Much information on “anti-dumping measures” can be found in specialized articles, political and economic news articles, and even by reading the Official Gazette. Now, what is the best way to know about these measures?What are the parameters for its imposition to proceed?? And, even after these are fulfilled,Anti-dumping measures are always imposed?. Within the framework of this work, the guidelines of the current regulations will be developed, as well as the degrees of discretion that the Enforcement Authority has.
Article VI of GATT and its limits
In principle it must be determined, with certainty, When an anti-dumping measure cannot be imposed. In accordance with the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement), its application is not appropriate if, as a result of an investigation carried out by the competent bodies, it is determined that:
- There is no dumping or damage to the domestic production branch and/or causal relationship between both extremes,
- The dumping margin calculated is de minimis (less than 2 percent of the export price),
- When the volume of dumped imports is insignificant (representing less than 3 percent of imports of the like product in the importing member). However, this principle has an exception, called Cumulative Analysis This occurs in cases where the investigation involves more than one origin and the countries individually represent less than 3 percent of imports of the like product in the importing Member, but together represent more than 7 percent of those imports.
Based on this conceptualization, it should be clarified that, if any of the general principles set out are met, the investigating authorities must terminate the investigation without applying any measures.
Beginning
However, a contrario sensu, if as a result of the processing of an investigation, after examining the relevance and plausibility of the evidence presented and completing the stages established by the procedure, the authorities arrive at a determination of the existence of dumping, injury and causal relationship, this will provide sufficient technical grounds for the possibility of applying a preliminary or definitive antidumping duty (depending on the procedural stage of the investigation). From here, several concepts arise that should be taken into account, which we will add.
The Anti-Dumping Agreement, in Article 9.1 in fine, establishes that “eIt is desirable that the establishment of the right be optional in the territory of all members…” Under this provision, Members are permitted to decide whether or not to impose anti-dumping measures even when the necessary requirements for doing so are met.
In this regard, Decree No. 1393/08, which regulates the procedures for carrying out investigations in Argentina, includes this principle and when the authorities have to decide on the recommendation of whether or not to apply an antidumping duty (definitive or preliminary), they take into consideration "other circumstances related to the general foreign trade policy and the public interestA clear example of this is when the authorities decide to assert this right not to impose anti-dumping measures if the consequence of their imposition would be to the detriment of the users of the product in question or of the final consumers.
In the event that the application of an anti-dumping duty is actually decided, the same article No. 9.1 cited establishes another guiding principle for the enforcement authorities: “the decision to set the amount of the anti-dumping duty at a level equal to or less than the full margin of dumping shall be taken by the authorities of the importing Member. It is desirable that … the duty be less than the margin if such lesser duty is sufficient to remove the injury to the domestic industry".
From the wording of the rule, it is clear that it is at the discretion of the Enforcement Authority of the importing Member to apply a duty equivalent to the “full margin” of dumping or a duty lower than this. That is, the “ceiling” of the measure is the dumping margin, and a lower margin (margin of injury) may be applied if it is sufficient to eliminate the injury to the domestic industry. In this way, it is avoided to tax imports to a greater extent than is necessary to eliminate the harmful effects of the unfair international trade practice.
In the case of provisional measures, the investigating authority must consider that their application is necessary to prevent the injury to the domestic industry from worsening during the course of the investigation. These measures take the form of a guarantee and shall be applied for the shortest possible period. If the dumping margin is applied, the period will be four months; rising to six months if the injury margin is applied.
A definitive anti-dumping duty, on the other hand, will only remain in force for as long as and to the extent necessary to counteract the dumping that is causing the injury; thus the Anti-Dumping Agreement sets the duration for a maximum period of five years from the date of its imposition.
Types of measures
Finally, it is important to highlight the form that an anti-dumping measure can take, namely: specific duty, ad-valorem or Minimum FOB, and that all of them involve adding the anti-dumping duty to the import price.
In practice, combined measures have been applied for specific products, for example: an ad valorem duty (tending to maintain the relative price structure of imports) for those units whose FOB value is less than or equal to a limiting FOB value; and a specific duty for the rest - considering products that present distinctive characteristics and diversity of variety.
Conclusion
As a corollary of all the above and taking into account the general principles of the WTO, especially the consolidation of import tariffs at a uniform rate of 35%, the measures analyzed today - with their checks and balances - constitute an exception when it comes to trade defense against unfair practices.
Lawyer from the University of Buenos Aires (UBA). Specialization in State Law - Treasury Attorney of the Nation. Manager of Commercial Standards and Instructions of the National Commission of Foreign Trade (CNCE), a decentralized body within the Ministry of Economy. Professor of the Bachelor's Degree in International Trade, the Diploma in Customs Law and the Postgraduate Specialization in Global Business at CAECE University.
