Double Counting in the US Legislation against Non-Market Economies
– ‘As Such’ and ‘As Applied’ Analysis
Thi Anh Nguyet Le* and Hong Quy Mai**
Abstract: Double counting is stipulated under Art VI:5, the General Agreement on Tariffs and Trade (GATT) 1994 and implemented under Section 772(c)(1)(C) of the Tariff Act 1930 and the anti-subsidy law (codified at 19 U.S.C. § 1677a(c)(1)(C)) in the United States of America; it is intended to prohibit the imposition of both Countervailing duties (CVD) and anti-dumping (AD) measures to compensate for the same situation of dumping and export subsidization. Moreover, pursuant to accession documents of People Republic of China (PRC) and Vietnam (hereinafter non-market economy, NME, countries), it is the discretion of the importing authorities, including, but not limited to, the US Department of Commerce (DOC) to adopt a differential methodology in determining price comparability in AD and CVD proceedings (hereinafter the NME methodology) to imports originating from the NMEs. However, neither did the Antidumping Agreement (ADA), the Agreement on Subsidy and Countervailing Measures (SCM Agreement) nor the accession documents replicate or elaborate on Art VI:5 of the GATT 1994, yet they do not preclude Art VI:5 GATT 1994 from its effects. As of the date of writing, the US has initiated 29 AD/CVD cases against imports originating from PRC and one against imports originating from Vietnam.(1) It is noteworthy that in United States-AD and Countervailing Duties on Certain Products from China,(2) PRC challenged the US before the Dispute Settlement Body (DSB)in which PRC claimed that the US regulations are inconsistent, ‘as such’ and ‘as applied’, with the US’s obligations pursuant to Art VI:5 of the GATT 1994. The paper’s principal aim is to evaluate the consistency of the US AD and CVD regulations with the GATT/WTO law. Its main argument is that the recent change regarding the US’s application of CVD to NMEs in 2006 has not been made in a consistent way, and it is very likely for the US rule to be found in violation of Art VI:5 of the GATT 1994.