To Be or Not to Be with Targeted Dumping

Abstract

The Appellate Body (AB) in US – Washing Machines clarified the concept of targeted dumping and the way to apply the pertinent part of Article 2.4.2. Above all, by limiting the applicable scope for the second sentence of Article 2.4.2 to ‘pattern transactions’ which consist of only low-priced export transactions, the Appellate Body clarifies that the remedial action for targeted dumping is dumping margins calculated by the W-T calculation methodology only for patterned exportations. Despite the AB rulings, it is still vague how to define ‘patterned export’ whose prices are significantly lower than those for other transactions. Given that the designation of targeted dumping critically hinges on the arbitrary policy of investigating authorities, such ambiguities may seriously impugn the second sentence’s feasibility in terms of its own function, i.e. unmasking ‘targeted dumping’. It remains to see whether the targeted dumping provision, especially with the AB interpretation in US – Washing Machines, can be applied as intended by drafters as well as by the WTO jurisprudence.