Anti-Subsidy Investigations Against China: The “Great Leap Forward” in Reforming EU Trade Defence?
This paper examines the use of alternative benchmarks in anti-subsidy law. Whereas alternative benchmarking in the determination of normal value is common practice in anti-dumping law, it only recently established itself in often-neglected anti-subsidy law. During the last score of years, the WTO Appellate Body has not only developed general legal rules for the use of alternative benchmarks in anti-subsidy law by interpretation of Article 14 ASCM, but WTO accession procedures have even spawned country-specific alternative benchmark regimes. The most illustrious example is certainly the People’s Republic of China.
Taking the example of EU investigations against China, this paper analyses both normative deficits and practical consequences of alternative benchmarking in WTO anti-subsidy law. Reconsidering function and principles of the WTO as major institution for international trade regulation, it argues that the introduction of country-specific alternative benchmark provisions in anti-subsidy law has left the legal boundaries of the WTO and is hence in violation of WTO law. Thus, reform is due—and despite recent efforts on EU level, still remains an open issue.
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