China-U.S. Trade Law : International Trade Lawyer & Attorney : Baker Hostetler Law Firm : Trade Remedies, Customs & Export Controls

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The final part of “Nothing Unites The United States Congress Like China (And Not In A Good Way): Treating China Like Canada (Maybe Even Worse),” we present this week. It is called, “Lessons From Canada.” Part One, entitled “Rewriting Subsidies Law To Fit Chinese Facts,” was posted two weeks ago; Part Two, “The Broken Promise To China,” was posted last week.

China is not the first trade partner of the United States to experience losing by winning, going through the process by the rules only to have Congress change them. Perhaps there is something in the American culture that accepts Lucy enticing Charlie Brown and then snatching the football from him. We cautioned, in an article posted August 2, 2009, about “How The U.S. Treats Its Friends In Trade Disputes.” We did not elaborate there on changing the law, but Canada has experienced exactly what has now happened to China, and it has left a lasting impression on Canadians.

To overcome what it interpreted as an intractable bias against foreign countries and entities in U.S. courts, Canada successfully negotiated an alternative dispute resolution system for trade cases, Chapter 19 of the Canada-U.S. Free Trade Agreement, that became Chapter 19 of the North American Free Trade Agreement (“NAFTA”). Chapter 19 creates binational panels of trade experts from both Canada and the United States to replace the U.S. Court of International Trade for appeals of administrative determinations on countervailing duty and antidumping investigations at the Department of Commerce and the U.S. International Trade Commission. The binational panel decisions cannot be appealed except for limited “extraordinary challenges” brought by the governments for gross panelist misconduct or ultra vires panel actions that threaten the review process, so the panels replace the Court of Appeals for the Federal Circuit as well as the Court of International Trade.

Chapter 19 came into effect in 1989 and Canada won some of its first appeals to binational panels within the year. The United States promptly began to curtail the authority of Chapter 19 panel decisions. The Department of Commerce refused to recognize panel decisions from one administrative review to another, forcing Canadian entities to appeal every year determinations finding certain programs to be countervailable subsidies after binational panels had found, in the previous year, that they were not. This practice did not deviate radically from the Department of Commerce’s tendency to ignore CIT decisions as well, but Canada had thought that the Free Trade Agreement would mean greater comity.

Canada found the United States continuously ignoring binational panel decisions. When binational panels decided that the United States Customs Service had no legal authority to collect more than $1 billion in duty deposits, the United States refused to return the money to Canadians as the law seemed to require. The United States used the money as leverage to force Canada into a settlement of a case that Canada had won.

Most egregious, perhaps, and most consistent with China’s experience now, Congress used the occasion of implementing trade liberalization – the Uruguay Round Agreements Act of 1994 – to enhance protectionism, explicitly changing trade rules in the law to reverse adverse judicial decisions in the ongoing feud with Canada over softwood lumber. A section of the trade law, 19 U.S.C. § 1677(A)(5A)(D)(iii), was scripted by U.S. petitioners expressly to overcome decisions favoring Canada in trade remedy judicial appeals.

During the last war over softwood lumber, the United States forced Canada into extraordinary challenges under NAFTA and into U.S. courts to enforce NAFTA and WTO decisions. The United States turned its defeats at the WTO into opportunities to rehabilitate rejected agency determinations. Matters were prolonged for years while Customs collected deposits on duties that would never be owed. The United States accumulated $5.5 billion while bleeding out the cash flow of Canadian companies.

Canadians became completely discouraged. No matter how many times they won legal decisions, the United States kept collecting and holding onto their money. The dispute dragged on for five years. All the while, Canadians remembered well how the United States was willing and able to change the laws when Canadians had enjoyed legal victories, or to interpret laws in novel and doubtful ways.

Nor was the experience with the Uruguay Round implementation entirely new. The Department of Commerce, invoking Section 304 of the trade law, had imposed “interim measures” against Canadian softwood lumber in October 1991, collecting duty deposits, without a petition, self-initiation, nor a preliminary determination. It took two years for an international panel of the General Agreement on Tariffs and Trade (“GATT”) to find this action “inconsistent with Article 5:1 [of the GATT]. The United States then did nothing to comply with the GATT decision. This experience, too, Canadians remembered many years later.

Eventually, Canadians gave up, entering an agreement in which they handed over $1 billion to the United States, half of which was given to the U.S. industry that had lost the legal battles. It was not the first such cash payment to settle a trade dispute (Mexican cement companies paid $150 million), but it was the first not to result in free trade. The Canadians accepted managed trade at higher duty rates than prevailing at the time of the settlement when the legal process had promised free trade. The United States persuaded Canadians that, in the end, they could not win, no matter how much the law supported them. International rulings could not be enforced, and the domestic law could always be changed.

The United States deployed a powerful combination of actions against Canada, defying adverse legal decisions, collecting and withholding money illegally, changing the law. In the end, the United States got its way, not by celebrating the rule of law, but by bending the law to its will. Nothing impressed Canadians more negatively than completing a cycle of the judicial process only to have the law changed.

