Systemic Problems in AntiDumping Policy

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Systemic Problems in Anti-Dumping Policy

• Edwin Vermulst - VVG
• eve_at_vvg-law.com

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Principal Users of Anti-Dumping Measures - 1987

• Australia
• Canada
• European Communities
• United States

Edwin Vermulst-VVG
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Principal Users of Anti-Dumping Measures
1995 2006
(Anti-Dumping investigations initiated)

• Canada 142
• China 134
• Brazil 134
• Turkey 109
• Mexico 91
• Korea 84

• India 456
• United States 373
• European Communities 362
• Argentina 223
• South Africa 200
• Australia 189

Source Cliff Stevenson,
Global Trade Protection Report 2007
Edwin Vermulst-VVG
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TEN Projects

• AIM
• Assess 10 major problems with Anti-Dumping
  in 10 user Countries

TEN I Year 2004 Focus on systemic
problems Countries Covered Australia -
Brazil - China - European
Communities India - Indonesia -
Mexico - South Africa -
Thailand United States
TEN II Year 2006 Focus on problems
arising in the calculation of Dumping Injury
Margins Countries Covered Australia -
Brazil - China - European
Communities India - Indonesia -
Korea - Mexico - South
Africa United
States
Edwin Vermulst-VVG
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Key Assessments TEN - I

• Procedural Problems
• 1. Lack of transparency/ confidentiality of
  information.
• 2. Insufficient disclosure of essential facts
  forming basis for definitive measures.
• 3. Pre-initiation phase problems.
• 4. Open-ended standard in ADA for sunset
  reviews.
• 5. Lack of meaningful administrative and/or
  judicial reviews.

• Substantive Problems
• DUMPING
• 6. Increasing recourse to use of Constructed
  Normal Values - calculated arbitrarily
  artificially.
• 7. Blunt discretionary rules for treatment of
  NME producers.
• INJURY
• 8. Extreme administrative discretion in
  determination of injury causation.
• 9. Excessive administrative discretion
  calculation IM.

• Other Problems
• 10. Problems in decision-making process
  -overshadowed by lack of motivation / clarity or
  political interference.

Edwin Vermulst-VVG
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Key Assessments TEN - I
CONCLUSIONS Most developing countries have
copied the EC system, including its shortcomings,
notably lack of transparency
Edwin Vermulst-VVG
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Key Assessments TEN - II

• DUMPING MARGIN CALCULATION Problems
• 1. Calculation of Constructed Normal Values
  treatment of sales below cost .
• 2. Definition of related parties, its influence
  on prices charged between them treatment of
  related party sales.
• 3. Establishment of Normal Value in NME cases
  arbitary character of surrogate country
  approach/MES criteria.
• 4. Adjustments for duty drawback claims
  excessive evidentiary requirements.
• 5. Adjustments for differences in levels of trade
  quantities often not accepted.

• DUMPING INJURY MARGIN CALCULATION Problems
• 6. Sub-division of like product into PCNs
  application of PCNs in various calculations.
• 7. Excessive discretion of authorities in
  calculation of all others rate.
• 8. Lack of transparency in calculations made by
  domestic authorities.

• INJURY MARGIN CALCULATION Problems
• 10. Inconsistent application of lesser duty rule
  calculation of a single injury margin for exports
  from different countries zeroing of
  non-injurious export transactions
  non-transparent calculation of target prices
  unpredictability in calculation of reasonable
  profit in target prices.

Edwin Vermulst-VVG
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Key Assessments TEN - II

• CONCLUSIONS
• Most problems are directly linked to areas
  insufficiently regulated by the ADA.
• Solutions
• Re-negotiation
• Recourse to WTO Dispute Settlement Procedures
• Domestic unilateral - changes

Edwin Vermulst-VVG