Pre-WTO Era Evolution of Non-Market Economy Treatment Rules and Practices

Long, Shao

doi:10.1007/978-981-99-8292-9_4

Shao Long⁷

Part of the book series: Modern China and International Economic Law ((CIEL))

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Abstract

Within the current AD legal regime, a most notable protectionist mechanism is the NME treatment, which is also considered to be one of the most egregious forms of AD abuse.

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Notes

1.
K. William Watson, “It’s Time to Dump Nonmarket Economy Treatment”, Free Trade Bulletin, Herbert A. Stiefel Center for Trade Policy Studies, Cato Institute, March 9, 2016, No.65, p. 3.
2.
David Kleimann (2016), “The Vulnerability of EU Anti-Dumping Measures against China after December 11, 2016”, European University Institute, Robert Schuman Centre for Advanced Studies, Global Governance Programme, EUI Working Paper RSCAS 2016/37, p. 3.
3.
Richard Toye (2012), “The International Trade Organization” in Amrita Narlikar, Martin Daunton and Robert M. Stern eds., The Oxford Handbook on the World Trade Organization, Oxford University Press, pp. 86–90.
4.
Ibid, at pp. 91–95.
5.
Ibid, at pp. 95–98.
6.
Article 29, The relation of this Agreement to the Havana Charter, the General Agreement on Tariffs and Trade.
7.
Article 2, Protocol of Provisional Application of the General Agreement on Tariffs and Trade.
8.
Richard Toye, “The International Trade Organization”, supra note 3, pp. 91–95.
9.
Carole K. Fink (2014), Cold War: An International History, West View Press, p. 54.
10.
Richard H. Immerman, Petra Goedde (eds) (2016), The Oxford Handbook of the Cold War, Oxford University Press, pp. 107–286.
11.
Kenneth W. Dam (1970), The GATT: Law and International Economic Organization, University of Chicago Press, p. 318; Edmond M. Ianni (1982), “The International Treatment of State Trading”, Journal of World Trade Law, 16(6): 482.
12.
Article 1, Havana Charter for an International Trade Organization.
13.
Ibid.
14.
“Joint declaration by the President of the United States of America and Mr. Winston Churchill, representing His Majesty’s government in the United Kingdom known as the Atlantic Charter”, Cmd. 6321, 1941.
15.
William Diebold, “The end of the ITO”, Essays in International Finance, International Finance Section of the Department of Economics and Social Institutions in Princeton University, October 1952, No.16, p. 4.
16.
Alexander Polouektov (2002), “‘The Non-market Economy’ Issue in International Trade in the Context of WTO Accession”, United Nations Conference on Trade and Development, UNTAD/DITC/TNCD/MISC.20, 9 October 2002, p. 7.
17.
Richard Toye, “The International Trade Organization”, supra note 3, pp. 91–95.
18.
Mark Beeson, “The Rise of the ‘Neocons’ and the evolution of American Foreign Policy”, Asian Research Center, Working Paper No.107, August 2004, p. 5.
19.
Longyue Zhao, Yan Wang (2008), “Trade Remedies and Non-market Economies: Economic Implications of the First US Countervailing Duty Case on China”, Policy Research Working Paper, 4560, The World Bank, World Bank Institute Poverty Reduction and Economic Management Division, p. 13.
20.
Richard Toye, “The International Trade Organization”, supra note 3, pp. 91–95.
21.
Ibid, at p. 98.
22.
“Report of the First Session of the Preparatory Committee of the United Nations Conference on Trade and Employment”, London, 1946, p. 59.
23.
Ibid.
24.
“The Prospect of Soviet-American Trade Relations”, Bulletin No. 39 of the Institute of International Finance of New York University, August 27, 1945. A similar provision was contained in a trade agreement of 1927 between Latvia and the Soviet Union. See Alexander Polouektov, “‘The Non-market Economy’ Issue in International Trade in the Context of WTO Accession”, supra note 16, p. 8.
25.
J. E. S. Fawcett (1959), “State Trading and International Organization”, Law and Contemporary Problems, 24(2): 343.
26.
