Artículos29 diciembre de 2020

Anti-dumping in the Andean Community: rethinking regionalism in the Americas in unsettling times

Abstract:

The rise of China as an important commercial partner of the Andean Community countries entailed several challenges for the regional integration project. On the one hand, the increase of Chinese goods flowing into the region caught the attention of national authorities, which increased the initiation of anti-dumping investigations against Chinese products. On the other hand, the communitarian regime has been relatively unused insofar as it is unfit to tackle dumping from third parties, due to structural and substantive problems. This article addresses that the current anxieties arising from China’s engagement in unfair trading practices in the Andean countries, cannot be adequately addressed with the existing anti-dumping rules. Therefore the existing regime should be amended in order to protect local industries from injurious dumping coming from third parties. The best way forward is to reform the existing regime by enhancing the role of the national authorities and grant them full exclusivity in the implementation and administration of anti-dumping measures.

Introduction

Recent political events have raised serious concerns against international trade and the future of the world economy. Many loud voices are expressing resentment and frustration against the entire trade system for what they consider to be an unlevelled playing field. Even though such resentment is validly justified, trade is not the root of all problems, and certainly, it cannot solve them on its own.[1] On the contrary, trade is only one of the many factors underlying the anti-globalization movement. However, the latter has unfortunately gained much traction in the latest years, thereby empowering protectionist policies designed to address these unfair trade practices unilaterally.
The responses from several developed and developing countries seem to be an old tool: a more stringent application of trade remedies. These investigations are launched and, in relevant cases, anti-dumping (AD), safeguards (SG) and countervailing measures (CM) are introduced, with the rationale of preventing what is alleged to be unfair competition from harming domestic industries. This trend has been observed in the latest amendments to the trade remedy investigations introduced by the European Union (EU)[2] and the United States (US).[3] Moreover, some other important players are not holding back in their responses, with a rising number of trade remedies initiations in the latest years.[4]
Although the application of trade remedies is permitted and recognized in the World Trade Organization (WTO), deviations and distortions in conducting the investigations and implementing trade remedies can lead to abuse of these instruments, and they risk becoming a protectionist weapon in order to counteract competitiveness.[5]
The current paper addresses that the Andean Community (AC) should amend its anti-dumping regime. To begin with Decision 283 and Decision 456, the available regional instruments, seem unfit to tackle the current anxieties surging from the rising flows of Chinese merchandises into the region and the expiring Non-Market Economy (NME) status of China before the WTO.[6] In addition, the multilateral track has proven unable to address these pressing matters and has been caught in the crossfire, facing loud opposition and enormous criticism in every adjudicated dispute regarding trade remedies.
Considering the above, the response of the AC should be the amendment of the current instruments and the adoption of new trade remedy rules, taking into account their specific and strategic concerns.

I)CHINA’S RISING POWER AND ITS MARKET ECONOMY STATUS IN THE ANDEAN COMMUNITY

China’s fast economic growth has brought the existence of a new player in the world arena. Even though historically, Latin America has held strong ties with the US, the region is in the process of opening towards new commercial partners. For example, in 2000, China’s volume of trade with the region amounted to $12 billion; by 2013, it had reached over $260 billion.[7]
During the past decade, Chinese policy banks, the financial arm of the Chinese government to finance infrastructure and trade, have provided more than $140 billion in loan commitments to Latin America. This new relationship is increasingly intense and vibrant, evidencing the extent of the growing influence that China is having within the region.[8]
The current section reviews some of the problems raised by the increasing role of China in the world economy and the questions related to its status as a market economy for the AC countries. The Asian superpower has enlarged its commercial ties with the region in a surprisingly fast manner, and each country has coped with this new player in different ways. The objective of this section is to demonstrate how China’s status has been on the block’s agenda, but AC countries have failed to consolidate a regional position in the treatment of Chinese imports. In other words, they have all spot a threat, but they failed or lacked the political will to act together.
Considering the above, this section will shortly review the NME issue in world trade law. Subsequently, it will describe the process of China’s accession to the WTO and its treatment as a market economy by other Latin American countries. Lastly, there will be an assessment of the problems arising from trading with China and how such problems are likely to exacerbate in case the existing trade patterns continue.

A.The NME issue in world trade law

Anti-dumping law was considered to play the role of a “modem” to provide the “interface” between competing economies.[9] During the 1970’s, western countries envisaged dumping regulations as a means to trade with communists countries and still keep a safety valve in order to address adverse trade effects that could arise in the importing markets.[10]
Usually, a country is considered a NME when its economy does not operate under free-market conditions. Considering the government interventions, the costs or the pricing structures are affected, and the sales in that country do not reflect the fair value of the merchandise.
Article 2.1 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (ADA) sets out that a product is to be considered dumped 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. The article indirectly defines normal value as the comparable price in the ordinary course of trade for the like product when destined for consumption in the exporting country. Therefore, the determination of the costs of a given product shall be based on the costs of production and inputs in the exporting country.
Despite the above, Article 2.2 provides that the normal value may be based on third-country exports or constructed normal value in three situations: i) no domestic sales of the like product in the ordinary course of trade; ii) insufficient (less than 5%) domestic sales of the like product, or iii) particular market situation in the domestic market.
In addition, Article 2.7 ADA provides that dumping determination is made without prejudice to the “second Supplementary Provision to paragraph 1 of Article VI in Annex I to GATT 1994”.[11] The Supplementary Provision has been used by various administering authorities to ignore prices and costs in NMEs, considering that they are unreliable insofar as they are not determined by the free market but by the State. Therefore, investigating authorities are entitled to have recourse to prices or costs in a market economy as the basis for constructing the normal value in cases involving importations from NMEs.[12]
The surrogate or analogue country pricing also entails some collateral effects. On the one hand, reliance on this methodology increases the likelihood that the administering authorities will find the occurrence of dumping. The import price is set low by the non-market practice of the exporting country, while the normal value to which the import price is compared to will be higher, insofar as it is set by the market forces in the surrogate country. Thus, it is likely that this methodology leads to higher dumping margins.[13]
It has been argued that the assumptions for the application of NME under the ADA are hard to apply since it is not common to find countries that have a complete or substantially complete monopoly of their trade and where all domestic prices are fixed by the State; in practice, this means that this provision can be seldom applied, even in the case of highly intervened economies.[14] Moreover, many WTO Members acknowledge that, even in NMEs, there can be ‘bubbles of capitalism’ whereby prices and costs might not be distorted in a given sector.[15]
Lastly, the AB in the EC – Fasterners case interpreted that, in order to rely on the NME exception established in the Ad note, both conditions must be fulfilled:
“The second Ad Note to Article VI:1 refers to a ‘country which has a complete or substantially complete monopoly of its trade’ and ‘where all domestic prices are fixed by the State’. This appears to describe a certain type of NME, where the State monopolizes trade and sets all domestic prices. The second Ad Note to Article VI:1 would thus not on its face be applicable to lesser forms of NMEs that do not fulfill both conditions, that is, the complete or substantially complete monopoly of trade and the fixing of all prices by the State.”[16]
In light of the above, the ADA has restricted the possibility to undertake AD investigations using different criteria to the reconstructed normal value under the circumstances specified therein. Moreover, the NME carve-out has stringent requirements for its application, which limit the possibilities of importing countries from investigating dumped imports from highly intervened economies.

