EU Price Comparison Methodologies (DS516): Challenging the Non- Market Economy Methodology in Light of the Negotiating History of Article 15 of China's WTO Accession Protocol

Abstract

The EU’s and the US’ written submissions in EU – Price Comparison Methodologies, for the first time, elaborated their respective positions on how Article 15 of China’s WTO Accession Protocol should be interpreted and applied after fifteen years of China’s entry into the WTO on 11 December 2016. This article offers a detailed analysis of the weaknesses in the interpretation of Article 15 as proposed by the EU and the US, that is, the so-called “Shifting in Burden of Proof” approach. The article argues that the non-market economy antidumping rule contemplated in Article 15 must be terminated according to the 15-year deadline. Through a careful examination of the negotiating records of Article 15 and China’s Accession Protocol under both the GATT/WTO multilateral negotiations and the US-China bilateral negotiations, the article submits that the bilateral records show convincingly that the compromise reached between the US and China on Article 15 was that while China accepted the application of the special antidumping rule, the US agreed that the rule would remain applicable for fifteen years only. There were no negotiating records to suggest that this compromise was not endorsed by the WTO membership. In conclusion, the article offers brief observations on the broader implications of this dispute.