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Open Access Panel Report on EU Biodiesel: A Glass Half Full?—Implications for the Rising Issue of “Particular Market Situation”

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Panel Report on EU Biodiesel: A Glass Half Full?—Implications for the Rising Issue of “Particular Market Situation”

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This article provides a detailed analysis of the World Trade Organisation (“WTO”) panel report on the EU Biodiesel dispute which represents the latest development of the WTO jurisprudence on anti-dumping. The panel’s decision has significant implications for the rising use of Particular Market Situation (“PMS”) by traditional users of anti-dumping (such as Australia) against economies like China in anti-dumping investigations. The panel correctly established that a finding of PMS does not provide a sufficient ground for the use of surrogate costs in the determination of constructed normal value (“CNV”) and that the use of that methodology would result in the imposition of anti-dumping duties in excess of dumping margins that should have been established consistently with the WTO Anti-Dumping Agreement, that is, by using actual costs recorded by exporters under investigation. It is argued that both Australia’s anti-dumping laws which essentially authorise the use of surrogate costs in the construction of normal value solely based on a finding of PMS and Australia’s use of that methodology in practice are contrary to WTO rules. The panel’s decision, therefore, is a positive step toward the resolution of the issues related to PMS by imposing constraints on the use of a protectionist methodology in determining CNV so as to prevent unjustified inflation of dumping margins and anti-dumping duties.

Affiliations: 1: Faculty of Law, UNSW, Australia SydneyAustralia weihuan.zhou@unsw.edu.au ; 2: Percival Legal SydneyAustralia andrew.percival@percivallegal.com.au

10.1163/23525207-12340019
/content/journals/10.1163/23525207-12340019
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This article provides a detailed analysis of the World Trade Organisation (“WTO”) panel report on the EU Biodiesel dispute which represents the latest development of the WTO jurisprudence on anti-dumping. The panel’s decision has significant implications for the rising use of Particular Market Situation (“PMS”) by traditional users of anti-dumping (such as Australia) against economies like China in anti-dumping investigations. The panel correctly established that a finding of PMS does not provide a sufficient ground for the use of surrogate costs in the determination of constructed normal value (“CNV”) and that the use of that methodology would result in the imposition of anti-dumping duties in excess of dumping margins that should have been established consistently with the WTO Anti-Dumping Agreement, that is, by using actual costs recorded by exporters under investigation. It is argued that both Australia’s anti-dumping laws which essentially authorise the use of surrogate costs in the construction of normal value solely based on a finding of PMS and Australia’s use of that methodology in practice are contrary to WTO rules. The panel’s decision, therefore, is a positive step toward the resolution of the issues related to PMS by imposing constraints on the use of a protectionist methodology in determining CNV so as to prevent unjustified inflation of dumping margins and anti-dumping duties.

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/content/journals/10.1163/23525207-12340019
2016-10-19
2018-07-19

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