B.China’s Accession to the World Trade Organization

Before it acceded to the WTO in 2001, China was regarded as a communist country and especially during the 70’s it maintained a centrally planned economy strictly controlled by the government.[17] Considering the large influence that the government had in the market, it was hard to envisage common rules for China’s inclusion in the world economy. Accordingly, the accession of China took over fourteen years and a lot of the arduous discussions, revolved around China’s transition into a market economy; more specifically, about cost and price comparability in anti-dumping and countervailing duty cases.[18]
During the accession process, many of the historical policies maintained by China were scrutinized and amended insofar as they were inconsistent with the WTO principles. Thus, in acceding to the WTO, China agreed that if there was no clear demonstration of market economy conditions in a given sector, importing countries could use prices or costs from a comparable market economy when undertaking an anti-dumping investigation.[19] In other words, WTO Members could treat China as an NME, and a transition period towards a market economy was agreed.[20]
The transition period was drafted as a sunset clause in China’s Protocol of Accession, which became effective on December 11, 2016.[21] Section 15 allows WTO Members to rely on methodologies not based on Chinese prices or costs when undertaking anti-dumping investigations. On the one hand, pursuant to section 15(a)(i), if Chinese producers “can clearly show market economy conditions prevail” in a given industry, then Chinese prices and costs must be used when calculating dumping margins. On the other hand, section 15(a)(ii) provides that, if Chinese producers cannot clearly show the existence of market economy conditions in a given industry, then WTO Members may rely on the use of an alternative methodology.
Section 15(d) of China’s Protocol of Accession requires the use of Chinese prices and costs if China can establish, under the national laws of the importing country, that market economy conditions are present in the Chinese economy. Lastly, it includes the sunset clause establishing that “[i]n any event, the provisions of subparagraph (a)(ii) shall expire 15 years after the date of accession.”
Considering that the 15 years period expired on December 11, 2016, there are some systemic concerns as to the treatment of Chinese imports and the real consequences of the sunset clause in the use of alternative methodologies for determining anti-dumping margins and duties.[22] Even though some commentators have suggested that that the sunset clause has not fully expired,[23] the AB reasoning in the EC-Fasteners case seems to have shut down the possibility of any alternative interpretation:
“Paragraph 15(d) of China’s Accession Protocol establishes that the provisions of paragraph 15(a) expire 15 years after the date of China’s accession (that is, December 11 2016). It also provides that other WTO Members shall grant before that date the early termination of paragraph 15(a) with respect to China’s entire economy or specific sectors or industries if China demonstrates under the law of the importing WTO Member ‘that it is a market economy’ or that ‘market economy conditions prevail in a particular industry or sector’. Since paragraph 15(d) provides for rules on the termination of paragraph 15(a), its scope of application cannot be wider than that of paragraph 15(a). Both paragraphs concern exclusively the determination of normal value. In other words, paragraph 15(a) contains special rules for the determination of normal value in anti-dumping investigations involving China. Paragraph 15(d) in turn establishes that these special rules will expire in 2016 and sets out certain conditions that may lead to the early termination of these special rules before 2016.”[24]
In light of the above, currently, no WTO Member can rely on paragraph 15 of China’s Accession Protocol as the basis for the use of alternative pricing methodologies. Instead, WTO Members could rely on the second Ad note to effectively continue to use the surrogate country methodology.[25]

C.China and the Andean Community

Considering the increasing relevance of China in the world economy, there was an interest in China and the AC countries to profit from growing common commercial opportunities. This phenomenon occurred not only at the AC level, but all the Latin American region appeared on the Chinese radar as a potentially powerful trading partner. According to data of the World Bank, in the year 2016, China became the first commercial partner of Peru,[26] the first exporter to Bolivia,[27] and the second exporter to the markets of Ecuador[28] and Colombia.[29]

Figure 1: Anti-dumping investigations initiated by Colombia

In addition, in April 2009, the Chinese and Peruvian governments signed the China-Peru Free Trade Agreement in Beijing (China-Peru FTA).[30] The China-Peru FTA sent a positive message for the deepening ties of China into the region and enhanced China’s position in the AC market. Moreover, China has been exploring the possibility to commence negotiations with Colombia and Ecuador, although no significant developments have occurred in that front.[31]
At the regional level, the pattern of AD activity against China in individual Latin American countries since the year 2000 is noteworthy. Manufactured goods are generally targeted by Latin American investigating authorities, while metallurgical products often occupy a second place. In Brazil, Argentina and Mexico, petrochemicals and minerals amount for an important share as well. However, Colombia has targeted mostly textiles during the course of the decade.[32]

In the case of anti-dumping investigations, this work gathered the notifications presented by AC countries before the WTO by virtue of Article 16.4 of the ADA.[33] While Peru and Colombia have been presenting the notifications in a timely manner, Ecuador and Bolivia have not presented any notification since 2012. The data gathered for this research shows that the majority of AC countries are targeting China in their AD investigations. In the case of Colombia and Peru China is, by far, the most investigated country in the AD investigations initiated by national authorities.

Figure 2: Anti-dumping investigations initiated by Peru

Most of the regional AD investigations have focused on steel and aluminium products such as tubes and pipes made from hot-rolled steel coils, as well as apparel and textiles such as cotton fabrics and footwear.[34]
Even though Peru recognizes China as a market economy, several investigations have been initiated against China, and the majority of those have resulted in the imposition of anti-dumping duties. The same pattern is observed in the case of Colombia, where out of 25 investigations initiated against China, 15 have resulted in the imposition of definitive duties, while there are four more ongoing.[35]
What can be concluded from the evidence at hand is that AC countries are anxious about the flow of Chinese imports into their markets and AD investigations have been a useful tool in order to redress some of the damaging effects arising from unfair trading practices. However, most of the investigations have been undertaken at the national level, and the communitarian rules have never been used against Chinese products.[36]
In any event, the large number of investigations against a single country should be interpreted as a red flag. Chinese presence in the region can threaten some of the key industries and pose an even bigger threat for the manufacturing industries, which are a key sector for regional development. Therefore, the correct functioning of communitarian trade remedy rules deserves to be revised.

