The Threat of Material Injury in Antidumping Investigations: A Threat to Free Trade

in The Journal of World Investment & Trade
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The Threat of Material Injury in Antidumping Investigations: A Threat to Free Trade

in The Journal of World Investment & Trade


2 For the purposes of the ADA, the term "domestic industry" shall be interpreted as referring to the domestic producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion of the total domestic production of those products. Article 4.1 of the ADA. 3 For a more detailed analysis on WTO antidumping rules see generally, Judith Czacko, Johann Human and Jorge Miranda, A Handbook on Antidumping Investigations (Cambridge: Cambridge University Press, 2003); Edwin Vermulst, T7m W1D Antidumpiny Agreement (Oxford: Oxford University Press, 2005); Mitsuo Matsushita, Thomas J. Schoenbaum and Petros C. Mavroidis, The World Trade Organization (Oxford: Oxford University Press, 2006), pp. 396-436; John H. Jackson, l7re World Trading System (Cambridge MA: MIT press, 1997), pp. 247-278 and Paolo D. Farah and Roberto Soprano, Dumping ed Antidumping (Milano: u Sole24ore, 2009). 4 International Trade Centre, Bu.siness Guide to Trade Remedies in the European Community. Anti-Dumping, Anti-Subsidy and Safeguard L.egislation, Practices and Procedures (Geneva: International Trade Centre, 2004), p. 24 and Francis G. Snyder, Regional and Global Regulation of International Trade (Oxford: Hart Publishing, 2002), p. 111. 1. 5 Clive Stanbrook and Philip Bentley, Dumping and Subsidies - The Law and Procedure Governing the Imposition ofAntidumping and Countervailing Duties in the European Community (London: Kluwer Law Inteniational, 1996), p. 114. 6 Appellate Body Report, United States - Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia (US- Lamb), WT/DS177/AB/R, WT/DS178/AB/R, 1 May 2001, para. 124 and footnote 77.

7 Appellate Body Report, United State — �M�-DMmpfng Measures on Certain Hot-Rolled Steel Products from Japan (IJS-Hot Rolled Steel), WT/DS 184/AB/R, 24 July 2001, para. 192. 8 Appellate Body Report, Thailand - Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland (Thailand- H-Beams), WT/DS 122/AB/R, 12 March 2001, para. 111. 9 Appellate Body Report, US - Hot Rolled Steel, para. 193. 10 Article 3.1 ADA. 11 The list includes: actual and potential decline in sales, profits, output, market share, productivity, return on investments, or utilization of capacity; factors affecting domestic prices; the magnitude of the margin of dumping; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. Article 3.4 ADA. 12 Appellate Body Report, Thailand-H-Beams, para. 128. 13 In the absence of explanations by the ADA on the meaning of material retardation, some guidance can be derived from the 1967 Code which indicates that facts must be based on convincing evidence that such a new industry is forthcoming.

14 Under the Agreement on Subsidies and Countervailing Measures (Asctvt) the term "injury" shall, unless otherwise specified, be taken to mean material injury to a domestic industry, threat of material injury to a domestic industry [...]. Footnote n. 45 of the ASCM. As remarked by Stanbrook and Bentley, in countervailing cases an additional factor must be taken into account, namely the nature of the subsidies in question and the trade effects likely to arise therefrom. For example, it is necessary to consider whether it is an export subsidy rather than a domestic subsidy. Stanbrook and Bentley, supra footnote 5, p. 125. �5 Under article 4.1 (b) of the Agreement on Safeguards, the "threat of serious injury" shall be understood to mean serious injury that is clearly imminent, in accordance with the provisions of paragraph 2. A determination of the existence of a threat of serious injury shall be based on facts and not merely on allegation, conjecture or remote possibility. See also, Appellate Body Report, US - Lamb, paras. 126 and 136. 16 The Appellate Body also remarked that the "proper establishment" of facts in a determination of threat of material injury must be based on events that, although they have not yet occurred, must be 'clearly foreseen and imminent'. Appellate Body Report, Mexico-Anti-Dumping Investigation of HiRh Fructose Corn Syrup (Hres) from the United States Recourse to Article 21.5 0� the DSU by the United States, (Mexico - Com Symp Art 21.5), WT/DS132/AB/RW, 22 October 2001, para 85. 17 Vermulst, supra footnote 3, p. 95. 18 According to the Appellate Body a panel must determine whether the investigating authority has provided a reasoned and adequate explanation of (a) how individual pieces of evidence can be reasonably relied on in support of particular inferences, and how the evidence in the record supports its factual findings; (b) how the facts in the record, rather than allegation, conjecture of remote possibility, support and provide a basis for the overall threat of injury determination; (c) how its projections and assumptions show a high degree of likelihood that the anticipated injury will materialize in the near future; and (d) how it examined alternative explanations and interpretations of the evidence and why it chose to reject or discount such alternatives in coming to its conclusion. Appellate Body Report, United States - Investigation of the Intemational Trade Commission in Softwood Lumberfrom Canada Recourse to Article 21.5 Of the Dsu by Canada, (US - Softwood Lumber VI art. 21.5 Canada), WT/DS277/AB/RW, 13 April 2006, para. 98.

