20．高质量打印用铜版纸反补贴终裁备忘录： Issues and Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Certain Coated Paper Suitable for High-Quality Print Graphics Using Sheet-Fed Presses from the Peoples Republic of China（September 20, 2010）
19．无缝碳钢和合金钢标准管、管线管和压力管反补贴终裁备忘录：Issues and Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Certain Seamless Carbon and Alloy Steel Standard, Line, and Pressure Pipe (SeamlessPipe) from th e Peoples Republic of Chin（September 10, 2010）
18．镁碳砖反补贴终裁备忘录：Issues and Decision Memorandum for the Final Affirmative Countervailing Duty Determination: Certain Magnesia Carbon Bricks （July 26, 2010）
17．窄幅编织袋反补贴终裁备忘录：Issues and Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Narrow Woven Ribbons with Woven Selvedge from the Peoples Republic of China（July 12, 2010）
16．钢丝层板反补贴终裁备忘录：Issues and Decision Memorandum for Final Determination Countervailing Duty Investigation: Wire Decking from the Peoples Republic of Chin（June 3, 2010）
15．钢格板反补贴终裁备忘录：Issues and Decision Memorandum for the Final Affirmative Countervailing Duty Determination: Certain Steel Grating from the Peoples Republic of China（May 28, 2010）
14．钢绞线反补贴终裁备忘录：Issues and Decision Memorandum for Final Determination Pre-Stressed Concrete Steel Wire Strand from the Peoples Republic of Chin （May 14, 2010）
13．石油管材反补贴终裁备忘录：Issues and Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Certain Oil Country Tubular Goods (OCTG) from the Peoples Republic of China（November 23, 2009）
12．厨房用金属架反补贴终裁备忘录：Issues and Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Certain Kitchen Appliance
Shelving and Racks from the People’s Republic of China（July 20, 2009）
11．后拖式草地维护设备及相关零部件反补贴终裁备忘录：Issues and Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Certain Tow-Behind Lawn Groomers and Parts Thereof from the People’s Republic of China（June 12, 2009）
10．柠檬酸及柠檬酸盐反补贴终裁备忘录：Issues and Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Citric Acid and Certain Citrate Salts from the People’s Republic of China（April 6, 2009）
9．不锈钢焊接压力管反补贴终裁备忘录：Issues and Decision Memorandum for Final Determination: Countervailing Duty Investigation on Certain Welded Austenitic Stainless Pressure Pipe from the People’s Republic of China (January 21, 2009)
8．环形碳素管线管反补贴终裁备忘录： Issues and Decision Memorandum for Final Determination in the Countervailing Duty Investigation of Circular Welded Carbon Quality Steel Line Pipe (Line Pipe) from the People’s Republic of China (November 17, 2008)
7．低克重热敏纸：Issues and Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Lightweight Thermal Paper from the People’s Republic of China (September 25, 2008)
6．非公路用轮胎反补贴终裁备忘录：Issues and Decision Memorandum for the Final Affirmative Countervailing Duty Determination: Certain New Pneumatic Off-the-Road Tires (OTR Tires) from the People‘s Republic of China (July 7, 2008)
5．软磁铁反补贴终裁备忘录：Issues and Decision Memorandum for Final Determination in the Countervailing Duty Investigation of Raw Flexible Magnets from the People’s Republic of China (July 2, 2008)
4．编织袋反补贴终裁备忘录Issues and Decision Memorandum for the Final Affirmative Countervailing Duty Determination: Laminated Woven Sacks from the People’s Republic of China (June 16, 2008)
3．薄壁矩形钢管反补贴终裁备忘录：Issues and Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Light-Walled Rectangular Pipe and Tube from the People’s Republic of China (June 13, 2008)
2．圆形焊接碳素钢管反补贴终裁备忘录：Issues and Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Circular Welded Carbon Quality Steel Pipe from the People’s Republic of China (May 29, 2008)
