Hebrew University Faculty of Law, Winter 1998, Vol. 32, Number 1

 

Talia Einhorn*

 

 

 

1. Introduction

Dumping is defined, basically, as the sale of goods to an export market at a price below that charged for comparable goods in the exporter's home market. The General Agreement on Tariffs and Trade (GATT) does not forbid such action, not even when injurious to the competing domestic industry. However, it has taken the view that dumping constitutes an unfair trade practice. Under GATT, Article VI Contracting Parties (or Members, as they are now termed in the GATT 1994 Agreements) are authorized, as an exception to other GATT obligations, to unilaterally impose antidumping (hereinafter: AD) duties to counteract the effects of dumping. The duties should create a level playing field in which producers all over the world will be able to compete fairly with each other. The principles sound simple and straightforward, yet their application is one of the most contentious topics in international trade law.

The economic coherence of AD rules is controversial.1 In international trade, price discrimination between national markets is typically made possible when the exporter has a powerful position in the home market and re-exportation to that market is not feasible. In the domestic arena price discrimination is countered by the laws of competition and antitrust. International trade law offers states a very different remedy, that first and foremost protects the competing local industry, regardless of the procompetitive or anticompetitive effects of dumping on the market as a whole. Dumping may be very beneficial to consumers and industries that regularly use such goods. Unfortunately, states often tend to place industrial policy, intended to protect the profitability, turnover, productivity and other such interests of their domestic industry, above the interests of the public at large in rules that would safeguard free competition in their markets as such.2

The 1994 WTO Agreement, adopted by 124 countries and the EC on 14 April 1994, is the most elaborate attempt ever made at creating an economic order that would enhance international trade, by providing it with a rule-oriented atmosphere that should prevail in all Members. One is tempted to think that free trade may simply be attained in a passive manner that would let the market forces work. Quite the opposite is true. It is planned economies that require only one simple legal principle: the plan is law. Market economies must be based upon a sophisticated and a differentiated system of private and public law.3 Attaining international free trade requires not only cooperation on the international level, but also the implementation of domestic rules that would make the authorities of every Member State support the rules rather than bend them in favour of local interest groups. Only through such rules would citizens all over the world be able to enjoy their rights to pursue international trade activities and explore the advantages conferred on the public at large.

Mindful of this need and aware that direct application of WTO law by national courts is a complex and not very promising possibility at present, 4 the authors included a provision, requiring all Members to ensure the conformity of their laws, regulations and administrative procedures with their obligations under the Agreements.5 These obligations include the Agreement on Implementation of Article VI of GATT 1994 (hereinafter: "the Antidumping Code", or "Code").6 Art. 1 of the Code provides that "antidumping measures shall be applied only under the circumstances provided for in Article VI of GATT 1994 and pursuant to investigations initiated and conducted in accordance with the provisions of this Agreement". The Code commands exclusivity; no specific action against dumping of exports from another Member can be taken except in accordance with the Code and no reservations may be entered with respect to any of its provisions without the consent of the other Members (art. 18). Being neither too formalistic nor loose-ended, the rules are intended to guarantee transparency, certainty, a measure of uniformity in their application in different jurisdictions, and due process to all, including foreign and small companies. To be sure, uniformity will not be complete. As a result of the negotiations and compromises, the WTO rules leave the Member States a measure of discretion regarding the implementation of the rules in their respective legal systems. The specific solutions chosen by each Member should reflect its own economic interests and social needs.

Israel ratified the WTO Agreements in January 1995. Since Israel's implementing legislation should reflect its own interests, those will be first considered. Concurrent with ratification, the Ministry of Trade and Industry established an inter-ministerial committee to analyze and suggest revisions of Israeli international trade laws and regulations. The subcommittee for antidumping and subsidies made a report regarding changes needed in the law and its administration.7 The Ministry of Trade issued a report stating that a new draft law will be submitted in the near future. 8 The new draftlaw prepared by the Ministry of Trade and Industry has not yet been submitted to the Knesset. However, according to that report, Israeli antidumping law is on the whole already compatible with the international obligations.

Current Israeli law, scanty as it is in detail and scope, will therefore be analyzed for its consistency with the Code, from a substantive as well as a procedural perspective. This critical evaluation will include, with respect to selected issues, comparative analogies drawn mainly from the experience gained in the EC and the US, both notable users of AD duties. Solutions chosen in other jurisdictions may help broaden the scope of options open to Israeli law, provided however that due account be taken of the differences in interests. Finally, guidelines regarding law reform will be suggested.

Lack of transparency in Israel has been a serious obstacle to this study. The decisions made by the administering authorities are not made available to the public. In the absence of such information, it is practically impossible for anybody, unless he is a lawyer who has already litigated some cases, to have any idea how former cases were decided. Even then, there is not much certainty how future cases might be handled. The few decisions cited in this article have been given to the author subject to her written undertaking not to disclose the names of the parties nor the products investigated and countries of production/ exportation thereof. It is not clear to what extent these decisions are representative, but to the extent that they are, they seem to disclose very little of their reasoning. More information has been retrieved from aggrieved litigants. No statistical material is available regarding the number of cases opened every year, and how they ended.

2. Israeli Antidumping Law: The Underlying Goals

Foreign trade is for Israel a sine qua non. Limited natural resources make her dependent upon imports. The funding of the imports should come insofar as possible from exports, since otherwise capital has to be imported, through grants or loans, to make up for the indispensable foreign currency expenditure. In order to compete in export markets, the domestic industry must produce products that are competitive in both quality and price. Exposing the domestic market to competing imports obliges the domestic producer to be efficient in order to survive the market conditions. The small size of the domestic market dictates that, in the absence of competing imports, there would hardly be any competition at all in many sectors. As long as domestic producers are protected from imports, they may sell their output to the local market alone under conditions that they dictate. Their profits are guaranteed even if they do not live up to the more stringent criteria of the world market. Furthermore, mass production is often essential for an industry to be competitive. Israel is too small to provide a market for large-scale domestic production. To reap the benefits of size, the industry must engage in export.

When a country protects its industries from imported goods, it is quite clear that it cannot protect all industries, since that would mean protection to nobody. Thus the whole structure of the economy must be affected through the protection of some industries rather than others. Inefficient patterns of both production and consumption are fostered, as it is the inefficient industries that need to rely on the protection, and the other unprotected industries, as well as the public at large, who must, at the end of the day, bear the costs of protection. Economic research emphasizes that those least able to absorb the economic burden of protection are the exporters, that protection in fact taxes the exporters!9 They must sell on the world markets and can hardly pass any increase in costs on to their consumers, as their competitors would then undercut them. This is just as valid for protection via AD duties. 10 Indeed, the negotiating history of the GATT Uruguay Round seems to indicate that most of the major areas of disagreement pitted the United States and the EC, on one side, against Japan, Hong Kong, Korea, Singapore, and the Nordics, on the other. The former represented the protectionist views of economic actors having large and competitive internal markets, whereas the latter represented the interests of smaller states dependent upon exports and suffering from AD measures.11

Furthermore, "what lawyers tend to describe and analyze as 'international trade conflicts' among states are often, from an economic and political perspective, to a large extent conflicts of interests within states rather than between states". 12 The interests of domestic producers pleading for protection from imports conflict with those of the consumers and of all other producers of the importing country. A substantial share of the goods imported into Israel are consumed by other industries. Exporting industries that must use as inputs goods manufactured by protected industries are thereby made uncompetitive. 13

The political roots of protectionism thus become clear. Since trade restrictions can hardly ever give net protection to the national economy as a whole, they serve instead to redistribute income among domestic groups at a considerable cost to the restricting country. For the sake of buying political support, governments use their discretionary power to distribute "protection rents" that favour domestic producers over the interests of the public as a whole. 14 "Dispensing gratuities at the expense of somebody else who cannot be identified became the most attractive way of buying majority support". 15

It may be true that the most appealing option is to abolish antidumping laws and put an end to the evils they generate - power politics, bad economics and corrupted law.16 This is unrealistic in a world where AD has become one of the most frequently used instruments of protection from imports. 17 A far-reaching reform would require cooperation of the major WTO members. For the time being, each Member should see to its own interests.

Given Israel's interest in foreign trade, this means that AD duties should be applied only when genuine dumping causes domestic producers of "like products" material injury, which is not offset by benefits accruing to other manufacturers, or to the public at large. Therefore, when drafting the rules of its new antidumping law, Israel should select such rules that would enhance the public interest and restrict the use of AD measures only to those cases that deserve such protection, not allowing the protectionist bias to prevail. This is important for one more reason. Proper implementation of the Antidumping Code involves significant administrative costs. A small country can hardly afford the handling of a flood of applications. This bureaucratic dimension should also influence the institutional organization selected to handle AD cases.

3. Israel's International Obligations vs. Current Israeli Antidumping Law

3.1 The Substantive Requirements

GATT Members may impose AD duties if the existence of the following three substantive requirements is proved: (1) dumping; (2) material injury, or a threat thereof, to the competing domestic industry; (3) a causal link between the dumped imports and the injury, or threat thereof, to the domestic industry. During the Uruguay Round, several participants, including Japan, Korea, Singapore, Hong Kong, Canada and the Nordic states, suggested one more substantive requirement, namely that the imposition of AD duties be in the public interest, rather than in the interest of the competing domestic industry alone.18 The EC, a major AD user, had already a public interest clause.19 Had these suggestions been accepted, it would have become mandatory to assess the implications of the imposition of duties for other industries, consumers and the economy in general. The final text reflectsm this suggestion only to a limited extent (arts. 6.12, 9.1).

3.1.1 The determination of dumping

a. Definition of "dumping" and "dumping margin"

GATT 1994: Art. 2 of the Antidumping Code reads:

2.1 For the purpose of this Agreement, a product is to be considered as being dumped, i.e. introduced into the commerce of another country at less than its normal value, if the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country.

2.2 When there are no sales of the like product in the ordinary course of trade in the domestic market of the exporting country or when, because of the particular market situation or the low volume of the sales in the domestic market of the exporting market, such sales do not permit a proper comparison, the margin of dumping shall be determined by comparison with a comparable price of the like product when exported to an appropriate third country, provided that this price is representative, or with the cost of production in the country of origin plus a reasonable amount for administrative, selling and general costs and for profits.

From an economic point of view, there may be a stronger case for restricting imports sold at a price not covering their cost of production, whether or not this is lower than their home market price.20 Since a company would fail if it conducted such a pricing policy over an extended period of time, below cost sales are likely to be temporary, and thus more injurious to the importing country in the long run. Such behaviour may occur when a foreign producer is trying to drive his competitors out of the market. These incidences are probably rare and should be punishable under the domestic laws of competition. 21 More often, a foreign producer would adopt such a policy in order to penetrate a new market, or cut losses. Even if he cannot sell at prices that cover his total (fixed and variable) costs, it would still be rational to sell as long as the sales cover short-term variable costs. The losses incurred in closing the plant down may be higher. In the long run, all costs are variable and prices have to cover the costs, or the producer will eventually go bankrupt. 22 The greater attention given to sales below "normal value" rather than sales below cost is partially due to the assumption that all sales below cost are also sales below "normal value".23 However, the main reason is practical. Determining the "normal value" is a difficult yet surmountable administrative task. The calculation of foreign costs of production reaches beyond that.

The difference between the allegedly higher "normal value" and the lower "export price" constitutes the dumping. To calculate the "dumping margin", this difference has to be calculated as a percentage of the c.i.f. price of the goods. If foreign products sold in the home market and in the import market were physically identical and sold under identical circumstances, the calculation of dumping would be no more than simple arithmetic. Any difference in price would be proof of dumping, with the difference in price being its exact amount. In reality, the process of establishing the "normal value" and "export price" is very complex. In order to compare "apples with apples", both values have to be established at the same level of trade, normally at "ex-factory" level (art. 2.3).

