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Compendium of Antidumping and Countervailing Duty Laws
in the Western Hemisphere


  1. Methodologies/Definitions

    1. Injury

      WTO Standard: An injury determination must be based on positive evidence and involve an objective examination of (a) the volume of dumped or subsidized imports and the effect of the dumped or subsidized imports on prices in the domestic market for the like product, and (b) the consequent impact of the dumped or subsidized imports on domestic producers of such products. (AD Agreement, Art. 3.1; SCM Agreement, Art. 15.1)

      With regard to the volume of dumped or subsidized imports, the investigating authorities must consider whether there has been a significant increase in dumped or subsidized imports. With respect to the effect of the dumped or subsidized imports on prices, the investigating authorities must consider whether there has been a significant price undercutting by the dumped or subsidized imports or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which otherwise would have occurred, to a significant degree. (AD Agreement, Art. 3.2; SCM Agreement, Art. 15.2)

      The examination of the impact of the dumped or subsidized imports on the domestic industry shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including actual and potential decline in sales, profits, output, market share, productivity, return on investments, or utilization of capacity; factors affecting domestic prices; the magnitude of the margin of dumping [in the case of dumping proceedings]; actual and potential effects on cash flow; inventories, employment, wages, growth, ability to raise capital or investments. (AD Agreement, Art. 3.4; SCM Agreement, Art. 15.4)

      It must be demonstrated that the dumped or subsidized imports are, through the effects of dumping or subsidies, causing injury. The demonstration of a causal relationship between the dumped or subsidized imports and the injury to the domestic industry shall be based on an examination of all relevant evidence before the authorities. The authorities shall also examine any known factors other than the dumped or subsidized imports which at the same time are injuring the domestic industry, and the injuries caused by these other factors must not be attributed to the dumped or subsidized imports. (AD Agreement, Art. 3.5; SCM Agreement, Art. 15.5)


Argentina

   The cited WTO standards are applied. Articles 8 and 11 of Decree 2121/94 are of supplementary application in this subject, as long as it does not contradict with the Agreement provisions.

   A determination of material injury caused to domestic production is based upon positive evidence and involves an objective examination of:

         (1) the volume of the dumped or subsidized imports and their effect on prices in the domestic market for like products; and

         (2) the consequent impact of the dumped or subsidized imports on domestic producers of such products. (Decree No. 2121/94, Art. 8).

   With regard to the volume of the dumped or subsidized imports, the implementing authority considers:

         (1) whether there has been a significant increase in dumped or subsidized imports when examining import volumes, either in absolute terms or relative to production or consumption in the importing country; and

         (2) with respect to the effect of the dumped or subsidized imports on prices, whether the dumped or subsidized imports have been priced significantly lower than a like product of the importing country, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which would have otherwise occurred, to the same degree.

   No one or several of these factors can give decisive guidance. (Id.).

   It must be shown to the satisfaction of the competent implementing authority that there is a causal link between the import of the product under investigation and the existence of material injury to the domestic industry of the like product.

   The competent implementing authority shall ensure that injury caused by factors other than dumping and subsidization of the product under investigation are not attributed to imports of that product. (Id., Art. 11).

Bolivia

   A determination of injury caused by unfair trade practices shall be based on positive evidence and shall involve an objective examination of the following:

         1. Information on the industry of the product concerned considered as a whole:

               1.1 Volume of imports that are the subject of unfair foreign trade practices to determine whether there has been a significant increase in absolute terms or relative to Bolivian production and domestic consumption;

               1.2 the prices of the imports that are the subject of unfair practices to determine whether they are significantly lower than the prices of like products and also whether the effect of such imports is to depress prices to a significant degree or similarly prevent an increase which otherwise would have occurred;

               1.3 the impact or likely impact on domestic producers of like products, taking into account all relevant economic factors and indices affecting production and sales such as their actual or potential decline, market share, return on investment, utilization of installed capacity, factors affecting domestic prices, the actual and potential negative effects on employment wages and growth, the raising of capital, profits and other factors deemed relevant.

         2. Information to determine the causal relationship between the imports and the alleged injury.

   No one factor is alone sufficient to give decisive guidance on the injury to domestic industry. Bi-ministerial Decision, Art. 30.

Brazil

   Injury means material injury or the threat of material injury to an industry already established or the retardation of the establishment of an industry. AD law, Art. 14; CVD law, Art. 21.

   An injury determination shall be based on positive evidence and shall include an objective examination of

         a) the volume of dumped or subsidized imports,

         b) their effect on prices of the like product in Brazil, and

         c) the consequent impact of the dumped or subsidized imports on the domestic industry. (Dec.1602/95 - Art. 14.1; Dec. 1751/95 - Art. 21.1).

