| "Made in China" products have been prevailing all through the world. And China’s amounts of trade in goods have been rising continuously. In addition, the trade imbalance between China and the USA has been growing larger and larger.... Under this background, the trade protectionism is on the ground and gradually heating up in the USA. Since the US government kicked off the anti-dumping (AD) duty and countervailing duty(CVD) investigations simultaneously on Coated Free Sheet from China (CFS Issues) in2006, the US Department of Commerce (DOC) has carried out AD duty and CVD investigations simultaneously against China for many times. In hence, Chinese industries suffer huge losses. On December19th of2011, the U.S. Court of Appeals for the Federal Circuit (CAFC) held that the US CVD law does not apply to non-market economy (NME)countries, which was described as the holding of Georgetown Steel by CAFC in1986, in the adjudication of Certain New Pneumatic Off-the-Road Tires. If only this adjudication entered into force, China’s export enterprises which had suffered, was suffering or would suffer from AD duty and CVD investigations simultaneously was supposed to benefit from this adjudication. However, the USA immediately permitted applying the US CVD law to NME countries by revising the statute. On March13th of2013, the amendment of U.S. Tariff Act of1930(the GPX Amendment) which had been passed successively by the Senate and the House of Representatives was signed by President Obama and thus entered into force. The GPX Amendment authorizes the DOC to apply the US CVD law to NME countries and admits the validity of application to NME countries retrospectively.Before the enactment of the GPX Amendment, the NME was a legal barrier which denied the legality of the US government’s applying CVD law to China. So it’s illegal for the US government to take the AD duty and CVD investigations simultaneously against China. But the GPX Amendment’s entering into force makes the USA leap over the NME barrier. Nevertheless, when the US government takes the AD duty and CVD investigations simultaneously against China, it still faces the problem of double remedy which was another legal barrier.Double remedies may arise when both AD duties and CVDs are imposed on the same imported products. The term double remedies do not, however, refer simply to the fact that both an AD duty and a CVD are imposed on the same product. Rather, double remedies also refer to double counting, and it means circumstances in which the simultaneous application of AD duties and CVDs on the same imported products results in, at least to some extent, in the offsetting of the same subsidization twice. Double remedies typically occur in cases where NME methodology is used to calculate the margin of dumping.Double remedies are illegal in essence, which is affirmed in the dispute settlement report (WT/DS379) by the appellate body. And double remedies violate the relevant provisions of the SCM Agreement in case of domestic subsidization. For example, double remedies violate the obligation arising from article19.3of the SCM Agreement, which requires investigating authorities to impose countervailing duties in the "appropriate" amounts. It’s illegal that the US government applied the AD duties and CVDs concurrently against China previously, for there existed double remedies. Therefore, the refusal by the USA in the GPX Amendment to investigate and avoid double remedies which occurred before the GPX Amendment entered into force violates the obligations of the USA under international law. The USA should revise the GPX Amendment and take measures to investigate and avoid double remedies ever occurred. Besides, if the USA does not take effective measures to avoid double remedies when it applies the AD duties and CVDs against China concurrently, China can defend its industries by advocating the illegality of the US concurrent application of the AD duties and CVDs.Double remedies widely existed in concurrent applications of AD duties and CVDs. Double remedies occur in NME methodology cases in which exceptional methods are used for the calculation of normal value, which are not based on actual prices in the exporter’s domestic market. The exceptional methods include both using the subrogate country price, the constructed price or the sales price of the like product in importing country against NME country and using the exporting price to the third country or the constructed price against Market Economy country. Also, double remedies occur in part of Market Economy methodology cases in which the domestic sales price is used for the calculation of normal value, which is based on actual prices in the exporter’s domestic market. Consequently, after the end of China’s transitional period, namely, after the year of2016, the US government still will have the obligation to avoid double remedies in several cases if it applies the AD duties and CVDs concurrently against China. And all parties of the WTO are supposed to pay attention to avoiding double remedies, for double remedies are quite easy to occur.Applying the Method of Dumping Margin Adjustment or the Method of Injury Margin Comparison can avoid double remedies. The Method of Dumping Margin Adjustment is based on legal regulations of the WTO and is quite operational. And it refers to reducing the AD duty by the amount of the countervailing duty or part of the countervailing duty accordingly. The Method of Injury Margin Comparison bases the comparison on injury margin. Because the injury is the joint affection by dumping and subsidization and the injury margin has the character of identity, applying the Method of Injury Margin Comparison also can avoid double remedies effectively. Generally speaking, steps to apply the Method of Injury Margin Comparison are more complicate. And applying the Method of Injury Margin Comparison needs to apply the Lesser Duty Rule which has not been admitted by most WTO members. |
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