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Problems and Analysis of Countervailing Duties

by Suleman
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Table of contents

  • Introduction
  • Brief presentation on the development of countervailing duties
    • The General Agreement on Tariffs and Trade (GATT)
    • The Tokyo Round Subsidies Code
    • The World Trade Organization
  • Administrative aspects of countervailing duties
    • Categories of subsidies
    • Enforcement process
    • Remedies
  • Problems of dealing with countervailing duties
    • On cases of distributive justice
    • The United States countervailing duties practices
  • Conclusion

Introduction

The concept of countervailing duties roots from the principle of equity.  Countervailing duties, in the main aims to enhance and develop fair trade, advance global trade and interests and to promote equal opportunities among nations.

Countervailing duties are quotas or taxes paid from an importing party to the country of origin. This duties are essentially levied on the grounds that the goods or products being exported have been unfairly subsidised. Through doing so, the importing party will neutralise the consequences of unequal market practises.

Countervailing tasks operate in a number of respects. They can be imposed on manufactured products by manufacturers that have not been exposed to income taxes or turnover taxes. Countervailing duties can also be levied on domestic manufacturing of the export of products for the gain of international suppliers. Generally, the idea of countervailing duty is to shield both importers and exporters.

Problems and Analysis of Countervailing Duties

However, in the framework of uneven development, how possible can the concept of fairness be pursued? Many believes that along with other trade instruments, the concept and implementation of the countervailing duties can be prone to abuse and misuse. Furthermore, countervailing duties may only serve few giants of trade but may be irrelevant to small export-oriented countries falling under the bracket of so-called less developed and developing countries.

This paper aims to delve on the analysis of the countervailing duties based how these are being implemented, enforced and resolved under the umbrella of the World Trade Organization. Also, this paper will give particular emphasis on the practices of the United States of America, as a country that tails countervailing duties forcefully[1] compared to other countries in the world.

1. Brief Presentation on The Development of Countervailing Duties

The General Agreement on Tariffs and Trade (GATT)

There were only two provisions in the General Agreement on Tariffs and Trade that categorically regulate subsidies. These are Articles VI and XVI.

GATT Article VI principally provides that the importing country may levy countervailing duties on subsidized imports if these may threaten or be the source of material injury to an established domestic industry[2]. This Article generalizes the rules on the application of antidumping and countervailing duties. It disapproves the export-sales under normal value, especially when these cause or threaten the material injury. It also describes the basis for the determination of sales below normal value: when export price is less than comparable price.

According to Article VI, when these criteria are fulfilled, the importing country is entitled to levy an antidumping duty[3].

This Article however has been open to different interpretations and inconsistent practices due to its profound formulation. Much more, countries like Canada and the US, despite being the two of the biggest users of antidumping duties excuse themselves from being bound to this provision asserting that their domestic antidumping laws were much ahead of the GATT.

Meanwhile, Article XVI stipulates that all subsidizing countries, either the increase their exports or reduce their imports are duty-bound to be notified and follow a consultation procedure for limiting subsidization that may cause prejudice to other countries[4].

However, because Article XVI was stated in a slack one-paragraph provision, this article was widely taken for granted by many countries on the basis that states were reluctant if not playing it safe as the gesture for notifying granting of subsidy would lead to the imposition of countervailing duties on their products[5]. 

Furthermore, specific sections of Article VXI such as three stipulates the responsibility of the contracting parties to avoid the grant of subsidies on exports of primary products, and if ever, subsidy is inevitable, contracting parties must guarantee that the application of its application should not result in more than a decent portion in world export exchange of the product in favor of the contracting party[6].

The Tokyo Round Subsidies Code

The first general comprehensive plurilateral regulations agreed upon on subsidies and countervailing duties were adopted in 1979 through the Tokyo Round Subsidies Code[7].  The Tokyo Round Subsidies Code signaled a focal point in the advancement of the discipline on subsidies and countervailing duties.

