Calculation Of The Amount Of Countervailing Duties Within The WTO Framework

All being a member of the World Trade Organization (the "WTO"), the United States, European Union, and China adopt different approaches towards the legislation and practice regarding the calculation of the amount of countervailing duties. This phenomenon naturally brings out several questions:Do all of these legislations and practices regarding the calculation of the amount of countervailing duties comply with current rules within the WTO framework? If the situation of non-compliance exists, what should be the legitimate calculation method for the amount of countervailing duties? Within the current framework of substantive rules, does a practical way to achieve the legitimate calculation method exist? This thesis will try to answer these questions. Besides its special theoretical value, this study may also help to protect the rights and interests of exporters in China against the background of a large number of countervailing investigations initiated by the United States, and provide references for improving relevant legislation and practice of China.To answer the questions above, this thesis will introduce the historical developments and current situations of the legislations and practices of the United States, European Union, and China regarding the calculation of the amount of countervailing duties. Then relevant rules within the WTO framework will be introduced and a legality analysis of the legislations and practices of the countries (organization) above will be conducted. Under current WTO rules, the calculation method for the amount of countervailing duties is mainly prescribed in the "Agreement on Subsidies and Countervailing Measures"(the "SCM Agreement"), especially its Article19. In a relevant dispute, the WTO Appellate Body, when interpreting Article19.3of the SCM Agreement, established the independent legal status of the requirement of "in the appropriate amounts" on countervailing duties. However, only those countervailing duties which constitute double remedy are found not to be in appropriate amounts in this case. With anti-dumping duties put aside, the issue of calculating "appropriate amount" of countervailing duties remains unsolved.For the "appropriate amount" to be determined, the target of imposing countervailing duties should be identified at first. Obviously, the calculation methods will be different under different targets. Behind the different targets reflected by different legislations and practices is influence of different theoretical understandings about subsidies and countervailing measures. As a result, through the appropriateness analysis and comparison of these different theoretical understandings in the context of imposing countervailing duties, after identifying the more reasonable theoretical explanation, i.e. corrective justice, the compatible target will become the reference for studying the calculation method of "appropriate amounts." Furthermore, according to a more reasonable interpretation of the target, the corresponding superior calculation method will be identified, which means that the principle of misalignment shall be adopted when calculating countervailing duties.With the superior calculation method determined in theory, a practical way to achieve such ideal situation still needs to be found within substantive rules. Within the WTO framework, soft law plays a humble while significant role. A practical way may be found through researching on and utilizing of soft law. Specifically, under the rules of SCM Agreement, Article19.2is a soft rule, in hard form but with soft content. On one hand, Article19.2will help interpret and then harden the soft concept of "appropriate amounts" in Article19.3. On the other hand, the hardening of Article19.3will then harden Article19.2. Through the "hardening" function of soft law in WTO rules by complementing and interpreting otherwise soft rules, the calculation method of countervailing duties adopting the principle of misalignment will be finally achieved.