The Significance of the Use of Alternative Benchmark Methodologies in the Process of WTO Anti-Subsidy Investigations

Müller, Sophia

doi:10.1007/978-3-319-77613-2_2

The Significance of the Use of Alternative Benchmark Methodologies in the Process of WTO Anti-Subsidy Investigations

Sophia Müller²⁰

Chapter
First Online: 22 May 2018

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Part of the book series: European Yearbook of International Economic Law ((EYIELMONO,volume 4))

Abstract

The use of alternative benchmarks in anti-subsidy investigations is embedded in the context of the WTO regulation of subsidies. This chapter hence sets a common basic understanding by presenting the factual and legal environment of the issues under scrutiny. It presents the WTO as major institution for international trade regulation (Sect. 2.1) and lays down the case for the regulation of subsidies (Sect. 2.2) as well as the respective legal framework in WTO law (Sect. 2.3). The particularities of the benefit calculation conclude the chapter (Sect. 2.4).

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Notes

1.
General Agreement on Tariffs and Trade, LT/UR/A-1A/1/GATT/2, 30 October 1947, 55 UNTS 194.
2.
Winham in Bethlehem et al. (eds.), 5, at 14.
3.
One particularly infamous example for the United States’ protectionist trade policy is the Smoot-Hawley Tariff Act of 1930, Pub. L. 71-361, 46 Stat. 59019, 17 June 1930, imposing on imports the highest tariffs ever in US history, see Barton et al., Evolution of the trade regime, at 33; Mavroidis in Horn/Mavroidis (eds.), 1, at 2; Bagwell/Staiger/Sykes in Horn/Mavroidis (eds.), 68, at 94.
4.
Irwin, 85 AEA Papers and Proceedings (1995), 323, at 324.
5.
Winham in Bethlehem et al. (eds.), 5, at 14; Jackson in Bethlehem et al. (eds.), 30, at 33; Jackson, The World Trading System, at 32.
6.
Jackson, The World Trading System, at 37; Irwin, 85 AEA Papers and Proceedings (1995), 323, at 325.
7.
Barton et al., Evolution of the trade regime, at 39.
8.
Jackson, The World Trading System, at 37.
9.
Barton et al., Evolution of the trade regime, at 42; Jackson, The World Trading System, at 39; Jackson in Bethlehem et al. (eds.), 30, at 34.
10.
Kock, International Trade and Policy, at 65.
11.
Ratification was to happen later jointly with the completed draft ITO charter, see Jackson, The World Trading System, at 40.
12.
The US officially gave up all attempts to ratify the draft ITO charter in 1951, which practically buried the idea of creating an international organisation for the regulation of global trade, see Jackson in Bethlehem et al. (eds.), 30, at 34; Barton et al., Evolution of the trade regime, at 42; Irwin, 85 AEA Papers and Proceedings (1995), 323, at 325.
13.
Barton et al., Evolution of the trade regime, at 38.
14.
The constituted body of the GATT 1947 was the ICITO, which had been created as interim organisational structure for the preparation of the ITO. During the time of provisional application of the GATT 1947, it served as the de facto GATT Secretariat, see Jackson in Bethlehem et al. (eds.), 30, at 35.
15.
Jackson, The World Trading System, at 59; Irwin, 85 AEA Papers and Proceedings (1995), 323, at 325; Barton et al., Evolution of the trade regime, at 43 et seq.
16.
Jackson, The World Trading System, at 59.
17.
Winham in Bethlehem et al. (eds.), 5, at 16; Barton et al., Evolution of the trade regime, at 45; Jackson, The World Trading System, at 73.
18.
Barton et al., Evolution of the trade regime, at 45 et seq.
19.
Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, LT/UR/A/1, 15 April 1994, 1867 UNTS 14.
20.
Jackson, The World Trading System, at 46.
21.
Marrakech Agreement Establishing the World Trade Organization, LT/UR/A/2, 15 April 1994, 1867 UNTS 154.
22.
Blackhurst in Krueger (ed.), 31, at 32.
23.
Winham in Bethlehem et al. (eds.), 5, at 24.
24.
Jackson, The World Trading System, at 64; Jackson in Bethlehem et al. (eds.), 30, at 38 et seq.
25.
Blackhurst in Krueger (ed.), 31, at 32.
26.