The first study of AD, published in 1936, highlighted some of the problems. 24 According to that study, the most important single factor giving rise to spurious dumping is the difference in size of the unit orders. The foreign buyer often makes larger orders. Export sales are usually one or more stages less advanced in the process of distribution to the ultimate customer. The importer buys for resale to distributors or to large-scale consumers, whereas in domestic trade the manufacturer often sells his product directly to the end-user or to small retailers, which normally implies smaller orders. Hence, concessions in price to foreign buyers for large orders should not be regarded as dumping if similar concessions are made on domestic orders of the same magnitude, or if the sellers would be willing to make similar concessions if such orders were obtainable in the domestic market. The conduct of domestic marketing may involve employment of salesmen and advertising services, and even the maintenance of agencies, whereas sales to a foreign market are often made directly to the buyer. Payment is often more secure in international transactions.

For the determination of dumping, prices should be compared on the same date. This seems an obvious principle, yet not free of complications. It is often the practice of foreign buyers to anticipate their needs long ahead, and to give a single order covering their requirements for a substantial period, with deliveries to be made according to a specified schedule, or as requested. This may create a considerable time lapse between the date of purchase and the date of shipment. If during this interval prices rise in the exporting market, comparison of prices on the basis of the date of shipment will reveal apparent dumping, even though the prices were the same at the date of purchase and there was no actual dumping.

Differences in price may be due to an exemption of exporters from payment of customs of dutiable imported materials, further used in manufacture for export. Such exemption may be made directly or by refund upon exportation. If no concealed bounty is involved, such refunds confer no special advantage on the exporters in their competition on the international market. They merely mitigate the handicaps created by domestic protective tariffs. The same holds true for other similar charges, such as excise duties.

The products compared should be "like products". The price of a fancy 27-inch television set, top-of-the-line model with a wooden cabinet, sold on the home market, should not be compared with that of an exported 13-inch basic set in a metal cabinet.25 This issue is complicated by the fact that high technology products have a very short life cycle, and are frequently modified, while the costs to make and sell them often decrease.26

b. Calculation of "export price"

To make a fair comparison between the ex-factory prices of the goods sold in the export market and in the import market, the invoice price is often used as a starting point. Adjustments are then made for packaging, transportation, size of orders, level of trade, terms and conditions of sale, indirect taxes and duties, physical characteristics and any other differences that may affect price comparability (art. 2.4).27 Where the product is first sold to an affiliated company in the importing country, further adjustments will have to be made to obtain a "constructed export price". The price in this case should be further reduced by the amount generally incurred by the producer or exporter, or by the affiliated seller in the importing country, in selling such goods, such as a reasonable margin for general, selling, and administrative (GS&A) costs. 28 These costs should be based on the generally accepted accounting principles of the exporting country.29

Special problems occur when a product is first sold to an unrelated intermediate company located in the exporting country, e.g. a trading house, which then sells to importers;30 or where the manufacturer establishes a branch in the importing country and sells intermediate or raw materials, at prices below home market price, to be incorporated in different end products (input dumping); or when components, requiring just minor assembling operations, are dumped and then assembled at the import market (sub-assembly dumping).31

c. Calculation of "normal value"

"Normal value", for a market oriented country, is the home market price. Is the home market that of the country of production, origin, or export? 32 The Code does not provide a conclusive answer. According to art. 2.5:

in the case where products are not imported directly from the country of origin, but are exported to the importing Member from an intermediate country, the price at which the products are sold from the country of export to the importing Member shall normally be compared with the comparable price in the country of export. However, comparison may be made with the price in the country of origin, if, for example, the products are merely transshipped through the country of export, or such products are not produced in the country of export, or there is no comparable price for them in the country of export.

The home market price is defined as the price at which such goods are sold "in the ordinary course of trade". During the Uruguay Round the Nordic delegation suggested that the following should be considered sales outside the ordinary course of trade: sales at sharply reduced prices to liquidate the end of stock; sales at particularly advantageous prices having the character of gifts to important interest groupings for the company or business sector; low-price sales offers, which are valid for very limited periods of time, to introduce new products. 33 Other delegations objected. They regarded such sales as normal business practices.34

Japan contended that high-tech products were different from other products, in that they require large initial development costs that decline sharply as production technologies mature. Therefore, their pricing should reflect a long-term view of the cost recovery period, which might be below cost in the near term, but above cost in the longer term.35 Another factor that may affect the calculation occurs in times of recession, when companies sell below cost, provided they can cover their variable costs. Producers may sell some models at a loss, e.g. because they are end-of-model-year, or have been replaced by other models.36

The Code states that sales of the like product on the home market at prices below per unit (fixed and variable) costs of production plus GS&A costs may be treated as not being in the ordinary course of trade. They may be disregarded in determining normal value only if the authorities determine that such sales are made over an extended period, in substantial quantities and at prices which do not provide for recovery of all costs within a reasonable time (art. 2.2.1).

If there is no home market price, because the product is not sold on the home market in the ordinary course of trade, or, if the volume of sales on that market is too low to serve as a fair basis for comparison, then a "constructed normal price" is used. This is the price of such goods when sold to a third country at a representative price, or the cost of production in the country of origin plus a reasonable amount for GS&A costs and for profits (art. 2.2).37 If a surrogate country is chosen, there is danger that a country at a higher level of economic development would be selected where prices and costs will be much higher.38

d. Calculation of "dumping"

Once normal value and export price have been established, they must be compared fairly. Adjustments should be made in each case, on its merits, for physical characteristics; terms and conditions of sale (e.g., commissions, credit expenses, guarantees, warranties); level of trade; quantity (art. 2.4). When the comparison requires a conversion of currencies, such conversion should, in the regular case, be made using the rate of exchange on the date of sale. Fluctuations in exchange rates shall be ignored and in an investigation the authorities shall allow exporters at least 60 days to have adjusted their export prices to reflect sustained changes in exchange rates during the period of investigation (art. 2.4.1).

The existence of margins of dumping during the investigation phase shall normally be established on the basis of a comparison of a weighted average normal value with a weighted average of prices of all comparable export transactions, or by comparing the normal value and export prices on a transaction-to-transaction basis (art. 2.4.2). This ensures that indeed apples be compared with apples rather than pears.

Israeli law: The Israel Trade Duties Law, 1991,39 defines dumping as importation of goods, the export price of which is lower than the normal value(sec. 11).

Sec. 12 reads:

(a) "Normal value" of goods is the price, in the ordinary course of trade, of identical or similar goods intended for consumption in the country of production; a sale is not considered to have taken place in the ordinary course of trade, where the parties to the sales transaction are related or have a special arrangement, including the connection between a producer and a corporate body controlled by the producer.

(b) If identical or similar goods are not sold in the producing country, or, if market conditions in that state do not allow for a proper comparison of the sales for the determination of the "normal value", the normal value shall be determined as follows: - (1) the highest price of identical goods exported to a third country in the ordinary course of trade; and in the absence of such a price - (2) the sum of all production costs of identical goods in the producing state plus reasonable profit.

(c) If there are no data regarding the normal value mentioned in 12(a) and 12(b), the normal value is to be determined according to the price in the ordinary course of trade of identical goods intended for consumption in another country, allowance made for differences in the relevant conditions existing in that other country.

(d) If the price of identical or similar goods intended for consumption in the producing country is less than their cost of production there, this price will not be regarded as a price obtained in the ordinary course of trade, and the normal value shall be determined according to subsections (b) or (c).

(f) if the goods are not imported to Israel directly from the producing state, the normal value shall be their normal value in the exporting country; however, the commissioner or the advisory committee may determine that the normal value is their normal value in the producing state.

Where the export price is influenced by special arrangements between the importer and the foreign supplier, the export price is to be calculated on the basis of the price of sale by that supplier to an unrelated buyer. If such information is hard to obtain, the export price will be calculated on a reasonable basis, determined by the Advisory Committee (sec. 13). The export price and normal value shall be compared under similar terms of trade, account taken of the terms and conditions of the different sales, including differences in indirect taxation, and any other factor that may influence the comparison (sec. 14). There is also a special provision for goods imported from nonmarket economies (sec. 12(e)).The law is oblivious of the possibility that more than one importer may be involved, and does not rule whether the margins of dumping should be calculated for each separately.

The rules are short and give very few guidelines as to exactly how the calculations are to be made. On the whole, they seem compatible with the Code, with the exception of sec. 13, which allows the Advisory Committee (hereinafter: "the Committee") unlimited discretion, subject only to its reasonable exercise, in the calculation of an export price. It is therefore important to see how the rules were applied in practice, in order to assess whether the brevity of the rules has been supplemented by the administering authorities, i.e., the Commissioner and the Committee.

In general, decisions given prior to the coming into effect of the Antidumping Code are not at all revealing. It is practically impossible to follow the calculations. There is some confusion as to what exactly constitutes dumping, and no serious effort is made to calculate the margin of dumping according to the method described in the Code. To be sure, Israel was not a party to the Kennedy and Tokyo codes on AD. In their decisions, the authorities did not reject offhand even the most peculiar claims. Decisions given following Israel's membership in the WTO are more transparent, yet not free of methodological faults. To illustrate the problems encountered, two cases will be closely scrutinized, the first preceding the Code, and the second - following thereafter. Each decision has a confidential version, which remains only with the Committee, and another, non-confidential, which the parties receive. The non-confidential version is full of [ ] characters, denoting that the information is confidential. This study is confined to the non-confidential version made available to the author.

(a) In this case, decided prior to the coming into effect of the Code, the complaint was brought by the sole producer in Israel of two kinds of a certain product, against an importer of similar products. The complainant claimed that foreign products were dumped on the Israeli market. As evidence, he presented a summary report of worldwide production data, written in 1990 (no mention is made regarding the period to which the data relate). From this report, the Committee should be able to conclude the incidence of dumping, so the complainant, because the prices resulting from mass production in Western Europe are lower than the price level worldwide [sic!]. The Committee, applying the following sequence of decisions, concluded that the targeted goods had indeed been dumped:

(b) This decision was made after the coming into effect of the Code. The Committee declares that even though the complaint was made beforehand it is following the rules set in the Code. When calculating the "normal value", the Committee concludes that more than 20% of the products were sold in the domestic market of the exporting country at prices below cost. Therefore, it considers all such sales outside the ordinary course of trade, and excludes them from the calculation of the "normal value". In reaching this decision, the Committee compares the average monthly prices of the products with the average annual cost of production, with the result that, even though for any given month, the domestic price might have well exceeded production costs in that specific month, a large share of the sales is nevertheless considered "below cost", due to a substantial increase in production costs in the course of the year. The Committee quotes art. 2.2.1 of the Antidumping Code as the basis for this mode of calculation, the relevant part of which reads: "If prices which are below per unit costs at the time of sale are above weighted average per unit costs for the period of investigation, such prices should still be treated as being in the ordinary course of trade, and not be disregarded when calculating the normal value". It seems that art. 2.2.1 does not provide that the monthly domestic price should be generally compared with the average annual cost of production in determining the percentage of sales made below cost. Art. 2.2.1 makes an exception which reduces the number of incidences of sales being treated as not being in the ordinary course of trade, rather than the other way around. By using an erroneous method of calculation, the Committee determines a "normal value" higher than warranted by the facts of the case.\

Regarding the "export price", the Committee just mentions that it accepts the values determined by the Commissioner carrying out the investigation under the law.

The Committee then makes the adjustments to the same level of trade. One may wonder whether these are the only adjustments needed in this case. Be that as it may, the Committee does not take into account any differences due to the differences in the quantities sold and risks incurred in both markets. It does not indicate whether it compares the weighted average normal value with a weighted average of prices of all comparable export transactions, or the normal value and export prices on a transaction-to-transaction basis.