II)TRADE REMEDIES IN THE ANDEAN COMMUNITY

The AC was originally inspired by the EU that sought to integrate the Andean markets in order to foster communitarian integration and consolidate a block position towards the rest of the world. The block established a common set of rules for the application and administration of trade remedies. However, several carve-outs and the lack of a Common External Tariff (CET), hampered the attempts to reach a deeper level of integration. In that order, the initial idea envisaged by the regional project was never fully accomplished. The question is whether, in light of the current circumstances, the original plan should be pursued further or whether it should be reconsidered thoroughly in light of the new trade dynamics.
Considering the discussion held about the risks and challenges of trading with China, the objective of the following section is to present the functioning of the current regime, its weaknesses and make a case for its reform. As will be demonstrated, under the current State of affairs, the AC is not capable of addressing the injurious dumping problem with the existing set of rules, and thus the trade defence instrument and the competence of the Secretariat in this matter should be amended.

A.Regional integration and institutional setting of the Andean Community

The AC was preceded by the Andean Pact, an instrument of regional integration signed on May 26, 1969, also known as the Cartagena Agreement. Initially, it was integrated by five South American countries (Bolivia, Colombia, Chile, Ecuador, and Peru) with the purpose to improve the life quality of their inhabitants through economic and social cooperation. Afterwards, Venezuela joined in 1973 and Chile retired in 1976.[37]
The main objectives of the Cartagena Agreement were the promotion of balanced and harmonic development in the region through the creation of employment and economic cooperation. The main tool to attain these goals was an inward-looking regionalism, inspired by the Economic Commission for Latin America and the Caribbean (CEPAL), based in the application of high tariffs to goods produced outside the regional block and the substitution of importations through industrialization.[38]
The economic crisis of the 1980s was particularly damaging for the Latin American countries, and it was perceived as a lost decade for the regional integration of the Andean countries. The high level of international debt and the political turmoil undermined the integration process and favoured the application of unilateral measures. In 1987 the Quito Protocol was signed, which allowed more flexibilities in the commercial policy of the Andean countries towards third countries, and it also ended the CET. With the signature of the Quito Protocol, Members recovered a larger autonomy in their commercial policy, which has been granted to the Board of the Andean Pact.
In 1989 this initial integration phase came to an end with the signature of the new strategic design for the orientation of the Andean Pact.[39] The new institutional reform modified the initial objectives and prioritized the integration of the Andean countries with the international market. These changes entailed a new model of “open regionalism” and lead to the signature of the Trujillo Protocol of 1996, creating the Andean Institutional System.
The newly introduced reforms institutionalized the role of Presidential diplomacy, which relied heavily on the political will of each AC President to advance projects and initiatives. Even though this Presidential diplomacy proved to be effective at first, change in political circumstances in local administrations jeopardized the regional project.
As a consequence, the new model failed to take into account the regional differences and the different processes of integration with the rest of the world in general, and with the US in particular. The latter proved to be highly contentious for the Venezuelan government, which decided to withdraw from the block on 2006, while the rest of the Andean countries decided to undertake bilateral negotiations with the US and the EU. Subsequently, the rest of the countries in a conflictive decision voted to put an end to the application of Decision 598, which imposed the uniformity of the commercial policy of the block.[40]

B.Anti-dumping rules in the Andean Community

The Cartagena Agreement is the primary source of the law of the AC and Articles 105 and 106 of the Cartagena Agreement on “Commercial Policy” provide that the Commission has the competence to issue regulations designed to correct or address the commercial practices that might distort competition within the Community, i.e., dumping, safeguards, price manipulations, restrictions on exports, etc. Similarly, the Chapter provides that the Secretariat will have the competence to administer the rules approved by the Commission and it will be in charge of monitoring their application in particular cases that are brought forth by the Members. The latter is not authorized to undertake any corrective measure without the authorization of the Secretariat.
The Commission has approved Decisions concerning the application of AD and CM measures. Such Decisions are directly applicable in all the Andean countries after they have entered into force (usually after their publication in the Official Journal of the Cartagena Agreement) and they prevail over national laws and regulations. The relevant rules for the application of trade remedies are Decisions 283,[41] 456,[42] and 457,[43] which establish the applicable provisions in the initiation of dumping and subsidies investigations. Nonetheless, they have a different scope of application. On the one hand, the intra-communitarian trade is regulated by Decisions 456 and 457, which have partially derogated Decision 283 of 1991. On the other hand, Decision 283 only applies to imports from non-Member countries and provides two different circumstances for its application.
The first case would arise when the dumping or subsidies would occur in a country outside the AC, and it threatens to cause important damage to the national production of an AC Member destined to be exported to another AC Member. The effect of the dumping or subsidies would grant an anti-competitive advantage to the extra-communitarian imports towards intra-communitarian imports of another Andean country.[44]
The second case would arise when the dumping or subsidy occurred in a country outside the AC community, and it threatens to cause important damage to the national production of an AC Member. The difference with the first case is that, in order to be effective, corrective measures should be applied in more than one Andean country.[45] This scenario is closely linked with the definition of “relevant market” insofar as the relevant market should be different from the national market, and it should encompass two or more AC Member markets.

Figure 3: Applicable rules in Anti-Dumping investigations

The third scenario occurs when the dumping takes place in a third country, and the dumped goods are imported into an AC country. National norms will apply in those cases where the intracommunity trade is not affected, and the damage occurs in a local industry of the importing country. The Secretariat is competent to administer the rules approved by the Commission regarding AD and CM measures, and it is also in charge of monitoring their application. It implements its decisions by issuing administrative acts called “Resolutions”. In the case of AD and CM measures, the investigations are regulated in accordance with the provisions of each Decision and the procedural norms that are not contained therein, are filled with the rules on Regulations of Administrative Procedures of the Secretariat.[46]

C.The shortcomings faced by the Anti-Dumping rules in the Andean Community

As evidenced above, the AD mechanism has not been extensively used by the AC Members. This limited use of the mechanism underlies deeper problems, which relate to two different factors: one concerning structural problems faced by the regional block, while the second one has to do with the stalled negotiation process to reform the existing rules.

i)Structural problems

The structural problems can be divided into two. The first one has to do with the lack of a CET which undermined the integration process and diminished the negotiating position of the block towards third parties. The second one has to do with the weakening of the institutional setting, attributable to political circumstances and the lack of institutional leadership.

a)The lack of a Common External Tariff

First, in 1994 the AC countries negotiated the rules for the implementation of a CET, which concluded with Decision 370/1994 and entered into force in February 1995. The project foresaw the creation of a functional Andean Customs Union with a four-level structure (5%, 10%, 15%, and 20%)[47] and an average of 13,6% operating for Colombia, Ecuador and Venezuela.[48] However, Decision 370/1994 also established a special treatment for some countries, especially Bolivia,[49] while Peru refused to sign the agreement and instead decided to apply a National Tariff Regime.
In the Agricultural Sector, the AC applies a different instrument called the “Andean Price Band System” applicable to certain products that are unstable in the international market.[50] This mechanism provides for an increase of the ad valorem tariff when the international price is below the reference price, and it will go down to zero when the international price is above the ceiling.[51]
Subsequently, October 14, 2002, the AC countries officially signed Decision 535/2002, which established the general rules for the application of the CET previously agreed and covered 62% of the tariff levels. For the rest of the products, the applicable rules are still Decision 370/1994 and the Peruvian Tariff Regime.
The special regimes granted to Bolivia and Ecuador progressively attending their special development circumstances, created a sort of free-riding incentives, insofar as other countries had to carry the burden of consolidating the regional process.[52] Therefore, since the beginning, there was a carve-out for the harmonization of economic, industrial, and commercial policies. Moreover, Peru refused to participate in the consolidation of the common market and resorted to unilateral commitments which undermine the incentives for deeper integration.
With all its imperfections and carve-outs, the CET was an important step in the consolidation of the regional project, and it was the continuation of the commercial reform process that started in the 1980s.[53] Nonetheless, the lack of uniformity in its application, and the inclusion of several carve-outs made the rules very costly to administer and subject to free-riding incentives which hampered further attempts to consolidate the regional integration.

