4. Steps of the Investigation
   
   
   12. Retroactivity
       
       
       a. Antidumping
       

       WTO AD Standard: A definitive anti-dumping duty may be levied on products which were entered for consumption not more than 90 days prior to the date of application of provisional measures, when the authorities determine for the dumped product in question that:

       (i) there is a history of dumping which caused injury or that the importer was, or should have been, aware that the exporter practices dumping and that such dumping would cause injury; and

       (ii) the injury is caused by massive dumped imports of a product in a relatively short time which in light of the timing and the volume of the dumped imports and other circumstances (such as a rapid build-up of inventories of the imported product) is likely to seriously undermine the remedial effect of the definitive anti-dumping duty to be applied, provided that the importers concerned have been given an opportunity to comment. (AD Agreement, Art. 10.6)

       No duties shall be levied retroactively [...] on products entered for consumption prior to the date of initiation of the investigation. (AD Agreement, Art. 10.7)

       b. Countervail

       WTO SCM Standard: In critical circumstances where for the subsidized product in question the authorities find that injury which is difficult to repair is caused by massive imports in a relatively short period of a product benefiting from subsidies paid or bestowed inconsistently with the provisions of GATT 1994 and of this Agreement and where it is deemed necessary, in order to preclude the recurrence of such injury, to assess countervailing duties retroactively on those imports, the definitive countervailing duties may be assessed on imports which were entered for consumption not more than 90 days prior to the date of application of provisional measures. (SCM Agreement, Art. 20.6)

Argentina | Bolivia | Brazil | Canada | Chile | Colombia | Costa Rica | Dominican Republic | Ecuador | El Salvador | Guatemala | Honduras | Jamaica | Mexico | Nicaragua | Panama | Paraguay | Peru | Saint Lucia | Trinidad & Tobago | United States | Uruguay | Venezuela

Argentina

   a. Antidumping

   Argentina directly applies the standards of the WTO Agreements. The standards corresponding to Decree 2121/94 are cited, to the degree that they do not contravene the provisions of the Agreement, they will be applied.

   If the final determination is based on the existence of material injury, a threat of injury, or material retardation, and at the same time imports of the product under investigation produce an effect which, in the absence of preventive measures, would have led to the conclusion that there was material injury, antidumping or countervailing duties may be applied retroactively for the period during which preventive measures were applied. (Decree No. 2121/94, Art. 64).

   In an antidumping investigation, if the competent implementing authority determines:

         (1) that there is a history of dumping causing injury or the importer should have known that the exporter or producer practiced dumping and that the imports of such products under those conditions would produce injury to domestic production; and

         (2) that the injury was due to sporadic dumping (i.e., massive imports of the product under investigation effected for a relatively short period of time) on a scale such that, in order to prevent repetition it is necessary to levy duties retroactively on such imports, the competent implementing authority may stipulate that such duties are to be levied on products destined for consumption up to 90 days prior to the date of application of the preventive measures. (Id.).

   b. Countervail

   If the final determination is based on the existence of material injury, a threat of injury, or material retardation, and at the same time imports of the product under investigation produce an effect which, in the absence of preventive measures, would have led to the conclusion that there was material injury, antidumping or countervailing duties may be applied retroactively for the period during which preventive measures were applied. (Decree No. 2121/94, Art. 64).

   In a countervailing duty investigation, when the implementing authority concludes that there is an injury which is difficult to remedy, caused by massive imports of the product under investigation, over a relatively short period of time, when in order to prevent a repetition of the injury it is considered necessary to levy countervailing duties retroactively on such imports, the definitive countervailing duties are levied on products which have been destined for consumption, up to a maximum of 90 days prior to the date of application of the preventive measures. (Id.).

Bolivia

   The definitive antidumping or countervailing duties established for products entered for consumption within ninety (90) days prior to the date of establishing the provisional duties, when it is proved that there is injury which is difficult to repair caused by massive dumped or subsidized imports, or when statements of intent accepted have not been respected. Bi-ministerial Decision, Art. 2.

   Imposition of retroactive definitive duties may be ordered in the following cases:

         1. Massive imports that have caused the domestic industry injury which is difficult to repair;

         2. Failure to fulfill statements of intent accepted by the Minister for Exports and Economic Competition. Bi-ministerial Decision, Art. 40.

Brazil

   a. Antidumping

   Definitive antidumping duties may be collected on dumped imported products released for consumption up to 90 days after the date of application of the provisional antidumping measures, provided that it is determined that, in the case of the product in question:

         a) there is a history of dumping causing injury, or that the importer was or should have been aware that the producer or exporter was practicing dumping and that it caused injury; and

         b) the injury is caused by large volumes of imports of a product at dumping prices over a relatively short period or, the duration of dumping and the volume of dumped imports, as well as the rapid growth of stocks of the imported product, would probably seriously undermine the corrective effect of any applicable antidumping duties--provided that the importers involved have been given the opportunity to comment. Duties shall not be collected on products that have been released for consumption before the date of initiation of the investigation. (Dec. 1602/95 - Art. 54).

