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TWN Info Service on WTO and Trade Issues (Dec14/07)
23 December 2014
Third World Network
 

WTO affirms ruling in US-China CVD dispute
Published in SUNS #7942 dated 22 December 2014
 
Geneva, 19 Dec (Kanaga Raja) -- The Appellate Body (AB) of the World Trade Organisation (WTO) has upheld an earlier panel ruling that found that the United States had acted inconsistently with certain provisions of the Subsidies and Countervailing Measures (SCM) Agreement over countervailing duty (CVD) measures that it imposed on certain Chinese products.
 
In the ruling issued on Thursday, the AB recommended that the Dispute Settlement Body (DSB) request the United States to bring its measures found in its Report, and in the Panel Report as modified by the AB's Report, to be inconsistent with its obligations under the SCM Agreement into conformity with its obligations under that Agreement.
 
In its ruling, the AB reversed a number of the panel's findings, and declined to rule on some of China's claims.
 
[In a post at the IELP blog, Sungjoon Cho, a trade law academic, has commented that this AB ruling, and its two important reversals of the Panel's findings (one on ‘de facto specificity' in paras 4.149 and 4.150 of the Panel's report, and the second on ‘adverse facts available', in paras 4.195 and 4.196 of the same report) are setting "New (Higher) Standards in the Countervailing Measure Review". Prof. Sungjoon Cho is an academic teaching international economic law at the IIT Chicago-Kent faculty.
 
["All in all," Cho says, "the AB has criticised the panel for not doing its own (thorough) analyses and/or relying too much on the investigating authority's determinations. The obverse side of this precedent might be that it would shrink the government's discretion in the domestic subsidy investigation. If a future panel puts a magnifying glass on the investigating authority's determinations on these issues, in accordance with this new precedent, the investigating authority might feel pressured in exercising its discretion, even though its own court supports such exercise." - SUNS]
 
In a related development, the DSB adopted on Friday the AB and panel reports in the dispute raised by India over countervailing measures imposed by the US on certain hot-rolled carbon steel flat products from India. The AB had largely upheld the panel ruling and recommended that the DSB request the US to bring its measures into conformity with the SCM Agreement.
 
In the US-China dispute, both the parties had each appealed certain issues of law and legal interpretations developed in the Panel report. The dispute concerned countervailing duties imposed by the United States following 17 countervailing duty investigations initiated by the US Department of Commerce (USDOC) between 2007 and 2012.
 
The 17 countervailing duty investigations at issue in this dispute concern the following products: thermal paper, pressure pipe, line pipe, citric acid, lawn groomers, kitchen shelving, oil country tubular goods (OCTG), wire strand, magnesia bricks, seamless pipe, print graphics, drill pipe, aluminum extrusions, steel cylinders, solar panels, wind towers, and steel sinks.
 
The AB first examined the United States' claim that China's panel request does not provide "a brief summary of the legal basis of the complaint" as it fails to "plainly connect" the "facts available" obligation in Article 12.7 of the SCM Agreement to the 22 investigations listed in the panel request.
 
On this issue, the AB upheld the Panel's finding that China's panel request, as it relates to its claims under Article 12.7 of the SCM Agreement, is not inconsistent with Article 6.2 of the DSU (Dispute Settlement Understanding) and that China's claims under Article 12.7 were thus within the Panel's terms of reference.
 
APPELLATE BODY'S ANALYSIS ON THE ISSUE OF BENEFIT
 
The AB addressed China's appeal of the Panel's findings concerning the rejection by the USDOC, in the countervailing duty investigations at issue, of in-country private prices in China as benchmarks for calculating the benefit conferred by the provision of inputs to the companies under investigation.
 
The AB noted that China seeks review of the Panel's interpretation and application of Article 14(d) and Article 1.1(b) of the SCM Agreement in relation to the USDOC's decision, in the investigations at issue, to reject in-country private prices in China as benchmarks on the grounds that such prices were distorted.
 
China contends that the legal standard for determining what constitutes "government" - and, in particular, a "public body" - for purposes of the financial contribution inquiry under Article 1.1(a)(1)(iii) of the SCM Agreement should also apply when determining what constitutes "government" for purposes of the selection of a benefit benchmark under Article 14(d) of the SCM Agreement.
 
The AB said that in conducting the necessary analysis to determine whether in-country prices are distorted, an investigating authority may be called upon to examine various aspects of the relevant market.
 
