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Developing countries are playing an increasingly important role in the world trade. This paper is to view the existing anti-dumping regime under the framework of the WTO from the perspective of developing countries. There is no uniform definition of developing countries. Normally, Countries except the U.S., Canada, E.C countries, Japan, Australia and New Zealand are deemed as developing countries. The newly industrialising countries like South Korea, Singapore, are particular group of developing countries. Agreement on Subsidies and Countervailing Measures (ASCM) gives more detailed meaning of developing countries. It divides developing countries into several groups, one is the least developed countries designated by the UN (7) and those whose GNP per capita is lower than $1000. Apart from countries mentioned above are other developing countries.(8)
Developing countries had got negligible influence on international anti-dumping law-making. Before the funding of the GATT, most developing countries were not independent politically and economically. During the first several rounds of multilateral trade negotiations, they were economically weak and paid more attention on their domestic economies. That is why developing countries were not seen in the anti-dumping arena during the most time of last century. With the development of export-oriented economies, developing countries became increasingly aware of their role in the world trade and certainly anti-dumping regime as well.
This paper will therefore focus on the adverse position of developing countries under the current anti-dumping regime. First it will describe the present practice of anti-dumping worldwide by analysing the latest statistics from the WTO. Next it will address what makes developing countries vulnerable. This can be divided into five parts: unfair non-market economy treatment, no special and differential treatment, constraints of the role of panels, complexity of procedure and defective sunset review. Finally some proposals for the next round of multilateral negotiation will be given.
II PRESENT PRACTICES OF ANTI-DUMPING LAWS IN THE WORLD TRADE.
A Developed Countries Are Main Users of Anti-Dumping Measures.
Generally speaking, US. EU, Australia and Canada have been main users of anti-dumping measures. These four initiated 1489 of the 1558 anti-dumping cases in 1980s.(9) According to the statistics released by the WTO (see Table 1), during the period of July 1, 1999 to June 30, 2000, there were 236 cases initiated. “The most active Members, in terms of initiations of anti-dumping investigations, were the European Community (49), the United States (29), India (27), Argentina (23) Australia (18), Brazil (17), Indonesia (13), and Canada and South Africa (11).” (10) the four traditional members initiated 107 cases, occupying more than 45% of the total amount of anti-dumping cases recorded by the WTO. It should be pointed out that with the development of developing countries, more and more large developing countries, such as India, Argentina, Brazil, and South Africa, join the anti-dumping club. Theses four initiated 91 anti-dumping cases, occupying 38.5% of the total amount of anti-dumping cases. It seems that those large developing countries could compete with the traditional users.
However, as far as anti-dumping measures in force are concerned, the traditional users are still main forces of anti-dumping. Till 30 June 1999, there were 23 Members reported anti-dumping measures (including undertakings) in force. Of the 1121 measures in force reported, 300 measures were maintained by the United States, 190 by the European Community, 104 by South Africa, 91 by India, 88 by Canada, and 80 by Mexico. Other members reporting measures in force each accounted for 5% or less of the total number of measures in force. The four traditional users accounted for about 56% of all anti-dumping measures in force.(11) It can be seen that although more developing countries joined the anti-dumping club, the largest contribution to anti-dumping cases was still from the four members.
Why are developed countries obsessed about using anti-dumping regime?
As a result of several rounds of multilateral negotiations on free trade, all tariff barriers and quantitative restrictions are prohibited according to the WTO agreements. Anti-dumping regime is the exception to the whole world trading system. This situation led to intensive use of anti-dumping measures by developed countries. They had no choice if they wanted to resort to protectionist regime to satisfy the domestic industries.
Second, anti-dumping inherent deficiencies are easy to draw attention compared with safeguard measures. Safeguard requires applying member make concessions and bear other obligations to exporting Members which would be affected by such as measure in accordance with Article 7 of Agreement on Safeguards. However, if the importing country takes an anti-dumping action they needn’t pay a price for their protection measures.
In addition, anti-dumping regime is country-specific while safeguard regime is industry-specific. That means if a country takes a anti-dumping action, the affected countries are particularly selected and usually one country. As to safeguard measures, the affected countries cannot be selected by the importing country and usually are too many. It is likely to risk conflicting with those countries. That’s why we can see now so many anti-dumping cases and few safeguard cases. In 1980s, the four main anti-dumping measures users only undertook 25 cases while the total amount of anti-dumping cases was 1489.(12)
Finally, protectionism arises as a result of poor economic performance. There were more anti-dumping cases when the economy didn’t perform well. Greg Mastel concluded by analysing statistics from 1980 to 1997 that “in general, the volume of cases seems to be inversely correlated with the strength of the economy in the past year or more ”.(13)
As for some large developing countries like Argentina and Brazil who took anti-dumping actions more frequently since the Uruguay Round, the most possible reason is those countries were afraid that floods of imports would damage their domestic industries since tariff barriers and quantitative restrictions were not available. Anti-dumping regime can reduce the risk of participation in the world trade, just like a kind of compensation for the increasing liberalisation of tariffs and non-tariff barriers.(14) There is another version of explanation which is to more morally and strategically address this issue. J. Michael Finger thought developing countries frequently initiated anti-dumping actions as a kind of retaliation. They expect developed countries will reduce anti-dumping actions against them and they can export their products in developed countries’ markets smoothly.(15) Therefore, the primary objective is not to protect domestic industries or block imports but to support domestic exporters.
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