3.1.2 Determination of material injury

GATT 1994: A determination of injury is a precondition to the imposition of AD duties. The authorities must first define the relevant "domestic industry" producing "like products", which has been allegedly affected by the dumped imports, and then decide whether that industry suffered "material injury" or has been threatened with such injury.

a. "Like products"

The definition of "like products" is based on factors such as physical similarity; interchangeability in use; degree of substitutability in different market segments; differences in the process of manufacture; channels of distribution; prices. The precise definition of the "like products" is crucial. An overly wide product definition may lead to a finding of no injury, as it will dilute the injurious impact of the products under investigation. If injury is nevertheless found, the wide definition may lead to protection of products not injured at all. In addition, a wide definition makes it more difficult to circumvent AD measures taken. A narrow definition, on the other hand, may increase the likelihood of dumping and injury findings, yet make the AD measures more susceptible to circumvention.

b. "Domestic industry"

When AD laws were initially drafted, domestic industries were inherently national; they used domestic capital; their boards of directors, employees, sub-contractors and facilities were all mostly national; credit was given by domestic banks. This situation has radically changed.42 Protection of the so-called "domestic industry" has led to the establishment of foreign subsidiaries and joint ventures everywhere. AD laws are devised to protect products actually produced in the importing country. It is "domestic production" that should be protected. However, even this requirement has become difficult to satisfy. The volume of shared production is growing steadily. Sub-assemblies and components may be produced in several locations. Research and development may take place in yet another location. Rules of origin are needed to decide which products are considered domestic. Injury should be assessed only in the context of production operations within the importing country.

Comparative perspectives: In the US the requirement for majority support means producers accounting for at least 25% of the total production of domestic like products, and more than 50% of the production of domestic like products produced by that portion of the industry expressing support for or opposition to the petition.43 The authorities may disregard domestic producers related to foreign producers, or producers who are importers of such goods.44 In Canada producers who are also importers of the dumped goods may be disregarded. Yet, when an importer-manufacturer alone constitutes the domestic industry, he will not be excluded.45 In the EC the rules are similar. These jurisdictions follow the rules of the Code. The administering authorities poll the industry to verify the degree of support or opposition to the complaint. In the EC, non-responding industries are assumed to consider themselves not injured.46 Since AD is meant to protect only industries that produce (and sell) in the importing country, only those may bring a complaint. The issue of domestic production was analyzed in the case of Rank Xerox photocopiers produced in the UK and the Netherlands. 47 The Commission examined the value added in the EC to parts imported from Japan, and was satisfied that Rank Xerox was indeed a domestic producer.

Since in Israel it is often the case that domestic producers are also major importers of their products, this issue is of special interest to Israeli law. In Boots with ice skates,48 the Commission reached a negative injury finding because the complainant who produced 90% of EC production, was also the largest importer of the dumped goods, purchased them at the lowest prices and continually increased his imports. In recent years the Commission has often considered such imports as acts in self-defence.49 Yet, the determination of injury may be affected, since at least some of the injury is self-inflicted. However, if the producer is related to the exporter or importer (i.e., if one of them directly or indirectly controls the other, or both are controlled by a third), it would be excluded, even if it is a foreign-owned production subsidiary in the EC.50

c. "Material injury"

A common standard of material injury was one of the main purposes of the Kennedy and Tokyo Rounds.51 This goal has not been attained even by the end of the Uruguay Round.

A determination of injury must be based on positive evidence and involve an objective examination of both (a) the volume of the dumped imports and their effect on prices in the domestic market of like products, and (b) their consequent impact on domestic producers of such products (art. 3.1). Regarding (a), the authorities should consider whether there has been a significant increase in dumped imports, in absolute terms or relative to production or consumption. They should consider whether there has been a significant price undercutting by the dumped imports as compared with the price of a like product of the importing state, or whether the prices of such like products were depressed to a significant degree, or whether price increases, which would have otherwise occurred, were prevented to a significant degree (art. 3.2). Regarding (b), the examination has to include an evaluation of all relevant economic factors having a bearing on the state of the industry, including actual and potential decline in sales, profits, output, market share, productivity, return on investments, or utilization of capacity; factors affecting domestic prices; the magnitude of the margin of dumping; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments (art. 3.4). The list is not exhaustive, nor can several of these factors necessarily give decisive guidance.

The Code reduces the scope for taking AD measures based purely on the speculative threat of material injury. A determination of such a threat has to be based on facts and not merely on allegation, conjecture or remote possibility. The change in circumstances which would create an injurious situation must be clearly foreseen and imminent (art. 3.7).52

d. "Cumulation"

Where imports of a product from more than one country are simultaneously subject to AD investigations, their effects may be assessed cumulatively only if it is determined that the margin of dumping for each country is more than negligible, and that a cumulative assessment is appropriate in view of the conditions of competition between the imported products and between the imported products and the like domestic product (art. 3.3).

Israeli law: The Trade Duties Law briefly mentions, as a substantive requirement for the imposition of AD duties, that real injury, or threat thereof, has been caused to a productive branch, or that the establishment of an industry has been, or is threatened to be, retarded (secs. 16; 21(b)(2)). The law does not define a "productive branch". It is unclear whether any production line constitutes a productive branch, the injury to which should prompt AD duties. The Code concepts, "like products" and "domestic industry", are not used. There are no guidelines how to ascertain serious injury, or threat thereof.

Cases decided before the Uruguay Round just mention that injury has been caused, but do not reveal how this determination was made. In one case, the targeted product has captured 30% of the market of identical products. This fact alone sufficed to prove "serious injury". The decision does not relate to the price of the imported products and their effect on the price of the domestic product. No mention is made of the market structure, or the relevant "domestic industry". The specific product was considered a "productive branch". The allegation that it was part of another "productive branch", in casu the sweets industry, was rejected offhand, the reason being that sweets differ from each other in their process of manufacture. In another case, the Committee decided that since the complaining producer was a monopoly in the Israeli market, serious injury would be caused by any imports, dumped or not. The Committee concluded that, whereas not all of the injury should be attributed to the imported products, nevertheless not all of it was due to the monopoly status of the domestic producer. The Committee considered the production capacity of the complainant, and the market shares of the imported products and the domestic product. None of this information, not even in terms of percentage, is disclosed. No further explanations are given. The Committee added that the level of prices all over Europe was at the time very low (due to mass production there), inducing the dumping of exports to get rid of accumulated inventories [sic!]. AD duties should be used to stop such dumping.

In a case that came before the Committee following the coming into effect of the Code, material injury was determined on the basis of a 30% increase in the volume of imports. Domestic production had lost an undisclosed (confidential) part of the market share. In the absence of a proper market (with only two domestic producers initially, one of whom having undergone bankruptcy proceedings), the maximum price of the product in Israel had been subjected to control under law. The Price Controller allowed an increase of 3.5% of the maximum price. However, due to imports, the Israeli producers could not charge the maximum price fixed by the Price Controller (an incidence of price suppression, according to the Committee). Instead they had to lower prices by almost 12% to compete with the lower prices of the imports (an incidence of price undercutting, according to the Committee). Consequently, although still profitable, the profitability of the Israeli producers declined. The decision does not consider the following facts: that the product had first been produced in Israel by two companies, who were initially also the only ones licensed to bring imports into Israel; that one of these producers became bankrupt, and that, as a result, the remaining producer raised its prices significantly; that a large wave of immigration created a serious shortage that the sole producer was unable, or unwilling, to satisfy; that therefore the market was opened to importation by unrelated traders; and that Israeli domestic production was also protected through an export ban on the raw materials used in producing the products. It seems difficult to reconcile the finding of material injury with the rapid growth of the market coupled with the dominant and preferential position granted to domestic producers, who were nevertheless unable to satisfy the needs.

3.1.3 Causal link

GATT 1994: A causal link has to be established between the dumping of imports and the injury to the domestic industry (art. 3.5). Other factors affecting the state of the industry should be evaluated, such as the volume and prices of imports not sold at dumping prices, contraction in demand, changes in consumption patterns, competition between the foreign and domestic producers, technological developments, and the export performance and productivity of the domestic industry. The injury caused by the other factors must not be attributed to the dumped imports (art. 3.5).

The Antidumping Code adopted at the end of the Kennedy Round required that a determination of injury be made only if the dumped imports are demonstrably the principal cause of material injury. Consequently, the US did not adopt that Code. This requirement has been watered down in both the Tokyo and the Uruguay Rounds. There is no more need to compare the various causes of injury to find out which is the most important. During the Uruguay Round, Korea advocated that a "margins analysis" be used in determining causation; where the margin of price undercutting is significantly larger than the margin of dumping, no duty will be imposed, since that would indicate that factors other than dumping caused the injury.53 Korea and the Nordic countries proposed that where exporters lowered their prices in order to "meet competition" among domestic producers in the importing market, such "follow down" dumping, or "price adaptation", would not be deemed to cause material injury.54 Both proposals were rejected. AD duties may not be imposed for lack of a causal link only where the injury suffered cannot at all be attributed to dumping.

Israeli law: Proof of a causal link between dumping and material injury is a substantive requirement for the imposition of AD duties (sec. 16). The Committee has to include in its final report its conclusions regarding the existence of such a link (sec. 21(b)(2)). Sec. 28 permits the use of provisional measures where it appears to the Commissioner that injury may be caused by dumped imports to an industrial branch.

The establishment of the causal link has been problematic. In one case, the Chairman of the Committee just states that, according to confidential data, profitability of the applicants has decreased, but it seems that this decrease is due first and foremost to the exposure of the local industry to foreign competition. In another case, the Committee notes that the quantity of imports of the targeted products is rather limited (no figures provided), yet this may be due to the provisional measures applied. In yet another case, the Committee concludes that the injury has also been caused by imports of the targeted products from other countries. Neither figures nor analysis of such are provided regarding the share of the different imports in causing the alleged injury. The Committee just states that it relies entirely on a confidential report submitted by the Commissioner. Even if some of the Commissioner's findings (no details given) may be dubious, due to difficulties in obtaining and evaluating the evidence, this in itself should not derogate from the Committee's reliance on that report. In another case, the Committee simply states that it cannot determine which part of the injury has been caused by the targeted imports. No analysis of the different factors is offered.

In the absence of any meaningful analysis, the determination of a causal link pays no more than lip service to the fulfilment of a substantive requirement. A proper determination would have to take into account such factors as the market structure in Israel prior to importation. In many cases there was no such market at all. Israeli production was concentrated in the hands of very few producers, or even a monopoly. The local producers were often also the sole importers of the products, thus exercising full control of both local production and imports. There are cases where domestic production was further protected through an export ban on the raw materials used in producing the products. This power could be abused. Shortage of products and excessive prices, significantly above prices prevailing in other markets, have made liberalization necessary. It does not make much economic sense to use AD duties to offset the "injury" caused by measures taken to liberalize the market.

A reduction in domestic producers' profitability should not suffice to prove that dumping caused the injury. The reasons for the higher previous profitability figures (whether due to a dominant position; protection from imports; the writing off of debts; a governmental grant; sales of property etc.), as well as the lower current ones (whether due to restructuring; salary raises; market competition; extraordinary expenses, etc.), must be analyzed.

3.1.4 Public interest

GATT 1994: The consideration of the public interest, alongside the interests of the domestic industry producing the targeted products, was a contentious issue during the Uruguay Round.55 Dumping may be very harmful to the domestic industry, yet very beneficial to the economy of the importing state. During the negotiations, Members supporting public interest considerations, including the EC, Canada, Japan, Korea, Singapore, Hong Kong, and the Nordics, contended that AD complaints should be considered in a wider context, account taken also of interests of user industries, consumers and the costs of AD intervention to the national economy. The opposers, first and foremost the US, contended that considerations of public interest should be left to national legislatures. TheUS claimed further that public interest tests are administratively impractical in its system, where dumping duties are not static but change over time. The Code reflects these differences by expressing a desire that, even if all substantive requirements for the imposition of AD duties have been fulfilled, Members still make the imposition of duties permissive rather than mandatory (art. 9.1). In their determinations of dumping, injury and causality, the authorities should also consider data provided by industrial users of the targeted products and representative consumer organizations (art. 6.12). Although by nature a procedural provision, it could substantially affect the establishment of the substantive requirements.