The Tokyo Round Subsidies Code on the Agreement on the Interpretation and Application of Articles VI and XXII of the GATT, was recognized as a significant gain by trade negotiators. It provided the landmark rule on administering the conduct of proceedings about export subsidies in relation to domestic complaints[8]. This Agreement matched to the provisions of the Tokyo Round Anti-Dumping Code wherein rules on subsidies were specified and export subsidies were prohibited.    

Although the Tokyo Round Subsidies Code served well in terms of elaborating GATT’s obligations on subsidies, it is however, fall short in terms of its attitude towards domestic subsidies. On one hand that it recognizes that domestic subsidies may be useful in the promotion of important objectives of economic and social policy, on the other hand, it also warns against the negative effect it may cause to the interests of other signatories[9].

Tokyo Round Subsidies Code’s profound position is prevalent in its Article 11 when it combined important goals advanced by the governments through domestic subsidies at the same time pursuing them to stay away from practicing domestic subsidies that could affect negatively the conditions of the normal trade competition[10]. The code encourages balance, yet how and where the balance was to be achieved were left unsaid.

The World Trade Organization

As the global trade advances, so is the concept of countervailing duties. The World Trade Organization (WTO) introduced a new set of rules on subsidies dubbed as the Agreement on Subsidies and Countervailing Measures. In the main, Agreement on Subsidies and Countervailing Measures improved the rules of the Tokyo Round Subsidies Code in all aspects, as it introduced, for the first time, more precisely the definition of subsidy and the concept of specificity[11].

Under the World Trade Organization, dumping is being defined as the sale of goods in an importing nation at a price below normal value. This is considered to be price discrimination in favor of buyers in the importing nation because they can sell the products below their normal value[12]. 

From a bounty or subsidy granted either directly or indirectly upon the manufactures, either in the production or export of any merchandise arise the concept of subsidization. The GATT Agreements allow importing nations to neutralize dumping and subsidization with the imposition of import duties that would otherwise violate negotiated GATT tariffs ceilings[13].

The Subsidies and Countervailing Measures Agreement offered a clear description of the grant as a government (or other public institution) financial assistance or donation or some other tax or market benefit that would convey a benefit to a particular industry or community of producers.[14].

The difference between dumping and countervailing duties was one of the early issues as far as regulation is concerned.[15].

Dumping and subsidisation put together a highly political nature in the context of countervailing law, since the fundamental distinction between the two is that dumping is an operation of companies, whereas subsidisation is an institutional activity of the state or governments. Thus, placing a countervailing duty on government goods is a vengeful step to be taken[16].    

The World Trade Organizations’ definition stands up above the rest as it succinctly pointed out the subsidies must be provided to fixed industries and should not be made available to all industries and firms. The Agreement also elaborates on the idea of subsidy which became inclusive of other financial benefits other than direct payments from governments. Other financial benefits may include equity positions in firms, providing loans or loans guarantees, purchasing a firm’s goods or services or foregoing due government revenue. More importantly, the definition provides that the subsidy must put across a clear-cut benefit for the country parties[17].

Generally, the Agreement on Subsidies and Countervailing Measures actually defines subsidies that are determinant of whether and to what extent subsidies are legitimate and are clearly regulated with different procedures and remedies in respect to subsidies varying categories.

II. Administrative Aspects of Countervailing Duties

There are a lot of subsidies labeled as an unfair trade. Subsidies tend to introduce distortions in prices and give a relative leverage to the subsidized firms in the international market. Thus, under the cloak of the cloak of the World Trade Organization, issues and concerns on subsidies were desired to be unanimously agreed upon by the Member States.

In cases countries could not resolve the issues concerning subsidy, then one recourse in to invoke countervailing duty equal to the net amount of the subsidy[18].

Categories of Subsidies

Subsidies have different classifications according to the Agreement on Subsidies and Countervailing Measures issued from the Uruguay Round[19]. These categories are non-actionable, actionable and prohibited.

