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Nevertheless, the legislation of developed countries is far behind the realities. Developing countries are still seriously affected by the NME regime. minor adjustment can not remove its inherent deficiencies. In order to encourage developing countries, especially former centrally-planed countries, to carry on further economic reforms, the NME regime should be abandoned.
2 Lifting any restrictions of the role of panels.
Article 17.6 (ii) was added into anti-dumping agreement in the Uruguay Round. Although developing countries by nature support to enhance the role of panels in the dispute settlement and reduce the discretion of importing countries’ authorities, they failed to persuade developed countries, especially 4 traditional anti-dumping users to do so. Since developing countries more focus on world trade than before and more developing countries are expected to join the WTO in foreseeable period, there will be more anti-dumping cases submitted to the DSB. The restrictions of the role of panels in article 17.6 (ii) should be abolished. Any dispute arising from anti-dumping issue should be solved under the normal procedure of DSU.
3 Sunset review.
One of the current problems on this issue is some countries like US are reluctant to take account of the results from the recent round of multilateral negotiations when reviewing an anti-dumping order made several years ago. Developing countries argue the new regulations should be applicable on the review case. In order to demonstrate fairness and massively reduce the anti-dumping cases in force in which developing countries are mainly the targets, if there is a new code which is different from the old one, the most friendly code shall be applicable.
The role of the importing country’s authorities is another concern of developing countries. They can initiate a review by themselves even though the domestic industry doesn’t make an application in time. In order to guarantee the impartiality of the authorities and tightly control sunset review, it is necessary to deprive the authorities of any right to initiate sunset review.
Since there is no strict time limit for sunset reviews, many importing countries’ authorities always extend the review period. This de facto violates the objective of the sunset review mechanism. Therefore, paragraph 4 of Article 11 should be revised by canceling the word “normally” and adding that if the case can not be justified with a fixed review period, review should be terminated and anti-dumping duties should be lifted.
IX CONCLUSION
Since the Uruguay Round, the anti-dumping enforcement has changed the pattern. Some large developing countries join the anti-dumping club although traditional users are still playing an important role in this regime. Nevertheless, this trend doesn’t change the vulnerable situation of developing countries. Apart from some deficiencies existing in developing countries themselves, the main reasons for this worse situation are attributed to the unfriendly anti-dumping system. Roughly they are non-market treatment, no S&D treatment and some procedural problems (including constraints of the role of panels, complexity of procedure and imperfect sunset review.)
The NME treatment has caused a number of countries, which are struggling for market construction, to become defenseless victims. The normal value is established not on the basis of the exporter’s data, but that of a surrogate country. Therefore, broad discretion on the margins of dumping of imports, together with lack of defendant’s rights, always makes dumping charges easy to be justified. That is why countries like China frequently appear in anti-dumping lists. Although anti-dumping measures against those countries are claimed meaningless by some scholars,(60) those cases accounted for the largest proportion of anti-dumping actions. This situation is expected to become worse since those countries are increasingly involved into world trade as a result of market-oriented reforms.(61)
No specific S&D treatment for developing countries is also the main deficiency of the anti-dumping regime. The Uruguay Round resulted in massive reduction of tariffs and the priority for developing countries to access to developed countries’ markets has been eroded. What’s more, developing counties’ concession doesn’t get reciprocal treatment since they are facing more aggressive anti-dumping charges both from traditional users and new users.
There are some procedural problems. Although they are not explicitly directed at developing countries, they de facto damage the interests of developing countries. Constraints of the role of panels distinguish the anti-dumping regime from other WTO regimes. Traditional users desperately require less interference with domestic decisions during the Uruguay Round. As a result, panels’ role is strictly limited compared with normal Dispute Settlement Procedure. Panels can do nothing if establishment of facts is proper and evaluation of those facts is unbiased and objective. Another controversial issue is that the AAD allows different interpretations, which is against the Vienna Convention on the Law of Treaties. One of the expected benefits for developing countries joining the WTO is to take advantage of multilateral mechanism to avoid any unbalanced bilateral negotiations with their powerful trading partners. However, it is faded due to powerless panels.
The complex procedure of anti-dumping regime, like other regimes under the WTO, makes developing countries difficult to use it as both a complaining party and a defending party. They are in sharp shortage of human resource and financial support. Not surprisingly their response rate is very low and their anti-dumping charges are always not justified according to the AAD 1994.
Sunset review was originally deemed friendly to developing countries. However, developing countries gain little because the traditional users have got an overwhelming proportion of anti-dumping measures in force and they are reluctant to make significant concession. Broad discretion of the domestic authorities and exclusion of the new rules make sunset review deviated from its original purpose.
Based on those deficiencies against developing countries, proposals for the next round of multilateral negotiation are very clear. Lifting the unfair non-market economy treatment and give enforceable S&D treatment will significantly reduce anti-dumping cases. In order to embody the multilateral mechanism and the rule of law, any additional restriction of the role of panels should be abandoned. For the purpose of facilitating developing countries’ participation in anti-dumping lawsuits, reasonable financial support and expertise assistance are needed. Banning any initiation of sunset review by domestic authorities and application of new rules in the course of case review are bound to terminate many unnecessary anti-dumping orders.
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