A Critical Review of U.S. Standard for Likelihood Determination in Sunset Reviews Under Article 11.3 of The Antidumping Agreement

다국어 초록 (Multilingual Abstract)

Article 11.3, also known as the sunset provision, of the AD Agreement requires the termination of an antidumping measure after five years from its imposition unless a review investigation finds that termination would likely lead to continuation or recurrence of dumping and injury. The sole exception under Article 11.3 occurs where the termination of an antidumping measure would likely lead to continuation or recurrence of dumping and injury. This exception, however, has been abusively used among WTO Members, and as a result sunset reviews today under Article 11.3 are unlikely to lead to revocation of an antidumping measure. Such ineffectiveness of sunset reviews under Article 11.3 is stemmed from the problem that Article 11.3 fails to provide any definition as to what constitutes a proper likelihood determination standard. Due to this lack of a definition, the abusive and expansive use of the exception has been increased greatly among Members. Particularly, the US authorities in their sunset reviews have abused the exception outlined in Article 11.3 In conducting sunset reviews, the US authorities apply their own likelihood determination standard which actually is inconsistent with the standard that has been consistently endorsed by WTO jurisprudence. As a result of applying an improper likelihood determination standard in their sunset reviews, the US authorities have been able to impose dumping measures for longer than necessary.
Against the above backdrop, with a view to finding a proper likelihood determination standard this article will first examine an appropriate interpretation of the term "likely" referred to in Article 11.3 in accordance with the interpretative approach, which has been consistently adopted by the WTO jurisprudence. Based on such interpretation, this article goes on to further define a proper likelihood determination standard under Article 11.3. Finally, in light of the above analysis, this article aims at proving that the standard applied by the US authorities to the likelihood determination in their sunset reviews is inconsistent with Article 11.3 of the AD Agreement, as such standard results in maintaining an antidumping measure for longer than is warranted.

목차 (Table of Contents)

• Ⅰ. Introduction
• Ⅱ. Interpretation of the Term "Likely" Within the Context of Article 11.3 of The AD Agreement
• A. Interpretation of the Term "Likely" in Accordance With Ordinary and WTO-consistent Meanings
• B. The US Authorities' Interpretation of the Term "Likely"
• Ⅲ. Proper Likelihood Determination Standard Under Article 11.3 of The AD Agreement
• A. The "Likely" Standard that Article 11.3 Requires for the Determination Concerning the Likelihood of Continuation or Recurrence of Dumping
• B. The US Authorities' "Likely" Standard Applied in Sunset Reviews
• Ⅳ. Conclusion