What Regime for Ad Investigations by the European Union on Imports from China after the Expiration of Par.15 (a) (ii) of China's Accession Protocol on 11 December 2016
16 Pages Posted: 9 Nov 2016
Date Written: 2016
Abstract
Our analysis of this contentious issue concludes that after the expiration of subpar. (a) (ii) of Section 15 of China’s Accession Protocol on 11 December 2016 and consistent with the requirements of the WTO Anti-Dumping Agreement (ADA) of a “fair comparison” to be made between export price and the normal value of a product in AD investigations, Sect.15 of China’s Accession Protocol still allows importing countries to treat China as a non-market economy (NME). As a consequence, resort to constructed value based on the prices and costs of an analogue third country instead than on the domestic ones in China, if the latter are being distorted by state’s intervention, remains possible and compliant with Sect.15 (a) AP. However, recourse to this alternative methodology cannot be “automatic” anymore. Consistent with the Appellate Body findings in EC-Fasteners (21.5), even when the use of third country’s prices and costs is legitimate, these have to be adjusted to take into account differences that may affect the third country’s price and costs comparability with non-distorted Chinese domestic prices and costs. The Appellate Body findings in EU- Biodiesel from Argentina may also be relevant, in that they restrict the ability of an importing country’s AD authorities to disregard internal prices in the exporting country based on the argument that they are depressed and disconnected from world prices due to some export taxation of the relevant raw material.
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