1．铜版纸反补贴终裁备忘录：Issues and Decision Memorandum for the Final Determination in the Countervailing Duty Investigation of Coated Free Sheet from the People’s Republic of China (October 17, 2007)
关于这些反补贴措施的更加详细的情况请参阅商务部国际贸易署进口局官方网：http://ia.ita.doc.gov/frn/summary/prc/prc-fr.htm（2012年6月30日）
【作者简介】
白巴跟，汕头大学法学院教授。
【注释】
这是笔者的初略统计。由于篇幅所限，本文不具体介绍全部案件，将美国对华反补贴调查终裁备忘录的中英文对照列于参考文献中。
虽然该案名称中包括反倾销，但在具体争论中涉及到反倾销的只有对“双反调查”的指控，即商务部对中国的同一出口产品同时展开反倾销和反补贴调查并同时征收反倾销税和反补贴税。事实上，该案的争论和审议集中在反补贴问题上，该案是地地道道的有关反补贴措施的贸易争端。该案专家组和上诉机构的报告如下：WT/DS379/R: UNITED STATES – DEFINITIVE ANTI-DUMPING AND COUNTERVAILING DUTIES ON CERTAIN PRODUCTS FROM CHINA (22 October 2010, Report of the Panel ) ; WT/DS379/AB/R: united states – definitive anti-dumping and countervailing duties on certain products from china (11 March 2011, Report of the Appellate Body). 本文只对专家组报告进行了分析，引用时简称Panel Report(379) ，因为中国在该案上诉机构中未提出实质性的新观点，故本文未分析上诉机构报告。
Agreement on Subsidies and Countervailing Measures
Article 19: Imposition and Collection of Countervailing Duties
19.1 If, after reasonable efforts have been made to complete consultations, a Member makes a final determination of the existence and amount of the subsidy and that, through the effects of the subsidy, the subsidized imports are causing injury, it may impose a countervailing duty in accordance with the provisions of this Article unless the subsidy or subsidies are withdrawn.
虽然无“接受者”无补贴意义可言，但《SCM协定》第1条并未将“接受者”规定在补贴定义中，协定第2条做出了关于接受者的规定。接受者需满足的法律要件就是“专向性”。 Article 2 Specificity
2.1 In order to determine whether a subsidy, as defined in paragraph 1 of Article 1, is specific to an enterprise or industry or group of enterprises or industries (referred to in this Agreement as "certain enterprises") within the jurisdiction of the granting authority, the following principles shall apply:
(a) Where the granting authority, or the legislation pursuant to which the granting authority operates, explicitly limits access to a subsidy to certain enterprises, such subsidy shall be specific.
(b) Where the granting authority, or the legislation pursuant to which the granting authority operates, establishes objective criteria or conditions governing the eligibility for, and the amount of, a subsidy, specificity shall not exist, provided that the eligibility is automatic and that such criteria and conditions are strictly adhered to. The criteria or conditions must be clearly spelled out in law, regulation, or other official document, so as to be capable of verification.
(c) If, notwithstanding any appearance of non-specificity resulting from the application of the principles laid down in subparagraphs (a) and (b), there are reasons to believe that the subsidy may in fact be specific, other factors may be considered. Such factors are: use of a subsidy programme by a limited number of certain enterprises, predominant use by certain enterprises, the granting of disproportionately large amounts of subsidy to certain enterprises, and the manner in which discretion has been exercised by the granting authority in the decision to grant a subsidy. In applying this subparagraph, account shall be taken of the extent of diversification of economic activities within the jurisdiction of the granting authority, as well as of the length of time during which the subsidy programme has been in operation.
2.2 A subsidy which is limited to certain enterprises located within a designated geographical region within the jurisdiction of the granting authority shall be specific. It is understood that the setting or change of generally applicable tax rates by all levels of government entitled to do so shall not be deemed to be a specific subsidy for the purposes of this Agreement.
