On Legal Issues Of "Facts Available" In China-GOES

Article6.8of the Anti-Dumping Agreement and article12.7of the Agreement onSubsidies and Countervailing Measures both provide the rule of "Facts Available". Asan important evidentiary rule in the anti-dumping investigation and in thecountervailing duty investigation, it is designed to ensure that even if the interestedparties don’t cooperate to provide the necessary information that are needed by theinvestigating authorities to make determinations, the authorities are entitled to makedetermination on the bases of facts available to make sure that the investigation can bedone successfully. But in practice, the contradiction of efficiency and fairness, and thefuzziness of the language in the provisions make the investigating authorities have agreat space of discretionary in using facts available. Therefore, in order to limit theabuse of "facts available" to punish the non-cooperative interested parties, and makesure that the determinations by the investigating authorities are based on the best andobjective facts, the Anti-Dumping Agreement provides the rigorous conditions of theuse of "facts available" through Annex Ⅱ. It provides the due process rights theinvestigated parties have and the due process obligations the investigating authoritiesshould take. At the same time, through the panel reports and appellate body reportsthe WTO dispute settlement body makes lots of legal interpretation about the relatedterms which compose the conditions in using "facts available" that are found inspecific dispute cases,. This article is about to make analysis on legal issues of "factsavailable" which are involved in China-GOES (DS414), in order to clarify the rightuse of it further. In the end, this article puts forwards the advices for the practice ofthe anti-dumping and countervailing investigations, in order to protect theinternational trade interests of our nation.The thesis of this article is that whether MOFCOM who are the initiator of theanti-dumping and countervailing investigations in China-GOES:(1)actedinconsistently with Article12.7of the SCM Agreement in its use of facts available incalculating the subsidy rates for the two known respondents under certainprocurement programmers;(2) acted inconsistently with Article6.8and paragraph1of Annex Ⅱ of the AD Agreement in using facts available to calculate the dumpingmargins for unknown exporters;(3) acted inconsistently with Article12.7of the SCM Agreement in using facts available to calculate the subsidy rates for unknownexporters.Apart from the introduction and the epilogue, the full text is divided into fourparts:Part Ⅰ: Introducing the factual background of the China-GOES, and putforwards the legal issues of "facts available".Part Ⅱ: Summarizing the legal issues of "facts available" in China-GOES andthe findings in the panel report. Specifically (1) Whether MOFCOM properly findthat the respondents failed to cooperate with MOFCOM’s requests to providetransaction data;(2) Is there any factual basis in the finding that all of the respondents’domestic sales of all products were subsidized;(3) Is it right to use facts available tocalculate the dumping margins for unknown exporters;(4) Is it right to use factsavailable to calculate the subsidy rates for unknown exporters.Part Ⅲ: First, making a brief introduction about "facts available" and thenanalyze "facts available" that specifically involved in China-GOES. Including(1)whether the investigating authority specified in detail the information requiredfrom the respondents;(2)whether the respondents provided the necessary informationwithin a reasonable time;(3)whether the determinations made on the bases of factsavailable have any factual foundations;(4)whether the investigating authority has theright to make adverse inferences.Part Ⅳ: Putting forwards the advices for the practice of the anti-dumping andcountervailing investigations, in order to protect the international trade interests of ourcountry.