Chuong 4 Trade Remedies

TOPIC 4
TRADE REMEDIES
FACULTY OF INTERNATIONAL BUSINESS 1

READING MATERIAL
- Chapter 8,9 (Feenstra and Taylor, 2017. International Trade.
Worth Publisher, 4e)
- WTO, Detailed Presentation of Trade remedies

STRUCTURE
4.1. Introduction
4.2. Antidumping
4.3. Countervailing
4.4. Safeguard

4.1. INTRODUCTION
WTO and trade liberalization
Trade remedies may be considered as a pragmatic and
temporary tool to deal with the costs of adjustment
resulting from trade liberalization as well as to deflate
the build - up of domestic pressures against
liberalization

4.1. INTRODUCTION
Definition: “Trade remedies”, “escape clause”,
“contingency measures”, “safety valves”
Trade remedies are trade policy tools that allow
governments to take remedial action against imports
which are causing material injury to a domestic
industry.
(Australian Department of Foreign Affairs and Trade)

4.1. INTRODUCTION
Definition:
WTO Members have retained their right to:
Trade remedies Goals

Impose trade remedies: To correct completive imbalances
Antidumping, countervailing created by unfair practices (dumping
and subsidies) when they cause
injury
Apply safeguard measures Surge of import that causes, or
threatens to cause, serious injury

4.1. INTRODUCTION
Trade remedies and trade liberalization?
Trade remedies may be considered as a
pragmatic and temporary tool to deal with the
costs of adjustment resulting from trade
liberalization as well as to deflate the build - up
of domestic pressures against liberalization

4.1. INTRODUCTION
Legal framework
-General Agreement on Trade and Tariff (GATT 1994):
+ Antidumping (Article VI)
+ Safeguard (Article XIX)
+ Countervailing (Article VI, XVI, XXIII)
-Agreement on Anti-dumping (ADA) - Anti dumping duty.
-Subsidy and Countervailing measures Agreement -
Countervailing duty. (ASCM)
-Agreement on Safeguards - Safeguard duty
-Domestic rules

4.1. INTRODUCTION
Monitoring body
1. The US
- Department of Commerce - DOC
+ International Trade Administration - ITA
+ International Trade Commission - ITC
2. European Commission
3. Vietnam
- Ministry of Trade and Industry – Trade remedies authority of
Vietnam
- Website of Trade remedies authority of Vietnam:
http://www.trav.gov.vn/?page=legal&category_id=7c13fdf9-3f5c-
4466-9a40-47cb55504d5c

4.2. ANTIDUMPING
4.2.1. Determination of dumping
4.2.2. Determination of injury
4.2.3. Antidumping procedures
4.2.4. Applicable rules on developing country Members

4.2.1. DETERMINATION OF DUMPING
Definition of Dumping
Dumping is a form of price discrimination, which take place when the price
of a product when exported to another country is less than the price of that
same product when sold in the market of the exporting country
(Article VI of the GATT and Article 2.1 of the ADA)
A product is to be considered as being dumped, i.e. introduced into the
commerce of another country at less than its normal value, if the export
price of the product exported from one country to another is less than the
comparable price, in the ordinary course of trade, for the like product when
destined for consumption in the exporting country.
(Article 2.1 of the ADA)

Definition of Dumping
Exported price < Normal value
The important terms:

- Exported price
- Normal value
- Like products

Like product

Like product
Like product is a product which is identical, i.e. alike in all
respects to the product under consideration, or, in the absence of
such a product, another product which, although not alike in all
respects, has characteristics closely resembling those of the
product under consideration.
=> No guideline on the concept of the “like product”

Like products
- Investigation practices:
+ physical characteristics,
+ uses,
+ interchangeability of products,
+ channels of distribution,
+ customer or producer perception,
+ common manufacturing facilities and production employees,
and production processes


Product code:
Classification of catfish

Exported price
The export price is the price at which the product is exported from one country
to another
(Article 2.1. of the ADA)
=> Price is normally indicated in export documentation
Normal price
An essential element of a dumping determination normal value is the price of
the like product, in the ordinary course of trade, in the home market of the
exporting member
=> Normal value of a product must be greater than its export price

