- Legal Authority to Impose Antidumping and Countervailing Duties
a. "Each Member shall take all necessary steps, of a general or particular character, to ensure, not later than the date of entry into force of the WTO Agreement for it, the conformity of its laws, regulations and administrative procedures with the provisions of this Agreement as they may apply for the Member in question." (AD Agreement, Art. 18.4; SCM Agreement, Art. 32.4)
b. The SCM Agreement also requires that any methodology used to calculate the amount of countervailable subsidy must be provided for in national legislation or implementing regulations. (SCM Agreement, Art. 14)
Argentina has adopted the WTO Agreements and amended its legislation by Law 24.425 of 5/1/95.
Argentina has adopted the WTO Agreements and amended its legislation by Law 24.425 of 5/1/95. Because of this, the dispositions of these Agreements are directly applied. Procedural aspects exist which are regulated by Decree 2121/94, as long as this does not contradict the dispositions of the Agreements. Because Decree 2121/94 regulates the codes for Tokyo Round (Law 24.176), it has limited application and the approval of a new regulation is pending.
To correctly interpret Argentina's standards, the specific article of the Agreements must be complemented - as previously indicated the Agreements are part of national law - with the article of the Decree 2121/94 where it corresponds.
The Bolivian law on trade remedies is composed of the following regulations:
- Supreme Decree 23308 of October 22, 1992 which establishes national regulations on unfair trade practices.
The objective is to ensure equitable conditions for national producers and to ensure economic efficiency.
- Ministerial decision no. 25191-3 of February 4, 1993.
The decision regulates the Supreme Decree 23308 by establishing procedure for the treatment of claims and procedures for the investigation of trade remedies.
- Ministerial decision 412 of September 23, 1994 which authorizes the Secretaria Nacional de Industria y Comercio to process trade remedy actions.
Bolivian legislation on protection against unfair international trade practices comprises the following standards:
- Supreme Decree D.S. 23308 of October 22, 1992 establishing the national standards governing unfair international trade practices, which aims to provide equitable conditions for national producers and not to protect inefficient production.
- Biministerial Resolution B.M. No. 25191-3 of February 4, 1993, regulating D.S. 23308, which establishes a procedure for the treatment of reports and investigation procedures.
- B.M. 412 of September 22, 1994 delegating functions to the National Secretariat of Industry and Commerce to take cognizance of reported subsidies and dumping.
Decreto Legislativo no. 30, de 15 de dezembro de 1994 - aprovação dos resultados da Rodada Uruguai, incluindo o Acordo de Implementação do Art. VI do GATT 1994 e o Acordo sobre Subsídios e Medidas Compensatórias; Decreto no. 1.355, de 30 de dezembro de 1994 - promulgação do Decreto Legislativo no. 30/94; Lei 9.019, de 30 de março de 1995 - estabelece a natureza jurídica dos direitos antidumping e compensatórios e estabelece as autoridades competentes para aplicação de tais medidas.
The primary legal instrument for Canada's international commitments regarding antidumping, subsidies and countervailing duties in the Special Import Measures Act and regulations made pursuant thereto.
This legislation has been amended in accordance with Canada's WTO rights and obligations.
Chilean legislation on this subject consists of the following:
Supreme Decree No.16 (Ministry of External Relations), published in the Diario Oficial of 17/05/95, by which the 1994 Agreement on Application of Article VI of the GATT and the Agreement on Subsidies and Countervailing Measures were incorporated into Chile's national legislation and acquired the force of law as of that date.
Lay No.18.525, published in the Diario Oficial of 30/06/86, which created the National Commission, and Decree No.575 of the Ministry of Finance, published on 20/08/93, which approved the regulations under Article 11 of Law 18,525.
Law 18,525 and Regulation 575 apply only to the extent that their provisions do not conflict with Supreme Decree No.16, above: under the hierarchy-of-laws principle, that decree takes precedence over all previous ones, because it deals with an international treaty that has been incorporated into national legislation by Supreme Decree.
Colombia approves the Agreement establishing the OMG, signed in Morocco on April 15, 1994, its attached Multilateral Agreements, and the attached Plurilateral Agreement on Beef, and has incorporated these provisions into its national legislation by promulgating Law 170 of December 15, 1994.
