Disciplining the Use of TDI against China through WTO Dispute Settlement

Abstract

After having spent the better part of its first ten years as a WTO member either answering cases as a respondent or registered as a third party, China has recently begun to assert itself as a complainant, particularly with regard to the various trade defence instruments (TDIs) used against it. The year 2011 alone saw the circulation by the Appellate Body (AB) of three such reports - one pertaining to anti-dumping duties (ADDs), another safeguards, and another both concurrently imposed ADDs and countervailing duties (CVDs) - which all dealt at least in part with issues germane to TDI practice against China specifically or non-market economies (NMEs) generally. The article reviews some of the more pertinent issues of first impression ruled upon by the AB in those cases, concluding that China has registered some substantial victories that should be expected to limit the use of TDI against it but also that the AB has, in some respects, allowed for substantial leeway for investigating authorities to modify their current practices in such a way that, without further litigation, the impact of those victories could be reduced.