Proposals sent out for comment by the US Department of Commerce (DoC) that would extend the scope of the ongoing trade case could be illegal, according to a lawyer representing the Chinese government.

The DoC has suggested that products with Chinese or Taiwanese cells and modules assembled in China with cells from any other country be included in the scope of the ongoing investigation.

This would include US-based cell maker Suniva. Suniva has already asked the DoC to exclude US cells from the scope.

Richard Weiner, lawyer with Sidley Austin representing Chinese manufacturers, said the change, if adopted, would fall foul of WTO and US rule.

“We are studying the proposal and it appears to expand the scope beyond the scope at initiation [of the investigation] which would be contrary to applicable law,” Weiner told PV Tech.

“It risks treating China less favourably than other countries in contravention to WTO most favoured nation provision in the WTO anti-dumping agreement,” he added.

The most favoured nation regulation means trading partners must be treated equally. Using different criteria for inclusion for China than for other countries would appear to breach this, Wiener said.

“The good news is that the DoC is ready to jettison SolarWorld’s proposed ‘two out of three’ rule, which was never capable of proper administration. But what stands in its place is another proposed rule that is equally incapable of administration,” added Weiner.

Malaysian and Korean cell manufacturers could also be affected if Chinese manufacturers can no longer use their cells to create tariff-free modules.

Tim Brightbill, chief trade counsel for SolarWorld and a partner at Wiley Rein, welcomed the proposals however.

“We appreciate the department’s scope proposal, which we view as a positive development in these cases. Commerce’s proposal appears to be comprehensive and would address all of China and Taiwan’s unfair trade practices,” Brightbill said in a statement to PV Tech.

“The proposed scope would also be much easier for Commerce to administer and for US Customs and Border Protection to enforce. SolarWorld will continue to review the proposal and will provide comments as appropriate,” added Brightbill.

Comments on the proposals are due on 14 October with rebuttal comments due on 20 October.