Trade lawyer Daniel Moulis reports on proposed changes to Australia's anti-dumping and countervailing duty law here. There's a lot going on with these proposals, but here's one aspect I thought was particularly interesting:
... a private Member’s bill has been introduced into Parliament with the intention of making it easier for Australian industry to have dumping and countervailing duties imposed against competitive imports.
...
By way of quick summary, Senator Xenophon’s proposals, in his private Member’s bill, are these:
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- that importers should bear the onus of proving that goods are not dumped or subsidised;
- that a rebuttable presumption of material injury caused by dumping arises, if dumping is found to have occurred;
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Do the AD Agreement or SCM Agreement tell us anything about the legality of burden shifting and presumptions of this sort? On the injury issue, note that AD Agreement Article 3.1 says:
3.1 A determination of injury for purposes of Article VI of GATT 1994 shall be based on positive evidence and involve an objective examination of both (a) the volume of the dumped imports and the effect of the dumped imports on prices in the domestic market for like products, and (b) the consequent impact of these imports on domestic producers of such product.
What if the importer does not contest the injury allegation, and thus if dumping is found the investigating authority automatically finds injury? Based on Article 3.1, it's hard to see how the investigating authority would be permitted to find injury based solely on the rebuttable presumption. They would have to do some actual analysis. A related question might be, would this provision, if adopted in the statute, violate Article 3.1 "as such"? Or would you have to wait for actual application?
Any further thoughts from readers?