Although a government's predominant role as a supplier in the market makes it likely that prices will be distorted, the distortion of in-country prices must be established on the basis of the particular facts underlying each countervailing duty investigation, it added.
 
While the AB agreed with China that there is a single definition of the term "government" for purposes of the SCM Agreement, it does not follow that, in determining the appropriate benefit benchmark under Article 14(d), investigating authorities are required to limit their analysis to an examination of the role played in the market by government-related entities that have been properly found to be government in the narrow sense or public bodies.
 
It said that the pricing behaviour of entities operating in the market, including government-related entities that have not been found to be public bodies, may be relevant to examine whether the government acts through such government-related entities so as to exert market power and distort in-country prices.
 
Therefore, it added, the selection of a benchmark for the purposes of Article 14(d) cannot, at the outset, exclude consideration of in-country prices from any particular source, including government-related prices other than the financial contribution at issue.
 
This is because the issue of "whether a price may be relied upon for benchmarking purposes under Article 14(d) is not a function of its source, but rather, whether it is a market-determined price reflective of prevailing market conditions in the country of provision."
 
As a consequence, prices of government-related entities other than those of the entity providing the financial contribution at issue need to be examined to determine whether they are market determined and can therefore form part of a proper benchmark.
 
In sum, the AB rejected China's argument that recourse to an alternative benchmark is inconsistent with Article 14(d) if it is established that the SOEs (State-owned enterprises) at issue were equated with government without meeting the legal standard articulated by the Appellate Body in US - Anti-Dumping and Countervailing Duties (China) for purposes of determining whether an entity is a public body.
 
Instead of hinging on whether a government-owned entity has been properly found to constitute a public body, a finding of inconsistency with Article 14(d) in the selection of a benefit benchmark depends on whether or not the investigating authority properly evaluated whether the prices proposed as the benefit benchmark are market determined such that they can be used to establish whether the remuneration is less than adequate.
 
"Thus, while we agree with China that there is a single definition of the term ‘government' for purposes of the SCM Agreement, it does not follow that, in determining the appropriate benefit benchmark under Article 14(d), investigating authorities are required to limit their analysis to an examination of the role played in the market by government-related entities that have been properly found to constitute government in the narrow sense or public bodies," said the AB.
 
China argues that the Panel acted inconsistently with Article 11 of the DSU in finding that China had failed to establish the "factual premise" of its claims, i. e. that the USDOC actually treated SOEs as public bodies and thus as part of the government in the collective sense in the context of the benefit analysis in the OCTG, Solar Panels, Pressure Pipe, and Line Pipe countervailing duty investigations.
 
The AB said that it does not agree with China's interpretation of Article 14(d). In order to establish a prima facie case of inconsistency under Article 14(d), it is neither necessary nor sufficient to demonstrate that the SOEs at issue were equated with government without meeting the legal standard for a finding that such entities constitute "public bodies" articulated by the Appellate Body in US - Anti-Dumping and Countervailing Duties (China).
 
The AB underlined that rather than hinging on whether an SOE has been properly found to be a "public body", a finding of inconsistency with Article 14(d) in the selection of benefit benchmarks depends on whether or not the investigating authority properly evaluated whether prices proposed as a benefit benchmark are market determined such that they can be used to establish whether remuneration is less than adequate.
 
Having rejected China's arguments concerning the Panel's findings regarding the legal predicate of China's claims, the AB saw no need to make additional findings with respect to China's claim regarding the factual predicate of its claims under Article 11 of the DSU in order to provide a positive solution to this dispute.
 
In examining China's claim that the Panel erred in its application of Article 14(d) of the SCM Agreement to the determinations at issue, the AB said it does not consider that the Panel applied the standard required by Article 14(d) of the SCM Agreement, as properly interpreted, to the determinations challenged by China.
 
Instead, without properly examining the USDOC's analysis in each of the challenged determinations, the Panel found that China had failed to establish that "the USDOC could, consistently with Article 14(d) of the SCM Agreement, determine that private prices were distorted and could not be used as benchmarks for assessing the adequacy of remuneration".
 
It further found that China had not established that the USDOC acted inconsistently with the obligations of the United States under Article 14(d) or Article 1.1(b) of the SCM Agreement by rejecting in-country private prices in China as benchmarks for the relevant challenged investigations.
 
According to the AB, the Panel failed to examine properly each of the challenged determinations in the light of the legal standard applicable under Article 14(d). In particular, the Panel failed to conduct a case-by-case analysis of whether the USDOC had properly examined whether the relevant in-country prices were market determined or were distorted by governmental intervention.
 
