Price Comparisons under the South African Anti-dumping Laws
| Published date | 01 February 2017 |
| Date | 01 February 2017 |
| Author | Saloni Khanderia |
| DOI | 10.1177/0015732516650823 |
| Subject Matter | Articles |
Price Comparisons
under the South African
Anti-dumping Laws:
The Faux Pas Continues?
Saloni Khanderia1
Abstract
South Africa has been one of the most prolific users of anti-dumping, where
the number of investigations initiated by it has far outweighed the number
of imports. The methods adopted by South African anti-dumping authorities
have been quite polemic given the consistent faux pas in determining if the
prices of the imported product and the domestic product are even comparable.
Moreover, in the real world, it rarely happens that the products being sold
in the domestic market of the exporting country and the ones being sold
to the importing country are physically identical, and sold under the same
conditions in both these markets. Accordingly, it becomes fundamental for
South Africa’s anti-dumping authority—the International Trade Administrative
Commission—to ensure that these prices, namely the normal value and the
export price, are comparable, before adjudging whether or not the domestic
industry has suffered injury as a result of dumping. Hence, both these prices
would need certain adjustments to be made, in compliance with the WTO’s
Anti-Dumping Agreement, to ascertain that they have occurred at the same
level of trade. Additionally, because anti-dumping duties, either in the form of
provisional or definitive duties, can only be imposed by investigating authorities
after they have determined that the dumped imports have caused injury to
the domestic market, price comparisons become increasingly vital and in turn
influence the analysis of the effect of prices on the domestic like product. This
article thus analyzes price comparisons under South Africa’s most recent anti-
dumping investigations, to determine whether these are even consistent with
the Anti-Dumping Agreement requirements on the same.
JEL: F10, F13, F14
Foreign Trade Review
52(1) 30–47
©2017 Indian Institute of
Foreign Trade
SAGE Publications
sagepub.in/home.nav
DOI: 10.1177/0015732516650823
http://ftr.sagepub.com
Corresponding author:
Saloni Khanderia, 3A Maimuna Avenue, 8 A Salisbury Park, Pune 411037, Maharastra, India.
E-mail: saloniky@uj.ac.za
1 Post-doctoral Research Fellow, International Commercial Law, University of Johannesburg,
Johannesburg, South Africa.
Article
Khanderia 31
Keywords
World Trade Organization, Anti-Dumping Agreement, dumping causation, price
comparisons
Introduction
The manners in which anti-dumping duties are imposed remain a contentious
issue, given that governments, to secure protection against imports, often mis-
use them. For this reason, the World Trade Organization’s (WTO) Anti-Dumping
Agreement (ADA)1 stipulates that anti-dumping investigations must go
beyond the mere determination of whether the price charged in the domestic
market of the exporting country (referred to as the normal value) is more than
the price of the like product when it is sold to the importing country (referred to
as the export price).
In the real world, it rarely happens that the products being sold in the domestic
market of the exporting country and the ones being sold to the importing country
are physically identical, and sold under the same conditions in both these markets
(Murray, 1991). Hence, both these prices would need certain adjustments to be
made, in order to ascertain that they have occurred at the same level of trade.
Additionally, because anti-dumping duties, either in the form of provisional or
definitive duties, can only be imposed by investigating authorities after they have
determined that the dumped imports have caused injury to the domestic market,
price comparisons become increasingly vital and in turn influence the analysis of
price effects in terms of the relevant provisions of the ADA. Consequently, price
comparisons and the adjustments allowed in anti-dumping investigations have a
significant impact on the outcome of the respective investigating authority’s deci-
sion (Bossche, 2013).
In the South African context, the country has been one of the most prolific
users of anti-dumping, where the number of investigations initiated by it has far
outweighed the number of imports (Stevenson, 1999). The question thus arises as
to whether South Africa is being excessively protectionist towards its domestic
industry (Brink & Kobayashi, 2007) and whether these investigations are even
carried out legitimately. Anti-dumping investigations in South Africa are con-
ducted by virtue of the International Trade Administrative Act 2002 (ITAA), the
Anti-Dumping Regulations of 2003 (ADR),2,3 and Sections 55 and 55A of the
Customs and Excise Act 91 of 1964. The ITAA, like the ADA, duly recognizes
that anti-dumping investigations be conducted on the basis of a fair comparison
between the normal value and the export price.4 However, the methods adopted by
South African anti-dumping authorities have been quite polemic given the con-
sistent faux pas in determining whether the prices of the imported product and the
domestic product are even comparable.
This article thus analyzes price comparisons under South Africa’s most recent
anti-dumping investigations, to determine whether these are even consistent with
the ADA requirements on the same. Accordingly, the second part of this article
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