19 Panel Report, United States - Investigation of the Intemational Trade Commission in Softwood Lumber from Canada (US- Softwood Lumber VI), WT/DS277/R, 22 March 2004, para. 7.58. The panel in the Egypt- Steel Rebar, underlined that in a threat of injury investigation, the central question is whether there will be a 'change in circumstances' that would cause the dumping to begin to injure the domestic industry. Panel Report, Egypt - Definitive Anti-Dumping Measures on Steel Rebar from Turkey, WT/DS211/R, 8 August 2002, para. 7.91. 2IJ A GATT document pointed out that "anti-dumping relief based on the threat of injury must be confined to those cases where the conditions of trade clearly indicate that material injury will occur imminently if demonstrable trends in trade adverse to domestic industry continue, or if clearly foreseeable adverse events occur. As any prediction of future injury is based on a forecast of likely effects in the marketplace, an examination of whether future injury is 'clearly foreseen' must focus on the reasonableness and reliability of different forecasts. Moreover no matter how reliable a forecast of future injury might be, the time when that injury will actually materialize may be too remote to merit the taking of anti-dumping action. The determination of whether future injury is 'imminent' in this context must depend on the facts and commercial realities in each case". GATT Committee on Anti-Dumping Practices Ad-Hoc Group on the Implementation of the Anti-Dumping Code, Draft Recommendation Conceming Determination of Threat of Material Injury, ArJP/W /821Rev.2, 17 December 1984, p. 2. See also, Pierre Didier, Wro Instmments in EU Law (London: Cameron May, 1999), p. 93. 21 Petros C. Mavroidis, Patrick A. Messerlin and Jasper M. Wauters, The Law and Economia of Contingent Protection in the WTO (Cheltenham: Edward Elgar Publishing, 2008), p. 116. zz Panel Report, US - Softwood Lumber vt, para. 7.67. 23 Panel Report, Mexico - Com Syrup, para. 7.132.

za Negotiating Group on Rules, New Draft Consnlidated Chair Texts of the AD and SeNt Agreements, TN/RL/W/236, 19 December 2008, p. 8. z5 Panel Report, Mexico - Com Syrup, para. 7.126. 26 Ibid., 7.132. 27 Panel Report, US - Softwood Lumber vt, para. 7.105. See also Mavroidis, Messerlin and Wauters, supra footnote 21, p.114. 28 Panel Report, Mexico - Corn Syrup, para. 7.131. See also Czacko, Human and Miranda, supra footnote 3, p. 274. zy Panel Report, US - Softwood Lumber vt, para. 7.68. 3U Ibid. m Ibid., para. 7.67.

5z Peter Van den Bossche, The Law and Policy of the World Trade Organization: Text, Cases and Materials (Cambridge: Cambridge University Press, 2005), p. 533. '3 Panel Report, US - Softwood Lumber m, para. 7.33. 3a Article 10.4 sets forth: "except as provided in paragraph 2, where a 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 of injury or material retardation, and any cash deposit made during the period of the application of provisional measures shall be refunded and any bonds released in an expeditious manner". Under article 10.5 "where a final determination is negative, any cash deposit made during the period of the application of provisional measures shall be refunded and any bonds released in an expeditious manner". Article 10.2 ADA sets forth: "where a final determination of injury (but not of a 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".

