still ambiguous whether the U.S. government will eliminate the NME methodology. In January 2006, the U.S. Government Accountability Office published its report on Eliminating Nonmarket Economy Methodology Would Lower AD Duties for Some Chinese Companies (the GAO Report),which has been agreed on with the U.S. Department of Commerce. This report explains the NME methodology, and analyzes AD duties applied to China from 1985 to 2004 and compares them with duties applied to market economies, and explains circumstances in which the U.S. would stop applying its NME methodology to China and evaluates the potential impact of such a step.
Countries classified as NME may ask for a review of their status at any time.China has actively and continuously sought market economy status among its trading partners, and a number of them have designated China as a market economy, such as New Zealand, Singapore, and Russia.
The GAO Report states that “Commerce can declare China a [ME] if the country meets certain criteria, thus ending the use of surrogate price information and country-wide rates in China AD actions.”This measure is not practical since the Chinese economy is combined by various domestic industries. Some of them are ME or market-oriented, but some may not be. According to the Protocol, the specific Chinese industry is able to be declared ME in advance of declaration of ME of whole Chinese economy.Therefore, at present, it is not able to decide whether China is a ME or a NME country as a whole. It is a not a full ME country, and not a full NME country as well, but a transitional ME country.
c) Significant Changes Due to Transition from NME Methodology to ME Methodology
Ending the application of the NME methodology to China would bring two significant changes in AD duty investigations against Chinese products.
First, such a step would eliminate NME country-wide duty rates from China AD orders. [The ITA] would instead assign an individually determined rate to every relevant Chinese producer or exporter. If the number of companies involved were too great to allow full investigation of all relevant companies, [the ITA] would apply an all-other rate—a weighted average of the individually determined rates to all other Chinese companies (excluding those rates based entirely on facts available or that are de minimis or zero). However, [the ITA] would retain its authority to use facts available to determine the rates that it applies to individual Chinese companies. Second, transition to the market economy methodology would end [the ITA]’s use of surrogate country information to calculate the normal value of Chinese products. Application of the market economy methodology would generally require [the ITA] to set the normal value of Chinese products equal to their sales price in China. If the product were not sold in China, [the ITA] could refer to prices charged for the product in another export market or construct the product’s normal value, or it could continue to construct the product’s normal value—using factor prices from the Chinese companies under investigation rather than from surrogate countries.
More details may make reference to Table 2 below.
Nevertheless, the GAO Report says that elimination of NME methodology would have a “mixed impact.”
Duties would likely decline for Chinese companies not assigned individual rate. Individual company rates would likely diverge, with those that do not cooperate with the ITA receiving rates that are substantially higher than those that do cooperate. In any case, it appears that the actual trade impact of the NME methodology will decline as the portion of total export trade conducted by Chinese companies assigned individual rates increases and as the country-wide rates that largely account for the comparatively high average rates applied to China decline in importance.
The first point is right because the country-wide rate is replaced by a weighted average rate, and the former one is substantially higher than the latter one.In other words, elimination of NME methodology means elimination of country-wide duty rates against China and elimination of use of surrogate country information to calculate FVs and dumping margins of Chinese products.
However, I don’t agree with the point that the trade impact of the NME methodology will decline, due to second reason used by the GAO. The real impact of application of NME methodology is to nibble the market share of Chinese products by the U.S. domestic producers or third country producers,and even to prevent Chinese exporters of producers from accessing to the U.S. market. Because the substantially high country-wide duty is imposed to all Chinese exporters or producers other than the companies received individual rates or weighted average rates, they are not able to export goods to the U.S., including the potential Chinese exporters or producers and the exporters or producers received country-wide rate. Therefore, the portion of total export trade conducted by Chinese companies assigned individual rates increases, but the country-wide rates that largely account for the comparatively high average rates applied to China DO NOT decline in importance.
Over the last 25 years, the U.S. has applied AD duties against China more often than against any other country.Even though more Chinese companies receive individual rates, the importance of NME methodology in nature of protectionism is not changed.
Under the NME methodology, the country-wide duty rates are substantially high and arbitrary. The rates are not only substantially higher than those applied to the same products from market economy countries, but substantially higher than those applied to the Chinese exporters or producers that received individual determined rates. The reason is that the ITA uses the price and cost information provided in the petition to corroborate the FV, export price and dumping margin.According to the ITA’s standard practice, as adverse facts available, it assigns as the China country-wide duty rate the higher of: (1) the highest margin listed in the notice of initiation; or (2) the margin calculated for any respondent in the investigation.This standard practice is not consistent with the doctrines that the ITA should calculate the margin as accurate as possible, and AD duty is to protect domestic industry from foreign unfair competition rather than punishing foreign competitors.I suggest that the ITA may use the information gathered from Chinese companies with individual treatment for other Chinese companies because they are all from one economy.
Nowadays, more and more exporting companies in China are foreign direct investments (FDI), including a big number of U.S. subsidiaries. Their exportation account for a big portion of Chinese total exportation to the U.S., and regularly they receive substantially low individual duty rates.However, other Chinese companies, including Chinese private companies and state owned enterprises (SOEs) are subject to high duty rates, or even country-wide duty rates, because they fail to pass the separate rates test or are imposed adverse interference. In a long run, these companies that subjected to high duty rates are pushed out of the U.S. market.
In recent years, Chinese SOEs are incorporated under the Chinese Incorporation Law, and have independent legal personality. The profit of these companies are transferred to governmental revenue via cooperate income tax and capital bonus decided by incorporations’ constitution, and then used for public interest, such as infrastructure construction, environmental protection, education and so forth. As a matter of fact, SOEs are operated according to the ME rules.
