China-Australia relations: Canberra’s path through the WTO looks to be riddled with hurdles and pitfalls

Challenging China’s anti-dumping duties on barley exports at the World Trade Organization would be an uphill battle with little payoff, trade lawyers say

The WTO’s Appellate Body remains defunct, meaning Canberra could be appealing ‘into the void’ if no settlement is reached with China

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The odds appear to be stacked against Australia in any attempt to make a claim with the World Trade Organization to challenge China’s anti-dumping duties on barley exports, according to international trade experts. Photo: Getty Images

Published: 5:00am, 8 Dec 2020Updated: 7:13pm, 15 Dec 2020

Australia will be heading down a difficult road if it follows through with intentions to challenge China’s anti-dumping duties on barley exports at the World Trade Organization (WTO), as the global trade body’s appeal court sits empty, and with the potential rewards being minimal, according to international trade lawyers.

Australia’s trade minister, Simon Birmingham, vowed two weekends ago – a day after the Chinese government imposed provisional anti-dumping duties on Australian wine – that Australia would bring a case to the WTO amid local industry support.

China imposed a tariff of 80.5 per cent on Australia’s barley exports in May following the conclusion of China’s 18-month anti-dumping investigation, ruling that the dumping of cheap Australian barley had hurt its domestic market. The duties comprised an anti-dumping tariff of 73.6 per cent and a countervailing subsidy margin of 6.9 per cent.

Australia lashed out at the barley duties at a meeting of the WTO’s Committee on Anti-Dumping Practices in Geneva, Switzerland, on October 28, criticising China’s investigation and claiming that a flawed assessment led to a miscalculation of the duties charged.

But the odds are already stacked against Australia in any attempt to make a claim with the WTO, especially if Canberra fails to settle the case with Beijing during preliminary consultations.

That is because the WTO’s Appellate Body has no serving judges for the first time in the organisation’s 25-year history, after last week’s departure of the Chinese member – the last among the appeals panel – completely eroded the WTO’s ability to handle disputes.

“There is not a single Appellate Body member. Assuming the situation does not change in the coming year, neither Australia nor China could have their appeal heard,” said Julien Chaisse, a trade professor at City University of Hong Kong.