Anti-dumping Law Research Articles

Input Cost Adjustments and WTO Anti-Dumping Law: A Closer Look at the EU Practice

AbstractIn anti-dumping procedures, the EU authorities have adjusted State-distorted input costs in the constructed normal value to market benchmarks. This methodology increases the amount of anti-dumping duties and hence import barriers to foreign goods produced with low-priced raw materials. Such cost adjustments are based on certain EU anti-dumping provisions that implement corresponding World Trade Organization (WTO) rules under which the cost of input must be derived, as a principle, from the records of target companies in the exporting country if those records, inter alia, reasonably reflect production costs of the product under investigation. But in the case of input costs distorted by the government, the EU authorities have typically deviated from this principle relying on alternative sources on the grounds of unreasonable costs. While the EU jurisprudence has so far been generally lenient towards this methodology as applied to significant distortions in the raw material (upstream) market, the recent WTO appellate ruling inEU–Biodieselis rather negative on its use in the presence of the valid domestic records. This article examines the EU anti-dumping practice as reviewed in both EU and WTO judicial proceedings and discusses some legislative reforming options under both regimes. It concludes that the WTO anti-dumping rules should be amended to allow market-oriented cost adjustments in the normal value, on the one hand, and ensure parallel export price adjustments, on the other.

The New Brazilian Anti-Dumping Regulation: A Balance of the First Years

In 2013, Brazil issued a new anti-dumping regulation: Decree 8058/2013. The new rules came under a context of enhancement of the trade remedies system, in the scope of an industrial policy that aimed to protect the domestic production against imports. Since then, Brazilian public policies changed significantly, becoming more focused on seeking new markets for exports instead of protecting the domestic market. Nonetheless, the new anti-dumping law has changed permanently the trade remedies system in Brazil. This article reviews developments in the modernization of Brazil’s anti-dumping law. What it means for companies using the law or subject to it is important. Here are the key things you need to know. First, the new anti-dumping legislation was designed to encourage full participation by the exporters, providing for a mandatory lesser duty benefit for cooperating exporters, and for several opportunities of defence. Second, the new legislation provides for a detailed administrative process, involving deadlines applicable to the interested parties and to the investigating authority, with the purpose of expediting the process. Third, although the Brazilian law provides for several kinds of reviews, some of them were not used yet. Finally, anti-dumping duties may be suspended due to public interests, normally after an administrative procedure for this end.

미국 반덤핑법상 ‘특별한 시장상황’의 적용과 WTO협정

트럼프의 보호주의무역정책은 무역구제조치의 적용에 있어 가시적으로 나타나고 있다. 트럼프 행정부 출범일인 2017. 1. 20. 이후 2017. 10. 19. 현재 총73건의 반덤핑과 상계관세 조사에 착수했으며, 동일 현재 412건의 반덤핑/상계관세 조치를 유지하고 있다. 이는 2001년 조지 부시 첫해의 공세를 넘어서는 유사 이래 최고의 수치이다. 또한 양적 증가 이외에 질적인 변화도 나타나서 무역구제조치 남용의 우려가 높아지고 있다.BR 미국은 2015년 무역특혜연장법(Trade Preferences Extension Act)의 Title V에 의해 관세법(Tariff Act of 1930)을 개정하였는 바 그 주요내용중 하나는 정상가격 산정시 ‘특별한 시장상황’(Particular Market Situation, PMS)이 존재하는 경우에는 수출국 국내가격과 비용을 무시할 수 있는 권한을 확대한 것이다(제504조). 이 개정법으로 상무부는 조사대상 물품의 판매에 구체적으로 관련된 시장환경뿐만아니라 에너지나 자연자원과 같은 투입요소를 포함한 산업 일반에의 정부의 관여도와 같은 보다 광범위한 경제적 고려를 할 수 있게 되었다. 최근 상무부는 한국산 유정용 강관에 대한 반덤핑 행정재심 이래의 사건에서 적극적으로 특별한 시장상황 규정을 적용하고 있다.BR 오랫동안 소극적으로 적용하던 ‘특별한 시장상황’ 규정을 시장경제국가에 적용하는 것은 중국에게 이를 적용하기 위한 사전정지작업이라는 해석도 가능하다. 중국에 적용되는 ‘특별한 시장상황’이 최혜국대우 원칙에 따라 그와 유사한 상황이 존재하는 경우 시장경제국가에도 적용되는 것이다. 하지만 이는 특별한 시장상황에서의 반덤핑조치의 적용에 관한 WTO반덤협정 제2.2조와 GATT 제VI:1조에 관한 보충규정 2의 허용한도를 넘어설 우려가 있는 조치라고 할 것이다.