Dumping margin
𝐴𝑑𝑗𝑢𝑠𝑡𝑒𝑑 𝑤𝑒𝑖𝑔ℎ𝑡𝑒𝑑 𝑎𝑣𝑒𝑟𝑎𝑔𝑒 𝑛𝑜𝑟𝑚𝑎𝑙 𝑣𝑎𝑙𝑢𝑒 − 𝐴𝑑𝑗𝑢𝑠𝑡𝑒𝑑 𝑤𝑒𝑖𝑔ℎ𝑡𝑒𝑑 𝑎𝑣𝑒𝑟𝑎𝑔𝑒 𝑒𝑥𝑝𝑜𝑟𝑡 𝑝𝑟𝑖𝑐𝑒
𝐴𝑑𝑗𝑢𝑠𝑡𝑒𝑑 𝑤𝑒𝑖𝑔ℎ𝑡𝑒𝑑 𝑎𝑣𝑒𝑟𝑎𝑔𝑒 𝑒𝑥𝑝𝑜𝑟𝑡 𝑝𝑟𝑖𝑐𝑒

Exercise 1: Effect on Normal Value of Exclusion of Sales Below Cost
Date Domestic Domestic Export Assumption:
Quantity Sales price price - Cost of production by unit: 50
1/2 1 40 50 - Total CIF value: 525
- Prices are adjusted
10/2 1 100 100
17/2 1 150 150 Question:

- Calculate the dumping margin?
25/2 1 200 200

Exercise 2: Calculate the Dumping margin
Normal value Export price
Producer X: Unrelated Customer Producer X: Unrelated Importer
CIF Sales price: 100 CIF sales price: 100
- duty drawback: 3 - physical difference: 6
- discounts: 4 - discount: 2
- packing: 2 - packing: 2
- inland freight: 2 - inland freight: 2
- ocean freight/insurance: 5
- credit: 3 - credit: 2
- guarantees: 4 - guarantees: 3
- commissions: 1 - commissions: 2
= ex - factory normal value: = ex - factory normal value:

4.2.2. DETERMINATION OF INJURY
Causal link
Dumped between
Injury dumped
imports imports
and injury

Injury caused by dumped import
Volume of
dumped imports
Effects of dumped
Material injury
imports on price
Injury
Effects of dumped
Threat to material imports on
injury domestic
producers
Material injury
Material injury Nominal damages
Material injury is an injury resulting in damages of a substantial

nature as distinguished from merely nominal damages.
Threat to Material injury?
Based on facts and not merely on allegation, conjecture, or
remote possibility
Dumped imports
A significant increase in dumped imports, either in absolute terms or
relative to production or consumption in the domestic industry.
Domestic industry
The domestic producers as a whole of the like products or those of them
whose collective output of the products constitutes a major proportion of the
total domestic production of those products.
(Article 4 of the ADA)
Domestic industry = domestic producers of the like product

Effect of dumped imports on prices
- Significant price undercutting,
- Significant price depression or
- Significant price suppression
Differentiate these effects?

Effect of dumped imports on domestic producers
- Actual and potential decline in sales, profits, output, market
share, productivity, return on investments, or utilization of
capacity;
- Factors affecting domestic prices; the magnitude of the margin
of dumping;
- Actual and potential negative effects on cash flow, inventories,
employment, wages, growth, ability to raise capital or
investments.

Causal link between dumped imports and injury
Demonstrate
Dumped imports Material injury

4.2.3. ANTIDUMPING PROCEDURES
Important Procedural Articles
Article 5 Initiation and Subsequent Investigation
Article 6 Evidence
Article 7 Provisional Measures
Article 8 Price Undertakings
Article 9
Imposition and Collection O’Anti-Dumping Duties
Article 10 Retroactivity
Duration and Review of Anti-Dumping
Article 11
Duties and Price Undertakings
Public Notice and Explanation of Determinations
Article 12
Article 13 Judicial Review

Terminate
Negative investigation
Preliminary
Imposition of
Filling of Initiation of determination: Final
Affirmative provisional
Application investigation dumping, injury, determination
measures
and causation
No time Not < 60

limit days Normally 12 months

Re-assessment Affirmative Duties revised

Definitive of dumping
Sunset review
measures margin and
duties Duties
Negative
terminated
Not exceed5 years

