China's Anti-subsidy Regulations: The Latest Weapon in China's Trade Law Enforcement

Anti-subsidy investigations are similar to anti-dumping and safeguards investigations in several important respects. First, each involves injury and causation determinations: Is the domestic industry suffering injury? If so, is the injury being caused by imports? Injury from imports is actionable, however, only in exceptional situations: (a) imports are being sold at prices below their "normal value" (anti-dumping); (b) the quantity of imports has unexpectedly surged, threatening to overwhelm the domestic industry before it can adjust (safeguards); and (c) the imports have been improperly subsidized by the exporting country's government (anti-subsidy). Anti-subsidy investigations are conceptually more complex than anti-dumping or safeguards investigations because of the particular difficulties of identifying improper subsidies and quantifying their effects.

Injury and Causation

The injury and causation issues for all three trade remedies authorized under the WTO are similar, and, accordingly, the terms of the SCM Agreement on injury and causation (Article 15) closely parallel those in the WTO Anti-dumping and Safeguards Agreements. Chinese procedures for investigating the injury and causation issues in anti-subsidy cases likewise parallel those for Chinese anti-dumping and safeguard investigations. As with the other trade remedy investigations, the State Economic & Trade Commission (SETC) is primarily responsible for the injury and causation determinations. The Ministry of Agriculture, however, is given joint responsibility in cases involving agricultural products (Regulations, Article 7).

The Regulations closely follow the terms of the SCM Agreement in several respects:

• "Injury" may take one of three forms: "material injury" to a domestic industry; the "threat of material injury" to a domestic industry; or "material retardation of the establishment of" a domestic industry (SCM Agreement, Article 15, note 45; Regulations, Article 7).
• Injury must be analyzed on a "like product" basis, i.e., imports must be compared with the specific domestic products with which they compete. The products must be defined as narrowly as possible (SCM Agreement, Article 15.1, 15.6; Regulations, Articles 10 and 12).
• Injury caused by factors other than subsidies must not be attributed to the subsidized imports (SCM Agreement, Article 15.5; Regulations, Article 8).
• Injury from two or more countries' imports may be cumulatively assessed if the subsidies and import volumes of each are not de minimis and if conditions of competition make cumulation "appropriate" (SCM Agreement, Article 15.3; Regulations, Article 9).
• Determinations of injury and causation must be based on evidence (SCM Agreement, Article 15.1; Regulations, Article 8).

There are, however, at least two apparent inconsistencies. First, when there are allegations of a future "threat" of injury, as opposed to an existing injury, a large element of speculation is inherent in the analysis. Article 15.7 of the SCM Agreement protects against abuse of this process by providing, in several detailed paragraphs, how a threat of material injury is to be determined. Article 15.7 also requires that any determination of a threat "be based on facts and not merely on allegation, conjecture or remote possibility". Comparable provisions do not appear in China's Regulations.

Secondly, the SCM Agreement lists in detail economic factors that must be considered in determining, first, the "impact of the subsidized imports on the domestic industry", i.e., injury (Article 15.4), and then the "demonstration of a causal relationship between the subsidized imports and the injury to the domestic industry", i.e., causation (Article 15.5). The Regulations (Article 8), following China's Anti-dumping Regulations, provide only a single, much shorter list of factors to be considered "when determining whether a subsidy has caused injury to a domestic industry". They do not distinguish factors relevant to injury from those relevant to causation. The limited detail in Article 8 is arguably not a concern since China is obligated under the SCM Agreement to follow its terms, and the details of Articles 15.4 and 15.5 of the Agreement can be read as implicit in the shorter Regulations. The grouping of injury and causation factors together, however, suggests a potential analytical confusion in Chinese investigations.

This possible confusion is troubling because the SETC's injury and causation findings in about a dozen anti-dumping rulings and in the recent steel safeguard investigation have generally fallen short of WTO standards. The SETC's findings are typically summary, with data and sources unspecified. Chinese authorities, moreover, routinely acquiesce in requests by the domestic Chinese industry to withhold as "confidential" the economic data on which injury allegations are based, including data far outside the legitimate bounds of proprietary information. As a result, foreign parties participating in a Chinese trade investigation are generally unable to identify even the basis for the injury allegations, much less the basis for the SETC's injury and causation findings. The lack of detail and analytical confusion in the provisions of the Anti-Subsidy Regulations applicable to this issue suggest that similar problems are likely to arise in anti-subsidy investigations.