China's Litigation on Non-Market Economy Treatment at the WTO: A Preliminary Assessment

As promised, China brought a WTO dispute against the US and the EU respectively regarding their antidumping laws, which continue to authorise the application of the so-called non-market economy (NME) methodology. This case was initiated one day after the expiry of paragraph 15(a)(ii) of China’s WTO Accession Protocol on 11 December 2016. Through a preliminary analysis of China’s claims in the request for consultation with the EU, this paper argues that the expiration of paragraph 15(a)(ii) has terminated the right of WTO Members to use surrogate prices or costs for price comparison in antidumping actions against China solely based on their national market economy criteria. The use of surrogate prices or costs must now comply with the relevant WTO rules applicable to all WTO Members. On this basis, the challenged EU measure is likely to be found WTO-inconsistent. Towards this end, WTO Members may continue to label China as an NME for political or other reasons under their national laws. However, whatever this label may entail, it no longer justifies the application of the NME methodology.

China’s Litigation on Non-Market Economy Treatment at the WTO: A Preliminary Assessment

As promised, China brought a WTO dispute against the US and the EU respectively regarding their antidumping laws, which continue to authorise the application of the so-called non-market economy (NME) methodology. This case was initiated one day after the expiry of paragraph 15(a)(ii) of China’s WTO Accession Protocol on 11 December 2016. Through a preliminary analysis of China’s claims in the request for consultation with the EU, this paper argues that the expiration of paragraph 15(a)(ii) has terminated the right of WTO Members to use surrogate prices or costs for price comparison in antidumping actions against China solely based on their national market economy criteria. The use of surrogate prices or costs must now comply with the relevant WTO rules applicable to all WTO Members. On this basis, the challenged EU measure is likely to be found WTO-inconsistent. Towards this end, WTO Members may continue to label China as an NME for political or other reasons under their national laws. However, whatever this label may entail, it no longer justifies the application of the NME methodology.

The Compatibility of South African Anti-Dumping Laws with WTO Disciplines

This article evaluates the compatibility of South African laws on anti-dumping with the WTO disciplines set forth in the Anti-Dumping Agreement. It analyses the provisions of the International Trade Administration Act 2002 and the Anti-Dumping Regulations 2005 to examine whether South Africa has been adhering to its WTO obligations. The South African law on this subject is largely incompatible with its WTO counterpart in matters of, inter alia, the calculation of the constructed export price, the determination of material injury and a causal relationship, the imposition of provisional and definitive anti-dumping duties and the procedure for review. This has in turn resulted in strained relationships between South Africa and the other members of the international community in regard to the procedures adopted during anti-dumping investigations.

Russian Gas Dual Pricing Consistency with WTO Law: A Question That Might Have Been Answered

Russia sells its gas domestically at a price lower than the one used for the exported gas, creating the so-called situation of “dual pricing”. This difference leads to lower prices for final products that use gas as an input, which consequently pose competition problems for products originating in other Members. The purpose of the present thesis is to answer whether the practice of gas dual pricing in Russia’s case is WTO consistent. Based on the historical background, the thesis concludes that the status of dual pricing is not expressly enshrined in WTO law and it is unlikely that it will be soon. Moreover, by analysing Russia’s accession commitments and its national legislation it reaches the conclusion that gas dual pricing will not end in the near future. Since dual pricing is not expressly prohibited in WTO law, the thesis further analyses the consistency of Russian gas dual pricing with the WTO subsidies rules. It concludes that the specificity requirement that a subsidy has to comply with is not present. Moreover, where for the specificity requirement to be overcome there are other requirements that can pose hurdles for a subsidy to be found. Short after its accession Russia commenced three cases against anti-dumping measures imposed by the EU and Ukraine on the Russian products that used cheaper gas. By using the recent reasoning of the AB in EU – Biodiesel, a case that can provide with answers to dual pricing consistency with anti-dumping law, the thesis anticipates that anti-dumping measures imposed by the EU and Ukraine will be found in violation of anti-dumping rules. Even though Russian gas dual pricing is found consistent with subsidies and anti-dumping rules, the thesis concludes that the question of its compatibility with WTO law should not be considered fully closed, because of the discontent of other Members that can be manifested in legislative proposals for changes in WTO rules, and also because of the possibility of other existing provisions to be invoked by the affected Members.