China Is Not Canada
In addition to the common lessons for China and Canada from different cases – that participation in the judicial process is no guarantee of a fair outcome – there are lessons, too, from the same cases. To pursue subsidies allegations against a non-market economy, the Department of Commerce adopted a methodology in parallel to its antidumping methodology for NMEs. Eschewing values in an economy with no market, the Department has looked to values in other countries. These surrogate values are meant to substitute for values in China that cannot be relied upon absent market forces.

The caprice in selecting surrogate values is perhaps inescapable, but the Department of Commerce has been aggressive in abusing the virtually unlimited discretion it enjoys with a silent statute. The NME methodology for antidumping has statutory rules concerning the selection of surrogate values. Because no statute ever authorized countervailing duty investigations in NME countries, there are no rules. H.R. 4015’s pithy two pages introduce none.

In the countervailing duty investigation of Laminated Woven Sacks, the Department used land values in Bangkok as surrogates for rural Shandong Province. The Department did not even acknowledge in its final determination the testimony of a land use expert that such comparisons of land values across countries and between urban and rural areas are nonsensical.

The Department of Commerce justified its use of out-of-country benchmarks to evaluate subsidy allegations against products from China by citing its final determination in Softwood Lumber from Canada, the very trade dispute in which the United States kept changing the rules. There, the Department had reasoned that provincial government ownership of Canadian forests meant excessive government control of the market and prices, preventing the Department from measuring alleged subsidies. The Department therefore selected prices from the United States, “cross-border benchmarks,” effectively treating Canada as a non-market economy.

A Canada-U.S. Free Trade Agreement binational panel had struck down the cross-border benchmarks in a previous iteration of the dispute over softwood lumber, and a NAFTA panel, more than a decade later, rejected them again. The WTO Appellate Body ruled that out-of-country benchmarks might be justified in some cases, but not in this one. Claiming the WTO rejection of the cross-border benchmarks in this case to be an approval of cross-border benchmarks in principle, the Department of Commerce persisted in using them until Canada capitulated more generally for a settlement.

The Softwood Lumber final determination – repudiated by a binational panel and hardly endorsed by the WTO – has been the legal basis for the Department of Commerce’s methodology in applying surrogate values to China in the subsidies cases that the U.S. Congress has now blessed. The legislation never addressed this issue at all, and China has failed to challenge judicially this fundamental infirmity in the legal process. The Chinese countervailing duty cases are, therefore, the direct progeny of the U.S. treatment of Canada, its best friend and leading trade partner.

Although China is experiencing what Canada has experienced, China is not Canada. Four decades have passed since Canada underwent a drastic reappraisal of its relations with the United States and decided it had to diversify, only to conclude in a Royal Commission Report thirteen years later that Canada would always be dependent on the United States and needed to secure access to the American market. The free trade agreements were supposed to provide that security, but once binational panels began ruling in favor of Canada, the United States hastened to change, in fact and in legal interpretation, the terms to which it had agreed.

The United States has always taken Canada for granted. Canada has not always had to accept that relationship, but it has almost always elected to do so.

The United States cannot now, and never will be able, to take China for granted the way it does Canada. China will not bend so easily to the American will. During the last decade it has been chic in Canada to talk about a foreign policy that “punches above its weight,” highlighting the contradiction between Canada’s prosperity and international influence, on the one hand, and its very small population, on the other. China, by contrast, is thought not to punch its weight at all, still presenting itself partially as a developing country not ready for a full international role. Yet, the Chinese economy already surpasses Canada’s in size and is second only to Canada’s in two-way trade with the United States. Canada will never be a regional power in a region with the United States; China is already a regional power and is growing more powerful.

The United States cannot reasonably expect China to accept the kind of international trade treatment it has gotten Canada to accept. China will have no less a memory of what has happened, and may have no less bitterness that, having played by the rules and participated in the process, China had to face the United States simply changing the rules. But unlike Canada, China will not accept merely what the United States will permit it to have.

The Dangers Of What Has Been Done
Notwithstanding the celebration of bipartisanship and the suggestion of national unity against China in legislating H.R. 4015, the United States has embarked on a perilous course. Following the way it has treated Canada, the United States risks a trade war and endless antagonism with China. It risks, too, the whole international trading system now defined by the WTO, which the United States carefully has built over the last sixty-five years.

It is hazardous to exaggerate U.S. dependence on China as the leading creditor and emerging export market for the United States. China, on many dimensions including trade, is dependent on the United States. Nor should one romanticize the role China plays in the international marketplace. China’s economy is largely controlled from the center and the government does try to pick winners and losers. Notwithstanding protest and denial from China’s Minister of Commerce, there are instances when the appropriate question is not whether the state subsidizes, but whether those subsidies are actionable under U.S. and WTO laws and obligations.

The United States will remain for many years to come a greater power than China in virtually every respect. But unlike Canada, whose ambitions have been contained in a desire to be a faithful and trusted friend and ally, China’s ambitions are to be America’s equal. Probably nothing more; certainly nothing less.

China could interpret this most recent experience as a reason to give up on the rules, to bow out of the judicial processes. To a startling degree, that is what has happened with Canada.