Defining a Subsidy

A WTO member may apply "countervailing measures" to imports that are causing "injury" to a domestic industry only if those imports are subsidized. One of the particular difficulties of the WTO anti-subsidy rules is explaining exactly which kinds of government support constitute "subsidies". The SCM Agreement defines a "subsidy" as including four elements: (1) a "financial contribution" (2) by a government (3) conferring a "benefit" that (4) is "specific".

Financial Contribution

Article 1.1(a)(1) of the SCM Agreement lists the types of government "financial contributions" that may qualify as "subsidies":

• a direct transfer of funds, e.g., grants, loans or "equity infusions";
• government revenue foregone, e.g., tax credits; and
• the provision of goods and services, other than general infrastructure or the purchase of goods.

Article 3 of the Regulations follows paragraph (a)(1) closely. Paragraph (a)(2) of the SCM Agreement also provides that income or price supports under Article XVI of the GATT qualify as subsidies.³ Article 3 of the Regulations appears to encompass the provisions of paragraph (a)(2) in its prefatory language, which includes as a "subsidy" not only "financial contributions" but also "income and price supports".

Government

A "financial contribution" constituting a "subsidy" must be from "a government or any public body within the territory of a member". Article 1.1(a)(1)(iv) of the SCM Agreement prevents governments from circumventing these terms by including financial contributions made via a private body at the direction of a government. Article 3(iv) of the Regulations has a shorter but similar provision.

Benefit

Article 1.1 of the SCM Agreement requires that an otherwise qualifying "financial contribution" must confer a "benefit" in order to constitute a "subsidy". The SCM Agreement does not define "benefit" and leaves this to WTO member governments to interpret. In practice, WTO members measure the benefit either as the benefit to the recipient of the subsidy or as the cost of the benefit to the subsidizing government.⁴ China follows the "benefit to the recipient" approach. Article 14 of the SCM Agreement sets out mandatory rules for the application of this approach. The consistency of the Regulations with those rules is discussed below.

Specificity

Government "financial contributions" conferring a "benefit" can take many forms. Some may be extremely diffuse and apply to broad categories of industries (e.g., certain tax policies). A recurring difficulty in anti-subsidy practice has been determining which kinds of assistance are sufficiently limited to warrant trade remedies. The SCM Agreement addresses this problem by requiring in Article 1.2 that an otherwise qualifying subsidy be "specific" in accordance with detailed criteria set out in Article 2.

Article 2.1 provides that if law or regulation limits a programme to certain enterprises, industries or regions, and if the programme is automatic in its application, it qualifies de jure as a "subsidy". A programme that does not qualify as de jure specific may, nevertheless, be specific de facto if:

• the subsidy is predominantly or exclusively used by only a limited number of enterprises;
• disproportionately large subsidy amounts are granted to certain enterprises; or,
• the granting authority exercises its discretion so as to benefit only certain enterprises.

Factors to be considered in making this analysis are set out at some length in Article 2.1. Article 2.2 provides that geographically limited subsidies are "specific" and Article 2.3 provides that export performance and import substitution subsidies prohibited under Article 3 are also "specific". Article 2.4 requires that a determination of specificity must be "clearly substantiated on the basis of positive evidence".

Article 4 of the Regulations follows these provisions in more concise terms. It requires that a subsidy be "specially oriented" (, Zhuan Xiang Xing) and lists the situations in which this special orientation will be found to exist:

• the subsidy is limited by application to specific enterprises or industries;
• the subsidy is limited by law to specific enterprises or industries;
• the subsidy is limited to a specific geographic area;
• the subsidy is dependent on the export performance of an enterprise or industry; or
• the subsidy is based on substitution of imported products by domestically produced products.

The first two categories parallel the de facto and de jure tests in Article 2.1 of the SCM Agreement, the third category follows Article 2.2, and the final two follow Article 2.3. The Regulations do not include either the detailed analysis standards of Article 2.1 of the SCM Agreement nor the requirement of Article 2.4 of the SCM Agreement that a finding of specificity be based on "positive evidence".

"Countervailable" Subsidies

The SCM Agreement divides "subsidies" satisfying the criteria in Articles 1 and 2 into two categories, known as "red light" and "yellow light" subsidies.⁵

Red light subsidies are export performance subsidies and import substitution subsidies, both of which are prohibited under Article 3 of the SCM Agreement. A member may refer allegations of a red light subsidy directly to a WTO dispute panel. No evidence of injury is required, and the dispute settlement process is expedited. The panel is authorized to order withdrawal of the subsidy as a remedy.

