"False Statement" Dispute In U.S.-China Trade Remedy Cases

Communications between the United States and China regarding the issue of "questionable" information submitted to the U.S. Department of Commerce by the Chinese government and Chinese companies during antidumping and countervailing duty proceedings have intensified in recent weeks. U.S. law requires submitters of factual information to certify in writing that the information is accurate and complete to the best of the submitter's knowledge. Earlier this year, Commerce strengthened its certification regulations, and the new rule expressly requires signatories to state an awareness of the threat of criminal liability for "individuals who knowingly and willfully make material false statements to the U.S. Government."

The Chinese government strongly objected to the new requirements and asserted, among other things, that both China and its officials are immune from U.S. criminal liability in trade proceedings and that any information submitted by Chinese government officials should be presumed to be accurate. Commerce replied to China's submission and referenced recent cases in which the Chinese government and Chinese companies submitted questionable information. Commerce also concluded that "a motivation for amending the current regulations comes, in part, from recent cases where [Commerce] determined that certain Chinese interested parties, including the government, submitted questionable information during the course of a proceeding."

Of course, submission of "questionable" information may also lead to the calculation of higher antidumping or countervailing duty rates. Thus, multiple tools are being used to deal with the all-too-frequent submission of questionable information by Chinese respondents and the Chinese government in U.S. trade remedy proceedings.