第三章 美國雙反案裁決有關雙重救濟之法律論述
第一節 雙重救濟與 WTO 規範的合致關係
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第三章 美國雙反案裁決有關雙重救濟之法律論述
美國雙反案小組認定反傾銷與 SCM 協定各有其規範範疇、互不干涉，故除 條文明文禁止的情況外，同時課徵反傾銷稅與平衡稅，即使構成相重救濟亦不違 反 WTO 之規範，由前章歷史回顧可知小組立論有其一定基礎。然上訴機構卻推 翻小組見解，是以本章欲檢視上訴機構推翻小組裁決之法律見解，以便於後續章 節從經濟的觀點審視其是否合理。
第一節 雙重救濟與 WTO 規範的合致關係
美國雙反案中，美國商務部（United States Department of Commerce，簡稱 USDOC）對自中國大陸進口之圓形焊接碳質鋼管（Circular Welded Carbon Quality Steel Pipe，簡稱CWP）、充氣式非公路用輪胎（Certain New Pneumatic Off-the-Road Tires，簡稱OTC）、薄壁矩形鋼管（Light-Walled Rectangular Pipe and Tube，簡稱 LWR）、複合編織袋（Laminated Woven Sacks，簡稱LWS）等四項產品同時課徵 反傾銷稅及平衡稅，本案除雙重救濟外尚涉及其他三項爭點，但非本文論述重點 故不贅述52。
美國雙反案中，中國主張美國將其認定為非市場經濟國，故以經濟發展水準 相當的市場經濟國做為替代國，並以替代國中同類產品之國內或出口價格做為
「替代價格（surrogate value）」，以計算反傾銷調查中的正常價格。中國認為此 般做法等同於考量正常價格時將其廠商置於未受補貼之地位，然在出口價格的計 算上卻未排除補貼對其構成的影響，此舉將提高正常價格之認定，因國內補貼同 時降低該產品於中國國內售價和出口價格，然以替代價格計算正常價格時，該替 代價格極可能高於中國國內售價，以致擴大傾銷差額，依此計算之傾銷差額，等 於已將補貼所造成影響計算其中，是以若進口國已針對該差額課徵反傾銷稅，則 不應再對該產品課徵平衡稅，否則違反GATT第6.3條、SCM協定第19.4條有關平 衡稅額不應超過補貼數額之規定53，與SCM協定第19.3條所規定應對收受補貼產
52 除雙重救濟外，美國雙反案中中國之控訴尚涉及 SCM 協定所稱公立機構（public body）、補貼
之特定性（specificity），及計算補貼數額所參照基準（benchmarks）之認定。
53 General Agreement on Tariffs and Trade, art. 6.3: “No countervailing duty shall be levied on any
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相稱（fitting）或特別合適（specially suitable (for, to)），故上訴機構認為這表示「適當」並非為一自主性（autonomous）或絕對（absolute）的標準，而是需要
product of the territory of any contracting party imported into the territory of another contracting party in excess of an amount equal to the estimated bounty or subsidy determined to have been granted, directly or indirectly, on the manufacture, production or export of such product in the country of origin or exportation, including any special subsidy to the transportation of a particular product. The term
“countervailing duty” shall be understood to mean a special duty levied for the purpose of offsetting any bounty or subsidy bestowed, directly, or indirectly, upon the manufacture, production or export of any merchandise.” Agreement on Subsidies and Countervailing Measures, art. 19.4: “No countervailing duty shall be levied on any imported product in excess of the amount of the subsidy found to exist, calculated in terms of subsidization per unit of the subsidized and exported product.”
54 Agreement on Subsidies and Countervailing Measures, art. 19.3: “When a countervailing duty is imposed in respect of any product, such countervailing duty shall be levied, in the appropriate amounts in each case, on a non‑discriminatory basis on imports of such product from all sources found to be subsidized and causing injury, except as to imports from those sources which have renounced any subsidies in question or from which undertakings under the terms of this Agreement have been
accepted. Any exporter whose exports are subject to a definitive countervailing duty but who was not actually investigated for reasons other than a refusal to cooperate, shall be entitled to an expedited review in order that the investigating authorities promptly establish an individual countervailing duty rate for that exporter.”
