Anti dumping India

“Antidumping law, as practiced today,is a witches’ brew of the worst of policymaking: power politics, bad economics,

and shameful public administration”

Finger, J. Michael, Editor,

“Antidumping How It Works and WhoGets Hurt”,

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What is meant by DUMPING ? How is dumping measured ? The role of material injury and de-menimis in AD The steps in an AD investigation and duty

imposition A brief history of AD Various minuses of the AD measurement laws. AD Duties and their IMPACT. Increasing use of AD in WTO Top 10 users of AD in the world. Case studyAnd hence make u agree or disagree with Finger, J. Michael.

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ADITI MALIK (01) ANKIT SHARMA (02) NAVJOT KAUR NAGRA (20) PRADEEP KUMAR (26) RISHABH SOOD (29) YOGESH SHARMA (37)

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“Dumping is a situation of international price discrimination, where the price of a product when sold to the importing country is less than the price of the same product when sold in the market of the exporting country.”

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As a short-term predatory pricing strategy to drive competitors out of the market

As a result of market intervention or state subsidies that enable companies to artificially lower their prices

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When the price causes or threatens to cause material injury to the domestic industry of the importing country can there be an action against dumping.

An anti-dumping investigation can be started only if there is a written complaint on behalf of the domestic industry.(a significant share of the domestic producers have to support the complaint).

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Normal Value: The comparable price at which the goods under complaint are sold in the domestic market of the exporting country.

Can be determined by:• domestic sales• comparable representative export price to an

appropriate third country.• constructed normal value, i.e. the cost of

production in the country of origin with reasonable addition for administrative, selling and general costs and reasonable profits.

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Export price: The price at which it is exported to the importing country.

Dumping Margin: The margin of dumping is the difference between the Normal value and the export price of the goods under complaint. It is generally expressed as a percentage of the export price.

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Exporters Price Normal Value

Compare Exporter Price to Normal Value

Normal Value $110.00

Exporter Price $90.00

Difference Attributable to Dumping

$20.00

Difference Attributable to Dumping/exporter price

$20.00 / $90.00=22.22%DumpingMargin =

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fundamental parameters are determined.

a)Normal domestic selling price of the product or similar products in the exporting country.

b) Export price being offered in the importing country.Both these elements have to be compared at the same level of trade, generally at ex-factory level, for assessment of dumping.

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Domestic price of exporter > export price

Dumping = price discrimination between national markets

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Injury parameters include factors such as:

o Actual or potential decline in saleso Loss of profitso Market shareo Capacity utilizationo Employmento Wageso Ability to raise capitalo Lost contracts

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NIP is that level of price, which the industry is, expected to have charged under normal circumstances in the exporter market during the period defined.

The Injury Margin is the difference between the Non-Injurious Price due to the Domestic Industry and the Landed Value of the dumped imports.

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Anti-dumping (Article VI of GATT 1994)

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Based on article VI of GATT, 1994Customs tariff act, 1975 sec 9A, 9B

(as amended in 1995) Investigations by designated

authority, Ministry of Commerce Imposition and collection by Ministry

of Finance

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Export price and normal value must be compared at he same level of trade, such as at the ex-factory level

allowance made for differences that effect price comparability. These are

Physical characteristics Taxation Quantities etc..

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In the 19th century European Sugar Industries appealed to their respective governments for protection against sugar being dumped at unfairly low prices.

In 1902, there was a formal agreement on anti-dumping. Canada adopted the first anti-dumping law in 1904 followed by the European countries and then the US in 1916.

Formed the basis for the original GATT article (Article VI of GATT) on anti-dumping in 1947.

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Subsequently, codes on anti dumping were developed during the Kennedy Round (1962-67) and Tokyo Round (1973-79).

However, these were not binding on all GATT members; they were open to signature by those countries that wished to do so.

But the Uruguay Round, (1986-94) anti-

dumping agreement is an agreement binding on all GATT or WTO members.

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It is a measure to rectify the situation arising out of the dumping of goods and its trade distortive effect.

Re-establish fair trade. The use of anti dumping measure as an

instrument of fair competition is permitted by the WTO.

It provides relief to the domestic industry against the injury caused by dumping.

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ANTIDUMPING DUTY

To guard against unfair trade practices

trade remedial measures.

not necessary in the nature

levied against exporter / country in as much as they are country specific and exporter specific.

NORMAL CUSTOMS DUTY

means of raising revenue and for overall development of the economy.

trade and fiscal policies of the Government

Necessary in nature universally applicable

to all imports irrespective of the country of origin and the exporter.