Under Article 140, paragraph 12 of Costa Rica's Constitution, foreign relations are the purview of the President and the minister of foreign affairs.
The authority is general and includes both the legal aspects of the negotiation of international agreements - regardless of subject matter - and the politics of the taking of the decisions necessary to defend the country's interests in the international realm.
The function of negotiating and signing international treaties is stipulated in subparagraph 10 of Article 140 of the Constitution, which states that it is the function of the President and the Minister of Foreign Affairs jointly to conclude international agreements and accords and to promulgate and execute them once they have been approved by the Legislative Assembly, or by a Constituent Assembly when the Constitution so stipulates.
Under Article 121, subparagraph 4 of the Constitution, only the Legislative Assembly has the authority to approve international agreements.
It is important to note that the legislative branch merely approves or disapproves the treaty previously negotiated by the executive branch.
In other words, Congress can neither introduce a change in the text of the agreement nor negotiate an international agreement.
The foregoing notwithstanding, the Legislative Assembly may introduce interpretative declarations clarifying the content and scope of application of the obligations incurred under the proposed international agreement.
In 1990, the Constitutional Chamber was established in Costa Rica as a special chamber within the Supreme Court.
The Law on Constitutional Jurisdiction states that during the approval process of any international treaty, the text of the proposed treaty must be submitted to the Constitutional Chamber for a preliminary review of its constitutionality.
The review tends to focus on procedural matters, since the evaluation does not preclude the possibility of subsequent challenges asserting the unconstitutionality of the approved treaty.
Under the Constitution, international treaties have preeminence over national law.
Under the Law on Constitutional Jurisdiction, treaties come under the Constitution, which means that private parties may request summary proceedings by filing constitutionality challenges or constitutional appeals [amparo] petitions when an act of the administration or a law violates an international agreement.
This is allowed under Article 7 of the Constitution: As of the date of their promulgation or the date they stipulate, public treaties, international agreements and accords duly approved by the Legislative Assembly shall have an authority greater than the laws.
This provision is very clear on the hierarchy of treaties within Costa Rica's juridical system.
But in addition to recognizing the pre-eminence of international treaties over domestic laws, the Costa Rican juridical system goes a step further: it acknowledges the possibility that international treaties can have "direct effect" within the juridical system.
This means that if certain conditions obtain, an international treaty can be invoked directly by private parties and applied by the courts as if it were an ordinary law, which it is not.
This means that in Costa Rica, if certain circumstances are present, a treaty will not require implementing legislation; instead, once the treaty has been approved by the Legislative Assembly and ratified by the Chief Executive, it is directly incorporated into the body of Costa Rican domestic law and, therefore, is applied directly as if it were a law. The Constitutional Chamber has determined the conditions that must be met for an international treaty to have immediate effect within Costa Rica's body of laws:
a) the wording of the treaty must be sufficiently clear and precise to make plain the obligation undertaken by the Costa Rican State;
b) the wording of the treaty must be sufficiently clear and precise to determine what the rights granted to individuals, institutions, companies or corporations are, and
c) Costa Rica's domestic legal system must have the procedural institutions or organization needed for these individuals, institutions, companies or corporations to exercise the rights accorded under the international treaty in question.
In the case of the agreement establishing the World Trade Organization, and in particular the "Agreement on Implementation of Article VI of GATT 1994" (henceforth the "Anti-dumping Agreement") and the Agreement on Subsidies and Countervailing Measures (henceforth the "Subsidies Agreement"), the text of the treaty is sufficiently clear and specific for it to have immediate effect within Costa Rica's legal system.
This means that in the particular case of Costa Rica, an anti-dumping law or decree that is contrary to the provisions of the WTO Anti-dumping Agreement or Subsidies Agreement will not have force of law. Since the Anti-dumping and Subsidies Agreements have direct effect in Costa Rica, any conflict between one of these agreements and an incompatible law or decree will be settled by having the lesser provision automatically superseded by the text of the international agreement. Therefore, legally speaking a decree or law that is incompatible with the Anti-dumping Agreement or the Subsidies Agreement need not be expressly repealed for the agreement to be pre-eminent in Costa Rica.