   In the case of violations of commitments, definitive antidumping duties may be collected on imported products released for consumption within 90 days of implementation of provisional antidumping measures, based on the violation, except for products released for consumption prior to the violation of the price undertaking. (Dec. 1602/95 - Art. 55).

   b. Countervail

   Definitive countervailing duties may be collected on subsidized imported products that have been released for consumption, within 90 days of the date of implementation of the provisional countervailing measures, provided that it is determined that the injury is caused by large volumes of imports of the product in question over a relatively short period, which would probably seriously undermine the corrective effect of any ultimately applicable countervailing duties. Duties shall not be collected on products released for consumption prior to the date of initiation of the investigation. (Dec. 1751/95 - Art. 64). In cases where commitments are violated, definitive countervailing duties may be collected on imported products released for consumption within 90 days of implementation of the provisional countervailing measures, depending on the violation, except for products released prior to the violation of the price undertakings. (Dec. 1751/95 - Art. 65).

Canada

   a. Antidumping

   A retroactive assessment of duties may be imposed on goods released during the period of 90 days prior to the date of the preliminary determination, but not prior to initiation of the investigation.

   Under section 5 of the Special Import Measures Act (SIMA), retroactive duties are imposed on dumped goods where a considerable importation of dumped goods caused injury or where the importer was or should have been aware that the goods were dumped and that they would cause injury and injury has been caused because the goods constitute a massive importation into Canada, and it appears necessary to the Canadian International Trade Tribunal to impose the retroactive duties to prevent the recurrence of injury.

   b. Countervail

   Under section 6 of the SIMA, retroactive duties may be imposed on goods receiving a prohibited subsidy where injury has been caused because the goods constitute a massive importation into Canada, and a countervailing duty should be imposed on the goods to prevent the recurrence of injury.

Chile

   No statutory provision pertaining to retroactivity.

Colombia

   Without prejudice to the provisions of article 26, the Ministry of Foreign Trade may order the imposition of final duties on imports already made in the following circumstances:

         1. When injury occurs due to massive dumped imports with respect to the imports done within 90 days prior to the day provisional duties are imposed, but in no case before the date of publication of the order initiating the investigation.

         2. When expressions of intent that were accepted pursuant to the provisions of Article 31 of this decree are followed by non-performance, with respect to the imports declared in the 90 days prior to the date of establishment of the provisional duties, but in no case on the imports declared prior to the non-performance. The characterization of massive imports, which are the subject of this article, shall be made bearing in mind imports from the date the investigation is initiated to the date provisional measures are imposed, in relation to imports over a period of three years prior to the date the investigation was initiated.

   In each particular case the size of the market for the product under investigation shall also be considered.

Costa Rica

   a. Anti-dumping A definitive anti-dumping duty may be levied on products which were entered for consumption not more than 90 days prior to the date of application of provisional measures, when the authorities determine for the dumped product in question that:

         (i) there is a history of dumping which caused injury or that the importer was, or should have been, aware that the exporter practices dumping and that such dumping would cause injury, and

         (ii) the injury is caused by massive dumped imports of a product in a relatively short time which in light of the timing and the volume of the dumped imports and other circumstances (such as a rapid build-up of inventories of the imported product) is likely to seriously undermine the remedial effect of the definitive anti-dumping duty to be applied, provided that the importers concerned have been given an opportunity to comment.

   The authorities may, after initiating an investigation, take such measures as the withholding of appraisement or assessment as may be necessary to collect anti-dumping duties retroactively [...], once they have sufficient evidence that the conditions set forth in the paragraph are satisfied.

   b. Countervailing duty In critical circumstances where for the subsidized product in question the authorities find that injury which is difficult to repair is caused by massive imports in a relatively short period of a product benefiting from subsidies paid or bestowed inconsistently with the provisions of the GATT 1994 [...] and where it is deemed necessary, in order to preclude the recurrence of such injury, to assess countervailing duties retroactively on those imports, the definitive countervailing duties may be assessed on imports which were entered for consumption not more than ninety days prior to the date of application of provisional measures.

Dominican Republic

Ecuador

   The retroactive application of definitive duties may be ordered in the following cases:

         1) On massive imports entered between the date of initiation of the investigation and the date of application of provisional duties, subject to a maximum of ninety (90) days.

   The existence of massive imports shall be determined by taking into account import trends during the above-mentioned period as compared with the trend over a period of three years prior to the date of initiation of the investigation or the invitation to hold consultations.

   Moreover, in each particular case the size of the market for the product investigated and other circumstances, such as a rapid build-up of inventories of the imported product, shall be taken into consideration.

         2) In the case of massive imports envisaged in the previous paragraph, countervailing duties may be imposed only on products which receive subsidies paid or granted in a manner inconsistent with the provisions of the WTO Agreement on Subsidies and Countervailing Measures.

   Similarly, anti-dumping duties on massive imports may be imposed when the investigating authority determines for the dumped product in question that there is a history of dumping which caused injury or that the importer was, or should have been, aware that the exporter practiced dumping and that such dumping would cause injury.