Kenneth W. Dam, The GATT: Law and International Economic Organization, supra note 11, p. 316.
27.
Article 31, Expansion of Trade, Havana Charter for an International Trade Organization.
28.
GATT (1995), GATT Analytical Index: Guide to GATT law and practice, updated 6th Rdition, Vol.1, Bernan Press, Geneva, WTO Lanham, Md, p. 478.
29.
MM Kostecki (1979), East–West Trade and the GATT System, the MacMillan Press, London, p. 35.
30.
V. A. Seyid Muhammd (1958), The Legal Framework of World Trade, Praeger, New York, p. 227.
31.
Roy Baban (1977), “State trading and the GATT”, Journal of World Trade Law, 11: 335.
32.
Edmond M. Ianni (1983), “State Trading: Its Nature and International Treatment”, Northwestern Journal of International Law & Business, 5(1): 48.
33.
Ibid.
34.
Ibid, at p. 49.
35.
Kenneth W. Dam, The GATT: Law and International Economic Organization, supra note 11, p. 316.
36.
Edmond M. Ianni, “State Trading: Its Nature and International Treatment”, supra note 32, p. 49.
37.
Alexander Polouektov, “‘The Non-market Economy’ Issue in International Trade in the Context of WTO Accession”, supra note 16, p. 38.
38.
John N. Hazard (1959), “State Trading in History and Theory”, Law and Contemporary Problems, 24: 245.
39.
Ibid, at pp. 243–255.
40.
Ibid.
41.
Roy Baban, “State trading and the GATT”, supra note 31, p. 335.
42.
Robert Loring Allen (1959), “State Trading and Economic Warfare”, Law and Contemporary Problems, 24: 265.
43.
John H. Jackson (1969), World Trade and the Law of GATT, Bobbs-Merrill, New York, pp. 403–406.
44.
Paragraph 1, Article VI: Anti-dumping and Countervailing Duties, General Agreement on Tariffs and Trade.
45.
Ibid.
46.
John H. Jackson (1989), “State trading and Nonmarket Economies”, The International Lawyer, 23: 891.
47.
Alexander Polouektov, “‘The Non-market Economy’ Issue in International Trade in the Context of WTO Accession”, supra note 16, p. 7.
48.
Edmond M. Ianni, “State Trading: Its Nature and International Treatment”, supra note 32, p. 60.
49.
MM Kostecki, East–West Trade and the GATT System, supra note 29, pp. 10–11.
50.
Carole K. Fink, Cold War: An International History, supra note 9, p. 68.
51.
The Czechoslovak Delegation firstly put forward its proposal to the Review Working Party II on Tariffs, Schedules and Customs Administration. Article VI Proposals by the Czechoslovak Delegation, Document W.9/86, 9 December 1954, Document W.9/86/Rev.1, 21 December 1954. Its proposal was then considered by the Review Working Party III on Barriers to Trade other than Restrictions or Tariffs, whose terms of reference included the consideration of proposals submitted with respect to: (a) subsidies, and countervailing and anti-dumping measures, and (b) state trading, surplus disposal, disposal of non-commercial stocks and the general exceptions to the Agreement. GATT, Report of Review Working Party III on Barriers to Trade other than Restrictions or Tariffs, Document L/334, 1 March 1955.
52.
Article VI Proposals by the Czechoslovak Delegation, Document W.9/86/Rev.1, 21 December 1954.
53.
Ibid.
54.
Ibid.
55.
This concern can be observed in the EC AD legislation. One of the criteria specified in the EC AD legislation for granting individual market economy treatment to enterprises from NMEs is just “the production costs and financial situation of firms are not subject to significant distortions carried over from the former non-market economy system, in particular in relation to depreciation of assets, other write-offs and payment via compensation of debts”. Council Regulation (EC) No.905/98 of 27 April 1998 amending Regulation (EC) No.384/96 on protection against dumped imports from countries not members of the European Community, OJ L 128, 30.04.1998, p. 18.
56.
GATT, Report of Review Working Party III on Barriers to Trade other than Restrictions or Tariffs, supra note 51.
57.
Ibid, Annex I, Part I, paragraph B.
58.