b)The weakening of the regional block

When Venezuela left the regional block in 2006, the intra-communitarian trade suffered a big loss, insofar as most of the AC countries maintained strong commercial ties with the Venezuelan government. According to the World Bank data, in the year 2007, Venezuela was the second export partner of Colombia and its fifth import partner.[54] It was also the fifth export partner of Ecuador and its third import partner,[55] and the fifth export partner of Bolivia.[56] The decline of the Venezuelan economy put the regional trade under a lot of stress, and lead to a progressive diminishment of the commercial ties with the neighbouring countries.
Oil revenues perceived by Venezuela translated in deep pockets that were used to increase the regime’s regional influence. The governments of Ecuador and Bolivia were politically aligned with the Chavez government, and this created a fracture among the other AC countries. Political differences were escalating until Venezuela finally left the block. However, the communitarian setting ended up highly damaged in the process.[57]
Lastly, after the signature of the Trujillo Protocol of 1996, each country became free to pursue their commercial policy, and several governments started negotiating their trade agreements with different commercial partners. Since 2008, Peru has negotiated more than 14 Free Trade Agreements (FTAs)[58], similar to Colombia, which has negotiated more than 13 FTAs during the same period.[59] Nonetheless, Ecuador has maintained a more conservative approach, since it only has negotiated an FTA with the EU while subscribing “Partial Economic Agreements” based on the ALADI framework with a handful of countries.[60]
This negotiating spree and the prevalence of the national commercial policy over the regional interests pose new challenges for the AC, insofar as the organization has lost leadership and relevance before new regional integration projects.

ii)The failed negotiations for reforming the AD rules

On 1998 the AC decided to open up the discussion for the amendment of Decision 283, and the Secretariat prepared a report about the “Basis for revision of Decision 283: Rules to prevent and correct the competition distortions caused by dumping or subsidies on the imports of goods coming from Non-Members of the Andean Community”.[61]
Several reasons lead to the revision of the rules; some had to do with the fact that there was no apparent reason to maintain the rules on anti-dumping and the rules on subsidies in the same instrument.[62] The report also considered that, with the surge of the free trade Andean area and the idea to consolidate a common market, Andean Countries should revise whether it was justified to maintain the possibility to impose anti-dumping duties in the intra-communitarian trade.[63]
Decision 283 was questioned by the European Communities before the WTO Committee on Anti-Dumping Practices.[64] In August 2002, the AC Secretariat initiated an anti-dumping investigation on imports of sorbitol originating in France, following a complaint lodged by Indumaiz del Ecuador SA, the sole sorbitol producer in the AC. The case concerned French sales to customers located in Colombia and Venezuela. On May 15 2003, the Secretariat of the AC imposed a definitive anti-dumping duty of US$ 70 per tonne of imported sorbitol.[65]
Following the impasse at the WTO, AC Members had bigger incentives for the conclusion of a new set of AD rules against dumped products from third parties. However, three issues proved to be highly contentious throughout the negotiations:

Who would be entitled to present a request for the initiation of an AD investigation before the AC Secretariat, whether it should be the Member country or the national industry?
In addition to the multilateral rules, include a percentage of participation of the affected national industry of the exporting Member in the market of the importing Member.
The market economy status of the third party under investigation.[66]

The market economy status of the third party under investigation became a problematic issue between Colombia and Peru. Colombia considered that the investigations conducted by the Secretariat should take into account the status granted by the national law of the affected exporting Member.[67] On the other hand, Peru and Ecuador wanted the qualification to be made in accordance with the commitments made by the importing Member. After the disagreement concerning the MES, no further advances were made. Even though negotiations are technically ongoing, there have been no further discussions since 2015, and there seems to be no political will to make any further substantial advances.
Considering all the above, it is clear that AC Members are far from making any foreseeable compromise in order to rescue the AD regime at the communitarian level. It is also clear that the current set of rules cannot properly address the injurious dumping from NMEs and that there is no clear will to amend neither the structural nor substantive problems observed in the communitarian regime. Hence, the best way forward would be to reconsider the competences of the Secretariat in the investigation and administration of AD measures.

III)THE PATH TO REFORM: NEW RULES TO ADDRESS NEW PROBLEMS?

The first section presented the possible risks faced by the AC countries when trading with China and the second section demonstrated that the existing communitarian rules are not suited to address these problems insofar as there are structural and substantive issues that have not and will not be addressed in the foreseeable future. The following section elaborates what would be the best way forward for the AC considering amendments undertaken by other regional blocks in order to address similar concerns.
Even though the issue of NMEs is closely related with a set of substantive provisions, the position of this paper is that giving the deep structural problems faced by the AC and its Secretariat, the investigation and administration of AD measures would be better addressed at the national level. Thus, the competence of the AC Secretariat on this front should be eliminated. Instead, the Secretariat could serve as a neutral forum to exchange best practices and cooperate with national authorities in discussing common problems and alternatives.
The next section presents a set of amendments to AD rules undertaken by other WTO Members, and then it discusses what would be the best way forward for the AC to deal with the issue of injurious dumped products from NMEs.

A.The way forward for the Andean Community

Considering the problems faced by the current AC AD rules and the alternatives used by other countries to deal with the problem of Chinese imports, the current section analyzes the options for the regional block to address this problem in a manner consistent with the WTO covered agreements. Initially, there will be an assessment of the structural reforms the AC should undertake in order to disentangle the regional project. Subsequently, there will be some additional considerations as to what substantive amendments should be included in the revision of Decision 283 and what type of integration it is desirable for a sane future of the AC.

i)Solving the structural problems

The structural problems of the AC are not an easy topic to deal with, and the underlying causes of these problems deserve a whole different discussion. It is not the purpose of this paper to elaborate on the merits of the regional project, nor its strengths and weaknesses. However, the economic and political reasons that once opened the path for a regional integration seem to be weaker today than ever before. Therefore, the regional project should be revisited with critical eyes and consider whether certain rules envisaged for a “deep integration” still make any sense.

