Confronting the ‘Non-Market Economy’ Treatment: The Evolving WTO Jurisprudence on Anti-Dumping and China’s Recent Practices

Abstract

This article offers one of the first comprehensive reviews of the evolution of the World Trade Organization (WTO)'s jurisprudence on anti-dumping (AD), focusing on the systemic issue of what flexibility the WTO AD Agreement provides for Member states to tackle market distortions caused by government intervention. This review is undertaken in the context of the longstanding AD practices of some major WTO Members in treating China as a non-market economy (NME). It argues that while WTO tribunals have created flexibilities for AD authorities to address such distortions, they have left some critical issues open for future consideration. The flexibilities and loopholes in the case law can be used by all WTO Members and have been increasingly utilized by China in its own AD practices. Thus, the current law has arguably 'multilateralized' the NME treatment under the general framework of the WTO and may incentivize tit-for-tat use of AD.