At the Ministerial Conference of the WTO in Hong Kong in December 2005, the commitment to negotiations on rules as expressed in the Doha Declaration was reaffirmed by WTO members. They also acknowledged that the achievement of substantial results on all aspects of the “rules” mandate is important to the overall balance of results in the Doha Development Agenda (DDA).
For ICC, the negotiations on anti-dumping to clarify and improve WTO disciplines in this area are an important element of the DDA negotiations. Countries all over the world, both developed and developing, actively use anti-dumping measures. Improvements and clarifications to the WTO anti-dumping instrument, based on the experience until now, have therefore become necessary. This element of the “rules” negotiations in the DDA can therefore produce very concrete and tangible results for business in all countries on this key issue.
The position of ICC on anti-dumping disciplines in the WTO is founded on two equally important pillars:
- The anti-dumping instrument is, and should remain, an integral part of the WTO-system, providing a remedy to ensure “fair competition”. It should offset the effects of dumping if it causes or threatens to cause material injury not only to established industries but also to infant industries;
- The overarching principle in article VI of the GATT and of the Anti-Dumping Agreement (ADA) is to restore equilibrium and swiftly and effectively offset the effect of dumping and to remove any injury in cases where the occurrence of dumping is duly established. The aim is not, however, to hand out punishment e.g. in the form of duties exceeding the dumping margin or in the form of excessive procedural costs, and thus making the anti-dumping instrument unduly trade-restrictive.
These two pillars should provide guidance to negotiators for improving and clarifying antidumping disciplines in the WTO DDA.
The application of anti-dumping measures should be transparent, consistent and predictable in order to minimize the harm and costs these measures can create for business. This will prevent unwarranted forms of anti-dumping practice and ensure that legitimate anti-dumping measures are applied at the lowest cost to world business and in a manner that does not create any unreasonable barriers to trade.
A crucial issue is not only to improve the WTO ADA, but to follow-up its implementation by WTO members. The WTO should monitor such implementation and periodically publish recommendations on best practice, at least every two years. To this effect, the WTO Committee on Anti-Dumping Practices should be encouraged to play a more effective and educational role, in particular with respect to capacity building and technical assistance to developing and least developed WTO members, and to foster convergence in the application of national anti-dumping laws in compliance with the provisions of the WTO ADA. Such a role might usefully focus on specific issues such as the level of anti-dumping duties for example.
Transparency in anti-dumping proceedings can only be achieved through effective access to meaningful non-confidential information and the disclosure of legal and factual determinations in a timely fashion.