Anti-Dumping Rules [Customs Tariff (Identification, Assessment and Collection of Anti Dumping Duty on Dumped Articles and for Determination of Injury) Rules,1995]
Investigations and Recommendations by Designated Authority, Ministry of Commerce
Imposition and Collection by Ministry of Finance
DETERMINATION OF DUMPING
Difference between Normal Value and Export Price: Margin of dumping (% of export price)
Normal Value : comparable price at which the goods under complaint are sold, in the ordinary course of trade, in the domestic market of the exporting country
If the normal value cannot be determined by means of domestic sales, following two alternative methods :
Comparable representative export price to an appropriate third country
Cost of production in the country of origin with reasonable addition for administrative, selling and general costs and for profits
Export Price : price paid or payable for the goods by the first independent buyer
Like Articles : The article produced in India must either be identical to the dumped goods in all respects or in the absence of such an article, another article that has characteristics closely resembling those goods
INJURY TO THE DOMESTIC INDUSTRY
The Indian industry must be able to show that dumped imports are causing or are threatening to cause material injury to the Indian ‘domestic industry’
Injury analysis can broadly be divided in two major areas:
The Volume Effect : The Authority examines the volume of the dumped imports, including the extent to which there has been or is likely to be a significant increase in the volume of dumped imports, either in absolute terms or in relation to production or consumption in India
The Price Effect : Extent to which the dumped imports are causing price depression or preventing price increases for the goods which otherwise would have occurred
Causal Link : A ‘causal link’ must exist between the material injury being suffered by Indian industry and dumped imports
WHO CAN FILE AN APPLICATION
A dumping investigation can be initiated only upon receipt of a written application by or on behalf of the “Domestic Industry”
In order to constitute a valid application, there must be support of those who account for more than 25% of total domestic production, and more than 50% production by those supporting and those opposing the application
Domestic Industry : Indian producers of like articles as a whole or those producers whose collective output constitutes a major proportion of total Indian production. The following are excluded:
Those related to importers or exporters
RELIEF TO THE DOMESTIC INDUSTRY
ANTI-DUMPING DUTIES : Non-cooperative exporters are required to pay the residuary duty (highest of the co-operative exporters)
Lesser Duty Rule: Government is obliged to restrict the anti-dumping duty to the lower of the two i.e. dumping margin and the injury margin
Injury Margin: Difference between the fair selling price due to the domestic industry and the landed cost of the product under consideration
De Minimis Margins: Any exporter, whose margin of dumping is less than 2% of the export price and the volume of the dumped imports are below 3% of the total imports, shall be excluded from duties
PRICE UNDERTAKINGS: Exporter concerned must furnish an undertaking to revise his price
THE APPLICATION PROCEDURE
Made by or on behalf of the concerned domestic industry to the Designated Authority in the Ministry of Commerce
Period of Investigation: Not less than six months
Preliminary Screening : Application scrutinized to ensure that it is adequately documented and provides sufficient evidence for initiation
Initiation : Public Notice issued initiating an investigation to determine the existence and effect of the alleged dumping. Diplomatic representative of the Government of the exporting country notified.
Access to Information : The Authority provides access to the non-confidential evidence presented to it
Preliminary Findings : Made within 150 days of the date of initiation
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
Oral Evidence : Interested parties can request the Designated Authority for an opportunity to present the relevant information orally
Final Determination : Made within 150 days of the date of preliminary determination
Disclosure of Information : The Designated Authority will inform all interested parties of the essential facts which form the basis for its decision
COMPETITION LAW AND ANTI-DUMPING LAW – AREAS OF OVERLAPS AND CONFLICTS
COMPETITION ACT, 2002
An Act to provide, keeping in view of the economic development of the country, for the establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets, in India, and for matters connected therewith or incidental thereto.
The Act provides a very wide mandate for the Competition Commission of India to enforce.
The Act contains provisions which have rather become standard in the competition jurisdictions all across the globe.
The provisions relate to anti-competitive agreements, abuse of dominant position and regulation of combinations.
Dominance is not frowned upon by the Competition Act, 2002 but the abuse of dominance is frowned upon by the legislation.
Anti-competitive agreements and abuse of dominance are to be prohibited by the orders of the Commission whereas the mergers are to be regulated by the orders of the Commission.
CONFLICT BETWEEN ANTI DUMPING LAW AND COMPETITION LAW
Antidumping laws were initially enacted to address the situation of ‘international price predation’ .
They were considered as extension of competition laws.
Antidumping laws as they exist today do not seem to be concerned with the issue of predatory pricing.
They attach sanctions to every instance of international price discrimination which can be shown to cause injury to the domestic industry.