35 Xiaochen Wu, Antidumping Law and Practice of China (Austin: Wolters Kluwer, 2009), pp. 83-84. 36 Resolucidn final de la investigaci6n antidumping sobre las importaciones de jarabe de maiz de alta fructosa, mercancia clasificada en lasfracciones arancelarias 1702.40.99 y 1702.60.01 de la Tarifa de la Ley del Impuesto General de Importaci6n, originarias de los Estados Unidos de America, independientemente del pais de procedencia. Diario Oficial de la Federacion, 23 January, 1998. 3� Oral Liquid Paracetamol ftom the Republic of Ireland, Non Confidential Final Report, Trade Remedies Group Ministry of Economic Development, 15 March 2005. 38 The Dumping in Canada of ReJined Sugar Originating in or Exportedfrom the United States, Denmark, The Federal Republic of Germany, the Netherlands, the United Kingdom, and the Republic of Korea, and the Subsidizing or Refined Sugar Originating in or Exported from the European Union, NQ-95-002, finding November 6, 1995; Statement of Reason, 21 November, 1995. The CITT is the Canadian International Trade Tribunal, a quasi-judicial administrative body that issues enforceable orders on the question of material injury. See, Lawrence L. Herman, Canadian Trade Remedies Law and Practice (Toronto: Emond Montgomery Publication, 1997), pp. 12 and 94-95. 3v Cnt"1 press release, March 10, 2008. Certain Softwood Lumber Products from Canada: Final Affirmative Threat of Injury Determination (NAF'rn ch. 19 Panel, 31 August 2004) quoted in: Murphy Sean D., United States Practice in International Law, 2002-2004, (Cambridge: Cambridge University Press, 2006), p. 175. See also, Department of Commerce, International Trade Administration, Hydroxyethylidene Diphosphonic Acid from India and the People's Republic of China, Antidumping Duty Orders, Federal Register, Vol. 74, No. 80, 28 April 2009, Notices, pp. 19197. 41 USITC decision, Pub. 2230, 28 December 1990. °z The following are AD and CvD investigations: United States International Trade Commission, Narrow Woven Ribbons with Woven Selvedge from China and Taiwan, Investigation Nos. 701-TA-467 and 731-TA-1164-1165 (Preliminary), Federal Register, Vol. 74, No. 172, 8 September 2009, Notices, p. 46224 and United States International Trade Commission, Certain Steel Grating from China, Investigation Nos. 701-TA-465 and 731-TA- 1161 (Preliminary), Federal Register, Vol. 74, No. 137, Monday, July 20, 2009, Notices, p. 35204.

a3 Commission Decision terminating the anti-dumping proceeding concerning imports of refined antimony tnoxide from the People's Republic of China, OJ L176, 9 July 1994, p. 41 and Commission Decision terminating the antidumping proceeding concerning imports of paint, distemper, vamish and similar brushes originating in the People's Republic of China, No. 93/325/EEC, OJ L127, 25 May 1993, p. 15. 44 Commission Regulation imposing a provisional antidumping duty on imports of methylamine from the (German Demonatic Republic and Romania, No. 2243/82, OJ L238, 13 August 1982, pp. 35-36. a5 Court of First Instance, Case C-245/95, judgment of 10 February 1998, Commission of the European Communities vs. NTW Corporation and Koyo Seiko Co. Ltd. See also, Council Regulation imposing anti-dumping duties on imports of ball beanngs uuth a greatest external diameter exceeding 30 mm originating in Japan, No. 1739/85, OJ 1992, L286, p. 2. 46 Multilaw research paper, Breaking the Mould: Threat of Injury in EU Anti-dumpin,q Case, available at (accessed 20 November 2009). a� Commission Regulation imposing a provisional anti-dumping duty on imports of certain seamless pipes and tubes of iron or steel originating in the People's Republic of China, No. 289/2009, OJ L94, 7 April 2009. aa The commission considered it relevant for the analysis because normally stocks are kept by traders and not by producers. l6id. recital 124. a9 Ibid. recital 125. In this investigation the European Commission found that none Chinese companies met MET criteria.

50 Press release, "Declaration ofSummit on Financial Markets and the World Economy", The White House, November 17, 2008. 51 European Commission, Fifth Report on Potentially Trade Restrictive Measures, available at (accessed 22 November 2009). 52 Statistics available at (accessed 21 November 2009). 53 Maurizio Zanardi, "Anti-dumping: What are the Numbers to Discuss at Doha?", The World Economy, Vol. 27, No. 3, 2004, pp. 403-433. See also, Michael Finger and Andrei Zlate, "Antidumping - Prospects for Discipline from the Doha Negotiation", Joumal of World Investment and Trade, Vol. 6, No. 4, pp. 531-547; Emmanuel Nyahoho, Cedric Lefebvre and Claire Malbouires, "Les mesures antidumping: un phenomene commercial largement repandu" Etudes Internationales, Vol. 38, No. 3, 2007, pp. 361-381; Bibek Debroy, and Debashis Chakraborty (eds.), Anti-Dumping: Global Abuse of a Trade Policy Instrument, (New Delhi: Academic Foundation, 2007).

sa Stanbrook and Bentley supra footnote 5, p. 123. 55 Andreas Lowenfeld, International Economic Law (Oxford: Oxford University Press, 2002), p. 268.

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