Is Dumping Still Harmful? New Thinking on Antidumping in the Global Free Trade

• Author: Ying Bi
• Position: Assistant professor of law at Zhejiang University in Hangzhou, China
• Pages: 29-51

Is Dumping Still Harmful? 29

VI JEAIL 1 (2013)

Ying Bi

∗

The debate on whether antidumping law should be integrated into competition

      

this paper attempts to contribute to the debate by reexamining the fundamental

    

of dumping and the evolution of antidumping law indicates that the current

antidumping system neither serves the broad goal of preventing 󼚨unfair trade󼚩 nor

functions as a 󼚨quasi-safeguard󼚩  

     

rules target the same predatory conduct but they are more meticulous than

     

    

     

achieved in bilateral and regional trade areas before being implemented at the



Keywords

Antidumping, Predatory Dumping, Competition, Fair Trade, Interface

Theory, Predatory Pricing

      

explanation of why the practice of 󼚨dumping󼚩 is considered 󼚨unfair󼚩 so as to

Is Dumping Still Harmful?

New Thinking on

Antidumping in the

Global Free Trade

∗ Assistant professor of law at Zhejiang University in Hangzhou, China. LL.B./LL.M.(Tsinghua), LL.D.(Kyushu). This

paper presents one of the stage achievements of the National Social Science Fund Project of China (No.11CFX080)

titled, “The Harmonization of Antidumping Rules and Competition Rules in the China-Japan-Korea FTAs.” The

author gratefully acknowledges the insightful comments by two anonymous reviewers of the Journal. Special thanks

also go to Simon Vande Walle for his editorial suggestions. The author can be contacted at: biying@zju.edu.cn /

Address: Zhejiang University Guanghua Law School, 51 Zhijiang Road, Hangzhou, Zhejiang, P.R.China.

2013-05-27 󱹙󲻹 2:19:15

30 Ying Bi

warrant remedial measures. Rather the 󼚨unfairness󼚩 of the practice appears to

have seemed self-evident to legislators and trade negotiators.1

I. Introduction

With the proliferation of antidumping laws and actions around the world, the

antidumping rules󼚩 increasing potential for protectionist abuse has been criticized in

almost all of the current literature.

2

Thousands of pages with various proposals have

been written, all of which contain the same purpose of reforming the antidumping

system. Most scholars are of the opinion that the misuse of antidumping is mainly

due to its arbitrary and biased rules and procedures, so continuous efforts must be

made to make them more stringent and transparent, less arbitrary and abusive.

3

However, years of efforts at WTO devoted to the Antidumping Agreement (󼚬ADA󼚭)

seem to suggest that there are no substantial improvements; many of the practices

that have been identified as leading to significant protectionist biases remain

untouched.

4

Recently, an increasing number of scholars have started to question the

fundamental basis for the existence of the entire antidumping system. They have

pointed out that antidumping rules are established based on several false premises

without justification from the perspective of competition. In fact, those rules are

     

      

antidote to the abuses is competition policy. Efforts should be directed at integrating

antidumping with competition. This has become known as the 󼚨substitution debate.󼚩

5

1 P. Ehrenhaft, Is Interface of Antidumping and Antitrust Laws Possible? 34 GEO. WASH. INT’L L. REV. 367 (2002).

2 B.LINDSEY & D. IKENSON, ANTIDUMPING EXPOSED : THE DEVILISH DETAILS OF UNFAIR TRADE LAW viii (2003).

3 A. Aggrawal, The WTO Antidumping Code: Issues for Review in Post-Doha Negotiations, 99 Working Paper (2003),

available at http://www.icrier.org/pdf/WP99.pdf (last visited on Apr. 5, 2013)

4 B. Hoekman & P. Mavroidis, Antitrust-Based Remedies and Dumping in International Trade, 1347 Policy Research

Working Paper (1994), available at http://www-wds.worldbank.org/servlet/WDSContentServer/WDSP/IB/1994/08/

01/000009265_3970716141633/Rendered/PDF/multi0page.pdf (last visited on Apr. 5, 2013).

5 S. Waller, Bringing Globalism Home: Lessons from Antitrust and Beyond, 32 LOY. U. CHI. L. J. 113 (2000). See

also M.TAYLOR, INTERNATIONAL COMPE TITION LAW: A NEW DIM ENSION FOR THE WTO? 260-285 (2006); A. Knorr,

Antidumping Rules vs. Competition Rules, Institution for World Economics and International Management (2004),

available at http://www.iwim.uni-bremen.de/publikationen/pdf/W031.pdf (last visited on Apr. 5, 2013); J. Finger

& A. Zlate, Antidumping: Prospects for Discipline from Doha Negotiations, Working Papers in Economics (2005),

available at http://escholarship.bc.edu/cgi/viewcontent.cgi?article=1184&context=econ_papers(last visited on

Apr. 5, 2013) ; I. Wooton & M. Zanardi, Trade and Competition Policy: Anti-Dumping versus Anti-Trust (2002),

available at http://homepages.strath.ac.uk/~hbs03116/Research/Trade%20and%20Competition%20Policy%20

Final.pdf(last visited on Apr. 5, 2013); G. Niels, What is Antidumping Policy Really About? 14 J. ECON. SURV. 485

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