world trade organisation, Study Guides, Projects, Research of International Trade Union Law

Download world trade organisation and more Study Guides, Projects, Research International Trade Union Law in PDF only on Docsity! The WTO-Agreement on Anti-Dumping UNIT 3 INTERNATIONAL TRADE LAW Structure I • Principles • Determination of Dumping • Determination of Injury • Definition of Domestic Industry • Initiation of Subsequent Investigation • Evidence • Provisional Measures • Price Undertakings • Imposition and Collection of Anti-Dumping Duties • Retroactivity • Duration and Review of Anti-Dumping Duties and price Undertakings Determination of Dumping I • For the purpose of this Agreement, a product is to be considered as being dumped, i.e. introduced into the commerce of another country at less than its normal value, if the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country (Art. 2.1.) Determination of Dumping II • When there are no sales of the like product in the ordinary course of trade in the domestic market of the exporting country or when, because of the particular market situation or the low volume of the sales in the domestic market of the exporting country, such sales do not permit a proper comparison, the margin of dumping shall be determined by comparison with a comparable price of the like product when exported to an appropriate third country, provided that this price is representative, or with the cost of production in the country of origin plus a reasonable amount for administrative, selling and general costs and for profits (Art. 2.2.) Determination of Dumping III • In cases where there is no export price or where it appears to the authorities concerned that the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or if the products are not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as the authorities may determine (Art. 2.3.) Determination of Dumping VI • Throughout this Agreement the term “like products” (“produit similaire”) shall be interpreted to mean a product which is identical, i.e. alike in all respects to the product under consideration, or in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the product under consideration. (Art. 2.6.) Determination of Dumping – Examples I Date Quantity Normal Value Export price 1/8 10 40 (excl.) 50 10/08 10 100 100 15/08 10 150 150 20/08 10 200 200 Average normal value: 150 Average export price : 125 Dumping Margin: 20 Source: Unctad, Training Module on the WTO Agreement on Anti-Dumping, 2006 Determination of Dumping – Examples II Date Quantity Normal Value Export price 1/8 10 40 50 10/08 10 100 100 15/08 10 150 150 20/08 10 200 200 Average normal value: 122,5 Average export price : 125 No Dumping Source: Unctad, Training Module on the WTO Agreement on Anti-Dumping, 2006 Determination of Injury I • A determination of injury for purposes of Article I of GATT 1994 shall be based on positive evidence and involve an objective examination of both (a) the volume of the dumped imports and the effects of the dumped imports on prices in the domestic market for like products, and (b) the consequent impact of these imports on domestic producers of such products (Art. 3.1.) Determination of Injury II • With regard to the volume of the dumped imports, the investigating authorities shall consider whether there has been a significant increase in dumped imports, either in absolute terms or relative to production or consumption in the importing Member. With regard to the effect of the dumped imports on prices, the investigating authorities shall consider whether there has been a significant price undercutting by the dumped imports as compared with the price of a like product of the importing Member, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which otherwise would have occurred, to a significant degree. No one or several of these factors can necessarily give decisive guidance (Art. 3.2.) Determination of Injury III • Where imports of a product from more than one country are simultaneously subject to anti-dumping investigations, the investigating authorities may cumulatively assess the effects of such imports only if they determine that (a) the margin of dumping established in relation to the imports from each country is more than de minimis as defined in paragraph 8 of Article 5 and the volume of imports from each country is not negligible and (b) a cumulative assessment of the effects of the imports is appropriate in light of the conditions of competition between the imported products and the conditions of competition between the imported products and the like domestic product (Art. 3.3.) Determination of Injury VII • A determination of a threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility. The change in circumstances which would create a situation in which the dumping would cause injury must be clearly foreseen and imminent. In making a determination regarding the existence of a threat of material injury, the authorities should consider, inter alia, such factors as: • (i) a significant rate of increase of dumped imports into the domestic market indicating the likelihood of substantially increased importation Determination Of Injury VIII • (ii) sufficient freely disposable, or an imminent, substantial increase in, capacity of the exporter indicating the likelihood of substantially increased dumped exports to the importing Member’s market, taking into account the availability of other export markets to absorb any additional exports; • (iii) whether imports are entering at prices that will have a significant depressing or suppressing effect on domestic prices, and would likely increase demand for further imports; and • (iv) inventories of the product being investigated (Art. 3.7.) Determination of Injury IX • No one of these factors by itself can necessarily give decisive guidance but the totality of the factors considered must lead to the conclusion that further dumped exports are imminent and that, unless protective action is taken material injury would occur (Art. 3.7) • With respect to cases where injury is threatened by dumped imports, the application of anti-dumping measures shall be considered and decided with special care (Art. 3.8.) Initiation and Subsequent Investigation II • The authorities shall examine the accuracy and adequacy of the evidence provided in the application to determine whether there is sufficient evidence to justify the initiation of an investigation (Art. 5.3.) • An investigation shall not be initiated unless the authorities have determined, on the basis of an examination of the degree of support for, or opposition to, the application expressed by domestic producers of the like product, that the application has been made “by or on behalf of the domestic industry” (Art. 5.4.) Initiation and Subsequent Investigation III • The application shall be considered to have been made “by or on behalf of the domestic industry”, if it is supported by those domestic producers whose collective output constitutes more than 50 per cent of the total production of the like product produced by that portion of the domestic industry expressing either support for or opposition to the application. However, no investigation shall be initiated when domestic producers expressly supporting the application account for less than 25 per cent of total production of the like