Comparative perspectives: In the EC, AD duties should not be imposed unless it has been determined that Community interest calls for such intervention (art. 21 of the EC basic AD Regulation 384/96). This includes the interests of the domestic industry, users of the imported product and consumers. Factors considered have been user interests in maintaining competition on the EC market; maintaining and developing crucial technologies in the EC; maintaining strategic industries in the EC.56 The interests of the importers have hardly been considered, and the same is true for factors of a more general political nature. It has been pointed out that in general the Commission has considered the EC producers' interests as constituting the Community interest, and has assumed protective measures to be in the interest of the Community if injurious dumping is found.57 The Community users/processors are probably the second most significant interest group after the Community industry, as they also employ people, pay taxes, and contribute to the balance of payments. 58 There were however cases where users successfully intervened. 59 The assessment of Community interests has been based on broad statements and assumptions rather than serious economic studies of the expected impact of the dumping.60

The EC Treaty requires that economic policies be "in accordance with the principle of an open market economy with free competition" (art. 3(a)). Community authorities should support "a system ensuring that competition in the internal market is not distorted" (art. 3(g)). The objectives of AD policy may conflict with those of competition, since the first is intended to protect EC industry (that is, the competitors) against competition, whereas the latter safeguards competition in the ultimate interest of the consumer.61 Where Community producers might use AD proceedings to drive competitors from the market, or where the effect of the duties would create or reinforce a dominant position, it might not be in the Community interest to impose such duties. Furthermore, although the methodology used in AD cases is significantly different from that employed in competition cases, the investigators in AD proceedings are now specifically required to have an understanding of both.62 In practice, the AD Unit in DGI will informally consult DGIV (in charge of competition) in five cases: where it is proposed to accept an undertaking; in cases of clear market dominance; if there is evidence of cartel type behaviour; where there is only one producer in the Community; whenever a party makes an allegation of anti-competitive activity.63

In the US there is no public interest requirement.64

Israeli law: The public interest plays a role in the current AD law. The Committee may summon representative consumer organizations (sec. 21(a)). Furthermore, after receiving the Committee's recommendations, the Minister of Trade, in charge of imposing AD duties, may consider, inter alia, Israel's foreign trade relations and the effects of the duty on the national economy (sec. 23).

It is difficult to assess the role of public interest considerations in fact. In none of the decisions studied by the author has the Committee summoned a consumer organization. In one case the Committee states that the dumping margins are between 30% and 63.7%, yet it is aware that the dumped imports are used by the farming sector, and it therefore recommends that the duties imposed be 15.2% of the price f.o.b. of the products, or 11.9% of the price c.i.f. No calculations are given to clarify how the Committee made its determinations. In another case concerning building products, the Committee did not take account of the public interest. There are no data concerning the discretion exercised by the Minister of Trade and Industry.

3.2 Relief

3.2.1 Antidumping duties

GATT 1994: No measures other than AD duties may be applied by any Member to offset dumping; e.g. quantitative restrictions are precluded. Where all substantive requirements have been satisfied, it is then up to the authorities of the importing Member to decide whether the AD duty imposed is to reflect the full margin or less. It is desirable that the imposition be permissive, and that the duty be less than the margin if such lesser duty would be adequate to remove the injury to the domestic industry (art. 9.1).

The duty is to be imposed on a non-discriminatory basis on imports of such products from all sources found to be dumped and causing injury, except from those sources from which price undertakings, in accordance with the Code, have been accepted (art. 9.2). This flows directly from the non-discriminatory nature of the GATT system, which is based on the most-favoured-nation clause, i.e. goods imported from any Member have to be given no less favourable treatment than those imported from other Members. The right of a Member to impose AD duties is a departure from this rule and from the tariff bindings. A selective imposition of these duties would have disrupted the very basis of international trade law.

Israeli law: The Minister of Trade and Industry decides whether an AD duty will be imposed (sec. 23). After receiving the recommendations of the Committee, he may then, at his discretion, decide to impose an AD duty, if he is satisfied that: (i) dumped goods have been, or are about to be, imported; and (ii) damage,or threat thereof, have been caused to an industrial branch, or that the establishment of an industrial branch, which has already started taking place, has been, or may be, retarded.

In applying his discretion, the Minister may take into account the trade relations between Israel and the exporting state, as well as other considerations relating to the State economy as a whole (sec. 23(a)). The imposition of AD duties is permissive. The duty may be applied on a discriminatory basis, favouring states having good trade relations with Israel. It is unclear what the result might be if the Committee made a positive recommendation that a duty be imposed, yet the Minister were not satisfied that the conditions have been fulfilled. The wording does not preclude him from ordering the Committee to continue investigating.

3.2.2 Circumvention

GATT 1994: Anti-circumvention may have been the most contentious issue in the Uruguay Round discussions.65 AD measures apply to specific products originating in specific third countries. Multinational corporations and the globalization and rationalization of production offer manufacturers a range of options to avoid AD duties, e.g.: (i) the establishment of "screwdriver assembly" facilities in the importing country, that assemble imported parts and components of products subjected to AD duties. Imposing AD duties on the parts and components, without carrying out a full AD investigation, has been declared incompatible with the GATT rules;66 (2) "country hopping": components from the exporting country are shipped to a third country for assembly into a product within the same class or kind of product covered by AD duties, and then shipped to the importing country; (3) slight changes made in the targeted product, resulting in a product that is essentially the same in physical characteristics, end use, channels of trade, etc. as the product subject to AD duties.

There is however another side to this coin. Anti-circumvention provisions may be used to reach transactions that would not be considered genuine circumvention under any bona fide principle of law.67 This is achieved by using origin determinations for protectionist ends. To enforce an AD order issued against products from named countries, say A and B, an origin determination has to be made. Should a producer in country A send parts and components of the products to be assembled in a third country C, then if the operations in country C do not confer a different origin, the product will continue to be subject to the initial AD order. However, if the parts and components undergo such substantial transformation as to confer on the product the origin of country C, "anti-circumvention" rules should not be used to impose AD duties without carrying out a proper AD investigation.

The EC and especially the US pressed for including anti-circumvention provisions. 68 Each draft text of the Code included a new article 12: Measures to Prevent Circumvention of Definitive Antidumping Duties. 69 However, inview of the opposition of Japan, Korea, Hong Kong, Singapore and the Nordics, the negotiators could not agree on the wording, and the Final Act only includes a statement that the negotiators were unable to agree on a specific text, and that, mindful of the desirability of the applicability of uniform rules in this area as soon as possible, it has been decided to refer this matter to the Committee on Antidumping Practices established under that Agreement for resolution.

Israeli law: Israeli law does not include anti-circumvention provisions.

3.3 The Procedural Requirements

AD proceedings involve intricate issues of fact and law. An industry, exporter or importer accused of dumping faces costly proceedings which may alter its position on the market and even determine its fate. Parties to the proceedings may be forced to litigate in a foreign country. This calls for transparent rules of procedure that ensure fair and objective results.

3.3.1 The administering authorities

GATT 1994: The Code lays down no special requirements regarding the administering authorities. However, certain provisions may have implications for the institutional arrangements. The Code requires that "the evidence of both dumping and injury shall be considered simultaneously, in the decision whether or not to initiate an investigation, and ... thereafter, during the course of the investigation" (art. 5.7). The investigation should be concluded within one year, and in no case in more than 18 months (art. 5.10).

Each Member has to maintain judicial, arbitral or administrative tribunals or procedures that will promptly review administrative actions relating to final determinations, as well as decisions taken by the authorities regarding the duration and review of AD duties and price undertakings, where such are called for (art. 13). Such tribunals or procedures must be independent of the authorities responsible for the determination or review in question.

Comparative perspectives: In the US, Congress has delegated the administration of AD law to two agencies: the International Trade Administration (ITA), Department of Commerce (DOC), is responsible for the determination of dumping, while the International Trade Commission (ITC) determines whether US industry has suffered material injury.70 To the extent that the injury methodology used by a majority of the ITC tilts in any direction, it favours foreign producers and not domestic industries, unlike the bias that the ITA procedures display in calculating the dumping margin.71 Appeals from final decisions of the ITA or ITC are heard by the Court of International Trade (CIT). Cases may be further appealed to the Court of Appeals for the Federal Circuit, and to the Supreme Court, on writ of certiorari.

In the EC, AD involves the Commission, the Council of Ministers, and the Advisory, or Antidumping, Committee. Whereas in the past all the issues concerning AD duties were determined by one administrative body within the Commission DG (Directorate General) I, as of December 1995 two teams of case handlers coming from two separate departments of DG I, namely I.C (dumping) and I.E (injury), are normally assigned to each case. The change was required to enable the Commission to meet the deadlines set in the EC basic regulation,72 and the requirement of the Code that the determination of dumping and injury be carried out simultaneously. It was also considered essential to enhance the objectivity of the two determinations.73 It is noteworthy that the Antidumping Directorates have grown from 21 officials in 1985 to 128 officials and 7 experts by the end of 1995. The officials are assisted by the Commission's legal service, that checks its draft decisions, proposals to the Council and working documents discussed with the Advisory Committee, consisting of 1-2 representatives of each Member State with a representative of the Commission (generally the Director of either I.C or I.E) as chairman. These representatives are national public servants who advise potential complainants in their country regarding the feasibility of a possible complaint and maintain regular contacts with national industries. The opinion of the Committee is merely advisory. The decision whether to initiate proceedings is the exclusive responsibility of the Commission. Definitive AD duties may be imposed, and provisional duties definitively collected, only by decision of the Council acting by simple majority on a proposal from the Commission. Termination decisions in the course of a proceeding are taken by the Commission, after consulting the Advisory Committee. If a member of the Committee objects, the Commission must submit a report to the Council and a proposal for termination. The proceeding will be considered terminated unless the Council, within a month, decides otherwise by a qualified majority.

The Court of First Instance (CFI) has jurisdiction in AD issues. Judgments of the CFI may be appealed on questions of law to the European Court of Justice (ECJ). 74

Israeli law: The Trade Duties Law, 1991, entrusts the administration of AD duties to several authorities:

(i) A Commissioner appointed by the Minister of Trade and Industry (hereinafter:"the Minister"). The Commissioner determines whether complaints are prima facie founded. He is also in charge of a substantial part of the investigation of dumping; of accepting price undertakings; of deciding whether provisional measures should be taken; and of initiating a review procedure. He submits his findings to the Advisory Committee.

(ii) An Advisory Committee of seven members appointed by the Minister of Trade and Industry together with the Minister of Finance. Three members are representatives of the public. One of them, the Chairman of the Committee (hereinafter: the "Chairman"), must be a jurist. Two members are employees of the Ministry of Trade and Industry recommended by the Minister. The Commissioner may be one of them. One member is an employee of the Ministry of Finance, recommended by the Minister of Finance. The seventh member is an employee of the Ministry of Agriculture, recommended by the Minister of Agriculture. If a complaint involves an issue related to a Ministry not represented in the Committee, a representative of that Ministry, appointed by the relevant Minister, will serve as an additional member and replace the representative of the Ministry of Agriculture. Three members, including the Chairman, constitute a quorum. The Committee receives the findings of the Commissioner, conducts a hearing, and submits its conclusions and recommendations to the Minister of Trade and Industry.

(iii) The Minister of Trade and Industry is authorized, after receiving the submissions of the Advisory Committee, to decide, at his discretion, whether to impose AD duties.

Judicial review: Objections against decisions of the Commissioner may be lodged with the Chairman. The Director of Customs and Excise (hereinafter: "the Director") is authorized to decide objections brought against an imposition of AD duties when it is claimed that the goods subject to that duty are not "like products".

Decisions of the Minister of Trade to impose duties, as well as decisions of the Advisory Committee, and decisions of its Chairman in objections, may be appealed to the District Court.

