WTO ‘한국-인도네시아산 특정 종이 수입에 대한 반덤핑관세’ 사건

Korea has been an active member state in WTO dispute settlements system. However, it was the first time for Korea's Anti-dumping measure to be reviewed by panel. Indonesia filed complaint against Korea claiming that the Anti-dumping duties on imports of certain paper from Indonesia were inconsistent with the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement). Panel reviewed Indonesia' s arguments and resulted in findings which were summarized to 11 main issues. Korea won most of the issues: (ⅰ) Korea Trade Commission (hereinafter 'KTC')' s decision to disregards domestic sale information and to calculate normal values on the basis of facts available, (ⅱ) KTC' s use of constructed value to determine normal values, (ⅲ) KTC' s alleged failure to make fair comparison between normal valued and export price, (ⅳ) KTC' s treatment of 3 companies as single exporter, (ⅴ) KTC' s treatment of Plain Copier and Uncoated Wood-free Printing Paper as like products, (ⅵ) alleged failure to abide by the Disclosure obligations contained in Article 6 of the Antidumping agreement. However, the panel upheld Indonesia's claim partially, ruling that KTC acted inconsistently with WTO Anti-Dumping Agreement in determining margin of dumping for on Indonesian exporter, in failing to apply in use of secondary source information instead of domestic sales data from two Indonesian companies, and in failing to disclose how it calculated the constructed normal value. The Panel also agreed with Indonesia that the ITC erred in its assessment of the impact of dumping Indonesian paper imports on competing Korean producers. From legal perspective, this case has significant implication. The panel reversed its own interim finding that the KTC had not violated its obligation to apply special circumvention when relying on secondary sources of information for determining normal value. Along with Indonesia' s request for change, the Panel decided to review and finally reversed its finding. It was remarkable because it was the first reversal by panel of major substantive finding in Its interim As Brendan McGivern, trade expert attorney said, there has been a widely shared assumption that panel' s ruling at the interim review stage on the WTO-consistency of measure was definitive and would not be reversed in the final report. The panel's decision may encourage future dispute parties to prepare more sophisticated submission and future panels to be more attentive to requests during the interim review to revise substantive finding. Another issue to be considered is the panel' s conclusion on how to treat related parties. The KTC treated 3 different companies as single exporter based on reevaluation of the relationship between them. Noting that the Article 6.10 of the Anti-Dumping Agreement did not provide specific guidance, the panel looked into the Article 9.5 which deals with new shipper reviews. The panel noted that the investigating authority was not always required to make individual margin of dumping but if it didn't make determination individually, where should be shown justification. The panel upheld that the KTC was consistent with the Anti-Dumping Agreement because various factors such as existence of cross-sale of the subject products and commonality regarding shareholding and management showed that the companies were related. The panel's conclusion appears to be rationale and coherent with Article 4.1 (i) and foot note 11 which provides how to treat related exporters and importers in defining domestic industry. In addition, the panel found that the 'like product' of Article 2.6 does not apply to the injury determination in this case. The panel said that there is no requirement that the two different products under consideration in the injury determination must be like each other. Simply, the like product standards means that the group of imported products must be like the group of domestic products as found in 'United States-Final Dumping Determination of Softwood Lumber from Canada' case. Looking for practical implication for the KTc' s practice, KTC needs to make an effort to explain fully its determination to companies under investigation because the panel did not point out problems of the KTC' s investigation method itself but its proper explanation and disclosure about its investigation. In spite of some lost issues, it should be mentioned that Korea won most of the major issues in this case. It means that the KTc' s practice is in the right direction but needs to make it more sophisticated.

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