China could devise ways to retaliate or, perhaps worse, imitate American conduct. China will not be inclined from the overheated rhetoric in the United States to conciliate, and it surely will not, like Canada, capitulate. The United States does not need a hostile or antagonistic China, and China will not benefit from a trade war with the United States. This latest episode, however, could be a turning point, as it was for Canadians who harbor an eternal resentment about the American willingness to change the rules when the United States does not like an outcome. Crowing about changing the rules after losing a legal proceeding is no way for the United States to avoid alienating the Chinese the way it has alienated many Canadians. To most Americans, it may not matter how Canadians feel. They still bend. But this time, with China, the United States is dealing with a much less forgiving and compliant friend.
 

从加拿大汲取经验

            中国并不是唯一面临这种虽赢犹输、依法行事却被国会改变一切的国家。早在2009年8月2日的文章中我们就提醒中国《美国在纠纷中如何对待贸易伙伴》。加拿大的经历和中国经历如出一辙，令加拿大人永远不能忘怀。

            加拿大认为美国法庭歧视国外政府及企业，因此和美国谈判后签署了另一争端解决体系——《美加自由贸易协定》第十九章。根据第十九章，两国选派贸易专家建立多个双边仲裁委员会以取代美国国际贸易法庭重新审阅美国商务部和国际贸易委员会的反补贴、反倾销调查结果。只有两国政府可以向根据《美加自由贸易协定》建立的特别委员会提出重新审理上诉双边仲裁委员会裁决的申请，且只有当委员的不当举动或是仲裁委员会的行动阻碍进程时才可上诉。如此，这两个级别的委员会取代美国联邦上诉庭及美国国际贸易法庭进程。

            《美加自由贸易协定》第十九章于1989年生效，同年加拿大赢得第一批案件的胜利。美国立即开始削弱第十九章委员会裁决的法律效力。美国商务部在一年一度的行政复审中拒绝承认委员会裁决，迫使加拿大每年上诉反补贴裁定。这并未改变美国商务部对国际贸易法庭裁决置之不理的恶习，但这打破了此前加拿大认为《美加自由贸易协定》更具效力的错觉。

            此后，加拿大发现美国持之以恒地忽视双边仲裁委员会的裁决。例如，双边仲裁委员会裁定美国海关收缴10亿美金关税定金的行为没有法律依据，但是美国拒绝依法将这笔巨款退还加拿大。相反，美国利用这笔巨款作为谈判筹码，迫使加拿大参与谈判已经获胜的案件并达成和解。

        与中国的经历极其相似，美国国会利用开放贸易的时机——1994年《乌拉圭协定法案》增强贸易保护主义，修改贸易法以改变不利于美国软木行业的司法裁定。19 U.S.C. § 1677(A)(5A)(D)(iii)即为美方杰作，针对加拿大取得的一系列司法上诉胜利，他们推动制定了这一新章节。

            在上一轮软木大战中， 美国迫使加拿大运用《美加自由贸易协定》特殊上诉机构和美国法庭以敦促美国实施美加自由贸易协定和世贸组织裁定。美国虽然在世贸组织挫败，但却迟迟不执行世贸组织裁定。加拿大企业一边滴血，一边眼睁睁地看着美国海关不断收缴关税定金。这几十亿美金永远也不可能返还加拿大。

            毫无疑问，加拿大深感挫败。无论加拿大取得多少法律胜利，美国总是能设法收缴并保留税金。这一纠纷持续了五年，这五年里美国修改法律以挫败加拿大的法律胜利让加拿大记忆深刻。

            美国实施乌拉圭回合谈判的表现也不再让加拿大惊讶。美国商务部于1991年10月在没有接到调查申请书、未自发展开调查、未发布初裁结果的情形下向加拿大软木采取“暂时措施”，征收关税定金。世贸组织前身——关贸总协定历时两年才裁定这一举措不符合关贸协定第5:1条。但是美国并未采取任何行动实施这一裁定。时隔多年，加拿大仍记忆犹新 。

            最终加拿大不得不放弃，与美国签订协定并将10亿美金拱手让给美国，其中二分之一被 败诉的美国企业获得。此前墨西哥在水泥案中也付出价值1.5亿的赔偿金，但在自由贸易时代这还是第一次。虽然司法裁定支持自由贸易，但加拿大仍被迫签署限制贸易、高税率的软木贸易协定。 美国成功说服加拿大，无论法律如何支持加拿大，国际裁定无法在美国落实，而美国法律总可被修改。

            总而言之，美国运用了一系列武器对付加拿大：重新解释不利裁决、 非法扣留税金、 修改法律。最终美国并非通过依法行事、而是通过扭曲法律实现自己的目标。这只给加拿大留下负面印象。

中国不是加拿大

            中加两国可从这些案件中汲取一共同教训—— 参与司法程序并不保证公平结果，此外还有更多经验教训值得中国参考。美国商务部对非市场经济国家展开反补贴、反倾销调查时使用了特殊计算方法，即使用第三国价格作为参考价格。美国商务部认为中国没有市场，因此中国的价格不具参考价值，必须用第三国价格取代。

            任意选择第三国价格无法避免，但是美国商务部竭尽全力充分利用这一调查方法令人发指。美国法律对反倾销调查中选择第三国价格有详尽规定。但是因为美国法律并未授权对非市场经济国家展开反补贴调查，因此并未就此制定法规。薄薄两页的H.R. 4105也并未触及这一重要问题。

