analysis of the practices on sunset review in anti-dumping measures in wto cases-final

8/12/2019 Analysis of the Practices on Sunset Review in Anti-Dumping Measures in WTO Cases-FINAL

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Analysis on the Practice of

Sunset Reviews

in Anti-dumping Measuresin WTO Cases

Group Project of International Economic Law Class

2013/2014

Group 3 Members:

1. Ayup Suran Ningsih (P72115)

2. Dechry G.R. Simatupang (P72119)

3. Muhammad Faiz Aziz (P72110)

4. Norhaini Binti Nion (P72109)


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Contents

I

II

IV

III

What is Sunset Reviews & its

Relations To Anti-Dumping

Sunset Review Cases in WTO: InNumbers

Analysis on the Practice of Sunset

Reviews in WTO cases

Conclusion & The Way Forward


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What is Sunset Reviews (SR)?

Sunset Reviews simply means review thatinitiated by specific authority before a definitiveanti-dumping duty lapses to determine whether tocontinue or terminate the anti-dumping dutiesimposed against exporters or producers of theparticulars goods. (WTO 2013 Report, pg. 47).Sometimes it is called as Expiry Review.

Sunset reviews became part of the member

states law when they implemented the

Uruguay Round agreements through UruguayRound Agreements Act (URAA)


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Relation between SR and Anti-Dumping

Measures

ARTICLE VI GATT 1994 (ANTI-DUMPING

AGREEMENT)

The contracting parties recognize that dumping, by

which products of one country are introduced into

the commerce of another country at less than

the normal value of the products, is to be

condemned if it causes or threatens material injuryto an established industry in the territory of a

contracting party or materially retards the

establishment of a domestic industry.

SR is Part of the WTO Anti-Dumping Agreement


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Expiry Period of Dumping

The expiry of the respective anti-dumpingduty would be likely to lead to

continuation or recurrence of dumping

(and injury)5 years

Part of Uruguay Round Agreements Act

(URAA)


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Where is SR regulated?

11.3 Notwithstanding the provisions of paragraphs 1 and 2, 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 if that review has covered bothdumping and injury, or under this paragraph), unless the authorities

determine, in a review initiated before that date on their own initiative

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,

that the expiry of the duty would be likely to lead to continuation or

recurrence of dumping and injury. The duty may remain in forcepending the outcome of such a review.

AGREEMENT ON IMPLEMENTATION OF ARTICLE VI

OF THE GENERAL AGREEMENT ON TARIFFS AND TRADE

1994 (Article 11.3)


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Language in Article 11.3 makes clear that it envisages aprocess combining both investigatory and adjudicatoryaspects. In other words, Article 11.3 assigns an activerather than a passive decision-making role to theauthorities. The words reviewand determinein Article11.3 suggest that authorities conducting a sunset review

must act with an appropriate degree of diligence andarrive at reasoned conclusion on the basis of informationgathered as part of a process of reconsideration andexamination.

(The Appellate Body Reports on DS US Sunset Review

of Anti-Dumping Duties on Corrosion-Resistant CarbonSteel Flat Products from Japan, para 111)

Where is SR regulated?


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The Procedural Requirement under the Anti-

Dumping Agreement

Provide for judicial review of final determinations in

reviews

The review will be conducted by tribunal inpursuant with its domestic procedures and

independent from the authorities that responsible

in initiating the reviews.


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The Procedural Requirement under the

Anti-Dumping Agreement

The process of review must be concluded

within one year from the date where the review

is initiated. Any dissatisfaction on the review

conducted by state authority can be brought

before the WTO Dispute Settlement body forsettlement process .


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The Procedural Requirement under the Anti-

Dumping Agreement (summarized from ADA)

Authorized trading agency (ATA) announces sunset reviews

Notify and inform local industries to submit evidences

whether material injury still continues or not

Positive Evidences Negative evidences or does not submit

Anti-dumping duties

shall be revokedATA send questionnaires to exporting company (EC)

EC respond No Respond from EC orresist

Best information availableATA investigates and analyze

Decision/Results

Anti-Dumping

ContinuedAnti-Dumping

Terminated


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Contents

I

II

IV

III




reviews in WTO cases

What is Sunset Reviews & itsRelations To Anti-Dumping


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Sunset Review Cases: In Numbers

Important to see thoroughly sunset review cases toknow sunset review cases in practice.

Read case by case of sunset review cases in

WTO.

There are 469 cases submitted before WTO.21 of 469 cases (representing 4.47%) aresunset review cases. (as of 20/11/2013)

12 countries being participated in sunsetreview cases (complainant and respondentparties)


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0 1 2 3 4 5 6

Argentina

Indonesia

India

Japan

South Korea

Viet Nam

China

Mexico

EC/EU

Participating as Complainant European Union beingthe most complaining

party (5 cases).

Followed by China and

Mexico (each 3 cases).

These 3 countries

challenge US

regarding the Article of

11.3


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United States being

the most respondent

country (17 of 21

sunset review cases).

The rest 4 cases are

distributed to EU (2

cases), Brazil (1) and

South Africa (1).1

1

2

17

0 5 10 15 20

Brazil

South Africa

EC/EU

US

Participating as Respondents


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Sunset Review Cases: In Numbers The number of 17 from 21 SR cases show that US

provisions or regulations regarding anti-dumping sunsetreview is subject to challenge to Article VI of GATT 1994

(ADA) and is allegedly inconsistent with ADA especially

Article 11.3.

Continued imposing of anti-dumping duties after 5-year

term is amongst reasonably background that encouragecomplaining countries to challenge US provisions on Anti-

Dumping, especially against Sunset Policy Bulletin and

Zeroing Methodology regulated.

