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The Anti-Dumping Agreement

The Anti-Dumping Agreement. Edwin Vermulst Vermulst Verhaeghe & Graafsma. Overview. Anti-dumping duty (ADD): a duty levied on goods which have been sold (dumped) in the importing country at lower prices than on the domestic market of the exporting country; or

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The Anti-Dumping Agreement

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  1. The Anti-Dumping Agreement Edwin Vermulst Vermulst Verhaeghe & Graafsma

  2. Overview • Anti-dumping duty (ADD): a duty levied on goods which have been sold (dumped) in the importing country • at lower prices than on the domestic market of the exporting country; or • below their cost of production. • ADD are a tool to shield domestic industries from low-priced third country imports. • AD is the most frequently invoked trade defense instrument worldwide.

  3. Presentation • Dumping • Injury • Procedures • WTO dispute settlement

  4. 1. Dumping • Six essential steps in establishing whether goods have been dumped: • Determine the product under consideration (product concerned); • Choose the investigation period(IP); • Determine the export price; • Determine the normal value of the goods; • Compare the normal value to the export price; and • Calculate the dumping margin (i.e., the difference between the normal value and export price).

  5. 1. Dumping: Export price • Export price: price actually paid/payable for goods when sold for export to the EU. IF: 1) no export price exists OR 2) the export price is unreliable because the there is a relationship between the exporter and importer (ex. producing/exporting parent company and related importer) THEN • The export price may be constructed using the price at which imported goods are first resold to an independent buyer.

  6. 1. Dumping: Normal value (1/8) • Normal Value: normally determined on the basis of the price paid/payable by independent customers in the EXPORTING COUNTRY (e.g., domestic sales). • Cases when normal value CANNOT be determined on basis of sale price: • The exporter does not have sales of the like goods in the exporting country (i.e. domestic market) • The sales are insufficient and therefore not representative (i.e., less than 5% of export sales to EC); • Domestic sales are not made in “the ordinary course of trade” (e.g., domestic transactions are sold at a price below the cost of production)

  7. 1. Dumping: Normal value (2/8) In the three instances when normal value CANNOT be based on domestic sales: Normal value = cost of production(in country of origin) + “reasonable amount” for SG&A costs(selling, general and administrative) and profit

  8. 1. Dumping: Normal value (3/8) Three Unique Situations: • Domestic sales are not made in “the ordinary course of trade”: sales below cost: Domestic sales of like product/comparable models are representative (over 5%) but some domestic sales are sold below cost of production. These may be treated as not being ‘in the ordinary course of trade’ and may be excluded from normal value calculation if they are made within an extended period of time in substantial quantities at prices which do not provide for the recovery of all costs within a reasonable period of time. • In practice, sales below cost are excluded when: 1. Weighted average selling prices is below the weighted average per unit costs , OR 2. The sales represent more than 20% of the quantity of total domestic sales of the models concerned.

  9. 1) Dumping: Normal value (4/8) Exclusion of sales below cost will increase the normal value and thereby makes a finding of dumping more likely. Sales below cost example: Cost: 50 QuantityNormalExport ValuePrice Day 1 10 40 40 Day 10 10 100 100 Day 20 10 150 150 Day 30 10 200 200 WA 150 122.5 Dumping amount: 110 Dumping margin: 110/515 (CIF value) x 100 = 21.14% Note: Dumping margin = ((Normal value - export price)/CIF value) x 100

  10. 1. Dumping: Normal value (5/8) (2) When domestic producers and distributors are related, some WTO members base normal value on the (higher) ex-distributor price. [US-Hot-rolled Steel] (3) Transshipments: the normal value is typically the price in the country of export. Three exceptions: • Products are merely transshipped through the country of export; • Products are not produced in the country of export; • There is no comparable price in the country of export. In the above cases, the normal value for the country of origin may be used.

