Disfavored Nations: Anti‐Dumping at the WTO

Abstract

The proliferation of Anti-Dumping actions may be explained by the Most Favored Nation rule of safeguards, the advantages of unilateral retaliatory measures as an alternative to formal dispute resolution, and the exercising of discipline in a risk-sharing agreement. Use of unilateralism is attractive to developing members that are constrained by legal capacity. The expression of the Anti-Dumping Agreement appears to be a hybrid of rules and standards. However, a lack of interpretive guidance from the WTO and the opportunities for discretion in the implementation of rules render them standards in a shroud of rules. This is due to the presence of large proxy spaces, or the domestic investigative authority being substantially the arbiter of satisfaction with the agreement.* Hartigan (corresponding author):

How do countries respond to anti‐dumping filings? Dispute settlement and retaliatory anti‐dumping

“…Of course, there may be other ways that countries (and/or the targeted firms) can respond (health and safety regulatory restrictions, escape clause/safeguard cases, or simply raising applied tariffs if below bound levels), and we do not claim to be capturing all of these in our work. 4 2 Hartigan and Vandenbussche (2013), in a theoretical and legal analysis, discuss how retaliatory AD may substitute for and -in some cases-be preferable to DSU litigation, especially for developing countries. 3 At the time we started this research, we observed anti-dumping filings through 2014 and so limit our sample to the period from 1995 to 2011 to allow up to 3 years for a country to file a retaliatory dispute at the WTO.…”

“… Hartigan and Vandenbussche (), in a theoretical and legal analysis, discuss how retaliatory AD may substitute for and—in some cases—be preferable to DSU litigation, especially for developing countries. …”

“… Hartigan and Vandenbussche () make this point, in particular noting incentives and policy changes that governments can use to encourage anti‐dumping petitions. …”

It's Baaaack Zeroing, the US Department of Commerce, and US Shrimp II (Viet Nam)

“…25 See Hartigan and Vandenbussche (2013 investigations simultaneously against China in 2006, generating legal controversy at the U.S. Court of International Trade and the U.S. Court of Appeals for the Federal Circuit. Ramanujian and Sampath (2015) critique panel and AB reports over this pairing of measures.…”

In or Out? Standards, Discretion, Compliance and the WTO

“…12 The Anti-dumping Agreement (ADA) of the WTO may be considered an alternative form of SG. Hartigan and Vandenbussche (2013) have considered the ADA from the perspective of rules and standards. 13 I recognise that disputes have been increasing in frequency, particularly with regard to China.…”