Article II:2 WTO Agreement; Article 3.2 DSU in connection with Annex 1; Article VIII:1 WTO Agreement.
27.
Barton et al., Evolution of the trade regime, at 65 et seq.; Jackson, The World Trading System, at 47; Winham in Bethlehem et al. (eds.), 5, at 20.
28.
Barton et al., Evolution of the trade regime, at 47; Jackson in Bethlehem et al. (eds.), 30, at 38.
29.
Jackson in Bethlehem et al. (eds.), 30, at 39.
30.
Jackson in Bethlehem et al. (eds.), 30, at 43.
31.
Jackson in Bethlehem et al. (eds.), 30, at 43.
32.
Bansal, The World Trade Organisation, at vi.
33.
Bansal, The World Trade Organisation, at vi.
34.
Jackson in Bethlehem et al. (eds.), 30, at 44.
35.
Meunier (2009), available at https://www.princeton.edu/~pcglobal/conferences/wtoreform/Meunier_memo.pdf, 1, at 3 et seq.
36.
Hoekman/Mavroidis, 26 European Journal of International Law (2015), 319, at 321.
37.
Hoekman/Mavroidis, 26 European Journal of International Law (2015), 319, at 319.
38.
Meunier (2009), available at https://www.princeton.edu/~pcglobal/conferences/wtoreform/Meunier_memo.pdf, 1, at 1.
39.
Meunier (2009), available at https://www.princeton.edu/~pcglobal/conferences/wtoreform/Meunier_memo.pdf, 1, at 2.
40.
Koul, Guide to the WTO & GATT, at 30 et seq.
41.
Bali Ministerial Declaration, WT/MIN(13)/DEC, 11 December 2013.
42.
Nairobi Ministerial Declaration, WT/MIN(15)/DEC, 21 December 2015.
43.
Francois, 15 CESifo Forum (2014), 14, at 14.
44.
Francois, 15 CESifo Forum (2014), 14, at 14; Hoekman, Supply Chains, Mega-Regionals and Multilateralism, at 8 et seq. and 30 et seq.
45.
The effect of the recent surge of regional trade agreements on the WTO is yet assessed very differently, see e.g. Meléndez-Ortiz, in WEF (ed.), at 6 and 13 et seq.; Baldwin, in WEF (ed.), at 8 and 26 et seq.; Bhagwati (2014), available at http://www.notenstein-laroche.ch/sites/nlr_ch/files/attachments/white_paper_series_jagdish_bhagwati.pdf, at 5 et seq.; Stoler (2013), at 1 and seq. and 6, available at http://e15initiative.org/wp-content/uploads/2015/09/E15-Regional-Trade-Agreements-Stoler-FINAL.pdf.
46.
Bagwell/Staiger, 89 American Economic Review (1999), 215, at 215.
47.
Winham in Bethlehem et al. (eds.), 5, at 6 et seq.
48.
Schwartz/Harper, 70 Michigan Law Review (1972), 831, at 840; Hoekmann/Kostecki, Political Economy of the World Trading System, at 7 and 32 et seq.; Winham in Bethlehem et al. (eds.), 5, at 8.
49.
The theory has been developed based on trade in goods, so that other areas of trade, e.g. services, will not be mentioned separately in the following. The validity of the theory, however, extends to these areas as well.
50.
Whereas the original idea of the concept of comparative advantages goes back to Robert Torrens’ ‘Essay on the External Corn Trade’ (1815), it was made popular in economics through David Ricardo in On the Principles of Political Economy and Taxation (1817) and James Mill in Elements of Political Economy (1821), see Suranovic, International Trade, at 40-0.
51.
Schwartz/Harper, 70 Michigan Law Review (1972), 831, at 840; Winham in Macrory et al. (eds.), 3, at 5; Hoekmann/Kostecki, Political Economy of the World Trading System, at 33; extensively on the notion of comparative advantage Sykes, 1 Journal of International Economic Law (1998), 49, at 49 et seq.
52.
Suranovic, International Trade, at 40-0.
53.
Suranovic, International Trade, at 40-0; Coppens, WTO Disciplines on Subsidies and Countervailing Measures, at 8.
54.
Smith, A., Wealth of Nations, at 457.
55.
Schwartz/Harper, 70 Michigan Law Review (1972), 831, at 840; Winham in Macrory et al. (eds.), 3, at 5; Hoekmann/Kostecki, Political Economy of the World Trading System, at 33.
