Yesterday, 8 December 2014, the WTO Appellate Body issued its report in the case “United States – Countervailing Measures on Certain Hot-Rolled Carbon Steel Flat Products from India” (DS436).
In relation to Public Body, India appealed the Panel’s findings regarding the USDOC’s determination that the National Mineral Development Corporation (NMDC) is a public body within the meaning of Article 1.1(a)(1) of the SCM Agreement. For its part, the United States argued that the Panel interpreted and applied Article 1.1(a)(1) in a manner consistent with the Appellate Body report in US — Anti-Dumping and Countervailing Duties (China). Further, the United States requested, in its other appeal, that the Appellate Body clarify that “an entity that is controlled by the government, such that the government may use the entity’s resources as its own” is also a public body. The Appellate Body recalled that a public body is “an entity that possesses, exercises or is vested with governmental authority”, and explained that whether the conduct of an entity is that of a public body must in each case be determined on its own merits, with due regard to the core characteristics and functions of the relevant entity, its relationship with the government, and the legal and economic environment prevailing in the country in which the investigated entity operates. The Appellate Body found that the Panel erred in its application of Article 1.1(a)(1) to the USDOC’s public body determination in the underlying investigation, in effect treating the GOI’s ability to control the NMDC as determinative for purposes of establishing whether the NMDC constitutes a public body. The Appellate Body consequently reversed the Panel’s findings, and completed the legal analysis and found that the USDOC’s determination that the NMDC is a public body is inconsistent with Article 1.1(a)(1).
You can find the findings in pdf format here