Cost of Production Calculation in EU Anti-Dumping Law: WTO Consistent 'As Such' after EU Biodiesel

The present article addresses the consistency of the method of calculation of the cost of production based on Art. 2(5) of the EU Anti-dumping Basic Regulation. It assesses the reasoning of the AB in EU – Biodiesel in the context of the ordinary meaning of the Anti-Dumping Agreement and existing WTO case law. It further identifies four main situations in which the application of Art. 2(5) of the EU Anti-dumping Basic Regulation will be influenced by the EU – Biodiesel case: the issue of input dumping in a distorted market, the problem of possible alternatives for China if recognized as a ME, the question of double remedy, and the EU modernization of trade remedies.

Anti-dumping practice in India: due process, confidentiality and the WTO standards

The trade remedy laws of India, as a Member to the World Trade Organisation, are governed by provisions of the relevant Agreements, including the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, commonly referred to as the AD Agreement. India deserves special mention as the highest user of trade remedy laws in the world. One would imagine that such a rich history of anti-dumping investigations would have resulted in highly sophisticated jurisprudence in India and by now, India should have added to the jurisprudence and understanding of the AD Agreement. Reality disagrees and this article explores recent, but interesting, developments highlighting progress and regress of Indian anti-dumping law and practice.

Circumvention of Anti-Dumping Measures: Law and Practice of India

This article presents an overview of the substantive and procedural aspects of the anti-circumvention rules introduced in the Indian anti-dumping law in 2011. Invoked for the first time this year since their introduction, the Indian anti-circumvention provisions while covering the traditional forms of circumvention, in the author’s view, are multi-interpretable and give the investigating authority significant discretion in their application. While the WTO-compatibility of anti-circumvention rules in general remains questionable, seen against the law and practice of other WTO members such as the European Union, the Indian anti-circumvention rules need further clarity and precision, and can be reasonably expected to be influenced by the approach of more experienced users.

A Close Look at the U.S. Steel Industry: Protective Tariffs and Their Effect on the Economies of East Asia

The U.S. steel industry has a long history of being protected, first when it was an infant industry in 1791 and later as it became a mature industry and needed breathing room to allow it to restructure so that it could compete against more efficient foreign producers. In recent years the steel industry has resorted to antidumping laws to ward off foreign competition. In the first quarter of 2002, President Bush imposed tariffs of up to 30 percent on foreign steel producers in many countries, including those in East Asia. This tariff, which was the result of a finding that some foreign steel companies had dumped their steel on the American market, may be the first shot in what might become a trade war. A number of countries have filed protests with the WTO seeking compensation for the tariff and some countries have already taken retaliatory measures. These recent trade actions have a ripple effect throughout the East Asian countries, including Korea, and the world. For example, if the United States market becomes closed to the steel companies in the EU, those steel companies will have to try to sell more steel within the EU at a time when Chinese, Korean and Japanese steel companies will also be trying to penetrate the EU market to make up for lost American sales. This paper will explore some of these issues, with an emphasis on the effects that steel protectionism in the United States will have on their industries and their economies. A different version of this paper was first published in 2002 and was reprinted in 2009. The present version includes a bibliography on trade, including links to more than 100 studies on trade.