56.
Suranovic, International Trade, at 40-0.
57.
The effect is illustrated by the following example: if a lawyer needs one hour to type a document and her secretary needs two hours for the same task, then the lawyer possesses both the absolute advantage for rendering legal advice and typing a document. Considering that the lawyer’s hourly rate is at EUR 200 and the secretary’s at EUR 20, however, it still proves advantageous to both parties if the lawyer employs the secretary. The lawyer has to pay to the secretary 40 EUR – but she can employ the then free time at hand for client work which earns her 200 EUR. Thus, both lawyer and secretary benefit from this arrangement. See Winham, in Macrory et al. (eds.), 3, at 4 et seq.; Trebilcock/Fishbein in Guzmán/Sykes (eds.), 1, at 1 et seq.; Winham in Bethlehem et al. (eds.), 5, at 8 et seq.
58.
Winham in Bethlehem et al. (eds.), 5, at 9.
59.
Trebilcock et al., The Regulation of International Trade, at 4. The theory of comparative advantages is, however, not without alternatives. Heckscher and Ohlin , for instance, developed the so-called factor proportions model. Their theory takes into account economies of scale – i.e. that employing one “won” capacity of labour from producing one good does not necessarily effect the same increase in productivity with regard to the manufacture of another good. The country would therefore enjoy a comparative advantage in manufacturing the good most intensively making use of its most abundantly available resources, see Winham in Bethlehem et al. (eds.), 5, at 9. The model of List focuses solely on national development, see Winham in Bethlehem et al. (eds.), 5, at 9; for miscellaneous other approaches see Kreinin/Plummer in Macrory et al. (eds.), 1602, at 1602 et seq.
60.
Samuelson/Nordhaus, Economics, at 158.
61.
Further research, however, demonstrated that the conclusions, which are drawn from the simple economic model presuming a perfectly competitive market, are also valid for distorted markets (e.g. considering the economics of scale), see Grossmann/Horn in Horn/Mavroidis (eds.), 9, at 42.
62.
Samuelson/Nordhaus, Economics, at 26; Zheng, 19 Minnesota Journal of International Law (2010), 1, at 35.
63.
Schwartz/Harper, 70 Michigan Law Review (1972), 831, at 839 et seq.; Coppens, WTO Disciplines on Subsidies and Countervailing Measures, at 6 et seq.
64.
Externalities are defined as benefits or costs that are associated with the operation of market that are not reflected in the prices charged for a good or a service or in the prices that purchasers are willing to pay for them, see Sykes, 1 Journal of International Economic Law (1998), 49, at 73.
65.
Coppens, WTO Disciplines on Subsidies and Countervailing Measures, at 7.
66.
Sykes, University of Chicago Law & Economics Olin Working Paper No. 186 (2003), 1, at 3.
67.
Rubini, The Definition of Subsidy and State Aid, at 204.
68.
Rubini, The Definition of Subsidy and State Aid, at 204.
69.
Zheng, 19 Minnesota Journal of International Law (2010), 1, at 22; Rubini, The Definition of Subsidy and State Aid, at 204. As will be demonstrated at a later stage, the discrepancy between the ideal of a perfect market and the reality of a “market-as-is” has great impact on the benefit calculation in anti-subsidy law, see Sects. 2.4.2.4 and 6.1.4.1.1.
70.
One of the most objectionable amongst such strategies is the so-called “beggar-thy-neighbour approach”, where a country uses its superseding economic power to further enlarge it on the expense of its neighbour states, see Jackson, 1 Journal of International Economic Law (1998), 1, at 2; Sykes, 89 Columbia Law Review (1989), 199, at 246; Hoekmann/Kostecki, Political Economy of the World Trading System, at 217.
71.
According to Sykes , a predatory price is defined as a “price that entails a sacrifice of profit in the short run for the purpose of driving competitors from the market, with the anticipation that the exit of those competitors will enable the predator firms to raise prices and earn monopoly or ‘supracompetitive’ profits thereafter”, see Sykes, 89 Columbia Law Review (1989), 199, at 241.
72.
Sykes, 89 Columbia Law Review (1989), 199, at 241. Viner considers this form of dumping the “most objectionable form of dumping from the point of view of the country dumped on”, see Viner, Dumping, at 26. Also see Viner, Dumping, at 23 et seq., for an extensive classification of dumping.
