Research On The Exceptional Rules Of "Separate Rate" In Anti-dumping Practice Of America And EU

According to the statistics of 2013, the United States has become China’s first largest trading partner, while European Union is China’s second largest trading partner. China has high mutual trade dependence with EU and U.S. However, China suffers most frequent anti-dumping investigation from EU and U.S. This current situation has largely deteriorated the export environment of Chinese enterprises.In the cases of anti-dumping investigates U.S and EU have initiated against China, the issue of non-market economy status of China becomes the prominent problem. The results of the "non-market economy status" include two special rules:"surrogate country selection" and "single countrywide duty". Chinese export enterprises suffering from high anti-dumping duty rate verdict from U.S and EU, which is mainly due to these two special rules. The ambiguous definition of the "Non-market economy status" in the WTO Anti-dumping Agreement leaves import countries’ domestic law and national administrations a wide range of discretion. Besides, in Article 15 of Protocol on the Accession of the People’s Republic China China acknowledges its "Non-market economy status" would last for at most 15 years. In fact, U.S takes these two points as legal base to treat China as Non-market economy country. Although EU listed China as the "Revised country" from "Non-market economy country" in 1998, it didn’t substantially solve the problem, Chinese export enterprises still have to prove they are qualified to meet certain criteria so that they can be treated as market economy country.In light of the current situation, it’s difficult for China to change the "Non-market economy status" by appealing to WTO dispute settlement mechanism. However, in contrast to the "surrogate country selection" and "single countrywide duty" rules, "separate rates" is an exceptional rule U.S and EU adopt in practice as an alleviation of those two severe rules. Since WTO Anti-dumping Agreement and Protocol on the Accession of the People’s Republic China provide no specific article of "surrogate country" or "production element" to fix the normal value of goods, there is no sound legal basis for "surrogate country" rule. Chinese government could resort to legal remedies from WTO disputes mechanism. Chinese export enterprises could try for "separate rates" qualification, or select "surrogate country" in favor of China, among which, "separate rate" exerts great influence over benefits of Chinese export enterprises. Statistics shows that since 1995, over half of the anti-dumping verdicts of U.S against China have the flat duty rate over 100%, and average duty rate 112.85% which is three and half times of the market economy country’s average duty rate(32.03%) at the same period. In contrast to other country, the extremely high anti-dumping duty rates usually force Chinese export enterprises out of market and make similar products from China less competitive in European and American markets. Therefore, China should attach more importance to the issue of "separate rates". This paper draws some experiences from the comparative analysis on the "separate rates" practice, so that Chinese government and enterprises could have various approaches to acquire "separate rates" in order to reduce Chines exporters’ loss in anti-dumping of EU and U.S against China.