Actionable subsidies are government assistance to firms or industries that comes in specific forms[20] and prejudicial or could cause serious injuries to trade[21].  Basically, actionable subsidies are objectionable on the grounds that they may damage the domestic industry of another country. Also, actionable subsidies can be revoked if they entail nullification or injury of benefits accumulated from other country, this includes benefits of concessions.    All export subsidies or subsidies party to the use of domestic products rather than imported goods are categorized as prohibited subsidy. And the non-actionable subsidies include wide-range of subsidies, for instance subsidy on education expenditures or infrastructure.

The WTO dispute settlement process dictates different rules in dealing with the different categories of subsidies. In the case of actionable subsidies, foe example, WTO rules call for the use of verifiable evidence that could prove the case for the material injury or serious prejudice on the aggrieved party of the subsidy.  This could take the form of a domestic industry harm or nullification. Distinct from the case of a prohibited subsidy that the challenging country is only required showing that the subsidy exists, regardless of injury[22]. Meanwhile, all contracting parties can appeal to the dispute settlement mechanism as far as actionable and prohibited subsidies are concerned, except for the non-actionable subsidies[23].

Nevertheless, all Member States are bound to notify the Committee on Subsidies and Countervailing Measures for all the three kinds of subsidies before implementing the said subsidies. This is to ensure that Member States will comply with the various conditions attach with the subsidy[24].

Enforcement Process

Notification and surveillance procedures of the countervailing duties were further developed under the facilitation of the Committee on Subsidies. Conceptually, notification duties in terms of regularity and content were enhanced.  With the guidance of the World Trade Organization, the right of the Member States to seek for information and clarification on a given program has increased a bit[25].

In cases of dispute that would be too much for the Subsidies Committee to handle, the dispute resolution process in relation to the different categories of subsidies would be organized.

An importing member has the final say if it wants to enforce countervailing duties. Although countervailing duties must be applied based on the principle of fairness and non-discriminatory. Countervailing duties, as a rule of thumb must not exceed the amount of the subsidy per se[26].

In the specific case of an offensive unfairness committed by foreign firms against domestic firms is identified as a case of countervailing laws. The complaint must establish that the foreign firms’ had an artificial leverage because of the use of government subsidies or other related benefits were able to out-compete domestic firms in their on market.

Dumping by foreign firms can be countered by importing nations through the imposition of anti dumping duty. Anti-dumping duty, however, should not be greater than the amount compared to the margin of dumping. Countervailing duty, on the other hand, is a response to subsidization. They can be levied on manufactured products as long as they are not higher than the value of the estimated bounty or subsidy calculated to have been given. However, before an anti dumping or countervailing duty may be imposed, GATT requires the importing nation to foremost indentify that the effect of the dumping or subsidization, as the case maybe, is such as to the cause or threaten material injury to an established industry, or is such as to retard materially the establishment of a domestic industry. This requirement is labeled as the injury test or material injury test[27].     

Generally speaking, though, the accusation of inequality is generally complicated to create and regulate. For one thing, it is still controversial, as it may fairly be claimed that the customers I export market are better off because of international subsidies, which can be viewed as foreign assistance rather than government subsidies in relation to balancing the rise in the wellbeing of the population of the importing country. Also, the claim of offensive unfairness is just literally, very hard to establish because any of the wide-range of scope relating to foreign government’s actions, it simply just has no natural limits to it[28].

Only claim that amid the latest guidelines and implementing procedures, the system still lacks efficiency. The most basic duty of Member States to at least notify has been neglected severely, over the years. The Subsidies Committee that theoretically should serve as a clearing house of peer control has in effect incapacitated, instead more confrontational approach has been resorted to by Member States, particularly involving big countries[29].

Also, the determination of the existence of the countervailing duties have gone difficult and tedious, especially using the cash-flow or benefit oriented approach. In practice, no consistent distinctions could be drawn between benefits accumulated from a foreign firm subsidy and competitive benefits from a simple subsidy.

Cash flow from a benefit-oriented perspective, government policies appear to offer a countervailable subsidy to a foreign firm if such intervention enables a foreign business to obtain anything other than what it received from the economy. The disparity that exists in the cash balance of the company as a consequence of the award is essentially the profit that will be dispersed by the countervailing duties. This will be inevitable, since countervailing duties appear to prorate the profit of the company and the countervailing duty over the sum of the products produced[30].  This approach engenders all sorts of largely uncontrollable difficulties.

