THE IMPORTANCE OF EXCLUDING CRISIS-RESPONSE MEASURES FROM THE SCOPE OF ACTIONABLE AND PROHIBITED SUBSIDIES UNDER THE ASCM

This paper examines crisis considerations in the Agreement on Subsidies and Countervailing Measures (ASCM) and points to the lack therein by examining the applicability of the provisions of the ASCM to subsidies made to combat the impacts caused by a crisis. It investigates the term ‘crisis’ from the perspective of international law and examines subsidy programmes designed as crisis-response subsidies during the COVID-19 pandemic from a practical perspective, and their status in anti-subsidy investigations. After examining scholars' opinions on the lack of crisis considerations in the ASCM, and their proposal to revive nonactionable subsidies, this research illuminates the increasing relevance of non-actionable subsidies in the context of crisis.  The paper concludes that reforming non-actionable subsidies is crucial to prevent subjection to the imposition of countervailing duties (“CVDs”) or a higher duty of CVDs involving the calculation of crisis-response subsidies. It also notes that revival of non-actionable subsidies must include broadening its scope to incorporate measures designed to combat crises and mitigate their impacts and provide a set of standards to assist in the design of future reforms. It further emphasises that a reform of non-actionable subsidies is crucial to prepare for future crises. Doing so would provide countries with exceptions that they can invoke to combat a crisis, mitigate its impacts and ensure smooth economic recovery.