The Panel simply assumed that, because the Appellate Body had faced a similar situation in US - Anti-Dumping and Countervailing Duties (China), China had failed to establish that the USDOC acted inconsistently with the obligations of the United States under Article 14(d) of the SCM Agreement.
 
"In the light of our interpretation of Article 14(d) set out above, the Panel's analysis and reasoning is not sufficient to support a conclusion that the USDOC properly rejected in-country prices in China as benchmarks for purposes of the benefit analysis in the challenged investigations," said the AB.
 
The AB thus reversed the Panel's finding upholding the USDOC's rejection of private prices as potential benchmarks in the investigations under challenge on the grounds that such prices were distorted.
 
The AB also reversed the Panel's conclusion that China had not established that the USDOC acted inconsistently with the obligations of the United States under Article 14(d) or Article 1.1(b) of the SCM Agreement by rejecting in-country private prices in China as benchmarks for the relevant challenged investigations.
 
Consequently, it reversed the Panel's ultimate finding that China had failed to establish that the USDOC acted inconsistently with the obligations of the United States under Article 14(d) or Article 1.1(b) of the SCM Agreement by rejecting in-country prices in China in respect of the OCTG, Solar Panels, Pressure Pipe, and Line Pipe countervailing duty investigations.
 
Having reversed the Panel's finding that China had failed to establish that the USDOC acted inconsistently with the obligations of the United States under Article 14(d) or Article 1.1(b) of the SCM Agreement, the AB examined China's request to complete the legal analysis and find that the USDOC determinations that SOEs provided inputs for less than adequate remuneration in the OCTG, Solar Panels, Pressure Pipe, and Line Pipe investigations are inconsistent "as applied" with Article 14(d) and Article 1.1(b) of the SCM Agreement.
 
The AB noted the Panel's finding that, in each of the underlying investigations challenged by China, "the USDOC determined that the relevant input suppliers were public bodies on the grounds that these suppliers were majority-owned or otherwise controlled by the [Government of China], either on the basis of the evidence on the record or by assuming such government ownership or control when the USDOC applied facts available."
 
The Panel held that, in the 12 countervailing duty investigations challenged by China, the United States acted inconsistently with Article 1.1(a)(1) of the SCM Agreement in determining that the relevant "SOEs were public bodies based solely on the grounds that these enterprises were (majority) owned, or otherwise controlled, by the GOC [Government of China]."
 
The AB noted that the United States has not challenged these findings by the Panel on appeal. Nor does the United States contest that in 12 of the countervailing duty investigations at issue in this dispute the USDOC "applied an ownership-based control test" in determining whether Chinese SOEs were public bodies.
 
Recalling that it had reversed the Panel's finding upholding the USDOC's rejection of private prices as potential benchmarks in the investigations at issue on the grounds that such prices were distorted, the AB also reversed the Panel's conclusion that China had not established that the USDOC acted inconsistently with the obligations of the United States under Article 14(d) or Article 1.1(b) of the SCM Agreement by rejecting in-country private prices in China as benchmarks for the relevant challenged investigations.
 
Similarly, the AB has reversed the Panel's ultimate finding that China had failed to establish that the USDOC acted inconsistently with the obligations of the United States under Article 14(d) or Article 1.1(b) of the SCM Agreement by rejecting in-country private prices in China in respect of the OCTG, Solar Panels, Pressure Pipe, and Line Pipe countervailing duty investigations.
 
"We find, instead, that the USDOC acted inconsistently with the obligations of the United States under Article 14(d) and Article 1.1(b) of the SCM Agreement by rejecting in-country prices in China as benefit benchmarks in the context of the OCTG, Solar Panels, Pressure Pipe, and Line Pipe countervailing duty investigations."
 
APPELLATE BODY'S RULING ON SPECIFICITY
 
The AB addressed China's challenge on appeal of the Panel's analysis regarding determinations of de facto specificity made by the USDOC in the following 12 countervailing duty investigations: Pressure Pipe, Line Pipe, Lawn Groomers, Kitchen Shelving, OCTG, Wire Strand, Seamless Pipe, Print Graphics, Drill Pipe, Aluminum Extrusions, Steel Cylinders, and Solar Panels.
 
In these investigations, the USDOC based its determinations of de facto specificity on the first factor listed in Article 2.1(c) of the SCM Agreement, namely, the "use of a subsidy programme by a limited number of certain enterprises".
 
