Procedural Requirements of the South African Anti-Dumping Law and Practice Prior to Imposition of Anti-Dumping Duties: Are They Really WTO-inconsistent?

Publication Date01 May 2020
AuthorOmphemetse S. Sibanda
DOI10.1177/0015732519894150
SubjectArticles
Procedural
Requirements of the
South African Anti-
Dumping Law and
Practice Prior to
Imposition of Anti-
Dumping Duties:
Are They Really
WTO-inconsistent?
Omphemetse S. Sibanda, Sr1
Abstract
Dumping, which is a form of price discrimination or differential pricing of differ-
ent units of the same good sold at different prices in different markets, remains a
continuing problem for many countries. The World Trade Organisation (WTO)
members resort to the imposition of anti-dumping duties or levies to offset the
effects of the dumped products on the domestic industry. This article provides
a critical analysis of procedural issues in the South African anti-dumping law
and practice to determine if it is compatible with the WTO’s Anti-Dumping
Agreement (ADA). It particularly focusses on procedural issues prior to the
imposition of anti-dumping measures by the South African International Trade
Administration Commission. Some authors argue that the South African anti-
dumping law and practice is incompatible with its WTO obligations in areas such
as the calculation of the constructed export price, the determination of material
injury and a causal relationship, the imposition of provisional and definitive anti-
dumping duties and the procedure for review. The conclusion provided in this
article is that the South African law and application of anti-dumping measure is
largely WTO-compliant, particularly on the issues of initiation, investigation and
prosecution of anti-dumping complaints.
Article
1 Faculty of Management & Law, University of Limpopo, Polokwane, South Africa.
Corresponding author:
Omphemetse S. Sibanda, Sr, Research Professor, Faculty of Management & Law, University of
Limpopo, Polokwane 0727, South Africa.
E-mail: Omphemetse.sibanda@ul.ac.za
Foreign Trade Review
55(2) 216–238, 2020
© 2020 Indian Institute of
Foreign Trade
Reprints and permissions:
in.sagepub.com/journals-permissions-india
DOI: 10.1177/0015732519894150
journals.sagepub.com/home/ftr
Sibanda 217
JEL Codes: F10, F13, F14, F19, K33, K41
Keywords
ADA, anti-dumping measures, international trade administration commission,
international trade administration act, World Trade Organisation, procedural
requirements
Introduction
Product dumping according to Article VI of the 1994 General Agreement on
Tariffs and Trade (hereinafter GATT) of the World Trade Organisation (hereinaf-
ter WTO) occurs when ‘products of one country are introduced into the commerce
of another country at less than the normal value’. Dumping, therefore, is a form of
price discrimination or differential pricing of different units of the same good sold
at different prices in different markets (Kerr, 2006, pp. 11–31). GATT Article VI
must be read with Article 2 of the Agreement on Implementation of Article VI of
the General Agreement on Tariffs and Trade 1994 (hereinafter ADA), the latter
details when product pricing is considered dumping. WTO members resort to the
imposition of anti-dumping duties or levies to offset the effects of the dumped
products on the domestic industry, though it is not mandatory according to the
WTO rules to do so ‘against all sources’ (Rai, 2017, p. 238, 240 & 245).
It contestable if contingent measures such as anti-dumping (AD) duties generate
the required threat and inhibiting effect (Bagchi, Bhattacharyya, & Narayanan,
2014, pp. 33–43). Bagchi, Bhattacharyya, and Narayanan (2014, p. 31) pointed
out that ‘[s]ometimes, nations use AD initiations as a threat to counter attack
low priced exports or to protect their own sick industries’. But it must be noted
that the authors are of the view that AD duties have a win-win effect for both
foreign and domestic firms due to its chilling and restricting effects on dumping
(Bagchi et al., 2014). Bhat (2004) is of the view that AD measures have now
acquired the dubious fame of the effect of denying or nullifying market access
achieved through successive WTO Trade Rounds. Clearly, anti-dumping inves-
tigations and sanctions may be abused in some countries and not implemented
consistent to the WTO rules (Khanderia, 2017a, p. 30). It is apposite to note that
the ADA and the current edifice of the WTO dumping regime are products of a
series of trade negotiations and are still considered to have some systemic defi-
ciencies with implications on the developing countries (Gupta, 2001).
South Africa, like the USA, EU, Australia, Canada and New Zealand, is report-
edly one of the main users of AD measures (Bhat, 2003, p. 65). South Africa is
regarded as ‘one of the most prolific users of anti-dumping, where the number of
investigations initiated by it has far outweighed the number of imports’ (Khanderia,
2017a, p. 32). This is understandable given the fact that the South African anti-
dumping law is one of the oldest in the world (Brink, 2006) and the fourth anti-
dumping legislation after that of Canada (Stanbrook & Bentely, 1996), New
Zealand (The Agricultural Implement Manufacturer, Importation and Sale Act of
1905) and Australia (The Australian Industries Preservation Act of 1906).

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