  11. 1. Dumping: Normal value (6/8) • Non-market economy countries (NMEs): normal value is based on 1) the price or 2) constructed value in a market economy third country [surrogate or analogue country]. • Market Economy Treatment: normal value will be determined on the basis of the price paid/payable by independent customers in the exporting country, if— • On the basis of a properly substantiated claim, the producer in the NME can show that market economy conditions prevail with respect to: 1. manufacture, and 2. sale of the like product concerned

  12. Market Economy Treatment (MET) claims must show: Decisions regarding prices, costs and inputs (including raw materials), cost of technology andlabour, output, sales and investment, are made in response tomarket signals reflecting supply and demand, withoutsignificant State interference, and costs ofmajor inputs reflect market values, One clear set of basic accounting recordsindependently audited in line with internationalaccounting standardsand applied for all purposes, Production costs and financial situation notsubject to significant distortions carried over from the former NME economy system, Firms are subject to bankruptcy and propertylaws which guarantee legal certainty and stability for theoperationof firms, and Exchange rate conversions carried out at the market rate. 1. Dumping: Normal value (7/8)

  13. 1. Dumping: Normal value (8/8) • The European Commission consults with the Advisory Committee and allows the EU’s producers of the product concerned to comment. It then makes its final determination whether the producer has met the five criteria. • The determination must be made within three months of initiation the anti-dumping investigation. • The determinationremains in force throughout the investigation.

  14. 1. Dumping: Fair Comparison(1/2) • A ‘fair comparison’ must be made between the export price and the normal value at the same trade level, at or about the same time, and taking into account differences which may affect price comparability. • When the normal value and the export price are not on a comparable basis, adjustments must be made if the entity can demonstrate that the factors affect price comparability. They include: • Differences in commissions paid, • After-sales costs, • Costs of credit granted, • Directly related transport and handling costs, • Discounts, Rebates, • Level of trade, • Physical characteristics, • Import charges and indirect taxes.

  15. 1. Dumping: Fair Comparison(2/2) • The adjustments can work either way, i.e., depending on the circumstances they may increase or decrease the dumping margin.

  16. 1. Dumping: Comparison methods • Two general methods: • Weighted average to weighted average. • Transaction-to-transaction basis. • One exception: weighted average normal value compared to prices of individual export prices IF two conditions are met: • Pattern of export prices differ significantly among different purchasers, regions or time periods. • The exceptional method must be proven to be more appropriate.

  17. 1. Dumping: Dumping margin • Amount by which the normal value exceeds the export price. The difference will be the ADD (unless the injury margin is lower). • In the basic formula used by the European Commission, the export price is deducted from the normal value and the result is calculated as a percentage of the CIF (cost, insurance, freight) value. Normal value - export price x 100 = dumping margin. CIF value • The export price used in the numerator is notthe same as the export price used in the denominator.

  18. 1. Dumping: Examples of Dumping Margin Calculations (1/2) Example I: Direct sales to unrelated customers (simple situation) DM: 82 - 79 = (3 / 100) x 100 = 3%. Domestic and export sales prices are the same, but there is dumping margin because the ex factory export price is lower than the ex factory normal value.

  19. 1. Dumping: Examples of Dumping Margin Calculations (2/2) Example II: Sales through subsidiaries (related parties) DM: 122.5 – 91.3= (31.2/100) x 100 = 31.2%. Normal value-deduct direct selling expenses mother company/domestic sales subsidiary, creating ex distributor price. If the EC deducted the same costs on both sides, DM would become: 98.5 - 91.3 = (7.2/100) x 100 = 7.2%.