            在复合编织袋反补贴调查中，美国商务部使用曼谷的土地价格作为山东农村土地价格的参考价格。土地专家作证指出，这种跨越国界、城市价格取代农村价格的做法极不合理，但是美国商务部在发布终裁结果时甚至未提及这一证词。

            美国商务部引述加拿大软木终裁结果这一案例法为自己使用第三国价格指标衡量补贴辩解，而这一案件正是美国不断修改法律维护自身利益的最好例证。在软木案中，美国商务部认为加拿大省政府拥有森林资源，这意味着政府过分控制市场和价格，美商务部无法估量补贴指控。因此美国商务部选择美国价格，即“第三国价格指标”，视加拿大为非市场经济体。

            美加自由贸易协定双边仲裁委员会在仲裁软木案时裁定，使用第三国价格指标违法；十多年后，另一仲裁委员会再次否定这一计算方法。世贸组织上诉机构则裁定，在某些案件中使用第三国价格指标合法，但在软木案件中不合法。美国商务部却声称世贸组织的裁定表明世贸组织原则上支持使用第三国价格指标，美国商务部一直使用这一调查计算方法直至美加两国签署协议和解这一贸易纠纷。　

            这一被美加自由贸易协定双边仲裁委员会以及世贸组织否定的终裁结果却成为美国商务部计算向中国产品征收反补贴税税率的法律依据，更不可思议地得到美国国会支持。最近通过的法案没有触及这一重要法律问题，中国在司法诉讼中也并未挑战这一原则性错误。因此，中国成为美国错误对待加拿大的受害者。　

            虽然中国重蹈加拿大覆辙，但中国不是加拿大。四十多年前加拿大评估美加关系，总结认为应当使双边贸易更加多元化。十三年后，加拿大却总结得出加拿大将永远依赖美国市场，因此必须确保美国市场对加拿大产品开放。《美加自由贸易协定》理应为加拿大提供保障，但是当看到双边仲裁委员会的裁决有利于加拿大时，美国立即修改法律并重新诠释它的法律承诺。

            美国一直视加拿大的态度为理所当然。虽然加拿大可以改变这一惯例，但是加拿大总是选择避免采取这一行动。

            美国现在无法像对待加拿大那样任意摆布中国，将来更不可能。中国不会轻易屈服于美国压力。过去十年，加拿大流行一说法“轻量级选手的重量级出击”，即加拿大的富裕及国际影响与其有限人口形成鲜明对比。与此相反，中国却有所保留、并未使出全力，以尚不能承担国际领袖职责的发展中国家出现。但是中国的经济实力已经远远超出加拿大，中美双边贸易量仅次于美加双边贸易。加拿大永远不能和美国并肩成为区域领袖，但是中国已经是强大、且茁壮成长的区域领袖。　

            理智的美国不会期待中国接受加拿大已经接受的贸易待遇。中国参与世界贸易体系、遵循贸易规则，但它可能将长久品位苦涩。

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Chief Judge Jane A. Restani of the United States Court of International Trade (“CIT”) on August 4, 2010 ordered the United States Department of Commerce (“DOC”) to forego the imposition of countervailing duties on pneumatic off-the-road tires from the People’s Republic of China. Her decision, in GPX International Tire Corporation v. United States, was based on her ruling that US law prohibited DOC from imposing duties higher than the amount needed to offset subsidies on imported products.

The problem for DOC, inherent in the case and as posed by Judge Restani, is that DOC uses surrogate values presumed to be unsubsidized, rather than a company’s actual production costs, to calculate Normal Values. DOC compares these Normal Values in its non-market economy antidumping methodology to the export price, a methodology that should, at least in theory, offset any subsidies on the production of the merchandise (because the comparison has been taken against unsubsidized inputs through surrogate values). If DOC were to impose countervailing duties to offset subsidies that benefit the production of the merchandise, then it would be offsetting the same subsidies twice.

Double counting of subsidies does not occur with DOC’s market economy dumping methodologies (19 C.F.R. §§ 351.405 & 351.406) because, in those cases, Normal Value is calculated based on actual prices in the foreign market and actual costs incurred in that market. Thus, if there were any subsidies imbedded in those prices or costs, they would not be offset by the antidumping methodology and would need to be addressed separately in a countervailing duty investigation.

Judge Restani’s August 4, 2010 decision followed an earlier decision in the GPX case where she sent the matter back to DOC to find a way to avoid the double counting problem. In the earlier case, Judge Restani found that, while DOC had discretion to impose countervailing duties on Chinese merchandise while still considering China to be a non-market economy (the central issue in dispute), DOC had to avoid double counting of subsidies when it applied the countervailing duty law and the antidumping non-market economy methodology to the same products at the same time.

DOC interpreted Judge Restani’s earlier decision as giving it three options: (a) not apply the countervailing duty law; (b) apply the market economy antidumping methodology in that case; or (c) lower the cash deposits imposed in the antidumping case by the amount of cash deposits imposed in the countervailing duty case. DOC decided to lower the antidumping deposits by the amount of the countervailing duty deposits. Judge Restani found that option contrary to US law because there is no provision in the antidumping statute to lower duties by the amount of countervailing duties and because that option is unreasonable as it requires the parties to go through the expense of countervailing duty proceedings that are essentially useless.

