Antidumping in law and practice

The alarming increase in the number of antidumping actions pursued by both industrial and developing countries has caused considerable concern among economists, lawyers, and trade reformers. These concerns have led to suggestions to substitute antitrust principles for antidumping laws and regulations or to use safeguard measures under Article XIX of GATT 1994 and the Uruguay Round Agreement on Safeguards. The author contends that, under current international trade law, neither proposal appears feasible. Moreover, antidumping actions have become a fact of life and the international community recognizes them as the only legitimate tool to combat dumping as defined by and determined in accordance with law. Despite urgings in some quarters, neither national legal systems nor international agreements have mandated an economy-wide cost-benefit analysis of proposed antidumping actions. Because of political, technical, and other implications, such a methodology is unlikely to be accepted soon. Although the most recent Uruguay Round antidumping agreement (URAA) has enhanced the discipline and made a number of improvements, it cannot claim to have plugged all loopholes for the misuse of antidumping. In those matters on which the agreement is silent or ambiguous or allows room for flexibility in adopting a less restrictive rule or practice. A case in point is the U.S. practice on voting in the International Trade Commission. A 3-3 vote in antidumping and countervailing duty investigation constitutes an affirmative decision. It would be preferable to require a clear majority rather than treat an evenly divided vote as sufficient to establish a finding of injury.