Companies from emerging economies have started internationalizing their production operations; they are following the same path as American, European and East Asian corporations before them, setting up factories in third countries to serve their export markets from closer locations and produce more efficiently. Thus, it is no longer only developed countries’ multinationals which are moving their operations to developing countries, but emerging market companies that are increasingly engaging in production abroad. This is having beneficial effects in countries where these companies invest and might help them start their own industrialization process. This has attracted the ire of developed countries, which are now targeting these downstream production plants abroad by using the so-called anti-circumvention instrument, resulting in trade defence duties imposed on the parent companies being extended to their foreign subsidiaries. This application of the anti-circumvention instrument departs from its historic rationale and might hinder the development of countries in need of foreign investment. Therefore, affected governments should consider taking international legal action to bring developed countries to the negotiating table to put a halt to this abuse of the anti-circumvention instrument.

This study examines how US discretionary practices developed in the past decade have affected antidumping duty rates against exporters. Using the most recent data on dumping margin calculations, we find that the US Department of Commerce (DOC) has developed discretionary practices in a more nuanced manner to inflate dumping margins, which have primarily targeted market economy exporters. Our case studies document that practices known as targeted dumping and particular market situations appear to serve as trade protectionism for market economy exporters, especially those who could otherwise have received a negative determination without such practices. Furthermore, the DOC has brought an apparent change in its application of discretionary practices after the Trade Extension Preferences Act of 2015, leading to much higher dumping margins for the market economy. Along with empirical and case analyses, we further examine the World Trade Organization (WTO) jurisprudence concerning the extent to which the discretion of an investigating authority in anti-dumping proceedings can be condoned in the WTO.

This article reviews the Appellate Body Report in the Ukraine–Ammonium Nitrate dispute that focused on the impact of Russia's dual pricing in the natural gas market on the ammonium nitrate market. Interpreting the WTO Anti-Dumping Agreement (ADA), the Appellate Body rejected the possibility to reject input costs, which, though distorted, were duly reported in the company's records, and to replace them with a surrogate price which, for the Ukrainian authorities, was the (adjusted) export price of Russian natural gas at the German border. In this article, (a) we fully review the background of the dispute, showing the connections between natural gas and ammonium nitrate prices, and the impact on Russia's price regulation of the domestic market on them; (b) we then review the ADA and concur with the interpretation of the Appellate Body, essentially for systemic reasons; (c) for completeness, we also investigate whether econometrics could accurately determine the natural gas benchmark price in Russia and conclude in the negative; (d) since dual pricing gives an economic benefit to domestic ammonium nitrate producers, we finally test dual pricing under the WTO subsidy rules. The conclusion is that the current disciplines are not likely to apply to dual pricing and lead us to conclude that important distortions are currently left without regulation in the WTO.

This paper analyzes the Australia – Anti-Dumping Measures on A4 Copy Paper panel report, the second recent WTO dispute to involve a challenge to Indonesia's paper industry. The Indonesian paper industry benefits from reduced-cost inputs because of the Indonesian government's influence and subsidies over the timber and pulp market. The report offers the first interpretation of ‘particular market situation’ under Article 2.2 of the WTO's Anti-Dumping Agreement. At the same time, it raises questions regarding the appropriateness of using anti-dumping measures to address what are fundamentally subsidy issues. While the panel ultimately found that Australia's measure was inconsistent with Article 2.2, the paper shows that the panel's interpretation of ‘particular market situation’ increases the relative attractiveness of using anti-dumping duties instead of countervailing measures. Two key points on the welfare implications of the decision can be made. The first relates to the motivations of the Australian paper industry and the imperfectly competitive market in which Australian Paper operates. The second is the importance of challenging subsidies rather than imposing anti-dumping duties where the subsidies in question have negative environmental effects.

The Appellate Body (AB) report in Korea–Pneumatic Valves is among the most structurally complex of recent trade remedies reports. The AB weaves a complicated web to explicate the intricacies of the relationship among the relevant provisions on injury determination in anti-dumping disputes in the midst of a contentious and long-running series of disputes between two close regional trading powers. This Article first examines the Korean investigation and its significance in economic terms. Second, it analyzes the AB's conclusions on Article 6.2 of the Dispute Settlement Understanding regarding the panel request and the significance of the AB's treatment. Third, it studies the AB's comments on the panel's anti-dumping calculations where the AB amplifies its prior pronouncements on the elements of injury and causation. Finally, the Article situates this dispute in the broader political debates playing out both at the AB and between the two disputing parties.

This article analyses economic and legal issues in the WTO dispute between Morocco and Turkey over hot-rolled steel. Over 2013–2014, the Moroccan government conducted an antidumping investigation against two Turkish steel producers. Morocco's investigation concluded that Turkish dumping was retarding the establishment of a new domestic industry; antidumping duties were imposed against both Turkish producers. Turkey filed a complaint at the WTO in 2016, asserting procedural and substantive violations. The Panel found that Morocco had acted inconsistently with a number of WTO obligations, including those regarding its injury investigation. Although Morocco initially appealed the Panel's decision, it withdrew its appeal after the antidumping duties expired in September 2019. This case is unusual and important in that it was the first antidumping case in which a country sought to use antidumping duties to protect a newly developing industry. The Panel may have missed an opportunity to explore the definition of an ‘unestablished’ industry for purposes of determining injury in an antidumping investigation.

This article discusses the ambiguity found in the WTO Anti-Dumping Agreement concerning price suppression analysis. Previous case law has established that investigating authorities undertaking to highlight price suppression must conduct a counterfactual analysis. This article examines the difficulties that investigating authorities face in performing such an analysis when the investigating period overlaps with a financial crisis or other abnormal economic circumstances. It suggests that the Appellate Body was correct to require consideration of how profit margins and costs are affected by market circumstances, but ought to pay further attention to the behavior of firms in imperfectly competitive markets.

This article challenges the widespread view that existing WTO rules are insufficient for dealing with State capitalism in China, which has been further emboldened by the latest rounds of State-owned enterprise (‘SOE’) reforms. Through a careful review of WTO agreements and jurisprudence, it is argued that new rules are not necessarily needed because the unique challenges created by China's State capitalism can be appropriately addressed by the WTO's existing rules on subsidies coupled with the China-specific obligations. A more realistic approach would be to encourage China to undertake market-oriented reforms through WTO litigation based on existing rules rather than trying to negotiate new rules.

We explore China's behaviour in taking anti-dumping actions, with a focus on those which have been challenged under the WTO dispute settlement mechanism. We argue that the typical motivations behind China's resort to anti-dumping measures include protection, retaliation, industrial development and export promotion. These motivations are likely to carry more weight than China's observance of WTO obligations when deciding whether to impose anti-dumping measures and whether to implement WTO rulings. Brief recommendations are provided to foreign governments and exporters on how to avoid China's anti-dumping actions.

In March 2002 the US administration imposed protective duties to safeguard its steel manufacturing industry. The measure was subsequently found to be illegal and repealed. The widespread conception is that the measure was ill-conceived and that by declaring it illegal the WTO system of adjudication proved that it had come of age. However, closer examination of the case and the relevant law reveals that the measure was in fact not ill-advised but a clever legal and political ploy. Rather than proving that WTO adjudication was working, the opposite is shown to be the case. WTO adjudication is in need of some changes if it is to respond to political manoeuvres which abuse the dispute resolution system.