Anti-dumping, subsidies, safeguards
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United States - Countervailing Duty Investigation on Dynamic Random Access Memory Semiconductors (DRAMS) from Korea
On 30 June 2003 Korea requested consultations with the United States concerning the US authorities’ affirmative preliminary and final countervailing duty determinations the preliminary injury determination and any subsequent determinations that may be made during the injury investigation on DRAMs and DRAM modules from Korea. Korea is also challenging all related laws and regulations including Section 771 of the US Tariff Act of 1930 and 19 CFR 351 respectively.
United States - Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico
On 18 February 2003 Mexico requested consultations with the US as regards several anti-dumping measures imposed by the US on imports of OCTG from Mexico including the final determinations in some administrative and sunset reviews; and the US authorities’ determination regarding the continuation of the anti-dumping orders. In addition to these measures Mexico’s request includes a number of laws regulations and administrative practices (such as “zeroing”) used by the US authorities in the above determinations. Mexico considers that the above anti-dumping measures are incompatible with Articles 1 2 3 6 11 and 18 of the Anti-Dumping Agreement Articles VI and X of the GATT 1994 and Article XVI:4 of the WTO Agreement.
European Communities - Countervailing Measures on Dynamic Random Access Memory Chips from Korea (WT/DS299)
On 25 July 2003 Korea requested consultations with the European Communities concerning the EC’s provisional countervailing measures and any final countervailing measures which may be finalized and implemented later this year against dynamic random access memory chips (“DRAMs”) from Korea. According to Korea when considering the determinations with respect to the provisional measures against the DRAMs from Korea which have already been implemented and any final measures on the same products which may be finalized and implemented later this year the European Commission failed to comply with various WTO substantive and procedural requirements including demonstration of the existence of a financial contribution and a benefit conferred and demonstration of specificity of the subsidies concerned.
Mexico - Definitive Anti-Dumping Measures on Beef and Rice (Complaint with Respect to Rice)
On 16 June 2003 the United States requested consultations with Mexico concerning its definitive anti-dumping measures on beef and long grain white rice as well as certain provisions of Mexico’s Foreign Trade Act and its Federal Code of Civil Procedure.
European Communities - Measures Affecting Trade in Commercial Vessels
On 3 September 2003 Korea requested consultations with the European Communities concerning certain measures by the EC and its member States in favour of their shipbuilding industry which according to Korea are inconsistent with their WTO obligations. These measures are as follows: - EC Regulation 1177/2002 (“TDM Regulation”) and EC Regulation 1540/98 as well as the EC member States’ implementing provisions. These measures provide for subsidies in favour of commercial vessels in various forms; - The provision by the EC and the member States of subsidies in support of commercial vessels built in the EC in form of (a) operational aid granted on a contractual basis in forms such as grants export credits guarantees or tax breaks (b) restructuring aid (c) regional or other investment aid (d) research and development aid (e) environmental protection aid and (f) insolvency and closure aid.
United States - Countervailing Duty Investigation on Dynamic Random Access Memory Semiconductors (DRAMS) from Korea (DS 296)
On 30 June 2003 Korea requested consultations with the United States concerning the US authorities’ affirmative preliminary and final countervailing duty determinations the preliminary injury determination and any subsequent determinations that may be made during the injury investigation on DRAMs and DRAM modules from Korea. Korea is also challenging all related laws and regulations including Section 771 of the US Tariff Act of 1930 and 19 CFR 351 respectively.
United States - Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina
On 7 October 2002 Argentina requested consultations with the US regarding the final determinations of the US Department of Commerce (“DOC”) and the US International Trade Commission (“ITC”) in the sunset reviews of the anti-dumping duty order on OCTG from Argentina issued on 7 November 2000 (65 Federal Register 66701) and June 2001 (USITC Pub. No. 3434) respectively and the DOC’s determination to continue the anti-dumping duty order on OCTG from Argentina issued on 25 July 2001 (66 Federal Register 38630). Argentina considered that general US laws regulations policies and procedures related to the administration of sunset reviews and the application of anti-dumping measures were inconsistent either on their face or as applied with Articles 1 2 3 5 6 11 12 and 18 of the Anti-Dumping Agreement (ADA); Articles VI and X of the General Agreement on Tariffs and Trade (GATT) 1994; and Article XVI:4 of the WTO Agreement. Furthermore Argentina claimed that the sunset review conducted by the DOC is inconsistent with Articles 2 5 5.8 11.3 11.4 12.1 and 12.3 of the ADA. It also claimed that the sunset review conducted by the ITC was inconsistent with Articles 3 and 11.3 of the ADA.
