China’s Market Economy Status Under WTO Antidumping Law after 2016
18 Pages Posted: 3 Nov 2015
Date Written: March 31, 2013
Paragraph 15(d) of China’s Accession Protocol provides that the provisions of subparagraph 15(a)(ii) shall expire in 2016. Subparagraph 15(a)(ii) permits the importing Member to derogate from a strict comparison with Chinese prices or costs when determining the normal value of the products if the producers under investigation cannot clearly show that Market Economy conditions prevail in the industry in question. While a respected commentator argues that, despite the stipulated expiration, the importing Member can still treat China as a Non-Market Economy and use alternative methodologies based on the remaining provisions in the chapeau, this paper takes a different view by analyzing the role and textual structure of paragraph 15(a) in light of the negotiation documents and relevant rulings of the Appellate Body in EC-Fasteners. It demonstrates that the expiry of subparagraph 15(a)(ii) in 2016 will have the same effect as the expiry of paragraph 15(a) as a whole. Thus, there will no longer be any legal basis in China’s Accession Protocol for the importing Member to derogate from a strict comparison with Chinese prices or costs after 2016. In this sense, the expiration of subparagraph 15(a)(ii) in effect bestows Market Economy Status on China.
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