55 Panel Report, US－Anti-Dumping and Countervailing Duties (China), ¶ 14.104.
56 Appellate Body Report, US－Anti-Dumping and Countervailing Duties (China), ¶ 552.
57 Id.
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58 Appellate Body Report, US－Anti-Dumping and Countervailing Duties (China), ¶ 553.
59 Agreement on Subsidies and Countervailing Measures, art. 19.2: “The decision whether or not to impose a countervailing duty in cases where all requirements for the imposition have been fulfilled, and the decision whether the amount of the countervailing duty to be imposed shall be the full amount of the subsidy or less, are decisions to be made by the authorities of the importing Member. It is desirable that the imposition should be permissive in the territory of all Members, that the duty should be less than the total amount of the subsidy if such lesser duty would be adequate to remove the injury to the domestic industry, and that procedures should be established which would allow the authorities concerned to take due account of representations made by domestic interested parties whose interests might be adversely affected by the imposition of a countervailing duty.”
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60 Panel Report, US－Anti-Dumping and Countervailing Duties (China), ¶ 14.112.
61 Id. ¶ 14.129.
62 Appellate Body Report, US－Anti-Dumping and Countervailing Duties (China), ¶ 555.
63 Id. ¶ 556
64 Id. ¶ 557.
65 Agreement on Subsidies and Countervailing Measures, art. 19.1: “If, after reasonable efforts have been made to complete consultations, a Member makes a final determination of the existence and amount of the subsidy and that, through the effects of the subsidy, the subsidized imports are causing injury, it may impose a countervailing duty in accordance with the provisions of this Article unless the subsidy or subsidies are withdrawn.”
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66 Agreement on Subsidies and Countervailing Measures, art. 21.1: “A countervailing duty shall remain in force only as long as and to the extent necessary to counteract subsidization which is causing injury.” Appellate Body Report, US－Anti-Dumping and Countervailing Duties (China), ¶ 558.
67 Agreement on Subsidies and Countervailing Measures, art. 10: “Members shall take all necessary steps to ensure that the imposition of a countervailing duty on any product of the territory of any Member imported into the territory of another Member is in accordance with the provisions of Article VI of GATT 1994 and the terms of this Agreement. Countervailing duties may only be imposed pursuant to investigations initiated and conducted in accordance with the provisions of this Agreement and the Agreement on Agriculture.”
68 Agreement on Subsidies and Countervailing Measures, note 35: “The provisions of Part II or III may be invoked in parallel with the provisions of Part V; however, with regard to the effects of a particular subsidy in the domestic market of the importing Member, only one form of relief (either a
countervailing duty, if the requirements of Part V are met, or a countermeasure under Articles 4 or 7) shall be available. The provisions of Parts III and V shall not be invoked regarding measures
considered non-actionable in accordance with the provisions of Part IV. However, measures referred to in paragraph 1(a) of Article 8 may be investigated in order to determine whether or not they are specific within the meaning of Article 2. In addition, in the case of a subsidy referred to in paragraph 2 of Article 8 conferred pursuant to a programme which has not been notified in accordance with paragraph 3 of Article 8, the provisions of Part III or V may be invoked, but such subsidy shall be treated as non-actionable if it is found to conform to the standards set forth in paragraph 2 of Article 8.”
69 Agreement on Subsidies and Countervailing Measures, note 36: “The term “countervailing duty”
shall be understood to mean a special duty levied for the purpose of offsetting any subsidy bestowed directly or indirectly upon the manufacture, production or export of any merchandise, as provided for in paragraph 3 of Article VI of GATT 1994.” Appellate Body Report, US－Anti-Dumping and Countervailing Duties (China), ¶ 560.
70 Agreement on Subsidies and Countervailing Measures, note 56: “This paragraph is not intended to preclude action under other relevant provisions of GATT 1994, where appropriate.”
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71 General Agreement on Tariffs and Trade, art. 6.5: “No product of the territory of any contracting party imported into the territory of any other contracting party shall be subject to both anti-dumping and countervailing duties to compensate for the same situation of dumping or export subsidization.”
