In November of last year, I said this about the issue of concurrent anti-dumping/countervailing duties:
GATT Article VI:5 provides: "No product of the territory of any Member imported into the territory of any other Member shall be subject to both anti-dumping and countervailing duties to compensate for the same situation of dumping or export subsidization." Thus, under this provision, double remedies cannot be applied to the "same situation" of dumping and export subsidies, perhaps indicating an assumption by the drafters that export subsidies lead to dumping. There is no similar provision excluding double remedies for domestic subsidies and dumping.
However, given the earlier discussion of how domestic subsidies could lead to dumping, the question arises as to whether there is some general principle that might prohibit double counting in the domestic subsidy context. It certainly seems unfair, in some general sense, to allow authorities to impose remedies on both subsidies and dumping where the subsidies have led to the dumping. But it is difficult to fit this concern within a specific WTO obligation, and the explicit prohibition in relation to export subsidies makes the argument difficult. ...
Today's WTO panel report on U.S. - AD/CVD on Products from China (DS379) seems to take this view, addressing the issue as follows:
14.117 Thus, by its very terms, Article VI:5 of the GATT 1994 is limited to "situation[s] of [...]export subsidization". In our view, these terms are self-explanatory in their intention to limit the scope of the prohibition in Article VI:5 to situations involving export subsidies, to the exclusion of situations in which domestic subsidies are granted on exported goods. Such a narrow reading of the terms "situation of [...] export subsidization" is supported by the context to Article VI:5, and in particular by the distinction made between domestic vs. export subsidies in Article VI:3 of the GATT 1994, which deals with countervailing duties, and by the separate treatment accorded to export subsidies under Article XVI of the GATT 1994. These provisions demonstrate that the drafters intended to make a distinction between subsidies granted with respect to the production or manufacture of goods (i.e., domestic subsidies) and subsidies granted in respect of the export of goods (i.e., export subsidies). ...
14.118 Not only is Article VI:5 limited to potential double remedies in respect of export subsidies, but the explicit terms in which the drafters addressed the issue in that provision makes it all the more unlikely that they sought to prohibit the imposition of double remedies in respect of other types of subsidies through Article 19.4 of the SCM Agreement given, again, that Article 19.4 on its face makes no reference to that issue.
Based purely on the Article VI:5 text, this conclusion makes some sense, but it is a bit unsatisfying nonetheless. More on all this later.
