Double-count Issues In The United States’ Concurrent Anti-dumping And Countervailing Measures Against China

The term "double remedy",also called "double counting",refers to circumstances in which the simultaneous application of anti-dumping and countervailing duties on the same imported products results,at least to some extent,in the offsetting of the same subsidization twice.in other words,the market distortions offset by anti-dumping and countervailing duties are overlapped."Double remedies" in terms of export subsidy have been forbidden according to the Article 6.5 of GATT1994,while those in terms of domestic subsidy have not been taken into consideration.Therefore,as a new challenge,"double remedies" in terms of domestic subsidy only occur in the anti-dumping and countervailing investigations into the products from NME.As far as its legal origin,with regards to the domestic law of the United Stats,China is regarded as a non-market economy.Thus,the Department of Commence(hereinafter referred to as DOC)uses NME Methodology to calculate the dumping margins,in which normal value is based on a third-country price or constructed price by factors of production.The dumping margins calculated under an NME methodology are generally higher than would otherwise be the case in that they result from an asymmetry comparison of export prices to market-determined(unsubsidized)costs of production instead a producer’s actual(subsidized)costs of production.In addition,in view of the US countervailing duty law,a countervailingduty imposed on such merchandise shall be the same to the amount of the net countervailable subsidy.Accordingly,"double remedies" will arise when concurrent anti-dumping and countervailing duties are imposed on the same products and a normal value is based on an unsubsidized,constructed,or third country price.However,as mentioned above,"double remedies" in terms of domestic subsidy are not prohibited within the framework of the legal system of WTO,which has been supported by the panel.Fortunately,the appellate body finds that the imposition of double remedies,or the offsetting of the same subsidization twice by the concurrent imposition of anti-dumping duties,which is calculated and established by an NME methodology and countervailing duties,is inconsistent with Article 19.3 or the purpose of the SCM Agreement.Besides,the author holds that the practice of the DOC is also inconsistent with Article 19.4 and Article 19.2 of the SCM Agreement and Article 6.5 of GATT1994.In the end,the author considers that though H.R.4105 authorizes the USDOC to make adjustments in determining the anti-dumping duties,it fails to solve "double remedies" and thus,does not conform to the legal system of WTO.