Causal Link, Non Attribution and Contingent Protection in the WTO

Abstract

In several recent cases brought before the WTO's Dispute Settlement Body, several WTO Members have been taken to task for supposedly failing to comply with their obligations on establishing that a existed between imports and injury caused to a domestic industry while at the same time failing to not attribute injury caused by other factors to injury caused by imports. Under WTO law, an investigating authority conducting, say, an antidumping investigation, must demonstrate that the harm suffered by a domestic industry is caused by the dumped imports. It must specifically not attribute injury caused by other factors to the dumped imports. (GATT VI [1] and VI [6] [a], as well as Articles 3.4, 3.5 of The WTO Antidumping Agreement).Similar obligations exist for domestic authorities conducting countervailing duty investigations with regard to subsidized imports and safeguards investigations with regard to an increase in imports due to unforeseen developments in the wake of trade liberalization.From the cases that have been brought before the WTO over the last several years, where a violation to demonstrate a or a non-attribution violation has been alleged, the panels established to hear these cases and the Appellate Body asked to review the respective panels' finding have had a difficult time laying out clear and practicable criteria or standards that would provide domestic authorities with the kind of guidance they might need in order to be able to act in compliance with their WTO obligations. The result is a certain amount of confusion and dissatisfaction among all concerned.The paper will examine the rules and case-law on antidumping, countervailing duties and safeguards under the WTO Uruguay Round agreements and attempt to examine what is meant by a causal link between imports and injury to a domestic industry. This analysis will include an examination of the obligations which ensue from the non-attribution language contained in the relevant WTO agreements.