서강대학교

초록/요약

Objective of this article is to answer the three question; why the sunset review in the United States (US) does not function as the expiry process of anti-dumping orders, why the panel of the World Trade Organization (WTO) does not resolve the problems of the sunset review in the US and what is the controversy of likelihood standard set out in Article 11.3 of the Anti-Dumping Agreement (Agreement) and the alternative for that. Article 11.3 imposes a temporal limitation on the maintenance of anti-dumping duties as five years and lays down a mandatory rule with an exception. This clause was inserted to resolve the problems, which is that once the duty was imposed, the anti-dumping duties permanently continue. If only a high probability of continuation or recurrence of dumping and injury exists upon revocation of the measures, anti-dumping duties could be continued. With respect to the first question, the US statutory regime related to the sunset review creates two-tier law. When an ambiguity is identified in application and interpretation of the Uruguay Round Agreements Act (URAA), the law becomes the URAA plus whatever is in the Statement of Administrative Action (SAA). The problem is that the SAA accompanied with the URAA has many controversial standards for likelihood determination, and thus it ensures that the US Department of Commerce and US International Trade Commission can execute discretionary practices to easily find the likely dumping and likely injury in the sunset review. As a result, mechanistic exercises based on irrebuttable presumptions and insufficient evidences are prevalent in the US sunset reviews, and thus foreign exporters and governments face continuous and permanent anti-dumping duty. But this approach of the US is determined to be not inconsistent with the Agreement mainly due to the exception clause of Article 11.3. Despite these kinds of serious controversies of the US, panels and Appellate Body of the WTO have troubles to make an active interpretation reflecting the spirit of the Agreement. Article 11.3 is brief and isolated from other clauses of the Anti-Dumping Agreement and the standard of review set out in Article 17.6 imposes excessive burden for the WTO panel to reject the determination of national reviewing authorities. Essential problem of the sunset review, which is regarding the last question, is with respect to the likelihood standard in Article 11.3. This standard is ambiguous to apply, and thus allows rooms to use discretionary practice of member countries. It conflicts with the context of the Agreement that anti-dumping measures can be established on the ground of causal link between dumping and injury, and futhermore it injures fundamental objective of the WTO, which is to make level playing field between domestic products and importing products. Therefore, alternative to current standard is necessary. This paper propose alternative to current Article 11.3 as follows; "all anti-dumping measures shall remain in force only for as long as and to the extent necessary to counteract dumping which is causing injury and shall without exception be terminated at the latest 5 years from the imposition of the order. A Member shall not initiate a sunset investigation until a date no sooner than one year following the termination of the anti-dumping measure. New sunset procedure and methodology shall be the same as original investigation."