  20. 1. Dumping: Zeroing (1/7) Comparison methods, zeroing Suppose four transactions of equal weight are sold in the domestic market and the export market as follows:

  21. 1. Dumping: Zeroing (2/7) 1st method – WEIGHTED AVERAGE TO WEIGHTED AVERAGE • Weighted average domestic price: 125 • ( 50 + 100 + 150 + 200) / 4 = 125 • Weighted average export price: 125 • (50 + 100 + 150 + 200) / 4 = 125 Thus: no dumping would be found

  22. 1. Dumping: Zeroing (3/7) • 2nd method – TRANSACTION-TO-TRANSACTION METHOD • One compares domestic prices and export prices sold on or around the same date. This method will lead to a finding of no dumping

  23. 1. Dumping: Zeroing (4/7) 3rd method – COMPARISON WEIGHTED AVERAGE NORMAL VALUE WITH EXPORT PRICES ON A TRANSACTION-TO-TRANSACTION BASIS This less obvious comparison method calculates a weighted average domestic price and then compares this price with prices of export transactions on a transaction by transaction basis.

  24. 1. Dumping: Zeroing (5/7) 3rd method – COMPARISON WEIGHTED AVERAGE NORMAL VALUE WITH EXPORT PRICES ON A TRANSACTION-TO-TRANSACTION BASIS • Under this third method we find two transactions which are dumped and two transactions which are not or negatively dumped. • The total dumping amount is 100. • The total non-dumped amount is also 100.

  25. Prior to the entry into force of the Uruguay Anti-Dumping Agreement this third method was routinely used by some authorities when comparing export prices with normal value and calculating dumping margins. They would then take the position that the third and the fourth transaction are not dumped and subsequently attribute a zero dumping amount to these third and fourth transactions: practice of zeroing. The result was that non-dumped transactions could not be used to offset dumped transactions. This practice became later known as simple zeroing. 1. Dumping: Zeroing (6/7) SIMPLE ZEROING

  26. 1. Dumping: Zeroing (7/7) SIMPLE ZEROING • The total dumping amount in the example above is 100 (75 on the first transaction and 25 on the second). • Assuming that the total CIF price of the four export transactions is 525, this will give a dumping margin of 19,05% (100 / 525) x 100

  27. 2. Injury • Four steps: • Like product • Domestic Industry • Injury • Causation * Community Interest • The determination of injury must be based on 1) ‘positive evidence’ and 2) involve an ‘objective examination’ of: • The volume of dumped imports and their effect on EU prices; • The impact of the dumped imports on EU producers of like products.

  28. 2. Injury: (a) Like product • Like product: identical product or product with closely resembling characteristics • Exception: available data do not permit the identification of the domestic production of the like product. The assessment must be carried out taking into consideration the narrowest range of products. • Product control numbers [PCNs]

  29. 2. Injury: (b) Domestic Industry • Domestic industry: 1) all domestic producers of the like product or 2) those domestic producers whose collective output constitutes a major proportion of the total domestic production of those products • Exceptions: • Producers related to exporters or importers or the producers are importers; • Regional industry.

  30. 2. Injury: (c) Injury (1/5) Material Injury: • Based on Objective Examination of Positive evidence; • Cumulation: the (injury) effects of a product from more than one country simultaneously subject to an AD investigation may be assessed together (cumulated) if: • the margin of dumping established in relation to the imports from each country is more than de minimisand 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 1) the conditions of competition between imported products and 2) the conditions of competition between the imported products and the like Community product.

  31. 2. Injury: (c) Injury (2/5) • Injury investigation period: three years • Evaluation of all relevant economic factors/indices including 15 factors: • Sales • Profits • Output • Market share • Productivity • Return on investments • Capacity utilization • Factors affecting domestic prices • Magnitude of the dumping margin • Cash flow • Inventories • Employment • Wages • Growth • Ability to raise capital or investments

  32. 2. Injury: (c) Injury (3/5) Threat of material injury: • It must be based on hard facts, 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. • This conclusion should be based on factors such as: • Significant rate of increase dumped imports; • Substantial increase capacity of the exporter; • Whether imports entering EU at prices which will have a significant depressing/suppressing effect on domestic prices; and • Inventories of the product. • The totality of the above factors must lead to the conclusion that further dumped exports are imminent and that failing protective action, material injury would occur.

