[WTO Case Review Series No.8] European Communities — Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China (WT/DS397): Dispute over the method of imposing anti-dumping duties on non-market economies

One of the most important issues addressed in this case was whether it is World Trade Organization (WTO)-consistent to determine the anti-dumping (AD) duty rate not on an individual-exporter basis but on a country-wide basis when imposing AD measures on exporters from non-market economies (NMEs). The European Union (EU) tried to justify the imposition of a country-wide duty on the grounds that, given the connectedness between the government authorities and private companies in NMEs, the state would be able to circumvent individual AD duties imposed on suppliers by channeling exports through the exporter with the lowest duty rate. The panel and Appellate Body, however, found that the AD Agreement requires Member states to calculate AD duties on an individual-exporter basis, which is not compliable with the EU's practice. The Appellate Body, however, recognized there may be circumstances where nominally distinct exporters may be grouped in a single entity when calculating dumping margins because of structural and commercial relationships or due to control or material influence by the state. In order to do so, the investigating authorities are required to demonstrate, not simply presume as the EU did, that this type of relationship or control exists. The proper method for demonstration, which remains unclear in this ruling, could be a controversial topic among countries.