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Anti-dumping practice in India: due process, confidentiality and the WTO standards

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Indian Journal of International Law

Abstract

The trade remedy laws of India, as a Member to the World Trade Organisation, are governed by provisions of the relevant Agreements, including the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, commonly referred to as the AD Agreement. India deserves special mention as the highest user of trade remedy laws in the world. One would imagine that such a rich history of anti-dumping investigations would have resulted in highly sophisticated jurisprudence in India and by now, India should have added to the jurisprudence and understanding of the AD Agreement. Reality disagrees and this article explores recent, but interesting, developments highlighting progress and regress of Indian anti-dumping law and practice.

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Notes

  1. India has initiated very few countervailing duty investigations and so far, countervailing duty has been imposed in only one investigation. This author has presented a detailed critique of this countervailing duty investigation in Adarsh Ramanujan, India’s First Countervailing Duty Determination: Does India Live Up to the Expected International Standards? 5(1) J Intl Trade & Arb L. (2016) 221.

  2. Commission of Customs, Bangalore v G. M. Exports & Ors. (2016) 1 SCC 91.

  3. An interesting question arises whether the Ministry of Finance, if it chooses to impose ADD, can impose ADD that does not correspond to either the margin of dumping or the injury margin. Rule 18 only prescribes a maximum ca, without prescribing any minimum cap. Till date, this issue has not arisen in practice.

  4. See Reliance Industries v Designated Authority (2006) 202 ELT 23 (SC).

  5. Both the AD Agreement, in Article 6.5, and the Indian AD Rules, in Rule 5(4), also permit the suo moto initiation of an anti-dumping investigation.

  6. Articles 6.1.2 and 6.1.3, AD Agreement.

  7. Article 6.3, AD Agreement.

  8. Appellate Body Report, US – Oil Country Tubular Goods Sunset Reviews, [241–242].

  9. Automotive Tyre Manufacturers Association v The Designated Authority & Ors (2011) 2 SCC 258.

  10. Ibid, [83–84].

  11. Articles 5.2–5.3 and 5.5, AD Agreement; Rule 5, Indian AD Rules.

  12. Articles 5.2–5.3, AD Agreement; Rule 6, Indian AD Rules.

  13. Article 6.1, AD Agreement; Rule 6, Indian AD Rules.

  14. Articles 7 and 12.2, AD Agreement; Rules 12–13, Indian AD Rules.

  15. Articles 6.2–6.3, AD Agreement; Rule 6(6), Indian AD Rules.

  16. Articles 6.9, AD Agreement; Rule 16, Indian AD Rules.

  17. Articles 9 and 12.2, AD Agreement; Rule 17, Indian AD Rules.

  18. Article 5.10, AD Agreement; Rule 17, Indian AD Rules.

  19. Appellate Body Report, EC – Tube or Pipe Fittings, [149].

  20. Ibid, [145].

  21. See, e.g., Panel Report, EC – Fasteners (China), [7.495].

  22. Panel Report, Mexico – Steel Pipes & Tubes, [7.380].

  23. There is also a further difference in that the last sentence of Article 6.5.2 of the AD Agreement, which declares when the authority may nonetheless consider such information notwithstanding Article 6.5.2, is absent in Rule 7 of the Indian AD Rules. However, arguably, this is implied anyway.

  24. No. 4/27/2007-DGAD, Trade Notice No. 1 of 2013, 9 December 2013.

  25. Ibid, [2(ii)]

  26. Ibid, [2(iii)]

  27. Ibid.

  28. Ibid, [2(v)].

  29. See, e.g., CCE v Kores (India) Ltd. (1997) 10 SCC 338.

  30. The issue may not be as straightforward for any Court to decide upon. On the one hand, the stipulations in the Trade Notice are clearly over and above the statute and the statutory rules. On the other hand, several judgments have recognized the need for Indian anti-dumping law to be interpreted in the light of the AD Agreement and thus, a Court may be inclined to take a more holistic approach in its assessment since the stipulations in the Trade Notice ensure complete conformity with Article 6.5 of the AD Agreement.

  31. See, e.g., the recent review presented in the findings of the Appellate Body Report, Argentina – Import Measures, [5.99–5.111].

  32. Reliance Industries v Designated Authority (2006) 202 ELT 23 (SC), [42].

  33. Union of India & Anr v M/s Meghmani Organics Ltd & Ors (2016) 10 SCC 28.

  34. Final Findings, Anti-dumping Investigation Concerning Imports of USB Flash Drives, Originating in or Exported from China PR, Taiwan and Republic of Korea, F.No.14/22/2012-DGAD, 19 December 2014. As on the date of this article, the Supreme Court of India has remanded the matter to the CESTAT, vide order dated 16 February 2017 in The Designated Authority & Ors. v M/s Sandisk International Limited & Ors., SLP(C) No. 14524/2015. In the interests of full disclosure, this author and the organisation he is associated with are advocates representing one of the interested parties in this matter.

  35. Ibid, [4(xiii)], [12(x)].

  36. Ibid, [12(x)].

  37. Ibid, [106].

  38. 2015 SCC Online Del 8142.

  39. Ibid, [3].

  40. Ibid, [6].

  41. Ibid, [28–30].

  42. Union of India & Anr. v M/s. Bharat Solvent & Chemical Corporate, Order dated 22 May 2015, in SLP (Civil) 13583/2015.

  43. The Designated Authority & Ors. v M/s Sandisk International Limited & Ors., Order dated 16 February2017, in SLP(C) No. 14524/2015.

  44. Final Findings, Anti-dumping Investigation Concerning Imports of USB Flash Drives, Originating in or Exported from China PR, Taiwan and Republic of Korea, F.No.14/22/2012-DGAD, 19 December 2014, [152(ix)].

  45. Appellate Body Report, EC – Fasteners (China), [537].

  46. Of course, in appropriate cases, such as those involving niche markets and few limited importers, it may be possible that information on the ports involved may also be sufficient to trace the identity of the importer indirectly. However, unless such a fact pattern is present, information of this type cannot be assumed to be confidential.

  47. See, DGCI&S, Data Dissemination Policy and Fee Structure, available at <http://dgciskol.nic.in/pricing.asp>.

  48. No. 4/27/2007-DGAD, Trade Notice No. 1 of 2013, 9 December 2013, Annexure I, [4(iv)].

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  1. Law Chambers of Adarsh Ramanujan, New Delhi, India

    Adarsh Ramanujan

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Correspondence to Adarsh Ramanujan.

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Adarsh Ramanujan is an Advocate and litigator with offices in New Delhi and Chennai, India, specializing in the areas of trade remedies and other WTO laws, Intellectual Property and Technology Laws, and general commercial litigation. The author would like to thank Mr. Seetharaman, who was previously Principal Partner, Lakshmikumaran & Sridharan and presently Managing Partner, Seetharaman & Associates, for his valuable insights and assistance in preparing this article. All views expressed in this article are the personal views of the author; they do not constitute the views of Lakshmikumaran and Sridharan, with whom the author was associated with at the time of writing this article, and do not constitute legal advice.

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Ramanujan, A. Anti-dumping practice in India: due process, confidentiality and the WTO standards. Indian Journal of International Law 57, 147–162 (2017). https://doi.org/10.1007/s40901-018-0070-2

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