2. Surrogate Country Information
In case China is regarded as a NME country, a surrogate price will be preferred. Surrogate country methodology is different from the methodology used in the case that domestic consumption of a given product in a ME exporting country is less than 5% of export to U.S. (including no domestic consumption). In the case of NME, the price is the price decided by sale price in a surrogate country or a price based on surrogate factors of production in several comparable countries; in the case that no appropriate surrogate country exists, the FV is the price of a country that produces a product that is comparable and substantially similar to the subject merchandise.
The secretary of Commerce chooses a surrogate country that is comparable to that of the home market country in per capita Gross National Product (GNP) and infrastructure development.To the extent possible, the surrogate country is at a level of economic development comparable to the NME country and has significant producers of comparable merchandise.India is the most commonly used surrogate country for China.
Even if the ITA chooses surrogate country upon a case-by-case basis, the choice of a surrogate in an AD investigation is easily justified when both per capita GNP and infrastructure development are similar among the NME and the surrogate country.“Similar per capita GNP indicates that the surrogate country production capacity and wage rates reflect what the market rate in [an NME] would be if it were a market economy.”However, the law and regulations do not indicate how to measure GNP. As a result, the ITA relies on the World Bank figures, despite warnings from the organization that the data is not reliable for such comparisons.Likely, while the “similarity in infrastructure indicates the production capacity of the country and capacity to engage in external trade,”the law and regulations do not indicate what aspects of economic structure (or infrastructure) are important.The ITA is thus left to decide each ease anew when the NME country and its surrogate share certain characteristics but not others.
Although it attempts to use costs from similarly situated economies, the costs are usually not transferable from one country to another,because the surrogate country is likely to be “at a substantially higher level of economic development than the non-market economy” in question.Using a surrogate produces a determination based on date of an inflated normal value,resulting in a higher cost of production value and in return a larger duty margin.
The use of a surrogate’s price necessarily will neuter the NME’s comparative advantage and replace it with the comparative advantage of the surrogate country.Using a surrogate for NME fails to account for the possibility that the NME producer possesses significant advantages in production and sales that the surrogate producer does not.
As mentioned above, the ITA may also pick up factors of production from several surrogate countries and constructed price measured by surrogate factors utilized in producing the merchandise (hereafter “surrogate constructed price”). Factors of production include labor hours, raw material, energy and other utilities, and representative capital costs including depreciations.General expenses, profit amount, and the cost of containers, coverings and other expenses are added to the surrogate values for the factors of production.The factors of production used to manufacture the goods and their prices reflect the values of such factors in a market economy country or countries are considered appropriate.
To apply this methodology, the ITA first identifies and quantifies the factors of production used by the NME producers; secondly, it identifies market prices for each factor in a surrogate country or countries; thirdly, it multiplies volume times cost for each factor; and at last, it add the results, together with a reasonable margin for selling, general and administrative expenses, and profit (based on surrogate country financial data), to produce a constructed FV.
If there is no surrogate market economy country with comparable development producing the same product, the ITA bases its analysis on a surrogate country that produces a product that is comparable and substantially similar to the subject merchandise.At this point, the FV is a surrogate third country price. It may be a price in a developed country, or even the price in U.S.
“Manufacturers tend to use more of the factors of production they have in abundance, with a relatively lower cost, and less of [the] scarce factors carrying a relatively higher cost.”Choosing a surrogate country method is inconsistent with the economic doctrine and facts of Chinese comparative advantage. Factors of production used by the manufacturer from a NME country, combined with the costs for the factors from a surrogate market country which has a different cost structure, produce higher dumping margins than would be assessed if the manufacturer is in a market economy.
3. Exchange rate
Even if China is maintaining a fixed exchange rate, and which somehow benefits its exportation, it is not a key point in the U.S. AD cases. Some scholars contain that the Chinese currency—RMB is undervalued by 40 percent.Others have dismissed such claim and argued that China is right in maintaining fixed currency control because China’s competitive advantage lies primarily in labor costs, technology, quality control, and infrastructure; floating the currency on an absolutely market-based would expose China to a host of economic problems, including higher unemployment and bank failures.
Since 1996, China has adopted Article VIII of the International Monetary Fund (IMF)’s Articles of Agreement, which establishes current account convertibility,which means the RMB is freely convertible “for purposes of trade in goods and services” as long as the underlying transactions are legally valid.However, capital transactions remain subject to strict controls to protect against unforeseeable swings in capital flows in and out of the country which could dramatically affect the People’s Bank of China’s ability to control both interest rates and exchange rates.In other words, China maintains its currency control policy to keep the society in stability during the transition to a full ME.
One crucial factor in the ITA’s NME determination is the extent of currency convertibility.China’s current currency control policy complies with the WTO and the IMF agreements and applies to both domestic and foreign business. Restrictions on capital transactions put up road blocks for transferring foreign currencies out of China by foreign companies doing business there as well as Chinese companies seeking to expand overseas.There has not been an AD investigation against all products from a single country on the ground that the currency value of exporting country helps keep import price below cost.Article 2.4.1 of the WTO AD Agreement provides that “when the price comparison under this paragraph requires a conversion of currencies, such conversion should be made using the rate of exchange on the date of sale ...Fluctuations in exchange rates shall be ignored.”
China has taken cautious steps to float its foreign currency exchange rates on its own timeline. No legal basis for U.S. to challenge China’s exchange policy.To any extent, China’s exchange rate is irrelevant with specific AD case unless the U.S. government gives up NME methodology. In the application of NME methodology, the ITA employs the surrogate price information rather than Chinese domestic price information, which are based on foreign currencies but not RMB.
4. Investigation Questionnaires
Questionnaires are used by the ITA and the ITC to collect information from all relevant parties, including domestic producer’s questionnaire, importers’ questionnaire, foreign exporters or producers’ questionnaire and purchasers’ questionnaire.Information requested in questionnaires may relate to the product, the domestic industry, volume of imports, pricing, factors bearing on condition of the domestic industry, negligibility and cumulating, causation, assessment of threat of material injury and unique circumstances of the industry depending on the subjects and the sources where information is from.
