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United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina: a cloudy sunset

  • GENE M. GROSSMAN (a1) and JASPER WAUTERS (a2)
Abstract

We review the WTO Appellate Body report on United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina (WT/DS268/AB/R, 29 November 2004). This dispute is one of several that deals with sunset reviews of antidumping-duty orders. In its ruling, the AB reasserts a rigid distinction between mandatory and discretionary law, and sets a very high standard for Member challenges to laws or practices that allow for violations of WTO obligations but do not mandate such behavior. We argue that this ruling is unfortunate, because it diminishes scope of and incentives for ‘as-such’ challenges to laws and practices, which have a potentially useful role to play in the world trading system. The AB ruling also overlooks the purpose and objectives of sunset reviews – to ensure that duty orders are not extended when their removal would generate no harm to an import competing industry – by failing to impose sufficient discipline on their conduct. We argue that a sunset review requires an evaluation of competitive conditions in the industry and of the reasons and incentives for dumping, in order that the investigating authority can judge whether the removal of a duty order would lead to a continuation or recurrence of dumping and injury. The Appellate Body's rulings in this and other similar cases have the effect of relieving the investigating authority of this responsibility and thereby render the sunset review process virtually meaningless.

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References
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Boltuck, R. D. and Litan, R. E. (eds) (1991), Down in the Dumps: Administration of the Unfair Trade Laws, Washington, DC: The Brookings Institution.
Boltuck, R. D. and Kaplan, S. T. (1999), ‘An Economic Approach to ITC Sunset Reviews’, in Lawrence, R. (ed.) Brookings Trade Forum 1998, Washington, DC: The Brookings Institution.
Horn, H. and Mavroidis, P. C. (2006), ‘European Community – Antidumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil’, in Horn, H. and Mavroidis, P. C. (eds) The American Law Institute Reporters' Studies – The WTO Case Law of 2003, Cambridge: Cambridge University Press.
Howse, R. and Neven, D. J. (2003), ‘Argentina – Definitive Anti-dumping Measures on Imports of Ceramic Floor Tiles from Italy’, in Horn, H. and Mavroidis, P. C. (eds) The American Law Institute Reporters' Studies – The WTO Case Law of 2001, Cambridge: Cambridge University Press.
Howse, R. and Staiger, R. W. (2006), ‘United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan: A Legal and Economic Analysis of the Appellate Body Ruling’, in Horn, H. and Mavroidis, P. C. (eds) The American Law Institute Reporters' Studies – The WTO Case Law of 2003, Cambridge: Cambridge University Press.
Janow, M. E. and Staiger, R. W. (2003), ‘European Communities – Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India’, in Horn, H. and Mavroidis, P. C. (eds) The American Law Institute Reporters' Studies – The WTO Case Law of 2001, Cambridge: Cambridge University Press.
Keck, A., Malashevich, B., and Gray, I. (2006), ‘A “Probabilistic” Approach to the Use of Econometric Models in Sunset Reviews’, Staff Working Paper ERSD-2006-01, World Trade Organization Economic Research and Statistics Division, Geneva, Switzerland.
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World Trade Review
  • ISSN: 1474-7456
  • EISSN: 1475-3138
  • URL: /core/journals/world-trade-review
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