product produced by the domestic industry (Art. 5.4.) “By or on behalf of the domestic industry” (Yes) 125 - 110 - 100 - 25 - - 25 no Yes - 50 Related producers Isolated market “By or on behalf of the domestic industry” (No) III 125 - 110 - 100 - 25 - - 25 no Yes - 50 Related producers Isolated market Initiation and Subsequent Investigation IV • An application shall be rejected and an investigation shall be terminated promptly as soon as the authorities concerned are satisfied that there is not sufficient evidence of either dumping or of injury to justify proceeding with the case. There shall be immediate termination in cases where the authorities determine that the margin of dumping is de minimis, or that the volume of dumped imports, actual or potential, or the injury, is negligible. (Art. 5.8) Initiation and Subsequent Investigation V • The margin of dumping shall be considered to be de minimis if this margin is less than 2 per cent, expressed as a percentage of the export price. The volume of the dumped imports shall normally be regarded as negligible if the volume of dumped imports from a particular country is found to account for less than 3 per cent of imports of the like product in the importing Member, unless countries which individually account for less than 3 per cent of the imports of the like product in the importing Member collectively account for more than 7 per cent of imports of the like product in the importing Member (Art. 5.8) Provisional Measures II • The application of provisional measures shall be limited to as short a period as possible, not exceeding four months or, on decision of the authorities concerned, upon request by exporters representing a significant percentage of the trade involved, to a period not exceeding six month. When authorities, in the course of an investigation, examine whether a duty lower than the margin of dumping would be sufficient to remove injury, these periods would may be six and nine months, respectively (Art. 7.4) Price Undertakings I • Proceedings may be suspended or terminated without the imposition of provisional measures or anti-dumping duties upon receipt of satisfactory voluntary undertakings from any exporter to revise its prices or to cease exports to the area in question at dumped prices so that the authorities are satisfied that the injurious effect of the dumping is eliminated (Art. 8.1) • Price undertakings shall not be sought or accepted from exporters unless the authorities of the importing Member have made a preliminary affirmative determination of dumping and injury caused by such dumping (Art. 8.2) Price Undertaking II • If an undertaking is accepted, the investigation of dumping and injury shall nevertheless be completed if the exporter so desires or the authorities so decide. In such a case, if a negative determination of dumping or injury is made, the undertaking shall automatically lapse, except in cases where such determination is due in large part to the existence of a price undertaking (Art. 8.4.) • In case of violation of an undertaking, the authorities of the importing Member may take, (...) expeditious actions which may constitute immediate application of provisional measures using the best information available. In such cases, definitive duties may be levied (...) on products entered for consumption not more than 90 days before the application of such provisional measures, except that any such retroactive assessment shall not apply to imports entered before the violation of the undertaking (Art. 8.6) Imposition and Collection of Anti- Dumping Duties III • When the authorities have limited their examination (...), any anti-dumping duty applied to imports from exporters or producers not included in the examination shall not exceed: (i) the weighted average margin of dumping established with respect to the selected exporters or producers or, • (ii) where the liability for payment of anti-dumping duties is calculated on the basis of a prospective normal value, the difference between the weighted average normal value of the selected exporters or producers and the export prices of exporters or producers not individually examined (...) (Art. 9.4.) Retroactivity I • Provisional measures and anti-dumping duties shall only be applied to products which enter for consumption after the time when the decision (...) enters into force, subject to the exceptions set out in this Article (Art. 10.1) • Where the final determination of injury (but not of threat thereof or of a material retardation of the establishment of an industry) is made or, in the case of a final determination of a threat of injury, where the effect of the dumped imports would, in the absence of the provisional measures, have led to a determination of injury, anti-dumping duties may be levied retroactively for the period for which provisional measures, if any, have been applied (Art. 10.20 Retroactivity II • Except as provided in paragraph 2, where the determination of threat of injury or material retardation is made (but no injury has yet occurred), a definitive anti-dumping duty may be imposed only from the date of the determination of threat or injury or material retardation (...) (Art. 10.4) Developing Country Members • It is recognized that special regard must be given by developed country Members to the special situation of developing country members when considering the application of anti-dumping measures under this Agreement. Possibilities of constructive remedies provided for by this Agreement shall be explored before applying anti-dumping duties where they would affect the essential interests of developing country Members (Art. 15) Duration and Review of Anti-Dumping Duties and Price Undertakings • An anti-dumping duty shall remain in force only as long and to the extent necessary to counteract dumping which is causing injury (Art. 11.1.) • The authorities shall review the need for the continued imposition of the duty, where warranted, on their own initiative or, provided that a reasonable period of time has elapsed since the imposition of the definitive anti- dumping duty, upon request by any interested party which submits positive information substantiating the need for a review. Interested parties shall have the right to request the authorities to examine whether the continued imposition of the duty is necessary to offset dumping, whether the injury would be likely to continue or recur if the duty were removed or varied, or both (Art. 11.2.) Judicial Review • Each Member whose national legislation contains provisions on anti-dumping measures shall maintain judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review of administrative actions relating to final determinations and review of determinations within the meaning of Article 11. Such tribunals or procedures shall be independent of the authorities responsible for the determination or review in question (Art. 13) Consultation and Dispute Settlement III • In examining the matter referred to in paragraph 5: (i) in its assessment of the facts of the matter, the panel shall determine whether the authorities’ establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned Consultation and Dispute Settlement IV (ii) the panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities’ measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations (Art. 17.6)