Remedies

With regards to remedies, unilateral countervailing duty action or the two tracks of dispute settlement have been confirmed and developed. Although, in most cases, only one remedy can be applied, both the unilateral and two tracks can be used in solving an issue.

Perhaps, one of the biggest developments, so far, is that the World Trade Organization’s establishment of the review board that serves as part of the mechanism for dispute settlement. Panels and Appellate Body can no review complaints regarding subsidy programs adopted by Member States. Depending on the category of the subsidy, the body could directly recommend the removal of the effects of the subsidy, or to the extent of withdrawing such subsidy. They may also review and recommend concrete actions on national countervailing duty laws and how these are being applied by domestic agencies[31].

At the end of the day, while grappling with a settlement, the governments of the importing countries can select between policies either to try to persuade or encourage the country of origin to harmonise its laws to the standards prevailing in the importing nation; or to ensure that the importing country harmonises its laws to the level prevailing in the exporting country. They may even harmonise with any negotiated intermediate approach. Or, as a last resort, to arbitrarily enforce certain border controls, such as countervailing duty intended to neutralise whether unfair benefits are believed to be correlated with certain domestic policies differences[32].

Investigations of countervailing duties may be resolved on four basic outcomes. These resolutions may turn out to be determined either as positive or negative with the indication that a countervailable subsidy has or has not been identified. Cases can also be suspended, provided that there has been a previous agreement. Ultimately, cases can also be terminated. Usually, suspended cases are cases that were actually intended to offset or eliminate the subsidy. Upon agreement and when the petition has been dismissed, termination follows[33].

III. Problems of Dealing with Countervailing Duties

Subsidies and Countervailing duties both raise fundamental economic questions and concerns. Subsidies may either be good or bad, based on the economic perspective. It depends whether subsidies intend to improve economic efficiency in the framework of rectifying market failures or misallocated resources in the introduction of market distortions.

Also, countervailing duties can be a dubious response to subsidies, in many cases if it is the result on an unclear economic effect in the act of restoring market balance or a mere act of protectionism[34].    

There are also two underlying issues of countervailing obligation rules. One being that their unilateral existence serves to raise ever further the friction of commerce and, to some degree, the tendency of protectionism. The second is that countervailing duties do not discriminate between subsidies that are used for distortion and subsidies that are used for distortion actually harmless or benign[35].

On Cases of Distributive Justice

In situations when there are no efficiencies or equal trade justifications for countervailing duty rules, reasons emerge for countervailing duty laws that take into consideration the disturbing effect of products on disadvantaged members of society. One particular instance that countervailing duty may be acceptable and justifiable is the use of distributive justice or communitarian values. These cases are vindication on the use of the form of protectionism[36].

On the grounds of distributive justice, countervailing duty laws are justifiable as it attempts to improve the lot of least advantaged members of the society, as whole. However, it can be considered as a loophole of the concept of countervailing duty laws for this particular concern is irrelevant to countervailing duty laws.

The implementation of countervailing regulations based primarily on the factors of ill-advised subsidies for the uncovering of damage sustained by the sector as a consequence of global subsidies and factors that are much less adapted to the exploration of the effects on the least advantaged stakeholders of these sectors.

In reality, distributive justice issues for countervailing obligation proceedings have not been discussed when they may in principle be granted proper care and focus. In theory, those of the least advantaged members of society may be treated as worthy of security, since the danger to their wellbeing comes from subsidised imports rather than non-subsidized imports, and from domestic rivalry from other internal causes.

In the main, measures to vindicate communitarian ideals must be implemented in order to avoid the destruction of long-standing societies. However, countervailing tasks are not really tailored to this challenge. The present wording of the accident test reflects narrowly on the disruptive effect on the sector, without taking into account why these effects are incurred by dependent populations.

