This is from the U.S. opening statement at the second panel meeting in U.S. - AD Measures on Orange Juice (DS382):
Brazil’s Arguments Are Inconsistent with Both the Concept of, and Its Own
Application of, a Prospective Normal Value System13. The United States has demonstrated that the obligation that Brazil seeks to impose on Members is contrary to the very concept of a prospective normal value system provided for in Article 9 of the Antidumping Agreement. Under such a system, the amount of liability for payment of antidumping duties is determined at the time of importation on the basis of a comparison between the price of the individual export transaction and the prospective normal value. For example, an importer who imports a product the export price of which is equal to or higher than the prospective normal value cannot incur liability for payments of antidumping duties. The converse is also true. A liability for a dumped sale would be determined by comparing the price of an individual export transaction with a prospective normal value and the prices of other transactions have no relevance to this determination. As the panel in US –
Zeroing (Japan) found, “there is no textual support in Article 9 for the proposition that export
prices in other transactions are of any relevance.”14. The United States has provided evidence that demonstrates how prospective normal value systems operate and that the refund mechanism under a prospective normal value system normally addresses specific individual transactions. In contrast, there is no evidence to support the assertions that a refund mechanism must recalculate a margin of dumping based on an aggregation of all comparisons. Indeed, Brazil acknowledged that it has never granted a single refund when collecting antidumping duties on the basis of a prospective normal value.
15. Brazil nonetheless argues that an obligation to calculate the margin of dumping with respect to “product as a whole” is consistent with prospective normal value systems. In its answers to the Panel’s Questions, Brazil asserts that when it has applied prospective normal value, “the collection of the duty was limited to a dumping margin determined in accordance with Article 2 of the Anti-Dumping Agreement”. A review of the facts, however, raises questions about how this assessment comports with Brazil’s proposed interpretation of the Antidumping Agreement.
16. Brazil has used prospective normal value to collect antidumping duties on products from at least seven countries: the United States, Mexico, Romania, Germany, France, Spain, and the United Kingdom. In each case, Brazil calculated the antidumping duty as the absolute difference between the normal value (or reference price) and the adjusted export price of a specific transaction. Brazil assessed the antidumping duty in instances where the price of the imported product (an entry) was lower than the established normal value. However, Brazil assessed no duty if the result of the comparison was less than or equal to zero. And, Brazil has never provided a refund or an offset based on non-dumped transactions.
...
18. There is no reason why liability for payment of antidumping duties in the retrospective system applied by the United States may not be similarly assessed on the basis of transaction-specific export prices. Accepting the interpretation that a Member must aggregate the results of “all” comparisons on an exporter-specific basis would require that retrospective reviews be conducted even in a prospective normal value system. This result is contrary to the very concept of a prospective normal value system.
As I understand it, the basic point, which the U.S. has made in other proceedings as well, is that in a prospective normal value system, the duty collections are undertaken in a way that involves zeroing. Furthermore, in practice these systems operate so that refunds are not provided on the basis of the product "as a whole," and thus final assessment of duties also involves zeroing.
The U.S. wants to use this point to argue that if prospective systems can use zeroing, retrospective systems should be able to do so as well. But is another conclusion possible? If the U.S. is right about how prospective systems work, does WTO zeroing jurisprudence mean that all or most prospective systems would be found in violation of the AD Agreement on this basis? Even if that were the case, though, given that most countries use such systems, would anyone bring a claim? The U.S. doesn't use a prospective system, of course, but would it ever bring a case that tries to rein in zeroing?