  33. 2. Injury: (c) Injury (4/5) Negligibility: ADD will not be imposed when the injury is negligible- • Imports account for less than 1% of the market share in the EC. • The WTO standard is that injury is negligible if the volume of dumped imports from the exporting country accounts for less than 3% of the imports into the country running the AD investigation. • However, while imports may have a high overall market share, i.e. more than 1%, they may still be less than 3% of total imports. In such instances the WTO standard applies.

  34. 2. Injury: (d) Causation • Non-attribution: the fundamental question is “Was the injury caused by the dumped imports or by other factors ?” • Other factors: (non-exhaustive list) include: • Volume & prices of non-dumped imports • contraction in demand; • changes in patterns of consumption; • Trade restrictive practices; • developments in technology; • performance of the domestic industry.

  35. 2.a Injury margins (1) Undercutting method

  36. 2.a Injury margins (2) Underselling method Cost P = 110 Profit P = 13.2 TP = 123.2

  37. 2.b Injury: Community Interest • EU AD legislation (the Basic Regulation) requires the EC to determine whether the Community interest calls for intervention. • The determination must be based on all of the various interests, including those of the Community industry, importers and user industry. • AD measures may not be applied when the authorities conclude that it is not in the Community interest to apply the measures.

  38. 3. Procedure • The primary objective of the procedural requirements of the WTO ADA and the Basic Regulation is to: • Ensure transparency of proceedings • Give interested parties the opportunity to make their case known and provide adequate explanation of the determinations made. • Procedural issues: • Submission of complaint. • Initiation of the proceeding. • AD investigation timeline. • Application of duties *) EU Procedure and Judicial Review

  39. 3. Procedure: (a) Submission of complaint (1/3) • The European Commission (Commission) may initiate an investigation of its own accord but normally the Commission begins an investigation after receiving a complaint by/on behalf of the Community industry. • Any individual/association can submit in writing a complaint to the Commission alleging dumping and resulting injury by non-EU suppliers. • Complainants are typically associations representing producers in a section of the Community industry.

  40. 3. Procedure: (a) Submission of complaint (2/3) • The complaint should provide: • evidence of dumping; • the injury being caused to the domestic industry; and • a causal link between dumping of products on the EU market and alleged injury caused. • The Commission must examine the accuracy and adequacy of the evidence submitted to determine whether the initiation of an investigation is justified. • The Commission must notify the government of the exporting country after it has received a properly documented complaint, but before proceeding to initiate an investigation.

  41. 3. Procedure: (a) Submission of complaint (3/3) • Standing: an investigation must not be initiated unless the Commission has concluded that the complaint was made by/on behalf of the Community Industry. • The complaint has been made by/on behalf of the Communityindustry if it is supported by Community producers with a collectiveoutput that is more than 50 % of the total production of thelike product produced by that portion of the Community industryexpressing either support for or opposition to the complaint. • No investigation may be initiated when Community producersexpressly supporting the complaint account for less than 25 % of totalproduction of the like product produced by the Community industry.

  42. 3. Procedure: (b) Initiation of proceedings • The Commission publishes a Notice of Initiation (NOI) in the Official Journal (OJ). The purpose is: • To inform affected importers and exporters, and representatives of the concerned exporting countries, and • To commences the investigation into the alleged dumping and injury being caused simultaneously. • The Commission sends out/makes available: • A questionnaire for EC producers; • A questionnaire for exporters; • A questionnaire for unrelated importers

  43. 3. Procedure: (c) AD investigation timeline (1/2) • Day - 45: Complaint lodged by Community industry with the EC. • Day 1: Initiation of proceeding by publication of NOI. Interested parties invited to comment. • Usually 37-day deadline for Questionnaire (Q) responses and requests for hearing/comments by interested parties (specified in NOI/Questionnaires) . • Around Day 2: Letters and Qs to exporters, importers, Community industry, users, and/or consumers (“interested parties”). • Day 38: Expiry deadline for: • Q responses, • requests for a hearing or • other comments by interested parties. • Before/on Day 270: Publication in OJ of EC Regulation imposing provisional measures for 6 months. Entry into force usually day after publication. ->15-30 day deadline comments. • Day 300: Expiry deadline, comments on provisional disclosure letters if there is 30-day deadline

