External Benchmark Choices in Anti-dumping and Countervailing Duty Proceedings: A Battle of ‘Proxies’?

Abstract

The use of external benchmark prices, in the determination of ‘dumping’ under the Anti-Dumping Agreement and ‘benefit’ under the SCM Agreement, is one of the most controversial topics in trade remedy jurisprudence today. The Appellate Body Report in EU—Biodiesel (Argentina) and the Panel Report in EU—Biodiesel (Indonesia) provide some useful indications for employing an external benchmark for constructing the normal value in an anti-dumping investigation. In relation to the SCM Agreement, reliance may be placed on the Appellate Body Reports in US—Softwood Lumber IV, US—Carbon Steel (India) and US—Countervailing Measures (China). These disputes provide circumstances in which departure from the prevailing in-country prices approach could be made during the subsidies and countervailing duty calculations. This chapter aims to analyse the use of external benchmarks in the calculation of ‘dumping’ under the Anti-Dumping Agreement and ‘benefit’ under the SCM Agreement—especially in the context of the expiry of Section 15(a)(ii) of the China’s Protocol of Accession to the World Trade Organization (2001).