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As a result of the sunset review, the authorities may extend the period of anti-dumping duties beyond the five-year period because Article 11 only specifies such a review should be initiated before that date when the anti-dumping duty is supposed to be terminated unless otherwise specified. Paragraph 4 of Article 11 generally requires the authorities should conclude such a review normally within twelve months of the date of initiation of the review. It is not a compulsory provision and experience in the EU has shown that the duration of reviews can greatly exceed this recommended limit.(47) In addition, where the findings of the review lead to the continuation of the duty, the new five-year period will start run based on the timing of the review. Just because there is no definitive date to terminate the anti-dumping duty, developing countries have to fight for the same case again and again every five years. It will cause an extra financial burden for them. Even Greg Mastel, who is a firm proponent of anti-dumping regime, was concerned that “simply relitigating each case after five years is unlikely to benefit anyone, except perhaps the lawyers who conduct the litigation.”(48)
Finally, the scope of the sunset review is unreasonably limited. According to Paragraph 8 of Article 5, the margin of dumping which is less than 2 per cent expressed as a percentage of the normal value will be deemed as de mininis and thus the injury is negligible. As a result, all cases under the proceedings should be terminated immediately. This provision is another significant change of the Uruguay Round. However, according to the traditional users’ implementation, it is applicable only on newly initiated cases, not in review and refund cases.(49) US Congress even instructed the Department of Commerce to continue to use 0.5 percent for reviews instead of the 2 percent de minimis level of dumping.(50)
VIII SOME PROPOSALS FROM THE PERSPECTIVE OF DEVELOPING COUNTRIES FOR THE NEXT ROUND OF MULTILATERAL NEGOTIATIONS ON ANTI-DUMPING ISSUE.(51)
A S&D Treatment.
S&D is widely accepted by all Member States to deal with the vulnerability of developing countries in the free trading system. But this issue has not been well addressed in the anti-dumping regime. Developed countries began to agree to give developing countries special regard when applying anti-dumping measures to them in the 1979 code and reaffirmed this principle in 1994 code. However, just as I mentioned at part IV, Article 15 is too general to be enforceable. Therefore, concretion of Article 15 should be solved in the next round of negotiation.
1 Raising the thresholds with references to Agreement on Subsidies and Countervailing Measures (ASCM) and Agreement on Safeguard.
As far as de minimis dumping/subsidy margins are concerned, ASCM allows developing countries to enjoy no more than 2% subsidies and least-developed countries 3%(52) while developed countries’ subsidies cannot exceed 1%.(53) Therefore, it is appropriate to raise the de minimis dumping margin specially for developing countries from current 2% to 5% and for least-developed countries to 8%.
As far as de minimis import shares under ASCM are concerned, developing countries enjoy 4% and collectively 9%(54) while there is no accurate proportion for developed countries.(55) As far as de minimis import shares under Agreement on Safeguard are concerned, developing countries enjoy 3% and collectively 9% (56) while no de minimis provision for developed countries. Therefore, it appropriate to raise the thresholds of volume of imports from current 3% to 9%
2 Consultation with the developing countries involved before the anti-dumping investigation(57).
It has been proven that anti-dumping investigations are harmful for parties affected no matter what final results are. It is necessary to establish a mechanism to prevent such damages to developing countries since they can not afford them. Edwin Vermulst recommended that consultation before anti-dumping investigation is procedurally practical.(58)
Under this system, developed countries should inform the developing country involved of the facts of violation of anti-dumping laws and request them not to continue their violation prior to the initiation of investigations. As a response to the request from the complaining developed country, the developing country may correct its violation if it believes the claim of the complaining country is reasonable. If there is no agreement reached by two sides within a fixed period, the complaining country may set out investigation and follow what the authorities can do according to the existing procedure.
This additional procedure will benefit both sides. Developing countries can get a chance to correct their aggressive conducts and possibly avoid an expensive lawsuit. Developed countries can solve dumping problems more efficiently and effectively.
3 Legal fees shall be conditionally shouldered by losing developed countries and expertise support should be available when developing countries face anti-dumping cases.
Heavy financial burden is the root that developing countries have not been positively participating in anti-dumping lawsuits. If a developed country initiates an anti-dumping investigation against a developing country and finally the complaints are not justified, the legal fees in this case should be shouldered by the losing party. Generally it is fair and easy to be accepted by developed countries. If this proposal is adopted by the next round of negotiation, developing countries likely get rid of any hesitation to defend their lawful rights.
The financial issue is only the one side of the problem. Just as I analised in the Part VI, the lack of professionals is still worrying for developing countries. Providing expertise aid is critical for them to participate in anti-dumping actions. There should be a special training program for developing countries. Especially when they face anti-dumping actions or they intend to set up their own anti-dumping institutions, expertise support should be available.
B Other issues should be addressed since they are also responsible for the well-being of developing countries under the anti-dumping regime.
1 Abolishing non-market economy regime.
Developing countries has been persuading developed countries to relax NME regime and it has made some progress. Both US and EU have adjusted some outdated policies on NME countries according to the economic realities of those countries. For instance, the U.S. agrees to determine the normal value based on the prices and costs in countries in transition if the goods are produced under a market-oriented industry. Japan, Korea, Australia and Canada have similar positive adjustment. In contrast, EU seems more conservative. Although it removed China from the NME list, in fact it still applies the NME regime to Chinese exporters on the case-by-case approach.(59)
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