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Treaty Interpretation or Activism? Comment on the AB Report on United States – ADs and CVDs on Certain Products from China

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1 Paragraph 172 of China's Working Party Report, confirmed as a binding part of China's accession through China's Accession Protocol, provides: ‘Some members of the Working Party, in view of the special characteristics of China's economy, sought to clarify that when state-owned enterprises (including banks) provided financial contributions, they were doing so as government actors within the scope of Article 1.1(a) of the SCM Agreement. The representative of China noted, however, that such financial contributions would not necessarily give rise to a benefit … The Working Party took note of this commitment’ (underlining added).

2 Cartland M., Depayre G., and Woznowski J. (2012), ‘Is Something Going Wrong in the WTO Dispute Settlement?’, 46:5Journal of World Trade, 979, at 1000 and 1001.

3 AB Report, para. 318: ‘evidence that a government exercises meaningful control over an entity and its conduct may serve, in certain circumstances, as evidence that the relevant entity possesses governmental authority and exercises such authority in the performance of governmental functions’.

4 GATT Article VI:5 reads as follows: ‘No product of the territory of any contracting party imported into the territory of any other contracting party shall be subject to both anti-dumping and countervailing duties to compensate for the same situation of dumping or export subsidization.’

5 Cartland et al., supra note 2, at 995 (‘The effect of the AB's analysis … is to render the lesser-duty rule essentially mandatory in the context of simultaneous application of AD and CVD to non-market economies … One does not to be a researcher in the history of the negotiations of Article 19 … to know that such a linkage between the amount of a subsidy and injury has never been agreed.’).

6 Steinberg Richard H. (2004), ‘Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints’, 98:2American Journal of International Law, 247275.

7 Nielson Daniel L., and Tierney Michael J. (2003), ‘Delegation to International Organizations: Agency Theory and World Bank Environmental Reform’, 57:2International Organization, 241276.

8 Ferejohn John (2002), ‘Judicializing Politics, Politicizing Law’, 65:3Law and Contemporary Problems, 4168 at p. 63.

9 See Manfred Elsig and Joost Pauwelyn (forthcoming 2013), ‘The Politics of Treaty Interpretation: Variations and Explanations Across International Tribunals’, in Jeffrey L. Dunoff and Mark A. Pollack (eds.), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art, Cambridge: Cambridge University Press.

10 Steinberg Richard H. (2004), ‘Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints’, 98:2American Journal of International Law, 247–275, at p. 275.

* For the benefit of full disclosure, the author has been involved in this dispute on the side of certain US companies who originally petitioned US authorities to impose AD and CVD duties against selected imports from China. The opinions expressed in this comment are, however, strictly personal and cannot be attributed to anyone else but the author himself.

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World Trade Review
  • ISSN: 1474-7456
  • EISSN: 1475-3138
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