The ITA takes advantage of the information collecting from questionnaires to calculate the constructed price or make adjustment of FV of merchandise under investigation.In order to calculate FV as accurate as possible, professional preparation of questionnaire is necessary.
Some tips are given John J. Miller that:
[1] The verification team will trace financial statement totals to summary worksheets. For example, cost of manufacture and inventory valuation totals must reconcile to the cost of goods sold on the financial statements. Within cost of manufacture, each component such as material usage should reconcile to material sub-ledgers and eventually to actual purchase invoices which document each entry in the sub-ledgers. Labor costs are reconciled to the payroll ledgers and usually selected entries will be traced to actual time cards for employees….[2] Actual unit costs should be computed using actual net yield for the period of investigation rather than average or theoretical yields. Actual unit costs should be computed using actual net yield for the period of investigation rather than average or theoretical yields….[3] Certain non-operating expenses and revenues may be considered product related in nature and should be allocated to the GSA [the expense of General, Selling and Administrative] pool….[4] The Department has always considered that GSA expenses are more properly a function of selling goods rather than manufacturing goods….[5] Any internal duties or taxes rebated upon export should be carefully documented and submitted. Trade law provides for selling price adjustments for these types of taxes and duties. The respondent should have documentation to support all taxes or duties paid and rebated. It is often helpful to have a translated version of the domestic tax law available during verification….[6] Respondent must be able to produce all sales invoices and related records for sales submitted on the sales listing….[7] Verification team will look at sales not on the listing as well as those submitted….[8] Whenever available, the actual cost of the specific material used in the product should be submitted….[9] Theoretical scrap based on standards or approximations is a less reliable measure than actual sales of scrap. Because production events may change over time and because the submitted costs must be the actual costs for the period of investigation, only actual scrap recovery costs should be submitted…. [10] All costs allocated to GSA will be analyzed to identify costs which are more appropriately considered costs of manufacture….[11] Worksheets and documentation reconciling to accounting records and financial statements are particularly important. It is helpful for the respondent to prepare in advance a packet of documents related to each of these areas and referenced to the accounting records to the verifiers in tracing the submitted values back to company source documents.
More detailed information may make reference to Judith Czako, Johann Human and Jorge Miranda, A Handbook on Anti-Dumping Investigations. Cambridge University Press. 2003, at 238-65.
X. Assessing Standard of European Union (EU)
EU is another major export market of China other than U.S. Meantime, Chinese companies are also frustrating with AD measures in the EU market based on same situation. However, the way that EU treats Chinese enterprises are different from U.S. Furthermore, EU is comparable to the U.S. on both economic and legal levels. Therefore, It is necessary to make a comparative discussion on calculating the FV of imports from China under the EU AD law.
All EU countries speak in one voice in the area of external trade policy, which is relied on the “common commercial policy” laid down in the Article 133 of the Treaty Establishing the European Community.It provides that the common commercial policy “shall be based on uniform principles, particularly in regard to … export policy and measures to protect trade such as those to be taken in the event of dumping or subsides.”So, the Member States of the EU have no power to regulate AD issues within their national laws. While the Council of European Union (Council) has legislative responsibility for the AD regulation, the European Commission (Commission) plays a major rule in AD investigation.
Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries who are not members of the European Community (Basic Regulation) is the primary AD legislation of the EU law.
The special AD rules applicable to NME countries continuously developed and were laid down in the Article 2(7) of the Basic Regulation as the analogue or surrogate country methodology.Article 9(5) further codified a one country, one duty rule, and applied it to NME countries.
In April 1998, the EU issued a new regulation, Council Regulation 905/98 (New Regulation) to amend Article 2(7) of the Basic Regulation.The amendment eliminated China from the list of NME countries, and replaced the surrogate country methodology with a case-by-case approach.In the case of China, it means the domestic prices and costs of the investigated Chinese products may be used to calculate FV in the AD proceedings when the exporters or producers met certain criteria.Regulation 905/98 represented significant progress in the EU legislation, as it reflected efforts and intent to make the AD instrument adherent to the changing economic reality of the EU’s NME trading partners so as to act appropriately.
1. Former Rules
As the primary AD law, the Basic Regulation provides general principles, overall procedures and guidelines for most of the substantive issues within the EU.The general principles cover: (1) definitions of dumping and dumping-related factors 9such as normal value, and like products);(2) determinations of dumping, injury and EU industry; (3) consultation; (4) verification visits; (5)non-cooperation; (6) confidentiality; and (7) disclosure.Despite frequent and sometimes significant alterations in AD legislation, these general principles have continued being effective.The overall procedures include: (1) initiation of proceedings; (2) investigation; (3) provisional measures; (4) undertakings; (5) termination without measures/imposition of definitive duties; and (6) duration, reviews and refunds.
Article 2(7) of the Basic Regulation sets forth the analogue country methodology applied to imports from enumerated NME countries (including China) for calculation of normal value.It provides:
In the case of imports from non-market economy countries…normal value shall be determined on the basis of the price or constructed value in a market economy third country, or where those are not possible, on any other reasonable basis, including the price actually paid or payable in the Community for the like product, duly adjusted if necessary to include a reasonable profit margin. An appropriate market economy third country shall be selected in a not unreasonable manner…
Article 9(5) of the Basic Regulation sets forth the one country, one duty rule applied to imports from enumerated NME countries in imposition of AD duty.It provides:
An anti-dumping duty shall be imposed in the appropriate amounts in each case, on a non-discriminatory basis… The regulation imposing the duty shall specify the duty for each supplier or , if that is impracticable, and as a general rule in the cases referred to in Article 2(7), the supplying country concerned.