On the one hand, one of the biggest problems of the AC is the imperfect nature of the regional project. In spite of being an FTA and being inspired by the EU, the AC failed to consolidate a CET. Therefore, in order to pursue any common trade remedy rules, it would be necessary to consolidate a CET and prevent the negotiation of additional carve-outs unless strictly necessary. Considering the lack of political momentum, the consolidation of a CET will never occur in the foreseeable future, nor is desirable in light of their different strategic interests and markets. Therefore, the new trade remedy rules should acknowledge that the original integration project is no longer the ultimate goal and that a common set of trade remedy rules might not be the best way forward.
On the other hand, the AC must eliminate Decision 456 and should agree on the definitive elimination of any anti-dumping investigation at the intra-communitarian level. The origin of Decision 456 was to act as a transition regime towards the consolidation of the common market. Nevertheless, AC Members initiated more trade remedies investigations against their regional partners than against third countries.[68] The latter evidence how sceptical they were from attaining a real integration and how the sovereign approach prevailed over the regional block approach. Therefore, the existence of Decision 456 does not make much sense.
First, the instrument has not been used since the year 2007[69] , and AC countries are no longer striving to attain a deeper integration. On the contrary, AC countries are much more integrated with other importing and exporting partners than with other Members of the AC. Therefore, keeping a separate AD regime seems anachronistic as of today, and AC Members might as well eliminate this regulation and the subsidies regulation (Decision 457). Instead, Members should have recourse to their national authorities, not the Secretariat, to initiate AD investigations and impose AD measures when necessary, insofar as a separate regime does not seem reasonable nor is it justified.
Second, if AC Members consider that there is still some merit to seek deeper levels of integration, trade remedy instruments should be replaced by competition rules, state aid regulations, structural funds that aim to reduce regional disparities or other related policies. This has been the common denominator in those Regional Trade Agreements (RTAs) that have reached a higher level of economic and political integration.[70] Even some FTAs that are less ambitious than the AC have eliminated the reciprocal application of AD measures among their Members.[71] Therefore there is no merit whatsoever in maintaining a different set of AD disciplines only for the regional partners.
Subsequently, the AC countries should eliminate the competence of the Secretariat in conducting AD investigations and imposing AD measures when appropriate. Instead, each of the countries should enhance the role of their national authorities and grant them exclusivity over the initiation of AD investigations whenever their national markets are being affected by injurious dumping.
To begin with, it never made much sense to have a fragmented regime of rules and regulations based on the origin of the dumping and whether more than one country of the Andean market was affected. This differentiation proved to be confusing, hard to administer and could lead to conflicts of jurisdiction.
In addition, AC countries never consolidated a block position. Instead, they were zealous of their national sovereignty and always sought to benefit their local industries, not Andean industries, when designing their industrial, trade and commercial policy. Therefore, the role of the Secretariat as a defender and mediator of the Andean interests in trade remedies cases seems to be irrelevant now. Therefore, countries should stop spending resources and time in keeping alive the trade remedy competences of the Secretariat and reduce its role as a mediator and bridge among national authorities. This down to earth approach seems to be more fruitful and promising.
The AC market is not only less integrated than it ever was, but the intra-communitarian trade is increasingly less relevant for most of its Members. According to the latest data of the AC Secretariat, from January-September 2017, the AC countries exported 77.722 USD Millions to the rest of the world, while the intra-communitarian market only totalled 5.412 USD Millions.[72] In addition, the participation of the intra-communitarian exports compared to the exports to the rest of the world reduced by 8,0% compared to the same period in 2016.[73]
In light of the above, the healthiest and more feasible reform the AC could undertake to solve the structural problems would be:

Eliminate Decision 456;
Eliminate Decision 283;
Eliminate the competence of the Secretariat in conducting AD investigations and imposing AD measures.

The above alternative might prove extremely controversial at the political level, but the approach maintained so far by the AC Secretariat regarding trade remedies does not make much sense from an economic standpoint. On the contrary, AC countries should stop considering the AC as an “imperfect customs union” and start treating it as regular FTA. This might bring some level of pragmatism to the trade relations within the AC countries and move forward in a more edifying manner.
Lastly, considering that there is no longer any merit to preserve the communitarian AD regime, the Secretariat should open the floor for the discussion of national rules and exchange best practices among AC countries. Following this approach, the Secretariat could host discussions for an amendment of the national rules and issue guidelines to attain a higher level of harmonization between the different Members.

ii)A new set of substantive provisions

Even though it would be desirable to eliminate the AD regime, the current discussions in the AC have not moved forward in that direction.[74] Instead, Member countries are considering the reform of the substantial rules contained in Decision 283. The following analysis presents some possible substantive amendments for the AC Members to introduce in their national AD rules when dealing with imports from third parties.

a)Introducing a public interest test prior to the imposition of AD measures

A common problem in the application of AD measures is the lack of consideration as to the economy-wide impacts of imposing such measures. On the one hand, the lack of consideration of wider impacts has to do with the assessment is undertaken by the national authorities and its narrow focus. The investigation only assesses whether the constituent elements of dumping are fulfilled and, if so, whether it has caused or threatens material injury to the local industry concerned. Thus, there is no opportunity to consider the wider impact and the broader public interest of imposing an AD measure.
In spite of the above, AD measures may entail a high cost for downstream industries, other stakeholders and consumers, relative to the benefits for recipient industries. Still, a large sector of national production could benefit from cheap imports from other countries and specifically of NMEs. In this regard, it is important to consider that the ADA does not preclude the inclusion of public interest test requirements, and several countries have already implemented them.[75] To address such an effect of AD measures, domestic anti-dumping legislation of some countries enshrines a ‘public interest test’ clause.[76]
Public interest may be understood as “impersonality, and as the opposite of giving privilege to private interest.”[77] Under the EU system, the public interest is defined as “an appreciation of all the various interests in the [Union] taken as a whole by analyzing the likely economic impact of the imposition or non-imposition of measures on economic operators in the [Union].”[78] According to EU legislation regarding public interest “Measures, as determined on the basis of the dumping and injury found, may not be applied where the authorities, on the basis of all the information submitted, can clearly conclude that is not in the Union’s interest to apply such measures”.[79] The primary purpose of the Community interest test is “to determine whether there are any overriding interests against the imposition of measures despite the existence of injurious dumping. This calls for an appreciation of all economic interests in the Community.”[80]
Considering the critical impact that the imposition of AD measures has on the general public, who are end-users of the product in question, AD regulations should be amended to contain a clear provision on “public interest”, thereby requiring AC national authorities to consider the applicability or not of public interests considerations. The amendment should include a specific and clear articulation of public interest criteria and a non-exhaustive list of factors that can guide the authority on whether and how to conduct a public interest enquiry.[81]
The ADA does not oblige nor prohibits considering a wider public impact assessment during AD investigations. Article VI of the General Agreement on Tariffs and Trade (GATT) condemns injurious dumping, but it does not require WTO Members to impose AD measures in each case when injurious dumping has been found.[82] Moreover, the AB in US-1916 Act clarified that the verb ‘may in GATT Article VI:2 be “understood as giving Members a choice between imposing an anti-dumping duty or not, as well as a choice between imposing an anti-dumping duty equal to the dumping margin or imposing a lower duty”.[83] The AB also explained that the “meaning of the word ‘may’ in Article VI:2 is clarified by Article 9 of the Anti-Dumping Agreement on the ‘Imposition and Collection of Anti-dumping duties’.”[84]
Article 9.1 of the ADA confirms the discretionary nature of the AD measures. According to the AB in EC-Bed Linen, “Article 9.1 confers on Members the discretion to decide whether to impose an anti-dumping duty in cases where all the requirements for such impositions have been fulfilled”.[85]
Considering that public interest considerations are permitted under the ADA, the AC countries could condition the imposition and continuation of AD measures to a ‘bounded’ public interest test, embodying a presumption that measures will be imposed if there has been dumping or subsidization that has caused, or threatens to cause, material injury, unless one (or more) of the following circumstances apply:

