Legitimacy of the Criticism by the United States against the Trade Remedy Findings of the WTO Appellate Body in Connection with its Refusal to Appoint Appellate Body Members

This paper examines the legitimacy of the criticism in the February 2020 report by the United States against the WTO Appellate Body’s findings on WTO trade remedy rules.

The United States legitimately objects to the Appellate Body’s findings on the scope of the “public body” and on evidence showing the market distortion to find an appropriate benchmark. These findings were made outside of the context of the SCM Agreement. Its finding that double remedies through the simultaneous application of antidumping and countervailing duties are prohibited has created Members’ obligations under Article 19.3 of the SCM Agreement. It, however, correctly stated that GATT Article VI:3 prohibits double remedies. It is also correct to find that no other interpretations can be made than that the zeroing methodology is prohibited under the Antidumping Agreement, and that importing Members must examine “unforeseen developments” and separate and distinguish injury caused by other factors under GATT and the Agreement on Safeguards.