Finally, the Minister of Finance has to approve the imposition of the AD duty, as part of his duty under the Budgetary Principles Law, 1985 (sec. 39b), to approve any new tax, duty and levy, as well as any change in their rates. 75 The approval of the Minister of Finance is required in addition to any approval required under other laws. The Minister of Finance has taken the view that his discretion is wide and should take account of the best interests of the national economy. The authority of the Minister of Finance to disapprove an AD duty has been challenged in a petition to the Supreme Court. 76 In this case, following three years of litigation before the Committee, the Minister of Finance refused to approve an AD duty recommended by the Committee and already approved by the Minister of Trade and Industry. The complainant was an Israeli industry, that monopolized the market for reinforced iron rounds used for building. The duty would have counteracted a governmental decision to liberalize the market by opening it to competition from imports. This prompted the Minister of Finance to prevent its imposition.

Since no special organizational requirements are set in the Code, Israeli law seems to meet the obligations. However, the current system is incapable of complying with the rules in practice. Organizational and budgetary constraints make it impossible to make investigations according to the procedure and within the time limits required by the Code. These constraints were highlighted in the report made by the Inter-Ministerial Subcommittee for Antidumping and Subsidies regarding changes needed in the law and its administration.77 The compatibility of the provisions regarding judicial review will be considered after a closer examination of the respective roles of the administering authorities. 78

3.3.2 The complaint

GATT 1994: Under the Code, the complaint, or application as it is therein termed, has to be brought by, or on behalf of the domestic industry (art. 5.1), i.e. it has to be supported by those domestic producers whose collective output is more than 50% of the total production of the like product produced by that portion of the domestic industry expressing either support or opposition to the application, the supporting producers accounting for no less than 25% of the total production of the like product by the domestic industry (art. 5.4). Producers related to exporters or importers of the allegedly dumped goods may be excluded (art. 4.1). Before initiating an investigation, the authorities must determine the degree of support expressed by domestic producers of the like product (art. 5.4).

The application must be made in writing, and include evidence of dumping, injury, and a causal link (art. 5.2).79 In special circumstances, the authorities may initiate an investigation without having received an official application by or on behalf of a domestic industry (art. 5.6). In such cases the uthorities may only proceed if they have sufficient evidence of dumping, injury and the causal link between the two.

Where it appears that the evidence provided is insufficient, the applicant shall be notified that the application has been rejected (art. 5.8). Such a decision may be subject to judicial review (art. 13). If, on the other hand, the authorities, after examination of the accuracy and adequacy of the evidence provided in the application, determine that it contains sufficient information, an investigation will be initiated (art. 5.3). Prior to initiation, the authorities are obliged to notify only the government of the exporting Member concerned (art. 5.5). The authorities are to avoid any other publicizing of the application.

Israeli law: A complaint may be made by any producer or representative thereof, or by the Director General of the Ministry of Trade and Industry (sec. 16). It has to be in writing, and state that: (i) identical or similar products have been or are about to be dumped; (ii) real injury, or threat thereof, has been caused to a productive branch, or that the establishment of an industry has been, or is threatened to be, retarded; (iii) a causal link exists between the dumping, or threat thereof, and the injury, or threat thereof, or retardation, or threat thereof (sec. 16). The complainant has to enclose information and evidence as he may reasonably obtain (sec. 17). The complaint has to be prima facie founded (sec. 18(a)). No more rules relate to the contents of the complaint.

A complaint brought by a producer, a related company of which was one of the largest importers of like products, was not rejected for lack of standing. The Chairman commented that such an application might amount to a violation of the principle of good faith, applicable in Israeli law to all juridical acts, yet in this case he found no such violation. No guidance is given regarding the cases which may be considered to have been brought in bad faith. It is more appropriate that the legislature decide whether to allow such complainants standing.

If the Commissioner considers that the complaint is prima facie unfounded, he will notify the complainant of his reasoned rejection (sec. 18(b)). Should the Commissioner decide that the complaint is prima facie founded, he will issue a public notice regarding the complaint in the Official Gazette and in two daily newspapers (sec. 18(c)). The law does not require the Commissioner to carry out any examination of the accuracy of the information submitted, and does not specify the details to be included in the notice, apart from the fact that a complaint has been submitted. If the complaint mentions a specific importer, producer or supplier, the Commissioner should notify them of the complaint (sec. 18(c)). There is no requirement to first notify the government of the exporting Member.

3.3.3 Investigation

GATT 1994: The investigation determines the existence, degree and effect of any alleged dumping (art. 5.1). Upon initiation of an investigation, the authorities must provide interested parties with the full text of the written application, paying due regard to the duty to protect confidential information (art. 6.1.3). "Interested parties" include: (i) exporters or foreign producers or importers of the targeted product, or trade or business associations, a majority of the members of which are producers, exporters or importers thereof; (ii) the government of the exporting Member; (iii) producers of the like product in the importing Member, or trade and business associations, a majority of the members of which produce the like product in the importing country. Parties may be added to this list (art. 6.11). In addition, industrial users of the targeted products and consumer organizations should be asked to provide relevant information regarding dumping, injury and causality (art. 6.12).

The interested parties are to be notified of the information required by the authorities, and be given ample opportunity to present in writing all evidence that they consider relevant (art. 6.1). Evidence presented by one interested party shall be promptly made available to other interested parties participating in the investigation, due regard paid to confidentiality (art. 6.1.2). Throughout the investigation all interested parties should have full opportunity to defend their interests, including the right to have a confrontation meeting (art. 6.2). Parties are not obliged to attend such meetings. Interested parties have the right, on justification, to make oral presentations (art. 6.2). Such oral information is taken into account if subsequently produced in writing and made available to other interested parties (art. 6.3). The authorities should provide timely opportunities for all interested parties to see all non-confidential information that is relevant to the presentation of their cases, and that is used by the authorities in an AD investigation (art. 6.4).80 If a party refuses access to, or does not provide, necessary information within a reasonable period, the authorities may make preliminary and final determinations based on the best information available (art. 6.8; Annex II). The authorities must take due account of difficulties experienced by interested parties, in particular small companies, in supplying information requested, and provide any assistance practicable (art. 6.13). Before making a final determination, the authorities must inform all interested parties of the essential facts under consideration which form the basis for the decision. Such disclosure should take place sufficiently early for the parties to defend their interests (art. 6.9).

The authorities are, as a rule, to determine an individual margin of dumping for each known exporter or producer concerned of the targeted product (art. 6.10). The Code introduces a de minimis dumping margin threshold of 2% of the export price, below which the application shall be rejected and the investigation immediately terminated (art. 5.8).81

Israeli law: The first stages of the investigation are carried out by the Commissioner (secs. 18, 19). There are no de minimis rules that affect the admissibility of a complaint. Following the public notice on the submission of a complaint, any importer, producer or supplier of the targeted goods, may submit its response to the Commissioner (sec. 18(4)). Once the Commissioner has decided that the complaint is prima facie founded, the complaint, and any non-confidential materials submitted to him or to the Committee, must be made available to all parties (sec. 8(b)). The Commissioner may gather evidence and require the submission of any document, record or certificate, including documents regarding import and export prices.82 Finally, he has to deliver the complaint together with his findings to the Committee (sec. 18(5)).

The Committee conducts its share of the proceedings in closed chambers (sec. 9). It has to summon the complainant and the importer (but not others) to make an oral presentation (sec. 21). The hearing does not have to be made simultaneously, and a confrontation meeting may therefore not take place. The Committee is entitled to summon other persons whom it considers capable of providing assistance, including a consumers organization under the Consumer Protection Law, 1981. The Committee may require the Commissioner to gather more evidence regarding issues decided by the Committee (sec. 21(a)). The Chairman may, at his discretion, summon experts to appear before the Committee (sec. 10).83

The complainant is entitled to raise objections before the Committee regarding data submitted to the Committee, or add to the materials already submitted, provided that no materials be added after the importer has pleaded, unless the Committee has so decided.84 This procedure seems lopsided, and the Chairman has taken the view that in applying the law, equal rights must be ensured to all parties.

The proceedings before the Committee are secret [sic!]. Committee members may not discuss the proceedings with any other person. Both the law and the regulations provide that if a Committee member has a personal interest in the case, he must notify the Chairman and not take part in the proceedings.

Upon completion of its work, the Committee has to submit its reasoned conclusions and recommendations to the Minister of Trade and Industry (sec. 21(b)). If the Commissioner or the Committee have not been provided with documents or answers required by them, then: (i) if it is the complainant who was in default, the Commissioner may, after having consulted with the Chairman, or the Committee, as the case may be, suspend the proceedings; (ii) if it is another person, the Committee will submit its conclusions and recommendations based upon the information available to it at that time (sec. 22). There are no rules regarding the use of the best information available. In the majority of decisions studied for this article, the Chairman or the Committee, as the case may be, mention the lack of cooperation on behalf of the importers. Yet, most decisions do not make it clear what exactly they should have submitted in order to fulfil their duties, and whether they were required in fact to submit such information.

The Minister of Trade and Industry is authorized to make the final determinations regarding the imposition of AD duties. He is under no duty to give any of the parties concerned an opportunity to defend its position, prior to taking his decision. A decision to impose a duty requires the approval of the Minister of Finance.85

3.3.4 Provisional measures

GATT 1994: Provisional measures may only be applied if three cumulative requirements have been satisfied (art. 7.1): (i) an investigation has been initiated, a public notice made, and interested parties given sufficient opportunity to respond; (ii) a preliminary affirmative determination has been made of dumping and consequent injury to a domestic industry; and (iii) the authorities concerned deem such measures necessary to prevent injury being caused during the investigation. Such measures are not to be applied retroactively (art. 10.1), except in one exceptional case (art. 10.6). Provisional measures may take the form of a provisional duty, or, preferably, a security equal to the amount of the AD duty provisionally estimated, not exceeding the provisionally estimated margin of dumping (art. 7.2). They should not be applied sooner than 60 days from the initiation of the investigation (art. 7.3). Application should be limited to as short a period as possible, and should not exceed 4 months. 86

Israeli law: Where it appears to the Commissioner that apparently dumped imports have been, or are about to be, imported, and that apparently injury may be caused to an industrial branch, the Commissioner may notify the Director of Customs and Excise the rate of duty that should, in his opinion, apply to those imported goods (sec. 28(a)). The Director will then require the importer to secure the payment of such a duty with a guarantee (sec. 28(b)). If an AD duty is later imposed, the guarantee will be liquidated. If 6 months pass without any duty being imposed, the guarantee will lapse. According to a decision made by the Chairman, a new guarantee has to be provided with every delivery of the investigated products, until a definitive determination has been reached. An objection against the Commissioner's decision may be lodged with the Chairman (sec. 49(a)), whose decision may be appealed to the District Court (sec. 50).

The law provides no guidelines for the Commissioner's exercise of discretion, or for the procedure to be followed. He is under no duty to make even preliminary determinations regarding injury, since apparent injury suffices. The causal link is likewise not considered. There is no need for the provisional measures to be necessary to prevent injury being caused during the investigation period. In an objection that came before the Chairman, he was of the opinion that the weight of evidence required for bringing a complaint and initiating an investigation should be lighter than that required for imposing a provisional guarantee, since the initiation of an investigation does not harm the importers. Therefore the word "apparently", used twice in sec. 28, was construed to be more exacting than the words "prima facie founded", used regarding the application. This interpretation is questionable from a linguistic point of view as well as a factual one. Statistical evidence suggests that the very announcement of the formal initiation of an AD investigation is enough for small producers to withdraw from a market, or for medium-size producers to give up a relatively small market.87 In the same case, the Chairman decided that a causal link was required between the "apparent" dumping and the "apparent" injury.

The Antidumping Law does not require the Commissioner to make a reasoned decision. However, reasoned decisions have become the rule since the coming into effect of the Code.

The law does not confine the imposition of a provisional guarantee to a date not earlier than 60 days following the initiation of the investigation, yet it seems that compliance with this Code requirement is exercised in practice.

3.3.5 Imposition of antidumping duties

GATT 1994: When an AD duty is imposed it has to be collected in the appropriate amounts in each case. The Authorities must name the supplier or suppliers of the product concerned.88 Regarding newcomers, an accelerated review may be made for determining individual dumping margins (art. 9.5). Newcomers are producers or exporters in the exporting country in question, who have not exported the product to the importing Member during the period of investigation, and are not related to any of the exporters or producers in the exporting country subject to AD duties on the product. No AD duties may be imposed on newcomers while the review is being carried out.