   With regard to the volume of dumped or subsidized imports, it shall be considered whether the volume is not insignificant and whether there has been a significant increase in dumped or subsidized imports, either in absolute terms or in relation to production or consumption in Brazil. (Dec. 1602/95 - Art. 14.2; Dec. 1751/95 - Art. 21.2).

   With regard to the effect of the dumped or subsidized imports on price, it will be examined whether there has been significant price undercutting by the dumped (subsidized) imports as compared with the price of a like product of Brazil, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which otherwise would have occurred, to a significant degree. (Dec. 1602/95 - Art. 14.4; Dec. 1751/95 - Art. 21.5).

   No one or several of these factors can necessarily give a decisive guidance (Dec. 1602/95 - Art. 14.5; Dec. 1751/95 - Art. 21.6). The examination of the dumped (subsidized) imports on the domestic industry shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including actual and potential declines in sales, profits, output, market share, productivity, return on investments, or utilization of capacity; factors affecting domestic prices; the magnitude of the margin of dumping; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments, and, for countervailing duty investigations, in the case of agriculture, whether there has been an increased burden on government support programmes (Dec. 1602/95 - Art. 14.8; Dec. 1751/95 - Art. 21.13).

   This list is not exhaustive, nor can one or several of these factors necessarily give decisive guidance (Dec. 1602/95 - Art. 14.9; Dec. 1751/95 - Art. 21.14).

   It must be also demonstrated that a causal relationship exists between the dumped (subsidized) imports and the injury to the domestic industry, based on an examination of the relevant evidence and of other factors which may at the same time be causing injury to the domestic industry.

   Injury caused by these other factors must not be attributed to the imports. (Dec. 1602/95 - Art. 15 caput; Dec. 1751/95 - Art. 22 caput).

   Other factors that may be relevant in this respect include, among others, the volume and prices of imports not sold at dumping prices (or not subsidized), contraction in demand or changes in the patterns of consumption, trade restrictive practices of and competition between the foreign and domestic producers, developments in technology and the export performance and productivity of the domestic industry. (Dec. 1602/95 - Art. 15.1; Dec. 1751/95 - Art. 22.1).

   The effect of the dumped (subsidized) imports shall be assessed in relation to the domestic production of the like product when available data permit the separate identification of production on the basis of such criteria as the production process, producers' sales and profits. (Dec 1602/95 - Art. 15.2; Dec. 1751/95 - Art. 22.2). If such separate identification is not possible, the effects of the dumped (subsidized) imports shall be based on an examination of the production of the narrowest group or range of products, which includes the like product, for which the necessary information can be provided. (Dec.1602/95 - Art. 15.3; Dec. 1751/95 - Art. 22.3).

Canada

   Subsection 2 of the SIMA defines injury as material injury to a domestic industry.

   Subsection 2 also defines retardation as material retardation to the establishment of a domestic industry.

   Subsection 37.1(1) of the SIMA regulations specifies factors for consideration in injury or retardation determinations, including:

         (1) the total volume of the dumped or subsidized goods;

         (2) whether there has been a significant increase in the volume of such imports of such goods;

         (3) whether the dumped/subsidized goods undercut the price of like goods;

         (4) the effect of the dumped/subsidized goods on domestic prices of like goods;

         (5) the impact of the dumped/subsidized goods on the domestic industry engaged in the production of like goods (e.g., output, sales, market share, profits, etc.); and

         (6) any other factors that are relevant in the circumstances.

   Moreover, subsection 37.1(1) of the SIMA regulations prescribes additional factors that must be considered for the purposes of determining whether the dumping/subsidizing has caused injury, retardation or threat of injury.

   These are:

         (a) whether a causal relationship exists between the dumping or subsidizing of any goods and the injury, retardation, or threat of injury, on the basis of:

               (i) the volumes and prices of imports of like goods that are not dumped or subsidized;

               (ii) a contraction in demand for the goods or like goods;

               (iii) changes in patterns of consumption of the goods or like goods;

               (iv) trade-restrictive practices of, and competition between, foreign and domestic producers;

               (v) developments in technology;

               (vi) the export performance and productivity of the domestic industry in respect of like goods; and

               (vii) any other factors that are relevant in the circumstances; and

         (b) whether any factors other than the dumping or subsidizing of the goods has caused injury or retardation or is threatening to cause injury.

Chile

   In order to be actionable, there must be:

         (i) the existence of a distortion of prices,

         (ii) evidence that the distortion causes or threatens actual imminent serious injury to the domestic industry; and

         (iii) a ususal link between the imports and the alleged injury. (Decree 575, Title II, Art. 10).