Support application
The application shall be considered to have been made "by or on behalf of
the domestic industry" if it is supported by:
(i) Those domestic producers whose collective output constitutes more than 50
per cent of the total production of the like product produced by that portion of
the domestic industry expressing either support for or opposition to the
application.
(ii) No investigation when domestic producers expressly supporting the
application account for less than 25 per cent of total production of the like
product produced by the domestic industry.
( Article 5.4 of the ADA)

Group Description Output
A Producers submitting the application 30
B Producers expressing support for the application but not involved in 30
submitting it
C Producers expressing opposition to the application 50
D 60
Producers not expressing an opinion about the application
TOTAL 170
A+B Domestic producers supporting the application
A+B + C Domestic producers who have expressed an opinion about the
application, either in favor or against
A+ B + C+ D
All domestic producers
Test 1: 50% Support from Producers Expressing an Opinion
A and B are the domestic producers supporting the application. A, B and C are producers
expressing an opinion on the application. Therefore (A + B) must be more than 50% of (A + B +
C) for the first prong of the Article 5.4 test to be met, as it is in the example above:
(A + B)/ (A + B + C) = 60/110 = 54.54%
Test 2: Express Support Must Constitute 25% of the Total Production of the Domestic
Industry
(A + B) represents the production of the segment domestic industry that has expressed support. (A
+ B + C + D) represents the entire domestic output. Because 60 is greater than 25% of 170, the
second prong of the Art 5.4 test is met:
(A + B)/ (A + B + C + D) = 60/170 = 35.29%

Application of Antidumping measures:
- Antidumping measures: custom duties (excess bound tariff)
- Antidumping duties cannot exceed the margin of dumping
- Sunset clause: An antidumping measures must be terminated on a date not
later than 5 years from its imposition, or from the date of the most recent
expiry ("sunset") review or, if it has covered both dumping and injury, the
most recent changed circumstances review. Some Members, however, apply
measures for shorter periods of time.

4.2.4. APPLICABLE RULES ON
DEVELOPING COUNTRY MEMBERS
The volume of dumped imports shall normally be regarded as
negligible if the volume of dumped imports from a particular
country is found to account for less than 3 per cent of imports
of the like product in the importing Member, unless countries
which individually account for less than 3 per cent of the imports
of the like product in the importing Member collectively account
for more than 7 per cent of imports of the like product in the
importing Member.

4.3. COUNTERVAILING
4.3.1. The concept of subsidy
4.3.2. Categories of subsidy
4.3.3. Conditions for countervailing measures
4.3.4. Procedures for the application of countervailing measures
4.3.5. Applicable rules on developing country members

4.3.1. THE CONCEPT OF SUBSIDY
Definition
Subsidy shall be deemed to exist if a government or
any public body makes "financial contribution” of
certain specified kinds that "confers a benefit.”
(Article 1.1 of the ASCM)

Financial contribution:
- Direct transfers of funds such as grants, loans, and equity infusions
as well as potential transfers of funds or liabilities such as loan
guarantees;
- Revenue due that is forgone or not collected, for example through
fiscal incentives such as tax credits;
- The provision of goods or services (other than general infrastructure)
or the purchase of goods;
- And any form of income or price support in the sense of Article XVI
of GATT 1994.
(Article 1 of the ASCM)

By Government or any public body
Financial contribution to be a subsidy:
− By/or with the entrustment or direct of a Government or any public body
− By a private body if the contribution is made pursuant to the Government’s
instructions
Case study:
A NGO gives money to farmer to Vinamilk, with the request and
help them export vegetable from financial support from the
Vietnam to the USA Agricultural Ministry, gives money to
farmer to help them export vegetable
from Vietnam to the USA

Confer a benefit
- ASCM: no comprehensive guideline on benefit
=> The existence of a benefit is to be determined by comparison
with the market – place
Benefit that not relate to subsidy:
Benefit to the recipient and not with the “cost to government”
(Article 1 of the ASCM)

Questions:
- Government make a loan for a producer in the agricultural
sector with the purpose of improving production process with the
normal interest rate?
- Government allows a producers not follow the environmental
laws because of it is a start up company.