Objectives of Competition laws are
Promotion of competition and prevention of anti-competitive practices
Protection and promotion of consumer interest
Achieving economic efficiency
Geographic/ regional integration
Objectives of Anti dumping laws
Remedying the injury to the domestic industry due to dumping
Address predatory pricing
Competition laws are primarily aimed at protecting and promoting competition in markets.
Antidumping laws are aimed at remedying the injury to the domestic industry which may arise due to dumping.
Under competition law, only the price discrimination, which adversely affects competition in markets and thus has negative consumer welfare impact, is prohibited.
Under anti dumping law, every instance of price discrimination is prohibited.
Under competition law ‘predatory pricing’ is understood as a deliberate strategy, adopted by a dominant firm, with an intent to drive competitors out of the market by setting very low prices.
Conditions to be met before imposing a sanction
The firm should be in a position of dominance
The sale of goods should be at a price below a relevant measure of cost
The firm should do so with the intent to reduce competition or eliminate competitors.
Antidumping law does not specifically address the issue of predatory pricing.
Antidumping law is concerned only about the price at which the product alleged to be dumped is sold in the two markets and not directly about the cost of production of the product or intent behind the discrimination.
CRITICISM OF ANTI-DUMPING LAW AND ITS EFFECT ON COMPETITION
From the economics point of view, there is no reason to support any anti-dumping law, since price differentiation across markets is a perfectly rational and legitimate profit-maximization action.
Domestic price discrimination normally is not penalized.
They do not afford effective assistance to the domestic industry they are intended to protect.
They protect producers at the expense of consumers, which results in higher prices, lower quality products, less consumer choice and a general lowering of the standard of living for the vast majority of people.
Domestic producers can enlist the help of government to prevent foreign competition even when there has been no dumping.
They provide good for the minority i.e. producers at the expense of the greatest number i.e. consumers.
They reduce rather than enhance social cooperation and harmony.
They redistribute income in the wrong direction i.e. from the poor and middle classes to the rich.
Domestic producers can raise their prices with little fear of being underpriced by foreign suppliers.
Thus existence of antidumping law hurts competition both ways,
by forcing exporters to sell at higher prices and
by providing the domestic producers the freedom to charge higher prices than what would be otherwise possible.
SHORTCOMINGS RELATED TO THE ENFORCEMENT OF ANTIDUMPING LAWS
Under current anti-dumping rules, national authorities are allowed to exercise enormous discretion.
Since the criteria for determining the export price and the normal value are neither stringent nor specific, the importing country can determine incidents of dumping at will.
It can lead to the protection of inefficient domestic industry.
A firm is likely to be subject to an anti-dumping investigation if it exports a product at a price lower than the normal value in the home market, regardless of whether there is a predatory intent or not.
SHORTCOMINGS RELATED TO THE ENFORCEMENT OF ANTIDUMPING LAWS
Anti-dumping rules allow exporters to avoid antidumping actions if exporters agree to raise their prices.
Such agreements are a means of suspending ongoing anti-dumping cases and can be used to promote anticompetitive behaviour.
FEW INSTANCES OF ANTI –DUMPING & COMPETITION WITH REFERENCE TO INDIA
Country No of cases initiated in year 1995-2009 India 596 United states 440 European Union 406 Argentina 270 South Africa 212 Australia 208 Brazil 179 China 178 Canada 151 turkey 144 Korean Republic 108
SECTORS GETTING AFFECTED Sectors in Anti-dumping investigations 1995-2008 % of total anti-dumping cases initiated by India Chemicals 33 Metals 28 Machinery 11 Textiles & Footwear 9 Paper & Wood 6 Agriculture 5 Other 8
ANTI-DUMPING DUTY ON POLY-PROPYLENE(PP) EXPORTED INTO INDIA
PP – used as a raw material in a variety of industries including packaging, woven sacks for cement, fertilizers, sugar and various consumer items such as house ware, auto components, pipes, water tanks, furniture, and medical appliances
Appeal by Reliance Industries, supported by Haldia Petrochemicals corporation Ltd. (HPCL), the only two producers of PP in the country, against PP imports from Saudi Arabia, Oman and Singapore.
among the top 8 producers in world.
holds a 70 percent share of the domestic market
caters to 3 percent of global consumption of PP
Directorate General of Anti-dumping and Allied Duties (DGAD) has imposed definitive anti-dumping duty of up to USD 323.5 per tone of PP imported from Saudi Arabia, Oman and Singapore.
Government's justification of the duty
imports from the subject countries have increased in absolute terms as well as in relation to total imports, total demand and total production in India.
the market share of the duopolistic domestic industry has come down, while the demand has increased.
Despite increase in demand, the prices of the domestic industry have been suppressed.
However, according to the Indian Plastic Federation (IPF), imports from Saudi Arabia, Oman and Singapore have increased only marginally from 5% in 2005-06 to 6% in 2008-09.
