I have noticed for a long time that, in the CVD context of determination of injury, the US national legislation is at odds with the mirror WTO provision.
In the US, Section 771(7)(C)(i) of the Act provides that the “Commission shall consider whether the volume of imports of the merchandise, or any increase in that volume, either in absolute terms or relative to production or consumption in the United States, is significant”.
In contrast, Article 15.2 of the SCM specifies that “With regard to the volume of the subsidized imports, the investigating authorities shall consider whether there has been a significant increase in subsidized imports, either in absolute terms or relative to production or consumption in the importing Member”.
It is clear that the SCM indicates that the increase of the volume of subsidized imports is the sole aspect connected to the adjective “significant”, whereas the US legislation considers that the absolute volume of subject imports could by itself be significant.
In US-DRAMS (DS 296), the US attempted unconvincingly (by playing on the disjunctive words “either” and “or”) to read Article 15.2 of the SCM in a way justifying US legislation. The Panel rejected this attempt by considering that only two of the three International Trace Commission's determinations, namely those relating to increase, were acceptable.
I am wondering if US legislation is the result of:
a) bad drafting
b) bad but good faith reading of WTO provisions
c) an attempt to force a certain preferred outcome by considering that the SCM should have included consideration of the absolute volume of subsidized subject imports
d) any other unknown cause