Generally, countervailing duties as a trade remedy must not be viewed as the most appropriate policy instrument in dealing with protection. In the main, the still most effective policies that must be developed and enhanced are the labor adjustment programs, or short-term security relief that more specifically and efficiently tackled the transfer costs incurred by workers[37].

The United States Countervailing Duties Practices

In 1994, the United States adopted the Final Act Embodying the Uruguay Round of Multilateral Trade Negotiations in the Uruguay Act. In this round of agreement the countervailing and subsidy laws were seen as the most comprehensive provisions. Apparently, they were also heavily influenced by the United States. In a consolidated effort to find ways to minimize conflict over subsidy use, avoid costly disputes and to secure reliance on countervailing duties, the settlement put heavy emphasis on the Subsidies Agreement[38].

There are considerable problems in the current implementation of countervailing duty laws by the United States of America. It has been said that the current and proposed countervailing duty practices in the country cannot be patterned with the foundation laid off which countervailing duties were conceptualize. The US’ rules promulgated and proposed, as far as countervailing duties are concerned seems to be alienated from the international norms of countervailing laws.

Conceptual differences have been established where the preferred representation has little imaginable connection to the impact that international subsidies have on the capacity of foreign companies to perform. It is apparent that internal inconsistencies are committed when the grasp was based on perception of competitive effects. This causes the override of cash flow principle which US has adopted[39].

The United States International Trade Commission deals with these problems by mainly estimating the effects on the US economy of removing countervailing duty orders. This is in response with the perception that import fall on those products that were previously covered under countervailing duty orders. Subsequently, consumers of these products substitute less expensive imported products for domestically produced goods. However, consequently also, the import competing firm in the United States could inevitably expect to lose sales, reduce production and lay off workers[40].

These actions of the United State have a much deeper impact in terms of income and employment effects. Inevitably, firms have to downstream, or for those who use the goods produced by once protected US industry, and no pay lower prices for foreign inputs, and then passed on to the consumer, no causes demand for their products to increase. Naturally, increased demands would mean increased to employment. Meanwhile, upstream industries which produce for the firms that were once protected lose for there ill be a decrease in demand for their products as production falls in the once protected firms they ere supplying[41]. 

The United States does not discriminate between subsidies that alter the cost of output of a company and subsidies that change the cost of production of a sector do not[42]. Furthermore, the US treats subsidy to decommission a plant to underwrite adjustment expenses or subsidies that have been used to help employees that have been unemployed or used to clean up environmental pollution in the same manner as income subsidies or production subsidies.

In terms of pro-rating subsidies and multiple product line of many foreign firms, the United States government has also become arbitrary. Especially in determining the amount of the subsidy in the case of equity infusions or loans, the US has resorted to capricious practice. The allocation of the benefit have been delayed over time instead when subsidy maybe given up front to alleviate affected sectors[43].

The question of causation, where the core weight of the matter is attributed to the effect of international products which are subsidised rather than to domestic manufacturers, is also a troublesome region. In the method, this procedure takes into consideration the strategic significance of the grant. Domestic producers need advance assessment of the economic significance of the subsidy, but this has been entirely taken for granted through a cash flow or a benefit-oriented strategy that the United States system on countervailing embraces[44].

Deficiencies of the Countervailing Duties

For others, countervailing duty regulations can serve as a useful restriction on wasteful subsidy activities. As budget incentives appear to skew business results and ultimately redirect money away from high-value applications, the issue worsens as there is political leverage on policymakers to match this by subsidising. In other situations, owing to lack of productivity, governments often subsidise the same industries of the market, wasting money and doing nothing to offer incentives to the beneficiaries of the grant. In line with this, the possibility of countervailing duty may very well address this dilemma.

However, a more realistic perception on the issues of subsidy and countervailing duties can easily refute this claim. From a more general framework, the concept of countervailing duties is much more deficient than effective in the true sense of trade instrumentalism.

 The ability of the countervailing duty to discourage wasteful subsidies is actually questionable. It is immeasurable and the specificity test may yield to more questionable results. For example, major subsidies to agricultural farmers could be non-specific to the advantage of more than a community of sectors, even if the agricultural sector is ideally viewed as skewed by subsidies in many countries[45].