毋庸置疑，准确解释“公共机构”的含义，关系到《SCM协定》的正确适用。笔者认为，“美国对华反补贴税案”上诉机构对“公共机构”的解释存在严重的错误，请有兴趣的读者参考拙文：《“公共机构”的解释及“国有企业”是否构成“公共机构” ——“美国对华反倾销和反补贴调查案”上诉机构观点质疑》，载北京大学法律信息网法律在线：http://article.chinalawinfo.com/Article_Detail.asp?ArticleID=68325（2012年6月30日）本文将该案名称改为“美国对中国产品征收反补贴税和反倾销税案”，这样更忠实于WTO法律文件的英文名称。
UNDERSTANDING ON RULES AND PROCEDURES GOVERNING THE SETTLEMENT OF DISPUTES（以下简称DSU）
DSU Article 4 Consultations
2. Each Member undertakes to accord sympathetic consideration to and afford adequate opportunity for consultation regarding any representations made by another Member concerning measures affecting the operation of any covered agreement taken within the territory of the former.
DSU Article 6 Establishment of Panels
1. If the complaining party so requests, a panel shall be established at the latest at the DSB meeting following that at which the request first appears as an item on the DSB''s agenda, unless at that meeting the DSB decides by consensus not to establish a panel.
反补贴调查通知：Notice of Initiation of Countervailing Duty Investigation: Circular Welded Carbon Quality Steel Pipe from the People''s Republic of China, p. 42546. 反补贴调查初裁：Circular Welded Carbon Quality Steel Pipe from the People''s Republic of China: Preliminary Affirmative Countervailing Duty Determination; Preliminary Affirmative Determination of Critical Circumstances; and Alignment of Final Countervailing Duty Determination with Final Antidumping Duty Determinatio, p. 63876. 反补贴调查终裁：Circular Welded Carbon Quality Steel Pipe from the People''s Republic of China: Final Affirmative Countervailing Duty Determination and Final Affirmative Determination of Critical Circumstances, p. 42547.
反补贴调查通知：Notice of Initiation of Countervailing Duty Investigation: Light–Walled Rectangular Pipe and Tube from the People''s Republic of China pp, 40281 and 40283.. 反补贴调查初裁：Light–Walled Rectangular Pipe and Tube from the People''s Republic of China: Preliminary Affirmative Countervailing Duty Determination and Alignment of Final Countervailing Duty Determination with Final Antidumping Duty Determination, p.67703. 反补贴调查终裁：Light–Walled Rectangular Pipe and Tube from the People''s Republic of China: Final Affirmative Countervailing Duty Investigation Determination, p. 35643.
反补贴调查通知：Laminated Woven Sacks from the People''s Republic of China: Initiation of Countervailing Duty Investigation, pp. 40839-40840. 反补贴调查初裁：Laminated Woven Sacks from the People''s Republic of China: preliminary Affirmative Countervailing Duty Determination; Preliminary Affirmative Determination of Critical Circumstances, In Part; and Alignment of Final Countervailing Duty Determination With Final Antidumping Duty Determination, pp. 67893-67894. 反补贴调查终裁：Laminated Woven Sacks From the People’s Republic of China: Final Affirmative Countervailing Duty Determination and Final Affirmative Determination, in Part, of Critical Circumstances, pp. 35639-35640.
反补贴调查通知：Certain New Pneumatic Off-the-Road Tires From the People''s Republic of China: Initiation of Countervailing Duty Investigation, pp. 44122 and 44124. 反补贴调查初裁：Certain New Pneumatic Off-the-Road Tires From the People''s Republic of China: Preliminary Affirmative Countervailing Duty Determination, p. 71361. 反补贴调查终裁：Certain New Pneumatic Off-the-Road Tires From the People''s Republic of China: Final Affirmative Countervailing Duty Determination and Final Negative Determination of Critical Circumstances, p. 40481.