   The final decision shall contain the findings relating to the margin of price distortion, the considerations relating to the determination of the injury, and the considerations relating to the determination of the causal link between the price distortion investigated and the injury caused or threatened to the domestic industry. (Decree 575, Title II, Art. 15).

   The Commission makes its decision based on information provided by the interested parties or third persons.

Colombia

   Evidence of damages: Determination that the imports that are the object of dumping or subsidies may cause or threaten to cause damages, or that they may substantially delay establishment of national production in the importing country.

   In the event that the country does not have international commitments that require it to provide evidence of damages, corrective measures may be applied merely upon determining the existence of unfair practices, for which purpose consideration shall be given to whether evidence of damages to Colombian exports was provided in the exporting country or in the country of origin (Decree 299, Chap. II, Art. 2).

   The general concept of damages may refer to considerable damages, to the threat of considerable damages, or to a substantial delay in establishing production in Colombia (Decree 299, Chap. II, Art. 2).

   Examination of damages: Determination of the existence of damages shall be based on sufficient evidence, and shall include an objective examination of the following factors:

         (1) Information on the national production in question, considered as a whole, and taking into account:

               (1.1.) The volume of imports at the dumping or subsidized price, especially to determine if there was a significant increase, both in absolute terms as well as in relation to total production or consumption in the country, among other things Imports shall be considered as de minimis if their volume is less than 1% of the volume of national consumption of the product under investigation, or if said imports from a given country account for less than 3% of the total imports of that product.

               (1.2.) The effects of imports on the relevant national production trends, in areas such as prices, production, market shares, profits, use of installed capacity, inventory, sales, attracting capital or investment, employment, and wages, among others;

         (2) Information as to the national producers affected, taking into account the impact on production, use of installed capacity, sales, market shares, prices, growth, profits, return on investments, cash flow, capitalization, and employment and wages, among other things;

         (3) Information to determine the cause-effect relationship between imports and the damage caused, especially if buyers changed suppliers.

   None of the factors considered in subparagraphs (1) and (2) shall alone be a determining factor in the decision as to whether or not damages were incurred. (Decree 299, Chap. 5, Art. 13).

Costa Rica

   The term "injury" shall be taken to mean material injury to a domestic industry, threat of material injury to a domestic industry or material retardation of the establishment of such an industry.

   A determination of injury for purposes of Article VI of the GATT 1994 shall be based on positive evidence and involve an objective examination of both

         (a) the volume of the dumped imports and the effect of the dumped imports on prices in the domestic market for like products, and

         (b) the consequent impact of these imports on domestic producers of such products.

   With regard to the volume of the dumped imports, the investigating authorities shall consider whether there has been a significant increase in the dumped imports, either in absolute terms or relative to production or consumption in the importing country.

   With regard to the effect of the dumped imports on prices, the investigating authorities shall consider whether there has been a significant price undercutting by the dumped imports as compared with the price of a like product of the importing country, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which otherwise would have occurred, to a significant degree.

   No one or several of these factors can necessarily give decisive guidance.

   The examination of the impact of the dumped imports on the domestic industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including actual and potential decline in sales, profits, output, market share, productivity, return on investments, or utilization of capacity; factors affecting domestic prices; the magnitude of the margin of dumping; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments.

   This list is not exhaustive, nor can one or several of these factors necessarily give decisive guidance.

   It must be demonstrated that the dumped imports are [...] causing injury [...].

   The demonstration of a causal relationship between the dumped imports and the injury to the domestic industry shall be based on an examination of all relevant evidence before the authorities.

   The authorities shall also examine any known factors other than the dumped imports which at the same time are injuring the domestic industry, and the injuries caused by these other factors must not be attributed to the dumped imports.

   Factors which may be relevant in this respect include, inter alia, the volume and prices of imports not sold at dumping prices, contraction in demand or changes in the patterns of consumption, trade restrictive practices of and competition between the foreign and domestic producers, developments in technology and the export performance and productivity of the domestic industry.

Dominican Republic

Ecuador

El Salvador

   There is no specific provision but El Salvador applies the rules in accordance with the WTO Antidumping and Countervailing Duty Agreements.

Guatemala

   The CARUTP applies the WTO standard.

Honduras

   The CARUTP applies the WTO standard.

Jamaica

Mexico

   Article 39 of the Law establishes that damage is the proprietary loss or impairment or the deprivation of any legal and normal gain that national production of the goods in question may or could suffer.

Nicaragua

   The CARUTP applies the WTO standard.

Panama

   Unless otherwise indicated, harm is understood as material harm caused to an area of national production, the threat of material harm to an area of national production, or a marked retardation in the establishment of such production. Material harm or injury is understood as a significant loss or erosion of wealth, or the significant loss or potential loss of any other normal and legitimate profits by an industry as an immediate result of unfair trade practices.