  44. 3. Procedure: (c) AD investigation timeline (2/2) • Around Day 390: definitive disclosure letters sent to interested parties which co-operated in proceeding. • At least 10-day deadline for interested parties which co-operated in proceeding. • Around Day 400: Expiry deadline for comments. • Day 405 to 425: EC analyzes comments. • Around Day 425: EC conclusions sent to the Council. • Before/on Day 455: Publication in the OJ a Council Regulation imposing definitive measures for 5 years. Entry into force usually day after publication

  45. 3. Procedure: (d) Application of duties (1/4) • Provisional duties: provisional duties can be imposed no earlier than 60 days from the initiation of proceedings but not later than 9 months from the initiation. • The provisional duty is set with reference to the established provisional dumping margin (the lesser duty rule applies). • Provisional measures may be a bond or security deposit.

  46. 3. Procedure: (d) Application of duties (2/4) Definitive action • Termination without measures: e.g. the complaint is withdrawn, dumping margins are de minimis (less than 2%); injury is negligible. • Undertaking: exporter undertakes to amend prices. The advantage of price undertaking is that the importer does not have to pay ADD. • Definitive duties: ADD are imposed for five years: • final facts establish that dumping has taken place; • dumping caused injury to Community industry; and • Community interest calls for application of definitive duties. * Provisional measures are made final at the same time.

  47. 3. Procedure: (d) Application of duties (3/4) Retroactivity • In general, ADD can only be applied from the date on which the determination of 1) dumping 2) injury and 3) causality has been made. • In certain cases, duties can be imposed retroactively: • Provisional Measures: • Final determination of injury, or • Final determination of threat of injury • 90 days prior to Provisional: • History of dumping which caused injury; • Massive dumped imports in a relatively short time.

  48. 3. Procedure: (d) Application of duties (4/4) • Interim Review: after one year and changed circumstances. • Newcomer Review: to determine individual margins of dumping for new exporters in the exporting country which did not export the product during the period of the investigation. • Expiry Review: definitive duties must be terminated at the latest 5 years from their imposition unless the Commission determines in the course of an ‘expiry review’ that the expiry of the duty would lead to a continuation or reoccurrence of dumping and injury.

  49. 3. Procedure: (*) EU Procedure and Judicial Review (1/2) • The European Commission 1) analyses the complaints, 2) decides which cases are initiated, and 3) carries out investigations. • Member States (in advisory committee) are consulted on the decision to initiate a proceeding and they are consulted before a decision to impose provisional or definitive ADD is taken. • Discussions about the imposition of definitive ADD occur in preparatory groups (Commercial Questions Group); decisions are taken in the COREPER and in the Council. • In case of Commission proposals to impose definitive measures, within one month of receiving the proposal, the Council must adopt it- unless it decides by a simple majority (13 votes out of 25) to reject the proposal. [Abstentions count in favor of Commission proposals to impose measures.]

  50. 3. Procedure: (*) EU Procedure and Judicial Review (1/2) • The Court of First Instance (CFI) and the European Court of Justice (ECJ) have jurisdiction to hear anti-dumping cases. • The CFI may only hear direct actions. • The ECJ may hear direct actions and preliminary rulings referred by the national courts. • By virtue of Art. 173 EC Treaty, the CFI and ECJ can review the legality of certain acts of the Council and Commission including. • Regulations and Decisions reached by the Commission or Council regarding the imposition of provisional/definitive duties and in relation to the termination of investigations, acceptance of price undertakings, etc. • An application for judicial review may be brought on the basis of inter alia lack of competence or infringement of an essential procedural requirement.

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