Sunset Review related to Zeroing Methodology: DS 281,

DS294, DS322, DS325, DS344, DS350, DS382, DS420,DS422, DS424, 429, DS464


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25 Countries being third party or observers. Almostall observe when US being respondent party.

Japan being the most third party countries (12

cases). Followed by EU (11 cases)

Except Indonesia, all complaining countries have

also participated as observers.


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838.10%

1361.90%

Proceeding-Ended Level

Consultation

Panel

No Level Nbr ofCases1 Panel 132 Appellate 73 ComplianceProceeding 5


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Sunset Review Cases: In Number

The data show that sunset review cases arealmost solely belong to US.

US regulations are subject to be challenged US

regulations or provisions are allegedly against

and inconsistent with Article 11.3 of the Anti-

Dumping Agreement.

In addition, the data also show that it is possible

that many countries has well implementedsunset review regime. Less number of sunset

review cases compared to other WTO cases.


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Contents

I

II

IV

III

Activities of Study






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Article 11.3 does not prescribe any particular methodologyto

be used by the investigating authorities in making likelihood

determination in a sunset review.

investigation authority may have its own initiatives in

determining any continuation or recurrence of dumping and

injury.

no requirement on the part of the investigation authority tocalculate or rely on the dumping margin in making a

determination of recurrence of dumping.

BUT in carrying out the determination under Article 11.3, it is

clear provision that it must be based on positive evidence, havea sufficient factual basis, involve rigorous examination, and be

supported by reasoned and adequate conclusion


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Practice by the United States:

1. reliance on the previous dumping margin

the United States Department of Commerce (USDOC) would refer

to the dumping margin that found in the original investigation or

from the previous administrative review in determination of

sunset review.

Both methods used either original investigation or an

administrative review is calculated by the zeroingmethod.

investigating authorities make reliance on the previous

dumping margin in determining the sunset review, the marginmust be consistent with the Article 2.4 of the Anti-Dumping

Agreement.


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DS244 (US Corrosion Resistant Steel Sunset Review)

Appellate Body Report

In the CRS sunset review, USDOC based its determination that

dumping is likely to continue if the [CRS] order were revoked on the

existence of existence of dumping margins calculated in the

administrative review. If these margins were indeed calculatedusing methodology that inconsistent with Article 2.4 an issue

that we examine below then USDOCs likelihood determination

could not constitute a proper foundation for the continuation

of anti-dumping duties under Article 11.3. Moreover, a legal

defect of this kind cannot be cured by Nippon Steel Corporationsfailure to take issue with it in the CRS sunset review or the

administrative review


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Most of the cases related to the practice of sunset review that

involves the United States, Appellate Body always come to the

conclusion that USDOC reliance on the past margins in

determining the sunset review is inconsistent with Article 11.3

of the Anti-Dumping Agreement.

DS350 (US Continued Zeroing), DS322 (US Zeroing

(Japan), DS244 (US Corrosion Resistant Steel SunsetReview).

Even though the United States submitted argument that USDOC

has no longer use zeroing model in their original investigation,

but the Appellate body often found otherwise.


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2. Cumulating imports from one country with imports from

other countries without applying the negligibility standard

the investigating authority in a sunset review from the United

States did not establish that there is no negligence on the

part of other countries before cumulating the imports.

determination of likelihood of continuation or recurrence ofinjury will be inconsistent with the Anti-Dumping Agreement.

not fair to impose duties only on the ground that cumulative

assessment was made along with others exporters


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3. USDOC will base its likelihood determination on an order-

wide basis and not company-specific basis. Refer to anti-

dumping duty that imposed on specific product. See also

Article 9.2.

order-wide : Refer to anti-dumping duty that imposed on

specific product.

company-specific :Refer to imposition of a duty in respect ofindividual exporters or producers.

USDOC is to make a single determination of whether

revocation of the order would likely to lead continuation or

recurrence of dumping.


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investigation has to be carried out on company-specificbasis

where it is unfair to continue the anti-dumping duty to other

entity which is no longer or not engaging in dumping.

Similar principle applied to cumulative investigation.


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Contents

I

II

IV

III

Activities of Study






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Conclusions and The Way Forward

US is being the most respondent country (17 of 21 cases).

The methodology (i.e. relying on initial anti-dumping margin,

zeroing, order-wide basis and company-specific basis) and

duration of review it implements to conduct this expiry review

seems inconsistent with Article 11.3 of the Anti DumpingAgreement.

Sunset review is initiated by specific authority before a definitive anti-

dumping duty lapses to determine whether to continue or terminate theanti-dumping duties imposed against exporters or producers of the

particulars goods. Sunset review is a new legal action agreed in the URAA

and GATT 1994. Since WTO established until now, there are 21 cases of

SR challenged in WTO (4.47% from the total 469 cases as of 20 November

2013).


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However, unclear methodology prescribed by Article 11.3can be another cause. It may encourage investigation

authority to have its own initiatives in determining

continuation or recurrence of dumping and injury.


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In the future, it is necessary that the Anti-DumpingAgreement is subject to revision especially relating to

sunset review methodology.

WTO should have clear provision regarding this to avoid

much unnecessary interpretations.

For country that does not have intention to implement

the DSB recommendation, the DSB or the WTO may

impose sanction of alienation of this countrys product

and encourage other countries to make retaliation


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I

Kemumu di tengah pekanDi embus angin jatuh ke bawah

Ilmu yang t idak diamalkan

Bagai pohon t idak berbuah


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Thank you

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