Yellow light subsidies are those that do not meet red light criteria. A member government may also refer a yellow light subsidy directly to WTO dispute resolution, but only upon demonstration that the subsidy has caused injury to its domestic industry, nullified or impaired a WTO obligation,⁶ or caused "serious prejudice" to the member's interests.⁷ A WTO panel may authorize as a remedy for a yellow light subsidy the cessation of the injury, the withdrawal of the subsidy or compensation to the adversely affected member.

Apart from the right to take red or yellow light subsidies directly to WTO dispute resolution, a WTO member is also authorized to investigate imports that benefit from red or yellow light subsidies. Upon establishing that the imports have caused injury to a domestic industry, a WTO member may apply countervailing duties to those imports. Red light and yellow light subsidies are therefore also termed "countervailable subsidies".

Because the red light/yellow light distinction is relevant primarily to remedies at an inter-governmental level, the Regulations do not refer to that distinction. Under the Regulations, all forms of governmental assistance to imports that qualify as "subsidies" are subject to countervailing duties. The Regulations reflect the red light/yellow light distinction indirectly, however, by including the SCM Agreement's red light subsidies in the list of "specially oriented" subsidies in Article 4 of the Regulations and by appending to the Regulations a list of 12 specific export performance subsidies drawn from Annex I to the SCM Agreement. The practical result of these terms is procedural. Subsidies that would qualify as red light subsidies under the SCM Agreement are not required under the Regulations to satisfy the general "specially oriented" criteria of Article 4. They are countervailable upon proof of injury and causation alone.

Calculation of the "Benefit"

The purpose of countervailing duties is to level the playing field. The SCM Agreement (Article 19.4) therefore authorizes countervailing duties only in the "amount of the subsidy" or less. Article 43 of the Anti-subsidy Regulations has a similar limitation.

Determining the "amount of the subsidy" is the tough part. China has elected to use the "benefit to the recipient" approach and is, therefore, required to follow Article 14 of the SCM Agreement. Paragraphs (a)-(d) of Article 14 set out guidelines for measuring the benefit of a subsidy to an import for five forms of subsidy: equity capital investments; government loans; government loan guarantees; the provision of goods or services by a government; and government purchase of goods. The final two are both included in paragraph (d).

Article 6 of the Regulations lists seven specific measurements for the "subsidy amount", including the five set out in Article 14 of the SCM Agreement. It also provides calculations to be used when the subsidy is an outright grant or constitutes foregone revenue. The provisions of the Regulations generally track the comparable terms of the SCM Agreement. There is, however, one inconsistency.

Article 6(iv) of the Regulations provides that "where the subsidy is in the form of a capital contribution, the subsidy amount shall be the amount of capital contribution that the enterprise accepts". Article 14(a) of the SCM Agreement, however, states that equity capital provided by a government "shall not be considered as conferring a benefit unless the investment decision is inconsistent with the usual investment practice of private investors..... in the territory of that member" (emphasis added). This is generally interpreted to mean that an equity investment is a countervailable subsidy only in the amount by which it exceeds the market value of the investment. The Regulations' treatment of any government equity investment as a subsidy in the full amount of the investment is, therefore, inconsistent with the terms of the SCM Agreement.

Article 14 of the Agreement also requires that a member using the benefit-to-the-recipient approach incorporate these guidelines in its domestic laws with "particularity" and in terms that are "transparent". It is questionable whether the concise terms of Article 6 of the Regulations satisfy these requirements. In practice, moreover, the calculations in question have often proven difficult to implement in other WTO member countries. China's inexperience with these rules, and its more general inexperience with complicated market-based analyses, suggests that these provisions may also prove difficult to implement in Chinese investigations. In this regard, we would highlight two main points:

• Article 14(b) of the SCM Agreement and Article 6 of the Regulations provide that the benefit of a government loan is the difference between the interest paid on the government loan and that on a comparable commercial loan. Measuring that difference raises many practical difficulties. What interest rates are to be used and are they short or long term? Are they fixed or variable rate loans? Is the creditworthiness of the company relevant and, if so, how is it determined? If, as is often the case, the recipient is not creditworthy, what is the appropriate risk premium?
• Article 14(d) of the SCM Agreement and Article 6 of the Regulations provide, in effect, that the benefit from the sale of a good or service, or the purchase of goods, by the government is the difference between the price paid and "adequate remuneration". Article 14(d) adds that "adequate remuneration" shall be determined with relation to the "prevailing market conditions", which include "price, quality, availability, marketability, transportation and other conditions of sale". There are numerous potential variables here whose proper measurement can be debated.

