Study On The Legality Of The "Adverse Facts Available Norm" In The US Anti-Dumping Investigation

The concept of "Adverse Facts Available Norm"(AFA Norm)is not directly defined by the WTO rules,It is derived from China’s generalization of US Department of Commerce’s long-term,frequent and automatic application of "Adverse Facts Available".The AFA Norm concept was first proposed by China in United States – Certain Methodologies and Their Application to Anti-dumping Proceedings Involving China,it means whenever the USDOC considers that an NME-wide entity has failed to cooperate to the best of its ability,it systematically makes an adverse inference and selects,to determine the rate for the NME-wide entity,facts that are adverse to the interests of that fictional entity and each of the producers/exporters included within it.In the case,the parties,as well as the Panel and the Appellate Body,have disputes about whether the AFA Norm is inconsistent,“as such”,with Article 6.8 and paragraph 7 of Annex II to the Anti-Dumping Agreement.The dispute about the legality of the AFA Norm in US anti-dumping investigation in the WTO dispute settlement has also arisen,and has become one of the important issues in the study of WTO law of theory and practice.The first chapter of this paper discusses the “Facts Available Rules” closely related to AFA Norm and the “Adverse Facts Available” in the practice of anti-dumping investigations in the US,and analyzes the relevant cases of “Adverse Facts Available” in WTO dispute settlement.This explains the background and process proposed by AFA Norm and the roots and necessity of China’s “as such” claim of AFA Norm.The second chapter focuses on the premise of legality of AFA Norm.As an unwritten practice,it is necessary to prove that it can become the subject of the “as such” in the WTO dispute settlement.For that reason,this chapter first clarifies the justiciability of "Norm" in the WTO dispute and its three components: first,it has the precise content;second,it belongs to the respondent;third,it has general and prospective application.Secondly,it discusses two controversial components,namely the precise content of the norm and the general and prospective application.By analyzing the disputes between the Chinese and American parties,the Panel and the Appellate Body,the conclusion that AFA Norm has the precise content and general and prospective application is obtained,so it can become the "as such" complaint in the WTO dispute settlement,which establishes the premise for judging the legality of AFA Norm.The third chapter analyzes the compatibility of AFA Norm with WTO rules.Combining the legal provisions disputed between China and the United States on the legality of the rule,namely Article 6.8 and paragraph 7 of Annex II to the Anti-Dumping Agreement,it analyzes the of the conformity of the AFA Norm with the WTO Anti-Dumping Agreement from three points,namely the choice of “Facts Available”,the obligation and the inherent value “Facts Available Rules”.Finally,this paper analyzes the latest WTO dispute case in 2018——the United States-Anti-Dumping and Countervailing Duties on Certain Products and the Use of Facts Available.It considers the case to be a comprehensive complaint against the “Adverse Facts Available” practice of the US anti-dumping investigation.It is expected that the case will complete the proof of the illegality of AFA Norm,that is,violation of the provisions of Articles 6.8 and Annex II of the Anti-Dumping Agreement,especially the provisions of paragraphs 1,3,5,6,and 7 of Annex II,as well as violations of Article 12.7 of the Agreement on Subsidies and Countervailing Measures.