The imposition of measures would preclude effective choice and competition in the AC market for the like goods, and the resulting scope for the applicant supplier to exploit market power could not be addressed through the application of the lesser duty rule.
The price of the imported goods concerned after the imposition of measures would still be significantly below competing local suppliers’ costs to make and sell.
Un-dumped like imported goods are readily available at a comparable price to the dumped or subsidized imported goods.
Prior to the commencement of injurious dumping the local industry’s share of the domestic market for the goods concerned was low, with that share likely to remain low even if measures were imposed.
The large majority of the foreign supplier’s output of the goods concerned is exported, with the goods imported into the AC being exported at a price which covers the supplier’s fully distributed costs and a reasonable profit margin.[86]

The experience of the EU and Canada can be taken as a basis for preparing the drafting and framework for a public interest test. The national legislations of AC countries could benefit greatly from the introduction of such a concept and apply their AD regulations in a more balanced manner.

b)Introducing a new methodology for the determination of the normal value when dealing with NMEs

The AC has inadequate mechanisms to deal with the importation of dumped products from third parties. To begin with, Decision 283 provides that “for imports from centrally planned economies, the normal value will be determined in accordance with the comparable price of a similar product sold to a third country with a market economy status, in the ordinary course of trade, for its use and internal consumption. If that comparable price does not exist, the normal value can be calculated in accordance with a reasonable base determined by the Commission”.[87] However, the criteria established in Decision 283 is somehow unfit to deal properly with imports from NMEs.
On the one hand, Decision 283 does not define what can be considered as a centrally planned economy, but the concept seems to be outdated.[88] This ambiguity could lead to an arbitrary outcome in its application. On the other hand, Article 6(d) of Decision 283 might be incompatible with the ADA, insofar as the interpretation provided by the AB in EC – Fasteners limits the use of price comparability methods in the case of NMEs.[89]
AC Members could base the determination of what is considered to be an NME inspired by the EU or US regulations; however, this alternative does not seem to be fully available due to technical capacity limitations. On the one hand, the determination of significant distortions entails a challenging task for the national authorities. Each of the criteria listed in the EU regulation requires an extensive macroeconomic analysis of the policies put in place by the exporting country. Moreover, it would be necessary to estimate each of the factors and their impact on the products or costs accordingly. The same occurs in the case of crediting and proving the existence of “particular market situations” and their impacts on the market.
On the other hand, it is not entirely clear that the amendments introduced by the EU are compatible with the ADA. The EU regulation explicitly rejects the exporting producers’ prices or costs due to a finding of country-wide distortions. However, the concept of dumping itself is tied to the individual behaviour of firms/producers rather than countries.[90]
Moreover, the amendments of the EU could be inconsistent with Article 2.2.1.1 of the ADA which provides that the records of the investigated exporters/producers are the exclusive source for establishing the costs of production unless said records are inconsistent with the exporting country’s GAAP or do not reasonably reflect the costs associated with the production and sale of the product under consideration. This reading was further upheld by the AB in EU – Biodiesel (Argentina), where the AB upheld the Panel’s finding that the EU acted inconsistently with Article 2.2.1.1 of the ADA by failing to calculate the cost of production of the product under investigation on the basis of the records kept by the producers.[91]
That said there may well be scope for the national legislation to alleviate some of the concerns about the treatment of Chinese imports through some of the following initiatives:

Even though the AC national authorities cannot undertake large investigations in order to document whether and how it has taken into account any input subsidies and other government support in calculating normal values, it can rely on determinations undertaken by other national authorities. For example, the report prepared by the EU and/or investigations dealing with “particular market situations” issued by the US.
National authorities should engage, where appropriate, with experts to assist in the market and sectoral investigations concerning AD investigations.
National authorities should develop further technical capacities in order to liaise fluidly with foreign authorities and cooperate in the determination of anti-dumping and countervailing cases.
National authorities should indicate in their investigation reports whether there have been any comparable recent cases in other countries; what the outcomes of those cases were; and what is the relevance, if any, of those outcomes to the investigation at hand.

The alternatives mentioned above would make it easier for AC Members to agree on a common set of rules, insofar as there is no need to reach a final determination on the market economy status of any other WTO Member. Instead, the assessment would be made on a case by case basis, in a sectoral or product-specific manner, whenever market-distorting circumstances are deemed to exist on specific sectors.

CONCLUSIONS

The rise of China has brought many anxieties for trade law and the WTO Members. Some important players consider that the competitiveness of Chinese products cannot be purely explained by efficiency but for what they considered to be a highly distortive government intervention that creates an unlevelled playing field. This situation has been exacerbated by the expiration of the sunset provision of China’s Protocol of Accession to the WTO, and the impossibility to continue treating China as an NME for trade remedy purposes.
Initially, the Andean Community worked as a successful regional integration project, but several structural problems frustrated the enhanced level of integration originally envisaged by its Members. The lack of a CET, the shared competence between national authorities and the Secretariat when conducting and administering anti-dumping measures, and the multiplicity of applicable rules made the system hard to administer.
In light of the current trade circumstances and the deeper level of integration attained by the Andean Community Members with different regional partners, the intra-communitarian market seems to be losing relevance, and there is no political will to push for an enhancement of the current system. Thus, the best way forward to face the challenges posed by the new trade dynamics would be to eliminate the competence of the Secretariat in conducting anti-dumping investigations and delegate this competence exclusively on national authorities.
In that order, the Secretariat could be a forum where members exchange best practices and, in order to open up the discussion, it would be desirable for AC Members to include a public interest test and a new set of provisions on the treatment of N-ME in their national legislations.

[1] See Julia Nielson, Making Trade Work For All, OECD, Trade and Agriculture Directorate (2017). Available at http://www.oecd.org/tad/making-trade-work-for-all.pdf. (Accessed September 30, 2020)

[2] EU Regulation 2016/1036 on protection against dumped imports from countries not members of the European Union, OJ L176 (30 June, 2016).

