The Analogue Method Comes Unfastened – The Awkward Space between Market and Non-Market Economies in EC-Fasteners (Article 21.5)

Abstract

The compliance Appellate Body decision marks the latest twist in the long-running EC-Fasteners dispute. The question before the AB is whether the European Union complied with earlier rulings on its antidumping procedures. Broadly, the AB found that the EU had not, generally ruling in favor of the People’s Republic of China. In the process, the AB raised interesting questions about what it means to be a Non-Market Economy (NME) in the WTO. While NME status has traditionally led to large dumping margins, the AB approach in this case may lessen the consequences for China. Among other things, the case raises the interesting and important question of how pervasive the taint of NME status may be when calculating margins. By allowing for adjustments of certain costs, the AB seems to constrain the more draconian analogue country methodology of calculation.