Where a final determination of injury is made, AD duties may be levied retroactively for the period for which provisional measures, if any, have been applied. Retroactive duties may also be applied if a final determination of a threat of injury rather than actual injury is made only because provisional measures have been applied (art. 10.2).

Israeli law: In Israel, an AD duty is imposed on a certain kind of goods imported from the states mentioned in the AD duty order, or produced by producers or supplied by suppliers mentioned in the order (sec. 24(a)). It seems that newcomers may avail themselves of an exception to the general rules for review of AD duties, allowing an application for review if the Commissioner deems such a review justified (sec. 29(b)).

3.3.6 Protection of confidential information

GATT 1994: Much of the information gathered during AD proceedings is highly sensitive commercial information, such as production costs, prices, volume of sales, profits, customers, corporate policies and strategies, etc. A party would not like such data to reach other interested parties, who are often its commercial competitors. At the same time, it would like to have access to the material submitted by the other parties, so it can properly prepare its case. Another interest involved is that of the government of the importing country in obtaining confidential information from businesses in future proceedings.

Information, which is by nature confidential, and information provided on a confidential basis by the parties to an investigation, are, upon a showing of good cause, to be treated as such by the authorities. Such information will not be disclosed without the permission of the submitting party (art. 6.5). The parties must provide non-confidential summaries, detailed enough to permit a reasonable understanding of the substance of the information submitted in confidence (art. 6.5.1). Only in exceptional cases may parties submit a statement of reasons why such information cannot be summarized.

Comparative perspectives: In the US, the interest of the parties in having a full and fair opportunity to respond or refute such information has been given precedence. Independent counsel for interested parties is given access to materials necessary for preparing his case, subject to formal undertakings by counsel to strictly limit the use he may make of the information.89 Draconian sanctions are imposed for illegal disclosure. If the submitting party objects to a release of confidential information under a protective order, those materials will be returned to it and not be considered in the investigation. This may lead the authorities to use the best information available, which may be the very unfavourable allegations of the opposing parties. A similar solution was adopted in Canadian law, where both the Deputy Minister, who determines dumping, and the Canadian International Trade Tribunal (CITT), which determines material injury, provide confidential information to counsel for the other parties who have signed a Declaration and Undertaking in a prescribed form.90

In the EC the conflict of interests has been solved in favour of confidentiality. Parties must provide a non-confidential summary, sufficiently detailed to allow reasonable understanding of the substance of the information submitted in confidence. The non-confidential information made available is often extremely limited.91 As a result, counsel for the parties are obliged to 'shoot in the dark', and suffer trial by surprise.92 The ECJ has decided in several cases in favour of more openness, and has called upon the Commission to make every effort to provide parties with information relevant to the defence of their interests, and not to hastily label information as confidential. This applies especially to information that may decisively influence the Commission's decision regarding the AD duty.93 Put in the words of Advocate General Warner, "It is a fundamental principle of Community law that, before any individual measure or decision is taken, of such a nature as directly to affect the interests of a particular person, that person has a right to be heard by the responsible authority, and it is part and parcel of that principle that, in order to enable him effectively to exercise that right, the person concerned is entitled to be informed of all the facts and considerations on the basis of which the authority is minded to act".94 Interested parties have a right of access to the file, which does not extend to internal documents prepared by the Community institutions and the Member States (art. 6(7) of EC Reg. 384/96).95

Israeli law: The Antidumping Law provides that confidential information obtained by the Commissioner or the Committee will only be used for the purposes of this law (sec. 8(a)). The parties to the proceedings before the Committee have no access to information declared confidential (sec. 8(b)). Information is considered confidential if disclosure may harm either the person who provided it or a third person (sec. 8(c)). The Committee may change a decision of the Commissioner to declare certain information confidential, either at the request of the person who submitted it, or of its own initiative (sec. 8(d)). The person who provided the information will be notified, to enable him to withdraw it (sec. 8(e)). The Committee may include in its reasoning general information contained in the confidential information, provided that such general information will not cause any harm to whoever provided it, or to a third party (sec. 8(f)). The law does not provide for non-confidential summaries of confidential information submitted. Every document, including the decisions of the Chairman and recommendations of the Committee, has a confidential, as well as a non-confidential, version. The non-confidential version is full of blanks, even when it relates to material that is otherwise available to the public, e.g. because it appears in public reports made to the stock exchange by an industry whose shares are publicly traded. Such a presentation makes it difficult to defend oneself against a complaint, as only the bottom line can be deduced from the decisions, but hardly any reasoning.

All the decisions made available to the author are full of blanks. Since not even percentages are disclosed, the non-confidential information is often useless too. In one objection brought before the Chairman, he just states that, based upon the confidential information submitted, a decrease in the profitability of the complainant's industry has taken place. No more details are provided. In another objection, the Chairman states that, based upon the data and facts in the file, he has been satisfied that injury has been caused and that a causal link exists between the dumping and the injury. However, based upon other confidential data and facts in the file, not all of the injury should be attributed to the dumping. Tiens! In yet another objection, the Chairman states that, having carefully studied the material submitted to the Commissioner and a confidential letter sent by the complainant some three months later, he has been satisfied that apparently there is injury. Not one more word in the decision explains the kind of injury suffered or the basis for such a conclusion.

The Committee's determinations regarding the final AD duties that it recommends, are just as revealing. In one case the Committee states that "it has based its decision on a variety of evidence submitted to it, the most important of which were the price lists. From checking the price lists, adjustments made according to their character (wholesale price, retail price, etc.), the dumping margin has been found to be between [blank] and [blank]" ... Regarding another product, the Committee has found that the difference in price between the product under examination and similar products, produced in two other countries, is [blank]. Therefore, the Committee proposes that the rate of duty will be fixed at 19%, despite the fact that the dumping margin may be higher.

In yet another decision, the Committee states that based upon the evidence it concludes that "the dumping margin is between 30% and 63.7%, all according to the various assumptions and variables according to which dumping should be calculated. The evidence shows that real injury will be, or may be, caused, [sic!] to the complainants as a result of this dumping". In another case the dumped imports are compared with similar goods imported by another supplier. The name of this supplier is kept confidential, and so are the wholesale prices of the products that he imports from another unknown company. The decision is full of blanks, which make it impossible to make any sense of the few calculations that were made. It may be wondered why, if the name of the supplier remains unknown, the price should also be kept secret. One gets the impression that the information is so confidential that not even the Committee members dare make any use of it.

3.3.7 Price undertakings

GATT 1994: Only after an affirmative preliminary determination of dumping, and the injury caused by it, have been made, the authorities may negotiate with the foreign exporter a voluntary undertaking, according to which the latter will agree to revise its prices or to cease exports at dumped prices. Price increases under such undertakings should not be higher than necessary to eliminate the margin of dumping, and it is desirable that they be less, if such increases suffice to remove the injury to the domestic industry (art. 8.1; 8.2). Price undertakings entail the suspension or termination of the AD proceedings without imposing provisional measures or AD duties (art. 8.1). The investigation of dumping and injury shall be completed if the exporter so desires or the authorities so decide (art. 8.4). Should the investigation end with a negative determination the undertaking will lapse, unless this determination is mainly due to the price undertaking itself.

The authorities of the importing Member may suggest price undertakings. An exporter may not be forced to enter such undertakings (art. 8.5). Undertakings offered need not be accepted if the authorities consider their acceptance impractical(art. 8.3).

Israeli law: The Commissioner may suspend or terminate the investigation of a complaint and accept an undertaking that he deems satisfactory (sec. 20). He must first give the complainant proper opportunity to plead the issue and must obtain the approval of the Director General of the Ministry of Trade and Industry. The undertaking has to be made by the producer or supplier of the goods, who undertakes to revise the price of the imported goods so that dumping will be eliminated. This is different from the requirement in the Code that prices be revised so that the injurious effect is eliminated. The undertaking may precede any determination by the Commissioner, including the decision to initiate proceedings.

The Chairman, in one objection, declared that undertakings should only be accepted in exceptional cases, since the enforcement of undertakings is very difficult and generally impossible. In the case at hand, neither the pleadings of the importer nor the evidence presented by him could justify the acceptance of an undertaking. The Chairman offered no guidelines as to the evidence or pleadings required for an undertaking to be accepted. There is nothing in the law to suggest that undertakings should be the exception, rather than the rule, and it is somewhat unsettling to discover that such an important policy issue should be decided in the course of proceedings.

3.3.8 Duration and review of antidumping duties and price undertakings

GATT 1994: An AD duty is to remain in force only as long as and to the extent necessary to counteract dumping that is causing injury (art. 11.1). The authorities have to review the need for its continued imposition where warranted, on their own initiative, or, provided that a reasonable time has elapsed since the imposition of the definitive duty, upon request by any interested party which submits positive information substantiating the need for a review. If, as a result of such a review, the authorities determine that the AD duty is no more called for, it shall be terminated immediately (art. 11.2). The rules regarding evidence and procedure during the investigation should be followed in the course of the review. The review shall normally be concluded within 12 months (art. 11.4). The procedure for review of price undertakings is similar (art. 11.5).

The Code includes a sunset clause. Any definitive AD duty shall be terminated on a date not later than 5 years from its imposition (or from the date of its most recent review, if that review has covered both dumping and injury). 96

Israeli law: Definitive duties are imposed for three years as of the date of imposition, unless a shorter period has been determined. The Minister of Trade and Industry may repeatedly impose the duty as long as the conditions for its imposition still exist (sec. 27(a)). No rules of procedure are prescribed for the Minister in deciding that the conditions still exist.

Any potential complainant, and any importer or potential importer of goods subject to a duty, may apply to the Commissioner to review an order imposing AD duties and revise or revoke it (sec. 29(a)). Such an application will be considered at least one year after the imposition of the duty.97 If the Commissioner considers the application apparently founded, he will notify the applicant and the parties to the proceedings (sec. 30(a)). If he considers the application unfounded, he will notify the applicant his reasoned decision (sec. 30(b)). He may publish a notice regarding the application for review in the Official Gazette and in two daily newspapers (sec. 30(c)). The parties may respond to the application and so may other interested parties (sec. 30(d)). The findings of the Commissioner are submitted to the Committee (sec. 30(e)), which may summon the parties to a hearing. The procedure is similar to that conducted prior to imposing the duty.

title223.3.9 Time limits

GATT 1994: The Code mandates that investigations shall, except in special cases, be concluded within one year, and in no case more than 18 months, after their initiation (art. 5.10). Every Member has to adapt its rules to meet this obligation. The evidence of both dumping and injury have to be considered simultaneously, both when deciding whether to initiate an investigation and during the investigation. Exporters and foreign producers must be given at least 30 days to answer questionnaires. Any request for an extension of this period must be duly considered (art. 6.1.1). Written submissions by interested parties must be made available promptly to other interested parties (art. 6.1.2). The authorities must proceed expeditiously with regard to initiating an investigation, reaching preliminary or final determinations, and to applying provisional or final measures, in accordance with the provisions of the Code (art. 6.14).

Comparative perspectives: The Code has been implemented just recently, and it is as yet difficult to know whether its time limits will be strictly observed. However, even before that the EC Court of First Instance (CFI) decided that, although the one-year period mentioned in the basic AD regulation then in effect for completing the investigation in AD proceedings, was a guideline and not a mandatory time limit, the investigation may not extend beyond a reasonable period, to be determined in the light of the circumstances of the case.98 In that case, the CFI considered three years unreasonable.

Israeli law: The Antidumping Law fixes very precise periods for many stages in the AD proceedings, yet fails to mention that the proceedings should be concluded within a certain period. Not all stages must be completed within a fixed period, as is evidenced by the provision stating that the Commissioner has to deliver his findings to the Committee, within 21 days from the last date for submitting documents and responses. Since the law sets no timetable for such a last date, the procedure is in fact open-ended. Some cases lasted several years, and have ended with decisions relating to data that had in the meanwhile become obsolete.