73.
Smith, A., Wealth of Nations, at 493; Jackson, 1 Journal of International Economic Law (1998), 1, at 2.
74.
Lincicome, Policy Analysis No. 710 (2012), 1, at 4; Smith, A., Wealth of Nations, at 493; Jackson, 1 Journal of International Economic Law (1998), 1, at 2.
75.
Mavroidis, The Regulation of International Trade, at 191; Sykes, Stanford Law and Economics Olin Working Paper No. 380 (2009), 1, at 2 et seq.; Lester, 12 Melbourne Journal of International Law (2011), 1, at 3 et seq.
76.
Coppens, WTO Disciplines on Subsidies and Countervailing Measures, at 12 et seq.
77.
Coppens, WTO Disciplines on Subsidies and Countervailing Measures, at 8.
78.
Coppens, WTO Disciplines on Subsidies and Countervailing Measures, at 8.
79.
Sykes, University of Chicago Law & Economics Olin Working Paper No. 186 (2003), 1, at 11.
80.
Coppens, WTO Disciplines on Subsidies and Countervailing Measures, at 13; Baylis in Kerr/Gaisford (eds.), 347, at 351 et seq.
81.
Lincicome, Policy Analysis No. 710 (2012), 1, at 4.
82.
Jackson, 1 Journal of International Economic Law (1998), 1, at 2.
83.
Consentient Mavroidis, The Regulation of International Trade, at 193.
84.
Mavroidis, The Regulation of International Trade, at 191.
85.
Appellate Body Report, US – Softwood Lumber IV, at para. 51; see Coppens, WTO Disciplines on Subsidies and Countervailing Measures, at 5.
86.
Coppens, WTO Disciplines on Subsidies and Countervailing Measures, at 5 et seq; Strand in Strand (ed.), at 5.
87.
Mavroidis, The Regulation of International Trade, at 186; Stanbrook/Bentley, Dumping and Subsidies, at 8.
88.
Coppens, WTO Disciplines on Subsidies and Countervailing Measures, at 6.
89.
Jackson, The World Trading System, at 47.
90.
General Agreement on Tariffs and Trade, LT/UR/A-1A/1/GATT/1, 15 April 1994, 1867 UNTS 187.
91.
Jackson, The World Trading System, at 47.
92.
Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-dumping Agreement), LT/UR/A-1A/3, 15 April 1994, 1868 UNTS 201.
93.
Appellate Body Report, Brazil – Measures Affecting Desiccated Coconut, WT/DS22/AB/R, adopted 20 March 1997, DSR 1997:I, 167, at 12.
94.
Van den Bossche/Zdouc, The Law and Policy of the World Trade Organization, at 41.
95.
Van den Bossche/Zdouc, The Law and Policy of the World Trade Organization, at 41; Jackson, in Bethlehem et al. (eds.), 30, at 41 et seq.
96.
Sykes in Guzmán/Sykes (eds.), 62, at 62.
97.
Sykes in Guzmán/Sykes (eds.), 62, at 62.
98.
Tarullo, 100 Harvard Law Review (1987), 546, at 549.
99.
From 1 January 1995 to 31 December 2016, of 445 anti-subsidy proceedings initiated altogether, India faced 74, China 119, see https://www.wto.org/english/tratop_e/scm_e/CV_InitiationsByExpCty.pdf (last visited 1 January 2018). In the same period of time, the US initiated 195 of the 445 anti-subsidy investigations, constituting 44% of the total amount of investigations, see https://www.wto.org/english/tratop_e/scm_e/CV_InitiationsByRepMem.pdf (last visited 1 January 2018).
100.
Trebilcock et al., The Regulation of International Trade, at 365 et seq; Sykes, Stanford Law and Economics Olin Working Paper No. 380 (2009), 1, at 7. Arguing for the loose GATT regime having a more beneficial effect on the WTO and the multilateral trading system than the more legalised regulatory concept that has been developed in the Uruguay Round Bagwell/Staiger, 96 American Economic Review (2006), 877, at 879 et seq.
101.
Appellate Body Reports, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R / WT/DS401/AB/R, adopted 18 June 2014, DSR 2014:1, 7, at para. 5.123.
102.
Adamantopoulos in Wolfrum et al. (eds.), Article 1 SCMA, at para. 4.