Ibid, paragraph 3.
59.
Ibid.
60.
GATT, GATT Analytical Index: Guide to GATT Law and Practice, updated 6th edition, supra note 28, p. 255; GATT Legal and Drafting Committee, Draft Protocol Amending Part II and Part III of the General Agreement on Tariffs and Trade, Document W.9/246, 6 March, 1955.
61.
GATT (1957), Protocol Amending the Preamble and Parts II and III Entry into Force, Document L/704, 17 October 1957.
62.
GATT (1957), Anti-dumping and Countervailing Duties: Secretariat Analysis, Document L/712, 23 October 1957, p. 10.
63.
Ibid.
64.
Robert H. Lantz (1995), “The Search for Consistency: Treatment of Nonmarket Economies in Transition under United States Anti-dumping and Countervailing Duty Laws”, American University Journal of International Law and Policy, 10(3): 1002.
65.
Donald L. Cuneo, Charles B. Mauel, Jr (1981), “Roadblock to Trade: The State-controlled Economy Issue in Anti-dumping Law Administration”, Fordham International Law Journal, 5(2): 284.
66.
Department of the Treasury (1960), Bicycles from Czechoslovakia, Determination of Sales at Less Than Fair Value, Fed. Reg. 25: 6657.
67.
Ibid.
68.
Donald L. Cuneo, Charles B. Mauel, Jr, “Roadblock to Trade: The State-controlled Economy Issue in Anti-dumping Law Administration”, supra note 65, p. 284.
69.
Gary N. Horlick N., Shannon S. Shuman (1984), “Nonmarket Economy Trade and US Antidumping/Countervailing Duty Laws”, The International Lawyer, 18(4): 808.
70.
Jan M. Smith (2013), “US Trade Remedy Laws and Nonmarket Economies: A Legal Overview”, Congressional Research Service Report for Congress, p. 2.
71.
Department of the Treasury (1962), Fur Felt Hoods, Bodies, and Caps from Czechoslovakia, Fair Value Determination, Fed. Reg. 27: 6099.
72.
Department of the Treasury (1962), Jalousie-Louver-Sized Sheet Glass from Czechoslovakia, Determination of Sales at Less than Fair Value, Fed. Reg. 27: 8457.
73.
Ibid.
74.
Ibid.
75.
Ibid.
76.
Department of the Treasury (1963), Portland Cement from Poland, Fair Value Determination, Fed. Reg. 28: 6660.
77.
Gary N. Horlick, Shannon S. Shuman, “Nonmarket Economy Trade and US Antidumping/Countervailing Duty Laws”, supra note 69, p. 808.
78.
Robert A. Anthony(1969), “American Response to Dumping from Capitalist and Socialist Economies—Substantive Premises and Restructured Procedures After the 1967 GATT Code”, Cornell Law Review, 54(2): 203–204.
79.
Exemplary cases include: Window Glass from USSR, 29 Fed. Reg. 8381 (1964), Window Glass from Czechoslovakia, 29 Fed. Reg. 13,405 (1964), Shoes from Czechoslovakia, 31 Fed. Reg. 1207 (1966), Fur Felt Hat Bodies from Czechoslovakia, 31 Fed. Reg. 15,024 (1966), Fishery Products from USSR, 32 Fed. Reg. 1101 (1967), Pig Iron from Czechoslovakia, 32 Fed. Reg. 2901 (1967), Cast Iron Soil Pipe and Fittings from Poland, 32 Fed. Reg. 2901 (1967), Pig Iron from Czechoslovakia, 33 Fed. Reg. 5105 (1968), Pig Iron from East Germany, 33 Fed. Reg. 5105 (1968), Pig Iron from Romania, 33 Fed. Reg. 5105 (1968), Pig Iron from USSR, 33 Fed. Reg. 5106 (1968), Titanium Sponge from the USSR, 33 Fed. Reg. 5467 (1968).
80.
Article VI.1(b)(ii), The General Agreement on Tariffs and Trade.
81.
Francis Snyder, The EU, the WTO and China—Legal Pluralism and International Trade Regulation, supra note 36, p. 226.
82.
Ibid.