The Regulations provide no detailed guidance as to how these or similar issues will be handled. This may prove troublesome for both the investigating agencies and the investigated producers and their governments when actual cases arise.

Procedural Issues

The SCM Agreement includes quite detailed provisions specifying how investigations are to be conducted and decisions rendered. These provisions generally parallel those in the WTO Anti-dumping Agreement. Similarly, the procedural provisions in China's Anti-subsidy Regulations follow closely those set out in the Anti-dumping Regulations. Since its accession to the WTO, China has also promulgated more detailed rules to govern the administration of trade law proceedings. For anti-subsidy investigations, these include: Placing an Anti-Subsidy Case on File for Investigation Tentative Rules (the Filing Rules);⁸ Investigation Hearings for Anti-subsidy Tentative Rules (the Hearing Rules);⁹ Anti-Subsidy Questionnaire Tentative Rules (the Questionnaire Rules);¹⁰ and On-spot Verification for Anti-subsidy Investigation Tentative Rules (the Verification Rules).¹¹

The general structure of an anti-subsidy investigation is straightforward. Enterprises representing a domestic industry file a petition alleging that they are being injured by subsidized imports, and after consulting the SETC, MOFTEC determines whether to initiate an investigation. If so, a public announcement is issued and "interested parties" including the producers of the products under investigation and the allegedly subsidizing governments, are entitled to participate in the proceedings. The investigating agencies issue questionnaires to interested parties and may conduct on-site visits to verify the submissions, hearings are held, preliminary determinations may permit the application of provisional measures, and final determinations may revise the preliminary ones. There are also provisions specifying procedures for the submission and evaluation of evidence, the conditions under which an investigation may or must be terminated, procedures permitting settlement of the charges through "undertakings", and for periodic reviews.

The most significant difference between anti-subsidy investigations and anti-dumping or safeguard investigations is that the allegedly subsidizing governments are also required to participate. Typically, only the governments are in a position to provide detailed information on the governmental programmes that are allegedly providing the subsidies.

Initiation and Term of Investigation

The Regulations generally follow quite closely the terms of the SCM Agreement on initiating and terminating investigations:

• Investigations may be conducted where an application by or on behalf of a domestic industry has been made which includes "sufficient evidence" of the subsidy and its amount, injury and a causal link between injury and the subsidy practice alleged (SCM Agreement, Article 11.1 and 11.2; Regulations, Article 15; Filing Rules, Article 11.5 to 11.7). The authorities may also initiate their own investigation (SCM Agreement, Article 11.6; Regulations, Article 18; Filing Rules, Article 3).
• The petitioners must have standing to represent the domestic industry, measured by their aggregate share of the domestic market and the extent to which they are supported or opposed by other domestic producers (SCM Agreement, Article 11.4; Regulations, Articles 16, 17; Filing Rules, Articles 5 and 6).
• An investigation must be terminated as soon as the enforcement authorities have concluded that there is insufficient evidence of either the existence of an actionable subsidy or of injury or causation of injury. Further, there must be an immediate termination where either the volume of the imports under investigation or the level of injury is negligible or the subsidy is de minimis, i.e., less than 1% ad valorem (SCM Agreement, Article 11.9; Regulations, Article 28).
• Any investigation into alleged subsidies may not exceed 18 months from the date of initiation, except where special circumstances exist (SCM Agreement, Article 11.11; Regulations, Article 27).