原文：China claims, in respect of the provision of goods (inputs), that the USDOC''s determinations that certain SOEs were "public bodies" were inconsistent with Article 1.1(a)(1) of the SCM Agreement. Thus, China argues, the USDOC''s findings in the four countervailing duty investigations of financial contributions by a government in the form of provision of goods to respondent producers were inconsistent with Article 1.1 of the SCM Agreement. Panel Report(379) , para. 8.2.
原文：China claims, in respect of the provision of loans, that the USDOC''s determinations that certain SOCBs were "public bodies" were inconsistent with Article 1.1(a)(1) of the SCM Agreement. Thus, China argues, the USDOC''s finding in the OTR countervailing duty investigation of financial contribution by a government in the form of alleged "policy lending" was inconsistent with Article 1.1 of the SCM Agreement. Panel Report(379) , para. 8.2.
Panel Report(379) , para. 3.1.
AGREEMENT ON SUBSIDIES AND COUNTEVAILING MEASURES
Part I: General Provisions
Article 1: Definition of a Subsidy
1.1 For the purpose of this Agreement, a subsidy shall be deemed to exist if:
(a)(1) there is a financial contribution by a government or any public body within the territory of a Member (referred to in this Agreement as “government”), i.e. where:
(i) a government practice involves a direct transfer of funds (e.g. grants, loans, and equity infusion), potential direct transfers of funds or liabilities (e.g. loan guarantees);
(ii) government revenue that is otherwise due is foregone or not collected (e.g. fiscal incentives such as tax credits)1;
1. In accordance with the provisions of Article XVI of GATT 1994 (Note to Article XVI) and the provisions of Annexes I through III of this Agreement, the exemption of an exported product from duties or taxes borne by the like product when destined for domestic consumption, or the remission of such duties or taxes in amounts not in excess of those which have accrued, shall not be deemed to be a subsidy.
(iii) a government provides goods or services other than general infrastructure, or purchases goods;
(iv) a government makes payments to a funding mechanism, or entrusts or directs a private body to carry out one or more of the type of functions illustrated in (i) to (iii) above which would normally be vested in the government and the practice, in no real sense, differs from practices normally followed by governments;
or
(a)(2) there is any form of income or price support in the sense of Article XVI of GATT 1994;
and
(b) a benefit is thereby conferred.
《SCM协定》第1条(a) (1)的(i)、(ii)、(iii)、(iv) 在分别规定“财政资助”的判断依据，事实上，该案并未争论关于热轧钢、贷款以及土地的提供是否构成“财政资助”的问题。
原文：China challenges as invalid the USDOC''s findings in the investigations at issue that SOEs producing inputs, and SOCBs providing loans, were "public bodies" within the meaning of Article 1.1(a)(1) of the SCM Agreement. Therefore, China considers inconsistent with that Article the USDOC''s determinations that the provision of inputs and of loans by these entities constituted financial contributions by public bodies. China argues that in the absence of evidence that these entities were vested with and exercised governmental authority, as a matter of law their actions needed to be deemed those of private, not public bodies. Panel Report (379) , para. 8.3.
原文：Given this, only if the USDOC had found that these entities were "entrusted or directed" in the sense of Article 1.1(a)(1)(iv) of the SCM Agreement to provide the inputs or the loans could it have lawfully concluded that that the financial contributions were made by the Government of China. Panel Report(379) , para. 8.3.
原文：China maintains that because the USDOC did not examine whether there had been such entrustment or direction, its determinations of financial contributions by the Government of China were inconsistent with Article 1.1 of the SCM Agreement. Panel Report(379) , para. 8.3.
