This is from a U.S. third party submission [CORRECTION - that link is to a "Legal Interpretation" submitted by the U.S.; the third party submission is here] in the European Union – Measures Related to Price Comparison Methodologies (DS516) WTO dispute:
8.6. Section 15 is not an exception to the GATT 1994 or the Anti-Dumping Agreement but confirms that in determining price comparability under those agreements, an importing Member may in certain circumstances reject an industry’s prices or costs. It likewise would be incorrect to characterize Section 15 as in the nature of an affirmative defense, which the responding Party must bring forward. Rather, Section 15 clarifies the obligations by which all Members have agreed to be bound. That is, Section 15 provides that Article VI:1 of the GATT 1994 and the Anti-Dumping Agreement continue to apply consistent with the terms of Section 15.
...
8.7. We are aware that the Appellate Body has stated that “the provisions of paragraph 15(a) expire 15 years after the date of China’s accession (that is, 11 December 2016).” However, the Appellate Body report does not interpret the legal text of Section 15(d), as explained above – in particular, the reference to expiry of “the provisions of subparagraph (a)(ii)” in the second sentence – to support that statement. Nor does the report consider the different text referring to “the provisions of subparagraph (a)” in the first sentence nor the text referring to the “non-market economy provisions of subparagraph (a)” in the third sentence. In fairness, the interpretation of Section 15, and subparagraph (d) in particular, was not at issue in the appeal before the Appellate Body. Therefore, those statements do not reflect a considered interpretive effort on this point.
8.8. Section 15(a) – which is compatible and in agreement with the GATT 1994 and Anti-Dumping Agreement – can be understood as a confirmation that the determination under those agreements of price comparability relates to whether there are comparable, market-determined prices.
I take the U.S. argument here to be that everyone is making too much of Section 15 of China's Accession Protocol in the context of the non-market economy debate, and that other GATT/AD Agreement provisions on their own can justify the use of surrogate values in anti-dumping calculations. I don't have any comment on that at the moment, but I'll post this just in case anyone else wants to weigh in.
