Amicus Brief: United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China

Abstract

The panel’s interpretation has two fundamental flaws. First, the panel disregards the general illegality of double remedies under the WTO norms, which is manifest under GATT Article VI and SCM Article 19:4. As a result, the panel validates the U.S.’ concurrent imposition of countervailing duties after the previous imposition of antidumping duties under the non-market economy (NME) methodology. Second, the panel, blatantly disregarding SCM provisions, such as Article 12.8, shifts the burden of proof from the investigating authority (the United States Department of Commerce (DOC) in this dispute) to the respondents. Although the investigating authority is required under the Article to fully demonstrate the non-existence of double counting when it employs the NME methodology, the panel nonetheless imposes on respondents the burden of establishing that there existed actual double counting, and therefore “duties in excess of the subsidy.”