Analysis Of The India Anti-Dumping Case Against Cotton Bed In EU

Through the analysis of this case, we can learn how to use trade rules to protect ourselves in foreign trade disputes.

1995 -2009 April, in

The parties did not file a lawsuit against the expert group regarding the determination of the dispute.

Appeals for implementation

The most important concern of the case is that

Cumulative evaluation

India believes that the EU should exclude the dumping imports of those manufacturers who have not been included in the sample survey in the damage analysis, which accounts for about 53% of the total amount of dumping imports, while those imported from the producers who do not make the dumping decisions alone must have the same proportion of imports considered not to constitute dumping.

India believes that any other way of determining dumping constitutes a violation of the obligation under Article 3.1 that a ruling should be based on "positive evidence" and "objective review".

The EU insists that it has the right to dump all imports of producers who have not made a dumping ruling, whether or not these producers have been investigated separately, including those who are not included in the sample.

In this regard, the EU points out that article 6.10 of the agreement on anti-dumping measures permits the investigation agency to conduct only a single dumping investigation on a limited number of producers.

The expert group held that the agreement on antidumping measures did not require the investigating authorities to determine the number of imported products that could be considered to be dumping in the damage analysis from the basis of the percentage of the sample in the sample that did not constitute dumping.

Therefore, the panel ruled that the EU's consideration of "dumping imports" in this case did not violate the provisions of articles 3.1 and 3.2 of the agreement on anti-dumping measures.

The Appellate Body concluded that, regarding the quantity of imports that could be attributed to the producers or exporters who were not examined separately in the survey, the EU failed to determine the quantity of dumping products on the basis of "positive evidence" and "objective review" as specified in articles 3.1 and 3.2 of the agreement on Anti-dumping measures.

However, the appellate body agreed with the expert group that the agreement on "anti-dumping measures" did not require the investigation agency to follow the "specific method recommended by India in the appeal", and "based on the ratio of the dumping of imported products by the sample producers to determine the non sampled producers for the damage analysis, which can be regarded as the" import quantity of dumped imports "properly.

Therefore, the Appellate Body overturned the finding in paragraph 6.144 of the report of the expert group (that is, the EU's determination of "dumping imports" did not violate Article 3.1 and 3.2 of the agreement on anti-dumping measures) and ruled that the EU violated articles 3.1 and 3.2 of the agreement on anti-dumping measures.

On causality

India believes that the EU has failed to provide evidence that there is a causal relationship between dumping and damage.

The expert group held that India's request for causation was inappropriate at that time, on the grounds that the claim had been abolished in the original expert group investigation stage and was not mentioned in the appeal procedure.

However, based on the nature of Article 21.5, the panel considers that it may be identified on the request.

After examining the matter, the expert group invoked the identification of the expert group on "hot rolled steel" in the United States, that is, the investigation agency has no obligation to "prove that dumping imports constitute a material damage separately by deducting the damage caused by other factors from all the damages discovered, to determine whether the remaining damage is still reaching substantial damage."

In addition, the expert group also pointed out that India did not provide sufficient evidence to prove that "the EU's causality identification is a fair and objective investigation organ which can not be made on the basis of the basic facts it has obtained at present."

Therefore, the expert group held that the EU's identification of causality did not violate Article 3.5 of the agreement on anti-dumping measures.

The appellate body maintains the following confirmation by the expert group that the appeal of India on article 3.5 is inappropriate in the procedure of the Article 21.5 of the expert group; the appellate body refuses to determine whether the expert group's decision on the EU's non violation of article 3.5 of the agreement on anti-dumping measures has been mistaken.

{page_break}

Reference and reflection

This case is a very typical case of disputes involving anti-dumping between India and the European Union. The tracking of the ruling and recommendations of the expert group and appellate body is of reference to our investigation organs.

In order to improve the level of China's trade remedy measures, we should conduct in-depth research on the laws of the members of the European Union and other WTO, the format of the case, the reasoning itself and the intensity of the craze.

Legislation is forward-looking.

The EU's anti-dumping law is the first time in January 1, 1995.

The new anti-dumping regulations were implemented in March 6, 1996 through the amendment of regulation No. 384/96.

The uniqueness of its legal protection of domestic industrial interests is reflected in the legislative step and its advance.

The provisions of the "community interest" clause and the "low tax principle" surpass the provisions of the agreement on anti-dumping measures to better protect the overall interests of the European Union.

We should carefully study the relevant laws of the EU and draw lessons from it, so as to provide references for improving our legal system of trade remedy.

Strengthen law enforcement.

It is an experience of EU's judicial practice to abide by WTO rules and protect industries in the EU area legally.

Antidumping is a legal issue. If the anti-dumping law is violated by the WTO regulations, it can directly accuse the European Commission to the European Court of first instance or the European Court of justice, or through its government to the European Union (WTO Limited).

Therefore, if the EU is convicted of irregularities, it needs to modify its anti-dumping decision in accordance with the court's decision or WTO's ruling, thus greatly reducing the intensity of anti-dumping.

At present, China faces a major problem in dealing with the EU anti-dumping dispute case: the EU is actually abusing anti-dumping measures against China, and many cases can be extended to the WTO dispute settlement body. However, in the dispute settlement system, China's lawsuit against the European Union is very rare.

