On The Improvement Of Procedures Of The WTO Anti-dumping Agreement

The improvement of the WTO Anti-dumping Agreement is strongly recommended by the international society as the anti-dumping law is increasingly abused. Procedural norms are especially important in this improvement.There are four parts in this article, here is the abstract: The firs part analyzed the existence of the WTO Anti-dumpingAgreement. Although the validity and rationality of the theory about the the harm of anti-dumping is suspectable, and anti-dumping has trade-restricted effect, anti-dumping law is'reasonable', and is the'second choice'among the trade remedies. The main reasons are as follows: First, trade-protection and trade-liberty always co-exist in the generation of trade policy; Second, anti-dumping is the by-product of the free trade policy; Three, there are national sovereignty and domestic market. All these above also demonstrate the limit of the international anti-dumping, namely, the abuse often comes out in practice. The improvement has to keep balance between the substantial norms and procedural norms. Although the former is more important than the latter, and in some degree the precondition of the observance of the procedure duties, the improvement of procedural norms is also crucial to avoid abuse, and is relatively more feasible.The second part expounded the necessity of the improvement of the procedural norms in detail. First, from the history of the international anti-dumping law, that is, from article 6 of GATT1947 to WTO Anti-dumping Agreement, the anti-dumping mutilateral disciplines are becoming more and more perfect, increasingly limit the discretive power by the procedural norms.Second, in the anti-dumping rules negotiation of the Doha Round, the expected result of the negotiation is to maintain the main frame of WTO Anti-dumping Agreement, which means the value of the negotiation is indefinite, and the complete limit to the parties is limited, thus the unharmonious negotiation aims. In order to keep balance between improvement and preservation of domestic anti-dumping system, and the balance between administrative discretion and the restriction of the WTO, the focus of the anti-dumping rules negotiation of the Doha Round is on the procedural norms. Parties of WTO laid more attentions on the procedural norms, as for the negotiation result, the most possibility is to make little changes on specific rules, increase transparency, ensure interested parties, procedural rights; Second, in international anti-dumping practices, the procedural norms often become means of anti-dumping abuse, makes the reasonless anti-dumping petition confirmed and enforced. Thus, the limitation of the procedural norms will decrease the abuse.The third part put forward omnibus proposals on the improvement of the procedural norms. It is very important to limit the abuse of anti-dumping by the procedural norms, because the fundamental improvement of the substantial procedure is impossible. There are principles to comply with in the improvement, such as legitimacy, transparency and limitation on discretive power. In the process of improvement, limitation on discretive power is the main point.The forth part put forward special proposals on the improvement of procedural norms, mainly concerned with those frequently abused procedural norms, such as follows:(1)Initiation Procedure. This procedure impacts economic movements negatively; a flawed initiation procedure can not be'cured'in the following investigation procedures, which is against procedural justice. Article 5 provides the standards of an initiation procedure, but those standards are often subjective, facilitating an arbitrary initiation procedure. Therefore, it is necessary to set up consultation procedure, establish remedy procedure and restricted system.(2)'The Best Available Information'rule. The dumping margin based on the available facts are often very high, it is often exactly the'worst ruling'in the international anti-dumping practices. The facts in the investigation petitions are often adverse for the petitioned party; investigation authorities have much discretive power to decide conditions and methods in the application of this rule. Given the more cases in practice, many limitations can be concluded from those. First, the investigation authorities can not use this rule in the whole investigation if the investigated party can not supply relative data in the prolonged investigation process; Second, investigation authorities must explain the reasons of rejecting the information provided, if not, this rule can not be used; Third, it is not'obvious impediment'if the exporters can not answer every question which needed by investigation authorities.(3)Sunset Article. This article is very unclear, the conditions of an initiation procedure is not rigid, which makes the sunset time a beginning of sunset review and violates the prime purpose. It is also unclear to how to share proof burdens. This procedure is very special and can become trade-protection means easily. There are two methods about its improvement: one is to abolish this procedure, make the anti-dumping measure automatic expired after 5 years; The other is to clarify the current provisions, and limit discretive power owned by investigation authorities.(4)The Lesser-Duty Rule. The provision in WTO Anti-dumping Agreement about this rule is only recommended, which gives much room for arbitrary use in practice. It is necessary to make it mandatory and state calculating methods in order to facilitate its application.