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  • Writer's pictureIra Mahajan

Adverse Facts Available: Deterrence or Punishment? : US — Facts Available

On 21 January 2021, a Panel Report was circulated titled “United States - Anti Dumping and Countervailing Duties on Certain Products and the Use of Facts Available” (DS539).

Korea had filed a complaint against the United States concerning six investigations which resulted in the imposition of anti-dumping and countervailing duty measures by the United States Department of Commerce (“USDOC”) on (i) corrosion-resistant steel products, (ii) cold‑rolled steel flat products, (iii) hot‑rolled steel flat products, and (iv) large power transformers (LPTs). Korea’s claims were as follows:

  1. “As applied” claim against the trade remedy measures: Korea claimed that the conditions for the USDOC’s resort to facts available were not met and that the USDOC’s subsequent selection of the replacement facts for the missing information was in violation of the Anti-Dumping Agreement and the Agreement on Subsidies and Countervailing Measures (“SCM Agreement”); and

  2. “As such” claim against the trade remedy measures: Korea made a complaint against an unwritten measure concerning the use of ‘adverse facts available’ in trade remedy investigations by the USDOC. The focus was on USDOC’s selection of facts available where a finding of non-co-operation by exporters/producers had been made.

Korea had also initially challenged “as such” provisions of the domestic law of the United States relating to the USDOC’s use of facts available and the drawing of adverse inferences. However, Korea did not pursue these claims.

Q. What is the difference between As Such and As Applied Claims?

Q. What are ‘facts available’ and ‘adverse facts available’?

Q. Are ‘adverse facts available’ permissible under WTO law?

Under Article 6.8 of the Anti-Dumping Agreement and Article 12.7 of the SCM Agreement, the process which must be adopted by investigating authorities in case of non-cooperation is as follows:

Therefore, reliance on adverse facts available could be permissible, if the intention is not to punish non-cooperation.

As Applied Claims: USDOC did not meet the requirements to resort to Facts Available in six trade remedy investigations.

As Such Claims: Unwritten Measure of ‘automatic’ usage of Adverse Facts Available on Non-Cooperation of Interested Party.

Q. What is the difference between As Such and As Applied Claims?

An as such challenge can be brought against an unwritten measure. The burden of proof placed on the Member indicating the existence and WTO-inconsistency of the measure requires the precise content, attribution, and general and prospective nature of the rule or norm to be defined. In this particular dispute, the Panel permitted the use of written measures as evidence to establish the existence of an unwritten measure.

However, Korea was unable to establish the existence of an unwritten Adverse Facts Available rule or norm.

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