International Trade "from Status to Contract" and Back: A Critique of the NME Normal Value Determination and Beyond

This paper critically examines the normal value determination of NME and its implications for the purpose of contributing to Doha antidumping reform deliberation. From domestic to international arenas, antidumping development sees the significant growth of government paternalistic discretion turning antidumping into a distributive instrument challenging constitutionalism. Deeply rooted in the ideological divide of the 1950s, NME methodology’s obsession with national divide turns free trade from traders’ commutative exchange to nations’ distributive predation. NME distributive discretion, though against the free market principle, is ironically used to accuse foreign economies of not being free-market enough. When products and producers are given certain status via nationality instead of treated individually, antidumping development has been a process “from Status to Contract” and back. Therefore, it is time to de-legitimize the NME methodology, and the success of antidumping reform lies in limiting rather than deferring to governments’ paternalistic discretion, thus strengthening the international rule of law in the context of WTO.