| After China joined the WTO, the foreign trade developed rapidly, China has made great contribution to the globalization of the world economy, at the same time, China also had been suffering from unprecedented challenges, mainly caused by developed countries. In order to curb the rise of China’s trade strength, international trade remedy rights were abused. This has lead to trade friction between the members of the WTO, and thus Chinese economic was damaged by this situation. In particular, trade remedy measures taken by WTO members, namely anti-dumping, countervailing investigations and safeguard measures are allowed to WTO rules, but with the outbreak of the financial crisis, trading power economics decline, such as the US economy downturn and the EU recession. Developed countries began to swell rights in terms of trade remedy rights. In recent years, applying both anti-dumping and countervailing investigations become a trend. At the same time, the double remedy impede the smooth development of China’s foreign trade, and if we do not give response to suppress the rise of trade protectionism forces, world trade war will be raised, which would be seriously detrimental to world economic recovery.Based on past international trade practices, developed country still considered China as an non-market economy country, so America did not apply countervailing measures until April 13, 2004. Canada launched anti-dumping and countervailing investigations on the exports products of BBQ racks. Before that, Canada had to modify its domestic laws, in order to legitimize its countervailing duty investigation on the implementation of the non-market economy countries. Then the combined anti-dumping and countervailing investigation has become one of the hottest topics in the field of international trade remedies. Other countries have also followed Canada to suit China’s exports products. In 2005, US House of Representatives passed "US Trade Bill of Rights", although the Bill has not been increased to the law, eventually the United States still enacted the "Tariff Act of 1930 amendment". As a result, the US Department of Commerce has the right to carry out countervailing duty investigations in NME country. In 2006, the United States launched dual investigations against China’s coated paper, since then, the war of trade remedy rights between China and United States began to be staged. Moreover, Europe and other developed countries begin to follow the United States, launching dual measures against Chinese export products. More worsen is the launching of triple relief against the wireless data card from China, namely anti-dumping, countervailing and safeguard measures in combination. As a result, China’s international trade has been hit hard by high tariffs imposed. The frequent dual investigations complaints overwhelmed the companies, and China has become the country that suffered lots of dual investigations. Until 2014, the United States has launched a total of 43 anti-dumping and countervailing investigations against China, therefore, dual measures and double remedy has aroused Chinese and foreign scholars’ attention. However, developed countries use the ambiguities of the WTO rules, so China has a long way to go if she wants to counter dual measures and prove illegality of double remedy.Launching dual investigation gradually becomes the usual mean that imposed by the developed countries to protect their domestic industry and the economy. But the trade remedy will inevitably lead to double remedy. The illegality of double remedy is still in the discussion stage, and the parties do not give the same point of view, but not doubt the essence of the dispute is the fact that exercise of the right of trade remedies is to allow the orderly conduct of international trade and fair competition, so that each member can feel the benefits of free trade. Multilateral trade brought people increased well-being, security and sustainable development. Therefore, if the developed country abuse trade remedy rights, this will violate the purposes and principles of the WTO rules, and the exercise of the right of trade remedy itself would become the shields of the unfair competition among WTO members.According to GATT and WTO rules, dumping refers to the member states sell the products to another member states at the price below its domestic market, or below the cost of the product. Subsidies refer to the member governments or public institutions provide financial support to a specific industry or business manner, in order to support exports. Dumping and subsidies are two means to support their national conventional development of international trade, thus, anti-dumping and countervailing measures are imperative. However, it is not free to use trade remedy measures, and it should be in accordance with the relevant laws, procedures and agreements, or likely it is easy to cause an error trade remedies use. According to the provisions of GATT rules, anti-dumping measures and countervailing measures are two different remedies. In the case of satisfying the applicable conditions, the use of two remedies do not violate the law, but according to " General Agreement on tariffs and Trade(1947)", the rule of no double punishment for the same damage, the damage caused by dumping and subsidies should not be both punished twice. This provision supports the legitimacy of double remedy has a prerequisite. That is when a member state exports products to other member states, the dumping and subsidies cause different damages. It can also be said by the provision that the remedy is illegal if the damage is caused by dumping and subsidies within the same damage percentage. According to the US law in the past, non-market economy countries should not be applied countervailing measures, but due to the rise of China in recent years, the United States and other developed countries want to curb the development of China’s international