Exception of Financial contribution
(a) Government provision of equity capital shall not be considered as
conferring a benefit, unless the investment decision can be regarded
as inconsistent with the usual investment practice (including for the
provision of risk capital) of private investors in the territory of that
Member;
(b) A loan by a government shall not be considered as conferring a
benefit, unless there is a difference between the amount that the
firm receiving the loan pays on the government loan and the amount
the firm would pay on a comparable commercial loan which the
firm could actually obtain on the market. In this case the benefit
shall be the difference between these two amounts;

Exception of Financial contribution
(C) A loan guarantee by a government shall not be considered as conferring a benefit,
unless there is a difference between the amount that the firm receiving the guarantee
pays on a loan guaranteed by the government and the amount that the firm would pay
on a comparable commercial loan absent the government guarantee. In this case the
benefit shall be the difference between these two amounts adjusted for any
differences in fees;
(D) The provision of goods or services or purchase of goods by a government shall
not be considered as conferring a benefit unless the provision is made for less than
adequate remuneration, or the purchase is made for more than adequate remuneration.
The adequacy of remuneration shall be determined in relation to prevailing market
conditions for the good or service in question in the country of provision or purchase
(including price, quality, availability, marketability, transportation and other
conditions of purchase or sale).

4.3.2. CATEGORIES OF SUBSIDY
There are two ways to classify the subsidy
Specificity Color box policy
Enterprise-specificity Red box policy
Industry-specificity Green box policy
Regional specificity Yellow box policy
Prohibited subsidies

Specificity
Enterprise-specificity: A government targets a particular
company or companies for subsidization.
Industry-specificity: A government targets a particular sector
or sectors for subsidization.
Regional specificity: A government targets producers in
specified parts of its territory for subsidization.
Prohibited subsidies. A government targets export goods or
goods using domestic inputs for subsidization

De jure Specificity Considerations
- Use of a subsidy program by a limited number of certain
enterprises;
- Predominant use by certain enterprises;
- The granting of disproportionately large amounts of subsidy to
certain enterprises;
- And the manner in which discretion has been exercised by the
granting authority in the decision to grant a subsidy.

Red box policy (Red – light subsidy)
- Prohibited subsidies
- Export subsidies: subsidies contingent, de jure or de facto,
whether solely or as one of several other conditions, upon
export performance.
- Import substitution subsidies: subsidies contingent, de jure
or de facto, whether solely or as one of several other conditions,
upon the use of domestic over imported goods.

Green box policy (Unprohibited subsidies)
- Unspecified subsidies:
- Subsidies for:
+ Research process of enterprises or research instutuation
+ Remoted, poor area
+ To enterprises to adjust production conditions in order to
match the new business environment

Yellow box policy (Actionable subsidies)
- Actionable subsidies are not prohibited.
- Actionable subject to challenge, through
multilateral dispute settlement or countervailing
actions, in the event that they cause adverse
effects to the interest of another Member.

Adverse effects
Nullification or
Injury Serious prejudice Impairment of
benefits

Injury:
- Subsidized imports cause injury to a domestic industry
- Challenged both at the unilateral level through countervailing
actions or at the multilateral level through the WTO’s dispute
settlement mechanism
Material injury Like products

Serious prejudice
- Displacement or impedance of the complaining Member’s exports,
either in the market of the subsidizing Member or in a third country
market
- Or significant price undercutting, price suppression or depression or
lost sales of the complaining Member's product in a given market
- Or an increase in the subsidizing Member's World market share in a
subsidized primary product or commodity
 Relate to harm to a Member's interests in its export markets
 The subsidy can be challenged only through the multilateral track
(WTO’s dispute settlement mechanism)

Nullification or Impairment of benefits
The improved access to a market that is presumed to flow from a
bound tariff reduction is undercut by subsidization in that
market
(GATT 1994)
Link to the Tariff negotiation?

4.3.3. CONDITIONS FOR
COUNTERVAILING MEASURES
Causal
link
Subsidize between
Injury
d imports subsidized
imports
and injury

4.3.3. CONDITIONS FOR
Exercise: Calculate the Injury margin (Using under cutting method)
Domestic producer X Foreign producer Y Foreign producer Y
Price 250 230 200

