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There is no doubt that it is fraught with potential for gross inaccuracy and that the extent to which the final result hears any relation to market-based costs is open to serious question. Interestingly, this methodology was criticised by former US Trade Representative, Charlene Barshefsky, before she came into office(31) .
B Defendant’s Rights
Right to defense is very important in an anti-dumping case since the authorities are overwhelmingly powerful in the whole course of anti-dumping. There is a lot of legislation governing this issue. European Union’s Anti-Dumping Regulation provides that(32)
the complainants, importers and exporters and their representative associations, and representatives of the exporting country may request disclosure of the details underlying the essential facts and considerations, on the basis of which provisional measures have been imposed…
The parties mentioned in paragraph 1, may request final disclosure of the essential facts and considerations, on the basis of which it is intended to recommend the imposition of definitive measures, or the termination of an investigation or proceedings without the imposition of measures, particular attention being paid to the disclosure of any facts or considerations which are different from those used for any provisional measures.
Since an anti-dumping action is initiated against the NME country, the export price will be determined on the basis of the average export price of all exporters. The importing country authorities always refuse to disclose detailed facts on the grand that they are obliged to protect confidential data supplied by each of exporters according to Article 6.5 of AAD and related domestic regulations. This means that the defendant is deprived of the right to know how the margin of dumping is calculated and thus it is powerless to defend itself against any errors or inappropriate methods made by the authorities of the importing country.
Due to the reasons mentioned above, dumping charges against NME countries are easy to be justified. That is why China is always the leading target of anti-dumping.
IV NO SPECIAL AND DIFFERENTIAL (S&D) TREATMENT FOR DEVELOPING COUNTRIES COMPARED WITH OTHER WTO REGIMES.
The S&D treatment issue was first raised by developing countries in the Conference on Trade and Employment (the Havana Conference). They argued that trade liberalisation based on the Most Favoured Nation (MFN) principle could not necessarily result in their economic growth and development. The two main reasons were: (33)
1. Particular structural conditions of economies of developing countries are different;
2. Trade liberalisaition might be distorted due to the negotiation powers of industrialised countries in the word trading system.
Therefore, in order to establish fair competition in the word market, the S&D treatment should be taken into account. Those claims were adopted by the GATT. The main preferential treatments can been seen in the WTO agreements (34)
1. Preferential access under the Generalised System of Preferences (GSP);
2. The right to benefit from multilateral trade agreements, particularly on tariffs in accordance with the MFN principle, without being obliged to offer reciprocal concessions; and
3. The freedom to create preferential regional and global trading arrangements without conforming to the GATT requirement on free trade areas and custom unions(Article XXIV);
4. The right to maintain trade barriers to deal with balance-of-payment problems and to protect their infant industries;
5. The right to offer governmental support to their domestic industries using various industrial and trade policy measures.
Generally the S&D treatment is expressed in terms of transitional periods, differences in threshold levels and technical assistance.
As far as anti-dumping is concerned, the S&D treatment was not taken into account until the Tokyo Round. At that time, developing countries found the 1967 Kennedy Round Antidumping Code substantially damaged their interests and claimed it was hard for them to adhere to the Code. As a compromise, developed countries agreed to give special regard to the situation of developing countries when considering the application of antidumping measures under the Code, but they did not specifically exempt the developing countries form the Code’s general provisions.(35) It was only a general promise. No concrete provisions were given.
During the Uruguay Round, a lot of progress was made on anti-dumping issue, but the question of the S&D treatment was still there. There is only one article governing special treatment for developing countries. Article 15 of the AAD, like 1979 Code, generally prescribes that “special regard must be given by developed country Member to developing country Members when considering the application of antidumping measures”. There are no detailed provisions about what the special treatments are. The length of Article 15 is surprisingly short compare with other WTO regimes. It contains only one paragraph while in the Agreement on Subsidies and Countervailing Measures (ASCM) the article designed for developing countries consists of 14 paragraphs(36) . No special threshold levels for developing countries is given as ASCM does. Article 15 suggests developed countries should explore constructive remedies “before applying anti-dumping duties where they would affect the essential interests of developing country Members”, but how can we judge the essential interests of developing country Members affected? What is the standard? Who is entitled to make a judgement? There are no answers in the AAD. What’s more, the AAD constrains any positive participation of panels in antidumping disputes except the two prescribed conditions. A discussion on this issue follows in the Part V. Therefore, everything is at the discretion of the authorities of developed countries. Unfortunately, developed countries are reluctant to do more on this issue. So far we haven’t seen any “constructive remedies” provided by developed countries in the course of their anti-dumping enforcement. It is clear that there is de facto no differential treatment between developing countries and developed countries in the past. In contrast, domestic laws and regulations have been increasing in order to target dumping effectively and efficiently. The U.S. is a good example.(37) In a sense, article 15 is nothing because it is lack of specific and enforceable provisions.
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