Elgar International Economic Law series
Chapter 11: Special and differential treatment
10. Thou shall not be punished in any other way Art. 32.1 SCM states that: ‘No specific action against a subsidy of another Member can be taken except in accordance with the provisions of GATT 1994, as interpreted by this Agreement.’ The interpretation of this provision was the core subject-matter of the dispute between the United States and a host of WTO Members regarding the US Continued Dumping and Subsidy Offset Act of 2000 (the ‘CDSOA’), also known as the ‘Byrd Amendment’. According to this law, the United States promised to disburse the monetary equivalent of all anti-dumping/countervailing duties perceived to those US economic operators that had supported a petition to initiate an investigation. Both the Panel and the Appellate Body held that the Byrd Amendment was violating Art. 32.1 SCM. The Appellate Body, in its report on US – Offset Act (Byrd Amendment), held the view that the US legislation at hand was specific legislation against subsidization: specific, because it was linked to anti-dumping or CVD proceedings; against, because the Byrd payments had an adverse bearing on subsidies and they did not feature among the permissible actions against subsidization (undertakings, provisional or definitive CVDs). We quote from para. 256: Because the CDSOA has an adverse bearing on, and, more specifically, is designed and structured so that it dissuades the practice of dumping or the practice of subsidization, and because it creates an incentive to terminate such practices, the CDSOA is undoubtedly an action ‘against’ dumping or a subsidy, within the...
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