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If there is dumping but no injury then no duty can be imposed.

Duty remains in force for 5 years. Re-determination at a “sunset review”.

Yearly administrative reviews if requested by

domestic industry or exporter.

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Sufficient evidence to the effect that ; there is dumping there is injury to the domestic

industry; and there is a causal link between the

dumping and the injury, that is to say, that the dumped imports have caused the alleged injury.

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No anti dumping duty shall be recommended without a finding of this causal relationship. That is to say,

Dumping should lead to Injury The causal link is to be established

generally in terms of the following effects of dumped imports on domestic industry: -

volume effect price effect

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The volume effect of dumping relates to the market share of the domestic industry.

for price effect, significant price under cutting by the dumped imports as compared with the price of the like product in the importer country.

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Against

Consumers Exporters Economists Regional Agreements

(NAFTA)

In Favour

Importing country currently protected industries

Importing country Labor Unions

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anti dumping duty imposed against that countries, which could go up to the dumping margin.

may terminate investigation if the exporter concerned furnished an undertaking to revise his price

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Any exporter whose margin of dumping is less than 2% of the export price shall be excluded

Investigation is terminated if the volume of the dumped imports from a particular country accounts for less than 3% of the total imports of the like product.

The cumulative imports of the like product from all these countries who individually account for less than 3%, should not exceed 7% of the import of the like product.

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Rule 5(4) of the Anti Dumping Rules provides for suo-motu initiation of anti dumping proceedings by the Designated Authority.

The Authority can initiate the anti dumping investigation on its own without any complaint/petition filed in this regard

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Should not be less than six months and not more than eighteen months.

The most desirable period of investigation is a financial year. (period should be as representative a possible)

For the purposes of injury analysis, the domestic industry has to furnish the relevant data for the past three years.

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Lodging of complaint

Initiation

Analysis of complaint

Preparation and sending of

questionnaires

Analysis of questionnaire

responses

On-spot verification visits

Internal decision + consultation of MS +

translation Imposition of provisional measures if warranted and disclosure of decision to interested parties

Sending of questionnaires

Analysis of disclosure reactions

Additional on-spot verification visits if

needed

Internal decision + consultation of MS + translation

Imposition of definitive measures if warranted

Final disclosure to interested parties

Measures normally

imposed for 5 years

45 days

9

months

AD 6 months

AS 4 months

Measures are normally

imposed for 5 years

Total Duration

AS 13 months

AD 15 months

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The application is scrutinized to ensure that it is fully documented

provides sufficient evidence for initiating an investigation.

If evidence not adequate, then a deficiency letter is issued.

Till then cannot be considered as application pending before authority.

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Designated Authority determines that the application has been made by or on behalf of the Domestic Industry.

It also examines the accuracy and adequacy of the evidence provided

The Initiation notice will be issued normally within 5 days from the date of receipt of a properly documented application.

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C. Access to Information: The Authority provides access to the non-

confidential evidence available for inspection to all interested

parties on request after receipt of the responses.

D. Preliminary Findings: The Designated Authority will proceed

expeditiously with the conduct of the investigation

It makes a preliminary finding containing the detailed information on the main reasons behind the determination.

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E.

E. Provisional Duty: A provisional duty not exceeding the margin

of dumping may be imposed by the Central Government on the basis of the preliminary finding

Can be imposed only after the expiry of 60 days from the date of initiation of investigation.

The provisional duty will remain in force only for a period not exceeding 6 months, extendable to 9 months under certain circumstances.

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F.

F. Oral Evidence Interested parties can request the

Designated Authority for an opportunity to present the relevant information orally.

Such information shall be taken into consideration only when it is subsequently reproduced in writing.

G. Disclosure of information: Based on these submissions and

evidence gathered the Authority will determine the basis of its final findings.

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the Designated Authority will inform all interested parties of the essential facts, which form the basis for its decision before the final finding is made.

H. Final Determination: The interested parties submit their

response to the disclosure and The Authority examines these final

submissions of the parties and comes out with final findings.

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Anti-dumping measures taken by WTO members have increased from 129 in 1994 to 208 in 2008; 83%.

New users: Argentina, India, Brazil, South Africa.

Traditional users: Canada, U.S., European Union, Australia, Mexico.

Most affected industries: Metal, Chemical, plastic, textiles, machinery and equipment, agriculture and food.

