三、美國做法與WTO 的相關(guān)規(guī)定

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美國最近修改了其對(duì)非市場(chǎng)經(jīng)濟(jì)國家單獨(dú)稅率的政策，規(guī)定只有在出口企業(yè)能夠證明其出口行為在法律上，或者事實(shí)上沒有被政府控制的情況下（…a firm can demonstrate an absence?of?both?de?jure?and?de?facto?governmental?control?over?its?export?activities.），才可以給予單獨(dú)稅率。新修改的政策還對(duì)出口企業(yè)申請(qǐng)單獨(dú)稅率規(guī)定了詳細(xì)的程序和要求。

美國商務(wù)部出臺(tái)新政策前，征求了各方的意見。公平貿(mào)易局在兩次評(píng)論意見中都指出了美國的這種做法違反了其在WTO 框架下承諾的義務(wù)。

支持此政策的美國國內(nèi)企業(yè)代表的評(píng)論意見中，支持的理由均為給予非市場(chǎng)經(jīng)濟(jì)國家單獨(dú)稅率將導(dǎo)致中國的出口商可以從獲得低稅率的企業(yè)出口，從而規(guī)避反傾銷稅。

根據(jù)以上對(duì)歐盟法律的分析，美國的立法目的仍然是規(guī)避反傾銷稅的考慮，不是 WTO 法律框架下《反傾銷協(xié)議》第?9.2?條的“impracticable”。WTO?法律文件和中國入世法律文件中涉及非市場(chǎng)經(jīng)濟(jì)的條款中沒有關(guān)于出口價(jià)格認(rèn)定的規(guī)定。因此，美國的做法與 WTO 規(guī)定不符。

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附：相關(guān)法律條文

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GATT 1947 第 6 條第 1 款：

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1.?The contracting parties recognize that dumping, by which products of one country are introduced into the commerce of another country at less than the normal value of the products, is to be condemned if it causes or threatens material injury to an established industry in the territory of a contracting party or materially retards the establishment of a domestic industry. For the purposes of this Article, a product is to be considered as being introduced into the commerce of an importing country at less than its normal value, if the price of the product exported from one country to?another

(a)?is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country, or,

(b)?in the absence of such domestic price, is less than?either

(i)?the highest comparable price for the like product for export to any third country in the ordinary course of trade,?or

(ii)?the cost of production of the product in the country of origin plus a reasonable addition for selling cost and?profit.

Due allowance shall be made in each case for differences in conditions and terms of sale, for differences in taxation, and for other differences affecting price comparability.*

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此條的注釋和補(bǔ)充規(guī)定：

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2.?It is recognized that, in the case of imports from a country which has a complete or substantially complete monopoly of its trade and where all domestic prices are fixed by the State, special difficulties may exist in determining price comparability for the purposes of paragraph 1, and in such cases importing contracting parties may find it necessary to take into account the possibility that a strict comparison with domestic prices in such a country may not always be appropriate.

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WTO 反傾銷協(xié)議第 2.7 條和第 6.10 條：

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2.7 This Article is without prejudice to the second Supplementary Provision to paragraph 1 of Article VI in Annex I to GATT 1994.

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6.10 The authorities shall, as a rule, determine an individual margin of dumping for each known exporter or producer concerned of the product under investigation. In cases where the number of exporters, producers, importers or types of products involved is so large as to make such a determination impracticable, the authorities may limit their examination either to a reasonable number of interested parties or products by using samples which are statistically valid on the basis of information available to the authorities at the time of the selection, or to the largest percentage of the volume of the exports from the country in question which can reasonably be?investigated.

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中國加入議定書第 15 條：

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15.?Price Comparability in Determining Subsidies and?Dumping

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Article VI of the GATT 1994, the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 ("Anti-Dumping Agreement") and the SCM Agreement shall apply in proceedings involving imports of Chinese origin into a WTO Member consistent with the?following:

(a)?In determining price comparability under Article VI of the GATT 1994 and the Anti-Dumping Agreement, the importing WTO Member shall use either Chinese prices or costs for the industry under investigation or a methodology that is not based on a strict comparison with domestic prices or costs in China based on the following?rules:

(i)?If the producers under investigation can clearly show that market economy conditions prevail in the industry producing the like product with regard to the manufacture, production and sale of that product, the importing WTO Member shall use Chinese prices or costs for the industry under investigation in determining price?comparability;

(ii)?The importing WTO Member may use a methodology that is not based on a strict comparison with domestic prices or costs in China if the producers under investigation cannot clearly show that market economy conditions prevail in the industry producing the like product with regard to manufacture, production and sale of that?product.

(b)?In proceedings under Parts II, III and V of the SCM Agreement, when addressing subsidies described in Articles 14(a), 14(b), 14(c) and 14(d), relevant provisions of the SCM Agreement shall apply; however, if there are special difficulties in that application, the importing WTO Member may then use methodologies for identifying and measuring the subsidy benefit which take into account the possibility that prevailing terms and conditions in China may not always be available as appropriate benchmarks. In applying such methodologies, where practicable, the importing WTO Member should adjust such prevailing terms and conditions before considering the use of terms and conditions prevailing outside?China.

(c)?The importing WTO Member shall notify methodologies used in accordance with subparagraph (a) to the Committee on Anti-Dumping Practices and shall notify methodologies used in accordance with subparagraph (b) to the Committee on Subsidies and Countervailing?Measures.

(d)?Once China has established, under the national law of the importing WTO Member, that it is a market economy, the provisions of subparagraph (a) shall be terminated provided that the importing Member's national law contains market economy criteria as of the date of accession. In any event, the provisions of subparagraph (a)(ii) shall ?expire 15 years after the date of accession. In addition, should China ?establish, pursuant to the national law of the importing WTO Member, that market economy conditions prevail in a particular industry or sector, the non-market economy provisions of subparagraph (a) shall no longer apply to that industry or?sector.

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