Antidumping

Hello,

One of the main requisite of initiating an Antidumping Investigation is that the quantity of imports should exceed the deminimis level of 3% of total imports of like product.

I would like to know how this can be ensured by the Investigating authorities in the following case:

The product under investigation is defined as say, all types of T-shirts with only round collar. Let us further assume that there is no specific customs code for round collar T-shirts and such a model may be found partly in atleast 50 different customs code under the chapter of T-shirts. While statistics will obviously be available for each of the 50 customs code, there are no means to determine the composition of the subject product within these 50 codes because the invoice, packing list etc donot distinguish the T-shirts on the basis of neck type.

In the above circumstances,

a. How do the Investigating authorities convince themselves of the quantum of imports of the subject product and the deminimis level?
b. Are there are any GATT/WTO jurisprudence on whether such a product definition ( included partly under various codes) which cannot be quantified through customs statistics, can at all be sustained in an AD investigation?
c. If such an AD investigation on the subject product is indeed initiated despite this limitation, what is the defence available to the exporter?

On the first question, while this information may be difficult to get, presumably it is available somewhere. The petitioner would need to come up with evidence of some sort in order to have the investigation initiated. If they cannot get actual data on round collar shirts, perhaps they can estimate the percentage of shirts with round collars, and from that extrapolate the number of round collar shirts based on the total shirt imports.

For the second, I don't believe there are any cases directly on point. However, the concept of "like product" under AD Agreement Article 2.6 may be relevant here. It could be argued that you cannot look only at "round collar" shirts, but rather must examine the whole range of "like products." Thus, other T-shirts must be considered as well, because the "round collar" does not cause the shirts to be un-"like" other T-shirts. Therefore, an investigation based on "round collar" shirts is not consistent with the AD Agreement because it does not consider the full range of like products. One WTO panel has rejected a similar argument, but the AB has not yet ruled on this.

On the last question, one answer is that the exporter can argue that the investigating authority has not conducted a proper "like product" analysis.

Hope that helps. Sorry I can't offer more, but that's the best I can do with this one!