83.
GATT, Anti-dumping and Countervailing Duties: Secretariat Analysis of legislation, supra note 62.
84.
Francis Snyder, The EU, the WTO and China—Legal Pluralism and International Trade Regulation, supra Chap. 3, note 1, p. 223.
85.
Ibid.
86.
Ibid.
87.
Ibid.
88.
GATT, GATT Analytical Index: Guide to GATT law and practice, updated 6^th edition, supra note 28, p. 4225; GATT (1961), Anti-dumping and countervailing duties: reports of group of experts, Geneva, 1961, Sales No. GATT/1961–2, p. 9.
89.
Francis Snyder, The EU, the WTO and China—Legal Pluralism and International Trade Regulation, supra Chap. 3, note 1, pp. 221–224.
90.
Carole K. Fink, Cold War: An International History, supra note 9, pp. 111–116.
91.
Francis Snyder, The EU, the WTO and China—Legal Pluralism and International Trade Regulation, supra Chap. 3, note 1, p. 221.
92.
Alexander Polouektov, “‘The Non-market Economy’ Issue in International Trade in the Context of WTO Accession”, supra note 16, p. 8.
93.
Thomas W. Zeiler, “The Expanding Mandate of the GATT: the First Seven Rounds” in Amrita Narlikar, Martin Daunton and Robert M. Stern eds., The Oxford Handbook on the World Trade Organization, supra note 3, p. 109.
94.
Ibid, at pp. 107–108.
95.
Ibid.
96.
Ibid, at p. 108.
97.
Ibid.
98.
Ibid.
99.
Angus Maddision (2007), Contours of the World Economy, I-2030 AD: Essays in Macro-Economic History, Oxford University Press, p. 81.
100.
Robert Mark Spaulding (2016), “Chapter 23: Trade, Aid, and Economic Warfare” in Richard H. Immerman, Petra Goedde eds., The Oxford Handbook of the Cold War, Oxford University Press, p. 397.
101.
Ibid.
102.
Ibid.
103.
Ibid, at pp. 398–400.
104.
The political détente however collapsed during 1975–1980 and the second cold war continued from 1981 to 1985. Generally, during 1985–1991, the cold war gradually came to an end. In spite of the fluctuation of political relation, trade between different blocs was continued. Carole K. Fink, Cold War—An International History, supra note 9, pp. 174–229.
105.
Ibid, at pp. 150–151.
106.
Ibid, at p. 149.
107.
Robert Mark Spaulding, “Chapter 23: Trade, Aid, and Economic Warfare”, supra note 100, p. 397.
108.
Ibid, at p. 401.
109.
Ibid, at p. 399.
110.
Ibid, at p. 401.
111.
GATT, Anti-dumping and countervailing duties: reports of group of experts, supra note 88, p. 9.
112.
Francis Snyder, The EU, the WTO and China — Legal Pluralism and International Trade Regulation, supra Chap. 3, note 1, p. 226.
113.
Ibid.
114.
Article 2 (g), the Kennedy round AD Code.
115.
Francis Snyder, The EU, the WTO and China—Legal Pluralism and International Trade Regulation, supra Chap. 3, note 1, p. 228.
116.
Ibid.
117.
Ibid, at p. 229.
118.
Ibid.
119.
Ibid.
120.
Stephen D. Krasner (1983), International Regimes, Cornell University Press, p. 2.
121.
Johannes Friedrich Beseler, A.N. William, Anti-dumping and Anti-subsidy Law: The European Communities, supra Chap. 3, note 34, pp. 11–13.
122.
Donald L. Cuneo, Charles B. Mauel, Jr, “Roadblock to Trade: The State-controlled Economy Issue in Anti-dumping Law Administration”, supra note 65, p. 290.
123.
19 C.F.R. §53.5(b), 1969.
124.
Department of the Treasury (1966), Fur Felt Hat Bodies form Czechoslovakia, Notice of Intent to Discontinue Investigation and to Make Determination that No Sales Exists below Fair Value, Fed. Reg.31: 15,024.
125.
Francis Snyder, The EU, the WTO and China—Legal Pluralism and International Trade Regulation, supra Chap. 3, note 1, p. 231.