trade by adapting their national law. So they amend their national law in order to make the countervailing investigation legally and lay a foundation to the use of dual measures used in non-market economy countries. This law is "Tariff Act of 1930," the US Department of Commerce therefore was officially awarded to the right to initiate countervailing duty investigations in the NME country.In the international trade practices in recent years, the US-led developed countries initiate anti-dumping and countervailing investigations frequently. The related industries and enterprises fell, partly due to being levied high anti-dumping duties and countervailing duties; on the other hand, it is due to the dual investigation initiated by the US Department of Commerce after one another. Because of lack of experience in responding to the suits, China’s enterprises are unable to make adequate preparations. Therefore, Chinese scholars are actively studying past precedents, WTO relevant laws and regulations as well as the United States domestic law, and all these do benefits to the future international trade practices. This article will at some length focus on the case in the past, in order to analyze the problem of the widespread international concern from the perspective of positive law. The first time that the United States launched dual investigations against China should be traced back to 2006. A large paper company send an application to the US Department of Commerce, suiting China’s exports products coated paper to the US for dual investigation. Finally China has not been levied anti-dumping duties and countervailing duties. The reason is that the US International Trade Commission held the view that the US domestic related industries had not been suffered material injury, or threat of material injury. However, the case is still causing widespread concern at home and abroad. Because although China was not ultimately levied high anti-dumping duties and countervailing duties, the US Department of Commerce’s final determination has identified the presence of Chinese dumping and subsidies behavior. But at that time, United States had no right to initiate anti-subsidy investigations to the NME country. Such a decision created a new situation in the international trade, that is, for non-market economy countries, the United States can initiate anti-dumping investigation, and the countervailing investigation at the same time. Such a precedent laid a foundation for the future abuse of trade remedy rights.China should make a positive response to the dual measures trends in international trade, in order to protect some related industries and businesses that will not be harmed. Firstly, China should be familiar with the relevant laws and WTO agreements, such as when we consider the dual remedy as illegal and the negotiation fails, we should take the initiative to submit the WTO Dispute Settlement Body(Dispute Settlement Body-DSB). The institution will resolve the trade disputes on the basis of equality, prompt, effective and receiving sides principles. Also through DSB panel or Appellate body, the conclusions have a model precedent. For example, in 2011, the Appellate Body has ruled that the US Department of Commerce hold the China’s state-owned bank and state-owned enterprises are public institutions. The United States has therefore been requested to effectively fulfill its obligations. Secondly, in addition to actively using the dispute settlement mechanism to protect its interests, the country should also be actively responding to the suits. Based on past experiences, actively responding companies can effectively reduce the possibility of high anti-dumping duties and countervailing duties. The related industries should not respond negatively because of no understanding of the relevant laws, regulations and fear of the high cost of responding in order to avoid the vicious cycles.This paper is divided into four chapters, not only analyzing the dual measures from the theoretical perspective, but also from the perspective of US domestic law, international trade practices, and relevant WTO jurisprudence. According to "China’s accession agreement book" 15.2, the status of China’s 15 years of non-market economy country until December 10, 2016 is over, and this period is called the transition period. When this period is over, the problem will be different from the past, but the problem will continue to exist in China and the United States on the international trade field. The legitimate use of trade remedy rights in China is still the focus, which is conducive to promoting the harmonious development of the international trade between America and China, thus sustained the world economic development and stability.The first chapter clarifies the basic concepts of dual measures, double remedy and the reasons of double remedy from the perspective of political, economic and legal analysis. Finally, I defined the relationship between dual measures and double remedy.The second chapter focuses on the illegality of double remedy. Firstly, it violates the GATT Article. Secondly it violates the "Agreement on Subsidies and Countervailing Measures."The third chapter analyzes the legislation about the double remedy and analyzing the famous case and jurisprudence in recent years. Georgetown Steel Case reveals non-market economy countries should not be applied the countervailing duty law. Market-oriented Test Case is a new type of US countervailing duty application to China. The United States first applying dual remedy case "coated paper case," and finally, analyzing the tire case, reveals that the US Federal Circuit Court of Appeals holds that the dual remedy is Illegal.Chapter four analyzes China’s lack of experience in the response to dual remedy. Then this chapter gives the outlook for the future and some recommendations on how to deal with double remedy. |
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