|
It is a rule that the more complex the procedure is, the higher the demands for the personnel and domestic services are. It is not a problem for developed countries since services and high quality personnel are available at home. However, it is not the case for developing countries. They are facing sharp shortage of competent lawyers who are familiar with anti-dumping procedure and related international customary rules. Even their delegates in the WTO “often lack technical expertise and negotiating experience; lack access to in-depth analysis of the implications of the proposal they are required to negotiate and receive inadequate support and guidance from their home capitals”(42) . Therefore, it is understandable that they are defenseless when there is an anti-dumping case initiated by the other country and we can predict this adverse situation can not be reversed within a short time. Jackson thought(43)
Small governments in particular often do not have in-house expertise that is adequate to handle some of the complex cases (or even some of the simple cases) which are finding their way into the WTO Dispute Settlement arena. Such states are put at a substantial disadvantage against large entities like the USA or the European Community which have such in-house expertise. These smaller states consequently have in some circumstances been eager to retain the services of private attorney, usually Europeans or Americans.
However, even though developing countries can get full support from foreign law firms, the defense against an anti-dumping charge is not always successful since there is a lack of good understanding between them and foreign lawyers are not familiar with their own production process.
In addition to the human resource problem, another fundamental problem for developing countries is the financial burden. Because of lack of professionals at home, the only way to win a case is to hire foreign legal practitioners. This means developing countries need to pay expensive legal fees. Usually the long period of dispute settlement proceedings makes things worse. Many developing countries hesitate to participate in anti-dumping investigations when they consider the financial expenditure. According to the Chinese Ministry of Foreign Trade and Economic Co-operation (MOFTEC), China''s response rate to anti-dumping lawsuits has risen to 60-70 per cent of the total number in recent years and Chinese firms have won 35.7 per cent of anti- dumping lawsuits. This is already considered by MOFTEC as great progress compared with the previous silence of Chinese firms. Previously, due to “high agent fees and lack of knowledge of international trade rule, many Chinese firms facing dumping charges chose to retreat from the overseas market”.(44) Even though China is the largest developing country with the highest economic growth rate, it still can not afford the heavy financial burden arising from Anti-dumping lawsuits. We can image what situations other developing countries are facing.
Most developing countries called on tough restrictions on Anti-dumping initiations and this thus leads to complexity of the proceedings. When they consider taking anti-dumping measures to hit back, they have to abide by the stringent regulations which are binding on all Member States (Explicit S&D treatment for developing countries is not available over this issue at present). In addition to some problems I mentioned above, such as lack of professionals and financial support, developing countries are difficult to set up and make use of anti-dumping regime because they are lack of experiences compared with traditional users who has engaged in anti-dumping activities for nearly a century. It is helpful to quote what Edwin Vermulst described the tough situations developing countries are facing.(45)
National laws and regulations of most developing countries, even where existing, are still imperfect. They are usually less detailed than the multilateral agreements, whereas on the contrary, the national laws and regulations of the major developed countries are more detailed than the multilateral agreements. Developing countries will need to modernize their national laws and regulations, and the techniques for containing unfair import competition.
They need to bring them fully into line with the Uruguay Round agreements and to integrate them with the rest of their legal system to avoid that their anti-dumping…measures could easily be challenged by other WTO Members. This implies to develop a new administrative culture and expertise…
This disadvantage might be diminished with the increasing participation in anti-dumping lawsuits. However, in the short term, developing countries will suffer a lot. It can be predicted that the cases submitted to the Dispute Settlement Body (DSB) will increasing, especially when developing country authorities target developed country members who are veterans in anti-dumping activities.
VII IMPERFECT SUNSET REVIEW.
Although prior to the AAD 1994, the EU, Canada and Australia had anti-dumping sunset review procedures,(46) sunset review can still be deemed as one of the most significant changes as a result of the Uruguay Round. According to Article 11.3, all anti-dumping duties shall be terminated after five years after its imposition except some specified circumstances.
Since traditional users have a large proportion of cases in force and developing countries are main parties affected of such cases, sunset review seems to be good for developing countries. However, if we look carefully at Article 11, we will find there are many tricks which make developing countries gain little from them. The principle of sunset review is actually given by Article 11.1, “an anti-dumping duty shall remain in force only as long as and to the extent necessary to counteract dumping which is causing injury”. Although any definitive anti-dumping duty shall be terminated on a date not later than five years from its imposition or from the date of the most recent review under paragraph 2, 3 of Article 11, this is not the case if the authorities of the importing country determine that the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury. This kind of review can be initiated by the authorities themselves before that date or upon a duly substantiated request made by or on behalf of the domestic industry within a reasonable period of time prior to that date. Therefore, the result after five year’s anti-dumping duty imposition is still unpredictable and to a large extent the review is at the authorities’ discretion. What is more, there is a risk that sunset review will legitimise the anti-dumping order within the five-year period. During this period the authorities may not be willing to remove anti-dumping orders even though the likelihood of injury of dumping has disappeared and thus it is not necessary any more to continue the imposition of the anti-dumping duty. In a sense, they are really wolves in sheep’s clothing.
|