United States - Final Dumping Determination on Softwood Lumber from Canada
On 13 September 2002 Canada requested consultations under Article 4.8 of the DSU (urgency procedure) with the United States concerning the final affirmative determination of sales at less than fair value (dumping) with respect to certain softwood lumber products from Canada (Inv. No. A-122-838) announced by the US Department of Commerce (USDOC) on 21 March 2002 pursuant to Section 735 of the Tariff Act of 1930 as amended on 22 May 2002 (Final Determination). The measures at issue include the initiation of the investigation the conduct of the investigation and the Final Determination. Canada considered these measures and in particular the determinations made and methodologies adopted therein by the DOC under authority of the United States Tariff Act of 1930 to violate Articles 1 2.1 2.2 2.4 2.6 5.1 5.2 5.3 5.4 5.8 6.1 6.2 6.4 6.9 and 9.3 of the Anti-Dumping Agreement and Articles VI and X:3(a) of the GATT 1994.
United States - Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina (DS268)
On 7 October 2002 Argentina requested consultations with the US regarding the final determinations of the US Department of Commerce (“DOC”) and the US International Trade Commission (“ITC”) in the sunset reviews of the anti-dumping duty order on OCTG from Argentina issued on 7 November 2000 (65 Federal Register 66701) and June 2001 (USITC Pub. No. 3434) respectively and the DOC’s determination to continue the anti-dumping duty order on OCTG from Argentina issued on 25 July 2001 (66 Federal Register 38630). Argentina considered that general US laws regulations policies and procedures related to the administration of sunset reviews and the application of anti-dumping measures were inconsistent either on their face or as applied with Articles 1 2 3 5 6 11 12 and 18 of the Anti-Dumping Agreement (ADA); Articles VI and X of the General Agreement on Tariffs and Trade (GATT) 1994; and Article XVI:4 of the WTO Agreement. Furthermore Argentina claimed that the sunset review conducted by the DOC is inconsistent with Articles 2 5 5.8 11.3 11.4 12.1 and 12.3 of the ADA. It also claimed that the sunset review conducted by the ITC was inconsistent with Articles 3 and 11.3 of the ADA.
United States - Final Dumping Determination on Softwood Lumber from Canada
On 13 September 2002 Canada requested consultations under Article 4.8 of the DSU (urgency procedure) with the United States concerning the final affirmative determination of sales at less than fair value (dumping) with respect to certain softwood lumber products from Canada (Inv. No. A-122-838) announced by the US Department of Commerce (USDOC) on 21 March 2002 pursuant to Section 735 of the Tariff Act of 1930 as amended on 22 May 2002 (Final Determination). The measures at issue include the initiation of the investigation the conduct of the investigation and the Final Determination. Canada considered these measures and in particular the determinations made and methodologies adopted therein by the DOC under authority of the United States Tariff Act of 1930 to violate Articles 1 2.1 2.2 2.4 2.6 5.1 5.2 5.3 5.4 5.8 6.1 6.2 6.4 6.9 and 9.3 of the Anti-Dumping Agreement and Articles VI and X:3(a) of the GATT 1994.
United States - Investigation of the International Trade Commission in Softwood Lumber from Canada
On 20 December 2002 Canada requested consultations with the United States regarding the investigation of the USITC in Softwood Lumber from Canada (Invs. Nos. 701-TA-414 and 731-TA-928 (Final)) and the final definitive anti-dumping and countervailing duties applied as a result of the USITC’s final determination made on 2 May 2002 notice of which was published in the United States Federal Register on 22 May 2002 (Volume 67 Number 99 at pp. 36022-36023) that an industry in the United States is threatened with material injury by reason of imports of softwood lumber from Canada that the Department of Commerce has determined are subsidized and sold in the United States at less than fair value. Canada claimed that through these measures the United States has violated its obligations under Article VI:6(a) of the GATT 1994 Articles 1 3.1 3.2 3.3 3.4 3.5 3.7 3.8 12 and 18.1 of the Anti-Dumping Agreement and Articles 10 15.1 15.2 15.3 15.4 15.5 15.7 15.8 22 and 32.1 of the SCM Agreement.
United States - Anti-Dumping Act of 1916 - Original Complaint by the European Communities
On 24 February 2004 the WTO issued the dispute panel reports in the case "United States - Anti-dumping act of 1916 - Complaint by the European Communities".
