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AD & CVD provisions in the EU-NZ FTA
Negotiations concluded this week on yet another free trade agreement, this time between the European Union and New Zealand. Chapter 5 of the EU-NZ FTA is about trade remedies. Section A of that chapter deals with antidumping and countervailing duties.... Continue reading
Posted Jul 8, 2022 at International Economic Law and Policy Blog
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The Solar Safeguards Panel Report - Some First Reactions
The newly-released Panel Report in US – Solar Safeguard (WT/DS562/R) is of course notable in that, for the first time, a global safeguard measure challenged in WTO dispute settlement has fully survived panel review. A longstanding practice of imposing standards... Continue reading
Posted Sep 2, 2021 at International Economic Law and Policy Blog
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Hi Brett, thanks for the response. It sounds like the relationship between international obligations to domestic law is similar in Australia and the US, with "Polites" the counterpart to "Charming Betsy".
That said, I remember noting with interest how extensively ADC decisions entertained and engaged with WTO-based legal arguments. American lawyers have I think learned not to make such arguments to the USDOC, as it seems just to irritate them!
Trade, Executive Agreements and US Law: Invitation to Trouble?
It may not be a new idea, but recent developments remind me how the status of US trade agreements as executive agreements, and the consequent (lack of a) role for them in US domestic law, has hindered the United States’ ability to comply with its international obligations, and generated unnecess...
Trade, Executive Agreements and US Law: Invitation to Trouble?
It may not be a new idea, but recent developments remind me how the status of US trade agreements as executive agreements, and the consequent (lack of a) role for them in US domestic law, has hindered the United States’... Continue reading
Posted Aug 31, 2021 at International Economic Law and Policy Blog
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RCEP dispute settlement - Some observations
As a former WTO lawyer, I am always interested in comparing WTO procedures to those of other trade agreements. I have recently found myself dabbling in RCEP’s dispute settlement provisions. While this is yesterday’s news, perhaps some readers who have... Continue reading
Posted Jul 23, 2021 at International Economic Law and Policy Blog
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"Politics is the art of compromise". I think Tim has a great point. I would also say that "the perfect should not be enemy of the good".
My perception of the Article XX jurisprudence is that it tends to demand an ideal fit between measures and objectives that is unrealistic in the real world.
The US banned clove cigarettes for the right reasons. It should have banned menthol cigarettes too, but it wasn't possible. One step at a time (I did see a headline the other day suggesting the US might take another run at menthol cigarettes, however).
Ditto for Seals. The EU faced two competing values -- animal welfare and the interests of indigenous peoples -- and it struck a messy compromise.
Will we see a replay with digital services taxes? They may well be discriminatory. Does that make them indefensible?
Tim Meyer Responds on Exceptions and "Mixed Motives"
This is a response from Tim Meyer to my post on his new article Many thanks to Simon for his thoughtful take on my new article, A Political Theory of Legal Exceptions, as well as the opportunity to respond. Simon and I do agree on a lot. Most notably, we agree on the need for more flexibility, a...
The following response is from Zhiguo Yu:
Thank you for your attention, Professor Kreier.
As to legal text regarding Particular Market Situation (PMS), there are no provisions about this notion in either the Foreign Trade Law or the Antidumping Regulation of China. And there are no specific rules or guidance on how to probe the PMS at the Ministerial regulation level. To the best of my knowledge, however, the Antidumping Manual of Chinese IA provides an introduction of this notion which has not been made available to the public.
In my opinion, however, the absence of a direct citation to PMS does not mean the IA has no authority to deal with relevant claims in an antidumping investigation. In fact, PMS-related claims have been submitted to MOFCOM in the past. In 2005 in a case against imported butanols from South Africa, the petitioners argued that the market within South Africa was in a particular market situation because of the international sanctions resulting from the segregation policy by the exporting government. Unfortunately, the IA did not rule on this issue because the investigation was dismissed after a finding of no injury.
The legal authorization to look into PMS may come from two sources. First, the fair comparison rule in the Foreign Trade Law and the Antidumping Regulation may be the direct source. As the Law and Regulation both require the IA to ensure price comparability between the NV and EP, MOFCOM has the obligation to establish a NV as a proper benchmark to gauge EP. Therefore, if a PMS is spotted in a case, the IA has to arrive at a proper NV instead of using convention methods. The other one is the ADA itself. Even though there is no direct citation to PMS in domestic rules, it does not mean the IA could not handle it. For example, there is also no direct provisions about targeted dumping in the Law and Regulations. Similarly, the Foreign Trade Law only provides a broad authorization to MOFCOM to ensure the remedial effects of trade remedy measures without direct mention of anti-circumvention. In my opinion, the IA nevertheless could deal with related claims in a specific procedure if it complies with the ADA.