类似主张：China asserts that it is not arguing that government-owned entities can never be public bodies within the meaning of Article 1.1(a)(1), but rather that their conduct should be deemed presumptively private, and consistent with that presumption, their conduct ordinarily should be examined under the entrustment or direction standard of Article 1.1(a)(1)(iv) of the SCM Agreement. If the evidence in a particular case established that a government-owned entity was exercising delegated authority to perform functions of a governmental character, then it would be appropriate to conclude that it was a public body and that subparagraph (iv) was inapplicable. But absent such evidence, China argues, subparagraph (iv) should apply and there is no legitimate justification in the text, context or object and purpose of the SCM Agreement for the arbitrary test the United States has advanced that would make such entities public bodies in all cases merely by virtue of their government ownership. Panel Report(379) , para. 8.6.
中国确信国有企业不执行政府职能，这是对其有利的事实证据，事实上，世界各国的国有企业中执行政府职能的应该是微乎其微，因为，国有企业本来就不是为执行政府职能而设立的实体。
依据上述中国的解释（以能够成立为条件），因为“国有企业”被排除于“公共机构”（通常是不执行政府职能的）的范围，若试图将“国有企业”纳入补贴提供主体范围，可选择的办法就是按照《SCM协定》第1条1.1(a)(1)(iv)的规定来证明“国有企业”也与“私营企业”一样，是受到了来自政府的“指示”或“委托”后提供了原材料和贷款，不然无法认定政府提供了“财政资助”。
WT/DS296/AB/R : United States – Countervailing Duty Investigation on Dynamic Random Access Memory Semiconductors (DRAMS) from Korea (27 June 2005, Report of the Appellate Body).
原文：China argues that the Appellate Body recognized in US – Countervailing Duty Investigation on DRAMS that under well-established principles of customary international law, the actions of state-owned corporate entities are prima facie private, and thus presumptively not attributable to a Member under Article 1.1 of the SCM Agreement. Panel Report(379) , para. 8.4. 关于如何解释《SCM协定》第1条规定的“公共机构”，中国在援引“美国对韩国半导体反补贴调查案”上诉机构报告中对国际习惯法的确认。因为争论的是《SCM协定》规定的用语（“公共机构”），在论证法律依据时，按道理不应该提被争论的协定。“…and thus presumptively not attributable to a Member under Article 1.1 of the SCM Agreement”中的“under Article 1.1 of the SCM Agreement”的意思是什么呢？需要中国作出说明。
这是中国引用的“美国对韩国半导体反补贴调查案”上诉机构报告的原文，从中可以看出，该案上诉机构援引了“美国出口限制构成补贴案”上诉机构所做的解释。
原文：China argues that instead of focusing as it should have on whether the SOEs and SOCBs were "private bodies" that had been "entrusted or directed" by the Government of China or a public body to provide inputs and loans, respectively, the USDOC relied on a per se rule of majority government ownership in determining that these entities were "public bodies". Panel Report(379) , para. 8.4.
原文：In China''s view, this interpretation of the term "public body" is impermissible under a correct application of the principles of treaty interpretation. Panel Report(379) , para. 8.4.
原文：For China, while government ownership is relevant to the question of control, and thus to the inquiry in Article 1.1(a)(1)(iv) as to whether a private body has been directed to perform governmental functions, ownership has little relevance in determining whether an entity is a public body. Panel Report(379) , para. 8.4.
如上所述，中国承认，只有在不能提出“国有企业”在执行政府职能的证据时，才将其行为视为“私营机构”的行为，这说明，没有前者后者是无法成立的，事实上，有关“国有企业”执行政府职能的证明是对“公共机构”作出解释之后的事情。
应详细考察关于国有企业行为的国际习惯法原则的背景和适用条件。DSU未作出关于适用规则的一般性规定，《WTO协定》构成争端解决程序的适用规则是当然的事情。DSU中涉及到除《WTO协定》以外的国际法规则的规定如下：
Article 3 General Provisions
2. The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements. 该规定所指的“关于解释国际法的习惯规则”是指《维也纳条约法公约》第31条和第32条（习惯规则的法典化），这是WTO争端解决机制专家组和上诉机构一致承认的法律问题。
