Anti-dumping law, as practiced today, is a witches’ brew of the worst of policy making: power politics, bad economics, and shameful public administration”.[1] – Dr. Michael Finger
May 7, 2020
The 20th Century witnessed the “developed” States in the Global North actively push for ‘free trade’ and the liberalisation of markets worldwide, especially those of the “developing” Global South – which was often met with staunch protectionist approaches. The aggressive export of goods by the North at prices relatively lower than ‘like products’ in these foreign markets is colloquially referred to as ‘dumping’ to which, consequent remedial ‘anti-dumping’ measures are often effectuated by the South to nullify the market distortions created due to such unfair trade practices. After decades of inconclusive negotiations and resistance (primarily from the North), the Uruguay Round in 1994 culminated in the ‘Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (hereinafter “GATT”), 1994’ (hereinafter referred to as the ‘Anti-Dumping Agreement”– which governed the application of ‘anti-dumping’ measures by Members of the WTO.
As per Article 3.5 of the ‘Anti-Dumping’ Agreement and in compliance with Article VI of the GATT, measures against anti-dumping may be effectuated by Members of the World Trade Organisation (hereinafter “WTO”) as unilateral remedies applicable following a complaint of ‘material damage’ inflicted to a domestic industry due to the dumping of exports below their “normal value”.[2] These are investigated and determined consequently by the respective contracting party. The ‘Anti-Dumping’ Agreement further stipulates provisions pertaining to the conduct of anti-dumping investigations,[3] including the initiation of cases,[4] calculation of dumping margins;[5] the criteria to be taken into account in a determination that dumped imports cause injury to a domestic industry;[6] requesting the establishment of panels to examine disputes,[7] and the application of remedial measures, injury determinations, enforcement and reviews.[8]
The “sunset provision” of the ‘Anti-Dumping Agreement’ stipulates the duration of such ‘anti-dumping’ measures as five years from the date of imposition (or most recent review),[9] unless the authorities deem that ‘dumping’ and its consequent “material injury” will continue following the termination of such measures. This must be followed in compliance of the newly effectuated Article 5.8 mandating ‘anti-dumping’ investigations to be terminated effective immediately in cases wherein the margin of dumping is deemed ‘de minimis’ viz. less than two per cent of the export price of the allegedly “dumped” product; or when the volume of ‘dumped’ imports from one individual State is negligible viz. accounting for less than three per cent of the imports of the “dumped” product to the foreign market.
Notwithstanding arguments buttressing the ‘producer-interests’ including but not limited to – the opening of a potential pandora’s box and adding to the administrative complexity or the crafty obfuscation vis-à-vis the interpretation of consumers as “interested parties”[10] being accorded a mere privilege and not a right to defend their interests before the investigatory authorities – it is herewith argued that the “public interest standard” be included in the ‘Anti-Dumping’ Agreement. Firstly, there is no nexus between ‘anti-dumping’ measures and the welfare of an economy in general. The potential injury to domestic industries invested in the production of ‘like products’ due to ‘dumped’ imports is often outweighed by downstream import-using domestic industries – directly placing at crosshairs the interests of these two groups. Secondly, ‘anti-dumping’ practices are highly taxing on the economy, in that welfare costs – both administrative and enforcement, sometimes outweigh dumping costs and that continued ‘anti-dumping’ measures are often accompanied with potential anti-dumping relief suits by foreign petitioners. Lastly, Article 9.1 of the ‘Anti-Dumping’ Agreement states that: “It is desirable that the imposition [of duties] be permissive in the territory of all members”.[11] In doing so, the essence of the Agreement itself is desirous of a “public interest” standard being applied. Additionally, the “public interest” standard has already found its way in the domestic legislations of many nations including BRICS members China (in 2004) and Brazil (in 2019), while the EU Basic Regulation on Anti-dumping is inclusive of an analogous “community interest clause”.[12]
Ergo, it is argued that WTO look beyond the emphasis on “the preservation of the basic concepts, principles and effectiveness of this agreement” as determined at the Doha Ministerial Conference and that the ‘Anti-dumping’ Agreement be amended in the upcoming Rounds of trade negotiations to mandatorily include a “public interest standard” and the criteria under such operational definition be specified in that it may be appropriately and justly applied to ensure the balancing of conflicting interests – whereby ‘anti-dumping’ welfare measures are effectuated only in circumstances wherein the domestic producer gains more than the consumer loses out on. Inquiries at both the pre-initiation and post-hoc stages of “public interest” is highly desirous to ensure that disproportionate outcomes are averred.[13]
The interests of the domestic industries must be concomitant to that of the consumer. Despite the GATT enjoying its fair share of success in reducing trade barriers in the recent past, ‘anti-dumping’ laws prove to be a thorn in the side of the vision of liberalised trade globally – a phenomenon motivated by nothing more than mere protectionism and lobbying. In this era, wherein protectionism seems to be rearing its head globally, especially now even more with the COVID-19 pandemic derailing economies worldwide of a decade’s worth of growth – one can only turn to consumer welfare advocates as the last beacon of hope.
[1] Michael Finger, “Antidumping How It Works and Who Gets Hurt”, Ann Arbor University of Michigan Press,
Michigan, 1993, p. 57.
[2] Article 3.5 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (GATT), 1994.
[3] Article 6 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (GATT), 1994.
[4] Article 5 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (GATT), 1994.
[5] Article 2 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (GATT), 1994.
[6] Article 3 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (GATT), 1994.
[7] Article 17 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (GATT), 1994.
[8] Terence P. Stewart & Amy S. Dwyer, WTO Antidumping and Subsidy Agreements 65 (Kluwer Law International, 1998, p. 39.
[9] Article 11 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (GATT), 1994.
[10] Article 6.11 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (GATT), 1994.
[11] Article 9.1 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (GATT), 1994.
[12] Article 21, Council Regulation, 384/96.
See Sebastian Farr, EU Anti-dumping Law: pursuing & Defending Investigations (Palladian Law Publishing 1998).
[13] Arvind Panagariya, ‘Anti-dumping: Let Us Not Shoot Ourselves in the Foot’, Economic Times, June 30, 1999.
Bhrigu A. Pamidighantam 
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