126.
19 C.F.R. §153.5(b), 1973.
127.
Trade Act of 1974, Pub. L. No. 93–618, title III, §321, 88 Stat. 2043–49, 1975.
128.
Gary N. Horlick, Shannon S. Shuman, “Nonmarket Economy Trade and US Antidumping/Countervailing Duty Laws”, supra note 69, p. 810.
129.
Trade Act of 1974, Pub. L. No. 93–618, title III, §321, 88 Stat. 2047, 1975.
130.
Fed. Reg (1976), 41: 26,203.
131.
The revised regulatory provisions provided: “§ 153.7 Merchandise from state-controlled-economy country If the information available indicates to the Secretary that the economy of the country from which the merchandise is exported is state-controlled to an extent that sales or offers of sales of such or similar merchandise in that country or to countries other than the United States do not permit a determination of fair value under §§ 153.2, 153.3, or 153.4, the Secretary shall determine fair value on the basis of the normal costs, expenses, and profits as reflected by either: (a) The prices, determined in accordance with Section. 205(a) and Section 202 of the Act (19 U.S.C. 164 (a), 161), at which such or similar merchandise of a non-state-controlled-economy country or countries including the United States, is sold either (1) for consumption in the home market of that country or countries, or (2) to other countries, including the United States; or (b) The constructed value of such or similar merchandise in a non-state-controlled-economy country or countries, including the United States, as determined under Section 206 of the Act (19 U.S.C. 165). The prices or the constructed value of the United States produced merchandise generally will be utilized where sales or offers for sale of such or similar merchandise in any other non-state-controlled-economy country do not provide an adequate basis for comparison.” Fed. Reg (1976), 41: 26,205.
132.
Ibid.
133.
Department of Treasury (1975), Electric Golf Cars from Poland, Determination of Sales at Less than Fair Value, Fed. Reg. 40: 25,497.
134.
Robert L. Meuser(1979), “Note: Dumping from ‘Controlled Economy’ Countries: The Polish Golf Car Case”, Law and Policy in International Business, 11: 784–787; United States International Trade Commission, Electric Golf Cars from Poland, USITC Publication 1069, June 1080, p. A-4 https://www.usitc.gov/publications/other/pub1069.pdf. Accessed 8 Sept 9 2023.
135.
Robert L. Meuser, “Note: Dumping from ‘Controlled Economy’ Countries: The Polish Golf Car Case”, ibid, at p. 788.
136.
Ibid.
137.
Peter D. Ehrenhaft (1997), “US Policy on Imports from Economies in Transition” in Peter D. Ehrenhaft, Brian Vernon Hindley, Constantine Michalopoulos and L. Alan Winters, Polices on Imports from Economies in Transition: Two Case Studies, Washington D. C, the World Bank, p. 23.
138.
Ibid.
139.
Ibid.
140.
Ibid, at pp. 23–24.
141.
United States International Trade Commission, Electric Golf Cars from Poland, supra note 134, p. A-51.
142.
Fed. Reg. (1978), 43: 35,263.
143.
This approach was not confirmed by US statutory rules until 1988, in Section 1318 of the Omnibus Trade and Competitiveness Act of 1988, which amended Section 773(b) of the Tariff Act of 1930. Section 1318 retained the basic idea of the Treasury’s regulatory rules on this approach, but added a particularly difficult requirement—the surrogate country chosen for the valuation of the factors of production should also be a producer of the merchandise. This requirement limits the selection of surrogates and often skews the comparability of the selected economy. Section 1318, The Omnibus Trade and Competitiveness Act of 1988, Pub. L. No.100–418, 102 Stat. 1107, HR 4848, 100th Congress, 2nd session 1988.
144.
Fed. Reg. (1978), 43: 35,263.
145.
In 1980, AD regulations contained in 19 C.F.R. Part 153 were deleted, and these provisions were codified at 19 C.F.R Part 353. This change was made to conform to the transfer of responsibility for AD investigation from the Customs Service, the Department of Treasury to the International Trade Administration, the Department of Commerce. The newly codified regulations effected the changes made by the Trade Agreements Act of 1979 and the reorganization Plan No.3 and adopted in part regulations proposed by the Customs Service. Department of the Treasury, Proposed Revision of the Customs Regulations Relating to Anti-dumping Duties, Fed. Reg. (1979), 44: 59,742; see also Fed. Reg. (1980), 45: 8182–8184.
