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Trade Remedies and Dispute Settlement

Gustav Brink

.

An introduction

1

TRADE REMEDIES AND DISPUTE SETTLEMENT UNDER

THE WTO

17 June 2009


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Introduction

• What are trade remedies?• When can these remedies be used?• Who can use them?• To what can remedies be applied?• In which regards are remedies

exceptions to general GATT/WTO provisions?

• For how long can remedies be applied?


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Trade Remedies


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Dumping

• What is dumping?• What is dumping not?• Is dumping (always) bad?• What is anti-dumping?• Should Ethiopia use anti-dumping?• If so, when? If not, why not?


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Dumping definition

• Art VI.1 of GATT: 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 injury to an industry producing a like product in the territory of the importing country or materially retards the establishment of a domestic industry.


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Elements of Dumping


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Dumping questions• This definition raises a number of questions:

– What is dumping?– What is normal value?– How is the export price determined?– How are the normal value and the export price

compared to each other?– How is the margin of dumping determined?– What is a like product?– Who constitutes the domestic industry?


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Dumping questions (2)– How is material injury determined?– Which issues need to be considered in

determining whether there is a causal link between dumping and material injury?

– When can measures be imposed, what measures may be applied and for how long may such measures remain in place?

– Is there any possibility of reviewing a decision to impose anti-dumping duties and if affirmative, what types of reviews are available to aggrieved parties?

– How are investigations conducted?


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Normal value


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Export price

• Export price – what is the definition in ADA?• Art 2.3: where there is no export price or where it appears to the

authorities concerned that the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price maybe constructed on the basis of the price at which the imported products are first resold to an independent buyer, or if the products are not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as the authorities may determine

• Art 2.4: fair comparison “the same level of trade, normally at the ex-factory level”


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Price comparison• Art 2.4 requires a fair comparison• Same level of trade• Sales made at the same time• Due allowance for

– differences in conditions and terms of sale– Taxation– levels of trade– Quantities– physical characteristics, and – any other differences which are also demonstrated to affect

price comparability


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Dumping calculations

• MoD = (NV-EP)/IEP

• WxMoD=IMoDn/TIEP

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Material injury• What is injury?• What is material injury?• Definition in the USA:________________• Definition in Australia: ________________• How many injury factors are there?• How many factors must be considered in an

anti-dumping investigation?• Must all factors listed in the ADA be

considered? See e.g. Mexico - HFCS


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Causality


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Imposition of measures


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Reviews of AD Measures


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Basic AD investigation process

• There are essentially 3 phases in an anti-dumping investigation:

• (a) application and merit evaluation (pre-initiation);

• (b) preliminary investigation; and• (c) final investigation

Brief discussion


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Subsidies • What is a subsidy?

• What are the three different types of subsidies provided for in the SCMA?

• Why is a distinction made between the different types of subsidies?


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Subsidies (2)


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Types of SafeguardsTypes of Safeguards


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Normal safeguardsNormal safeguards• Sources of law:

– Article XIX of GATT 1994– Agreement on Safeguards

• Emergency action• Temporary suspension of concessions• Must be a surge of imports owing to

unforeseen developments causing serious injury to domestic industry producing like or directly competitive product


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Normal safeguards (2)


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Other safeguardsOther safeguards• Agricultural safeguards

– Art 5 of the Agreement on Agriculture– Virtually automatic application once certain triggers

are reached– Extremely limited in scope and duration

• Protocol safeguards– Art 16 of China’s Protocol of Accession– Different injury standard

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