introduction

Shuangqian Group Co., Ltd. was once the only corporate representative invited to give a keynote speech at the National Trade Remedy Working Conference of the Ministry of Commerce of China. We helped them actively use all legal remedies available to them, such as the United States Department of Commerce, the United States Court of International Trade, and the WTO Dispute Settlement Body, to persevere and actively defend, and obtain the lowest single preferential anti-dumping and countervailing tax rate in multiple anti-dumping cases against China from the United States, Not only has it safeguarded its legitimate export rights and interests, but it has also expanded overseas markets and achieved significant competitive advantages and benefits.

1、 Basic facts of the case

On November 8, 2013, the United States Department of Commerce officially filed a fifth administrative review investigation on anti-dumping of imported new pneumatic off highway tires (hereinafter referred to as "OTR tires") originating in China. On December 16, 2013, the United States Department of Commerce decided to select Shuangqian Group Co., Ltd. (hereinafter referred to as "Shuangqian"), the largest exporter in China's exports, as one of the mandatory responding enterprises in this case. Shuangqian submitted an anti-dumping questionnaire within the specified time and passed the on-site inspection of the United States Department of Commerce. On April 15, 2015, the US Department of Commerce announced the final ruling of this case, ruling that our client Shuangqian did not receive a separate tax rate due to being a state-owned holding enterprise, thereby obtaining the same 105.31% China's highest punitive universal tax rate as all other Chinese non responding enterprises.

On April 28, 2015, we assisted our client Shuangqian in filing a lawsuit in the United States Court of International Trade, alleging that the United States Department of Commerce ruled in the fifth administrative review of the anti-dumping of OTR tires imported from China that Shuangqian's application of China's highest punitive general tax rate of 105.31% was not in accordance with United States law.

In this case, Shuangqian, as the plaintiff, made the following three claims in the indictment: (a) The United States Department of Commerce has no right to rule that Shuangqian is subject to the 105.31% Chinese general dumping margin, because this ruling is based on an untimely assumption that all Chinese exporters are under the centralized control of the Chinese government and should be given a single anti-dumping tax rate. The double money claim, which was based on the national conditions of China in the late 1980s and was applied in the early 1990s, is now virtually invalid, and contradicts the subsequent ruling by the Ministry of Commerce that China has become market oriented and can be subject to countervailing duties; (b) The findings of the US Department of Commerce that the Chinese government controls dual currency export activities are not supported by evidence; (c) The United States Department of Commerce does not use the dumping margin calculated based on Shuangqian's own data, but applies "other available facts" and "adverse presumption" to determine that Shuangqian is subject to an anti-dumping tax rate of 105.31%. This practice is completely inconsistent with legal provisions. Shuangqian claims that "the Ministry of Commerce has found that the actual dumping margin of 0.14% for Shuangqian is minimal" and Shuangqian actively cooperates with the review investigation, so the Ministry of Commerce should not apply a dumping margin of 105.31% for Shuangqian.

Recently, the United States Court of International Trade issued a judgment in this case, ruling that Shuangqian won the case completely. The court ordered the Ministry of Commerce to directly decide that a slight dumping margin of 0.14% should be applied to Shuangqian.

2、 Legal analysis

The main reason for the decision of the United States Court of International Trade in favor of Shuangqian is that when the United States Department of Commerce cites any "policy" in its final judgment, when the application of the "policy" violates United States laws and regulations, it cannot prove that the decision made by the Department of Commerce in applying the "policy" is legitimate.

In this case, the policy cited by the United States Department of Commerce cannot reasonably explain its two inconsistent contradictory decisions, namely, the contradiction between the decision of the Department of Commerce to conduct a separate investigation of enterprises that withdraw Shuangqian as a mandatory response to the lawsuit and the decision not to apply a separate dumping margin to Shuangqian. The conclusions reached by the United States Department of Commerce based on relevant policies violate the relevant provisions of the United States Code and the Statement of Administrative Measures of the Department of Commerce attached to the Uruguay Round Agreement Act.

According to the above-mentioned United States laws and regulations, the United States Department of Commerce shall calculate a separate dumping margin for exporters or producers subject to a "sample investigation". Regardless of what dumping margin the Ministry of Commerce decides to apply to Shuangqian, whether or not the dumping margin is also the dumping margin that the Ministry of Commerce decides to apply to "China generally", the Ministry of Commerce shall determine a separate dumping margin for Shuangqian and apply it to Shuangqian, unless there are exceptions provided by law, but there are no exceptions in this case.

3、 Counsel's advice

Although in accordance with United States judicial procedures, the judgment in this case has significant jurisprudence guiding significance for completely reversing the generally highest punitive tax rate imposed on state-owned enterprises in China in all future U.S. anti-dumping cases against China, Basically, it will be ruled by the Ministry of Commerce that it cannot obtain the eligibility for separate preferential tax rates because it cannot prove in fact that it is not controlled by the state, thereby obtaining the highest punitive tax rate in China. Therefore, for state-owned joint-stock enterprises, the results of responding to and not responding to anti-dumping lawsuits in the United States are often the same, which also leads to a large number of state-owned enterprises being unable to respond to lawsuits, thus in fact being deprived of the opportunity to defend and strive for preferential tax rates.

Although in a recent expert panel ruling by the WTO Dispute Resolution Body, it was ruled that the United States did not grant separate tax rates to multiple Chinese state-owned enterprises, including our customers, which were not paid for separately, completely inconsistent with the relevant provisions of the WTO anti-dumping agreement and previous jurisprudence, given the current more aggressive trade protection policies of the new United States government towards China and the cumbersome and lengthy follow-up procedures for implementing the WTO ruling, It is unclear when the United States will be willing to comply with the WTO ruling to change its discriminatory practices in anti-dumping against China. As the United States is a case law country, its judicial precedents have absolute legal effect and timeliness for the United States administrative and law enforcement departments, and judicial decisions often have more immediate effects on changing the discriminatory and illegal policies of the United States government against China.

We anticipate that the new US government will soon introduce a series of increasingly complex and harsh trade protection policies against China, which may even evolve into a comprehensive trade war. Through this case, we should be able to see that under the current situation where various sectors of the United States denounce the new government of the United States for ignoring the rule of law, Chinese enterprises fully utilize the United States judicial review mechanism to balance the discriminatory trade protection policies of the United States government against China is an important tool that we should pay high attention to in the future.

(This article is translated by software translator for reference only.)