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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

Principles

• (^) An anti-dumping measure shall be applied only under the circumstances provided for in Article VI of GATT 1994 and pursuant to investigations initiated and conducted in accordance with the provisions of this Agreement. The following provisions govern the application of Art. VI of GATT 1994 in so far as action is taken under anti- dumping legislation (Art. 1)

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 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 IV

• (^) A fair comparison shall be made between the export price and the normal value. The comparison shall be made at the same level of trade , normally at the ex- factory level , and in respect of sales made at as nearly as possible the same time. Due allowance shall be made in each case, on its merits, for differences which affect price comparability , including differences in conditions and terms of sale, taxation, levels of trade, quantities, physical characteristics, and any other differences which are also demonstrated to affect price comparability. (Art. 2.4.)

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

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

III

Date Quantity Normal

Value

Export

price

Weighted average normal value to weighted average export price: zero Domestic transaction to export trans at or about the same time: zero No Dumping Source: Unctad, Training Module on the WTO Agreement on Anti-Dumping, 2006

Determination of Dumping – Examples

IV

Date Normal

Value WA

Export

price

T-by-T

Export

price

Source: Unctad, Training Module on the WTO Agreement on Anti-Dumping, 2006

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 V

• (^) It must be demonstrated that the dumped imports are, through the effects of dumping, as set forth in paragraphs 2 and 4, causing injury within the meaning of this Agreement. The demonstration of a causal relationship between the dumped imports and the injury to the domestic industry shall be based on an examination of all relevant evidence before the authorities. The authorities shall also examine any known factors other than the dumped imports which at the same time are inuring the domestic industry, and the injuries caused by these other factors must not be attributed to the dumped imports (Art. 3.5)

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