Research On The Rules Of Particular Market Situation In The US Anti-Dumping Investigation

The relevant legislation on particular market situation in the United States can be traced back to the Tariff Act of 1930 at the earliest,and the latest legislation is the Trade Preferences Extension Act of 2015.Before the promulgation of the Trade Preferences Extension Act 2015,the United States also involved the particular market situation in the practice of anti-dumping investigation.Before that,however,the United States was very cautious in applying the rules of particular market situation.In the case of Oil Country Tubular Goods from Korea right after the promulgation of the Trade Preferences Extension Act of 2015,the United States broke through many applicable standards in many precedents with respect to the application of particular market situation.In a series of subsequent anti-dumping cases,the rule of particular market situation was gradually evolved into a discriminatory rule.All signs showed that with the promulgation of the Trade Preferences Extension Act of 2015,the US Department of Commerce increased the use of the rule of particular market situation in anti-dumping investigations,and gradually developed it into a common practice.At the same time,it also constantly broke through the previous applicable methods,making particular market situation become another tool that can use unfair rules such as “surrogate country” in addition to “non-market economy”.Particular market situation is not a concept created by the United States in its domestic legislation,but has been accepted by WTO members and written into the Anti-dumping Agreement.However,since there has not been any specific definition and scope of particular market situation in the relevant regulations of WTO,causing countries to make relevant legislation according to their understanding of particular market situation and their own interests.Nevertheless,from the relevant clauses and context of the Anti-dumping Agreement,combined with the purpose of Anti-dumping Agreement,the investigating authorities are responsible to prove that certain market situations have disordered the domestic selling price of the product.More importantly,to prove that such market situations lead to an inability of proper and fair comparison between the domestic and export prices of the exporting country,the particular market situation should not be interpreted as a method to increase the dumping margin.In addition,the identification of the particular market situation from government subsidies may also cause the consequences of “double remedy”.Through the analysis of several anti-dumping cases in which the United States applies particular market situation,it can be concluded that the United States has violated the intention of establishing particular market situation to a certain extent while identifying the particular market situations.The surrogate country approach is a special method to construct the normal value stipulated in the Anti-dumping Agreement,and the application of which has strict conditions.Due to the inherent defects of the surrogate country approach,the application of this method in anti-dumping investigation will easily lead to the increase of dumping margin.Therefore,the surrogate country approach has been gradually developed into a tool for trade protection in western countries such as the United States and Europe.By promulgating the Trade Preferences Extension Act 2015,the United States revised the relevant provisions for particular market situation,attempting to extend discriminatory methods such as surrogate countries to the anti-dumping investigations against market economy countries.The existing Anti-Dumping Agreement has not explicitly prohibited the application of the surrogate country method under particular market situation,nor has there been any clear definition and treatment method for the exception of determining normal value.However,from the clear authorization in the existing rules and recent ruling reports on WTO disputes,there is no legal basis for applying the surrogate country method on the grounds of particular market situation,which is,to a certain extent,an abuse of the surrogate country method.By comparing the rules of particular market situation with those of “non-market economy”,it can be seen that both of them may increase the dumping margin by using the surrogate country method.The United States has so far not applied the rule of particular market situation to China in specific anti-dumping cases.However,since the threshold for applying particular market situation in U.S.domestic laws is very low,once the United States recognizes China’s market economy status under pressure or other reasons,the particular market situation will be likely to relay the “non-market economy” and become a new tool of the discriminatory anti-dumping policy of the United States against China.Therefore,even if China obtains market economy status,it does not mean the termination of application of surrogate country method.The purpose of the US anti-dumping investigation against China is to use discriminatory rules to increase the dumping margin of Chinese exporters,so as to protect their domestic industries.In this context,China should focus more on the anti-dumping calculation rules rather than the recognization of economic system.It may be better to use the WTO dispute settlement mechanism to limit the use of particular market situation while strengthening direct bilateral negotiations between China and the US.Meanwhile,we should continue to deepen the reform of China’s market economic system,so as not to give excuses to the US to identify the existence of non-market situations or particular market situation in China.