On whether the Panel erred in finding that the USDOC did not act inconsistently with Article 2.1 of the SCM Agreement by analysing specificity exclusively under Article 2.1(c), the AB said that it does not agree with China that Article 2.1 calls for a strict sequential analysis of its three subparagraphs in each and every case.
 
"As we see it, in an investigation where there is no evidence that allows for a de jure assessment, the application of Articles 2.1(a) and (b) would serve no purpose, and we consequently see no reason why an investigating authority would, in such instances, be precluded from proceeding directly to Article 2.1(c) to conduct its specificity analysis."
 
Having said that, the AB emphasised that, in previous disputes, the Appellate Body has also "cautioned against examining specificity on the basis of the application of a particular subparagraph of Article 2.1, when the potential for application of other subparagraphs is warranted in the light of the nature and content of measures challenged in a particular case".
 
In the present case, the AB recalled that China challenged before the Panel the USDOC's determinations of de facto specificity with respect to the provision of inputs in 12 countervailing duty investigations.
 
The Panel indicated that the unwritten nature of the subsidies led the USDOC to examine whether those subsidies are specific under the "other factors" listed in subparagraph (c).
 
The Panel also observed that it is undisputed that the USDOC's findings were not based on an explicit limitation of access to the subsidy by the granting authority or the legislation pursuant to which the granting authority operates; nor were they based on criteria or conditions that are spelled out in law, regulation, or other official document.
 
"Given that China has not pointed to any evidence that was before the USDOC of the kind that would ordinarily be examined in determining de jure specificity under subparagraphs (a) and (b), we see no error in the Panel's assessment of China's claim," the AB said.
 
In the light of these considerations, the AB upheld the Panel's finding that, given the nature of the subsidies that the USDOC found to exist, the USDOC did not act inconsistently with Article 2.1 by analysing specificity exclusively under Article 2.1(c).
 
The AB addressed China's argument that the Panel erred in the interpretation and application of the term "subsidy programme" in Article 2.1(c) of the SCM Agreement.
 
China contends that any examination of the first of the "other factors" under Article 2.1(c) must begin with the identification of the relevant "subsidy programme". China asserts that the USDOC provided no evidentiary basis for the existence, scope, and content of these alleged "programmes".
 
The AB recalled the Panel's finding that, in each of the challenged investigations, "[i]n the absence of any written instrument", the USDOC concluded that the consistent provision by the SOEs in question of inputs for less than adequate remuneration constitutes a type of systematic activity or series of activities, and, as a result, that the provision of such inputs constitutes a "subsidy programme".
 
The Panel found that this evidence of systematic activity (or a series of systematic activities) "provided an objective basis for the USDOC to sufficiently identify subsidy programmes for the purposes of the first of the ‘other factors' under Article 2.1(c) of the SCM Agreement in the relevant specificity determinations".
 
The AB agreed with the Panel to the extent it suggested that, in the absence of any written instrument or explicit pronouncement, evidence of a "systematic activity or series of activities" may provide a sufficient basis to establish the existence of an unwritten subsidy programme in the context of assessing de facto specificity under the first factor of Article 2.1(c) of the SCM Agreement.
 
"We find it troubling, however, that the Panel did not provide any case-specific discussion or references to the USDOC's determinations of de facto specificity at issue prior to reaching its conclusion."
 
Indeed, said the AB, the entirety of the Panel's assessment of China's "as applied" claims with respect to the USDOC's determinations is set out in a single paragraph, as follows: "In each of the challenged investigations, the application alleges that a specific input is being provided by SOEs for less than adequate remuneration. In the absence of any written instrument or explicit pronouncement, the USDOC concluded that this type of systematic activity or series of activities - the consistent provision by the SOEs in question of inputs for less than adequate remuneration - constituted a subsidy programme."
 
By not providing case-specific discussion or references to the USDOC's determinations of specificity challenged by China, the AB considered that the Panel failed to apply Article 2.1(c), as properly interpreted, to those determinations.
 
Accordingly, it reversed the Panel's finding that China had not established that the USDOC acted inconsistently with the obligations of the United States under Article 2.1 of the SCM Agreement by failing to identify a subsidy programme in each of the specificity determinations at issue.
 
Having reversed the Panel's finding, the AB recalled China's request that the AB complete the legal analysis in respect of 15 specificity determinations in the following 12 countervailing duty investigations: Pressure Pipe, Line Pipe, Lawn Groomers, Kitchen Shelving, OCTG, Wire Strand, Seamless Pipe, Print Graphics, Drill Pipe, Aluminum Extrusions, Steel Cylinders, and Solar Panels.
 
