This thesis addresses issues of anti-dumping law and practice from a critical
and juridical analysis position. In particular, the thesis seeks to determine
whether the South African anti-dumping regime is compliant with the anti-dumping
regime of the World Trade Organization (hereafter WTO), and to
consider possible solutions for addressing instances where the South African
law is not WTO compatible. The thesis departs from the hypothesis that the
WTO merely requires functional equivalence of the implementation of national
legislation on anti-dumping, and not the verbatim adoption of WTO
jurisprudence and relevant provisions of the Agreement on the Implementation
of Article VI of the General Agreement on Tariffs and Trade of 1994 (hereafter
URAA), into the legislation of State Parties. Some of the provisions of the URAA
are not completely clear, and are cast in convoluted and complicated technical
jargon, leaving loopholes that may be justifiably exploited by State Parties.
The study in this thesis was achieved through the critical analysis of legislation
and relevant legal documents, case law and contemporary literature. The
primary research paradigm used in this study is interpretive and analytical,
which is the same as qualitative research methodology. The legal comparative
research method, with a historical component, also played an important role in
this study.
The literature study undertaken and the critical analyses made of the South
African anti-dumping regime show mixed findings. The South African antidumping
regime was found to have both positive aspects and problematic
aspects when compared with WTO regulations. Some of the critical areas of the
South African anti-dumping regime are WTO compatible whilst others are not.
In some areas the South African anti-dumping regime has adopted functionally
equivalent provisions to the provisions of the WTO law. However, the practice of
the International Trade Administration Commission (ITAC) is sometimes fraught
with inconsistencies. The compatibility of the South African anti-dumping
system with the WTO regime came close to being examined by the WTO on 1
April 1999 in the dispute of South Africa - Anti-dumping
Duties on the Import of Certain Pharmaceutical Products from India based on
allegations that the method for calculating normal value used by the ITAC was
found to be inconsistent with the URAA. Similarly, the conformity of the
procedures and findings of the International Trade and Administration Act
(ITAA) in anti-dumping cases came under attack in the cases of Algorax v The
International Trade Administration Commission and others, and Scaw v The
International Trade Administration Commission and others, respectively.
Finally, the thesis ends with recommendations in response to the challenges
identified and key submissions made throughout the analysis. Key
recommendations include the broadening of the concept of interested parties to
include registered trade unions and trade union federations; introducing an
explicit and mandatory "public Interests" provision to ensure that South Africa's
anti-dumping administration is free from political trappings in the form of the
involvement of the Minister of Trade and Industry; introducing the new section
31 bis of the ADR in order to allow the initiation of anti-dumping petitions by a
registered trade union or trade union federation; providing procedural guidelines
for self-initiation of anti-dumping petitions by the ITAC; increasing transparency
in anti-dumping proceedings and enquires; setting realistic time-lines for all anti-dumping
processes and ensuring compliance with the same; improving the
institutional and functional capacity of the ITAC; amending section 18.3 of the
ADR to allow search and seizure operations pursuant to the provisions of the
Criminal Procedure Act 51 of 1977 and the Customs Act; having a clear
provision on verification visits confidentiality and a clear provision on producer
knowledge; introducing a clear provision in the ADR dealing explicitly with
zeroing pursuant to Article 2.4.3 (ii) of URAA; and the introduction of duty refund
procedures.
It is hoped that the recommendations made in this thesis, which are in the form
of suggested legislative interventions required to upgrade certain areas of South
African anti-dumping law and practice to be fully WTO compliant, will influence
the introduction of suitably crafted anti-dumping legislation in South Africa. It is
further hoped that the thesis will become an invaluable source of information for
practitioners and students, and a critical source on the best practice for the
imposition and implementation of anti-dumping measures. Moreover, the thesis
will add to the body of academic writing on South African anti-dumping law. / Thesis (PhD.(Law) North-Wets University, Mafikeng Campus, 2011
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nwu/oai:dspace.nwu.ac.za:10394/15814 |
| Date | January 2011 |
| Creators | Sibanda, Omphemetse Stephen |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
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