Following up on the last post, I was curious about the reference to "WTO-legal subsidies and WTO-illegal subsidies." So I asked the SolarWorld people the following question:
In what way are the Chinese subsidies "WTO-illegal"? Does that mean that they violate the SCM Agreement in the sense that they are "prohibited" subsidies or "actionable" susbsidies that cause "adverse effects"? Or does it mean that they cause injury, as defined in U.S. CVD law (which follows the SCM Agreement), and thus the SCM Agreement permits the U.S. to take action?
I've wondered about this kind of thing before in the context of people talking about "illegal dumping."
Here's the response I got from one of SolarWorld's lawyers, Adam Gordon of Wiley Rein:
Because this is a CVD petition brought before US federal agencies, we are not claiming that the subsidies violate the WTO Agreement per se. However, some of the subsidies are actionable under the SCM Agreement and have adverse affects, such as the export restraint on silicon metal -- the primary input in polysilicon production. Nevertheless, all of the subsides are actionable under U.S. law because they cause injury and are therefore actionable pursuant to the SCM Agreement.
Anyway, this is probably all just semantics. Here's a more interesting issue: How will the DOC deal with the issue of properly carrying out a concurrent AD/CVD investigation in light of the Appellate Body's findings in U.S. - Antidumping and Countervailing Duties (China) (DS379)?