Judge Restani ordered DOC to forego imposing countervailing duties on off-the-road tires from China because DOC demonstrated in that case that it did not have the ability to determine the degree to which double counting was occurring in its non-market economy language and offset it directly within that methodology. Thus, the CIT has left open the option in future cases for DOC to try new methodologies to eliminate the double counting within the antidumping nonmarket economy methodology. DOC continues to have the option of imposing countervailing duties to products from China in cases without a companion antidumping case on the same products, or in cases in which it uses its discretion to recognize a market-oriented industry (“MOI”). In that latter instance, considering MOI status, it could continue its general policy of not recognizing China as a market economy while using a market economy methodology for a particular industry. DOC has never recognized an industry in China as “market-oriented,” but it does have the statutory authority to decide to apply market economy methodologies on a case-by-case basis.

DOC, or the petitioners in the GPX case, have the right to appeal Judge Restani’s decision to the Court of Appeals for the Federal Circuit (“CAFC”). Should they do so, that higher court could overturn Judge Restani’s decision, affirm it, or modify it. Were the CAFC to overturn the decision, DOC would be free to apply countervailing duties to the same products on which it used the non-market economy antidumping methodology. In deciding whether to appeal, however, DOC must consider the risk of appealing and losing. Right now Judge Restani’s decision is binding on DOC only in the GPX case: it does not set precedent that DOC would be forced to follow in all future cases. Were DOC to appeal and have the CAFC affirm Judge Restani’s decision, that affirmation would be binding precedent, prohibiting DOC from applying both the CVD law and the non-market economy methodology to the same merchandise.

Judge Restani’s decision was based solely upon US law. However, China has challenged at the World Trade Organization, on the same grounds of double-counting, the application to China of the countervailing duty law while DOC refuses to recognize China as a market economy. Judge Restani’s decision in GPX demonstrates the value, at least to the companies involved, of appealing to the US court, rather than relying solely on WTO challenges. As we noted in earlier articles on this blog (US Court Decision Ought to Change Chinese Thinking and WTO Challenges Not Always a Panacea for Respondents in Trade Litigation), the WTO process is designed to vindicate governmental interests, but does not often provide much comfort or relief for commercial interests. Appeals in the US courts, by contrast, are a right belonging to the companies themselves that have been hurt by the agency’s challenged actions and, when those companies win in U.S. courts,, the remedy can provide immediate retroactive relief.
 

        美国国际贸易法庭首席法官Jane A. Restani于2010年8月4日做出裁决，下令美国商务部停止向中国轮胎征收反补贴税。她在GPX国际轮胎有限公司诉美国一案中指出美国法律禁止美国商务部征收高于实际补贴的惩罚性关税。

        美国商务部面临的难题是在针对非市场经济体展开的反倾销调查中，它并非使用某一企业的实际生产价格，而是使用比较价格以计算正常价格。然后，美国商务部比较比较正常价格和出口价格之间的差价。单纯从理论层面看，这一非市场经济反倾销税计算方法可抵消为生产这一产品提供的补贴（因为比较价格中不包括享受补贴的产品）。因此，如果美国商务部再征收反补贴税，它则两次征收反补贴税。

        在美国商务部针对市场经济体展开的反倾销调查中，双重征税并不存在。因为在这些案件中，正常价格建立在国外市场的实际售价和本国实际生产成本基础之上。因此即使这些售价和成本包括补贴，反倾销调查已经排除这些补贴，反补贴调查将负责计算反补贴税。
 

 

                                                                                           翻译：朱晶

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Editor's Note: Baker & Hostetler LLP recently submitted the following comments in response to the Department of Commerce’s request for comments on Retrospective Versus Prospective Antidumping and Countervailing Duty Systems.  中文请点击这里

Introduction: The American Way Compared To The Method Used By Almost Everyone Else            

        Remedies for disputes heard by panels of the World Trade Organization are prospective.' There are no penalties for past misdeeds. Procedural delay is rewarded. A country is not expected to change its ways before the absolute completion of proceedings and definitive adverse decisions. While it continues conduct ultimately found inconsistent with its international obligations, a country faces no penalty. Only when the decision requires change and a country refuses is the country subject to penalty, and then only indirectly.

        Article 9 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the "Antidumping Agreement") provides for the imposition and collection of anti-dumping duties, and authorizes either prospective or retrospective assessment of duties. The prospective system governs international trade remedy systems in almost every country. It also governs the conduct of original antidumping and countervailing duty investigations in the United States. Except for the very limited exception of critical circumstances, which is almost never used, a company will not be liable for antidumping or countervailing duties on imports before there is at least a preliminary determination of dumping or countervailable subsidies. The United States may be unique in its application of a retrospective review system governing the assessment of duties after an order is imposed, and is certainly the only major WTO member that uses a retrospective system.

        The Request for Comment asks for a comparison of prospective and retrospective systems with respect to six criteria. The first criterion refers to "remedying injurious dumping or subsidized exports to the United States." This language carries at least two assumptions, that the result of an investigation will be to find dumping or subsidization, and that the dumping or subsidization will be found to be injurious. The language, thus, fails to recognize a key problem with the American system: the mere filing of a petition disrupts trade because it distorts markets.

