The Curious Case of the Non-co-operating Interested Party in Anti-dumping Investigations in South Africa: A Critical Analysis of Farm Frites International v International Trade Administration Commission

Abstract

This article critically reflects on the position of the non-co-operating interested party in anti-dumping investigations in South Africa through a detailed study of the case between Farm Frites International and the International Trade Administration Commission. The article finds that the ‘essential facts letter’ is not the only factor under consideration by ITAC in making a final determination of ‘dumping’ in South African law. Secondly, the article finds that the applicant failed to prove it will suffer ‘severe prejudice’ because ITAC is legally entitled to disregard the submissions of a non-co-operating interested party and then to proceed on the basis of the ‘facts available’ or the ‘best information available’ and therefore any prejudice suffered was wholly self-inflicted. In the alternative, the article finds that even in the event that ‘serious prejudice’ was proved by the applicant, the application would nevertheless fail because such ‘prejudice’ could still be undone or remedied by the recommendation of ITAC to the minister and/or by the final decision of the minister.