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39%

13%11%

9%

7%4%

17%

METAL CHEMICAL PLASTIC TEXTILES M&E A&F OTHER

Source: WTO Secretariat, Rules Division Anti-dumping Database Group 3 SIIB AB

0

20

40

60

80

100

120

140

160

Metals Chemicals Plas Tex/Cloth

40Source: WTO Secretariat, Rules Division Anti-dumping Database Group 3 SIIB AB



Developing Countries Use Antidumping more intensely than developed countries.

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Developed Members Developing Members

MEASURES:1 900

Developing75%

Developed25% Developing

80%

Developing75%

Developed25%

Developed20%

Total 500

Total 1 400

44

Source: WTO Secretariat, Rules Division Anti-dumping Database

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45


218

181173

150139

116

7977

4443

Total 1 529

4646


284

192

144127

89807365

55

Total 1 516

4747


Countervailing Measures

11Safeguards

11

Anti-Dumping 33

Total 55

48

Source: WTO Secretariat, Rules Division Anti-dumping Database 48Group 3 SIIB AB

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Pros

Prevents Monopolies Protects Vulnerable

Industries Allows Firms to

Compete Preserves Jobs

Cons

Against Free Trade Concept

Trade Barrier – Lowers Economic Growth

Distorts the Market Protects Firms from

Competition Hurts Consumers

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Proportion of AD cases initiated by the countries

0

0.05

0.1

0.15

0.2

0.25

0.3

1995 1996 1997 1998 1999 2000 2001 2002 2003 2004

India United States Canada China European Community

50


1

2

5

2

5

2

6

2 2

6

1997 1998 1999 2000 2001 2002 2003 2004 2005 2006

Total 33

51

Source: WTO Secretariat, Rules Division Anti-dumping Database

Unclear concept of “ordinary course of trade”.

For computation of the normal value complicated cost calculations and allocations

Arbitrariness steps in especially when there is a conflict between accounting practices in the exporting country and the importing country.

This is so because investigating authorities typically follow accounting practices of the importing country

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Business Standard - 15 December, 2009

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India to impose antidumping duties on some equipment imported from China.

Chinese companies entered the Indian telecom market, offering products and services at prices about a third cheaper than that of global competitors.

Indian manufacturers hurt as well54Group 3 SIIB AB

Fibrehome Telecommunication Technologies Ltd. will have to pay a duty of 236%, Alcatel-Lucent Shanghai Bell Co. 29% and Israel's ECI Telecom Ltd. 93% on equipment imported from China

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The Indian Shrimp Industry Organizes to Fight the Threat

of Anti-Dumping Action

(CASE STUDY)

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The Ad Hoc Shrimp Trade Action Committee (ASTAC), an association of shrimp farmers in eight southern states of the United States, filed an anti-dumping petition against six countries — Brazil, China, Ecuador, India, Thailand and Vietnam.

The petition alleged that these countries had dumped their shrimps in the US market.

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on 21 January 2004 the US Department of Commerce (DOC) announced the initiation of anti-dumping investigations against the six countries.

The Department notified the International Trade Commission (ITC) of its decision on initiation.

On 17 February 2004 the International Trade Commission announced its decision that there was a reasonable indication that the US shrimp industry was affected due to Anti-dumping.

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The Department of Commerce continued with its investigations and gave its preliminary determination on 28 July 2004.

The ratio of preliminary duty varies between 3.56% and 27.49% by the DOC.

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The weighted average rate for India is 14.2%,

The average rate for ▪ China is 49.09%, ▪ Brazil 36.91%, ▪ Vietnam 16.01%,▪ Ecuador 7.3% ▪ Thailand 6.39%.

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On 26 February 2002, Reggie Dupre,

a Louisiana state senator, alleged

that tainted farm-raised Asian

shrimp was being diverted from

Europe and dumped on the US

market. 61Group 3 SIIB AB

Vietnam, one of the countries identified almost at the beginning of the SSA(South America Shrimp Association) exercises and also highly dependent on the US market for shrimp exports, was the first to protest.

Foreign Ministry spokeperson Phan Thuy Thanh said in a statement on 12 September 2002 that ‘I can say with certainty that Vietnam has never dumped its shrimp, and its shrimp have been sold at market prices.’

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Source: WTO Secretariat, Rules Division Anti-dumping DatabaseGroup 3 SIIB AB

Rokhmin Dahiri, the Indonesian Maritime and Fisheries Minister, denied allegations that the Indonesian government subsidized its shrimp farmers.

He said that the price of shrimp on the domestic market was much lower than the export price.