Written Submissions and Evidence

The SCM Agreement contains numerous requirements concerning the types of evidence upon which determinations can be based and the right of interested parties to express their views. Again, the Regulations follow these requirements on many points:

• Interested WTO member governments and affected parties (i.e., foreign producers and exporters and domestic importers) must be provided with the information on file and with an adequate opportunity to file their comments, both orally and in writing (SCM Agreement, Article 12.1 - 12.4; Regulations, Articles 23; Filing Rules, Article 24; Hearing Rules).
• Participating parties may request that information be treated as "confidential", and the investigating authority may grant such requests if they are "justified" (SCM Agreement, Article 2.4; Regulations, Article 22).
• The enforcement authorities may carry out their inquiries through the use of questionnaires and visits to parties under investigation (SCM Agreement, Article 12.1, 12.5, 12.6; Regulations, Article 20; Questionnaire Rules; Verification Rules).
• The authorities must "before a final determination is made, inform all interested members and interested parties of the essential facts under consideration which form the basis for the decision [with] such disclosure [taking] place in sufficient time for the parties to defend their interests" (SCM Agreement, Article 12.8; Regulations, Article 26).

There are two areas, however, where the Regulations omit specific requirements of the SCM Agreement:

• Article 12 of the SCM Agreement requires that the authorities satisfy themselves as to the "accuracy of the information supplied [and] upon which their findings are based".
• Article 22.3 - 22.6 of the SCM Agreement requires "sufficient detail" with respect to the findings of fact and law upon which any undertaking, suspension or preliminary or final determination is made. The authorities must state the reasons for the imposition of final countervailing duties or the acceptance of an undertaking, including providing "detailed explanations of the findings...... on the existence of a subsidy and injury and shall refer to the matters of fact and law which have led to arguments being accepted or rejected".

The omission of these requirements is troubling in light of China's practice thus far in anti-dumping¹² and safeguard investigations. Despite similar requirements in the applicable WTO agreements, the findings of Chinese authorities have frequently lacked sufficient detail from which interested parties (or a reviewing WTO panel) could determine the basis for the findings or the reasons for acceptance or rejection of arguments presented in the proceedings.

Experience with the procedurally similar anti-dumping and safeguards investigations also suggests that problems may be anticipated in two other areas. First, although the hearing rules are not unreasonable, in practice hearings in trade investigations tend to be pro forma. Parties are often not afforded adequate time to present their views, and the legal and evidentiary presentations are formal with little or no questioning.

More significantly, there have been consistent transparency problems in Chinese trade investigations. There are no regular procedures for the parties to exchange written submissions, and access to the agency files is often not sufficiently timely to be of assistance. In any event, access is not very helpful since Chinese parties withhold as confidential large quantities of information that are outside the scope of any legitimate confidentiality concerns, and Chinese authorities routinely acquiesce in this practice. Ex parte contacts with the investigating authorities are the rule, not the exception. This is especially troubling in a system where the petitioners are generally state-owned enterprises, i.e., owned by the same government ­ and sometimes guided by the same government agencies ­ that are conducting the investigation. Unless these procedures are changed substantially, lack of transparency will continue to be the greatest single problem in all Chinese trade investigations.

Countervailing Measures and Undertakings

Provisional Measures

Both the SCM Agreement (Article 17) and the Regulations (Articles 29 through 31) establish parameters within which provisional countervailing duty measures may be imposed. No provisional measure can be imposed without a preliminary finding of a subsidy, injury and causation, and a provisional measure cannot be imposed within 60 days of the initiation of an investigation, nor can such measures last longer than four months. The Regulations conform to the SCM Agreement with one exception. Article 17.1 of the SCM Agreement provides that investigating authorities may only impose provisional measures if they "judge such measures necessary to prevent injury being caused during the investigation". There is no comparable pre-condition of injury pendente lite in the Regulations.

Undertakings

Anti-subsidy cases, like anti-dumping cases, may be settled by the parties' agreeing to "undertakings". In an anti-subsidy case, there are two possibilities: the subsidizing government may eliminate or limit the subsidy; alternatively, the exporter may revise its prices to eliminate the injurious effect of the subsidy. The Regulations (Articles 32 through 37) follow the applicable provisions of the SCM Agreement (Article 18) quite closely.

Countervailing Duties

Articles 19 through 21 of the SCM Agreement specify terms for the imposition of countervailing duties and the term for which such duties may be applied. The Regulations appear to be in conformity with these terms. Specifically:

• A final countervailing duty can be imposed only if there are findings of subsidy, injury and causation (SCM Agreement, Article 19.1; Regulations, Article 38).
• The countervailing duty cannot exceed the amount of subsidy determined (SCM Agreement, Article 19.4; Regulations, Article 43).
• The countervailing duty can be retroactive to either the date of the provisional determination or 90 days prior to that date, under specified circumstances (SCM Agreement, Article 20.6; Regulations, Articles 44 and 45).
• Any countervailing duty or undertaking is limited to five years and can be extended only under specified circumstances (SCM Agreement, Article 21.3; Regulations, Article 47). During this time, Chinese authorities, on their own initiative or at the request of an interested party, may review the "necessity to continue the imposition of the anti-subsidy" duty (SCM Agreement, Article 24.2; Regulations, Article 48). Any such review must be carried out within 12 months. The Regulations include provisions delimiting both the substance and procedures of the review (Regulations, Articles 49 to 51).

