Analysis To Material Injury In Anti-dumping Investigation

The determination of injury is one of the most basic and essential elements in the international anti-dumping legal system. The involved bureau of the imported country determines whether the dumped products have injured the domestic industry which produces the like products and determines whether to take anti-dumping measures to the dumped products. Injury determination is an essential step in the process of the anti-dumping investigation. Article 3 of WTO Agreement on Anti -dumping Law makes a general regulation on injury determination, which not only requires the material injury in the domestic industry, but also requires the causality between the dumped products and injury. The lack of explicit legislation theory and standard of the regulation results in the different expectations of the different parties of WTO and a lot of arguments are raised. The paper analyzed the three anti-dumping cases according to the law and made a detailed discussion on the reasonality of the methods used in the case study, as well as the reasonality of the regulation on the coverage, degree, causality determination and the best remedy time for the domestic industry.Chapter One is the general introduction of injury determination. The related bureau should stop investigation if the injury doesn't exist but only dumping during the primary investigation in anti-dumping. On the opposite, if there is anti-dumping but no injury, the investigation will be carried on. In the final finding, if there is an affirmative finding on dumping but no affirmative injury finding, no anti-dumping measures will be taken. So the injury determination, as the precondition element, plays an important role in anti-dumping investigation. However, there is no unitary standard of the regulation on injury determination, which caused many problems, such as: no explicit regulation are made on the"material"injury which caused many countries create different criteria on the behalf of themselves; the economical standard and targets in determine the degree on how the dumped products affect the domestic products are vague;"non-attribution clause",in determine the causality between dumping and injury, has no regulation on whether the effects caused by the dumped products should play a vital role. The problems above lead to the decision makers a good right of discretion. As a result, it is very important to make reasonable and definite regulations in order to make the free trade systems stable. Chapter Two discussed the injury determination in the case study.Case One is U.S. vs. Canadian new steel rail. ITC makes an affirmative finding that the new steel rail from Canada caused a threat of material injury to U.S. domestic industry. There is a dissent from the finding that whether the dumped products cause the injury on the threat of the injury. On the one hand, the domestic industry developed slowly and produces negatively; on the whole, the industry is weak in condition. On the other hand, the imported products though have a significant number but with low rate of market penetration. It hasn't occupied the original market or oppressed on the domestic price, either ruined the domestic industry. So the conclusion is the dumping and the injury doesn't have the causality. Besides, U.S. railroad ordered from the Canadian exporters a small sum of"experimental steel rails", which resulted in the expectation of a good more sum and more expensive products will be coming in the future. It will be urgent and destructive. So the dumped products cause a threat of material injury to the domestic market. The finding of ITC is reasonable.The writer discussed on the other arguments on injury determination, including: whether unfair trade causes the injury determination; how serious the imported products affected domestic industry will ITC makes an affirmative finding; the reasonality of using unified approach in determining the injury; the best remedy time to the injured domestic industry.Case Two is U.S. vs. All-terrain Vehicles (ATV) from Japan. ITC makes a negative finding that the less than fair value (LTFV) imported products haven't caused a material injury or a threat of material injury to the domestic market. The exsistence of a material injury should be confirmed before the injury determination. The record of the investigation showed the industry hasn't been injured. The reasons are as follows: first, during the primary investigation, the industry of ATVs is in good condition; second, in the final investigation, the industry continues to develop; and third, the targets of the industry are improving during the whole process of the investigation.According to the U.S. antidumping law, suppose the domestic industry is suffering the injury, however, the causality between the dumped products and the injury should be confirmed before ITC makes an affirmative finding. From the record, we discover the problems existed: the amount of the imported products decreased during the time and so is the gross value; the market shares dropped and the imported products didn't affect the domestic price; the domestic products have defects. As a conclusion, even if a material injury existed, no causality is confirmed. So the imported ATVs from Japan didn't cause a injury to the domestic industry.Case Three is U.S. vs. Columbian and Ecuador fresh-cut roses. ITC made a negative finding that the imported fresh-cut roses haven't caused a material injury to the domestic market. First, although the quantity and the gross value of the products improved absolutely, the market shares increasing rate didn't according increased. Refer to the record, we conclude that the imported roses have been imported to an important new market, other than the traditional market, as well as imported to the implementing market which the domestic industry couldn't supply. Second, from the domestic price, because of the different quality and identities of different roses, the ability of substitute is weak. The advantages Columbian Roses have is big broom, thick stem, bright color and long broom term and other non-price element that the domestic roses don't have. So the imported products are more welcome. It is clear that the imported products didn't ruin the domestic price. Third, from the influence to the domestic industry, the imported products meet the need of the special demand in peak period such as the Valentine's Day Season, which the domestic industry unable to supply. It didn't harm the benefit of domestic industry. In a word, the evidence supported the conclusion that the imported roses from Columbian and Ecuador didn't cause a material injury to the domestic market.Chapter Three discusses on the problems in causality determination in Cases.The first half of this chapter is about the degree in determining the causality. In the development of the regulations on the Causality Degree Determination, countries used to adopt two methods, including"Main Reason Principle"and"One Reason Principle"."Main Reason Principle"defines as the effects that dumped brings is the main reason of the domestic injury, antidumping measures could only be taken when this happens."One Reason Principle"requires the dumped products are the one reason among the others which cause the domestic injury. As long as the dumped products become a reason of the injury, measures could be taken. The latter will easy results in the abuse use of anti-dumping measures and the domestic trade protection will be increased. The writer thinks the"Main Reason Principle"goes with the free trade essence of WTO, and is good for sustain a balance between the trade protection and free trade.The later half of this chapter is about the determination when dumped imports and other elements caused the injury together. According to the"non-attribution clause", the related bureau should test on all the other elements which injured the domestic industry. However, during the process of investigation, the bureau couldn't distinguish the injury caused by the imported products and other elements. They take the surface causality and determine that the imported products caused the domestic injury, which ruined the fair trade principle. As a result, make further explicit regulations on the causality between dumped products and injury and distinguish the essential and definite elements from the unessential and occasional elements between it will do more good to the development of antidumping. 3谢皓,杜莉:《美国对外贸易政策与WTO规则的关系关分与启示》,http://www.lunwennet.com,2009年3月34日。4张丽英:《国际贸易法专题研究》,法律出版社,2004年版,第366页。18 Edmin A. 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