Accordingly, under the one country, one duty rule, the EU treats all suppliers of a certain industry from China as a whole, therefore denying the individual export prices charged by each supplier, and imposing a single AD duty on all the producers concerned.As a result of this rule, even an innocent Chinese exporter who does not commit dumping is subject to the same duty when other Chinese exporters in its industry do so.Further, the cooperating exporters have to pay a higher AD duty than their dumping margin, since a single duty rate is calculated on the basis of the average export prices of all the cooperating and non-cooperating exporters.
Application of the one country, one duty rule in the EU AD practice against China is not exclusive, as some exceptions followed on occasion.Those exceptions are subject to an “individual treatment” policy, under which the individual export prices charged by each accused Chinese producer or exporter would be counted to calculate an individual dumping margin, and any AD duty that may be imposed would be a specific one based on the particular situation.
However, the implementation of the individual treatment policy by the EU is neither consistent nor predictable. In the 1990 “Tungsten Ores and Concentrate” case, the Commission determined separate dumping margins of 47.4% and 53.2% for two Chinese state owned enterprises (SOE), the China National Non-ferrous Metals Import& Export Corporation and the China National Metals and Minerals Import & Export Corporation.Subsequently, separate provisional duties were set for, and undertakings were offered to the two companies. But Commission did not explicitly pronounce any rules in this case to explain on what grounds it granted individual treatment.
2. Current rules
In April 1998, the New Regulation replaced Article 2(7) of the Basic Regulation and introduced a new case-by-case approach to the EU AD practice against China and Russia.The New Regulation is composed of three subparagraphs: subparagraph (a) maintains the provision of the original Article 2(7) of the Basic Regulation; subparagraph (b) inserts the new case-by-case approach. It provides that
In anti-dumping investigations concerning imports from … the People’s Republic of China, normal value will be determined in accordance with paragraph 1 to 6, if it is shown, on the basis of properly substantiated claims by on or more producers subject to the investigation and in accordance with the criteria and procedures set out in subparagraph (c) that market economy conditions prevail for this producer or producers in respect of the manufacture and sale of the like product concerned. When this is not the case, the rules set out under subparagraph (a) shall apply.
Accordingly, China is not automatically designated as an ME country, so the investigated Chinese industries will not be entitled to full ME status in the determination of NV, unless they can prove the existence of prevailing ME conditions listed in subparagraph (c).
Subparagraph (c) illustrates five cumulative criteria for granting ME status to the Chinese or Russian companies under investigation for dumping, and puts the burden of proof on these companies.These accused companies need to prove they meet the following conditions:
- decisions of firms regarding prices, costs and inputs, including for instance raw materials, cost of technology and labour, output, sales and investment, are made in response to market signals reflecting supply and demand, and without significant State interference in this regard, and costs of major inputs substantially reflect market values,
- firms have one clear set of basic accounting records which are independently audited in line with international accounting standards and are applied for all purposes,
- the production costs and financial situation of firms are not subject to significant distortions carried over from the former non-market economy system, in particular in relation to depreciation of assets, other write-offs, barter trade and payment via compensation of debts,
- the firms concerned are subject to bankruptcy and property laws which guarantee legal certainty and stability for the operation of firms, and
- exchange rate conversions are carried out at the market rate.
With the New Regulation in force, Article 9(5) of the Basic Regulation is also consequently altered. A more flexible case-by-case approach has replaced the one country, one duty rule.The accused Chinese exporters/producers will be assessed an individual AD duty rather than a country-wide duty as long as they meet the criteria provided in the New Regulation.
12. Comparison of criteria between the E.U. and the U.S.
While the U.S. MOI test is on the whole-industry base, the EU test is on the individual-company base. The EU criteria are similar with the separate rates test criteria of the U.S. However, when Chinese companies pass the EU individual-based test, they are entitled to use ME methodology to calculate FV, rather than using NME methodology. In the U.S., even if the Chinese companies pass the separate rates test, they still suffer from using of NME methodology and surrogate information.
If Chinese companies fail to pass the EU test, they are still able to receive individual treatment as long as they cooperate with authorities. But in the U.S., Chinese companies are subject to country-wide duty rates if they fail to pass the individual test.
XI. Analysis of Recent Cases
The ITA’s discretion leads to lack of predictability and accuracy in the U.S. AD investigation. The following issues are found in the practice of recent AD cases, which can show the details of investigation.
1. Representativeness of Country-wide Prices
The ITA prefers country-wide or industry-wide prices, but it must be reliable and not a prediction. Meanwhile, specific information may be used as a reference to decide FV.
While in one case the ITA has rejected information supplied by a manufacturer for lack of representativeness, it has in another rejected data that was fully representative of country-wide prices.The ITA prefers “industry-wide values, rather than the values of a single producer, wherever possible, because industry-wide values are more representative of prices/costs of all producers in the surrogate country.”In Zhejiang Native Produce & Animal By-Products Imp. & Exp. Corp. v. United States, the ITA rejected financial statements of an Indian honey cooperative because the data represented prices of single processor in a particular region of the surrogate country, namely India, despite the cooperation buying honey from several sources.
However, even data supplied that is industry-wide within the surrogate country may still be rejected if it appears influenced by non-economic factors. Crawfish Processors Alliance v. United States, 343 f. Supp. 2d 1242. Hontex Enterprises (“Hontex”), a Chinese exporter of crawfish, submitted to the ITA information based upon a Spanish study for valuing live whole crawfish, which Hontex used in the production of tail meat.Hontex maintained the study was an official report of Andulician government, decreasing the risk of data contamination by interested private parties. Despite traditional reliance on similarly broad, industry-wide averages and estimates as surrogate values,the ITA rejected the Spanish study because it was not a government report, but paid by an Andulician crawfish processor, and because it did not contain compete price data, but was based on estimates rather than actual transactions.Because some of the crawfish companies to which the questionnaires were sent provided full information and some provided only partial responses, varying in degree of completeness, the ITA maintained that it could not confirm that the information was comprised of averages or that it was representative of a wide range of prices and not distorted by special interests of a private sector party.
