Here's more on the issue of cash payments to settle anti-dumping cases, from a reader who wants to remain anonymous:
The Wall Street Journal article has been picked up and commented on by others. See, e.g., http://www.cato-at-liberty.org/tony-soprano-meets-the-antidumping-law/; http://www.furnituretoday.com/article/535913-Antidumping_cash_settlements_attract_national_media_attention.php. Private settlements of U.S. antidumping cases appear to be growing and widespread, including most notably in the huge shrimp antidumping case.
In the Wooden Bedroom Furniture from China antidumping case covered by the Journal article, settlements got much attention in the sunset review process. While it appeared that neither the U.S. International Trade Commission (ITC) nor the US Department of Commerce (DOC) were happy about them, both seem to wash their hands of them saying they had no authority to address, and indicate it is the jurisdiction of those responsible for competition/antitrust law.
Private settlements do raise competition issues since competitors (petitioner US producers) jointly agree to as what are effectively restrictions on trade/competition (imports) outside of any statutory authorization (e.g., the antidumping statute). Indeed, the antidumping statute only allows for DOC settlement of antidumping cases. Such anticompetitive actions are the jurisdiction of the U.S. Justice Department, more than the ITC or DOC. Such anticompetitive concerns are compounded by indications that those Chinese wooden bedroom furniture exporters who sell to U.S. petitioner producers get better settlement terms than those who do not.
A further concern is that the U.S. Congress eliminated the Bryd Amendment. As a result, petitioner U.S. producers are no longer supposed to receive antidumping duty payments. But then right thereafter that Congressional action U.S. petitioner producers have devised private schemes to do what Congress sought to end. While Congressmen have continued to testify at ITC/DOC for strong dumping law, they have been totally quiet as to the effective quiet transition of U.S. antidumping law into a vehicle for private settlements outside of the public scrutiny, where the true administrators of the antidumping law becomes private practitioner counsel.
These private settlements seem to pay for continued antidumping litigation by U.S. petitioners that would not otherwise occur. That raises concerns similar to concerns (both domestically and internationally) about the Byrd Amendment. But individual foreign exporters can have little choice but to settle under petitioner U.S. producer terms, especially when (as in the case of Wooden Bedroom Furniture from China) the vast bulk of imports are at lower prices from countries not subject to antidumping action (e.g., Vietnam, Malaysia, Indonesia), with total imports up, such that the issue is which country imports supply the U.S. market, and not U.S. production versus imports.
