“일본-한국산 DRAM에 대한 상계관세 부과 사건” 판례 소고

This dispute concerns Japan’s imposition of countervailing duties on imports of DRAMS from Korea. The imported DRAMS at issue were manufactured by Hynix Semiconductor, Inc. (“Hynix”). Japan’s investigating authorities (the “JIA”) initiated a countervailing duty investigation on August 4, 2004, in response to an application by Elpida Memory, Inc. and Micron Japan, Ltd. The period of investigation for the subsidy determination covered January 1 to December 31, 2003, and the period of investigation for injury covered April 1, 2001 to March 31, 2004. On October 21, 2005, the JIA informed the Government of Korea and the parties involved of the “essential facts” under consideration. As part of these essential facts, the JIA found that certain debt restructuring programs entered into by Hynix and its creditors in October 2001 and December 2002 were countervailable subsidies. Based on these subsidies, the JIA calculated a countervailing duty rate of 27.2 percent. The final determination was issued on January 20, 2006, with the duty set at this same rate(Panel report, paras. 2.1-4; AB report, paras. 2-5). Before the Panel, Korea claimed that the countervailing duty determination violated GATT Articles VI:3 and X:3(a), and SCM Agreement Articles 1.1, 2, 10, 11, 12.7, 12.9, 14, 15.5, 19.1, 19.4, 21.1, 22 and 32.1. (The Panel exercised judicial economy on the Article VI:3 and Article 32.1 claims and excluded several other claims from the terms of reference). The Panel found violations for some claims, but rejected other claims. The Panel found that the JIA did not have a proper basis for determining that four of Hynix’s private creditors were “entrusted or directed” by the Government of Korea to participate in the December 2002 restructuring of Hynix, in violation of SCM Agreement Article 1.1(a)(1)(iv); by contrast, it rejected a similar claim related to Hynix’s October 2001 restructuring. It also found that the JIA’s determination of the existence of benefit conferred by the December 2002 restructuring was inconsistent with SCM Agreement Articles 1.1(b) and 14, and that the JIA’s calculation of the amount of benefit conferred by the October 2001 and December 2002 restructurings was inconsistent with Articles 1.1(b) and 14. In addition, it found that in calculating the amount of benefit, the JIA used a “method” not provided for in the national legislation or implementing regulations, in violation of the SCM Agreement Article 14 chapeau. For the non-recurring subsidies resulting from the October 2001 restructuring, the Panel concluded that because the JIA had found there was no benefit at the time of imposition in 2006, Japan levied countervailing duties in violation of SCM Agreement Article 19.4. On the other hand, the Panel found that the JIA did not act inconsistently with SCM Agreement Article 12 when it included certain financial institutions as “interested parties” and used facts available for those financial institutions that failed to provide information. And it also found that the JIA did not act inconsistently with SCM Agreement Articles 15.5 and 19.1 by failing to demonstrate that the allegedly subsidized imports were causing injury “through the effects of subsidies.” On appeal, Japan challenged a number of the findings above where the Panel found a violation, involving SCM Agreement Articles 1.1, 14 and 19.4. In an “other appeal,” Korea contested certain of the findings above where the Panel did not find a violation, involving SCM Agreement Articles 1.1(b), 12.7, 12.9, 14, 15.5 and 19.1.