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The Study Of Antidumping Cases In European Courts: The Chinese Perspective

Posted on:2006-05-29Degree:MasterType:Thesis
Country:ChinaCandidate:X W HanFull Text:PDF
GTID:2166360182487680Subject:International law
Abstract/Summary:PDF Full Text Request
Antidumping , as a legal and effective method of protecting native industries in WTOsystem, is widely employed by the Parties. From 1995 to 2005, China is NO.1 target stateof antidumping implemented by other economy entities, among which the European Union(EU) lists the third in the number of both investigations initiated and final measuresadopted. Comparatively, EU's antidumping activities have graver impacts on Chinesegoods exports and Sino-EU economic relation as well, for EU is composed of 25sovereignty states and the biggest trade partner of China in 2005. In light of the fact thatEU frequently initiates antidumping investigations against Chinese imports, refuses to grantChinese Mainland with full "market-economy"treatment and cannot either in the nearfuture, it is necessary for Chinese companies to find the effectual countermeasures forantidumping in the valid EU legal system, with the purpose of reducing the loss to the least.While numerous works at home and abroad have been written on EU antidumpinglaw, no comprehensive review of the antidumping cases in European Cour of Justice andEuropean Court of First Instance (thereafter as "European Courts") has been undertaken.This study represents the first systematic analysis of the 54 antidumping lawsuitsconcerning Chinese import products in European Courts and seeks to draw valuableconclusions for Chinese companies to manipulate EU antidumping activities. It carriesthrough the case-study with the methods of positivist analysis, induction and comparativestudies.In the frameworks of EU Law and WTO Law, this case-study seeks to examine andinduce EU case-law regarding to the essential elements in antidumping proceedings, aswell as shed light on the role that European Courts play in EU antidumping through judicialreview procedure. Mainly, this study is practice-oriented and has two-side purpose: toprovide a systimatic reference for Chinese companies that possibly bring antidumpinglawsuits in European Courts and to examine the effect of antidumping lawsuit as acountermeasure for EU antidumping activities.The descriptive part of this study provides an introduction of essential elements of EUantidumping law;an contrast of the concepts concerned;and a review of EU judicialreview system of antidumping activities, and particularly, of the special antidumpingarticulations for "non-market-economy"states like China. The analytic part examines thestudy object from two dimensions: the survey of the cases concerned as a whole and thein-depth and case-by-case study as to the procedural and substantive issues in antidumpinglawsuits.Concretely, based on the 54-case-table, which lists the case number, the parties, theapplications, main pleas in law, the rulings of the Court and the operative part of judgment,the statistic analyses are made from various angles and take the forms of separate table: thedifferent applicants, the sort of acts, the Basic Regulation applied, the main pleas in law,the results of lawsuits and the legal representatives of the applicants. And the in-depth andcase-by-case study covers the case-law of admissibility of antidumping lawsuits,establishment of essential elements in antidumping proceedings, the general principles ofCommunity law applied, the effect and consequences of antidumping lawsuits, and therevelation and lessons available for Chinese companies accordingly. The emphasis of thispart is the analysis and induction of the case-law with regard to determination of likeproduct, constructed normal values, choice of analogue state and granting of"market-economy"status to individual companies in determinating normal value ofproducts from non-market economy states, determination of injuries suffered byCommunity industry and causality, the consideration of antidumping measure andcompetition policy in assessing Community interests, "one single duty for one state" policyand "individual treatment", use of data and so on.In conclusion, this study is unique primarily in four regards: the case-study in thefield of EU antidumping law, the Chinese perspective, the choice of study object and thestudy methodology. The object of this study includes all the antidumping cases concerningthe imports from Chinese mainland, Hong Kong, Taiwan and Macao since theestablishment of the European Court of Justice, with the forms of judgment, order andopinion of Advocate General. The approach of statistic analysis of the cases as a whole iscombined with the approach of legal analysis of the contents case-by-case, which makes itpossible to analysize the cases from the dimensions of latitude and longititude.Based on the foregoing study, there are some implications relating to EU judicialreview system of antidumping activities: the Commission and the Council(thereafter as"the Institutions") enjoys wide discretion in antidumping, therefore, the European Courtsconfine themselves in judicial review and the main function is to supervise;the oppositeparties in antidumping investigation and lawsuit are not equivalent in power and source, theInstitutions and the Community producers at one side, and the producer and/ or exporterand importer of the products concerned at the other side, which makes it more difficult forproducers and/or exporters or importers of the products to succeed in challenging theantidumping measures;and in spite of the disagreements of several decisions, theantidumping case-law of European Courts constitutes a coherent and consistent system andan indispensable part of EU antidumping law as well, supplementing and refining thestatute law.The main conclusions of the study are just the answers to the questions brought up atthe fore of the paper. Firstly, according to the cases, Chinese companies can scarcely winthe antidumping lawsuit and annul the antidumping regulations as a result, owing to theself-confinement of European Court in judicial review, and especially, the pleas in lawarising from the issue of 'non-market-economy'state can hardly be supported by the Courts,though there definitely exists the possibility of successful challenge. Further, the lawsuitsper se are of merits in many facets, though all the lawsuits brought by Chinese companiesfailed. Secondly, from a wider view, by comparison to proactive measure and reactivemeasure, antidumping lawsuit, as the counteractive measure for EU antidumping, is not aneffectual choice for Chinese companies. To manipulate antidumping activities, Chinesegovernment should make out a long-term strategy and the companies concerned shouldadopt proactive and reactive measures positively. To sum up, antidumping lawsuit as thelast resort in EU antidumping field should be the last choice for Chinese companies .
Keywords/Search Tags:antidumping, EU judicial review system of antidumping activities, "non-market-economy"state, case-law, countermeasure for antidumping
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