The Threat of Material Injury Standard in Countervailing Duty Enforcement

One purpose of passage of the Trade Agreements Act of 1979 was to bring U. S. countervailing duty and antidumping law into conformity with the comparable laws of GATT trading partners by raising the standard required for enforcement action by the International Trade Commission. While the material injury standard adopted in the Act had its origins in the GATT, the standard was also influenced by other international agreements, as well as the history of U.S. countervailing duty law and its application by the ITC -- sources which were often inconsistent, if not contradictory. The threat of material injury standard was particularly difficult to interpret because it was not separately defined from material injury in the Act and, unlike the definition of material injury, it did not require a showing of measurable injury to a domestic industry. The statutory vagueness of the threat standard troubled critics who felt it would be an unmanageable and ineffective guideline for enforcement action. The author argues, however, that an examination of ITC decisions under this standard demonstrates not only that the standard is intelligible but also that it provides an adequate guide for a coherent, predictable, and supportable enforcement policy which is consistent with the GATT