Rethinking the U.S. Antidumping Laws with Reference to China, Japan and Korea

The stated purpose of the antidumping laws is to prevent unfair trade and to punish foreign producers for predatory pricing. The practical effect, however, is to prevent foreign producers from selling their products in a domestic market, even when pricing has not been abnormally low or predatory. The way the antidumping laws are structured, domestic producers can enlist the help of government to prevent foreign competition even when there has been no dumping. This paper examines recent trends in the application of antidumping laws, with special reference to the three East Asian trading partners of the U.S., China, Japan, and South Korea, both as a target and as an initiator of antidumping investigations. The paper points out some welfare problems with antidumping laws -- they are a negative sum game -- and discusses whether the antidumping laws are capable of being reformed. A different version of this paper was first published in 2002 and was reprinted in 2009. The present version includes a bibliography on trade, including more than 100 links to studies on trade.

The Ethics of the U.S. Antidumping Laws and Policies

This paper examines the question of whether it is ethical for company officials to use the force of government to reduce or eliminate foreign competition, using the antidumping laws as a case study. This paper begins with a brief examination of the U.S. antidumping laws, then examines several ethical questions related to the antidumping laws. The main question to be addressed is whether, and under what circumstances, it is ethical for domestic producers to ask government to launch an antidumping investigation against a foreign competitor. Related questions to be examined include:(1) Whether it is ethical to ask the government to launch an antidumping investigation even when the domestic company making the request knows that dumping has not occurred; (2) Whether it is ethical to ask for an antidumping investigation in cases where dumping (according to the definition of dumping) has occurred, where the effect is to help domestic producers at the expense of the general public. This paper will examine these questions by applying both utilitarian and non-utilitarian approaches. A bibliography with links to more than 100 articles on trade is also included.

What's Wrong with America's Antidumping Policy?

Antidumping actions have been an increasingly popular means of dealing with alleged unfair international trade practices in the last few decades. In the 1970s, only the United States and a few other countries used antidumping laws to prevent or punish foreign producers for alleged inappropriate trade policies, but these laws have become much more popular and widespread since the creation of the World Trade Organization. This paper discusses some of the most serious problems with the current U.S. antidumping policy. A bibliography with links to more than 100 articles on trade is also included.

Price Comparisons under the South African Anti-dumping Laws

South Africa has been one of the most prolific users of anti-dumping, where the number of investigations initiated by it has far outweighed the number of imports. The methods adopted by South African anti-dumping authorities have been quite polemic given the consistent faux pas in determining if the prices of the imported product and the domestic product are even comparable. Moreover, in the real world, it rarely happens that the products being sold in the domestic market of the exporting country and the ones being sold to the importing country are physically identical, and sold under the same conditions in both these markets. Accordingly, it becomes fundamental for South Africa’s anti-dumping authority—the International Trade Administrative Commission—to ensure that these prices, namely the normal value and the export price, are comparable, before adjudging whether or not the domestic industry has suffered injury as a result of dumping. Hence, both these prices would need certain adjustments to be made, in compliance with the WTO’s Anti-Dumping Agreement, to ascertain that they have occurred at the same level of trade. Additionally, because anti-dumping duties, either in the form of provisional or definitive duties, can only be imposed by investigating authorities after they have determined that the dumped imports have caused injury to the domestic market, price comparisons become increasingly vital and in turn influence the analysis of the effect of prices on the domestic like product. This article thus analyzes price comparisons under South Africa’s most recent anti-dumping investigations, to determine whether these are even consistent with the Anti-Dumping Agreement requirements on the same.

Panel Report on eu—Biodiesel: A Glass Half Full?—Implications for the Rising Issue of “Particular Market Situation”

This article provides a detailed analysis of the World Trade Organisation (“wto”) panel report on the eu—Biodiesel dispute which represents the latest development of the wto jurisprudence on anti-dumping. The panel’s decision has significant implications for the rising use of Particular Market Situation (“pms”) by traditional users of anti-dumping (such as Australia) against economies like China in anti-dumping investigations. The panel correctly established that a finding of pms does not provide a sufficient ground for the use of surrogate costs in the determination of constructed normal value (“cnv”) and that the use of that methodology would result in the imposition of anti-dumping duties in excess of dumping margins that should have been established consistently with the wto Anti-Dumping Agreement, that is, by using actual costs recorded by exporters under investigation. It is argued that both Australia’s anti-dumping laws which essentially authorise the use of surrogate costs in the construction of normal value solely based on a finding of pms and Australia’s use of that methodology in practice are contrary to wto rules. The panel’s decision, therefore, is a positive step toward the resolution of the issues related to pms by imposing constraints on the use of a protectionist methodology in determining cnv so as to prevent unjustified inflation of dumping margins and anti-dumping duties.