[3] Trade Preferences Extension Act of 2015, Pub. L. No. 114–27, 129 STAT. 362.

[4] World Trade Organization. Anti-dumping Initiations: By Reporting Member 01/01/1995 - 31/12/2016. Available at https://www.wto.org/english/tratop_e/adp_e/AD_InitiationsByRepMem.pdf

[5] Kim Kampel, “Options for Disciplining the Use of Trade Remedies in Clean Energy Technologies”, International Centre for Trade and Sustainable Development (2017), p. 11.

[6] According to the information provided by the Customs Authorities of the Andean Community countries, China is the second exporter into the region. See Secretaría General de la Comunidad Andina, Comercio exterior de bienes entre la Comunidad Andina y Estados Unidos 2005-2014, SG de/ 681
28 de abril de 2015 Available at http://www20.iadb.org/intal/catalogo/PE/2015/15457.pdf

[7] Michael Swaine, “Xi Jinping’s Trip to Latin America”, China Leadership Monitor 45, (October 21,
2014), p. 2. Available at https://www.hoover.org/sites/default/files/research/docs/clm45ms-xi_jinpings_trip_to_latin_america.pdf (Accesed September 30, 2020)

[8] David Dollar, “China as a Global Investor”, Asia Working Group Paper No. 4, Brookings Institution (May, 2016); Kevin Gallagher and Roberto Porzecanski, “The Dragon in the Room: China and the Future of Latin American Industrialization”, Stanford University Press (2010).

[9] John H. Jackson and Edwin Vermulst, Antidumping Law and Practice” (Michigan: The University of Michigan Press, 1989), p. 302.

[10] Ibid. p. 303.

[11] The second Supplementary Provision to Article VI:1 states that “It is recognized that in the case of imports from a country which has a complete or substantially complete monopoly of its trade and where all domestic prices are fixed by the State, special difficulties may exist in determining price comparability for the purpose of paragraph 1, and in such cases importing contracting parties may find it necessary to take into account the possibility that a strict comparison with domestic prices in such countries may not always be appropriate”.

[12] Edwin Vermulst, The WTO Anti-Dumping Agreement (Oxford: Oxford University Press, 2005), p. 44.

[13] Richard Lockridge, “Doubling Down in Non-Market Economies: The Inequitable Application of Trade Remedies Against China and the Case for a New WTO Institution”, 24. S. CAL. INTERDISC. L.J. 249,
258 (2014), page 259.

[14] Vermulst, op cit 13, p. 45.

[15] Ibid.

[16] Appellate Body Report, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS397/AB/R, para. 460.

[17] Michael Flyn, China: A Market Economy?, 48 Geo. J. Int'l L. 297 (2016-2017), p. 298.

[18] Working Party on the Accession of China, Report of the Working Party on the Accession of
China, para. 150, WTO Doc. WT/ACC/CHN/49 (Oct. 1, 2001).

[19] Ibid.

[20] See Folkert Graafsma & Elena Kumashova, In re China’s Protocol of Accession and the Anti-Dumping Agreement: Temporary Derogation or Permanent Modification?, 9 GLOBAL TRADE & CUSTOMS J. 154, 154 (2014).

[21] World Trade Organization, Ministerial Conference Decision of 10 November 2001, WTO, Doc. WT/L/432, 15 (2001).

[22] Thomas J. Prusa & Edwin Vermulst, “United States—Definitive Anti-Dumping and Countervailing
Duties on Certain Products from China: Passing the Buck on Pass-Through”, 12 WORLD TRADE REV.
197, 21314 (2013), page 214.

[23] See Flynn, op cit. 18, p. 301-307.

[24] Appellate Body Report, European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China, WT/DS397/AB/R, para. 289.

[25] Prusa & Vermulst, op cit 23, p. 214.

[26] World Integrated Trade Solution (WITS). Peru monthly trade data. Available at: https://wits.worldbank.org/CountryProfile/en/Country/PER/Year/2016/SummaryText. (Accessed September 30,2020)

[27] World Integrated Trade Solution (WITS). Bolivia monthly trade data. Available at: https://wits.worldbank.org/CountryProfile/en/Country/BOL/Year/2015/SummaryText. (Accessed September 30,2020)

[28] World Integrated Trade Solution (WITS). Ecuador monthly trade data. Available at: https://wits.worldbank.org/CountryProfile/en/Country/ECU/Year/2016/SummaryText. (Accessed September 30,2020)

[29] World Integrated Trade Solution (WITS). Ecuador monthly trade data. Available at: https://wits.worldbank.org/CountryProfile/en/Country/COL/Year/LTST/Summarytext. (Accessed September 30,2020)

[30] Ministerio de Producción Comercio Exterior Inversiones y Pesca, Acuerdos Comerciales Vigentes, https://www.produccion.gob.ec/acuerdos-comerciales/ (Accessed September 30,2020)

[31] Reuters, “China eyes free trade talks with Colombia”, October 8, 2016. Available at https://www.reuters.com/article/us-china-colombia/china-eyes-free-trade-talks-with-colombia-idUSKCN12808X; http://www.xinhuanet.com/english/2016-11/18/c_135840982.htm. (Accessed September 30,2020)

[32] International Bar Asociation (IBA), Divisions Project Team Supported by the IBA Trade and Customs Law Committee and the IBA Latin American Regional Forum, The Non-Market Economy Issue in Anti-Dumping Investigations Against China in Latin America Executive. (February 1, 2010).

[33] Article 16.4 provides that “Members shall report without delay to the Committee all preliminary or final anti-dumping actions taken. Such reports shall be available in the Secretariat for the inspection by other Members. Members shall also submit, on a semi-annual basis, reports of any anti-dumping actions taken within the preceding six months. The semi-annual reports shall be submitted on an agreed standard form.

[34] See Annex II and III.

[35] See Annex II.

[36] See Annex I.

[37] Secretaría General de la Comunidad Andina, Reseña Histórica. Available at http://www.comunidadandina.org/Seccion.aspx?id=195&tipo=QU (Accessed September 30,2020)

[38] Luciana Gil and Damián Paikin, “Mapa de la Integración Regional en América Latina: Procesos e Instituciones”, Revista Nueva Sociedad 9 (2013), p. 9. Available at http://www.ba.unibo.it/risorse/files/GilInt.RegionalenAL.pdf (Accessed September 30,2020)

[39] Comunidad Andina, Galapagos Declaration: Andean Commitment of Peace, Security and Cooperation. Available at http://intranet.comunidadandina.org/Documentos/Presidencial/REUNION%20DE%20GALAPAGOS.doc. (Accessed September 30,2020)

[40] It is important to notice that Bolivia could not vote in this decision insofar as it did not pay the fees in a timely manner.

[41] Decision 283 was approved on the 21st of March 1991 “Rules to prevent or correct distortions to competition generated by dumping or subsidies”.