“The dumping charge was baseless and, therefore, the United States should exclude Indonesia from the proposed anti-dumping investigations. ”

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The Indian government and the Indian shrimp industry were aware of the threat.

Arun Jaitley, the then Minister for Commerce, made a statement in June 2003 after his official visit to the United States: ‘We are anticipating an action against our shrimp exports because our share in the US market is on the rise.

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The six named countries accounted for 74% of

shrimp imports in the US market. Imports from the six countries increased from

466 million lbs. in 2000 to 650 million lbs in

2002. Import prices of the targeted countries had

dropped by 28% in the previous three years. The average unit value of the targeted countries

in 2000 was $3.54; this had fallen to $2.55 in

2002, on a headless, shell-on equivalent basis.66Group 3 SIIB AB

The average dockside price for one count size of

gulf shrimp dropped from $6.08 to $3.30 per

pound from 2000 to 2002.

The United States was the most open market in

the world.

High tariff rates in other large importing

countries provided a powerful incentive for

exporters to increase shrimp shipments to the

United States. 67Group 3 SIIB AB

The anti-dumping investigations against Indian shrimp

imports might be initiated was hinted at during bilateral

talks when the then Commerce and Industry Minister

Arun Jaitley had met his counterpart in Washington at

that time.

The reason given was that India’s shrimp exports to the

United States had been rising rapidly during the previous

three years, from $255.93 million during 2000-1 to

$299.05 million during 2002-3.68Group 3 SIIB AB

The United States, traditionally a buyer of small-sized shrimp from India, has now started buying many other varieties, including black tiger shrimp, resulting in its occupying the top slot in India’s export markets of marine products, replacing Japan in 2002-3.

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Commerce Minister on the possible threat to Indian shrimp exports to the United States, SEAI(Seafood Exporters Association of India (Kochi, Kerala, India). and MPEDA(The Marine Products Export Development Authority) went into action.

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The SEAI (Sea food export Association of India) has estimated a total budgetary requirement of Rs. 70 million to fight the case. Of this, SEAI would mobilize Rs. 40 million internally and the remaining Rs 30 million would be collected from its members, depending on the volume and value of their individual exports to the US market.

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First, there are specific variations between the shrimp caught off the south-west coast of the United States and in Indian waters, so that prices are bound to be different.

India’s shrimp exports are predominantly of black tiger and scampi varieties which are not cultivated in the United States’, according to the president of SEAI.

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Second, while fishing in the United States is a capital-intensive activity calling for major investment, in India shrimp capture is carried out with a very low level of capital and requiring hardly any investment.

This makes the cost of production considerably lower in India compared with that for shrimp sea-caught off the US coast.

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Department of Commerce observed that India had a strong case as India was exporting mainly ‘tiger shrimps which are not found there and that too, in unprocessed form’. Noting that 80% of shrimp consumption in the United States is met through imports.

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Shrimp exports to the United States

had come almost to a standstill due

to the uncertainty regarding the

contingent applicability and

incidence of the anti-dumping duty.

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In 1976 US banned shrimps ,It was on the ground that trawling for shrimp by mechanized means had been adversely affecting certain varieties of sea turtles.

The WTO ruled against the United States and asked it to make the regime WTO-compatible.

However, since that had not yet happened, India’s exports to the United States of aqua-culture shrimp and shrimp caught by non-mechanized means were being made on the basis of certification by the MPEDA, as required under the law.

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Several visits by the representatives of those two bodies to Washington at critical points also helped to bring an understanding of the nature of the problem and how to face it.

This resulted in the selection and appointment of the legal counsel, in September 2003.

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The speedy resolution of the issue of financing helped Indian case.

The shrimp industry in India shouldn’t have been focused on only one or two major markets for growth.

Previously it was Japan and during the last few years, it has been the United States.

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India learnt the importance of diversification.

A. J. Tharakan, the SEAI president, has

said that they are exploring alternative markets to make up for the loss of the lucrative US market.

‘But it will be a long drawn-out process. It is not easy to establish your presence.’

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“On 27 th Jan exports to US were resumed.”

Business line newspaper– 1st Feb, 2010

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Websites www.google.com www.e-businessline.com exim.indiamart.com commerce.nic.in/Anti-Dum.PDF www.wto.org/english/tratop_E/adp_e/adp

_e.htmTexts and literature Anti-dumping and countervailing

Measures-A detailed study.Group 3 SIIB AB 81

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Documents

Anti dumping India