US Trade Protectionism Is Showing &Nbsp; China Must Strengthen Its Legal Means.

once Obama The tariff bill, which is adopted by the house of Representatives and the non market economy countries, is signed and will take effect immediately. Once it takes effect, it will have a significant impact on the export of Chinese products to the United States. The bill is very short, with a total of only 650 words, which only stipulates two contents, that is, countervailing duties can be applied to products imported from non market economy countries. However, if the administrative agencies can not clearly identify or measure the subsidies provided by the non market economy countries, no countervailing duty is required. For some investigations involving non market economy countries, it is necessary to adjust the anti-dumping duty.

The "countervailing" section of the bill is a revision of the 701st section of the US Tariff Act 1930. This section provides the relevant matters concerning the collection of countervailing duty. In fact, the 701st section of the tariff law does not prohibit the Levy of countervailing duty on products imported from non market economies. No countervailing duty on imported products from non market economy countries is established through the case law of the United States Court.

In 1986, the federal appeals court heard the case of Georgetown Steel Corporation v.The United States (801F.2d1308). 5 companies such as the US Georgetown Steel Co have filed a countervailing investigation application (carbon steel case) against the carbon steel wire imported from Czechoslovakia and Poland respectively to the US Department of Commerce's International Trade Bureau. While the case is still under way, the other two companies have filed a countervailing investigation application (potash case) for potash imported from the Soviet Union and the Democratic Republic of Germany. The international trade office made a joint hearing of the two cases and rejected the application in accordance with the 303rd section of the tariff act 1930, which was not applicable to non market economy countries. Georgetown Steel Co and others sued to the International Trade Court of the United States. The International Trade Court reversed the decision of the international trade office, and the United States government appealed. The federal court of appeal decided that the court of international trade only had jurisdiction over the potash case because of the time when the Georgetown Steel Co filed a lawsuit more than the time required by the law. The court of Appeal reversed the International Trade Court's decision on the potash case. The court of appeal put forward such a view: "according to the purpose of the Countervailing Law, the nature of the non market economy and the actions taken by the Congress specifically for the export of these countries in other laws, we believe that the benefits provided by the Soviet Union and the Democratic Republic of Germany for the export of potash to the United States do not constitute the 303rd part of the tariff act 1930 as grants or grants". "Although these interests may stimulate enterprises to accomplish the economic goals determined by the central government, they will not constitute unfair competitive advantages for US companies to form countervailing duties." "Even if such incentives are counted as subsidies, the governments of these non market economy countries are actually subsidizing themselves." This decision became the basis for the us not to apply countervailing duty to export products of non market economy countries. Over the past decade or so, the major developed countries, including the United States, have rarely carried out their views on non market economies (including China). Countervailing investigation No countervailing duty has been levied.

However, with the further deepening of China's reform and opening up, the attitude of the US Department of Commerce has changed since the 1991 fan case of the company. The general situation of this case is that in 1991, the company applied anti-dumping investigation application to China's export electric fans. In the survey, the Ministry of commerce also used the data of surrogate countries and manufacturers to determine the normal value, and obtained the dumping range from 0% to 10.47%. Rasco is not satisfied with the final ruling of the Ministry of Commerce, and considers that China is a non market economy country. When deciding the normal value of export products, the Ministry of commerce should not use the data provided by Chinese enterprises to prosecute the Federal International Trade Court. In the first instance and the appeal, the Bad Ragaz companies failed. On the occasion of the announcement of the final result of the Ministry of Commerce, the company applied for countervailing investigation. The US Department of Commerce has shown a different attitude in dealing with the case. Rasco suggested that although China is a non market economy as a whole, the fan manufacturing industry basically follows market rules, so Countervailing Law can be applied. {page_break}

The Ministry of Commerce believes that under such circumstances, it has the obligation to examine whether the electric fan manufacturing industry actually operates according to the market mechanism. If we have reached a positive conclusion, we can analyze whether the Countervailing Law can be applied to an industry. The Ministry of Commerce pointed out: "distinguishing features between market economy and non market economy are universal private ownership and the role of government in not replacing the market in allocating resources". According to these two standards, the Ministry of Commerce has measured the electric fan manufacturing industry in China. In its preliminary ruling, the Ministry of Commerce believes that "its operating environment is substantially different from the non market economy identified in our steel wire case". Then the Ministry of Commerce examines whether countervailing laws can be applied to such industries. The United States Department of Commerce has proposed that if we recognize the existence of market-oriented industries, we will use the cost data of enterprises when calculating normal value, and the subsidies provided by the government will not be reflected. That is to say, if the government subsidies are excluded, the prices of enterprises will not be so low. In such a case, if the US industry can not get relief through countervailing measures, it will obviously be at a disadvantage; on the contrary, if an industry is considered a non market economy, the data of the surrogate countries will be used to calculate the normal value, and the subsidy of the government will not matter when calculating the normal value. Accordingly, the Ministry of Commerce believes that if a certain industry in a non market economy is identified as a market-oriented industry, the provisions of Countervailing Law can be applied to it. But the Ministry of Commerce believes that China's fan production industry can not be regarded as a market-oriented industry. According to this conclusion, the Ministry of Commerce has made a negative final conclusion in the countervailing investigation of the case. However, the analysis by the US Department of Commerce shows that if an industry in China is recognized as a "market-oriented industry", it is possible to apply Countervailing Law to it.

Canada launched its exports to China in 2004. Anti-dumping After countervailing investigations, the United States launched a double anti - Investigation on Chinese products in November 2006. According to WTO statistics, by the end of June 2011, the United States had launched 29 countervailing investigations on China's export products and implemented 22 countervailing measures. In September 2008, against the US countervailing measures against non road tyres, Hebei Starbright Tyre Co and other enterprises sent the US Department of Commerce to the US Court of international trade. In October 2010, the court of international trade made a judgement that the US Department of Commerce in the view of China as a non market economy country, there was a double remedy for levying anti-dumping duty and countervailing duty by means of alternative countries, and demanded that the US Department of Commerce stop the Levy of countervailing duty on Chinese enterprises involved. The US Department of Commerce appealed against the verdict. After a year's trial, the court of appeal of the United States decided in December 19, 2011 to maintain the first instance decision. It ruled that the US Department of commerce could not conduct countervailing investigations in the case of China as a non market economy country. This actually maintained the view of the judgement 20 years ago.

As mentioned in the preceding paragraph, the 701st section of the tariff law before the amendment does not prohibit countervailing investigations of imported products from non market economy countries. The amendment to the 701st section of the tax law of the United States Congress only explicitly authorized the competent authorities to conduct countervailing investigations and levy countervailing duties on imported products from non market economy countries. This is the result of the game of legislation and judicature, and also reflects the tendency of the US legislature's recent trade protectionism to rise.

It is worth noting that, according to the amendment passed by Congress, this law will apply to all countervailing investigations launched since November 20, 2006. That is to say, for enterprises that are still under investigation, they should be prepared for the possibility of imposing anti-dumping duties and countervailing duties at the same time, and these enterprises should retain evidence for all unfair treatment in the investigation, so as to provide for the Chinese government in the future. WTO Evidence is provided in the complaint.