146.
19 C.F.R. §§353.8(a)(1),(2), (b)(1), 1980.
147.
19 C.F.R. §353.8(b)(2), (c), 1980.
148.
19 C.F.R. §353.8(b)(3), 1980.
149.
Cuba was an original party to the GATT 1947. In January 1959 a revolution led by Fidel Castro broke out in Cuba, which toppled the previous government, and Cuba then turned to the USSR. Carole K. Fink, Cold War—An International History, supra note 9, p. 112.
150.
The Protocol for the Accession of Yugoslavia to the General Agreement on Tariffs and Trade was done at Geneva on 20 July 1966 and entered into force on 25 August 1966. Nonetheless, the Declaration on the Provisional Accession of the Federal People’s Republic of Yugoslavia to the General Agreement on Tariffs and Trade was done at Geneva on 13 November 1962 and entered into force on 27 April 1963. The Contracting Parties to the GATT, GATT Status of Legal Instruments, Geneva, GATT/LEG/1, Supplement No. 15, December 1993, pp. 3–10.1, pp. 4–6.1.1.
151.
Kazimierz Grzybowski, “The Foreign Trade Regime in the Comecon Countries Today”, New York University Journal of International Law and Politics, Vol.4, 1971, pp.186–187. Concerning Yugoslavia’s economic reforms, see also paragraphs 6, 7, 9, 10, 11, and 16 of the Report of the Working Party on the Accession of Yugoslavia.
152.
Kazimierz Grzybowski, “The Foreign Trade Regime in the Comecon Countries Today”, ibid.
153.
Gary N. Horlick, Shannon S. Shuman, “Nonmarket Economy Trade and US Antidumping/Countervailing Duty Laws”, supra note 69, p. 809.
154.
Though few cases existed, the US Treasury normally used home prices in Yugoslavia since it determined that “the economy of Yugoslavia is not state-controlled to an extent that sales or offers of sales of such or similar merchandise in Yugoslavia do not permit a determination of foreign market value under Section 205(a) of the Act 19 U.S.C. 164 (a)”. Department of Treasury, Animal glue and inedible gelatin from Yugoslavia, Fed. Reg (1977), vol. 42, p. 39,288. Exceptional cases, however, also existed, such as the case Copper Sheet from Yugoslavia, which used home market value in Western European countries instead. Department of Treasury, Copper Sheet from Yugoslavia, Fed. Reg. (1964), 29: 8149.
155.
Poland proposed its request for accession on 31 March 1959. Preamble, Protocol for the Accession of Poland to the GATT, GATT publication, 30 June 1967, BISD 15S/46. Romania proposed its request on 22 July 1968. Preamble, Protocol for the Accession of Romania to the GATT, GATT publication, 15 October 1971, BISD 18S/5. Hungary proposed its request on 9 July 1969, Preamble, Protocol for the Accession of Hungary to the GATT, GATT publication, 8 August 1973, BISD 20S/3.
156.
Francis Snyder, The EU, the WTO and China—Legal Pluralism and International Trade Regulation, supra Chap. 3, note 1, pp. 232–233.
157.
Paragraph 13, Report of the Working Party on the Accession of Poland.
158.
Paragraph 13, Report of the Working Party on the Accession of Romania.
159.
Paragraph 18, Report of the Working Party on the Accession of Hungary.
160.
Richard O. Cunningham (2005), Trade Policy and Strategies, Cameron May, p. 162.
161.
Alexander Polouektov, “‘The Non-market Economy’ Issue in International Trade in the Context of WTO Accession”, supra note 16, p. 12.
162.
Francis Snyder, The EU, the WTO and China—Legal Pluralism and International Trade Regulation, supra Chap. 3, note 1, p. 232.
163.
Paragraphs 4, 11, Working Party Report on the Accession of Hungary.
