In a series of controversial 2011 decisions, WTO DSM Panels sought to reconcile legitimate regulatory interests of the state with various obligations to treat imported products in an even-handed and not unnecessarily trade-restrictive manner. Among the key points of contention were which obligation pertained in each case – national treatment, limits on technical regulations, or rules governing standards. In each case, the Panel imposed significant restrictions on national regulatory practices, and in each case the Panel reasoning was challenged by the Appellate Body. This paper addresses some of the key legal and economic issues raised in the original Panel decisions, leaving the late-breaking Appellate Body decisions for future analysis. Given the unsettled nature of the terrain, the economic analysis focuses primarily on the question of national treatment, while the legal analysis deals with other interesting points that emerge from these rulings, such as the appropriate level of deference to international standards and the legitimacy of labeling requirements.

This paper analyzes Brazil's WTO challenge to the methods undertaken by the United States in calculating anti-dumping duties in administrative reviews and other investigations of Brazilian orange juice. The dispute resulted in a Panel ruling that conforms with earlier Appellate Body decisions outlawing the use of ‘weighted average to transaction’ zeroing in such reviews. However, we note that the Panel's stance was driven largely from a desire to preserve ‘stability and predictability’ within the system, suggesting a practical recognition of the shadow of past Appellate Body decisions on the same legal question. In addition, we argue that to understand fully the effects of zeroing, it is important to account for the underlying reasons behind observed price changes in the market. We show that zeroing is more likely to convert a negative dumping determination into a positive one when price changes are driven by variations in demand relative to when they are driven by variations in the cost of exporting. In the present case, Brazilian exporters of orange juice experienced an increase in (residual) demand for their product since, by reducing the local supply of round oranges, adverse weather conditions in the United States made it difficult for US orange-juice producers to meet local demand.

This paper analyzes the dispute between Korea and the United States regarding the method of calculating anti-dumping duties. The case mirrors other recent WTO disputes involving zeroing. Even though it ceased zeroing in original investigations in December 2006, the United States implemented the policy change only prospectively. As a result, the margins applied to the products in this dispute remained unchanged because they had been calculated prior to the policy change. The United States did not contest Korea's claims. The Panel confirmed that zeroing was used and, following the long line of Panel and Appellate Body rulings, found the practice inconsistent with the Anti-Dumping Agreement. After the Panel Report was adopted, the United States recalculated the margins without zeroing. It, however, refused to refund unliquidated cash deposits that were based on zeroing, highlighting the United States's continued lukewarm compliance with WTO rulings on zeroing. This dispute offers an opportunity to ponder on weaknesses of the WTO Dispute Settlement and the ability of one Member to take advantage of it. Since the facts and their legal assessment were undisputed, why was litigation necessary? Can compliance with WTO law be improved with broader findings and more incisive remedies?

This article is about how easy a WTO case is when the defendant concedes the claims, the description of the facts, and the evidence presented by the complainant. In US–Zeroing (Korea), the United States did just that. We explore whether Korea obtained any additional benefit by having an easy case. We identified some small benefits at the preparation stage of the case arising from the favourable precedents and shorter time frames only at the Panel stage. There were, however, some additional costs for the complainant stemming from the Panel's reasoning when it addressed case law. In our opinion, benefits were few. Korea was obliged in any case to engage in two years of multilateral procedures before three old measures, which were not defended by the defendant, were revoked.

This unappealed Panel Report deals with now standard controversies involving US zeroing practices, but also involves a number of novel problems in administrative reviews of US anti-dumping orders that transcend zeroing issues. Most importantly, this dispute highlights the economic, legal, and statistical importance of sample-selection bias when calculating ‘all others’ rates for exporters that were not queried during dumping investigations. Sampling is particularly problematic in this dispute since US investigators found only zero and de minimis margins in the administrative reviews, a situation in which the relevant provision of the Anti-Dumping Agreement appears to provide no guidance (an apparent ‘lacuna’). The Panel did not directly deal with the key sample-selection issues in the case, and so we provide an alternative legal and statistical analysis. These issues are likely to become more important as the practice of zeroing is phased out in the United States. Indeed, sampling may well be the new zeroing.