3.3.10 Public notice and explanation of determinations

GATT 1994: Being vital to transparency and certainty, the Code rules are very detailed.

Public notices have to be given as follows: (i) When it has been decided to initiate an AD investigation (art. 12.1). The public notice has to contain, or make readily available to the public through a separate report, adequate information regarding the exporting countries and the product involved; the date of initiation of the investigation; the basis on which dumping is alleged in the application; a summary of the factors on which the allegation of injury is based; the address to which interested parties should direct representations; and the time limits allowed to interested parties for making their views known; (ii) Following any preliminary or final determination, whether affirmative or negative, of any decision to accept an undertaking, of the termination of such an undertaking, and of the termination of a definitive AD duty (art. 12.2). Public notices must set forth, or make readily available to the public through a separate report, in sufficient detail, the findings and conclusions reached on all issues of fact and law considered material by the investigating authorities.99 (iii) Following the initiation and completion of reviews and decisions to apply duties retroactively. The above rules apply mutatis mutandis to such notices or reports.

Comparative perspectives: Both the US and the EC pay much attention to giving public notices as required under the Code. In the EC basic AD regulation, Council Regulation 384/96, art. 14(2) reproduces the requirements of the Code. Public notices are published in the Official Journal.100 In the US, the FCR provides for public notices to be published in the Federal Registrar. Apart from that, non-confidential information is available to the public pursuant to the FOIA (Freedom of Information Act).101 Statistical data are available regarding the number of cases opened, the products to which they related, the exporting countries against whose products duties were imposed, and how the cases ended (rejection, termination of proceedings, undertaking or imposition of duty).

Israeli law: Israeli law is not compatible with the Code. Only two brief public notices are required: the first, that a decision has been taken by the Commissioner to initiate an investigation; the second, that a decision has been taken to review a duty formerly imposed.

3.3.11 Judicial review

GATT 1994: The requirements of the Code are mentioned above. 102

Comparative perspectives: One point deserves special attention. In the US, investigatory records of the ITC and ITA form the principal basis for judicial review of their decisions. The record for review consists of (i) a copy of all the information presented to or obtained by the agencies during the course of their investigations; (ii) all governmental memoranda pertaining to the case; (iii) the record of ex parte meetings held by the agencies; (iv) a copy of the agencies' determinations, transcripts and other records of conferences or hearings, and all notices published in the Federal Register.103 The Court may examine, in camera, the confidential or privileged material, and may disclose such material under such terms and conditions as it may order.104

Israeli law: The institutions engaging in judicial review are mentioned above.105 It seems that the only point of departure from the Code is the possible membership of the Commissioner in the Advisory Committee. This has also occurred in fact. While it is the Chairman, rather than the Committee as a whole, that decides objections to the Commissioner's decisions, it can still not be said that the reviewing authority is independent of the authorities responsible for the determination, or administrative review, of duties, as required under the Code. Indeed quite the opposite is true. The authority reviewing the decisions of the Commissioner on provisional measures also chairs the Advisory Committee that makes all determinations regarding the existence of dumping, injury, causal link, and makes final recommendation regarding AD duties and their rates.

Another related problem is the affiliation of both the Commissioner and two members of the Committee with the Ministry of Trade and Industry. The Commissioner is appointed by the Minister of Trade and Industry. In fact, all Commissioners so far have been employees of the Ministry. Two additional members of the Committee are employees of the Ministry, recommended by the Minister, one of whom may be the Commissioner. Three members of the Committee form a quorum. Final decisions are taken by the Minister. The Ministry plays a very significant role in all fora. Past experience shows that the Minister and Ministry officials tend to exercise their discretion in a manner partial to Israeli industry.106 It is a fact that the Minister of Finance had to exercise his authority to prevent the imposition of an AD duty that had been approved by the Minister of Trade and Industry in conflict with national economy considerations. This incidence highlights the disadvantages of the institutional arrangement created by the Trade Duties Law, and the dangers that it poses to the best interests of the Israeli economy.107

The role of the Commissioner and the scope of the review exercised by the Chairman were examined by the Chairman in one objection. According to this decision, the Commissioner has the expertise and the tools to decide AD issues. The role of the Chairman consists of verifying: (i) whether the findings of the Commissioner were correctly deduced from the evidence submitted to her, or were erroneous; (ii) whether the law was properly applied by the Commissioner; (iii) whether she acted reasonably and fairly, i.e. used her discretion in a manner compatible with the purpose of the legislation and properly balanced the variety of pertinent values. The Chairman adds that usually only the first two aspects are relevant. The Chairman's role, according to that decision, is a hybrid role, involving both judicial and administrative elements. Since the Commissioner is a member of the Advisory Committee, the Chairman should be viewed as "complementing" rather than "replacing" her discretion. One corollary of this relationship is that new evidence, of which a party has become aware only after the Commissioner has made a decision, may only be submitted by making a new application to the Commissioner, enabling her to re-examine her former decision. The question whether such a "renewed" application is provided by the law has been left open.

There are no rules regarding the contents and procedure of appeals to the District Court. In their absence, it seems that questions of both fact and law may be appealed. No rules of procedure are provided, apart from the rule that sessions are to be held in open court (unless a different decision has been made by the Court).

The Federation of Israeli Chambers of Commerce submitted recommendations to the Subcommittee for Antidumping and Subsidies regarding changes needed in the law and its administration. These included a proposal to establish a special tribunal, composed of a District Court judge and two economists as representatives on behalf of the public, to handle complaints regarding AD and countervailing duties. According to the proposal, that tribunal should also decide the issue of provisional measures.108 Another possibility would be to either transfer the administrative authority to the Ministry of Justice, or establish an independent administrative authority that would assume all responsibilities for carrying out AD investigations and deciding all issues involved. Its decisions would be reviewable by a tribunal composed of a District Court judge and two other persons with an appropriate background in law and economics. Such an institutional arrangement, independent of the Ministry of Trade and Industry, would restrict a priori the number of complaints filed. Domestic industries that file complaints in reliance on the protectionist bias of the Ministry of Trade and Industry might be discouraged to apply, without good reason, to an independent authority. This would also enable the tribunal thus established to deal expeditiously and fairly with the complaints brought before it.

4. Conclusions

In his criticism of the English common law, Jeremy Bentham complains that it is made just as a man makes laws for his dog. "When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me. They won't tell man beforehand what it is he should not do - they won't so much as allow of his being told: they lie by till he has done something which they say he should not have done, and then they hang him for it".109 If Israeli AD law is to reflect Israel's deep interest in promoting free trade rather than become a modern dog-law, the law has to be reformed so as to create the secure rule-oriented atmosphere within which Israel's international trade will flourish. It is proposed that, when drafting the new legislation, the following guidelines be observed:

a. The rules on determination of dumping have to be much clearer on such issues as the scope of sales below cost; the calculation of constructed value; the use of average prices, and the price adjustments required to compare the "export price" with the "normal value".

b. Regarding the determination of "material injury", the undefined "productive branch", injury to which has to be proved under the existing legislation, should be replaced by "domestic industry". The law should mandate that all relevant economic factors having a bearing on the state of the industry be taken into account. A determination of threat of material injury has to be based on facts and not merely on allegations and conjectures.

c. A causal link must be established between the dumping of the imported products and the injury suffered by the domestic industry. It is advisable to adopt a provision that, where exporters lowered their prices to "meet competition" in the Israeli market, such "price adaptation" should not be considered as causing material injury. Likewise, where the margin of price undercutting is significantly larger than the margin of dumping, that should indicate that factors other than dumping are the cause of injury.

d. The "public interest" should play an important role. The small size of the Israeli market, and the all too often absence of competition among domestic producers, makes it very important that AD complaints be considered in a wider context, that takes account not only of the interests of domestic producers of "like products", but also of the interests of user industries, consumers and the costs of AD intervention to the national economy. It is proposed that the Director of the Trade Restrictions Authority, in charge of the administration of the rules of competition, be invited to submit a memorandum and make presentations in every case of antidumping.

e. Antidumping duties should only be applied insofar as they are needed to remove the injury to the domestic industry. They may never exceed the margin of dumping.

f. If rules regarding anti-circumvention are to be drafted, this must be done carefully so as to capture only genuine circumvention and not transactions that should not have come under the initial order.

g. For the sake of handling antidumping matters fairly and economically, it is proposed that either the administrative authority be transferred to the Ministry of Justice, or that an independent antidumping authority be established. Without the guaranteed support of the Ministry of Trade and Industry, it is to be hoped that only those industries that suffer material injury caused by dumping of imported products will make complaints. That would make the complaints filed manageable within the time limits set by the Antidumping Code. It is further proposed that the decisions taken by the said authority should be reviewable by an independent tribunal, composed of a District Court judge and two members with an appropriate background in law and economics.

h. New rules of procedure must be enacted, in conformity with the requirements of the Antidumping Code, to ensure fair and objective proceedings. These rules should provide for the maximum possible transparency. It is proposed that counsel for interested parties be given access to materials necessary for preparing his case, subject to his formal undertaking to strictly limit the use he may make of the information; that proper public notices be made; that clear and detailed explanations of all determinations be given; that the proceedings be carried out within the time limits set in the Code; and that all decisions of the antidumping authorities and the judicial decisions on appeal be published.


* Dr. iur. (Hamburg). Senior Lecturer in Law, The Israeli Centre for Academic Studies affiliated with the University of Manchester, UK. I am very grateful to the Max Planck Institute for Foreign and Private International Law in Hamburg and to the Max Planck Gesellschaft for generously supporting this research.

1 Cf. J. Viner, Dumping: A Problem in International Trade (Chicago, University of Chicago, 1923) (Reprints of Economic Classics, New York, Kelley, 1966); A.V. Deardorff, "Economic Perspectives on Antidumping Law", in J.H. Jackson and E.A. Vermulst, Antidumping Law and Practice: A Comparative Study (Ann Arbor, University of Michigan, 1989) 23-39; R. Kulms, "Competition, Trade Policy and Competition Policy in the EEC: The Example of Antidumping", (1990) 27 C.M.L. Rev. 285-313, reprinted in R.M. Bierwagen, GATT Article VI and the Protectionist Bias in Anti-dumping Laws, (Deventer, Kluwer, 1990); R. Boltuck and R.E. Litan, eds., Down in the Dumps: Administration of the Unfair Trade Laws, (Washington, D.C., The Brookings Institution, 1991); J.M. Finger, ed., Antidumping: How It Works and Who Gets Hurt, (Ann Arbor, University of Michigan, 1993); S. Hutton and M.J. Trebilcock, "An Empirical Study of the Application of Canadian Antidumping Laws: A Search for Normative Rationales", (1990) 24 Journal of World Trade Law 123; M.J. Trebilcock and R. Howse, The Regulation of International Trade, (London, Routledge, 1995) 112-124; E.-M. Peters, Antidumping-Politik, (Baden-Baden, Nomos, 1996).

2 For an analysis of the injury caused to the rule of law by such administrated competition cf. E.-J. Mestmaecker, "Zwischen freiem und verwaltetem Wettbewerb - Moeglichkeiten und Grenzen der Wettbewerbspolitik", in E.-J. Mestmaecker, Recht in der offenen Gesellschaft, (Baden-Baden, Nomos, 1993) 667-672.

3 Cf. E.-J. Mestmaecker, "Can There be a European Law?", (1994) 2 European Review 1, at 11.

4 For arguments in favour cf. P. Mengozzi, "Les droits des citoyens de l'Union europיenne et l'applicabilitי directe des accords de Marrakech", (1994) 4 Revue du Marchי Unique europיen 165; the problems have been highlighted by M. Hilf, "The Role of National Courts in International Trade Relations", (1997) 18 Mich. J. Int'l L. 321.

5 Art. XVI(4) of the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, in The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts, (Geneva, The GATT Secretariat, 1994).