103.
Adamantopoulos in Wolfrum et al. (eds.), Article 1 SCMA, at para. 5; Trebilcock et al., The Regulation of International Trade, at 368.
104.
Sykes in Macrory et al. (eds.), at 94.
105.
Agreement on Interpretation and Application of Articles VI, XVI and XXIII of the General Agreement on Tariffs and Trade, MTN/NTM/W/236, 12 April 1979, 1186 UNTS 204.
106.
Articles 1.2 and 2 ASCM.
107.
Sykes, Stanford Law and Economics Olin Working Paper No. 380 (2009), 1, at 8.
108.
Sykes, Stanford Law and Economics Olin Working Paper No. 380 (2009), 1, at 9 et seq. and 33; see Article 8.2 ASCM for an enlistment of non-actionable subsidies.
109.
Sykes, Stanford Law and Economics Olin Working Paper No. 380 (2009), 1, at 10.
110.
Regarding the historic discussions whether and to what extent production subsidies were to be included amongst export subsidies see Lester, 12 Melbourne Journal of International Law (2011), 1, at 7 et seq.
111.
Trebilcock et al. The Regulation of International Trade, at 376; Lester, 12 Melbourne Journal of International Law (2011), 1, at 9.
112.
Coppens, WTO Disciplines on Subsidies and Countervailing Measures, at 228.
113.
Panel Report, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/R, adopted 1 June 2011, as modified by Appellate Body Report, WT/DS316/AB/R, DSR 2011:II, 685. at para. 7.2083.
114.
Appellate Body Report, US – Softwood Lumber IV, at para. 132.
115.
Panel Report, Mexico – Definitive Countervailing Measures on Olive Oil from the European Communities, WT/DS341/R, adopted 21 October 2008, DSR 2008:IX, 3179, at para. 7.305.
116.
Sykes in Guzmán/Sykes (eds.), 62, at 101 et seq.
117.
Coppens, WTO Disciplines on Subsidies and Countervailing Measures, at 197 et seq.
118.
Lincicome, Policy Analysis No. 710 (2012), 1, at 6.
119.
Coppens, WTO Disciplines on Subsidies and Countervailing Measures, at 197.
120.
Coppens, WTO Disciplines on Subsidies and Countervailing Measures, at 220.
121.
Panel Report, Mexico – Olive Oil, at para. 7.120 et seq.
122.
Coppens, WTO Disciplines on Subsidies and Countervailing Measures, at 222.
123.
According to the Appellate Body in Japan – DRAMs (Korea), it is sufficient if the investigating authority deems it advantageous if another actor were to join as a party. Besides the investigating authority being “mindful of the burden that such designation may entail for other interested parties”, no other substantive requirements have to be fulfilled, see Appellate Body Report, Japan – Countervailing Duties on Dynamic Random Access Memories from Korea, WT/DS336/AB/R and Corr.1, adopted 17 December 2007, DSR 2007:VII, 2703, at para. 150 et seq.
124.
Appellate Body Report, Mexico – Definitive Anti-Dumping Measures on Beef and Rice, Complaint with Respect to Rice, WT/DS295/AB/R, adopted 20 December 2005, DSR 2005:XXII, 10853, at para. 192 et seq.
125.
Adamantopoulos in Wolfrum et al. (eds.), Article 1 SCMA, at para. 9.
126.
Adamantopoulos in Wolfrum et al. (eds.), Article 1 SCMA, at para. 11.
127.
Appellate Body Report, US – Softwood Lumber IV, at para. 52; Adamantopoulos in Wolfrum et al. (eds.), Article 1 SCMA, at para. 12.
128.
Chichilniski in Koellner (ed.), 204, at 212. In economics, there is not only one single notion of economic value, see Zheng, 19 Minnesota Journal of International Law (2010), 1, at 2. Instead, several concepts exist. Basically, value “in use” and value “in exchange” are distinguished, see Smith, A., Wealth of Nations, at 44. According to the concept of value in use, each commodity inheres economic value. The idea of economic value in exchange, however, grounds on the preferences of sellers and buyers attributing to a good a certain economic value, see Stuart, 4 Journal of Political Economy (1896), 208, at 210.
129.
Reich, National Accounts and Economic Value, at 12.
130.
Adamantopoulos in Wolfrum et al. (eds.), Article 1 SCMA, at para. 92.