The ITA has also rejected non country-wide data for one purpose, but used the same delinquent information for another.In Wuhan Bee Healthy Co. v. United States, the ITA refused to use pricing series submitted by Wuhan to value honey production factors since it did not represent country-wide price.The pricing information, the ITA argued, was generated by only two farms located in a particular region.Nevertheless, the ITA maintained that while the information was not appropriate to calculate values, it was appropriate to calculate a necessary inflator.According to the ITA, the information submitted by the two farms indicated that prices increased during the period of review and that it had no other information upon which it could rely to calculate the inflation for the real value of raw honey.Thus, in absence of other pertinent information, the ITA can reasonably use specific rather than country-wide data.
2. Domestic Price over Import Price preference
The surrogate country’s domestic price is used to calculate the FV of products from a NME country.
As said above, even though the ITA generally seeks to use the actual prices paid for imports from market economy countries when valuing an NME producer’s factors of production, it has rejected such data.
In Wuhan, Wuhan submitted data publish in the TERI Energy Data Directory and Yearbook (Teri data), for the year at issue, to determine Indian surrogate value of coal, a factor in Wuhan’s honey production.The ITA rejected the Teri data, which reflected Indian domestic coal prices, maintaining that Indian import data for coal valuation was more representative of competitive prices.The Court of International Trade (CIT) overruled. Since the ITA prefers to use domestic surrogate data over import surrogate data, it must be clearer as to the reason for rejecting the data than merely maintaining that the import price was the best available information.
3. Context of Data Compilation
The data must be for the purpose of valuation, and be explained by the relevant study structure, methodology and verification. The ITA has even rejected corroborated data, maintaining that the data was prepared for purposes which would cast doubt upon the applicability of the stud for valuation purposes.In Zhejiang Native Produce, the Plaintiff’s study, published by the Agriculture and Processed Food Products Export Development Authority, was offered to establish the price of raw honey and was rejected.The ITA disqualified the data because the data reflected an average value of honey appearing in context of discussion concerning the development of a model for “doubling the number of bee colonies every two years,” rather than for the purpose of valuing honey.In Wuhan, the ITA rejected the producer’s suggested values that were based on a study, maintaining even through three Spanish companies stated that the prices in the Spanish study were accurate, the study still failed to be considered as the best available information because there was no information regarding the study’s structure, methodology, and verification.
4. Contemporaneity and Substantial Similarity
The data submitted by the foreign producers must be contemporaneous and substantially similar with the factors being valued. Furthermore, substantial similarity is more important than contemporaneity.
While the ITA prefers specific data, it has rejected it for reason that more general data is more contemporaneous with the period of investigation.In valuing overhead and profit in Hangzhou Spring Washer Co. v. United States (Spring Washer), the ITA rejected specific data submitted by the producers because it was not contemporaneous with the period of review, an important factor given the quickly transforming Indian economy.However, the ITA may again reject such information in another case, with contemporaneity giving way, where the contemporaneous data does not refer to a product substantially similar to the factor being valued.
In Shandong Huarong Mach. Co. v. United States, the producer exported heavy forged tools from China, such as bars and wedges.The ITA rejected Huarong’s information pertaining to the valuation of brokerage and handling factors, because the information related to a product that was not similar to the bars and wedges Huarong produced.The ITA maintained that the bars and wedges that Huarong produced were more similar to stainless steel wire rod rather than hot-rolled steel flat products because both steel wire rod and bars and wedges are small in diameter and bother are shipped in containers.As a result, the ITA rejected the brokerage and handing surrogate values pertaining to hot-rolled steel flat products submitted by Huarong even if it was more contemporaneous than the brokerage and handling costs for steel wire rod.
5. Quantity of Imports
When per-unit value is approximately the same, small-quantity import information prevails larger-quantity import information.
According to the ITA, small-quantity import information is more reliable where per-unit value is approximately the same for the per-unit values of the larger quantity imports of that product from other countries.In Kaiyuan Group Corp. v. United States (hereafter “Kaiyuan”), the volume of pencil cores imported into Indonesia was substantially greater than those imported into India.Nevertheless, Indian imports from seven different countries were considered substantial.The ITA used Indian import data because the weighted- average Indian import price did not substantially vary from the weighted-average Indonesian import price.
6. Similarity of Products
The ITA must determine, even before the determination as to the surrogate value of a particular factor, which factor in the surrogate country is most similar to the factor which the company under the investigation utilized. In Raoping Xingyu Foods Co. v. United States (hereafter “Xingyu Foods”), the CIT held that the surrogate factor for oil used in canning differed substantially in quality, which was indicated first by its large price discrepancy, adjusted from NME costs.As a result, the ITA could not use surrogate price of heavy oil to calculate the company’s cheap costs.In Hebei Metals v. United States (hereafter “Hebei”), the ITA found that surrogate value submitted by Hebei for coal was aberrational, because it had a larger percent variation between the highest and lowest prices over its oven data variation.However, the CIT remanded that the case to the ITA, because it failed to provide that the data was insufficient to demonstrate why imported coal yielded a more accurate surrogate value than domestic coal.
7. Inconsistent Data
Data submitted by a producer was also rejected where different information submitted by third parties contradicted the information.