[42] Decision 456 was approved on the 4th of May 1999 “Rules to prevent or correct distortions to competition generated by dumping on the importation of goods originated in an Andean Community Member”.

[43] Decision 457 was approved on the 4th of May 1999 “Rules to prevent or correct distortions to competition created by subsidies on the importation of goods originated in an Andean Community Member”.

[44] Decision 283/1991, Article 1(c).

[45] Decision 283/1991, Article 1(d).

[46] See Decision 425 of the Andean Council of Ministers of Foreign Affairs.

[47] As a general rule the applied tariff level increases with the level of process of the good.

[48] Annex 1 of Decision 370/1994.

[49] Annexes 2, 3, and 4 of Decision 370/1994.

[50] The Andean Price Band System was established through Decision 371/1994.

[51] See Andean Community Decision 371 of 1994, Chapter 5.

[52] Andrés Casas Casas y María Elvira Correa, “Qué Pasa con la Comunidad Andina de Naciones?”, Pap. Polít., Vol. 12, No. 2, 591-632, (Julio-Diciembre 2007), p. 607.

[53] Arancel Común Externo, Artículo Uniandes, pág. 94.

[54] World Integrated Trade Solution (WITS). Colombia trade data. Available at: https://wits.worldbank.org/CountryProfile/en/Country/COL/Year/2007/SummaryText (Accessed September 30, 2020)

[55] World Integrated Trade Solution (WITS). Ecuador trade data. Available at: https://wits.worldbank.org/CountryProfile/en/Country/ECU/Year/2007/SummaryText (Accessed September 30, 2020)

[56]World Integrated Trade Solution (WITS). Bolivia trade data. Available at: https://wits.worldbank.org/CountryProfile/en/Country/BOL/Year/2007/SummaryText (Accessed September 30, 2020)

[57] See Andrés Casas Casas y María Elvira Correa, “Qué Pasa con la Comunidad Andina de Naciones?”, Pap. Polít. Bogotá (Colombia), Vol. 12, No. 2, 591-632, julio-diciembre 2007.

[58] Ministerio de Comercio Exterior y de Turismo de Perú. Acuerdos Comerciales de Perú. Available at: http://www.acuerdoscomerciales.gob.pe/index.php?option=com_content&view=category&layout=blog&id=171&Itemid=190 (Accessed September 30, 2020)

[59] Ministerio de Producción Comercio Exterior Inversiones y Pesca, Acuerdos Comerciales Vigentes, https://www.produccion.gob.ec/acuerdos-comerciales/ (Accessed September 30,2020)

[60] Ministerio de Comercio, Industria y Turismo, Acuerdos Comerciales Vigentes, http://www.tlc.gov.co/acuerdos/vigente (Accessed September 30,2020)

[61] Jorge Castro Bernieri, “Informe para la Secretaría General de la Comunidad Andina: Bases para la Revisión de la Decisión 283 de la Comisión: Normas para prevenir o corregir las distorsiones en la competencia generadas por prácticas de dumping o subsidios en importaciones de bienes originarios de países que no sean miembros de la Comunidad Andina”, SG/REG.DS/I/dt (14 de agosto, 1998).

[62] Comunidad Andina, Primera Reunión de Expertos Gubernamentales de los Países Miembros en Dumping y Subsidios, 09 - 10 de setiembre de 1998, Lima – Perú, SG/REG.DS/I/Informe.

[63] Ibid, p. 5.

[64] G/AD/M/25.

[65] Secretaría General de la Comunidad Andina, Resolución 726 de 2002, SG-DP-039.

[66] Comunidad Andina, Grupo de Expertos Gubernamentales Ad Hoc en Defensa Comercial, 16 de diciembre de 2014, SG/AG.AH.MO/I/Acta 12 de enero de 2015.

[67] Ibid.

[68] See Annex I.

[69] See Annex I.

[70] Teh, R. et al., “Trade Remedy Provisions in Regional Trade Agreements”, Staff Working Paper ERSD-2007-03, World Trade Organization Economic Research and Statistics Division (2007), p. 27.

[71] See for example Stockholm Convention establishing the EFTA, EFTA-Singapore, China - Hong Kong, China – Macao, Southern African Customs Union (SACU) and EFTA – Chile.

[72] Secretaría General de la CAN, “CAN en cifras, Exportaciones Intra y Extra Comunitarias, Enero - Septiembre 2017”, available at http://intranet.comunidadandina.org/Documentos/DEstadisticos/SGDE802.pdf. (Accessed September 30, 2020)

[73] Ibid.

[74] See Section I.E.

[75] Australian Government Productivity Commission, “Australia’s Anti-dumping and Countervailing System”, Productivity Commission Inquiry Report No. 48 (18 December, 2009).

[76] A public interest clause is incorporated into domestic anti-dumping regulations of Argentina, Brazil, China, Canada, EU, Malaysia, Thailand, Ukraine and some others.

[77] International Trade Centre, “Business Guide to Trade Remedies in Brazil: Anti-dumping, countervailing and safeguard legislation” (2009), p. 31.

[78] Replies of the European Communities to the List of Questions Posed by Members on the Application of the Lesser Duty Rule and Considerations of Public Interest, G/ADP/AHG/W/114 dated 11 April 2001, p.1.

[79] Article 21, EU Regulation 2016/1036 on protection against dumped imports from countries not members of the European Union, OJ L176 (30 June 2016).

[80] Farmed Atlantic salmon, Norway, Chile and the Faeroe Islands, OJ133, 29 May 2003, para. 243.

[81] Tao, P., “Dumping and Anti-Dumping Regulations with Specific Reference to the Legal Framework in South Africa and China” LLM dissertation, University of the Free State (2006), p. 107-109.

[82] GATT Articles VI:1and VI:2.

[83] Appellate Body Report, United States — Anti-Dumping Act of 1916, WT/DS162/AB/R, paras. 113-116.

[84] Ibid.

[85] Appellate Body Report, European Communities – Anti-dumping duties on Imports of Cotton-type bed Linen from India. Recourse to Article 21.5 of the DSU by India, WT/DS141/AB/RW, para. 122.

[86] Australian Government, Productivity Commission. Productivity Commission Inquiry Report No. 48, 18 December 2009: Australia’s Anti-dumping and Countervailing System, p. 73.

[87] Decision 283, Article 6(d).

[88] See Peter D. Ehrenhaft, “The Application of Antidumping Duties to Imports from ‘Non-market Economies”. Chapter 7, Section 3 in Jackson & Vermulst, op cit 10.

[89] See AB Report, EC – Fasteners, op cit. 25, para. 460.

[90] Edwin Vermulst, “The birth of a monstrosity: The EU’s ‘significant distortions’ proposal, Wolters Kluwer (27 November, 2017). Available at http://regulatingforglobalization.com/2017/11/27/birth-monstrosity-eus-significant-distortions-proposal/

[91] Appellate Body Report, European Union – Anti-Dumping Measures on Biodiesel from Argentina, WT/DS473/AB/R, para 7.2.