The AB noted that, as part of its challenge before the Panel, China also argued that the USDOC failed to consider the two factors set out in the last sentence of Article 2.1(c) of the SCM Agreement relating to the "diversification of the economic activities within the jurisdiction of the granting authority" and the "length of time during which the subsidy programme has been in operation".
 
The Panel found that the USDOC acted inconsistently with the obligations of the United States under Article 2.1(c) of the SCM Agreement by failing to take these two factors into account in each of the determinations of de facto specificity challenged by China.
 
The Panel's findings relate to both the USDOC's identification of the "jurisdiction of the granting authority" and the nature and scope of the relevant "subsidy programme".
 
These findings by the Panel were not challenged by the United States on appeal and they therefore stand, said the AB.
 
In the light of these findings, and having laid out the legal standard that applies under Article 2.1(c) insofar as it relates to the first factor under Article 2.1(c), "we see limited value, for purposes of resolving the dispute between the parties, in completing the legal analysis with respect to the issue of whether the USDOC sufficiently identified and substantiated the existence of a ‘subsidy programme' in each of the determinations at issue."
 
"Moreover, it would seem to us that much of the evidence regarding the existence of the alleged subsidy programmes in this dispute has not been subject to the Panel's scrutiny," said the AB.
 
As noted, the Panel, however, did not refer to any of the challenged countervailing duty determinations on the record in reaching its finding that the provision of inputs was "systematic".
 
"Nor do we consider the participants to have addressed sufficiently, in their submissions, the issues of whether the USDOC sufficiently identified and substantiated the existence of a ‘subsidy programme' in each of the determinations at issue. In these circumstances, we do not complete the legal analysis with respect to this particular aspect of China's appeal."
 
On China's argument that the Panel erred in its application of Article 2.1 of the SCM Agreement to China's claim concerning the USDOC's failure to identify a "granting authority" in the specificity determinations at issue, the AB said that while it has disagreed with China's argument that identification of the jurisdiction for purposes of the specificity analysis must always be preceded by identification of the granting authority, it agreed with China that the Panel conducted an extremely cursory analysis in assessing China's claim.
 
As noted by China, in applying Article 2.1 to the USDOC's specificity determinations, the Panel "dismiss[ed] China's claim in a single sentence".
 
Referring to excerpts of the USDOC's determinations of de facto specificity provided by the United States, the Panel reasoned simply that "it appear[ed] ... that the relevant jurisdiction was at the very least implicitly understood to be China in the challenged investigations."
 
The AB said that this was the only basis for the Panel's ultimate conclusion that China had failed to establish that the USDOC acted inconsistently with Article 2.1 of the SCM Agreement by failing to identify explicitly the relevant granting authority, and ergo the relevant jurisdiction, in the specificity determinations at issue.
 
"We find it troubling that, in addressing China's ‘as applied' claims in relation to the USDOC's determinations at issue, the Panel concluded that the relevant jurisdiction was ‘at the very least implicitly understood to be China in the challenged investigations' without any case-specific discussion of the USDOC's determinations at issue or any other evidence on the record, despite the fact that relevant evidence had been presented to the Panel."
 
By not providing case-specific discussion or references to the USDOC's determinations of specificity challenged by China, the AB considered that the Panel failed to apply Article 2.1(c), as properly interpreted, to those determinations.
 
Accordingly, the AB reversed the Panel's finding that China had failed to establish that the USDOC acted inconsistently with the obligations of the United States under Article 2.1 of the SCM Agreement by failing to identify a granting authority, and ergo the relevant jurisdiction, in each of the specificity determinations at issue.
 
The AB then addressed China's request for the AB to complete the legal analysis in respect of 15 determinations of de facto specificity in the following 12 countervailing duties investigations: Pressure Pipe, Line Pipe, Lawn Groomers, Kitchen Shelving, OCTG, Wire Strand, Seamless Pipe, Print Graphics, Drill Pipe, Aluminum Extrusions, Steel Cylinders, and Solar Panels.
 
The AB recalled the Panel's finding that the USDOC acted inconsistently with the obligations of the United States under Article 2.1(c) of the SCM Agreement by failing to take into account, in each of the determinations of de facto specificity challenged by China, "the extent of diversification of the economic activities within the jurisdiction of the granting authority" and the "length of time during which the subsidy programme has been in operation".
 