The direct effect of the Anti-dumping Agreement and the Subsidies Agreement of the WTO also means that no new law need be promulgated or any specific office created to implement those agreements.
The addition of these WTO agreements to Costa Rica's legal system is sufficient for the government to appropriate the funds or resources to comply with the provisions of this international treaty.
In January 1995, the Congress of the Dominican Republic ratified the Uruguay Round Agreements.
As a result, and in accordance with the legal principles of the Dominican Republic, these agreements, including the agreements on Antidumping and Subsidies and Countervailing Measures, are incorporated in national legislation.
The Dominican Republic is currently in the process of developing rules and regulations on antidumping and countervailing measures.
Because the Dominican Republic did not previously have national antidumping or countervailing duty laws, it is not able to provide the information requested in this outline.
National legislation includes the Cartagena Agreement with respect to practices which may distort trade practices, in particular Decision No. 283, which permits member countries to apply antidumping rights to third country products in order to correct trade distortions in a subregional market.
The WTO Agreement became part of the national law of El Salvador through Executive Order No. 141 of February 8, 1995, ratified by Legislative Decree No. 292, of March 9, 1995 and was published in the Diario Oficial No. 78, volume No. 327 of April 28, 1995.
Article 144 of the Constitution of El Salvador states that international treaties signed by El Salvador with other states or with international organizations constitute laws of the Republic and enter into force in accordance with the rules of the treaty as well as of the Constitution.
In case of conflict between the treaty and the law, the treaty shall prevail.
Guatemala adopted the Uruguay Round agreement by Decreto Gubernativo 37-95 which was officially published on 2 June, 1995.
By this action, the Uruguay Round Agreement was made a part of domestic legislation according to the Constitutional order of Guatemala.
The WTO AD and SCM Agreements are part of the national law of Honduras.
Jamaica applies the Customs Duties (Anti-Dumping and Subsidies) Act of 1959.
A new Act is currently being drafted in order to implement the WTO AD and SCM Agreements in domestic law.
Article 133 of the Political Constitution of the United Mexican States establishes that the Constitution and laws passed by the Congress of the Union, as well as the treaties in accordance therewith entered into by the President of the Republic with the approval of the Senate, shall be the Supreme Law of the entire Union. Thus with the publication on December 30, 1995, of the Decree Promulgating the Final Act of the Uruguay Round of Multilateral Trade Negotiations, this Agreement and the obligations contained therein constitute part of national legislation.
Nevertheless, in Mexico treaties are for direct implementation and do not call for a legislative act after their promulgation to be implemented.
Thus national legislation consists of the following:
- Art.131 of the Political Constitution of the United Mexican States
- External Trade Law
- Fiscal Code
- Federal Code on Civil Procedures
- Customs Law
- Law on General Import Duties
The WTO AD and SCM Agreements are part of the national law as published in La Gaceta, the official gazette of the Republic of Nicaragua.
The Constitution of Nicaragua is the supreme law of Nicaragua. It regulates the formulation and implementation of treaties, conventions, pacts, international trade agreements. By constitutional mandate the Legislative branch (National Assembly) approves all above mentioned agreements.
Paraguay through the Decree No. 15286 of 28 of October 1996 implements Law 260/93 that approves the Protocol of Accession of the Republic of Paraguay to the General Agreement on Tariffs and Trade.
Signed in Geneva, Switzerland, 1 July 1993 and Law 444/94 that ratifies the final act of the Uruguay Round of the GATT, which adopts the provisions contained in the Agreement on Implementation of Article VI of GATT, the Agreement on Subsidies and Countervailing Measures, and the Agreement on Safeguards.
The purpose of these provisions is to establish the rules and procedures applicable to imports that are dumped or subsidized when they cause damages to national production or when they significantly delay its establishment.
The 1993 Peruvian Constitution is the basic law governing all aspects of Peruvian legislation.
With respect to the hierarchy of laws, the 1993 Constitution expressly grants the status and force of national law to international treaties in effect that have been signed by the State, and declares that such treaties form part of Peru's domestic law.
