wto ruling challenges the eu “individual treatment” practice - HFW

hfw.com
  • No tags were found...

wto ruling challenges the eu “individual treatment” practice - HFW

eplace them with individual,exporter-specific injury margins.Exporters subject to EU anti-dumpingduties calculated by reference to acountry-wide injury margin pursuantto the “lesser duty rule” will be able tobenefit from individual injury marginrecalculation.This will be the case, inparticular, where their export pricesduring the period of investigationthat led to the imposition of the ADduties were higher than the weightedaverage price level of all Chineseexporters.Individual exporter injury margincalculation is not presently required byWTO law. The ongoing “Doha Round”Negotiations are also focusing onthe amendment of the ADA in orderfor it to include, inter alia, the “lesserduty” rule. Regardless of the currentposition under WTO law and futuredevelopments, it will be difficult forthe Commission to reject individualinjury margin recalculation requestsby exporters for reasons of coherentapplication of the Basic Regulationand policy consistency.Uncertainty and challengesInterim reviewsThe Commission may also decide toinitiate interim reviews pursuant toArticle 11(3) of the Basic Regulationin order to ensure that the newWTO-compliant dumping margincalculations take into account upto-datedata. It may not be excludedthat the EU industry may request theinitiation of such interim reviews.However, such requests may not bebased on a finding that EU AD dutiesare lower as a result of the specialreviews. The EU industry will need toprovide the Commission with primafacie evidence that dumping and/or injury margins have increasedsince the imposition of the originalduties on a lasting basis, makinga recalculation of the duties usingup-to-date data necessary. In otherwords, the Commission may notinitiate interim reviews by merelyreferring to the fact that, as a resultof the special reviews, the dutiesagainst Chinese exporters have beenreduced.The problem that arises withsuch interim reviews is that theCommission will update the normalvalue data in the analogue countryused in the original investigation,unless there are reasons to chooseanother analogue country. In bothcases, the normal value will likely notbe known by the Chinese exporters.Therefore, updating the analoguecountry normal value createsuncertainty in the calculation of thedumping margins.The Chinese producers that aresubject to currently applicable antidumpingmeasures should thereforebe prepared for this challenge.For example, it could be useful toconsider proposing the use of ananalogue country other than thatused in the original investigation,if it might be reasonably expectedthat such a choice could result inlower dumping margins; and takethe initiative to find producers in thatcountry that are willing to cooperate.TimingFinally, it is important to have anunderstanding of the time frameworkinvolved. The final report of the WTOAB, if the EU decides to appeal thePanel’s decision, might be adoptedby the WTO DSB around mid-2011.The Commission will thereafterproceed with the reassessment andrecalculation of dumping and/or injurymargins for individual exporters in thecourse of the special reviews in late2011 or early 2012. Potential followupinterim reviews may take place in2012-2013. If the EU decides not toappeal the final WTO Panel report, allof these projected time limits will needto be brought forward by six months.EU Export Prices for 2011-2012 areimportantIf interim reviews are initiated, normalvalue and export price data will likelybe established by reference to pricesprevailing during 2011-2012. Chineseproducers should therefore take thisinto account when they set theirexport prices to the EU during 2011-2012, if they wish to take advantageof the favourable changes in dumpingand/or injury margin calculations.Our EU Competition, Trade andRegulatory team can provide legaladvice for companies interested inparticipating in the special reviews.We can assist, in particular, Chineseproducers to perform a dumpingand injury margin recalculationto assess the potential benefit ofapplying for/participating in suchspecial reviews. Our goal is to helpour clients establish and implementa commercial and legal strategy inorder to capitalise on China’s victoryin the WTO DSB.For more information, please contactKonstantinos Adamantopoulos,Partner, on +32 2 535 7861 orkonstantinos.adamantopoulos@hfw.com, or Anthony Woolich, Partner, on+44 (0)20 7264 8033 oranthony.woolich@hfw.com, or yourusual contact at HFW.EU & Competition 03


Lawyers for international commerceHOLMAN FENWICK WILLAN LLPFriary Court, 65 Crutched FriarsLondon EC3N 2AET: +44 (0)20 7264 8000F: +44 (0)20 7264 8888© 2011 Holman Fenwick Willan LLP. All rights reservedWhilst every care has been taken to ensure the accuracy of this information at the time of publication, the information is intended as guidance only. It should not beconsidered as legal advice.Holman Fenwick Willan LLP is the Data Controller for any data that it holds about you. To correct your personal details or change your mailing preferences pleasecontact Craig Martin on +44 (0)20 7264 8109 or email craig.martin@hfw.comhfw.com

More magazines by this user
Similar magazines