Expected profit (%)
Target price
Injury margin
𝐷𝑜𝑚𝑒𝑠𝑡𝑖𝑐 𝑝𝑟𝑖𝑐𝑒 −𝐹𝑜𝑟𝑒𝑖𝑔𝑛 𝑝𝑟𝑖𝑐𝑒

Formula: x 100%
𝐹𝑜𝑟𝑒𝑖𝑔𝑛 𝑝𝑟𝑖𝑐𝑒

4.3.4. PROCEDURES FOR THE APPLICATION
OF COUNTERVAILING MEASURES
Important Procedural Articles

Article 11 (Initiation and Subsequent Investigation
Article 12 Evidence and Important Due Process Rights
Article 13 Consultations
Article 17 Provisional Measures
Article 18 Undertakings
Article 19 Couintervaĩíỉng Duties
Article 20 Retroactivity
Duration and Review of Countervailing
Article 21
Duties and Undertakings
Article 22 Public Notices and Explanations
Article 23 Judicial Review

4.3.4. PROCEDURES FOR THE APPLICATION
OF COUNTERVAILING MEASURES
Support application
The application shall be considered to have been made "by or on behalf
of the domestic industry" if it is supported by:
(i) Those domestic producers whose collective output constitutes more
than 50 per cent of the total production of the like product produced by
that portion of the domestic industry expressing either support for or
opposition to the application.
(ii) No investigation when domestic producers expressly supporting the
application account for less than 25 per cent of total production of the
like product produced by the domestic industry.

4.3.4. PROCEDURES FOR THE APPLICATION OF
Application of Countervailing measures:
-Countervailing measures: custom duties (excess bound tariff)
-Countervailing duties: such countervailing duty shall be levied, in the appropriate amounts
in each case, on a non-discriminatory basis on imports of such product from all sources
found to be subsidized and causing injury, except as to imports from those sources which
have renounced any subsidies in question or from which undertakings under the terms of this
Agreement have been accepted. Any exporter whose exports are subject to a definitive
countervailing duty but who was not actually investigated for reasons other than a refusal to
cooperate, shall be entitled to an expedited review in order that the investigating authorities
promptly establish an individual countervailing duty rate for that exporter
-Duration of application: A countervailing duty shall remain in force only as long as and to
the extent necessary to counteract subsidization which is causing injury (Not exceed 5
years)

4.3.5. APPLICABLE RULES ON
DEVELOPING COUNTRY MEMBERS
(a) the overall level of subsidies granted upon the product in
question does not exceed 2 per cent of its value calculated on a
per unit basis; or
(b) the volume of the subsidized imports represents less than 4
per cent of the total imports of the like product in the importing
Member, unless imports from developing country Members
whose individual shares of total imports represent less than 4 per
cent collectively account for more than 9 per cent of the total
imports of the like product in the importing Member.

4.4. SAFEGUARD
4.4.1. Safeguard concept
4.4.2. Procedural requirements
4.4.3. The application of safeguard measures
4.4.4. Special treatment for developing members

4.4.1. SAFEGUARD CONCEPT
Definition:
Safeguard is the action of a Member of the WTO to restrict
imports of a product temporarily when that such product is
being imported into its territory in such increased quantities,
absolute or relative to domestic production, and under such
conditions as to cause or threaten to cause serious injury to
the domestic industry that produces like or directly competitive
products
=> Safeguard measures shall be applied to a product being
imported irrespective of its source

Increased quantities:
-Recent, sudden, sharp and significant enough, both quantitatively
and qualitatively
-Investigating authorities will normally make findings on both
absolute and relative imports: compare the first and last year of
investigation
-Imports from certain Members have increased in disproportionate
percentage in relation to the total increase of imports of the
product concerned in the representative period

Serious injury and Threat of serious injury:
- A significant overall impairment in the position of a domestic
industry;
- Threat of serious injury: serious injury that is clearly
imminent, based on facts and not merely on allegation,
conjecture or remote possibility;
- Evaluate all relevant factors of an objective and quantifiable
nature having a bearing on the situation of that industry

Domestic industry:
Compare with the antidumping and countervailing?

