Case: United States Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina (AB-2004-4)
Outcome: discussed
respondents argued that s 269TAE(2B) had a limited role, and operated only in the situation in which there were no measures in place. They argued that s 269TAE(2B) had no relevance to an assessment of dumping, as opposed to material injury. The respondents contended that s 269ZHF(2) stated its own test for the purposes of a review under Div 6A of Pt XVB , and it was not constrained by, and applied in a different situation to, the test for imposing the measures originally under s 269TG(2) , using s 269TAE(2B). In addition, the respondents argued that they had considered the changes in market conditions, including that the market had continued to slow, in assessing that injury was likely, not merely threatened. They argued that there was also evidence of current pricing that would cause injury but for the measures and that sales at dumped prices would be below the non-injurious price. They relied on the decision of the WTO appellate body in United States Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina (AB-2004-4) at [271]-[285] as supporting the approach that they had taken. ISSUE THREE Should the respondents have excluded any factor other than Siam's exportation to Australia in considering whether any injury to Qenos was threatened? Siam argued that the CEO made no findings in Report 137 about Siam or its relationship to any material, or other, injury to Qenos from dumping. Rather, Siam complained that the Report merely asserted, without any analysis or reasoning, that Customs had not attributed any potential injury from other factors as increasing any potential injury from dumping. It contended that s 269TAE(2A) required the respondents, first, to consider whether any other factors were causing or threatening to cause material injury to the Australian industry and, secondly, not to attribute that injury to any such factor. The WTO Appellate Body found that it was necessary to conduct an analysis that rested on a sufficient factual basis in order for the anti-dumping agency to determine the likelihood of an injury based on "reasoned and adequate conclusions": Oil Country Tubular Goods (AB-2004-4) at [284]. In arriving at a conclusion under s 269TAE(1), the Minister must take account of the matters prescribed in ss 269TAE(2B) and 269TAE(2A). Thus, the question of the foreseeability and imminence of the threat of material injury must be addressed by eliminating factors other than the exportation of Siam's dumped goods in considering whether that dumping alone would be likely to lead to material injury to Qenos if the measures expired. The other aspect of a consideration whether an injury is caused or threatened is that the injury under consideration must be, itself, material. Once again, the imposition of measures is not authorised unless there is more than just a mere injury actual or threatened. Part XVB requires that the injury have the character of materiality to an Australian industry producing like goods. Thus, in arriving at a reasoned and adequate conclusion based on sufficient facts for the purposes of imposing or reviewing the existing or continuation of measures, the Minister must address the question of the materiality of any injury that is under consideration. Here, Report 137 adverted to a number of relevant changes in circumstances. First, it noted the removal of Customs duty from 1 January 2008. This factor could impact on the market in Australia immediately following the period of review ending in the December 2007 quarter. And, Report 137 noted that regional markets had begun to slow, which, it suggested, was likely to create an environment where Qenos was more susceptible to injury caused by dumping. It also concluded that Qenos' performance showed some signs of deterioration towards the end of the five quarters examined.