          Exporters to the United States, as a matter of prudence and precaution, invariably raise prices when an investigation is initiated. Importers and downstream customers start scrambling for alternative suppliers because of uncertainty about how imports from the country subject to the petition may be treated later on. Consequently, petitioners in the American system are rewarded for the filing of a petition, no matter whether the petition is frivolous or bound, ultimately, to fail. The main cause of that problem is the very low standard in the United States for accepting petitions, but retrospective duty assessment exacerbates the problem because importers know that, were an order to be imposed, their liability would be unlimited and would not be determined until well after the subject merchandise had been imported.

        Where dumping or subsidization and injury are found, remedies are important. A system that imposes an implicit remedy where there may be no need, however, that imposes an in terrorem effect on trading partners, is defective, and may explain why other countries have thought better of this system. The United States ought to be asking itself, when comparing prospective and retrospective systems, why almost everyone else does things differently.

         The American retrospective system begins collecting bonds for prospective duties as soon as there is a preliminary determination estimating antidumping or countervailing duty margins. The negative effects of this initial bonding period are muted because the bonding rate acts as a cap on the duties that can be collected for imports entering between the Commerce Department's preliminary determination and the International Trade Commission's final determination. The actual duties assessed can go down for imports entering during this period, but they cannot go up.

        The bonding cap is lifted and replaced by a cash deposit requirement when the antidumping or countervailing duty order goes into effect. Thereafter, the actual duties assessed can be increased or decreased drastically, based on the results of administrative reviews that may not be completed until more than two years after the affected merchandise was imported. Should the results of those administrative reviews be appealed, the actual determination of duties owed could be delayed many years further.

         Importers, who are held accountable for the duties, operate in an environment of substantial uncertainty for many years because of this system of assessment. It is impossible to know in advance of the Commerce Department's analysis what a final antidumping or countervailing duty tariff rate may be because there are so many variables that can affect the calculations, including methodological changes the Commerce Department may introduce between reviews, following importation. So, too, the U.S. Treasury cannot know how much money it will actually collect in duties during this extended period.

        The prospective system in most other countries removes most of the uncertainty characteristic of a retrospective system. As in the United States, the investigation in a prospective system produces duty rates, updated regularly through administrative reviews.  However, reviews do not change rates retrospectively. The duties collected are the duties owed, without the possibilities of increased duties or money returned according to the results of an administrative review. The rates set in the investigation apply to all imports going forward until the first review; the rates set in administrative reviews also apply going forward only.

        Not every prospective system is the same, but the principles are consistent and have similar market effects. In Canada, for example, the original investigation determines "normal values," which are minimum acceptable prices. As long as goods are imported above those prices, no duties are collected. Goods imported below normal values, however, are taxed the difference in price. The system is designed not for the purpose of revenue collection, but for the purpose of fair trade: the normal values define prices above which goods are not determined to be dumped or subsidized, leaving no reason to be collecting duties on them. The purpose of the law is to assure fair competition for domestic products, not to disrupt the market or create uncertainty for importers.

         The European Union also has adopted a prospective system. EU officials establish the normal value for a product in an investigation and then compare the normal value to the export price. The percentage difference between these two is fixed as the duty rate, which applies to all future imports of the product unless superseded on a prospective basis in a subsequent review.

        Most systems are neither purely prospective or retrospective. In the United States, for example, parties must request administrative reviews. When none is requested, the previously found duty rates continue to apply between administrative review periods, and the cash deposit rate from the investigation becomes the duty rate when no first administrative review is conducted.' A European Union importer may be able to recover previously collected duties, provided he can prove that dumping or subsidization has ended or that goods are being imported at rates below those that had applied when the goods had been imported.

Relative Merits Of Prospective And Retrospective Systems

        The American retrospective system is more accurate in assessing duties than the prospective system used in the European Union because it is based on the actual prices of imported sales compared to domestic prices (or contemporaneous costs) of like products sold at or near the same time. The American system is not necessarily more accurate, however, than the prospective normal value system used in Canada and several other countries. Although the Canadian system uses normal values calculated during a prior period, both systems use current import data. Because the Canadian prospective normal value system performs the necessary calculations at the time of importation, the risk of inaccuracy caused by lost data is reduced. Moreover, collection of total, accurate duties in a retrospective system requires assessment against importers well after the goods have been imported. It is not unusual for importers to be out of business by the time the final rates are supposed to be collected, leaving only deposits in the Treasury.

        Early estimated rates usually are much higher than rates to be finally assessed. These estimated rates distort the market, often dramatically, but when an importer can survive the initial impact, he can also recover monies paid that exceeded what ultimately was due.

         The American system is administratively very expensive because customs entries must be kept open, sometimes for years (subject to legal appeals and challenge), before final duties can be assessed. In the interval, the possibility of actual collection diminishes, while importers do not know whether they will be getting money back, or will owe more.