         3) On imports entered during the ninety (90) days preceding the establishment of provisional duties, in the case of non-fulfillment of undertakings given in connection with statements of intent.

   The period of application shall not exceed the duration of the period of non-fulfillment.

El Salvador

   a. Antidumping

   Notification was given that the provisions of the WTO Antidumping Agreement apply.

   b. Countervailing Duties

   Notification was given that the provisions of the WTO Agreement on Subsidies and Countervailing Measures apply.

Guatemala

Honduras

Jamaica

Mexico

   Article 93 of the Law embodies the principle established in Article 10.6 of the Antidumping Agreement.

   This indicates that a fine shall be levied against importers who, during a relatively short period, import goods in significant volumes with relation to overall imports and national production when there is a record of unfair practices and when the importer knew or should have known that the exporter was engaged in such practices. According to Article 93 of the Law, the fine shall be the equivalent of the amount derived from applying the final duty on imports made for up to three months preceding the date for applying the temporary countervailing duties.

Nicaragua

Panama

Paraguay

   Provisional measures, anti-dumping or countervailing duties shall only be applied to products declared to be for consumption after the date when the resolutions that contain the preliminary and final determinations enter into force.

   Notwithstanding the foregoing, the final measures may be imposed retroactively for the period during which the provisional measures are adopted, when a final determination of injury is made (but not of threat of injury or major delay in establishing a domestic industry) or, if a final determination is reached as to threat of injury, when the effect of the dumped or subsidized imports is such that, if provisional measures are not applied, an injury were determined to exist.

   When a determination is made of the threat of injury or major delay (without the injury having occurred yet), final duties may only be established from the date of determination of a threat of injury or major delay. In these cases, refund of the duty or restitution of the bond or guarantee will be ordered for the period during which the provisional measures were in effect.

   In critical circumstances, when it is concluded that there is an injury difficult to repair caused by massive imports that are dumped or subsidized, made intermittently in relatively short periods, and that there are antecedents of dumping that have caused injury, or that the importer knew or should have known that the exporter practiced dumping and that it would cause injury, definitive duties may be imposed on the products put up for sale within the 90 days prior to the date provisional measures are imposed.

   Nonetheless, in no case may definitive duties be imposed prior to the date of publication of the resolution that initiates the investigation in dumping cases, or prior to the date of invitation to engage in the consultations mentioned at Article 10 of this Decree.

   Definitive duties may also be imposed on the products that have been put up for sale within the 90 days prior to the date of imposition of provisional measures in cases of non-performance of undertakings referred to in Article 17 of this Decree.

Peru

   In special circumstances, the Commission may levy definitive anti-dumping or countervailing duties on products marketed for consumption 90 days prior to application of provisional duties. In the case of subsidies, such definitive duties may be determined if there is an injury which it is difficult to repair caused by massive imports in a relatively short period of time and where the Commission deems it necessary, in order to preclude the recurrence of such injury, it may assess countervailing duties retroactively on those imports. No anti-dumping or countervailing duties shall be levied on products entered for consumption prior to the date of initiation of the investigation. In case of violation of an undertaking, the Commission may levy immediate provisional duties using the information available.

   In such cases, definitive duties may be levied on products entered for consumption not more than 90 days before the application of such provisional measures, but under no circumstances before violation of the undertaking.

Santa Lucia

Trinidad and Tobago

   If the Minister determines:

         (1) that the importer was or should have been aware that the goods were dumped and such dumping was causing injury;

         (2) there is a history of dumping causing material injury; and

         (3) that the material injury is caused by substantial dumped or subsidized imports of a product in a relatively short period, then the Minister may impose a duty on the subject goods which were entered for home consumption not more than ninety days prior to the date of the provisional direction. (Sec. 30(3)).

United States

   If Commerce finds that critical circumstances exist, then any suspension of liquidation ordered is retroactively applied to unliquidated entries of merchandise entered up to 90 days prior to the date when the suspension of liquidation was originally ordered.

Uruguay

   A definitive anti-dumping duty may be levied on products which were entered for consumption not more than 90 days prior to the date of application of provisional measures, when it is determined for the dumped product in question that:

         (a) There is a history of dumping which caused injury or the importer was, or should have been, aware that the exporter practises dumping and that such dumping would cause injury; and

         (b) the injury is caused by massive dumped imports of a product in a relatively short time which in light of the timing and the volume of the dumped imports and other circumstances, such as a rapid build-up of inventories of the imported product, is likely seriously to counteract the remedial effect of the definitive anti-dumping duty to be applied, provided that the importers concerned have been given an opportunity to comment.

   No duties shall be levied retroactively pursuant to the preceding Article on products entered for consumption prior to the date of initiation of the investigation. In case of violation of a price undertaking, definitive anti-dumping duties may be levied retroactively for up to 90 days prior to the date of entry into force of the provisional anti-dumping measures, except on products imported before the violation of the undertaking.

Venezuela

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