In the light of these findings by the Panel, which relate both to the USDOC's identification of the jurisdiction of the granting authority and to the nature and scope of the relevant "subsidy programme", and, having laid out the legal standard that applies under Article 2.1(c) insofar as it relates to the first factor under Article 2.1(c), "we see limited value, for purposes of resolving the dispute between the parties, in completing the legal analysis with respect to the issue of whether the USDOC sufficiently identified the jurisdiction of the granting authority in each of the determinations at issue."
 
APPELLATE BODY'S RULING ON FACTS AVAILABLE
 
Regarding the scope of China's appeal, the AB noted that China does not appeal the Panel's interpretation of Article 12.7 of the SCM Agreement. Nor does China take issue with the standard of review or the "analytical framework" identified by the Panel.
 
Instead, China argues that the Panel engaged in a "cursory analysis" that was inconsistent with the Panel's obligations under Article 11 of the DSU.
 
The AB said that it seems to the AB that the Panel focused, in large part, on the words employed by the USDOC in its determinations rather than on whether the USDOC acted inconsistently with the obligations of the United States under Article 12.7 of the SCM Agreement in connection with the challenged instances of the use of "adverse" facts available that were discussed by the Panel in its Report.
 
In its analysis of the terminology used by the USDOC, the Panel appears to suggest that it was responding to China's arguments contained in its second written submission, wherein China "relie[d] heavily" on the terminology used by the USDOC.
 
"We, however, do not see China's arguments before the Panel as being confined to the terminology used by the USDOC."
 
In paragraph 177 of its second written submission, for example, China stated that the USDOC "repeatedly relies on ‘assumptions', ‘adverse inferences', and similar terminology in order to reach a particular conclusion".
 
However, China further explained that, "[i]n none of the 48 instances at issue does the USDOC identify a single ‘fact' that was ‘available' on the record to support the conclusion that it reached".
 
Yet, rather than assessing whether the USDOC had "provided sufficient explanation of the challenged adverse facts available determinations to assess whether the USDOC based these determinations on facts", as it set out to do, the Panel focused on the language and the formulations used by the USDOC in its determinations, said the AB.
 
The Panel stated, for example, that it did "not consider it evident on the face of the statement ‘we have applied an adverse inference in our choice of the facts available' ... that the determination concerned is not based on facts."
 
The Panel did not, however, critically examine such statements in the USDOC's determinations and memoranda in order to assess whether the USDOC had complied with the obligations under Article 12.7.
 
The Panel also stated that it did not consider China "to have established that each reference to ‘adverse inferences' in the challenged determinations in fact equates to an ‘assumption'".
 
According to the AB, the Panel was required to assess whether the USDOC's analysis in the underlying investigations was sufficient to establish that its "adverse" facts available determinations were made on the basis of the facts available as required under Article 12.7.
 
"Instead of conducting this analysis, the Panel appears to have simply relied on language in the USDOC's determination referring to application of facts available in order to reject Chin's claims."
 
For the foregoing reasons, the AB found that the Panel acted inconsistently with its obligations under Article 11 of the DSU in assessing China's claims under Article 12.7 of the SCM Agreement.
 
Consequently, it reversed the Panel's finding that China had not established that the USDOC acted inconsistently with the obligations of the United States under Article 12.7 of the SCM Agreement by not relying on facts available on the record.
 
Having reversed the Panel's findings under Article 12.7 of the SCM Agreement, the AB turned to consider whether it can complete the legal analysis as requested by China.
 
"We do not consider that the participants have addressed sufficiently, in their submissions, the issues that we might need to examine if we were to complete the legal analysis in this case, including, for example, whether the USDOC's evaluation of the ‘facts available' was sufficient in the light of the particular circumstances of each case, including the nature, quality, and amount of the evidence and information on the record and the particular determinations to be made. Completing the legal analysis in such circumstances would, in our view, raise due process concerns."
 
For all these reasons, said the AB, "we do not complete the legal analysis with respect to each of the 42 instances of the use of ‘adverse' facts available challenged by China."
 
On China's request that the AB complete the legal analysis with respect to China's claims of consequential violations under Articles 10 and 32.1 of the SCM Agreement, the AB found that the USDOC's benefit determinations in the OCTG, Solar Panels, Pressure Pipe, and Line Pipe investigations, which it had found to be inconsistent with Article 14(d) and Article 1.1(b) of the SCM Agreement, are also inconsistent with the United States' obligations under Articles 10 and 32.1 of the SCM Agreement. +

 


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