        In the prospective system where normal values are fixed in advance, importers can know what their prices have to be to avoid duties. In other prospective systems where duty rates, rather than normal values, are fixed in advance, importers can know what prices they need to charge their customers in order to recover the costs of the duties and still make a profit. There is more certainty and stability in the market than in a retrospective system. Duties are collected at the time of importation. Consequently, there is much more certainty that they, in fact, will be collected, and as the amount to be collected is known at the time of importation, the administrative system is much less cumbersome and expensive.

The Goals Of The Comparison

        Congress asked the Department of Commerce to compare prospective and retrospective antidumping and countervailing duty systems according to six goals. The current American retrospective system appears superior to a European style prospective system, but not a Canadian style prospective system, with respect to the first goal. All types of prospective systems appear preferable for the remaining five.

• The retrospective system may appear in theory to be superior for remedying injurious exports to the United States because it calculates duty rates based on a comparison of the actual import prices to normal values or subsidies calculated for a contemporaneous period. However, because the prospective system allows the importer to account fully for the antidumping or countervailing duties in its own pricing decisions (i.e., where the imports compete with the domestic product), it is arguable whether, even under this criterion, a retrospective system is superior.
• Prospective systems are better at collecting duties because they collect upon importation and do not have to wait through administrative and legal reviews and proceedings that can take years.
• Prospective systems are more likely to reduce incentives and opportunities for the evasion of duties because they are clearer in their expectations: normal values or fixed duty rates advise importers in advance of the prices they should apply to goods, information known to authorities with certainty at the time of importation.
• The retrospective system has no reliable way to "target high-risk importers," as it is focused on the prices of goods after they are imported. The prospective system, focused on the price of the goods when they arrive at port, makes the relative "risk" of the importer less relevant.
• The American retrospective system, by creating much more uncertainty in the marketplace, creates competitive advantages for U.S. petitioners (through the advantages of market disruption), but the costs and consequences are visited upon importers, their employees, downstream businesses and their employees, and ultimately U.S. consumers.
• The retrospective system is by far more administratively cumbersome and expensive than the prospective system adopted by almost every other country and reflected in the principles governing the remedy system of the WTO.

         The United States has maintained an expensive and inefficient system unlike any other country's. The systematic analysis Congress has invited has been overdue, and ought to lead to change.
 

介绍：美国方式与他国方式比较

        世贸组织裁定的惩罚针对未来，具有前瞻式。在裁决发布前的错误行为不受惩罚。程序性拖延因此受奖励。因此，某国不会在不利裁决发布前采取行动。即使该国继续违反国际承诺，该国也不会面临惩罚。只有当裁决要求该国改变行为，且该国拒绝执行时，该国才会面临间接惩罚。

        世贸组织《反倾销条约》第九款规定如何确定、征收反倾销税，并允许前瞻式和追溯式征收反倾销税。大多数国家采取前瞻式征税。美国的反倾销、反补贴调查也采取这一方式。大多数情况下，至少在初裁结果发布前某一公司不会被征收反倾销、反补贴税，特例几乎从未发生。在反倾销、反补贴令发布后，美国开始追溯式征收惩罚性关税，这非常特殊——美国是唯一采取这一方法的主要世贸组织成员。

        美国商务部征求公众意见，根据六个条件比较这两种不同的惩罚性关税征收方式。第一个条件是“惩罚出口至美国、造成产业损害的倾销、补贴产品”。这一条款包括两大假设：首先，调查结果将为裁定倾销、补贴存在；其次，补贴或倾销造成产业损害。因此，这一条款忽视了美国方式的主要问题：递交申请将影响市场正常运行。

        每一调查都将促使对美出口的出口商谨慎地提高售价。进口商以及下游客户则将着急地寻找其他供货途径，因为调查将带来种种不确定性。因此，美国体系下的调查申请人仅仅通过递交申请就可享受既得利益，即使调查注定失败。导致这一弊病的原因是美国政府接受调查申请的标准极低，但是追溯式征税强化了这一弊病：进口商知道当一旦反倾销、反补贴令下达，他们面临无穷负担，而且商品进口后很久都将前途叵测。

        一旦裁定倾销或补贴以及损害存在，贸易补偿非常重要。但是导致隐蔽但却可能不必要的补偿的体系是恐吓性贸易体系，也可以解释为什么其他国家曾经看好这一贸易体系。美国应当扪心自问，为什么其他国家都使用前瞻式征税方式。

        在美国追溯式征税方式下，一旦初裁宣布反倾销、反补贴税率，美国就向进口品征收保证金。在这一阶段，初始保证金的负面影响不大，因为保证金税率的作用是为在美国商务部宣布初裁结果至美国国际贸易委员会宣布终裁结果之间征收的惩罚性关税设定上限。实际征收的税率可以下调，但不能向上波动。

        当反倾销或反补贴令生效后，保证金就被现金储蓄所取代。此后，实际征收的惩罚性关税可远远高于或低于已征收的现金，这完全取决于一年一度的复审结果，但是这一结果距离商品进口日期可达两年之久。如果上诉复审结果，惩罚性关税的确定日期将拖延更久。

        进口商支付惩罚性关税，因此他们将在极度不确定中运营多年。因为多种因素将影响美国商务部最后确定的反倾销、反补贴税率，包括计算方法等，因此不可能预测最后税率。同时，美国财政部在很长一段时间内也不知道最后征收的惩罚性关税的具体数目。

