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How Easy Is an Easy Case for a Complainant? Comment on US–Zeroing (Korea) DS402

  • JORGE A. HUERTA-GOLDMAN (a1)
Abstract

This article is about how easy a WTO case is when the defendant concedes the claims, the description of the facts, and the evidence presented by the complainant. In US–Zeroing (Korea), the United States did just that. We explore whether Korea obtained any additional benefit by having an easy case. We identified some small benefits at the preparation stage of the case arising from the favourable precedents and shorter time frames only at the Panel stage. There were, however, some additional costs for the complainant stemming from the Panel's reasoning when it addressed case law. In our opinion, benefits were few. Korea was obliged in any case to engage in two years of multilateral procedures before three old measures, which were not defended by the defendant, were revoked.

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Copyright
Corresponding author
*Email: jahg@tilpa.ch.
References
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1 United States – Use of Zeroing in Anti-Dumping Measures Involving Products from Korea, WT/DS402/R, adopted 24 February 2011 (hereafter, US–Zeroing (Korea)).

2 The products concerned were stainless-steel plate in coils (‘SSPC’), stainless-steel sheet and strip in coils (‘SSSS’), and diamond sawblades. See US–Zeroing (Korea), paras. 1.1, 2.1, and 7.26.

3 A similar situation with respect to uncontested claims occurred in Panel Report, United States – Antidumping Measures on Certain Shrimp and Diamond Sawblades from China, WT/DS422/R and Add.1, adopted 23 July 2012. The Panel noted, at para. 7.5, that: ‘the panels in US – Shrimp (Ecuador) and, subsequently, US – Shrimp (Thailand), US – Anti-Dumping Measures on PET Bags, and US – Zeroing (Korea) were presented with a similar situation. Indeed each of these panels examined claims, unopposed by the United States, that were virtually identical.'

4 See Panel Report in US–Zeroing (Korea), paras. 1.1, 3.2, and 7.27 and US communication dated 9 December 2011 (WT/DS402/7). Korea's request for consultations was presented on 24 November 2009. Its request for a Panel is from 8 April 2010. Finally, the US revoked the AD order on Steel Plate and Steel Sheet in November 2011, and on Sawblades in December 2011.

5 See Panel Report in US – Zeroing (Korea), paras. 3.2 and 7.27.

6 See ibid., para. 1.6.

7 The averages are based on: Henrik, Horn, Louise, Johannesson, and Mavroidis, Petros C. (2011), ‘The WTO Dispute Settlement System 1995–2010: Some Descriptive Statistics’, 45:6Journal of World Trade, 11071138.

8 See the Appellate Body Report in European Communities – Export Subsidies on Sugar, WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, adopted 19 May 2005, DSR 2005:XIII, 6365, at para. 337. It ‘has declined to complete the legal analysis where “the factual findings of the panel and the undisputed facts in the panel record” did not provide a sufficient basis for the legal analysis by the Appellate Body’ (emphasis added).

The author is a law practitioner and researcher on trade and investment (www.tilpa.ch). The opinions expressed in this work are entirely those of the author, and he alone is responsible for the accuracy of the information. We would like to thank participants at the ALI Conference on WTO Law 2012, EUI, Florence, Italy, for their comments and guidance in writing this article. Also, we would like to thank Peter Bennett.

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World Trade Review
  • ISSN: 1474-7456
  • EISSN: 1475-3138
  • URL: /core/journals/world-trade-review
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