United States Continued Dumping and Subsidy Offset Act of 2000

1. United States Continued Dumping and Subsidy Offset Act of 2000 • Presented by林孟衛、田仁杰、李頲翰

2. United States Continued Dumping and Subsidy Offset Act of 2000 Ⅰ. Introduction of CDSOA Ⅱ. Notice of Appeal Ⅲ. Issued Raised 1.Anti-dumping 18.1 ＆ SCM 32.1 2. Anti-dumping 5.4 ＆ SCM 11.4 3. Anti-dumping 18.4 , SCM 32.5, WTO Agreement ⅩⅥ:4 ＆ DSU 3.8 4. DSU 9.2 Ⅳ. Discussion

3. І. CDSOA 1. United States Continued Dumping and Subsidy Offset Act of 2000 (a new Section 754 to Title Ⅶ of the Tariff Act of 1930) 2. Customs shall distribute duties assessed pursuant to a countervailing duty order (“CD”), or an anti-dumping duty order (“AD”), to “affected domestic producers” for “qualifying expenditures”. 3. affected domestic producers: petitioner or interested party; support the petition of AD or CD 4. qualifying expenditures: expenditures on specific items listed; incur after AD or CD; relate to the production of the same product under AD or CD

4. 5. Customs shall establish a special account and a clearing account regarding each AD or CD. 6. All AD and CD assessed are first deposited into a “clearing account”. 7. Only when the entries have been liquidated, will the funds be transferred to a special account. 8. Funds in a special account can be distributed to to the affected producers.

5. Ⅱ. Notice of Appeal • An appeal is commenced by notification in writing to the DSB, and with simultaneous filing of a Notice of Appeal with AB Secretariat. • The Notice of Appeal should contain： a. the title of the panel report under appeal. b. the name of the party filing the Notice of Appeal . c. the service add., telephone & fax numbers of the party to the dispute. d. a brief statement of the nature of the appeal, including the allegations of errors in the issues of law covered in the panel report and in the legal interpretations developed by the panel.

6. Ⅱ. Notice of Appeal • Canada’s argument: U.S.’ submission to 4 issues that were not included in the Notice of Appeal: 1.Panel failed to meet its obligations under Art.11 of the DSU. 2.Panel failed to meet its obligations under Art. 12.7 of the DSU. 3.Panel exceeded its terms of reference by examining claims concerning the CDSOA in combination with other U.S. laws & regulations. 4. Panel exceeded its terms of reference by issuing an advisory opinion on a measure that not before it.

7. Ⅱ. Notice of Appeal • U.S.’ response: 1.the reference that the panel failed to meet its obligations under Art.11 and Art. 12.7 of the DSU is merely an argument in support of its claim that the panel erred in interpreting AD 18.1 and SCM 32.1. 2.As a question of jurisdiction, it is open to AB to examine whether a panel exceeded its terms of reference

8. Ⅱ. Notice of Appeal • AB’s opinion: 1.the arguments of DSU 11&12.7 are moot. 2.U.S.’ arguments that Panel exceeded its terms of reference are not included in the Notice of Appeal. 3.however, these issues are so fundamental that U.S. needn’t raise in the Notice of Appeal.

9. Ⅲ. Issues Raised 1.Anti-dumping 18.1 ＆ SCM 32.1 2. Anti-dumping 5.4 ＆ SCM 11.4 3. Anti-dumping 18.4 ＆ SCM 32.5 4. WTO Agreement ⅩⅥ:4 ＆ DSU 3.8 5. DSU 9.2

10. AD 18.1 & SCM 32.1 • AD 18.1: “No specific action against dumping of exports from another Member can be taken except in accordance with the provisions of GATT1994, as interpreted by this Agreement.” • ASCM 32.1: “No specific action against a subsidy of another Member can be taken except in accordance with the provisions of GATT1994, as interpreted by this Agreement.” • AB’s Analysis: two conditions-- “specific” & “against” one exception-- “in accordance with the provisions of GATT1994, as interpreted by this Agreement” • AB’s Methodology: AD 18.1 and ASCM 32.1 are identical in language, terminology, and structure.

11. Ⅲ. 1.AD 18.1 & SCM 32.1 “specific action against dumping (a subsidy)” Panel’s Test: based on US-1916 Act (AB Report): --specific: the measure may be taken only in situations presenting the constituent elements of dumping or a subsidy. --against: the measure has an adverse bearing on the practice of dumping or the practice of subsidization.  CDSOA constitutes “specific action against dumping (a subsidy)”

12. Ⅲ. 1.AD 18.1 & SCM 32.1 “specific action against dumping (a subsidy)” Determining“Specific”: • U.S.’ Argument: Without challenging the Test, U.S. contends CDSOA does not refer to dumping or a subsidy, and dumping or a subsidy is not a trigger for application of CDSOA. • AB: endorses the Panel’s finding: --“dumping” or “a subsidy” should be defined with Article 2 of AD, Article 1 of SCM. --CDSOA offset payments are inextricably linked to, and strongly correlated with a determination of dumping or a subsidy.

