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At present, enhancing S&D treatment is critical for developing countries because developing countries are facing tougher situations in the world trading system than before. First of all, after the Uruguay Round, there was a massive tariff cut as a result of globalisation, which eroded the GSP by which developing countries can enjoy preferential access to developed countries’ markets. In addition, the extensive bindings of tariffs, restrictions on the use of trade policy measures (e.g. subsidies or TRIMs) have further reduced the flexibility previously enjoyed by developing countries. On the other hand, due to prohibition of different types of trade barriers by the WTO agreements, developed countries shift their protectionist methods to anti-dumping regimes. Statistics released by the WTO shows anti-dumping cases are increasing and developing countries become more frequently targets of anti-dumping measures since some large developing countries like, India, Brazil, Mexico joined the anti-dumping club after the Uruguay Round. Facing those new challenges, developing countries are defenseless because Article 15 fails to provide effective protection for them .
V CONSTAINTS OF THE ROLE OF PANELS HAVE NEGATIVE EFFECTS ON THE MULTILATERAL NEGOTIATION MECHANISM.
Generally the WTO is a rules-based multilateral forum for world trade. There is no doubt that this system is good for developing countries since they can establish alliance to negotiate with main trading partners. Therefore the bargaining power of developing countries is amplified. As a result of the rule of law under the WTO framework, the WTO dispute settlement procedure, although it has many deficiencies, shields vulnerable developing countries from any discriminatory treatment by powerful developed country trading partners.
However, disputes arising from anti-dumping issue can not be solved under the normal WTO dispute settlement procedure. There is a special procedure for them. According to Article 17.6 of Agreement on Anti-dumping Measures, “the panel shall determine whether the authorities’ establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned”. The question is all parties almost have no obviously different opinions on established facts and what they are concerned about is the legal relevance and legal consequences of those acknowledged facts.(38)
Further more, if there are more than one permissible interpretation of the relevant provisions of the AAD and the authorities’ measures fit into any of them, even if the panel has different interpretation on the provisions, those measures can be deemed as justified.(39) Even this provision is in conflict with the first sentence of this paragraph, “the panel shall interpret the relevant provision of the Agreement in accordance with customary rules of interpretation of public international law”. Traditional anti-dumping users argue that the second sentence is an exception. However, the Article 31 of the Vienna Convention on the Law of Treaties explicitly provides that: “…a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of this object and purpose.” There is no room for several permissible interpretations. The only explanation is traditional users are reluctant to be bound by panels’ decisions.
What developing countries are concerned about is the panels have less power to deal with this kind of dispute than others do. Therefore during the Uruguay Round Negotiations, developing countries supported broader standards of review for the Panels. This was aimed at checking what they saw as being the encroaching protectionist abuse of antidumping laws.(40) However, as I mentioned above, in the Uruguay Round developed countries were committed to excluding trade barriers. As a result, anti-dumping is the last weapon against imports for developed countries and any activity empowering the panels will disarm them. Some scholars like Greg Mastel, warned developing countries that anti-dumping was the corner stone of free world trade. Otherwise(41)
Resentment of job losses and factory closings due to unfair trade with countries with radically different economic systems would surely provide political support for drastic action to restrict trade with countries that do not support Western free-market economy. The American populace is unlikely to quietly tolerate massive economic displacement as a result of foreign subsidies or trade barriers. Antidumping laws thus prevent political resentment from building up against free trade and against the world trading system. Without such a political consensus the global trading system would be unlikely to survive for long.
As a result, the proposal raised by developing countries was not adopted by the new Anti-dumping Code.
Lack of power in the dispute settlement proceedings just means the AAD 1994 excludes the application of the multilateral mechanism in this field. This situation forces developing countries to negotiate with their powerful developed trading partners on a bilateral basis, which is what developing countries always try their best to avoid. In this regard, the restriction of the role of panels in conflict with the principle of multilateralism of the WTO.
Since most developing countries adopt export-oriented economies and they more frequently participate in world trade, anti-dumping cases against them is increasing rapidly, which are mainly from traditional anti-dumping users like US, EU, and new anti-dumping club like India, Brazil and Mexico. Developing countries desperately need enhance Multilateral Negotiation Mechanism to protect their interests. Broad discretion of importing countries’ authorities should be balanced. Lifting the constraints of the role of panels and making panels more powerful are regarded as effective methods against abuse of anti-dumping measures.
VI COMPLEXITY OF ANTI-DUMPING REGIME PROVENTS DEVELOPING COUNTRIES FROM POSITIVELY PARTICIPATING IN ANTI-DUMPING ACTIVITIES.
In the Uruguay Round anti-dumping progressed a lot. One of the significant change is anti-dumping measures became more transparent and practical. Just like everything in the world, the complexity of anti-dumping measures has its advantages and disadvantages. It makes developing countries more vulnerable regardless of the role as complainants or defendants.
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