131.
Zheng, 19 Minnesota Journal of International Law (2010), 1, at 16.
132.
Panel Report, Canada – Measures Affecting the Export of Civilian Aircraft, WT/DS70/R, adopted 20 August 1999, upheld by Appellate Body Report, WT/DS70/AB/R, DSR 1999:IV, 1443, at para. 9.112.
133.
Appellate Body Report, Canada – Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R, adopted 20 August 1999, DSR 1999:III, 1377, at para. 157.
134.
Adamantopoulos in Wolfrum et al. (eds.), Article 1 SCMA, at para. 92.
135.
Chichilniski in Koellner (ed.), 204, at 212.
136.
Reich, National Accounts and Economic Value, at 12.
137.
Appellate Body Report, Canada – Aircraft, at para. 154 et seq.
138.
Adamantopoulos in Wolfrum et al. (eds.), Article 1 SCMA, at para. 93 and footnote 84; Trebilcock et al., The Regulation of International Trade, at 371.
139.
Appellate Body Report, Canada – Aircraft, at para. 154.
140.
Adamantopoulos in Wolfrum et al. (eds.), Article 1 SCMA, at para. 103.
141.
Durling in Wolfrum et al. (eds.), at para. 3.
142.
MTN.GNG/NG10/23, 7 November 1990, at 15; Zheng, 19 Minnesota Journal of International Law (2010), 1, at 18.
143.
Zheng, 19 Minnesota Journal of International Law (2010), 1, at 14, footnote 76.
144.
Zheng, 19 Minnesota Journal of International Law (2010), 1, at 14, footnote 76.
145.
Panel Report, Canada – Aircraft, at para. 9.112.
146.
Coppens, WTO Disciplines on Subsidies and Countervailing Measures, at 60.
147.
Panel Report, Canada – Aircraft, at para. 9.112.
148.
Appellate Body Report, Canada – Aircraft, at para. 157; Appellate Body Reports, Canada – Certain Measures Affecting the Renewable Energy Generation Sector / Canada – Measures Relating to the Feed-in Tariff Program, WT/DS412/AB/R / WT/DS426/AB/R, adopted 24 May 2013, at 5.208; Panel Reports, Canada – Certain Measures Affecting the Renewable Energy Generation Sector / Canada – Measures Relating to the Feed-in Tariff Program, WT/DS412/R and Add.1 / WT/DS426/R and Add.1, adopted 24 May 2013, as modified by Appellate Body Reports WT/DS412/AB/R / WT/DS426/AB/R, DSR 2013:II, 471, at para. 7.271.
149.
Appellate Body Report, US – Carbon Steel (India), at para. 4.151 (quoting Appellate Body Report, EC and certain Member States – Large Civil Aircraft, at para. 975.).
150.
The “market standard” was referred to by the Appellate Body in Japan – DRAMs (Korea), see Appellate Body Report, Japan – DRAMs (Korea), at para. 172.
151.
Sykes in Guzmán/Sykes (eds.), 62, at 104.
152.
Appellate Body Report, United States – Countervailing Measures on Certain Hot- Rolled Carbon Steel Flat Products from India, WT/DS436/AB/R, adopted 19 December 2014, DSR 2014:V, 1727, at para. 4.150 (quoting Appellate Body Report, United States – Subsidies on Upland Cotton, WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, 3, at para. 4.04).
153.
Appellate Body Report, European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft, WT/DS316/AB/R, adopted 1 June 2011, DSR 2011:I, 7, at para. 1120, footnote 2467.
154.
Appellate Body Report, EC and certain Member States – Large Civil Aircraft, at para. 1120, footnote 2467.
155.
Appellate Body Reports, Canada – Renewable Energy and Canada – FIT Program, at para. 5.169.
156.
Appellate Body Reports, Canada – Renewable Energy and Canada – FIT Program, at para. 5.172; Coppens, WTO Disciplines on Subsidies and Countervailing Measures, at 79 et seq.
157.
Appellate Body Reports, Canada – Renewable Energy and Canada – FIT Program, at para. 5.171 (quoting Appellate Body Report, EC and certain Member States – Large Civil Aircraft, at para. 1121).
158.
Appellate Body Reports, Canada – Renewable Energy and Canada – FIT Program, at para. 5.169.
159.