What’s Wrong with EU Anti-Circumvention Rules and How to Fix it

Where circumvention of anti-dumping duties is taking place, some countries’ anti-dumping laws allow the extension of the anti-dumping duty to imports of the like product from a third country, or of a slightly modified product from a third country or the country subject to the duty. The objective of anti-circumvention rules is to ensure the effectiveness of the imposed anti-dumping duties, i.e. that no unfairly traded products are sold on the export market. However, most anti-circumvention rules do not require the investigating authorities to conduct a fully fledged anti-dumping investigation in order to extend the anti-dumping duties. Taking EU anti-circumvention provisions as an example, this article explains, first, that anti-circumvention provisions are imperfect in addressing circumvention practices from a substantive perspective; second, that these provisions arguably are inconsistent with the World Trade Organization’s Anti-dumping Agreement; and, third, that the laudable objective behind such rules can be achieved by using other legal tools.

Antidumping Laws Should Be Consigned to the History Books

Antidumping laws have existed in some form since the early twentieth century. Ostensibly aimed at protecting domestic producers from unfair trade practices, they have frequently been used as weapons of protectionism even when dumping has not occurred. When this happens, some special interest group gains at the expense of the general public. Studies have found that antidumping laws result in a negative-sum game, since the losses exceed the gains, an outcome that violates utilitarian ethical principles. Antidumping laws also violate property and contract rights, since they prevent consenting adults from trading the property they have for the property they want. This paper begins with a review of the theory and practice of antidumping laws, then proceeds to apply ethical principles to determine whether individuals who launch antidumping investigations are acting ethically and concludes that President Barack Obama “needs to be bold on trade” by starting out with correcting the popular view that “dumping” is bad and those who dump should be penalized. Frederic Bastiat pointed out the fallacy of this view in 1845, yet the view is not only still with many American politicians but widely believed to be true among U.S. domestic manufacturers. President Obama should proclaim the following: In a free enterprise economic system, domestic producers have no inherent claim on the funds of consumers. The only ethical way of obtaining consumer funds is through voluntary trade. Using the force of government to obtain the funds (by prohibiting foreign suppliers from competing) puts domestic producers in the role of the aggressor, and in fact makes consumers the real victims. That is exactly what happens when a domestic producer appeals to the government to request an anti-dumping investigation against some foreign producer that is merely taking away business. Therefore, all anti-dumping laws and policies should be abrogated to promote freer trade. A bibliography containing links to more than 100 trade articles is also included.

Emergency Medical Treatment and Labor Act: What Every Physician Should Know About the Federal Antidumping Law

Since 1986, the Emergency Medical Treatment and Labor Act (EMTALA) has imposed an obligation on hospitals and physicians to evaluate and stabilize patients who present to a hospital ED seeking care. Available sanctions for noncompliance include fines, damages awarded in civil litigation, and exclusion from Medicare. EMTALA uses several terms that are familiar to physicians (eg, "emergency medical condition," "stabilize," and "transfer"), but the statutory definitions do not map neatly onto the way in which these terms are used and understood in clinical settings. Thus, there is potential for a mismatch between a physician's on-the-spot professional judgment and what the statute demands. We review what every physician should know about EMTALA and answer six common questions about the law.

Farm Frites v International Trade Administration Commission Case 33264/14 GN

On 20 May 2014, in the High Court, Bam J passed judgement that may have far-reaching implications for the administration of the law of unfair international trade, specifically anti-dumping law, in South Africa. It is submitted that the decision could lead to abuse of administrative powers by the International Trade Administration Commission (ITAC), the authority responsible for conducting anti-dumping investigations. This is the second judgement that severely curtails the rights of interested parties, following on International Trade Administration Commission v SCAW South Africa (Pty) Ltd Case CCT 59/09 2010 (CC) 6.