Implementation of the 'Shift in Burden of Proof' Approach to Interpreting Paragraph 15 of China's Protocol of Accession

摘要

This article has explained that, in antidumping investigations involving imports from China, continued use of the NME methodology after 11 December 2016 can be justified under the surviving provisions of paragraph 15 of China's Protocol of Accession, if what triggers the use of this methodology is a finding that either China as a whole or the targeted industry or sector remains under a NME regime. Because Canada and the United States already justify recourse to the NME methodology on such factual basis, and not on the grounds that the Chinese exporters concerned failed to demonstrate that ME conditions prevail in their industry or sector, they need not modify their practice, nor their legislative framework, upon the expiry of subparagraph 15(a)(ⅱ) on 11 December 2016. Mexico, by contrast, validates the application of the NME methodology by reference to the terms of the Protocol. Accordingly, it needs to take some kind of action upon the expiry of subparagraph 15(a)(ⅱ). It is suggested that such action could consist of justifying the continued application of the NME methodology based upon either a previous finding, or a finding specific to the proceeding involved, to the effect that China countrywide or at least the targeted industry or sector remains under NME conditions.