| After entering into 21 st century, great development has taken place in Chinese foreign trade. The export products of China have a great competitive advantage in international market for the cheap labor cost. Plus with huge trade deficits, Chinese products are put out of business in international market. Western countries had thought China was a Soviet-styled NME and did not conduct CVD investigation on Chinese products for a long time. But Canada amended its domestic law and applied its countervailing law to China in April 2004, which created a precedent of imposing countervailing duty on export products in NMEs. The case has a demonstration effect on the United States, the United States conducted antidumping and countervailing investigations on Chinese coated paper in 2006. Since then, the United States to China continuously conducted antidumping and countervailing measures on Chinese products. Chinese enterprises and industries suffered huge losses.On one hand, China and part of American enterprises sued for “double remedy” in court of international trade(referred as CIT) and won twice in this court. The CIT ruled that the department of commerce of America(referred as DOC) was illegal for it did not deal with double counting in the case. CIT said DOC should take responsibility to explain the double counting in GPX case so as to tackle problems caused in its practice of applying antidumping and countervailing measures on products in NMEs for any respondents would not be possible to prove the double remedy. Just as the countervailing law implies that the double counting is difficult to measure. CIT thought that if DOC wanted to applied countervailing law to NMEs, it should applied new methods to make its measure more reasonable, for example it avoid the problem of double counting. On December 19, 2011, the United States Court of Appeals for the Federal Circuit(referred as CAFC) reaffirmed that the American countervailing law could be applied to NMEs in the rule of GPX case.On the other hand, China appeals the double counting to WTO dispute settlement body, i.e. DS 379. Although the panel finds the “double remedy” maybe exist, China failed to prove that the double remedy was inconsistent with 10, 19.3, 19.4 and 32.1 of SCM Agreement and 6.3 of GATT 1994,which provides that the amount of countervailing duty should be less than the bonus attached to the product. And also China failed to prove the act that the American did not give chance to China for providing necessary information to assess double remedy is inconsistent with 12.1 and 12.8 of SCM Agreement.Finally, the panel thought China failed to prove American measure was inconsistent with 1.1 of GATT 1994. The appellate body reversed the panel’s finding as the interpretation of 19.3 of SCM Agreement and rule that the American violated 19.3 of SCM. Also,the act that the American did not assess whether the double remedy exists in the four sets of anti-dumping and countervailing duty investigations at issue is inconsistent with 10,32.1 of SCM Agreement.The American Congress rapidly passes the amended Act, permitting the application of countervailing law to NMEs. The Act is a response both to DSB rulings and CAFC decision and authorization to DOC to apply countervailing law to NMEs. The effect date dates back to November 20, 2006. But the American ignores the double counting in all cases between between November 20, 2006 and March 12, 2012.What the American do causes dissatisfaction of China. China appeals the new American amended act to WTO again. Firstly, show the dissatisfaction for the American did not adjust the double counting in cases between November 20, 2006 and March 12, 2012; secondly, request WTO to identify the new American Act violating WTO rules.On 27 March 2014, the panel did not support what China said about the Act violating Article X:1, X:2,X:3 of the GATT 1994. On 8 April 2014, China appealed the decision of panel. But the Appellate Body reversed the panel report about its interpretation of Article X:2 of the GATT 1994, and its decision as China did not prove that Section 1 ’effect an advance in a rate of duty or other charge on imports under an established and uniform practice, or impose a new or more burdensome requirement, restriction or prohibition on imports’ ” on 7 July 2014. But because the panel did not provide enough evidences, the Appellate Body was unable to complete the analysis and arrive at a conclusion as to whether the American new amended law violates the WTO rules, which means that the American has no duty to amend its law in its implementation of DSB rule. China had to challenge the Act in the new case.It is a long way to go for China to cope with double remedy. Firstly, the problem is not thoroughly settled in WTO dispute settlement body; secondly, it does not only exist in NMEs. The problem would exist before or after 2016. We should accumulate experiences of litigations in American court and WTO, study WTO rules and actively cope with American unfair trade measure to maintain the interest of Chinese enterprises.This article is divided into four chapters, analyzing “double remedy” respectively from the theory, American law and practices, the analysis of double remedy in WTO and the subsequent American fulfillment of DSB rules, finally analyzing the trend of double remedy and putting forward coping strategies.The first chapter is an overview of “double remedy”. Firstly, define the word “double remedy”; secondly, analyze what causes “double remedy”;thirdly,identify “double remedy” respectively through the analysis and examples of export and domestic subsidies; finally, analyze the illegality and harm of “double remedy”.The second chapter presents American double remedy on China from the respects of politics and law, judicial and legal practice. In the beginning, the United States did not support to apply countervailing laws to China. But because of the trade protectionism and huge trade deficit, DOC changes its position and applies countervailing laws to China, which did not gain the support of CIT and CAFC.The third chapter sets forth the analysis of report of panel and appellate body of DS379 and further demonstrates whether “double remedy” existed and whether American measures violate the article 19.3 of the “SCM agreement". Keep track on the American fulfillment after DS379 report and analyze whether it completely fulfill its duty Combining DS 449 report.The fourth chapter analyses the trend of double remedy and the deficiency in dealing with double remedy, and then put forward improving strategies. Many WTO members thought Chinese economy was still in control of central government according to Chinese accession protocol. There are no rules in WTO or American laws that provide China would automatically get market status after 2016. While genuine and complete U.S. compliance with WTO antidumping rules is unlikely, it is unknown at this point exactly what the U.S. government will do when China’s NME exception expires in 2016. Double remedy is not a temporary problem, it would exist for a long time. Thus, it seems to be very important as how to cope with double remedy.There are two innovations in this paper: firstly, to trace the whole development of “double remedy”, from the trial of American domestic court, to two reports of WTO dispute settlement body and present the recent development related to “double remedy”. Secondly, 2016 is coming, Chinese “non-market economy” problem has become a problem of concern to interested parties. Because at present most scholars focuses “double remedy” in non-market economies and ignores that the “double remedy” may also occur in market economy countries. Under this background, combine with predecessors’ research and analyze possible modes of “non-market economy” after 2016 and put forward several strategies. |
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