United States - Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada
On 3 May 2002 Canada requested consultations with the United States. The request concerned the final affirmative countervailing duty determination by the US Department of Commerce (File No. C‑122839) issued on 25 March 2002 with respect to certain softwood lumber from Canada. The measures at issue include the initiation and conduct of the investigation the final determination provision of expedited reviews and other matters related to these measures. Canada contended that these measures were inconsistent with and violate the United States’ obligations under Articles 1 2 10 11 12 14 15 19 22 and 32.1 of the SCM Agreement and Articles VI:3 and X:3 of the GATT 1994.
United States - Sunset Review of Anti-Dumping Duties on Corrosion Resistant Carbon Steel Flat Products from Japan
On 30 January 2002 Japan requested consultations with the United States in respect of the final determinations of both the United States Department of Commerce (DOC) and the United States International Trade Commission in the full sunset review of the anti-dumping duties imposed on imports of corrosion-resistant carbon steel flat products from Japan. These determinations were issued on 2 August 2000 and 21 November 2000 respectively. Japan claimed that these determinations were erroneous and based on deficient rulings procedures and provisions pertaining to the United States Tariff Act of 1930 as amended (“the Act”) and related regulations. Japan further claimed that the procedures and provisions of the Act and related regulations as well as the above determinations were inconsistent with inter alia Articles VI and X of GATT 1994; Articles 2 3 5 6 (including Annex II) 11 12 and 18.4 of the Anti-Dumping Agreement; and Article XVI:4 of the WTO Agreement.
United States - Definitive Safeguard Measures on Imports of Certain Steel Products
The European Communities Japan Korea Switzerland Canada Venezuela Norway China Mexico New Zealan and Brazil requested consultations with the United States regarding the definitive safeguard measures imposed by the US in the form of an increase in duties on imports of certain flat steel hot-rolled bar cold-finished bar rebar certain welded tubular products carbon and alloy fittings stainless steel bar stainless steel rod tin mill products and stainless steel wire and in the form of a tariff rate quota on imports of slabs effective as of 20 March 2002.
United States - Final Countervailing Duty Determination with Respect to Certain Softwood Lumber from Canada
On 3 May 2002 Canada requested consultations with the United States. The request concerned the final affirmative countervailing duty determination by the US Department of Commerce (File No. C‑122839) issued on 25 March 2002 with respect to certain softwood lumber from Canada. The measures at issue include the initiation and conduct of the investigation the final determination provision of expedited reviews and other matters related to these measures. Canada contended that these measures were inconsistent with and violate the United States’ obligations under Articles 1 2 10 11 12 14 15 19 22 and 32.1 of the SCM Agreement and Articles VI:3 and X:3 of the GATT 1994.
United States - Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan
On 30 January 2002 Japan requested consultations with the United States in respect of the final determinations of both the United States Department of Commerce (DOC) and the United States International Trade Commission in the full sunset review of the anti-dumping duties imposed on imports of corrosion-resistant carbon steel flat products from Japan. These determinations were issued on 2 August 2000 and 21 November 2000 respectively. Japan claimed that these determinations were erroneous and based on deficient rulings procedures and provisions pertaining to the United States Tariff Act of 1930 as amended (“the Act”) and related regulations. Japan further claimed that the procedures and provisions of the Act and related regulations as well as the above determinations were inconsistent with inter alia Articles VI and X of GATT 1994; Articles 2 3 5 6 (including Annex II) 11 12 and 18.4 of the Anti-Dumping Agreement; and Article XVI:4 of the WTO Agreement.
European Communities - Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil
On 21 December 2000 Brazil requested consultations with the EC as regards definitive anti-dumping duties imposed by Council Regulation (EC) No. 1784/2000 concerning imports of malleable cast iron tube or pipe fittings originating inter alia in Brazil. Brazil considered that the EC’s establishment of the facts was not proper and that its evaluation of these facts was not unbiased and objective both at the provisional and definitive stage particularly in relation to the initiation and conduct of the investigation (including the evaluation findings and determination of dumping injury and causal link between them). Brazil also challenged the evaluation and findings made in relation to the “community interest”. In sum Brazil considered that the EC had infringed Article VI of GATT 1994 and Articles 1 2 3 4 5 6 7 9 11 12 and 15 of the Anti-dumping Agreement.
