Tie Votes at the ITC

One of the claims in the the latest WTO complaint, brought by Indonesia against a U.S. AD/CVD measure, is the following: 

The United States' imposition of anti-dumping and countervailing duty orders appears to be inconsistent with at least the following provisions of WTO law:

...

With respect to 19 U.S.C. § 1677(11)(B)'s requirement that a tie vote in a threat of injury determination must be treated as an affirmative USITC determination, Article 3.8 of the AD Agreement and Article 15.8 of the SCM Agreement, inter alia, because the law does not consider or exercise "special care."

The statute at issue states: 

(11) Affirmative determinations by divided Commission

If the Commissioners voting on a determination by the Commission, including a determination under section 1675 of this title, are evenly divided as to whether the determination should be affirmative or negative, the Commission shall be deemed to have made an affirmative determination. For the purpose of applying this paragraph when the issue before the Commission is to determine whether there is—

 

(A) material injury to an industry in the United States,

(B) threat of material injury to such an industry, or

(C) material retardation of the establishment of an industry in the United States,

 

by reason of imports of the merchandise, an affirmative vote on any of the issues shall be treated as a vote that the determination should be affirmative.

In a nutshell, if the ITC Commissioners vote on a determination, and the vote is a tie, the tie vote is deemed to be an affirmative determination.  Just to illustrate, where the issue is whether material injury exists, if there are 4 votes that material injury exists (and 2 that it does not), this leads to an affirmative determination; if there are only 2 votes that material injury exists (and 4 that it does not), this leads to a negative determination; and if the vote is split 3-3, this leads to an affirmative determination that material injury exists.  (That was probably clear without my illustration!)

I have long wondered whether this provision would be challenged at the WTO.  In this case, only threat of material injury was at issue, so (B) is the only provision of the statute that is being challenged.  The claims are under AD Agreement Article 3.8 and SCM Agreement Article 15.8.  Article 3.8 says:

With respect to cases where injury is threatened by dumped imports, the application of anti-dumping measures shall be considered and decided with special care.

SCM Agreement Article 15.8 is similar.

I'm not sure how they plan to argue the claim, but presumably they are thinking that the "special care" required under these obligations means that a tie vote cannot be deemed an affirmative determination in the case of a threat of injury allegation.  "Special care" means you need something more for threat cases.  I wonder whether there is a more general provision that could be used to make the same argument more broadly.