반덤핑조치 시 덤핑률편승(Rate Shopping) 방지를 위한 실무적 고려사항: 미국식 이해승계인 심사기준의 도입 필요성에 관한 검토를 중심으로

On February 27, 2014, the Korea Trade Commission announced the initiation of a new exporter review on Chinese plywood. Under Article 9.5 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (hereinafter “Anti-dumping Agreement”) and Article 65(3) of the Enforcement Decree of the ROK Customs Act (hereinafter “EDCA”), an exporter that either did not exist or did not export to Korea during the original period of anti-dumping investigation may request for a new exporter review for the calculation of an independent dumping rate. Any exporter seeking to invoke such review must prove that it is not ‘related’ to any exporters or producers subject to the anti-dumping duties calculated by the original investigation. While the Anti-Dumping Agreement is silent as to specific elements of this ‘relation’ requirement for a new exporter review, Korea applies the ‘special relation’ standard in accordance with Articles 23(1) and 65(3) of the EDCA to determine whether an applicant of a new exporter review has relations with subject exporters of the original investigation period. However, given increasingly frequent contemporary interactions between antidumping practices and corporate transactions/restructuring featured by change of control (e.g., M&A), the special relation standard alone cannot effectively tackle exporters’ ‘rate shopping’ via corporate transactions or restructuring. Establishment of a more concrete standard of review on the succession of interest in the anti-dumping investigation is therefore desired. For the last two decades, the U.S. Department of Commerce has used a ‘changed circumstances review’ to apply a standard called ‘successor-in-interest test’ to determine the succession of antidumping measures imposed on exporters in cases where their corporate identities have undergone certain changes due to corporate transactions or restructuring. The legal basis of this ‘successor-in-interest test’ is stipulated under Article 751(b) of the U.S. Tariff Act, which provides a comprehensive discretion to the U.S. Department of Commerce. Article 751(b) of the U.S. Tariff Act is essentially similar to Article 70(1) of the EDCA, which is the legal basis for a changed circumstances review in Korea. Thus Korea may be able to adopt this US-style ‘successor-in-interest test’ without going through much statutory reform. At this point, Korea has not developed solid precedents on a changed circumstances review. Accordingly it is advisable for Korea to first codify (either statutorily or as a matter of administrative rule-making) a reliable standard of review equivalent to the ‘successor-in-interest test’ of the U.S., based on the thorough study of the foreign changed circumstances reviews on ‘successorship-in-interest.’