United States - Definitive Safeguard Measures on Imports of Certain Steel Products
The European Communities Japan Korea Switzerland Canada Venezuela Norway China Mexico New Zealan and Brazil requested consultations with the United States regarding the definitive safeguard measures imposed by the US in the form of an increase in duties on imports of certain flat steel hot-rolled bar cold-finished bar rebar certain welded tubular products carbon and alloy fittings stainless steel bar stainless steel rod tin mill products and stainless steel wire and in the form of a tariff rate quota on imports of slabs effective as of 20 March 2002.
Argentina - Definitive Anti-Dumping Duties on Poultry from Brazil
On 7 November 2001 Brazil requested consultations with Argentina in respect of the definitive anti-dumping duties imposed by Argentina on imports of poultry from Brazil classified under Mercosur tariff line 0207.11.00 and 0207.12.00. These measures were adopted by the Ministry of Economy of Argentina in Resolution 574 from 21 July 2000 published in the Argentinean Official Gazette on 24 July 2000. Brazil considered that the definitive anti-dumping duties imposed as well as the investigation conducted by the Argentinean Authorities might have been flawed and based on erroneous or deficient procedures inconsistent with Argentina’s obligations under Articles 1 2 3 4 5 6 9 12 and Annex II of the Anti-Dumping Agreement Article VI of the GATT 1994 and Articles 1 and 7 of the Customs Valuation Agreement.
European Communities - Anti-Dumping Duties on Imports of Cotton-type Bed Linen from India - Recourse 1
On 3 August 1998 India requested consultations with the EC in respect of Council Regulation (EC) No 2398/97 of 28 November 1997 on imports of cotton-type bed-linen from India. India asserted that the EC initiated anti-dumping proceedings against imports of cotton- type bed-linen from India by publishing a notice of initiation in September 1996. Provisional anti-dumping duties were imposed by EC Council Regulation No 1069/97 of 12 June 1997. This was followed by the imposition of definitive duties in accordance with the above-mentioned EC Council Regulation No 2398/97 of 28 November 1997.
European Communities - Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil
On 21 December 2000 Brazil requested consultations with the EC as regards definitive anti-dumping duties imposed by Council Regulation (EC) No. 1784/2000 concerning imports of malleable cast iron tube or pipe fittings originating inter alia in Brazil. Brazil considered that the EC’s establishment of the facts was not proper and that its evaluation of these facts was not unbiased and objective both at the provisional and definitive stage particularly in relation to the initiation and conduct of the investigation (including the evaluation findings and determination of dumping injury and causal link between them). Brazil also challenged the evaluation and findings made in relation to the “community interest”. In sum Brazil considered that the EC had infringed Article VI of GATT 1994 and Articles 1 2 3 4 5 6 7 9 11 12 and 15 of the Anti-dumping Agreement.
Canada - Export Credits and Loan Guarantees for Regional Aircraft
On 17 February 2003 the WTO issued the dispute panel reports in the case "Canada - Export credits and loan guarantees for regional aircraft".
Argentina - Definitive Safeguard Measure on Imports of Preserved Peaches
On 14 September 2001 Chile requested consultations with Argentina in respect of a definitive safeguard measure which Argentina applies on imports of peaches preserved in water containing added sweetening matter including syrup preserved in any other form or in water. According to Chile Argentina’s definitive safeguard measure is inconsistent with Articles 2 4 5 and 12 of the Agreement on Safeguards and Article XIX:1 of GATT 1994.
United States - Continued Dumping and Subsidy Offset Act of 2000
On 21 December 2000 and 21 May 2001 respectively the complainants requested consultations with the US concerning the amendment to the Tariff Act of 1930 signed on 28 October 2000 with the title of “Continued Dumping and Subsidy Offset Act of 2000” (the “Act”) usually referred to as “the Byrd Amendment”. According to the complainants the Act is inconsistent with the obligations of the United States under several provisions of the GATT the AD Agreement the SCM Agreement and the WTO Agreement. In particular the Act is alleged to be inconsistent with the obligations of the United States under: (i) Article 18.1 of the ADA in conjunction with Article VI:2 of the GATT and Article 1 of the ADA; (ii) Article 32.1 of the SCM Agreement in conjunction with Article VI:3 of the GATT and Articles 4.10 7.9 and 10 of the SCM Agreement; (iii) Article X(3)(a) of the GATT; (iv) Article 5.4 of the ADA and Article 11.4 of the SCM Agreement; (v) Article 8 of the ADA and Article 18 of the SCM Agreement; (vi) Article 5 of the SCM Agreement; and (vii) Article XVI:4 of the Marrakesh Agreement establishing the WTO Article 18.4 of the ADA and Article 32.5 of the SCM Agreement.
