眾律國際法律事務所

The Determination of Injury in the WTO Antidumping agreement

Determination of injury consists on determining whether the dumped imports have caused material injury. It shall be based on positive evidence and involve an objective examination of:

1. the volume of the dumped imports: the authorities investigating shall consider whether there has been a significant increase in dumped imports, either when it comes to absolute terms or relative to production or consumption in the importing country.
2. the effect of the dumped imports on prices in the domestic market for like products: the investigating authorities shall consider whether there has been a significant price undercutting by the dumped imports in comparison with the price of the like product in the importing country.
3. the consequent impact of these imports on domestic producers of such products, which shall include an evaluation of all the relevant economic factors and indices, having a bearing on the state of the industry and including actual and potential decline in sales, profits, output, market share, productivity, return on investments, utilization of capacity, factors affecting domestic prices, etc.

Material injury: demonstration

As mentioned above, the determination of material injury must be based on positive evidence and also involve and objective examination of dumped imports. It must be demonstrated that the dumped imports are causing injury within the meaning of the Agreement. The demonstration of a causal relationship shall be based on an examination of all relevant evidence before the authorities, who shall also examine any known factors other than the dumped imports which at the same time are injuring the domestic industry.

With respect to cases where injury is threatened by dumped imports, the application of anti-dumping measures shall be considered and decided with special care.

Definition of domestic industry

The authorities shall identify the domestic industry before addressing the injury issues. In general, in accordance to Article 4:

The term “domestic industry” shall be interpreted as referring to the domestic producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion of the total domestic production of those products.

There are two exceptions to this principle:

1. Where domestic producers are related to exporters or importers or themselves import the dumped products, they may be excluded from the definition of domestic industry, since such producers may benefit from the dumping and distort the injury analysis.
2. A regional industry comprising only producers in a certain market may be divided into two or more competitive markets and the producers shall be regarded as a separate industry if (a) producers sell all or almost all of their production of that product in that market, and (b) the demand in that market is not to any substantial degree supplied by producers of the product in question located elsewhere in the territory. In such circumstances injury may be found to exist even where a major portion of the total domestic industry is not injured, if it is provided that there is a concentration of dumped imports into such an isolated market and that the producers of all or almost all the production within such market are being injured.

Reference:

Article 3 of the WTO Antidumping Agreement

https://www.wto.org/english/docs_e/legal_e/19-adp.pdf

http://unctad.org/es/Docs/edmmisc232add14_en.pdf