In July 31, 2009, China formally launched the WTO dispute settlement process on the EU's anti-dumping measures against China's fasteners, becoming the first WTO dispute settlement case against the European Union. It shows that the Chinese government hopes to defend its own trade interests more actively through multilateral institutions.

The format and reasoning of EU award announcement is of reference significance.

In terms of format, the format of the European Union's initial or final announcement is based on information presentation and argumentation in terms of procedures, similar products, dumping, damage, causality, and community interests. The argument is drawn from the word "two", and the final decision is summarized in terms of the above reasons.

The content of China's ruling announcement belongs to the nature of information display. Only procedural matters are listed in the ruling.

In terms of format, the contents of our ruling announcement are rather thin.

From the point of view of logical reasoning, the most important part of the European Union's announcement is the determination of dumping and damage.

In addition, the argument about the interests of India and the European Union is not too small.

In our ruling announcement, we focus on dumping, injury and causality.

That is to say, an obvious feature of the EU anti-dumping investigation is to show the EU's interests as an important part of identifying the EU's domestic industry.

The part of China's annexes related to domestic industry is mainly divided into three parts, that is, the identification of similar products and domestic industries in China.

In fact, from the content point of view, the two arguments are very similar.

Using WTO related procedural rules to protect their rights legally

China should adopt a proactive policy to initiate the WTO dispute settlement procedures for the trade policies and measures of other WTO members who infringe upon China's trade rights and interests, and should make more use of the consultation procedure.

We should make reasonable use of WTO rules to win more time for the domestic industry.

One of the most important experiences of the United States, the European Union and even the major developed and developing members of India and Brazil in using the WTO dispute mechanism is to make use of procedures and legal delays to gain more time for the domestic industry.

The points of the available procedure are summarized as follows:

Negotiation stage.

After the prosecution has filed an application for consultation, there will be a period of negotiation between the two parties.

The purpose is to embody the purpose of the dispute settlement body. When the country is accused, the dispute can be resolved through consultation, and the deliberation of the expert group and the appellate body is carefully considered.

In response to the application of the expert group set up by the prosecution, the accused party has a chance to refuse; when the prosecution applies again, the Respondent must agree.

The mid-term stage of deliberation.

In accordance with articles 15.2 and 15.3 of the understanding on rules and procedures for dispute settlement, "...

Within the time limit set by the expert group, one party may submit a written request to the expert group to consider the specific aspects of the interim report before the final report is circulated to members.

At the request of one side, the expert group shall convene a meeting with the parties on the issues identified in the opinion of the situation.

If no opinion has been received from the parties during the solicitation of opinions, the interim report should be considered as the final report and disseminated to the members quickly ". Although in practice, the final report has little chance of amending the interim report.

Proceedings at the execution stage.

The parties may initiate proceedings on the defendant's decision on the award of the dispute settlement body and the implementation of the proposal, that is, Article 21.5 of the understanding on rules and procedures for dispute settlement is actually equivalent to re hearing the case procedure. In addition, generally speaking, the expert group will put forward various reasons (such as plation time, schedule stress, etc.) to postpone the submission of the report, the defendant's appeal and the determination of a reasonable time limit. The execution of the case will be delayed for a long time and the time will be spent in a "legal" procedure.

On the face of it, this result is caused by the prosecution's initiation of Article 21.5 proceedings, but the accused party reluctantly or completely fails to implement the result of the dispute settlement body's recommendation or award. Fundamentally speaking, the defendant can delay the execution of the time by using the legal procedures and rules.

In the case of anti-dumping dispute settlement, many members have made use of the procedures and rules of the WTO dispute settlement mechanism to protect their interests to the maximum extent.

We should also learn to use the due process and rules in the procedure, such as postponing the establishment of expert group and appeals to expert group rulings, so as to gain more time and space for the adjustment of domestic policies or the recovery of domestic industry.

Strengthening the national capacity building of dispute settlement and improving the comprehensive ability of China to apply the WTO rules

After China's accession to the WTO, its participation in the WTO has widened its scope of activities, and has further participated in the consultative negotiations such as "WTO rules and technical group meetings", "WTO notification deliberations and dispute settlement".

And the strengthening of these activities requires a large number of compound talents who understand the law, understand the current situation, understand the industry and understand foreign languages in practice.

However, there are few trade relief investigation officials involved in negotiations and meetings at all levels of WTO disputes, and the scope of the right of speech is limited. This situation needs to arouse the attention of relevant departments, so as to increase our participation in the dispute settlement mechanism and the negotiation of participation rules, and strive for the right to speak in a larger area.

Judging from the experts who work in the dispute settlement institutions in developing countries, there are only 1 judges in India, and 6 judges in India, and 8 judges in Brazil.

Our country urgently needs to train a large number of high-quality WTO talents, attach importance to the training of professionals' concentration, create China's own WTO experts, increase the strength of investigation officials' participation in negotiation, consultation and training at all levels of WTO dispute, and establish and develop a professional team that is proficient in national Trade Law and practice through various channels, and continue to promote the education and training of China's foreign trade laws and policies, WTO law and other international trade laws.