In a rare move, China published part of the opening statement in a WTO dispute: the EU - Price Comparison Methodologies case. The statement refers extensively to the negotiating history of Section 15 of China's Accession Protocol, and even included video clips and statements by then-USTR Barshefsky, US lawmakers and the European Commission. What I found particularly interesting, however, is para. 10, which states:
"As a third party in this dispute, the United States contends that long before China acceded to the WTO there had been “longstanding rights in the GATT and WTO to reject prices or costs that are not determined under market economy conditions”. 7 I was dumbfounded by this proposition. Section 15 of China’s Accession Protocol was, for the most part, negotiated bilaterally between the United States and China, and it was one of the toughest and most contentious issues between the two sides. I myself participated in almost every round of those bilateral negotiations, including the final round in Beijing when the bilateral Agreement on Market Access was signed. The United States’ contention is beyond the imagination of those, including myself, who actually participated in the negotiations. "
If this really is what the US means and the Panel accepts such argument, then the NME methodology can potentially be used against ANY WTO Member. Geneva diplomats, esp. those from developing countries, really need to pay attention to this and the other US-MES case and watch out for the systemic implications.