164.
Paragraph 7, Working Party Report on the Accession of Poland; Paragraph 1, Annex B, Protocol for the Accession of Poland to the GATT; Paragraph 4, Working Party Report on the Accession of Romania; Paragraph 1, Annex B, Protocol for the Accession of Romania to the GATT.
165.
Paragraph 3, Protocol for the Accession of Poland to the GATT; Paragraph 3, Protocol for the Accession of Romania to the GATT; Paragraph 4, Protocol for the Accession of Hungary to the GATT.
166.
Paragraph 4, Protocol for the Accession of Poland to the GATT; Paragraph 4, Protocol for the Accession of Romania to the GATT; Paragraph 5, Protocol for the Accession of Hungary to the GATT.
167.
John H. Jackson (1997), The World Trading System: Law and Policy of International Economic Relations, 2^nd Edition, the MIT Press, p. 331.
168.
Paragraph 8, Protocol for the Accession of Poland to the GATT; Paragraph 7, Protocol for the Accession of Romania to the GATT; Paragraph 8, Protocol for the Accession of Hungary to the GATT.
169.
Paragraphs 5, 6, and Annex A, Protocol for the Accession of Poland to the GATT; Paragraph 5 and Annex A, Protocol for the Accession of Romania to the GATT; Paragraph 6 and Annex B, Protocol for the Accession of Hungary to the GATT.
170.
This idea is explicitly expressed in Paragraph 18, Working Party Report on the Accession of Poland, Paragraph 17, Working Party Report on the Accession of Romania, and Paragraph 21, Working Party Report on the Accession of Hungary.
171.
The Protocol for the Accession of Poland to the GATT entered into force on 18 October 1967. The Protocol for the Accession of Romania entered into force on 14 November 1971. And the Protocol for the Accession of Hungary entered into force on 9 September 1973. The Contracting Parties to the GATT, GATT Status of Legal Instruments, supra note 150, p. 3–15.1, p. 3–18.1, p. 3–20.1.
172.
Edmond M. Ianni, “State Trading: Its Nature and International Treatment”, supra note 32, p. 53.
173.
The Contracting Parties to the GATT, GATT Status of Legal Instruments, supra note 150, p. 10–4.2.
174.
Ibid.
175.
Ibid, at p. 16–9.3, p. 16–4.6.
176.
Alexander Polouektov, “‘The Non-market Economy’ Issue in International Trade in the Context of WTO Accession”, supra note 16, p. 11.
177.
Terence P. Stewart, The GATT Uruguay Round: A Negotiating History (1986–1992), supra Chap. 3, note 19, p. 1435–1461.
178.
The full title of the 1979 AD Code is “Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade”. The full title of the Subsidies Code is “Agreement on Interpretation and Application of Articles VI, XVI and XXIII of the General Agreement on Tariffs and Trade”.
179.
It is noted in the footnote 33 of the Subsidies Code that “constructed value means cost of production plus a reasonable amount for administration, selling and any other costs and for profits”.
180.
Johannes Friedrich Beseler, A.N. William, Anti-dumping and Anti-subsidy Law: The European Communities, supra Chap. 3, note 34, p. 18.
181.
Ibid, at p. 17–18.
182.
Trade Agreements Act of 1979, Pub. L. No.96–39, 93 Stat.144, July 26, 1979.
183.
The Tariff Act of 1930, title VII, Subtitle D, Sec.773(c), codified at 19 U.S.C. §1677b, (Supp. III 1979).
184.
Article 2, Commission Recommendation 158/79/ECSC, OJ L 21, 30.1.1979, p. 14.
185.
The Commission Recommendation 77/329/ECSC is the first ECSC AD legislation which provided for the analogue application to coal and steel products of the principles and definitions contained in Regulation (EEC) No 459/68. Concerning the NME treatment, Article 3(6) of the Commission Recommendation 77/329/ECSC, which was amended by the Commission Recommendation 158/79/ECSC, set:“ [i]n the case of imports from countries where trade is on a basis of near or total monopoly and where domestic prices are fixed by the State, account may be taken of the fact that an exact comparison between the export price of a product to the Community and the domestic prices in that country may not always be appropriate, since in such cases special difficulties may arise in determining price comparability of prices.” Article 3(6), Commission Recommendation 77/329/ECSC, OJ L 114, 5.5.1877, p. 6.