Judicial Review

In Article 23, the SCM Agreement mandates that, besides providing interested parties with the right to seek an administrative review, the WTO member must through national legislation "maintain judicial, arbitral or administrative tribunals or procedures for the purpose of..... the prompt review of administrative actions relating to final determinations and reviews of determinations (and) .....such reviews shall be independent of the authorities responsible for the determination or review in question". On August 27 2002, the Chinese Supreme People's Court announced that the Intermediate Court in Beijing would have jurisdiction over such appeals and similar appeals in other trade remedy cases beginning October 1 2002. The court announced more specific rules for handling such cases on November 21 2002. No appeals have yet been filed. China's judiciary is not, however, generally independent, and it may be questioned whether judicial review in China can, under these circumstances, satisfy the requirements of Article 23 of the SCM Agreement and comparable provisions of the Anti-dumping and Safeguards Agreements.

Retaliatory Measures

Article 55 of the Regulations authorizes Chinese authorities to take "appropriate counter measures" if "any country (region) should take any discriminatory anti-subsidy measures against any product exported from" China. The SCM Agreement does not, however, authorize retaliatory measures of this kind. If a WTO member believes that another member has improperly adopted anti-subsidy measures adversely affecting its interests, the SCM Agreement authorizes that member only to file a complaint before the WTO dispute settlement body, which may order prescribed remedies. Any measures adopted by China pursuant to Article 55 of the Regulations would, accordingly, violate China's WTO undertakings.¹³

The authors wish to thank Christiane Schuchhardt, a foreign attorney with the Washington, DC office of O'Melveny & Myers LLP, for her research assistance.

Endnotes

1 Promulgated by the State Council on November 26 2001 and effective January 1 2002.

2 Law and Practice of the World Trade Organization, Multilateral Agreements on Trade in Goods, pp. 271-326.

3 To qualify as an actionable subsidy, an income or price support under Article XVI of the GATT must be directly linked to increasing exports. The direct linkage requirement establishes a burden of proof that is often difficult to satisfy.

4 If a subsidy is challenged before a WTO dispute panel on the ground that the subsidy has caused "serious prejudice" to the complaining member's interests, the "cost to the government" approach must be used to measure the amount of the subsidy (SCM Agreement, Annex IV).

5 Article 8 of the SCM Agreement originally also identified three categories of "green light" subsidies: subsidies for research; disadvantaged geographic regions; and environmental adjustments. No countervailing measures against green light subsidies were permitted. These terms expired on January 1 2000, but their possible renewal has been suggested. Under the original Article 8 terms, the criteria for qualifying as a "green light" subsidy were very high. If they are adopted again, presumably similarly high thresholds will apply.

6 Nullification or impairment must be established in accordance with practice under Article XXIII of the GATT 1994.

7 A member's interests might, for example, be "seriously prejudiced" if its exporting industry was disadvantaged in a third country market by having to compete with subsidized products from another member.

8 Promulgated by MOFTEC February 10 2002 and effective March 13 2002.

9 Promulgated by MOFTEC February 10 2002 and effective March 13 2002.

10 Promulgated by MOFTEC March 13 2002 and effective April 15 2002.

11 Promulgated by MOFTEC March 13 and effective April 15 2002.

12 The authors have discussed problems with China's early anti-dumping decisions in "China's New Anti-dumping Rules: Battleground for a New Protectionism?" China Law & Practice, February 2002, 16(1), pp. 79-83, and "Defending Dumping Claims: Exporters to China Beware," China Law & Practice, June 2000, 14(5), pp. 32-39.

13 The WTO Appellate Body has held that the remedies set out in the Anti-Dumping Agreement are exclusive as a response to dumping. Case concerning United States 1916 Anti-dumping Act [Enacted September 8 1916, Ch. 463, ¡± 72 (1982)], paragraph 137, footnote 72. The same must presumably be true of the remedies in the SCM Agreement.