Chinese Law Prof Blog

Editor: Donald C. Clarke
George Washington University Law School

Friday, October 7, 2005

New article on China's antidumping practice

As a rule, I don't review books or articles here because starting down that road could get very time-consuming, and the only practical principle of selection - whether I like it or not - is bound to offend somebody. But I will make an exception here to draw readers' attention to an excellent and interesting piece they might not normally run across, since it won't show up in legal bibliographies: Scott Kennedy, "China's Porous Protectionism: The Changing Political Economy of Trade Policy", Political Science Quarterly, vol. 120, no. 3 (Fall 2005), pp. 407-432. 下不为例!

Kennedy starts by arguing that China's engagement with the world, and with the WTO in particular, can produce learning not only of liberal principles such as free trade, but also of illiberal ones such as the antidumping regime embedded within the WTO. But he goes on to argue that respondents in Chinese antidumping cases win a surprising percentage of cases, and explains it by the increasing openness of decisionmakers to lobbying by those who would be adversely affected by the imposition of dumping duties - not just the foreign exporters, but (and in particular) domestic end users as well.

Indeed, this openness to lobbying was formalized in the 2004 revisions to China's antidumping rules, when they became more free-trade-friendly than required by the WTO: they included a provision (Art. 37) requiring decisionmakers to take the public interest into account (i.e., to consider the adverse effect on users and the economy in general of imposing antidumping duties, and not solely the adverse effect on producers of not imposing them).

By contrast - and this is me speaking now, not Prof. Kennedy - there is to this day no room in US antidumping law for decisionmakers to consider arguments that antidumping duties would hurt the US economy far more than they would help producers. Users are not even defined as "interested parties" with a right to be heard as such (unless they are also importers, who does have such standing); consumer groups are given the right to "comment", but only with respect to the issue of whether dumping or injury occurred. (Chinese law allows "interested parties" to be heard (Art. 19), but does not define them.) In short, US law simply does not allow the broader issue of damage to the economy to be directly addressed. In this respect, Chinese antidumping law turns out to be more trade-friendly than that of the US.

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