In this case, MOFCOM did not invoke PMS but rather concluded that several segments of the market and industries of the US were affected by non-market factors which lead to a finding that NV based on domestic sales of like products was not a proper benchmark to make a fair comparison with the EP. Once distortions in these segments were spotted, the petitioners argued, the NV should be adjusted to preclude the impacts of these non-market factors upon the cost and price of the like products. Because the IA applied FA rules instead of such non-market factor findings to calculate the dumping margins, the specific method of how the non-market findings affect the NV calculation remains unknown yet.
The US is now a “Non-Market Economy” – Anti-Dumping Ruling by China
This is a guest post is from Zhiguo Yu, a former MOFCOM official and Georgetown Law graduate, and Sandeep Thomas Chandy, a Georgetown Law graduate. On 17 July, China’s Ministry of Commerce (MOFCOM) released its preliminary ruling on the imposition of anti-dumping duties on imported n-propanol or...
Well, they could have easily said that they considered the Panel's reasoning to be flawed, and over-ruled them again. Turning to the Article 11 claim, they could have simply said we do not reach this claim. Or they could have said that ignoring their decisions, while perhaps impolitic, was not an Article 11 violation. That they did not do, either in Stainless Steel or in Continued Zeroing.
But when (referring to your subsequent post) Giorgio Sacerdote says (in 2019) that "the AB rejected the claim of Mexico that article 11 DSU had been breached by the panel because of it not having followed the interpretation previously laid down by the AB", he is reading a different AB Report than I am. The Report says ""Since we have corrected the Panel's erroneous legal interpretation and have reversed all of the Panel's findings and conclusions that have been appealed, we do not, in this case, make an additional finding that the Panel also failed to discharge its duties under Article 11 of the DSU." (para. 162). Contrast that to DS248, for example, where the AB states that the US "has not substantiated its claim that the Panel acted inconsistently with Article 11 of the DSU, and this claim must therefore fail"."
The Arguments Before the Appellate Body on "Precedent" in U.S. - Stainless Steel (Mexico)
The "cogent reasons" standard set out by the Appellate Body in U.S. - Stainless Steel (Mexico) (see paras. 154-162) has come under a great deal of criticism. But I think it's worth taking into account what the Appellate Body was hearing from the participants to the appeal (this comes from the su...
Indeed. It's a bit of a Greek tragedy, where hubris brings down the protagonist. I think in a number of situations, the AB realized they had slipped up, but in their zeal to defend their authority they pushed back and dug themselves in deeper. This happened even when panels tried to cloak their disagreement by distinguishing, and offering the AB a face-saving way to shift position or at least not extend it. As a person who dedicated a quarter century to multilateral DS, and who remains convinced that functional, binding dispute settlement is needed in a fractured and complex world, the current state of affairs is even sadder because it was perhaps avoidable.
The Arguments Before the Appellate Body on "Precedent" in U.S. - Stainless Steel (Mexico)
The "cogent reasons" standard set out by the Appellate Body in U.S. - Stainless Steel (Mexico) (see paras. 154-162) has come under a great deal of criticism. But I think it's worth taking into account what the Appellate Body was hearing from the participants to the appeal (this comes from the su...
Sorry, Jeppe, that I missed your post. We must have been writing our posts simultaneously. Your comments about the AB's approach being one of "norm" and "deviation" are insightful. The question is how broad is the scope for deviation, and whether finding a legal interpretation unconvincing would satisfy the AB's test. I think the answer is a clear no.
The Arguments Before the Appellate Body on "Precedent" in U.S. - Stainless Steel (Mexico)
The "cogent reasons" standard set out by the Appellate Body in U.S. - Stainless Steel (Mexico) (see paras. 154-162) has come under a great deal of criticism. But I think it's worth taking into account what the Appellate Body was hearing from the participants to the appeal (this comes from the su...
Hi Meredith. Your link does not work. I'd like to see the article, and compare your list of cogent reasons to the narrow set of examples in DS449. In that Report, the US argues that "one example of a cogent reason would be where the Appellate Body findings are not persuasive or not in keeping with the covered agreements" (para. 7.311). The Panel disagrees, and offers a narrow list of examples (one of which is that the Members have subsequently agreed to a contrary authoritative interpretation under Article IX of the WTO Agreement!). The US did not appeal.
The Arguments Before the Appellate Body on "Precedent" in U.S. - Stainless Steel (Mexico)
The "cogent reasons" standard set out by the Appellate Body in U.S. - Stainless Steel (Mexico) (see paras. 154-162) has come under a great deal of criticism. But I think it's worth taking into account what the Appellate Body was hearing from the participants to the appeal (this comes from the su...