   Information on the volume and effects of imports of identical or similar goods from at least two countries will be gathered to measure the injury caused or threatened, if such goods are under investigation and are competing against one another and against a domestic product provided that the volume of imports from each country is not insignificant and the margin of dumping or the amount of the subsidy from each country is not de minimis.

Paraguay

   Major injury to the domestic industry, a threat of major damage to the domestic industry, or a significant delay in the establishment of the domestic industry.

   A determination of injury, threat of injury, or significant delay in establishing the domestic industry, shall be based on positive evidence and involve an objective examination of both of the following factors:

         (a) the volume of the dumped or subsidized imports and the effect of these on the prices of like products in the Paraguayan market, and

         (b) the consequent impact of such imports on domestic producers of like products.

   With regard to the provision at Article 6.1(a), the investigating authorities shall consider whether there has been a significant increase in imports, either in absolute terms or relative to production or consumption in the country. To determine the effect of such an increase on prices, the investigating authorities shall consider whether there has been a significant price undercutting and whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which otherwise would have occurred, to a significant degree.

   The volume of dumped or subsidized imports shall be considered insignificant if it can be established that the goods from a given country account for less than 3% (three per cent) of the imports of the like product, except when those countries that individually account for less than 3% of the imports of the like product, when added up, account together for more than 7% (seven per cent) of these imports.

   The examination of the impact of dumped and subsidized imports on the domestic industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including actual and potential decline in sales, profits, output, market share, productivity, return on investments, or utilization of capacity factors affecting domestic prices; the magnitude of the margin of dumping or the amount of the subsidy; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments.

   This list is not exhaustive, nor shall any of these factors in isolation or several of them taken together necessarily suffice to justify a decision.

Peru

Santa Lucia

Trinidad and Tobago

   Material injury means, in respect of the dumping or subsidizing of any goods, material injury to the production in Trinidad and Tobago of like goods. (Sec. (3)(1)).

United States

   The U.S. statute defines material injury as harm which is not inconsequential, immaterial, or unimportant.

   In making a material injury determination, the ITC evaluates the following factors:

         (1) the volume of imports of the subject merchandise;

         (2) the effect of imports on U.S. prices of the like product; and

         (3) the impact of such imports on the affected domestic industry.

   In evaluating the volume of imports, the ITC considers whether the volume of imports, or any increase in that volume, either in absolute terms or relative to production or consumption in the U.S., is significant.

   In evaluating the effect of imports on prices, the ITC considers whether there has been significant price underselling by the imported merchandise as compared with the price of domestic like products in the U.S., and whether the effect of imports of such merchandise otherwise significantly depresses prices or prevents price increases which otherwise would have occurred.

   In examining the impact on the U.S. industry, the ITC is required to evaluate all relevant economic factors which have a bearing on the state of the U.S. industry, including:

         (1) actual and potential decline in output, sales, market share, profits, productivity, return on investments, and capacity utilization;

         (2) factors affecting domestic prices;

         (3) actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital, and investment;

         (4) actual and potential negative effects on the existing development and production efforts of the domestic industry, including efforts to develop a derivative or more advanced version of the domestic like product; and in AD proceedings

         (5) the magnitude of the dumping margin.

   U.S. law includes a special provision, referred to as the "captive production" provision, to assess import penetration and financial performance in situations where

         (1) U.S. producers sell a significant volume of their production of the domestic like product to U.S. customers (i.e., the merchant market) and internally transfer a significant volume of their production of that same like product for further internal processing into a distinct downstream product (i.e., captive production)

         (2) the captively consumed products does not enter the merchant market for the domestic like product;

         (3) the domestic like product is the predominant material input in the downstream article; and

         (4) the production of the domestic like product sold in the merchant market is not generally used in the production of the downstream article.

   If the ITC determines that the captive production provision applies, the ITC will focus primarily on the merchant market in determining the market share and in analyzing the financial performance of the U.S. industry.

Uruguay

Venezuela

   It must be demonstrated to the Commission's satisfaction that there is a causal relationship between the dumped or subsidized imports and "material injury" or "threat of material injury" or "appreciable material retardation of the start-up of the domestic industry producing like goods...". (1993 Regulations, Art. 46).

   Material injury will be found when at least two of the following conditions are met (1993 Regulations, Art. 50):

         1. The volume of dumped or subsidized imports is significant and has increased in absolute terms or relative to the domestic production of like goods [Percentage guidelines are given];

         2. Prices are "considerably lower than those for like goods produced in the country" or have the effect of depressing or suppressing prices;

         3. The subject imports have an adverse impact on producers of domestic like goods, taking into account volume, sales, market share, profits, return on investment, etc.

 
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