GATT Article VI:1 states the following about dumping:
The contracting parties recognize that dumping, by which products of one country are introduced into the commerce of another country at less than the normal value of the products, is to be condemned if it causes or threatens material injury to an established industry in the territory of a contracting party or materially retards the establishment of a domestic industry. ...
The statement that injurious dumping is to be "condemned" has always bothered me. Instead of condemning it, couldn't everyone spend more time figuring out a theory of when "dumping" should be of concern? What exactly is anti-competitive, or otherwise wrong, with dumping as it is defined in GATT Article VI and the AD Agreement? In defining dumping, these agreements don't rely on anything close to the standards commonly used in antitrust/competition policy.
Despite my love of tracing treaty language through its negotiating history, somehow I had never looked at where the "condemned" language came from. But recently I was reading this article from Gary Horlick and Eleanor Shea, and saw the following statement:
Although Article VI states that dumping is to be "condemned" if it causes injury (language not found in the initial U.S. draft for the GATT, but added later by Cuba and Lebanon) ...
"Added later by Cuba and Lebanon" was kind of a shocker! I think I just assumed the "condemnation" came from someone in the current group of big anti-dumping users, but it turns out that country positions on anti-dumping were very different back then.
To dig a little deeper into all of this, I went through the draft GATT texts here. There's no mention of condemning dumping until we get to the Draft of September 10, 1947 (E/PC/T/186), where we see this comment on the Article 33 anti-dumping and countervailing duties text that references Cuba and Lebanon:
Article 33.
The Delegations of Cuba and Lebanon would have preferred to introduce the Article by an express statement of condemnation of dumping.
Trying to find out more, I came across this article from trade lawyer Ross Denton, which states:
... certain nations wanted to make the international principles even more effective against dumping. Some wished to include an express condemnation of dumping,73 ...
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73. See, e.g., the views of Cuba and Lebanon, Revised Annotated Agenda for Chapter IV, GATT E/CONF. 2/C. 3/10, at 2-3 (1947), where they suggested, inter alia, that
the practice of "dumping" be condemned, in whatever form it may manifest itself, and that all Members shall do the utmost within their powers to prevent and penalize such practices, pursuant to a fair international commercial policy. Consequently, it is also agreed that all members shall counteract any and all forms of dumping with appropriate measures and also shall penalize such practices with the view to the protection of their domestic interests ....
China, Argentina, and Mexico proposed similar condemnations.
Looking then at GATT E/CONF. 2/C. 3/10, this document states:
Article 33 - Anti-dumping and Countervailing Duties
General
10. The delegations of Cuba and Lebanon maintain their view, recorded in the Geneva Report, that they would prefer to introduce this Article by an express statement of condemnation of dumping. To this end the delegation of Cuba proposes (document C.3/1/Add.52) the following amendments to this Article:
...
1. It is agreed by the member countries, and so It is declared, that the practice of "dumping", be condemned, in whatever form it may manifest itself, and that all Members shall do the utmost within their powers to prevent and penalize such practices, pursuant to a fair international commercial policy. ...
...
11. The delegations of Syria and Lebanon propose (document C.3/1/Add.20) that the following new paragraph should he inserted as the first paragraph of this Article:
"1. The Members recognize that the practice of dumping in any form is to he condemned and is inconsistent with the general purposes of this Charter."
12. The delegation of Argentina proposes (document 11/Add.3) that this Article and its title be replaced by the following:
"PREVENTION OF DUMPING. The Members condemn the practice of dumping and recognize the need to resort to every means possible for combating it. They undertake to spare no effort to that end. The Organization shall undertake studies and inquiries to provide information on dumping and shall communicate the results of such inquiries to Members, so that the latter may adopt such counter-measures as they think fit."
13. The delegation of China proposes (document 11/Add.9) that the following be adopted as the first paragraph of this Article:
"No dumping of any product of any Member country into any other Member country shall be made. Each Member country shall undertake by effective measures appropriate to its governmental system to prevent the dumping of any of its products into the territories of any other Member country. If, in spite of the obligation undertaken under this provision, dumping still takes place, the Member country into the territories of which the products of any other Member country are being dumped shall be free to impose anti-dumping duties on such products or to take other appropriate measures to deal with the situation."
14. The delegation of Mexico proposes (document C.3/1/Add.43) that paragraph 1 be replaced by the following:
"1. Members condemn the practice of dumping in all its possible forms and aspects, and authorize affected countries to adopt the necessary measures to combat it, and also to enact appropriate domestic legislation against this practice. No Member shall encourage, support or participate in campaigns designed to initiate or develop the practice of dumping."
In response to these proposals, the change to the original GATT Article VI text shows up in the Havana Charter, as follows:
Article 34: Anti-dumping and Countervailing Duties
1. The Members recognize that dumping, by which products of one country are introduced into the commerce of another country at less than the normal value of the products, is to be condemned if it causes or threatens material injury to an established industry in a Member country or materially retards the establishment of a domestic industry.
John Jackson explains in his 1969 World Trade and the Law of GATT book that:
At the Havana Conference, the antidumping article was carefully reconsidered. This reconsideration resulted in a number of changes to the article. At the Second Session of the CONTRACING PARTIES of GATT, it was decided to replace the existing GATT Article VI with the text as adopted at Havana ...
The Second Session took place in September 1948.
I'd love to find out more about what the various governments who wanted to "condemn" dumping had in mind here, but that is a negotiating history deep dive that is beyond my capabilities. Clearly, it was a different world back then in terms of which countries were most concerned about dumping. I assume the U.S. views evolved in the direction of strong anti-dumping enforcement when it began to face more competition from imports, as countries rebuilt their industries after World War II. The changes in U.S. anti-dumping laws in 1980 are noteworthy in this regard. As Horlick and Shea note: "the use of antidumping law in the United States increased significantly in the 1980s, with U.S. cases totalling three hundred and forty-six from 1980 to 1986, compared with one hundred and thirty-five from 1970 to 1976."
Back in the early 1990s, there was a lot of intellectual energy around anti-dumping reform. That seems to have dried up, as trade experts moved on to new issues or got worn down by the fight; and more governments started using anti-dumping as a legal and acceptable form of protectionism, so there were fewer anti-dumping skeptics taking part in the negotiations. In my view, anti-dumping is still a big problem for the trading system, as it leads to constant criticism of imports as "unfair" -- and, of course, significant trade restrictions -- without a solid basis for that claim. But convincing people to pay attention to this, and to rethink the existing rules in this area, is a daunting task.