To an importing nation, subsidized imports are usually beneficial, in general. This is regardless of the reason why imports are cheap. In terms of equality, an improvement in the terms of trade will definitely yield cumulative gain in the national economic welfare.  Also, the effect of countervailing duty in the area of welfare is usually undesirable, just like the welfare effect of any tariff[46].

There are special conditions that countervailing duties may result favorably to the importing nations. Countervailing duties do allow the removal of monopsony rents by more powerful states that controls the market power and have also the control over price of its imports. Also countervailing duties can make large nations afford useful protection to an industry that fits their strategic trade paradigm. However, the World Trade Organizations runs short in terms or limiting countervailing duties to the cases where possible benefits might arise. On the contrary, the gains of importing nations from making use of its power against monopsony or from protecting its strategic industries come at the expense of its trading partners and therefore, global welfare can decline rather than develop, if all the nations would pursue countervailing duty laws in the future.

In countervailing duty rule, there is a trade-off between welfare expenses that might occur in situations where penalties are actually used versus the welfare that emerges in other cases from the discouragement of unnecessary subsidy activities. As a consequence, the trade balance is not simple to discern as stated.

Countervailing duties was structured as a unilateral mechanism undertaken by importing nations without coordination. For eg, where the United States imposes countervailing duty on a commodity from another nation, it is typically the only country in the entire trade environment that can place countervailing duty on that product. Subsidized production can only be transferred to another sector which, in consequence, can most possibly harm the recipient of the subsidy in comparison to the value of the subsidy. Thus, the capacity of the countervailing duty to discourage wasteful subsidy practices is highly doubtful. Furthermore, the use of the countervailing duty is very much limited to the injury test that one can easily conclude that the prospect of uncoordinated countermeasures can lead to further protectionism[47]. Unfortunately, only powerful countries, which have the will and the capacity to protect their economies, can do this easily.

In this respect, not all subsidies can be viewed as excess. In reality, subsidies will raise the amount of exchange for free trade and promote global welfare. A subsidy scheme can only be called inefficient if it persuades a net allocation of money into the subsidised operation in comparison to a proper baseline. The global economy is still dominated by many trade barriers and that usually, the least develop countries are very much affected by these.

Countervailing responsibilities, when unilateral measures appear to invariably evaluate projects in isolation. By subjecting businesses to a broad variety of tax and subsidy schemes, the risk of distorting the firm’s actions in comparison to the ideal of a free economy often rises. As it is, many distortions may be offsetting[48].

In general, the World Trade Organization failed to it is clear that an importing nation must demonstrate that the subsidy programme has caused injury to its producers before imposing the concept of countervailing duty. In cases where subsidies are considered to be beneficial, specific policies must be addressed.

Conclusion

In the name of global welfare, the world seeks for the improvement of policies. It is in this light that revisions to the subsidy and countervailing duty laws must be enforced. In doing so, the need to evaluate the larger economic spectrum must also be put in a primary consideration. The need to evaluate the larger net economic effects of both subsidies and countervailing duties must be done. 

Economic tradeoffs within the domestic economy must be taken into consideration also as part of the economic tradeoff between foreign firms and domestic producers. While specific sectors or industries benefit from the protection afforded by the countervailing duties, there is also an economy-wide cost to implementing these orders. In the long run, various interests which should benefit the majority should be the basis of generally agreed upon rules as far as the issues of subsidy and countervailing duties are concerned.

The World Trade Organization, should also adhere to the suggestions of the economic advocates like policy alternatives such as relying more on multilateral solutions rather than the unilateral system that countervailing duties offer.

Even if the countervailing duty laws have some positive effect favoring greater consumption of domestic goods, a far more pressing concern is that whether the economy as a whole benefit from these.

Thus, the concept of nationalist economic policies must also be pursued to counter the tendencies of the countervailing duty laws to rule out protectionist bias and high cost to consumers.

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