The Constitution requires that treaties be approved by Congress before being ratified by the President. The prior approval of Congress is intended to ensure that the treaty is compatible and consonant with any international commitments that the country may have entered into previously, and with the State's domestic legislation. Such approval is given by means of Legislative Resolutions, which are numbered consistent with the respective laws. In this regard, the Congress, by means of Legislative Resolution No. 25407, approved the Agreement establishing the World Trade Organization and the Agreements contained in the Final Act of the Uruguay Round. This Resolution was then promulgated by the President, and was published in the Official Gazette El Peruano on December 18, 1994. As a result of that action, the Uruguay Round Agreements have had the force of law in Peru since January 1, 1995.
Consequently, the 1994 Agreement on Application of Article VI of the GATT and the Agreement on Subsidies and Countervailing Measures, which are part of the Final Act of the Uruguay Round, have been incorporated into Pute the supreme legal provisions governing dumping and subsidy investigations by INDECOPI, which is the competent authority for assessing and determining the imposition of any antidumping and countervailing duties.
The Congress, in the process of approving treaties and legislation, reviews all domestic laws that it passes to ensure that they are compatible with international treaties in force, and is responsible for passing domestic legislation to give effect to such treaties. It is thus Peruvian legislative practice to respect international obligations undertaken through treaties signed by Peru, and there is effective legislative control over domestic laws approved by Congress, as well as over Legislative Decrees, Emergency Decrees on specific matters and subsidiary regulations issued by the Executive, to ensure compliance with them.
St. Lucia applies Act No. 25 of 1964, also known as the Customs Duties (Dumping and Subsidies) Ordinance which went into force on 19 December, 1964.
Trinidad and Tobago
Trinidad and Tobago applies Act No. 11 of 1992, also known as the "Anti-Dumping and Countervailing Duties Act of 1992" as well as Act No. 23 of 1995 - Act (I) to amend the Anti-Dumping and Countervailing Duties Act of 1992.
The U.S. law pertaining to antidumping and countervailing duties is the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979, the Trade and Tariff Act of 1984, the Omnibus Trade and Competitiveness Act of 1988, and the Uruguay Round Agreements Act of 1994 ("URAA").
The statute pertaining to antidumping duties may be found in volume 19 of the U.S. Code at 1673; the statute pertaining to countervailing duties may be found in volume 19 of the U.S. Code at 1671; the statute pertaining to judicial review may be found in volume 19 of the U.S. Code at 1516a and volume 28 of the U.S. Code at 1581 et seq.
On March 15, 1995, the WTO AD and SCM Agreements were adopted as national law in Uruguay and, accordingly, form part of domestic legislation.
On March 15, 1995, the Government of Venezuela notified the WTO that, as published in the Official Gazette of the Republic of Venezuela, No. 4.829, Special Edition, 29 December 1994, Venezuela had approved the Marrakech Agreement establishing the WTO, the AD Agreement and the SCM Agreement, and that the WTO Agreement prevails over any contrary or different provision contained in previous national laws.
According to the Venezuelan Constitution, international agreements become a part of domestic legislation once they are
(i) approved by the Congress of the Republic through a law approving the agreement;
(ii) ratified by the President of the Republic;
(iii) published in Venezuela's official gazette.
Agreements in Venezuela, are therefore superior to any other legislation and, consequently, are given precedence over pre-existing law with regard to application.
The same notification stated that Venezuela's "Law on Unfair Foreign Trade Practices" (as published in the Official Gazette, No. 4.441, Special Edition, 18 June 1992), conferred broad powers on the Administration to interpret and apply antidumping and countervailing duty measures.
The notification also stated that the Venezuelan government is considering the possibility of adopting new regulations to facilitate the administration and application of anti-dumping and countervailing duty legislation.
For investigations initiated prior to 12/29/94, Venezuelan law would be fully applicable, because Venezuela was not party to the agreements at that time. Also, in investigations involving imports from countries which are not party to the WTO agreements, Venezuelan law shall fully apply. Investigations initiated after 12/29/94 concerning imports from countries which are party to the WTO agreements, shall be governed by said agreements. Lastly, in investigations of imports from member countries of subregional agreements to which Venezuela is a party, the respective subregional legislation shall apply.