In Wuhan, the Chinese producer submitted an article appearing in an Indian newspaper, on which the ITA refused to rely in valuing the factors of production of raw honey because the prices in the article were contradicted by information submitted by petitioners.The ITA rejected the prices in the article, relying on import prices from Germany and China. According to other data, no honey was imported into India from Argentina, China, and Germany.While Wuhan submitted official export statistics for raw honey from China and Germany for the same period, it was “not sufficient to overcome the totality of the evidence cited by the ITA of proffered article’s lack of utility.”This reasoning poses a dangerous risk because petitions from domestic injured parties will most likely contain data contradictory to the data presented by the investigated company.
8. Anomalies in Data
Anomalies in the investigation data should be excluded unless the ITA has a reasonable explanation. Considering a wide range of values for a particular factor, the ITA often excludes anomalies to ensure the reliability of the calculation; however, it has in circumstances included such data in its calculation .
In Zhejiang, “the weighted-average of the honey unit import values from all other countries was approximately $69.74 less than the ITA’s calculation of the normal value of honey sold by Zhejiang.”The anomaly was the result of the large volume of lower priced honey imported from Argentina.To remedy the wide discrepancy and distorted results, the ITA removed the data from Argentina and used a simple average to value raw honey, an average of the highest and lowest values.
However, in Hebei Metals, the ITA chose not to exclude Swedish import value from the surrogate value for steel pallets even if it is 1,134% higher than the average of other countries’ import values.The ITA argued that it excluded only those Indian imports sourced from “NME countries and countries maintaining non-industry specific export subsidies, which might distort export prices.Because Swedish steel tube value did not fall into either category, the ITA found no reason to exclude it.”The CIT remanded that decision for the ITA to provide a reasonable explanation for the failure to exclude the aberrational data.
9. Producer’s Cooperation
In the process of determination of FV, the ITA should take into account of investigated parties’ cooperation even if the cooperation is partial.
Not only can the ITA choose to reject the producer’s information pertaining to values of factors of production in the calculation, but the ITA can also apply adverse facts available.In Tianjin Machine Import and Export Corp. v. United States, the ITA applied adverse facts on the record because when the ITA’s arrival at Tianjin’s factory to verify packing factors reported in the review, it discovered that the factory had been closed ten months prior to the visit.Moreover, the company failed to maintain factory and packing material records which were used in compiling the data in the questionnaire response.On the other hand, in Globe Metallurgical, Inc. v. United States, the ITA declined to use adverse facts because the company, Bratsk, acted in good faith to provide valuation of actors of production information.Bratsk reported that it reused silicon metal to produce more silicon metal.However, Bratsk did not include information regarding the amount of the metal fines reused in production.Despite the lack of information provided, the ITA did not apply adverse facts available because Bratsk had been “cooperative and acted to the best of its ability to provide information during the proceeding.”Instead of using adverse facts, the ITA determined the amount of metal fines used based on the difference between the amount of metal silicon produced and the amount of selling, which are reported by the Bratsk.
The ITA may also apply partial facts available instead of adverse facts even if the partial facts are not complete.In Luoyang, the ITA declined to apply adverse facts available, which were submitted by an injured company and encouraged to be used, because plaintiff acted “to the best of its ability to obtain factors of production… information.”The Luoyang supplied the ITA with “documentation of its efforts to obtain the information from its suppliers,” where it could not obtain the information.Because of the plaintiff’s good faith effort to supply the ITA with the requested information, the ITA refused to apply adverse facts.
10. Suggestion for Chinese Companies
A calculation in favor of the Chinese companies can be conducted through a number of approaches. First, the Chinese enterprises should seek full ME status by convincing the ITA that they fulfill the criteria provided in the statute. Succeeding in doing so, the Chinese companies will be entitled to a normal methodology in the determination of FV, which may minimize the margin.
When failing to obtain full ME status, Chinese enterprises should be allowed to claim individual treatment. Individual treatment can contribute to minimizing the dumping margin of investigated Chinese companies, because their individual domestic export price can be taken into account, and their own comparative advantages in the U.S. market, such as low labor cost, low material cost, can be accepted for purpose of adjusting the margin.
However, the individual treatment does not exclude the application of an undesirable surrogate country methodology in the determination of FV.The accused Chinese companies may still risk an inaccuracy. In light of this point, how to choose an appropriate surrogate country is still a major concern.
As for those who neither obtain full ME status nor receive individual treatment, they may suffer the high country-wide duty, since the ITA can be expected to apply the most unfair and discriminatory AD policy to their cases, as it has done in the past to most of the accused Chinese companies. For these unfortunate enterprises, the only strategy available, in respect to FV, is to make sure that an appropriate surrogate country is selected for determining FV. The methods discussed above can be used for this purpose.
XII. Conclusion
Since cheap labor and low production cost, low prices are an extreme strength of Chinese export commodities. American domestic like industries are very hard or even unable to escape from injury by Chinese importation in a short term. In labor intensive industries, the goods from very few of countries can compete with Chinese products. A large amount and huge range of Chinese products, from daily commodities to electronic appliances, crush into U.S. market at a very low price. It is much easier to testify that material injury to U.S. domestic industry and causation between injury and importation of Chinese product.
However, the material injury may not certainly be due to the dumping of Chinese products and unfair competition of Chinese companies, but stem from Chinese companies’ competitive advantage, such as higher productivity, technology, infrastructure, and lower wages.
In the process of assessing the FV of the products imported from China, the ITA enjoys enormous discretion to implement NME and surrogate country methodology. Without specific restrictions in the statute, this discretion can easily be abused. It usually chooses a surrogate or surrogates with an advanced development level and has higher labor costs, so that the constructed FV is not as accurate as the merchandise’s true value. In addition, the country-wide duty rates and MOI criteria are not in consistence with the WTO agreements. It has significantly reduced the value of commitments to trade liberalization, particularly tariff reductions, made in previous trade negotiations, and as a result, has undermined the market access opportunities for Chinese companies.After the EU and some other countries have changed their rule, it enables Chinese companies to achieve ME status, the U.S. shall also consider revising its law.