72 Appellate Body Report, US－Anti-Dumping and Countervailing Duties (China), ¶ 565.
73 Id. ¶ 566.
74 Panel Report, US－Anti-Dumping and Countervailing Duties (China), ¶ 14.116-117.
75 Panel Report, US－Anti-Dumping and Countervailing Duties (China), ¶ 14.117.
76 Id.
77 Id. ¶ 14.118.
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稅抵銷「相同情形（the same situation of …）」的傾銷或出口補貼，此「相同情形」用詞為該條條文規範之核心，亦為此條文中未論及國內補貼的原因78。
78 Appellate Body Report, US－Anti-Dumping and Countervailing Duties (China), ¶ 567.
79 Id. ¶ 568.
80 General Agreement on Tariffs and Trade, art. 6.1(a): “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. 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.” Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, art. 2.1: “For the purpose of this Agreement, a product is to be considered as being dumped, i.e. introduced into the commerce of another country at less than its normal value, if the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country.”
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81 Appellate Body Report, US－Anti-Dumping and Countervailing Duties (China), ¶ 569.
82 General Agreement on Tariffs and Trade, art. 6.1(b): “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 (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.” Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, art. 2.2: “When there are no sales of the like product in the ordinary course of trade in the domestic market of the exporting country or when, because of the particular market situation or the low volume of the sales in the domestic market of the exporting country, such sales do not permit a proper comparison, the margin of dumping shall be determined by comparison with a comparable price of the like product when exported to an appropriate third country, provided that this price is representative, or with the cost of production in the country of origin plus a reasonable amount for administrative, selling and general costs and for profits.”
83 General Agreement on Tariffs and Trade, Ad art. 6.1.2: “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.”
84 Appellate Body Report, US－Anti-Dumping and Countervailing Duties (China), ¶ 569.
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86 Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, art.
9.2: “When an anti-dumping duty is imposed in respect of any product, such anti-dumping duty shall be collected in the appropriate amounts in each case, on a non-discriminatory basis on imports of such product from all sources found to be dumped and causing injury, except as to imports from those sources from which price undertakings under the terms of this Agreement have been accepted. The authorities shall name the supplier or suppliers of the product concerned. If, however, several suppliers from the same country are involved, and it is impracticable to name all these suppliers, the authorities may name the supplying country concerned. If several suppliers from more than one country are involved, the authorities may name either all the suppliers involved, or, if this is impracticable, all the supplying countries involved.”
87 Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, art.
9.3: “The amount of the anti-dumping duty shall not exceed the margin of dumping as established under Article 2.” Appellate Body Report, US－Anti-Dumping and Countervailing Duties (China), ¶ 571.
88 Appellate Body Report, US－Anti-Dumping and Countervailing Duties (China), ¶ 572.
89 Agreement on Interpretation and Application of Articles VI, XVI and XXIII of the General Agreement on Tariffs and Trade, art. 15 : “1. In cases of alleged injury caused by imports from a country described in NOTES AND SUPPLEMENTARY PROVISIONS to the General Agreement (Annex I, Article VI, paragraph 1, point 2) the importing signatory may base its procedures and measures either (a) on this Agreement, or, alternatively (b) on the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade. 2. It is understood that in both cases (a) and
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小組認為東京回合補貼規約為 SCM 協定之前身（predecessor），可見於 SCM 協定起草前，會員便可預見對非市場經濟國同時課徵此二稅收的問題，而其未被
(b) above the calculation of the margin of dumping or of the amount of the estimated subsidy can be made by comparison of the export price with (a) the price at which a like product of a country other than the importing signatory or those mentioned above is sold, or (b) the constructed value33 of a like product in a country other than the importing signatory or those mentioned above. 3. If neither prices nor constructed value as established under (a) or (b) of paragraph 2 above provide an adequate basis for determination of dumping or subsidization then the price in the importing signatory, if necessary duly adjusted to reflect reasonable profits, may be used. 4. All calculations under the provisions of
paragraphs 2 and 3 above shall be based on prices or costs ruling at the same level of trade, normally at the ex factory level, and in respect of operations made as nearly as possible at the same time. Due allowance shall be made in each case, on its merits, for the difference in conditions and terms of sale or in taxation and for the other differences affecting price comparability, so that the method of comparison applied is appropriate and not unreasonable.”
90 Appellate Body Report, US－Anti-Dumping and Countervailing Duties (China), ¶ 576.
91 Panel Report, US－Anti-Dumping and Countervailing Duties (China), ¶ 14.119-120.
92 Vienna Convention on the Law of Treaties, art. 31: “1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account,
92 Vienna Convention on the Law of Treaties, art. 31: “1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account,