It will lead to
a significant price rise of the raw material (PP); in some cases the price may rise to almost double as the amount of duty is almost equivalent to the international market price.
most of the units associated with processing industry are small and medium enterprises (SMEs) and there is a fear of hurting them in case of price rise in the domestic market.
CHINA ACCUSED OF ‘PREDATORY PRICING’ TACTICS
According to a survey conducted by Federation of Indian Chambers of Commerce and Industry (FICCI), majority of small and medium-sized manufacturers (SMEs) had suffered a serious erosion of their market share, because of cheaper Chinese products.
Chinese imports were 10 to 70 percent cheaper than comparable Indian products.
claimed that China is not a fair trading partner and is capturing Indian market at a very fast pace through anticompetitive trade practices such as ‘predatory pricing’.
Range of sectors included processed food, light engineering, building materials and heavy engineering, chemicals and textiles
Due to high rise in imports of Chinese toys, Government announced a six-month ban on the import of Chinese toys.
The ban was lifted after two months, when Beijing threatened to take the issue to the World Trade Organization (WTO).
In India, it takes 10 to 12 months for investigation which is more than enough for Chinese firms to damage the Indian industry.
“ green veneer tape” from Taiwan
phosphoric acid from Korea
acetone from Japan and Thailand
CTV picture tubes from Indonesia for five years from March 2009 onwards
Definitive duty was imposed on dry battery cells, Sports Shoes, measuring tapes, plastic ophthalmic lens, non- brass metal flashlights from PR China
Country No of cases initiated in year 1995-2009 China 761 Korean Republic 264 United States 205 Taipei, Chinese 198 Indonesia 156 Japan 155 Thailand 150 India 145 Russia 119 Brazil 108 Malaysia 97
CASE OF INDIAN SHRIMP EXPORTS TO US
US has raised the average anti-dumping duty to 2.67% up from 0.79% – a near 300% increase that follows the Fourth Administrative review by the US authorities.
puts seafood exporters of India into trouble
There is a provision for these small producers to challenge the duty imposed by the US, if they think they are not dumping
Though doing so might prove to be very expensive and time consuming
Since there is not much local market it is difficult to identify the normal price
Also, due to lower operational or transportation or labor costs, low cost could be fair
EFFECT ON TRADE FLOW DUE TO IMPOSITION OF ANTI-DUMPING DUTIES
A decline in the aggregate annual import of about 7% in the year 1993 from a growth of 17.4% in imports arising due to trade liberalization in 1992.
In general, trade from the subject country is restricted when the anti-dumping duties are levied.
Right after the case is filed and during the duration of investigation, imports drop by a large amount (91%) from pre-petition level.
by the next year after the case has been filed, imports start going up again (rise by 53%).
However, they never again regain their pre-petition high.
anti-dumping investigations have restrictive impact on imports from the subject Countries, other countries benefit by increasing their sales.
This diversion of trade from subject to non-subject countries can offset the restrictive effects of anti-dumping.
the existence of trade diversion does not necessarily imply that anti-dumping duties have no effect at all on overall import trade.
Overall imports fall in response to anti-dumping duties, by a small but considerable amount.
ANTI-DUMPING SCENARIO OF CHINA
Anti-dumping export ratio (ADER), defined as economy’s share of anti-dumping cases in the world divided by economy’s share in world exports,
If ADER>1, then that economy is targeted more than its share in the exports.
China’s ADER = 4.
Also the ADERs of Korea, India and South Africa are more than 1,
WHY DOES CHINA TOP THE LIST?
After 1992, when Foreign Direct Investments (FDI) into China was allowed, many companies have invested heavily in China
Started exporting from China rather than from the home country.
As the labor and transportation costs in China were relatively very low
Exporting the produce from these firms was seemed to be economical
There were instances of anti-dumping duties on these companies which seem to have Chinese origin.
reduced cases against other countries as opposed to increased cases against China.
Also, China is considered as a non-market economy
liberty to the investigating economy to calculate cost incurred by referring to costs of some neighboring countries like India where labor, transportation and other factors determining price of a commodity is comparatively high
unfair calculation of normal prices and the injury calculation in domestic market, might result in more number of antidumping measures against China.
In first decade of facing anti-dumping investigations Chinese enterprises have not coordinated well in dealing with anti-dumping cases in an effective manner.
This reflects the weakness in the Chinese enterprises in terms of backward corporate governance practice and also the overall weakness of nationwide legal infrastructure.
This applies to Indian context in some instances as well.
We are not effective in defending the anti-dumping duties being imposed against our domestic exporters, especially with the small and medium size enterprises (SMEs) as in the shrimp exporters case.
It can be agreed that overall the anti-dumping policy of India helps to check unwanted imports and hence might qualify as “effective”.
Do little when it comes to the trade diversion that takes place during the initiation of an anti-dumping case against a certain country
Re-initiation and re-investigation on the potential similar imports from a different country is time consuming