Flow Charts
The following Flow Charts graphically illustrate the different steps involved in calculating the margin of dumping. The Advanced Flow Chart shows the different steps in the form of a decision-tree. All references are to the relevant articles of the AD Agreement.
Procedural Aspects of an Anti-Dumping Investigation
The following section is a basic overview of how an anti-dumping investigation unfolds in practice. It also describes in summary fashion how anti-dumping measures resulting from such investigations are assessed and reviewed over time. In order to relate the practical aspects of an investigation to specific provisions of the AD Agreement references to the relevant articles of the AD Agreement are given.
Key Definitions and Concepts Applicable to the Investigation
As specialized terminology and concepts will be used and as an anti-dumping investigation is guided by certain principles and main procedural elements these issues will be addressed and explained first before going into the process of the investigation itself.
Domestic Legal Framework
The modalities of incorporating the provisions of the WTO Agreements and therefore also the AD Agreement in the domestic legal systems of Members and the design of the institutional aspects regarding anti-dumping investigations are preparatory arrangements which have to be addressed prior to considering the initiation of an anti-dumping investigation. These issues are addressed only in a cursory fashion as the modalities and structures involved are to a large degree determined by the constitutional law of each Member the delegation of powers to different bodies and agencies and other overarching considerations.
Introduction
Dumping is in general a situation of international price discrimination where the price of a product when sold to the importing country is less than the price of the same product when sold in the market of the exporting country. It is generally accepted in the multilateral trading system that if dumping takes place it might result in unfair trade as the domestic industry of the importing country might suffer harm as a result of the dumping. If this is the case the authorities of the importing country may if certain requirements are met take action against dumping. Anti-dumping action can therefore only be taken if dumping is taking place accompanied by consequent injury to the domestic industry.
Introduction
Although the AD Agreement contains some guidance on the methodologies to be applied in calculating the margin of dumping it does not provide comprehensive and detailed provisions to deal with all the issues involved. In some instances the AD Agreement provides for different options and leaves it to investigating authorities to decide which methodology to apply. In some of those instances where the AD Agreement does not provide clear guidance the practice of Members differs to a greater or lesser degree. An effort has been made to refer to the different practices of Members where the authors were aware of such practices. It is therefore not claimed that these references are complete and is done without any reference to the WTO compatibility or not of such practices.
Case-Study on Injury
This case-study seeks to illustrate the concepts discussed in a concrete fashion in the context of a hypothetical investigation. It should be borne in mind that the methodologies described herein do not necessarily represent the practices of any particular WTO Member and their disucssion in this case-study is not intended as an endorsement of those methodologies or as an indication that such methodologies are consistent with the AD Agreement. Nor are any of the possible conclusions or outcomes discussed in this case-study necessarily valid or sustainable in the context of WTO dispute settlement. The case-study merely seeks to illustrate possible approaches that might be taken to resolving issues that commonly arise in anti-dumping injury analysis. The methods presented herein are by no means the only available methodologies but they are based on methods that have been applied by Members which have not been disapproved by any dispute settlement Panel. In many instances there may be more than one approach to resolving a particular injury-related issue that would be consistent with Member obligations under the AD Agreement.
The Anti-Dumping Investigation
Once the decision to initiate an investigation has been taken and the required public notice has been given the formal investigation process starts.
A Handbook on Anti-Dumping Investigations
The subject of anti-dumping procedures has received growing attention in international trade policy and has become a source of tension between countries. This handbook covers the major areas arising in anti-dumping investigations as embodied in the relevant WTO provisions providing an exposition of well-sourced information explanations and guidance for grasping the intricacies of anti-dumping proceedings. Beginning with a chronicle of an anti-dumping investigation the book proceeds to consider the crucial issues involved: calculation of dumping margins and determinations of injury and causation. Well structured and easy to follow the handbook is designed to assist in a practical way investigators delegated the authority to conduct the required investigation. Clearly presented and informative this book will also interest government officials involved in international trade policy importing and exporting enterprises affected by anti-dumping investigations and their representatives including private legal practitioners and consultants and academic readers concerned with international trade issues.
Form and Content of Questionnaires
The timetable for completing an entire anti-dumping investigation is short. If the investigation does not proceed in a rapid and orderly manner it can become very difficult for investigating authorities to meet necessary internal deadlines to ensure that the ultimate deadlines are met. Thus the investigating authorities should rapidly complete their review of the application and other sources of available information and immediately begin work on drafting the questionnaires to be transmitted to each of the industry segments.