186.
Article 1(2), Commission Recommendation 158/79/ECSC, OJ L 21, 30. 1. 1979, p. 14.
187.
Council Regulation (EEC) No 459/68, OJ L 93, 17.4.1968, p. 1.
188.
Council Regulation (EEC) No 1681/79, OJ L 196, 2.8.1979, p. 1.
189.
Ibid, at p. 2.
190.
Council Regulation (EEC) No 2532/78, OJ L 306, 31. 10. 1978, p.1; Council Regulation (EEC) No 925/79, OJ L 131, 29. 5. 1979, p. 1.
191.
Francis Snyder, The EU, the WTO and China—Legal Pluralism and International Trade Regulation, supra Chapter 3, note 1, p. 252.
192.
The Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 100–418, 102 Stat.1107, HR 4848, 100th Congress, 2nd session, 1988.
193.
Ibid, Section 1316.
194.
Konrad Zweig (1980), The Origins of the German Social Market Economy—the Leading Ideas and the Intellectual Roots, Adam Smith Institute, London and Virginia, p. 15–19.
195.
Norbert Kloten (1955), “Zur Typenlehre der Wirtschafts-und Gesellschaftsordnungen”, in Ordo, 7: 123, cited in Kurt Schmidt, “The Public Sector in a Market Economy”, in Alan T. Peacock, Hans Willgerodt (eds) (1898), German’s Social Market Economy: Origins and Evolution, Macmillan for the Trade Policy Research Center, London, p. 195.
196.
Kurt Schmidt, “The Public Sector in a Market Economy”, ibid.
197.
As Adam Smith indicated, that there must always be a certain mixture of principles, since no economic activities can be coordinated optimally by only one system of economic control. The Odoliberals also admitted that all real economic systems displayed a mixture of public as well as private economic leadership and public and private ownership. Egon Tuchtfeldt, “Will Communism and Capitalism Become Similar Economic Systems?”, in Alan T. Peacock, Hans Willgerodt eds., German’s Social Market Economy: Origins and Evolution, supra note 195, p. 87.
198.
Rolf H. Hasse, Hermann Schneider, Klaus Weigelt (eds) (2008), Social Market Economy: History, Principles and Implementation—From A to Z, Ferdinand Schöningh, Paderborn, Germany, p. 36.
199.
Ibid.
200.
Ibid, at p. 38; Alfred Müller-Armack, “The Meaning of the Social Market Economy”, in Alan T. Peacock, Hans Willgerodt eds., German’s Social Market Economy: Origins and Evolution, supra note 195, p. 82.
201.
Ibid, at p. 37.
202.
Konrad Zweig, The Origins of the German Social Market Economy: The Leading Ideas and Their Intellectual Roots, supra note 194, pp. 15–18.
203.
Ibid, at p. 17.
204.
Ibid, at p. 8.
205.
Ibid, at p. 42.
206.
Francis Snyder, The EU, the WTO and China—Legal Pluralism and International Trade Regulation, supra Chapter 3, note 1, p. 254.
207.
Ibid, at p. 255; Johannes Friedrich Beseler, A.N. William, Anti-dumping and Anti-subsidy Law: The European Communities, supra Chap. 3, note 34, p. 13.
208.
Ibid.
209.
John Maslen (1986), “The European Community’s Relations with the State-trading Countries of Europe 1984–1986”, Yearbook of European Law, 6(1): 345–346.
210.
Longyue Zhao, Yan Wang, “Trade Remedies and Non-Market Economies: Economic Implications of the First US Countervailing Duty Case on China”, supra note 19, p. 13.

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Shao Long

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Long, S. (2024). Pre-WTO Era Evolution of Non-Market Economy Treatment Rules and Practices. In: Rationality and Legality of Non-market Economy Treatment in Antidumping Law . Modern China and International Economic Law. Springer, Singapore. https://doi.org/10.1007/978-981-99-8292-9_4

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