By the way, we should not ignore the AB Report in Continued Zeroing (DS350), issued less than a year after after the Stainless Steel report. In that dispute, the EU takes a conditional appeal under Article 11, explicitly arguing that "cogent reasons" cannot be invoked by a panel in the face of an AB decision, but only by the AB in face of a prior AB decision (para 363). After repeating the findings in Stainless Steel (or, perhaps, the dicta, since they make no Article 11 ruling), the AB concludes that because "the panel does appear to have acceded to the hierarchical structure contemplated in the DSU", it need not address the EU's conditional appeal.
The Arguments Before the Appellate Body on "Precedent" in U.S. - Stainless Steel (Mexico)
The "cogent reasons" standard set out by the Appellate Body in U.S. - Stainless Steel (Mexico) (see paras. 154-162) has come under a great deal of criticism. But I think it's worth taking into account what the Appellate Body was hearing from the participants to the appeal (this comes from the su...
Simon. If it hasn't said it explicitly, it has come very close indeed. It made a very lengthy statement about Appellate Body review of findings of fact at the 27 August 2018 DSB meeting. The punchline:
"As we have noted in this statement, DSU Article 17.6 expressly limits appellate review to issues of law and legal interpretation covered in a panel’s report. On its face, this would
not include panel fact-finding. When we look back to the appellate report in which the Appellate Body asserted it could review panel fact-finding under the “duty” or “requirement” in DSU Article 11 to make an objective assessment of the facts, we find that there was no interpretation by the Appellate Body of the text of DSU Article 11, which states that a panel “should make” an objective assessment. And because the DSU
text does not support any appellate review of the facts, it also does not suggest any particular standard for that review."
What Does the U.S. Want To See Happen With Appellate Body Reform?
This is from a U.S. statement to the DSB yesterday: We have listened closely as several Members have criticized the United States. These Members argue that the United States has failed to participate in ongoing discussions on Appellate Body reform. These statements are wrong – and appear to re...
Yes, Simon, I think that is exactly what the US is suggesting. If you go all the way back to EC-Hormones in 1998, the EC alleged that the Panel had breached Article 11 DSU, and the US (and Canada) responded that the EC was asking the Appellate Body to review findings of fact, inconsistently with Article 17.6 DSU. The Appellate Body bought the EC argument although it did not ultimately find an Article 11 violation. Article 11 of course says "should". Interestingly, the Appellate Body relied upon EC-Hormones when it found in Canada-Aircraft that "should" in Article 13 DSU was "used in a normative, rather than a merely exhortative, sense".
What Does the U.S. Want To See Happen With Appellate Body Reform?
This is from a U.S. statement to the DSB yesterday: We have listened closely as several Members have criticized the United States. These Members argue that the United States has failed to participate in ongoing discussions on Appellate Body reform. These statements are wrong – and appear to re...
I have no idea what President Trump's intentions are here, but the US has been making the case for developing Member differentiation and graduation for as long as I can remember. This includes repeated submissions to the WTO over the past couple of years. So I don't think we should somehow suggest that the US just started this process on 26 July.
A more salient question for me: what are the practical implications of the United States "no longer treating" a Member as a developing country? In most contexts, the judgment is in the first instance one for the Member itself, not the United States. So if for example a prohibition does not apply to developing countries, each Member must decide in the first instance whether it is subject to the prohibition. If the US disagreed, its only recourse would to complain in the relevant WTO Body and ultimately perhaps resort to dispute settlement (assuming developing country status is justiciable).
In those rare instances, such as de minimis exceptions in trade remedy cases or eligibility for preferences, where it is for the United States in the first instance to decide whether to treat a Member as a developing country, the United States already applies its own definitions (as do a number of other Members). But perhaps I am overlooking other instances?
Much ado about nothing? The President's Memorandum on Reforming Developing-Country Status in the WTO
Trump's Memorandum on Reforming Developing-Country Status in the WTO issued yesterday aims to "make trade more free, fair, and reciprocal by devoting all necessary resources toward changing the WTO approach to developing-country status such that advanced economies can no longer avail themselves ...
The WTO is not likely to post videos in real time, because so many disputes today involve business confidential information. There is a general view that there needs to be possibility to edit out such information should a party let it slip by mistake.
As for posting on-line video with a time lag, it makes sense to me. It would reduce the need for travel, with all its costs and carbon footprint, and lighten the burden on the WTO to make rooms and staff available.
However, there may be concern that malicious people might download and manipulate the files. Having seen Ronald Reagan rapping on Youtube, I suppose that is not impossible....
Transparency in WTO Disputes
This is from a U.S. statement to the DSB at the July 22 meeting: With respect to the open meetings and hearings that have taken place, the experience has been entirely successful. The United States is not aware of any incidents of improper behavior by observing members of the public, and the...
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