Case: United States Anti-Dumping Duty on Dynamic Random Access Memory Semi Conductors (DRAMS) of one Megabit or above from Korea (Report of the Panel 99-0256)
Outcome: discussed
WTO panel determined that the mere fact that no present dumping is occurring at the time of a review under Art 11.2 does not entail the consequence that anti-dumping measures must be revoked: United States Anti-Dumping Duty on Dynamic Random Access Memory Semi Conductors (DRAMS) of one Megabit or above from Korea (Report of the Panel 99-0256) at [6.24], [6.32]-[6.33]. The panel pointed out that Art 11.2 envisaged the local decision-maker enquiring "... whether the injury would be likely to continue or recur if the duty were removed or varied" (panel's emphasis). The WTO panel continued DRAMS (99-0256) at [6.28]: "In conducting an Article 11.2 injury review, an investigating authority may examine the causal link between injury and dumped imports. If, in the context of a review of such a causal link, the only injury under examination is injury that may recur following revocation ( i.e. , future rather than present injury), an investigating authority must necessarily be examining whether that future injury would be caused by dumping with a commensurately prospective timeframe." Construction of Div 5 of Pt XVB of the Act's requirements on a review In s 269SM(1) the Parliament identified that Pt XVB dealt with the taking of anti-dumping measures in respect of goods whose importation into Australia involved a dumping of those goods "... that injures, or threatens to injure, Australian industry". The Dumping Duty Act , likewise, imposed a duty, once a notice had been published under s 269TG(2), equal to the difference between the normal value of the dumped goods and their export price. Evidently, the purpose of that rate of duty was to increase the price in Australia of the imported goods to a level where that importation did not injure or threaten to injure the Australian industry. And ss 269SM(5), 269ZA(1), 269ZC(1) and (2) provided that Div 5 of Pt XVB gave a right to review that was conditioned on a demonstration by an applicant for review that there appeared to be reasonable grounds for asserting a change in circumstances that was material enough, if made out, to warrant a change (including revocation) of an existing notice. The filter provided in ss 269ZA(1)(b) and 269ZC(1) and (2) was that an applicant for review must, first, put forward a case for a review satisfying the statutory criteria and, secondly, the CEO must consider whether there are currently reasonable grounds for the assertion of changes to a relevant variable factor or that, had the existing anti-dumping measures not been taken, the Minister would not be entitled to take such measures. The level of satisfaction of the CEO, at this point, was directed to there being sufficient in the application to justify investigation. The WTO Appellate Body decisions recognised that in a review, no single prescriptive test or methodology necessarily would apply. The considerations in each review will need to address the facts and circumstances of the particular anti-dumping measures that are in place in the context of the current market and other factors: Oil Country Tubular Goods (AB-2004-4) at [283]-[294]; US Corrosion Resistant Steel (AB-2003-5) at [113]-[115]. Nonetheless, Art 11.1 identifies the key issue in a review as being the necessity to impose the anti-dumping duty "... to counteract dumping which is causing injury" (in the sense of actual or threatened injury). Here, the only injury that could be under examination (given the respondents' admission that in the review period there was no evidence or other material before them that any injury to Qenos was caused by Siam's exports) must have been the threat of future injury that could be based on the likelihood of a recurrence of past injury: see too the WTO panel decision in DRAMS (99-0256) at [6.28].