World Trade Organization

• Author: International Law Group

On June 28, 2002, a Panel of the World Trade Organization (WTO) circulated a report dealing with India's challenge to U.S. countervailing measures on Indian cut-to-length carbon quality steel. After the U.S. had imposed an antidumping order on Indian steel plate on February 10, 2000, and after unsuccessful consultations between the parties, India asked the WTO to set up a dispute settlement panel to review the U.S. measure.

The U.S. Department of Commerce had begun investigating Indian steel plate based on a complaint filed by the U.S. Steel Group, Bethlehem Steel, and other entities. The only Indian provider at that time was the Steel Authority of India, Ltd. (SAIL). At issue were the "facts available" provisions of Sections 776(a), 782(d), and 782(e) of the Tariff Act of 1930. These allow the U.S. to complete antidumping and countervailing duty investigations when companies refuse or otherwise fail to provide necessary information. Since the U.S. claimed it could not get hold of usable information from SAIL, it used the "facts available" provisions to reckon SAIL's antidumping margin.

The Panel makes four findings and conclusions. In its view, the U.S. first had acted inconsistently with Article 6.8 and paragraph 3 of Annex II of the Agreement on the Implementation of Article VI of the GATT 1994 (AD Agreement). It not only unjustifiably declined to take into account U.S. sales price information...