미국 2024년 반덤핑 개정규칙 ‘특별한 시장 상황(PMS)’조항의 법적 쟁점과 평가

The revised regulation concerning the PMS provisions in the United States in March 2024 provides a clear definition of PMS and specifies the legal basis for expanding the Department of Commerce’s discretion in PMS determinations. This paper first examines the background and purpose of the revised PMS rule by reviewing U.S. investigation practices and issues pointed out by U.S. courts. As a result of analyzing the main content, the revised regulation clarifies that the sales-based PMS and cost-based PMS introduced through the 2015 TPEA are separate concepts and that when determining cost-based PMS, it is not required to prove whether it prevents or does not permit ‘proper comparison’ between prices. Additionally, by presenting specific examples of cost-based PMS and specifying that these can also contribute to sales-based PMS, the regulation opens the possibility of using constructed value instead of domestic prices for a wider range of products based on sales-based PMS. This paper analyzes the WTO consistency of the PMS regulation, including consistency with Article 2.2 and Article 2.2.1.1 of the Anti-Dumping Agreement. The examination of the WTO consistency includes the aspect of ‘fair comparison’ in Article 2.4. The paper examines the structural limitations of attempts to regulate issues such as government market intervention and environmental and labor standards that differ by countries under the framework of the Anti-Dumping Agreement, and evaluates the changes and impacts the regulation will have on future anti-dumping investigations.