Antidumping and other traderemedy laws
Trade-remedy laws offer another means of regulating
trade at the border. The most significant of these is the
antidumping statute, a mechanism by which countries
may impose additional duties on imports that may
be found to be sold at less than fair value. A related
instrument is the countervailing duty (CVD), used to
impose penalty tariffs on products that are found to
benefit from subsidies. While the number of countries
that employ antidumping laws is on the rise, the CVD
law is less frequently invoked. Countries are even
less inclined to impose restrictions under safeguards,
which are intended to deal with imports that are
fairly traded but still considered to be injurious. The
safeguard laws were often invoked in the concluding
decades of the twentieth century, especially by
developed countries, but the mechanism has only
rarely been used since the conclusion of the Uruguay
Round. The reforms agreed to in those negotiations
have made it extraordinarily difficult for any country to
win any challenges to safeguard measures that are
brought to the WTO’s Dispute Settlement Mechanism.
The antidumping law had once been seen primarily
as a means by which developed countries restricted
imports from developing countries, but that has
changed. WTO members reported imposing 3,058
antidumping orders from 1995 through 2014. The
European Union and the United States collectively
accounted for 643 orders, or 21.0 per cent of the
total, but the two largest users of antidumping laws
among the developing countries — Argentina and
India — had 762 orders of their own (i.e. 24.9 per cent
of the total).11 There were altogether 48 developing
countries subject to antidumping orders during this
period, but that includes 9 countries that were subject
to just 2 or 3 orders each, and 14 that faced just one
order. China was the target of the greatest number
— the 759 antidumping orders against that country
constituted 24.8 per cent of the total — while other
large, Asian economies attracted many of the others.
Nearly half of all orders (1,497) were imposed on
China, India, Indonesia, the Republic of Korea, Taiwan
Province of China and Thailand.
The data in tables 13 and 14 show the relative frequency
with which different developing countries have either
been senders or receivers under the antidumping law.
The two tables confirm a general relationship between
the size of a developing country and its propensity
to be on either side of these transactions. China and
India, for example, top the lists in both respects. There
are only a few exceptions to this general rule, including
two countries that imposed no orders but were
subject to at least one (i.e. Israel and Zimbabwe), and
four countries that imposed orders on others but were
not subject to any (i.e. Costa Rica, Jamaica, Morocco
and Nicaragua). The data show that 31 developing
countries have imposed antidumping orders since
1995 and that another 24 have taken steps towards
doing so. That leaves nearly 100 developing countries
that neither conduct investigations nor impose orders.
As a result of its SACU membership,
Botswana must
apply trade defences adopted by South Africa’s
International Trade Administration Commission (ITAC)
on behalf of SACU, and Botswana in particular. In 2013
Botswana issued the Botswana Trade Commission Act,
which aims to create an organism responsible for trade
remedies, the Botswana Trade Commission … [that] is
still in the process of being established.
Trade Policy Framework: Botswana (2016)
30 TRADE POLICY FRAMEWORKS FOR DEVELOPING COUNTRIES: A MANUAL OF BEST PRACTICES
Table 13. Antidumping orders imposed on developing countries, 1995–2014
Source: Calculated from WTO data posted at https://www.wto.org/english/tratop_e/adp_e/adp_e.htm.
Africa and the Middle East Americas Asia and the Pacific
Subject to
100+ orders
— — China, India, Indonesia, Republic
of Korea, Taiwan Province of
China, Thailand
Subject to
11–100 orders
Saudi Arabia, South Africa,
United Arab Emirates
Argentina, Brazil, Chile, Mexico,
Venezuela (Bolivarian Republic of)
Hong Kong (China), Iran
(Islamic Republic of), Malaysia,
Singapore, Turkey, Viet Nam
Subject to
1–10 orders
Algeria, Egypt, Israel, Jordan,
Kenya, Kuwait, Libya, Malawi,
Nigeria, Oman, Qatar,
Zimbabwe
Colombia, Cuba, Dominican
Republic, Ecuador, Guatemala,
Honduras, Paraguay, Peru,
Trinidad and Tobago, Uruguay
Bangladesh, Macao (China),
Nepal, Pakistan, Philippines,
Sri Lanka
Table 14. Antidumping activity by developing countries, 1995–2014
Source: Calculated from WTO data posted at http://www.wto.org/english/tratop_e/adp_e/AD_InitiationsByExpCty.xls and
http://www.wto.org/english/tratop_e/adp_e/AD_MeasuresByRepMem.xls.
Africa and the Middle East Americas Asia and the Pacific
100+ orders
imposed
South Africa Argentina, Brazil China, India, Turkey
11–100 orders
imposed
Egypt, Israel Colombia, Mexico, Peru,
Venezuela (Bolivarian Republic of)
Indonesia, Republic of Korea,
Malaysia, Pakistan, Philippines,
Taiwan Province of China,
Thailand
1–10 orders
imposed
Morocco Chile, Costa Rica, Dominican
Republic, Guatemala, Jamaica,
Nicaragua, Paraguay, Trinidad
and Tobago, Uruguay
Singapore, Viet Nam
10+ investigations
but no orders
Saudi Arabia, United Arab
Emirates
— Hong Kong (China), Iran (Islamic
Republic of)
1–10 investigations
but no orders
Algeria, Bahrain, Jordan,
Kenya, Kuwait, Libya, Malawi,
Mozambique, Nigeria, Oman,
Qatar
Cuba, Ecuador, El Salvador,
Honduras
Bangladesh, Democratic
People’s Republic of Korea,
Macao (China), Nepal, Sri Lanka
The options are limited for developing countries that
are targeted by antidumping laws. Legal defence
against these cases can be quite costly, both in the
country where the case is originally brought and (if a
challenge is made) in the WTO, and those expenses
are usually borne by the exporting firm. Sometimes an
exporter will be so intimidated by the costs that it will
opt to leave the market altogether. Negotiators from
developing countries have sought reforms in these
laws, but have so far achieved little progress in that
direction. Simply stated, the antidumping laws of the
developed countries are one of the most damaging
exceptions to the general rule by which those countries
have reduced their barriers to trade to a fraction of
what they once were.
Should those developing countries without
antidumping laws of their own emulate the practices
of larger countries? While legitimate concerns may
arise over potentially unfair import competition, it
does not necessarily follow that the antidumping law
is the best response. It might require a half dozen
or more highly trained professionals (as well as a
substantial budget for travel and other expenses) to
carry out the responsibilities of a national antidumping
law. This is not something that can be done “on the
III. INSTRUMENTS OF TRADE POLICY 31
cheap,” as any findings of an antidumping authority
can be challenged by a country’s trading partners in
the WTO. It can be quite expensive for a country to
ensure not only that its antidumping investigations are
properly conducted, but that the results are effectively
defended from any legal challenges that might follow.
Whatever time and manpower a country might devote
to the establishment and operation of an antidumping
unit might be better used in some other function of
the trade ministry. One exception to this general rule
comes in the case of regional organizations that
may take on this function on behalf of their member
States. Botswana, for example, is developing its own
capabilities in conjunction with the Southern African
Customs Union (SACU).
Similar points may be made with respect to CVD
law. As can be seen from the data in tables 15 and
16, compared to the antidumping law, this option is
much less frequently invoked by or against developing
countries. Only 22 developing countries were subject
to CVD orders during 1995–2014, and India was the
only one facing more than 10 orders. Ten developing
countries imposed CVD orders of their own, while four
others conducted investigations without imposing
orders