Australia – Anti-Dumping Measures on A4 Copy Paper, WT/DS529/R

Abstract

The WTO Panel Report in Australia – Anti-Dumping Measures on A4 Copy Paper marks a significant development of the multilateral rules on anti-dumping. The Report is the first to examine in detail when an anti-dumping authority may determine that a “particular market situation” exists in the country of exportation under Article 2.2 of the WTO Anti-Dumping Agreement, potentially justifying the imposition of elevated remedial duties. The Report also develops the jurisprudence on how such remedies may be calculated, expounding the use of benchmark costs for the calculation of a constructed normal value (‘CNV’) under Article 2.2.1.1. These doctrinal questions are central to the longstanding debate over how far the Anti-Dumping Agreement allows anti-dumping measures against state intervention and market distortions. On both fronts, the Australia – A4 Copy Paper panel created flexibilities for WTO members to respond to government-induced distortions. In doing so, the Report deviates considerably from the course set by the Appellate Body in the landmark EU – Biodiesel decision – which seemed to confine anti-dumping measures to responding to private action. At the same time, the panel left open several important issues relating to the adoption of CNVs and the use of benchmarks for their calculation, leaving wide latitude for investigating authorities to inflate dumping margins in practice.