published_or_final_version / abstract / Law / Master / Doctor of Legal Studies

Thesis (Ph.D.)--University of the Witwatersrand, Faculty of Commerce, Law and Management, School of Law / The research is divided in seven sections where the problem of the interpretation and applicability of Art XXIII GATT to the Laws and Practices under the Anti-Dumping Agreement is examined. Chapter I identifies the problems, raises the research question and gives an overview of the current state of the matters under observation. In Chapter II the general theory of interpretation is studied and subsequently applied to Art XXIII specifically, taking into account the meaning, scope, historical evolution and current interpretations of Art XXIII. Chapter III revises the theory of coherent interpretation of Art XXIII in connection with the Anti-Dumping Agreement specifically. The constitutional structure and principles of the WTO are questioned, dissected and supported to decant a handful of fundamental principles which shall inform the rest of the interpretation applied in the research. This chapter takes the interpretation from an abstract perspective to a material view of a coherent interpretation of both Art. XXIII and the Anti-Dumping Agreement. Chapter IV revises the facts, laws and practices of Anti-Dumping being used as a protectionist measure in disguise both using procedural and substantial arguments which are illustrated in the laws and practices of seven countries. The findings in Chapter IV lead to Chapter V which questions the legitimacy and validity of considering the possible applicability of Art XXIII to the anti-Dumping Agreement as it is currently implemented by the WTO membership. Those reflections lead to the consideration and mention of Competition as a public good in international trade in Chapter VI, which is a key element for the final findings of this research. The conclusion of this research is inclined to suggest that in order to keep the legal system of the WTO functional, a stronger economic constitutional approach that allows for the application of art XXIII in situations subversive to the principles of free trade is necessary. The adaptation of a theory of an economic constitution is proposed.

The application of anti-dumping and countervailing measures has always been controversial, particularly, as they do not address the issue of the level of local value added in the production process. Are these measures simply industry assistance measures under another guise, or are they to protect the 'fair trade' framework to further the opportunity for free trade? All the indications are that these measures reflect the former option. However, the global political climate as represented through the GATT and now the WTO Agreements is to tolerate the imposition of both anti-dumping and countervailing measures provided they are applied according to the provisions of the Agreements. It is becoming increasingly more difficult for any nation state to abolish the right of their 'guest' industries to obtain anti-dumping or countervailing relief, given the economic power of multinational industries operating within their boundaries. The practical issue is for each nation state to use these measures in a way which is of least detriment to their economy. Gruen in 1986 reviewed the application of the then Customs Tariff (Anti-Dumping) Act 1975, and found that there needed to be a tightening-up of the injury test applied to anti-dumping cases. It is recommended that Gruen's tougher injury standards be implemented forthwith. He also recommended a continuing role for the Industry Commission as the appeal body for a review of the facts, and for there to be a continuing assessment of the effects of the measures imposed. The government, however, created an Anti-Dumping Authority attached to the then Department of Industry Technology and Commerce (DITAC), whose member and officers came from that department. The principal function of this body was to review the preliminary decisions of Customs, and to recommend the imposition of duties or acceptance of an undertaking to the Minister. There was no provision for an independent review of facts. One of the results of the increased complexity of the existing process and consequently the law, is a large increase in litigation before the Federal Court. There is a need to simplify the administrative structure and the provisions of the domestic law. The latter should be accomplished by the incorporation of the provisions of the WTO Agreements directly into domestic law. The espoused policy objectives of the government have not been met. The application of anti-dumping and countervailing measures favour import competing industries, and are against countries from which imports are growing. Korea and China have been singled out, with these countries showing the highest incidence of import weighted of anti-dumping measures. They also happen to be countries with which Australia has a trade surplus, a policy factor which is neglected by the administering authorities. There is a need to redress this imbalance. Predation identified by the government as a reason for taking anti-dumping action, has been shown not to be a reason for the application of anti-dumping duties in Australia. As a small country, Australia should take advantage of the use of the WTO dispute settlement process in settling anti-dumping and countervailing disputes. Consultations should commence at the earliest possible stage in inquiries, with the view to the settlement of the dispute by trade negotiation so that the outcome can be beneficial to both parties. This may, for example, allow for the specialisation in production between the two Members. WTO dispute settlement is seen as a positive approach to dispute settlement, whereas the use of the domestic courts tends to elevate the dispute between the parties. The Department of Foreign Affairs and Trade needs to take a leadership role in settling all anti-dumping and countervailing actions through the WTO dispute settlement process, with a view to a positive outcome for both Members. Placing an anti-dumping import tax on intermediate products entering Australia is counter-productive, as it increases the cost of inputs to downstream users. Temporary relief should be given by way of production subsidy, if the matter cannot be resolved through WTO trade consultations.

The increase of antidumping measures could represent a source of mounting frictions in the trading systems among Canada, United States and Mexico. Mexico is an active user of antidumping measures suggesting that both private sector groups and government policy makers have found antidumping measures to be a convenient response to the pressures of import competition. / In the last two decades, Mexico has opened its economy to international commerce. Nevertheless, its economy and legal system are not comparable to those of the United States or Canada, although it has adopted analogous antidumping laws. The Mexican antidumping practice is based today on common law practices influencing civil law formalities. In the NAFTA context, more specifically, in its Chapter 19, legal problems facing the binational panel review system have arisen from Mexico's different legal tradition, notably in the areas of transparency and procedural issues, standard of review, parallel amparo and the power of panel vis-a-vis national courts. The procedural requirements of the Antidumping Agreement prove a challenge for Mexico and will likely lead to trade disputes concerning procedure because it lacks the tradition of administrative and legal process.