Also, the reference to a “private” investor could be seen as circular. How “private” the market has to be, i.e. whether it has to be a perfectly private market or whether the existence of externalities may also be regarded as a feature of a still sufficiently private market, is just the question under scrutiny.
160.
http://www.oxforddictionaries.com/definition/english/usual (last visited 1 January 2018).
161.
Different Zheng , 19 Minnesota Journal of International Law (2010), 1, at 22, who concludes on a market-as-is approach.
162.
Different Zheng , 19 Minnesota Journal of International Law (2010), 1, at 22 et seq., who rather interprets “comparable” as indicating the employment of the perfect market approach.
163.
http://www.oxforddictionaries.com/definition/english/commercial?searchDictCode=all (last visited 1 January 2018).
164.
http://www.oxforddictionaries.com/definition/english/commerce (last visited 1 January 2018).
165.
http://www.oxforddictionaries.com/definition/english/commercial?searchDictCode=all (last visited 1 January 2018).
166.
Again, Zheng , 19 Minnesota Journal of International Law (2010), 1, at 22 et seq., rather concludes on a perfect market approach.
167.
Ending with the same conclusion Zheng , 19 Minnesota Journal of International Law (2010), 1, at 22.
168.
Regarding the circularity of a “comparable” loan see Sect. 2.4.2.4.1.3.
169.
See Zheng, 19 Minnesota Journal of International Law (2010), 1, at 23.
170.
http://www.oxforddictionaries.com/definition/english/prevailing (last visited 1 January 2018).
171.
Panel Report, Canada – Aircraft, at para. 9.112.
172.
Panel Report, Canada – Aircraft, at para. 9.113.
173.
Panel Report, Canada – Aircraft, at para. 9.113.
174.
http://www.oxforddictionaries.com/definition/english/commercial?searchDictCode=all (last visited 1 January 2018).
175.
http://www.oxforddictionaries.com/definition/english/commerce (last visited 1 January 2018).
176.
http://www.oxforddictionaries.com/definition/english/commercial?searchDictCode=all (last visited 1 January 2018).
177.
Appellate Body Report, Canada – Aircraft, at para. 157; see Zheng, 19 Minnesota Journal of International Law (2010), 1, at 21.
178.
Panel Report, Brazil – Export Financing Programme for Aircraft, WT/DS46/R, adopted 20 August 1999, as modified by Appellate Body Report WT/DS46/AB/R, DSR 1999:III, 1221, at para. 7.15 et seq.
179.
CIRR is the Commercial Interest Reference Rate provided by the OECD setting the minimum interest rates for governmental supported export credits, see http://www.oecd.org/tad/xcred/cirrs.pdf also for the latest rates (last visited 1 January 2018).
180.
Panel Report, Brazil – Aircraft, at para. 6.79.
181.
Panel Report, Brazil – Aircraft, at para. 6.88; This definition is reiterated by the Panel at para. 6.91. As the context is clearly on the discussion of the argumentative position of Canada, the reiteration bears no significance in terms of the Panel providing an own definition of “commercial”.
182.
Panel Report, Brazil – Aircraft, at para. 6.90.
183.
Panel Report, Brazil – Aircraft, at para. 6.92.
184.
Panel Report, Brazil – Aircraft, at para. 6.95 [emphasis in original].
185.
Panel Report, Brazil – Aircraft, at para. 6.95 [emphasis in original].
186.
Panel Report, Brazil – Aircraft, at para. 6.95.
187.
Panel Report, Brazil – Aircraft, at para. 6.104.
188.
Panel Report, United States – Preliminary Determinations with Respect to Certain Softwood Lumber from Canada, WT/DS236/R, adopted 1 November 2002, DSR 2002:IX, 3597, at para. 4.83.
189.
Panel Report, US – Softwood Lumber III, at para. 7.44.
190.
Panel Report, US – Softwood Lumber III, at para. 7.50.
191.
Panel Report, US – Softwood Lumber III, at para. 7.53.
192.
Panel Report, United States – Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada, WT/DS257/R and Corr.1, adopted 17 February 2004, as modified by Appellate Body Report WT/DS257/AB/R, DSR 2004:II, 641, at para. 7.38.
193.
Panel Report, US – Softwood Lumber IV, at para. 7.38.
194.
Panel Report, US – Softwood Lumber IV, at para. 7.51.
195.