13. Ⅲ. 1.AD 18.1 & SCM 32.1 “specific action against dumping (a subsidy)” Determining “against”: • Panel: the measure has an adverse bearing on the practice of dumping or the practice of subsidization. • U.S.’ Argument: referring to New Shorter Oxford Dictionary, “against dumping (a subsidy)” must be “in hostile/active opposition” to, and have “direct contact” with imported goods or the entity responsible for the dumped or subsidized goods. • AB: backs the Panel’s Finding: --Textual Analysis: the text only refers to specific action against “dumping (a subsidy)” --Object and Purpose Analysis: to limit the range of actions that a Member make take unilaterally to counter dumping or subsidization.

14. Ⅲ. 1.AD 18.1 & SCM 32.1“except in accordance with the provisions of GATT 1994, as interpreted by this Agreement.” • AB/ Panel Restates AB Opinion in U.S. 1916 Act: --Article VI of GATT & AD Limits Response to Dumping to (i) Definitive Anti-dumping Duties; (ii) Provisional Measures; (iii) Price Undertakings. --Article VI of GATT & SCM Limits Response to a Countervailable Subsidy to: (i) Definitive Countervailing Duties; (ii) Provisional Measures; (iii) Price Undertakings. (iv) Multilaterally-sanctioned Countervailing Measures under Dispute Settlement System.  CDSOA Falls into None of Above Reponses, thus Not in Accordance with the Provisions of GATT 1994, as Interpreted by this Agreement.

15. Ⅲ. 2.AD 5.4 & SCM 11.4 • AD 5.4: “An investigation shall not be initiated pursuant to paragraph1 unless the authorities have determined, on the basis of an examination of the degree of support for, or opposition to, the application expressed by domestic producers of the like product, that the application has been made by or on behalf of the domestic industry…” • SCM11.4: “An investigation shall not be initiated pursuant to paragraph1 unless the authorities have determined, on the basis of an examination of the degree of support for, or opposition to, the application expressed by domestic producers of the like product, that the application has been made by or on behalf of the domestic industry…”

16. Ⅲ. 2.AD 5.4 & SCM 11.4 • Panel’s Finding on CDSOA under AD 5.4 & SCM 11.4: --CDSOA “defeats the object and purpose of AD 5.4 & SCM 11.4: CDSOA “renders the quantitative test included in AD 5.4 and SCM 11.4 irrelevant.”“may be regarded as having undermined the value of AD Article 5.4/ SCM Article 11.4…” --With CDSOA, the U.S. “may be regarded as not having acted in good faith in promoting this outcome.”

17. Ⅲ. 2.AD 5.4 & SCM 11.4 • AB Overturns the Panel’s Finding on AD 5.4 & SCM 11.4: --Textual Interpretation: Panel’s Interpretation Does Not Apply the Customary Rules of Interpretation, Article 31 (1) of the Vienna Convention: “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purposes.” Panel Dismissed the Textual Analysis of AD 5.4/ SCM 11.4 Improperly. Panel’s Object and Purpose Analysis Looked Improperly into the Motives of Petitioners and Domestic Producers.

18. Ⅲ. 2.AD 5.4 & SCM 11.4 • AB Overturns the Panel’s Finding on AD 5.4 & SCM 11.4 (continued): --Good Faith Given AB’s Conclusion that CDSOA Does Not Violate AD 5.4 & SCM 11.4, Whether the U.S. Has Acted in Good Faith in Enacting CDSOA is Irrelevant. AB Confirms the Principle of Good Faith is Binding on Parties under WTO Regime and International Law (citing Shrimp and Hot-Rolled Steel), the Evidence before Panel Does Not Support the U.S.’ Violation of Good Faith.

19. Ⅲ. 3. Anti-dumping 18.4 , SCM 32.5, WTO Agreement ⅩⅥ:4 ＆ DSU 3.8 • AD 18.4 & SCM 32.5 provide that “each member shall take all necessary steps,…,to ensure the conformity of its laws, regulations and administrative procedures with the provisions of the agreement”. • WTO Agreement ⅩⅥ:4 is similar to AD 18.4 & SCM 32.5 • CDSOA constitutes a case of nullification or impairment as DSU 3.8 provides.

20. Ⅲ.4. Article 9.2 of the DSU The single panel shall organize its examination and present its findings to the DSB in such a manner that the rights which the parties to the dispute would have enjoyed had separate panels examined the complaints are in no way impaired. If one of the parties to the dispute so requests, the panel shall submit separate reports on the dispute concerned.

21. Ⅲ.5. Article 9.2 of the DSU Panel: reversed 1.Such requests should be made in a timely manner, since any need to prepare separate reports may affect the manner in which a panel organizes its proceedings. 2.Panel－2001.8.23; Separate Panel Request－2002.6.10; Panel report－2002.9.16. US: 1.Unqualified right; no requirement by a certain time or of demonstrating otherwise suffered

22. Ⅲ.5. Article 9.2 of the DSU Appellate Body: 1.Article 9.2 contains no requirement by a certain time (general right). However, the text does not explicitly provide such requests may be made at any time (unqualified right). 2.Object and purpose of the DSU (Art. 3.3)－promptandeffective. 3.EC Hormones－the DSU and its Appendix 3 leave panels a margin of discretion in accordance with due process.

23. Discussion & Thanks for Your Attention !!