Can GATT Export Subsidy Standards Be Ignored by the United States in Imposing Countervailing Duties?

Simon, David | January 1, 1983

Under United States law, the Department of Commerce (Department) and the International Trade Commission (ITC) are authorized to impose countervailing duties on imported merchandise that has been provided with foreign government export subsidies which result in, or threaten, material harm to United States industry. The United States is, however, a party to international agreements that contain elaborate “guidelines,” and “illustrative” examples, dealing with both prohibited and permitted governmental export subsidies. These international export subsidy rules have been incorporated into the definition of “subsidy” set forth in United States countervailing duty law. Nevertheless, the Department evidently takes the positions that it has statutory authority to invoke countervailing duties directed against foreign governmental export subisidies that are expressly permitted to our trading partners by those international rules. In the Department’s view, this result is required by domestic law even though the conduct in question – as the Department concedes- described as not prohibited by international obligations of the United Stats that the Congress purported to implement in 1979.