On The Determination Of "Public Institution" Under "SCM Agreement"

Question about how to explain the meaning of the "public body", is the first argument of China to accused the US of countervailing measures in violation of the SCM agreement under the WTO dispute settlement mechanism.In case DS379, the WTO Panel rejected China’s claims that "public body shall be the agency whom has been given the government authority and to perform the functions of the government" and support claim of the United States that "public body is the agency which is controlled by the government" instead. However, the Appeal Body rejected the panel’s interpretation and support China’s point of view from the conclusion.Through studying the process of explaining the legal definition of "public body" by Panel and the Appellate Body in DS379and earlier related cases, the author holds that the standard definition of "public body" of Panel is too broad which ignore the specific conditions and actual situation of China and it is suspected of abuse countervailing measures. Neither the analysis process nor the final conclusion about "public body" of Panel is not reasonable.This paper agrees the standpoint of the appellate body and conclude that "public body" should be "the agency who has been authorized to have, to perform the control power of governmental", both the investigation organization and the WTO Panel should make appropriate evaluation and investigate of the core attributes between the entities involved and the narrow sense of the government once meet with such problems. Finally the author put forward the essence of the dispute for the definition of "public body"in case WTDS379and make some suggestions about the countervailing practice in the future.