International Trade 'from Status to Contract' and Back: A Critique of the NME Normal Value Determination and Beyond

Author:Wenwei Guan
Pages:79-106
SUMMARY

This paper critically examines the normal value determination of NME and its implications for the purpose of contributing to Doha antidumping reform deliberation. From domestic to international arenas, antidumping development sees the significant growth of government paternalistic discretion turning antidumping into a distributive instrument challenging constitutionalism. Deeply rooted in the... (see full summary)

 
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From Status to Contract
79
VII JEAIL 1 (2014)
Wenwei Guan
This paper critically examines the normal value determination of NME and
its implications for the purpose of contributing to Doha antidumping reform
deliberation. From domestic to international arenas, antidumping development sees
    
into a distributive instrument challenging constitutionalism. Deeply rooted in
the ideological divide of the 1950s, NME methodology 
divide turns free trade from traders commutative exchange to nations distributive
predation. NME distributive discretion, though against the free market principle, is
ironically used to accuse foreign economies of not being free-market enough. When
products and producers are given certain status via nationality instead of treated
individually, antidumping development has been a process from Status to Contract
and back. Therefore, it is time to de-legitimize the NME methodology, and the
success of antidumping reform lies in limiting rather than deferring to governments
     
context of WTO.
Keywords
Antidumping, From Status to Contract, Normal Value, Nonmarket
Economy, Dumping Determination, WTO
International Trade
from Status to Contract
and Back: A Critique
of the NME Normal Value
Determination and Beyond
Assistant Professor of International Law at the City University of Hong Kong School of Law. LL.B. (Zhongshan),
LL.M.(Peking), M.A./Ph.D.(UBC). ORCID: http://orcid.org/0000-0003-1414-8949. The article was supported by a
Seed Grant from the City University of Hong Kong (Project No.: 7003011). The author may be contacted at: w.guan@
cityu.edu.hk Address: School of Law, City University of Hong Kong, 83 Tat Chee Ave., Kowloon, Hong Kong SAR.
DOI: http://dx.doi.org/10.14330/jeail.2014.7.1.04
2014-05-23 오후 2:17:36
80 Wenwei Guan
I. Introduction
From the General Agreement on Tariff and Trade (GATT) to the World Trade
Organization (WTO), antidumping has been one of the most contentious, yet most
frequently used mechanisms in the multilateral trading framework. On several
occasions since the GATTs establishment in 1947, antidumping has received elaborate
attention in the international trading framework.
1
The Anti-Dumping Agreement
is considered to be the most technical and controversial agreement within the
WTO framework.
2
In WTO     
original panel or Appellate Body reports have been circulated to Members, were
trade remedy cases, and among them, 19 cases were antidumping related.
As
      
settlement process, 97 cases cite the Antidumping Agreement in their requests for
consultations.
4
Antidumping is thus considered to be the most important contingent
protection measure that is provided in the GATT/WTO framework.
Given the
significance of the regime, there has been rich scholarship on the antidumping
system.
Antidumping reform has therefore long been one of the key issues in the GATT/
WTO framework, and yet has faced strong resistance at the same time. In prior
negotiations before the Doha Round, the US and the EU successfully contain[ed]
antidumping reform initiatives within narrow limits without any real sacrifice
of their own major negotiation objectives.
7
However, recent proliferation of
antidumping laws and the threat of abuse have changed the situation.
Antidumping
reform is now one of the points of concern in the WTO Memberships agenda in
1 E. VErmulst, thE WtO Anti-Dumping AgrEEmEnt: A COmmEntAry 3 (2005). [Emphasis added]
2 Id. at Forward. Lindsey and Ikenson call antidumping policy “a hot-button issue” in the US trade policy debate. See B.
linDsEy & D. ikEnsOn, AntiDumping ExpOsED: thE DEVilish DEtAils Of unfAir trADE lAW ix (2003).
3 See Selected Statistics: the First Ten Years of the WTO, in kEy issuEs in WtO DisputE sEttlEmEnt: ThE First TEn
yEAr 289 (R. Yerxa & B. Wilson eds., 2005).
4 For details, see WTO, Disputes by Agreement, available at http://www.wto.org/english/tratop_e/dispu_e/dispu_
agreements_index_e.htm?id=A6 (last visited on Nov. 20, 2013).
5 A. AggArWAl, thE Anti-Dumping AgrEEmEnt AnD DEVElOping COuntriEs: An intrODuCtiOn 3 (2007).
6 See, e.g., J. JACksOn & E. VErmulst, AntiDumping lAW AnD prACtiCE: A COmpArAtiVE stuDy (1990); J. fingEr,
AntiDumping: hOW it WOrks AnD WhO gEts hurt (1993); B. hinDlEy & p.mEssErlin, AntiDumping inDustriAl pOliCy:
lEgAlizED prOtECtiOnism in thE WtO AnD WhAt tO DO ABOut it (1996); g. mAstEl, AntiDumping lAWs AnD thE us
ECOnOmy (1998); B. linDsEy & D. ikEnsOn, AntiDumping ExpOsED: thE DEVilish DEtAils Of unfAir trADE lAW (2003);
r. rAslAn, AntiDumping: A DEVElOping COuntry pErspECtiVE (2009).
7 Lindsey & Ikenson, id. at 149.
8 Id.
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