The Chinese government has made a proposal to the WTO, which suggests that the Ad Article VI of the GATT should be revoked.Apart from making proposals to the WTO, Chinese government shall take more advantage of the WTO Dispute Settlement Body to file a complaint against U.S. unfair AD practices.
Before the U.S. AD provisions should being changed, all Chinese exporters or producers still need to make sure their conduct in line with current U.S. law. Dealing with U.S. AD dumping cases requires many legal skills accumulated in the U.S. long term AD administrative and judicial practice. Chinese companies shall consult professional trade lawyers before filing the questionnaire or a lawsuit. Moreover, they need to be in better communication within the domestic industry and share the experience of participation in the U.S. AD cases.
Bibliography:
A. Books and Independent publications
1. John H. Jackson, William J. Davey and Alan O. Sykes, Jr, Legal problems of International Economic Relations, Cases, Materials and Text, fourth edition. West Group (2002).
2. John H. Jackson, William J. Davey and Alan O. Sykes, Jr, Document Supplement to Legal problems of International Economic Relations, Cases, Materials and Text, fourth edition. West Group (2002).
3. Michael J. Trebilcock and Robert Howse, Regulation of International Trade, Third Edition, Routledge Taylor & Francis Group. (2005)
4. Supachai Panitchpakdi and Mark L. Clifford, China and the WTO- Changing China, Changing World Trade, john Wiley &Sons (Asia) Pte Ltd. 2002.
5. Hans-Jurgen Blinn, The Injury-Test under U.S. antidumping and Countervailing Duty Laws as interpreted by the International Trade Commission and the Department of Commerce. Verlagsgesellschaft internationals Recht Stuttgart. 1991.
6. Steven M. Harris, Antidumping Law: Policy and Implementation. Ann Arbor the University of Michigan Press. 1995.
7. Judith Czako, Johann Human and Jorge Miranda, A Handbook on Anti-Dumping Investigations. Cambridge University Press. 2003.
8. Timothy C. Brightbill, Linda S. Chang and Peggy A. Clarke, Trade Remedies for Global Companies, ABA Section of International Law (2006).
9. J. Michael Finger, Antidumping-How It Works and Who Gets Hurt, the University of Michigan Press (1993)
10. Frank Emmert, European Union Law-Documents, Kluwer Law International (1999)
B. Law Review articles
1. Patricia H. Piskorski, A Dangerous Discretionary “Duty”: U.S. Antidumping Policy Toward China, 34 Hofstra L. Rev. 595 (2005).
2. Luke P. Bellocchi, The Effects of and Trends in Executive Policy and Court of International Trade (CIT) Decisions Concerning Antidumping and The Non-Market Economy (NME) of The People’s Republic of China, 10 NYILR177 (1997).
3. Kristy L. Balsanek, Robert E. Defrancesco, Melanie A. Frank, David T. Hardin, Matthew R. Nicely, International Legal Development in Review: 2005 Business Regulatioin, 40 Int’l Law. 217 (2006).
4. The Federal Circuit Bar Association, Cases and Recent Developments, 15 Fed. Circuit B.J. 141 (2005).
5. Stephanie Showalter, The United States and Rising Shrimp Imports From Asia and Central America: An Economic or Environmental Issue? 29 Vt. L. Rev. 847 (2005)
6. Xinchen Sofia Lou, Challenging China’s Fixed Exchange Rate Regime: An Analysis of U.S. Options, 28 Hastings Int’l & Comp. L. Rev. 455 (2005)
7. Prakash Narayanan, Injury Investigations in “Material Retardation” Antidumping Cases, 25 Nw. J. Int’l L. & Bus. 37 (2004)
8. Stuart M. Rosen and Gregory Husisian, Judicial Review by the U.S. Court of International Trade and the U.S. Court of Appeals for the Federal Circuit under 19 U.S.C. §1581(C) of Antidumping and Countervailing Duty Determinations Issued by the Department of Commerce, 38 Geo. J. Int’l L. 39 (2006)
9. Changho Sohn, Current Developments of WTO Dispute Settlement Body Findings on the U.S. Antidumping Sunset Review Regime, 6 Rich. J. Global L. & Bus. 177 (2006).
10. Bernd G. Janzen, International Trade Decisions of the Federal Circuit: Three Years of Rigorous Review, 52 Am. U. L. Rev. 1027.
11. Hongliu Gong, Legal Strategies for Challenging the Current EU Anti-Dumping Campaign Against Imports from China: A Chinese Perspective, 27 Brook. J. Int’l L. 575.
12. Robert W. McGee, An Economic Analysis of Protectionism in the United States with Implications for International Trade in Europe, 26 Geo. Wash. J. Int’l L. & Econ. 539 (1993).
13. Lei Yu, Rule of Law or Rule of Protectionism: Antidumping Practices toward China and the WTO Dispute Settlement System, 15 Colum. J. Asian L. 293 (2002)
14. Terence P. Stewart, U.S. – Japan Economic disputes: the Role of Antidumping and Countervailing Duty laws, 16 Ariz. J. Int’l & Compa. L. 689 (1999).
15. John J. Miller, Practical Pointers Concerning the Submission of Questionnaire Responses and the Conduct of Antidumping Verifications, 571 PLI/Corp 421.
16. Arturas Mickus, Shortcoming of EU Antidumping Law and Policy, European Journal of Law Reform, Volume 4, Issue 4, at 525 (2002).
17. Won-mog Choi, The People’s Republic of China’s Proposals for Anti-Dumping in WTO/DDA Rules Negotiations, 2 Asian j. WTO & Int’l Health L. & Pol’y 25, 47 (2007)
18. Liu Jun, Methodology of Assessing Normal Value- in View of Problems faced by P.R..China, at http://www.law-lib.com/lw/lw_view.asp?no=922. Last view at May 14, 2007.