Domestic industry:
Shall be understood to mean the producers as a whole of the
like or directly competitive products, operating within the
territory of a member, or those whose collective output of the
like or directly competitive products constitutes a major
proportion of the total domestic production of those
products.
(Article 4.1 of SG)

4.4.2. PROCEDURAL REQUIREMENTS
Causal
link
Serious
Increased between
injury or
imports increased
threat
imports
and injury

4.4.3. THE APPLICATION OF SAFEGUARD
MEASURES
Application of the safeguard measures:
- Apply if the causal link is demonstrated. Cannot apply the
safeguard measures for any different reasons.
- Safeguard measures:
Tariffs Quantitative restriction
Increase tariff Impose Quotas, Tariff quotas: the level must not
above bound tariff below the actual import level of the most recent
three representative years

4.4.3. THE APPLICATION OF SAFEGUARD
MEASURES
Application of the safeguard measures:
Duration of application: Not exceed 4 years
Duration of investigation and application: Not exceed 8 years,
and not exceed 10 years for developing countries
NOTE: The application is consistent with the MFN.
Explain the relationship between the Safeguard measures
and the MFN?

4.4.4. SPECIAL TREATMENT FOR
DEVELOPING MEMBERS
Safeguard measures shall not be applied against a product
originating in a developing country Member as long as its share
of imports of the product concerned in the importing Member
does not exceed 3 per cent, provided that developing country
Members with less than 3 per cent import share collectively
account for not more than 9 per cent of total imports of the
product concerned

SUMMARY
Antidumping Countervailing Safeguard
Objective
Nature of measure
Substantive requirements
Product coverage
Basis of the measure
Recipient of the measure
Form of the measures
Duration
Compensation to affected
member
Special and differential
treatment

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TOPIC 4

FACULTY OF INTERNATIONAL BUSINESS 1

FACULTY OF INTERNATIONAL BUSINESS 2

FACULTY OF INTERNATIONAL BUSINESS 3

FACULTY OF INTERNATIONAL BUSINESS 4

FACULTY OF INTERNATIONAL BUSINESS 5

Trade remedies Goals

FACULTY OF INTERNATIONAL BUSINESS 6

FACULTY OF INTERNATIONAL BUSINESS 7

FACULTY OF INTERNATIONAL BUSINESS 8

FACULTY OF INTERNATIONAL BUSINESS 9

FACULTY OF INTERNATIONAL BUSINESS 10

FACULTY OF INTERNATIONAL BUSINESS 11

Exported price < Normal value

The important terms:

FACULTY OF INTERNATIONAL BUSINESS 12

FACULTY OF INTERNATIONAL BUSINESS 13

FACULTY OF INTERNATIONAL BUSINESS 14

FACULTY OF INTERNATIONAL BUSINESS 15

FACULTY OF INTERNATIONAL BUSINESS 16

FACULTY OF INTERNATIONAL BUSINESS 17

FACULTY OF INTERNATIONAL BUSINESS 18

FACULTY OF INTERNATIONAL BUSINESS 19

17/2 1 150 150 Question:

FACULTY OF INTERNATIONAL BUSINESS 20

FACULTY OF INTERNATIONAL BUSINESS 21

FACULTY OF INTERNATIONAL BUSINESS 22

Material injury Nominal damages

Material injury is an injury resulting in damages of a substantial

FACULTY OF INTERNATIONAL BUSINESS 25

Differentiate these effects?

FACULTY OF INTERNATIONAL BUSINESS 26

FACULTY OF INTERNATIONAL BUSINESS 27

Dumped imports Material injury

FACULTY OF INTERNATIONAL BUSINESS 28

Article 13 Judicial Review

No time Not < 60

FACULTY OF INTERNATIONAL BUSINESS 30

Re-assessment Affirmative Duties revised

Not exceed5 years

FACULTY OF INTERNATIONAL BUSINESS 31

FACULTY OF INTERNATIONAL BUSINESS 32

FACULTY OF INTERNATIONAL BUSINESS 34

FACULTY OF INTERNATIONAL BUSINESS 35

FACULTY OF INTERNATIONAL BUSINESS 36

FACULTY OF INTERNATIONAL BUSINESS 37

FACULTY OF INTERNATIONAL BUSINESS 38

FACULTY OF INTERNATIONAL BUSINESS 39

FACULTY OF INTERNATIONAL BUSINESS 40

FACULTY OF INTERNATIONAL BUSINESS 41

FACULTY OF INTERNATIONAL BUSINESS 42

FACULTY OF INTERNATIONAL BUSINESS 43

FACULTY OF INTERNATIONAL BUSINESS 44

Enterprise-specificity Red box policy

Industry-specificity Green box policy

Regional specificity Yellow box policy

FACULTY OF INTERNATIONAL BUSINESS 45