Panel Report, US – Softwood Lumber IV, at para. 7.51.
196.
Panel Report, US – Softwood Lumber IV, at para. 7.51.
197.
Panel Report, US – Softwood Lumber IV, at para. 7.51.
198.
Panel Report, US – Softwood Lumber IV, at para. 7.50.
199.
Panel Report, US – Softwood Lumber IV, at para. 7.51.
200.
Panel Report, US – Softwood Lumber IV, at para. 7.60.
201.
Panel Report, US – Softwood Lumber IV, at para. 7.52 et seq.
202.
Appellate Body Report, US – Softwood Lumber IV, at para. 87.
203.
See Article XVI WTO Agreement for a reference to English, French and Spanish being the authentic languages of the WTO Agreement.
204.
Appellate Body Report, US – Softwood Lumber IV, at para. 87.
205.
Different again Zheng , 19 Minnesota Journal of International Law (2010), 1, at 27, who concludes on a perfect market approach adopted by the Appellate Body.
206.
Appellate Body Report, US – Carbon Steel (India), WT/DS436/AB/R, adopted 19 December 2014, DSR 2014:V, 1727, at para. 4.150 (quoting Appellate Body Report, United States – Subsidies on Upland Cotton, WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, 3, at para. 4.04).
207.
Appellate Body Report, US – Carbon Steel (India), at para. 4.150 (quoting Appellate Body Report, United States – Subsidies on Upland Cotton, at para. 4.04).
208.
Appellate Body Report, US – Carbon Steel (India), at para. 4.150.
209.
Appellate Body Report, US – Carbon Steel (India), at para. 4.150.
210.
Appellate Body Reports, Canada – Renewable Energy and Canada – FIT Program, at para. 4.6 et seq.
211.
Appellate Body Reports, Canada – Renewable Energy and Canada – FIT Program, at para. 5.190.
212.
Appellate Body Reports, Canada – Renewable Energy and Canada – FIT Program, at para. 5.185.
213.
Appellate Body Reports, Canada – Renewable Energy and Canada – FIT Program, at para. 5.199.
214.
Appellate Body Reports, Canada – Renewable Energy and Canada – FIT Program, at para. 5.204.
215.
Appellate Body Reports, Canada – Renewable Energy and Canada – FIT Program, at para. 5.225.
216.
Zang, 14 Journal of International Economic Law (2012), 869, at 885 et seq. As a result, one important element of the benefit calculation is missing: a meaningful market price for the comparison with the price of the governmental financial contribution.
217.
Sykes in Guzmán/Sykes (eds.), 62, at 105.
218.
Van Bael/Bellis, EU Anti-Dumping and Other Trade Instruments, at 140.
219.
This discussion has been particularly prevalent in the US in the aftermath of the Georgetown Steel Corp. v. United States case. See Sect. 5.1.2.1; Hoyt, 136 University of Pennsylvania Law Review (1988), 1647, at 1665 et seq.
220.
Feldman/Burke, 62 American University Law Review (2008), 787, at 804; Qin, 7 Journal of International Economic Law (2004), 863, at 870.
221.
Feldman/Burke, 62 American University Law Review (2008), 787, at 804 et seq.
222.
Qin, 7 Journal of International Economic Law (2004), 863, at 870.
223.
Appellate Body Reports, Canada – Renewable Energy and Canada – FIT Program, at para. 5.184.
224.
Adamantopoulos in Wolfrum et al. (eds.), Article VI GATT, at para. 19.
225.
Zheng, 19 Minnesota Journal of International Law (2010), 1, at 41; Lamont/Thaler, 17 Journal of Economic Perspectives (2003), 191.
226.
Zheng, 19 Minnesota Journal of International Law (2010), 1, at 41.
227.
Zheng, 19 Minnesota Journal of International Law (2010), 1, at 42.
228.
Zheng, 19 Minnesota Journal of International Law (2010), 1, at 43.

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Müller, S. (2018). The Significance of the Use of Alternative Benchmark Methodologies in the Process of WTO Anti-Subsidy Investigations. In: The Use of Alternative Benchmarks in Anti-Subsidy Law. European Yearbook of International Economic Law(), vol 4. Springer, Cham. https://doi.org/10.1007/978-3-319-77613-2_2

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DOI: https://doi.org/10.1007/978-3-319-77613-2_2
Published: 22 May 2018
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