19. Zhang Liwei, Peng Jianjun, Cui Zhenyu, the Criterion of the U.S. and EU Determining the Normal Value of the Export Products from Non-Market Economy Countries. Journal of Hubei University of Economics, Vol1.2 No.6, Nov. 2004.
20. Gong Jiayou, “Non-Market Economy” Issue in the U.S. Antidumping Cases against China. 3 Com’l Economic Study 69 (2006).
21. Dingbing, The difference between Socialist Market Economy and Capitalist Market Economy, at http://www.edu.cn/20030708/3088068.shtml, last view on 2007-5-21.
C. Statute and Governmental Documents
U.S. Legislation and Government Report:
1. Tariff ACT 1930, 19 USCA Ch. 4, Subt. IV, , Chapter 4, Subtitle IV, Countervailing and Antidumping Duties, 19 U.S.C §1671-1677n.
2. The U.S. Government Accountability Office published its report on Eliminating Nonmarket Economy Methodology Would Lower AD Duties for Some Chinese Companies, GAO-06-231 (2006).
3. Department of Commerce International Trade Administration, Notice of Initiation of Antidumping Duty Investigations: Certain Color Television Receivers From Malaysia and the People’s Republic of China. 68 F.R. 32013 (2003).
4. Department of Commerce International Trade Administration, Notice of Preliminary Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Affirmative Preliminary Determination Critical Circumstances: Certain Color Television Receivers From the People’s Republic of China. 68 F.R. 66800 (2003).
5. Department of Commerce International Trade Administration, Notice of Final Determination of Sales at Less Than Fair Value and Negative Final Determination of Critical Circumstances: Certain Color Television Receivers From the People’s Republic of China. 68 F.R. 20594 (2004).
6. Department of Commerce International Trade Administration, Notice of Final Determination of Sales at Less Than Fair Value: Certain Color Television Receivers From Malaysia. 68 F.R. 20592 (2004).
E.U. Legislation:
1. COUNCIL REGULATION (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community.
2. COUNCIL REGULATION (EC) No 905/98 of 27 April 1998 amending Regulation (EC) No 384/96 on protection against dumped imports from countries not members of the European Community.
3. COUNCIL REGULATION (EC) No 2238/2000 of 9 October 2000 amending Regulation (EC) No 384/96 on protection against dumped imports from countries not members of the European Community.
4. COUNCIL REGULATION (EC) No 1972/2002 of 5 November 2002 amending Regulation (EC) No 384/96 on the protection against dumped imports from countries not members of the European Community.
WTO Agreements:
5. The General Agreement on Tariffs and Trade 1947, as Amended.
6. The Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994.
7. The Protocol on The Accession of the People’s Republic of China.
D. Cases
1. Zhejiang Mach. Imp. & Exp. Corp. v. United States,Court No. 02-00792 ,United States Court of International Trade ,473 F. Supp. 2d 1365;
2. Allied Pac. Food (Dalian) Co. v. United States, Consol. Court No. 05-00056 ,United States Court of International Trade ,?35 F. Supp. 2d 1295;
3. Sinopec Sichuan Vinylon Works v. United States, Court No. 03-00791 ,United States Court of International Trade ,2006 Ct. Intl. Trade LEXIS 85;
4. Shakeproof Assembly Components Div. of Ill. Tool Works, Inc. v. United States, 268 F.3d 1376 (2001)
5. Union Camp Corp. v. United States, 22 Ct. Int’l Trade 267 (1998)
6. Timkin Co. V. United States, 16 ct. Int’l Trade 142 (1992).
7. Rhodia Inc. V. United States, 25 Ct. Int’l Trade 1278 (2001).
8. Shandong Huarong Mach. Co. v. United States, No. 03-00676, 2005 WL 1105110 (2005).
9. Peer Bearing Co. v. United States, 25 Ct. Int’l Trade 1199 (2001)
10. Zhejiang Native Produce & Animal By-Products Imp. & Exp. Corp. v. United States, 26 I.T.R.D.(BNA)2320 (2004).
11. Crawfish Processors Alliance v. United States, 343 F. Supp. 2d 1242.
12. Wuhan Bee Healthy Co., v. United States, 374 F. Supp. 2d 1299 (2005).
13. Hangzhou Spring Washer Co. v. United States, No. 04-00133, 2005 WL 1592957 (2005)
14. Kaiyan Group Corp. v. United States, 343 F. Supp. 2d 1289 (2004).
15. Raopiing Xingyu Foods Co. v. United States, No. 02-00550, 2004 WL 1943743 (2004).
16. Hebei Metals & Minerals Imp. & Exp. Co. v. United States, 366 F. Supp. 2d 1264 (2005).
17. Tianjin Mach. Imp. &Exp. Corp. v. United States, 353 F. Supp. 2d 1294 (2004).
18. Globe Metallurgical Inc. v. United States, No. 03-00202, 2005 WL 1799891 (2005).
19. Luoyang Bearing Corp. v. United States, 358 F. Supp. 2d 1296(2005)
E. Electronic Resources
1. U.S. International Trade Administration of the Department of Commerce: http://trade.gov/index.asp.
2. U.S. International Trade Commission: http://www.usitc.gov/.
3. U.S. Court of International Trade: http://www.cit.uscourts.gov/.
4. U.S. Government Accountability Office: www.Gao.gov.
5. European Union Law Gateway: http://europa.eu/index_en.htm.
6. Westlaw Legal Research: www.Westlaw.com.
7. LexisNexis Legal Research: www.Lexis.com.
8. Zhongguo Qi Kan Quan Wen Shu Ju Ku (Chinese Academic Journals): http://www.cnki.net.
9. WTO Website: http://www.wto.org.
|
|
发表时间：2008-11-28
|
|
|