        其他国家采用的前瞻式税收方式排除了不确定性。与美国方式相同，前瞻式征税方式在调查中确定税率，在复审中不断更新。但是复审不改变先前确定的税率。征收的税率与拖欠税率相等，复审不影响最终征收的税率。调查确定的税率只影响第一次复审结果宣布前进口的商品；历次复审也只影响未来进口的商品。

        各国前瞻式征税方式并不完全相同，但是原则一致，市场效果相同。以加拿大为例，调查确定“正常价值”，也就是最低可接受的价值。只要商品以高于此价值的价格进口，就不会面临惩罚性关税。以低于正常价值进口的商品将面临惩罚性关税，进口价格和正常价值间的差价即为惩罚性关税。这一体系不是为了增加财政收入而是为了促进公平贸易：如果商品以高于正常价值的价格进口，就无须向这一商品征收反补贴或反倾销税。这一法律的目的是为了确保国内产品的公平竞争环境，而不是为了阻碍市场正常发展或是造成不确定性。

        欧盟也使用前瞻式征收方式。欧盟官员在调查中确定正常价值，然后与出口价格相比。两者间的差价将折算成百分比，即惩罚性关税税率，这一方法适用于此后进口的所有商品，直至下一轮复审。

        很多体系既不完全属于前瞻式也不完全属于追溯式。在美国，涉案方必须申请复审。如果没有接到申请，则先前确定的税率适用于复审阶段。即，如果没有第一次复审，调查中确定的现金储蓄率就成为惩罚性关税税率。欧盟进口商可能可以取回部分已经被征收的惩罚性关税，只要他能证明倾销或补贴已经终止，或是进口价格与正常价格间的差价已经缩小。

追溯式和前瞻式税收方式比较

        美国的追溯式惩罚性关税征收方式比欧盟的前瞻式征收方式更精确，因为美国方式建立在同一时期实际进口价格和本土价格（当前成本）基础之上。但是美国方式不一定比加拿大方式或是其他国家的方式更为精确。虽然加拿大方式使用前一阶段的正常价值，两国都使用当前进口数据。因为加拿大的正常价值体系在进口时进行计算，数据遗失造成计算错误的可能性减小。此外，在回顾式征收方式下准确征收所有惩罚性关税需要在商品进口很久以后再衡量进口品。进口商在税率确定时已经破产的情况并不罕见，使得美国财政部只得到现金储蓄。

        估算得到的税率往往远远超过实际征收的税率。这些估算税率扭曲市场，常常极度扭曲市场；但只要进口商能够承受初始阶段的冲击，他往往能在最后取回多缴的税金。

        美国方式在实际运作中非常昂贵，因为在最后税率确定之前，商品的海关进出口纪录必须保留，有时甚至应保持多年（根据法律诉讼情况不同时间不等）。在这一阶段，实际征收税率的可能性不大，进口商不知道他们是否可以取回现金或是需要交纳更多税金。

        在前瞻式征收方式中，正常价值早已得以确定，进口商知道哪一价格是不被征收惩罚性关税的底线。在首先确定惩罚性关税税率、而非正常价值的前瞻式征收方式中，进口商可以确定新的价格以抵消损失。因此，前瞻式征收方式更具确定性和稳定性。同时，进口时征收税率确保惩罚性关税一定会被征收，而且实施这一体系的行政成本较低。

比较的目标

        国会让商务部根据六个目标比较这两大惩罚性关税征收方式。根据第一个目标可以得出现行美国追溯式税收方式优于欧盟的前瞻式税收方式，但并不优于加拿大的前瞻式税收方式的结论。根据其他五个目标，前瞻式税收方式更优越。

• 从理论角度着眼，追溯式征税方式更有利于补偿出口至美国的商品带来的损害，因为惩罚性关税的计算方法建立在比较同一时期实际进口价格和正常价值基础之上。但是，因为前瞻式税收方式允许进口商将反补贴、反倾销税率计入价格决策中（当进口商品与国内产品产生竞争时），追溯式征收方式是否更优越仍值得讨论。

• 前瞻式更有利于征收惩罚性关税因为这一方式在进口时征收惩罚性关税，而不必等待复审或是其他法律程序结果，这些结果的等待时间长达几年之久。

• 前瞻式更有利于降低躲避惩罚性关税的动力和可能性，因为进口商的期待值非常清楚：进口商在进口时已经了解正常价值和固定税率，知道应当以何种售价转售商品；政府有关部门也清楚掌握这些信息。

• 追溯式无法单独针对“高危险进口商”，也无法针对进口后商品的价格。前瞻式征收方式着眼于商品抵达进口港时的价格，降低了“进口商危险”。

• 美国的追溯式征收方式导致市场不稳定，为美国申诉方创造了条件（通过扰乱市场），但是美国进口商、其员工、下游生产商、最终美国消费者承担负面影响。

• 追溯式征收方式带来的行政负担远远超过体现世贸组织原则的、其他国家的前瞻式征收方式。

        一直以来，美国使用这一昂贵、低效的系统。国会早应进行系统性研究，希望这一研究带来变革。
 

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