The application of anti-dumping and countervailing measures has always been controversial, particularly, as they do not address the issue of the level of local value added in the production process. Are these measures simply industry assistance measures under another guise, or are they to protect the 'fair trade' framework to further the opportunity for free trade? All the indications are that these measures reflect the former option. However, the global political climate as represented through the GATT and now the WTO Agreements is to tolerate the imposition of both anti-dumping and countervailing measures provided they are applied according to the provisions of the Agreements. It is becoming increasingly more difficult for any nation state to abolish the right of their 'guest' industries to obtain anti-dumping or countervailing relief, given the economic power of multinational industries operating within their boundaries. The practical issue is for each nation state to use these measures in a way which is of least detriment to their economy. Gruen in 1986 reviewed the application of the then Customs Tariff (Anti-Dumping) Act 1975, and found that there needed to be a tightening-up of the injury test applied to anti-dumping cases. It is recommended that Gruen's tougher injury standards be implemented forthwith. He also recommended a continuing role for the Industry Commission as the appeal body for a review of the facts, and for there to be a continuing assessment of the effects of the measures imposed. The government, however, created an Anti-Dumping Authority attached to the then Department of Industry Technology and Commerce (DITAC), whose member and officers came from that department. The principal function of this body was to review the preliminary decisions of Customs, and to recommend the imposition of duties or acceptance of an undertaking to the Minister. There was no provision for an independent review of facts. One of the results of the increased complexity of the existing process and consequently the law, is a large increase in litigation before the Federal Court. There is a need to simplify the administrative structure and the provisions of the domestic law. The latter should be accomplished by the incorporation of the provisions of the WTO Agreements directly into domestic law. The espoused policy objectives of the government have not been met. The application of anti-dumping and countervailing measures favour import competing industries, and are against countries from which imports are growing. Korea and China have been singled out, with these countries showing the highest incidence of import weighted of anti-dumping measures. They also happen to be countries with which Australia has a trade surplus, a policy factor which is neglected by the administering authorities. There is a need to redress this imbalance. Predation identified by the government as a reason for taking anti-dumping action, has been shown not to be a reason for the application of anti-dumping duties in Australia. As a small country, Australia should take advantage of the use of the WTO dispute settlement process in settling anti-dumping and countervailing disputes. Consultations should commence at the earliest possible stage in inquiries, with the view to the settlement of the dispute by trade negotiation so that the outcome can be beneficial to both parties. This may, for example, allow for the specialisation in production between the two Members. WTO dispute settlement is seen as a positive approach to dispute settlement, whereas the use of the domestic courts tends to elevate the dispute between the parties. The Department of Foreign Affairs and Trade needs to take a leadership role in settling all anti-dumping and countervailing actions through the WTO dispute settlement process, with a view to a positive outcome for both Members. Placing an anti-dumping import tax on intermediate products entering Australia is counter-productive, as it increases the cost of inputs to downstream users. Temporary relief should be given by way of production subsidy, if the matter cannot be resolved through WTO trade consultations.

Thesis (Ph. D.)--University of Texas at Dallas, 1993. / Vita. Includes bibliographical references (leaves 299-307).

Thesis (doctoral)--Rijksuniversiteit Groningen, 1992. / Cover title: Liberal trade and Japan : the incompatibility issue in electronics. Includes Curriculum Vitae (p. 303). Includes bibliographical references (p. [289]-302).

More than a century has passed since Canada adopted the first antidumping law in 1904. Similar legislation in most of the major trading nations followed the Canadian legislation prior to and after the World War II. Antidumping provisions were later integrated into the General Agreement on Tariffs and Trade (GATT) after the said war. Today, nearly all developed and developing countries have this type of legislation in place within their municipal legal framework. The subject of antidumping has received growing attention in international trade policy and has become a source of tension between trading nations. This is evident in the substantial increase of antidumping actions since the establishment of the WTO. Antidumping policy has emerged as a significant trade barrier because of its misuse by both developed and developing countries. The primary instruments governing antidumping actions are GATT Article VI and the Antidumping Agreement (ADA). The ADA contains both the substantive and procedural rules governing the interpretation and application of the instrument. Its purpose is to ensure that the instrument is used only as a contingency measure judged upon merit and not as a disguised protectionist device. Given the growing number of countries participating more actively in the world trading system and the notorious misuse of antidumping provisions, there is a vital need to critically analyse the key provisions of the said instruments. This study is an attempt at that academic enterprise. It concludes by giving proposals for future reform of both real and potential future reform of the current WTO antidumping regime. Dumping, antidumping, antidumping regulation, antidumping duties, like products, dumping margin, zeroing, facts available, protectionism, ADA.

No description available.

Univ., Diss. u.d.T.: Kraus, Christiane: Import tariffs to support environmental policy instruments--Hannover, 1999. / Literaturverz. S. 229 - 241.