6 Ibid., at 168-196.

7 Ministry of Trade and Industry Document no. P/121 (29.3.1995).

8 Ministry of Trade and International Trade Administration, Department of International Issues, Work meeting for follow-up on the application of the Uruguay Round Agreements - Summary, 10 pp. (minutes taken by Y. Schwarzbard and N. Bar-Gal) (unpublished, date not specified).

9 A comprehensive analysis of this subject is given by K.W. Clements and L.A. Sjaastad, How Protection Taxes Exporters, (London, Trade Policy Research Centre, 1984).

10 A.H. Qureshi, The World Trade Organization, (Manchester, Manchester University, 1996) 142; R. Boltuck, J.F. Francois, S. Kaplan, "The Economics of the Administration of the US Unfair Trade Laws", in Boltuck and Litan, supra n. 1, at 152; R.E. Baldwin and M.O. Moore, "Political Aspects of the Administration of the Trade Remedy Laws", in Boltuck and Litan, supra n. 1, at 253; Finger, supra n. 1, at 39-40; Kulms, supra n. 1.

11 T.P. Stewart, S.G. Markel and M.T. Kerwin, "Antidumping", in T.P. Stewart, ed., The GATT Uruguay Round: A Negotiating History (1986-1992), vol. II, (Deventer, Kluwer, 1993) 1383; cf. also A. Eymann and L. Schuknecht, "Antidumping Enforcement in the EC", in Finger, supra n. 1, at 221-239; and J.M. Finger and T. Murray, "Antidumping and Countervailing Duty Enforcement in the United States", in Finger, supra n. 1, at 241-254.

12 E.-U. Petersmann, Constitutional Functions and Constitutional Problems of International Economic Law, (Fribourg University Press, Fribourg, Switzerland, and Oxford, Westview Press, 1991) xxvii.

13 One such case that came before the Israeli Supreme Court was a petition brought by the cloth manufacturers. Both their industry and the yarn manufacturing industry were protected. At one point, however, the Israeli government increased the protection of the yarn industry by imposing increased duties on imported yarn, thus jeopardizing the business opportunities of the cloth manufacturers - cf. Edgar Textile Industries Ltd. v. The Minister of Trade and Industry (1989) 43(i) P.D. 749.

14 Cf. E.-U. Petersmann, supra n. 12, at 110-111.

15 F.A. von Hayek, Law, Legislation and Liberty, vol. 3: The Political Order of a Free People (London, Routledge & Kegan Paul, 1973-1982) 103.

16 Finger, supra n. 1, at 57; Bierwagen, supra n. 1, Chapter VI: Antidumping in the Future - Repeal It, at 157-169.

17 K. Steele, ed., Antidumping under the WTO: A Comparative Study, (London, Kluwer and International Bar Association, 1996) 3.

18 Stewart, Markel and Kerwin, supra n. 11, at 1687-1690.

19 Council Regulation (EEC) 2176/84, OJ 1984 L 201/1, arts. 11(1), 12(1).

20 Viner, supra n. 1, at 146-147; P.F.J. Marcory, "Cost of Production as the Sole Measure of Dumping", in Jackson and Vermulst, supra n. 1, at 384-388.

21 W.J. Davey, "Antidumping Laws: A Time for Restriction", in B. Hawk, ed., European/Americam Antitrust and Trade Laws (Fordham Corporate Law Institute, 1988) 15, at 8-1 to 8-17.

22 The definition of variable, as opposed to fixed, costs may be appreciably affected by the way respective economies of different countries operate. Thus, where there is work tenure, wages are fixed costs, whereas no work tenure implies that all wages are variable costs. Cf. also J.H. Jackson, W.J. Davey and A.O. Sykes, Legal Problems of International Economic Relations, (St. Paul, Minn. West, 3rd ed., 1995) 669-670.

23 This is not necessarily true. Cf. Viner, supra n. 1, at 33 et seq.

24 Viner, supra n. 1, at 9-15.

25 Cf. Finger, supra n. 1, at 29-30.

26 Cf. Stewart, Markel and Kerwin, supra n. 11, at 1547.

27 The "export price" should be adjusted by first increasing the invoice price by (i) the cost of packaging, when such cost is not already included in the price; (ii) refunded or uncollected import duties of the exporting country; and (iii) countervailing duties imposed in the importing country; and then deducting (i) costs, charges and expenses and import duties (except countervailing duties) included in the price, and incident to bringing the merchandise from the exporting country to the place of delivery in the importing country; and (ii) the amount, if included in the price, of any export tax or other charge imposed by the exporting country. Cf. 19 USCA §1677a.

28 Cf. 19 USCA §1677a.

29 Cf. Stewart, Markel and Kerwin, supra n. 11, at 1551.

30 E. Vermulst and P. Waer, EC Antidumping Law and Practice, (London, Sweet & Maxwell, 1996) 171-172.

31 Cf. Bierwagen, supra n. 1, at 45-71. These problems were heftily debated during the Uruguay Round, cf. Stewart, Markel and Kerwin, supra n. 11, at 1616-1625.

32 Sometimes the country of production and export are identical, yet the country of origin is different, since, under the rules of origin, the goods originate in another country. Cf. Commission Regulation 129/91 small screen colour televisions from Hong Kong, China OJ 1991 L14/31 (provisional duties); Commission Regulation 2376/94 colour television receivers from Malaysia, China, Korea, Singapore, Thailand, OJ 1994 L 255/50 (provisional duties).

33 Stewart, Markel and Kerwin, supra n. 11, at 1546.

34 Ibid., at 1548.

35 Ibid., at 1547.

36 Ibid., at 1545.

37 When calculating the constructed value, costs should normally be calculated on the basis of records kept by the exporter or producer under investigation. The records must be in accordance with the generally accepted accounting principles of the exporting country and reasonably reflect the costs associated with the production and sale of the product. Costs should be adjusted to take account of those non-recurring items of cost which benefit future and current production, or for circumstances in which costs during the period of investigation are affected by start-up operations (art. 2.2.1.1). Costs of manufacture include costs of labour; manufacturing overheads; financing costs related to the production process and packing costs. Costs of materials comprise total costs of raw materials, import duties and other costs incurred in obtaining the raw materials and waste during the manufacturing process. Cost of manufacture data should preferably relate to the production of the targeted goods. When the same factory is producing more than one product, it is necessary to allocate overheads among the products. Some of the problems encountered in such calculations are analyzed in detail by Stewart, Markel and Kerwin, supra n. 11, at 1553-1572.

38 Cf. Vermulst and Waer, supra n. 30, at 205.

39 S.H. no. 1337. The provisions of this law will be denoted as "sections", to distinguish from those of the Antidumping Code, for which the term "article" has been applied.

40 I.e., rebates for quantities (12%); cash payment (4%); order of a full truckload (5%); delivery ex-factory (5%); advertisement and technical services (2%); agents' commission for assuming credit risk (2%).

41 Cf. art. 2.2 of the Code.

42 Cf. Stewart, Markel and Kerwin, supra n. 11, at 1578-1579, 1582-1584; Bierwagen, supra n. 1, at 11-19.

43 19 USCA §1673a (c)(4)(A).

44 19 USCA §1673a (c)(4)(B).

45 R.K. Paterson, M.N.M. Band, J.A. Finlayson and J.S. Thomas, International Trade and Investment Law in Canada, (Scarborough, Ont., Carswell, 2nd ed., 1994) 8-38 to 8-39.

47 Photocopiers from Japan, OJ 1987 L 54/12 (definitive).

48 Boots with ice skates from Czechoslovakia, Romania, Yugoslavia, OJ 1985 L 52/48 (termination).

49 Case T-164/94 Ferchimex SA v. Council, CFI (28.9.1995) (nyr).

50 Joint Cases T-163/94 and T-165/94 NTN Corporation and Koyo Seiko Ltd. v. Council of the European Union (1995) ECR II -1381.

51 Cf. Bierwagen, supra n. 1, at 87; Stewart, Markel and Kerwin, supra n. 11, at 1414-1415.

52 Cf. Case 90 Korea - Antidumping Duties on imports of polyacetal resins from the US: Report of the WTO/ GATT Panel adopted by the Committee on antidumping practices on April 27, 1993, in P. Pescatore, W.J. Davey and A.F. Lowenfeld, Handbook of WTO/ GATT Dispute, vol. 2, DD90/1, (The Hague, Kluwer, 1996) pp. DD90/25-33.

53 Stewart, Markel and Kerwin, supra n. 11, at 1572-1573.

54 Ibid., at 1573.

55 Ibid., at 1687-1691.

56 Vermulst and Waer, supra n. 30, at 369-376.

57 I. van Bael and J-F Bellis, Anti-Dumping and other Trade Protection Laws of the EC, (Oxfordshire, CCH Europe, 3rd ed., 1996) 203-211; C. Stanbrook and P. Bentley, Dumping and Subsidies: The Law and Procedure Governing the Imposition of Antidumping and Countervailing Duties in the European Community, (London, Kluwer, 3rd ed., 1996) 145-147.

58 Stanbrook and Bentley, supra n. 57, at 147-148.

59 Television camera systems from Japan, OJ L 111/ 106 (30.4.1994), recital 26.

60 Vermulst and Waer, supra n. 30, at 374.

61 Case C-16/90 Detleff Noelle v. HZA Bremen-Freihafen, [1991] ECR I-5163, per Advocate General Van Gerven, at p. I-5177 para. 11; cf. Kulms, supra n. 1.

62 Stanbrook and Bentley, supra n. 57, at 152.

63 Ibid.

64 N.D. Palmeter, "United States", in Steele, supra n. 17, at 261, 278-279.

65 Stewart, Markel and Kerwin, supra n. 11, at 1512.

66 Case 79 EEC - Regulation on Imports of Parts and Components (Report of the GATT Panel adopted on May 16, 1990), in Pescatore, Davey and Lowenfeld, supra n. 52, at DD79/1-14.

67 N.D. Palmeter, "The Antidumping Law: A Legal and Administrative Nontariff Barrier", in Boltuck and Litan, eds., supra n. 1, at 64, 81-83; cf. also G. Kleinefeld and D. Gaylor, "Circumvention of Antidumping and Countervailing Duty Orders through Minor Alterations in Merchandise: Where to Draw the Line?" (1994) 28(1) Journal of World Trade 77.

68 Stewart, Markel and Kerwin, supra n. 11, at 1616-1640.

69 A comparison of selected draft texts regarding anti-circumvention measures, as those evolved during the negotiations is given by Stewart, Markel and Kerwin, supra n. 11, at 1625-1638.

70 The ITC, first known as the Tariff Commission, is an independent government agency, made up of six commissioners, no more than three of whom may belong to the same political party. They are appointed by the President with the "advice and consent" of the Senate to nine year terms, with staggered expiry dates, and are not removable except for limited reasons. Cf. T.W. Kassinger, R.E. Gwynn, "Antidumping Duty Investigations", in C.R. Johnston, Jr., ed., Law and Practice of United States Regulation of International Trade, (Dobbs Ferry, NY, Oceana, 1989) (Release 96-2, August 1996).

71 R. Boltuck and R.E. Litan, "America's 'Unfair' Trade Laws", in Boltuck and Litan, supra n. 1, at 13, 14-19. Some of the problems of the US system are given by G.N. Horlick, "The United States Antidumping System", in Jackson and Vermulst, supra n. 1, at 99, 104-110.

72 Coucil Regulation (EC) 384/96 (22.12.1995) on protection against dumped imports from countries not members of the European Community, OJ 1996 L 56/1 (6.3.1996).

73 Vermulst and Waer, supra n. 30, at 14.

74 The CFI assumed jurisdiction in March 1994. For the possible impact of the WTO rules on the scope of judicial review in the EC, in a manner that would restrict the discretionary powers of the dumping authorities cf. P. Vander Schueren, "New Antidumping Rules and Practice: Wide Discretion Held on a Tight Leash?", (1996) 33 C.M.L. Rev. 271.

75 40 L.S.I. 61.

76 HCJ 3549/97 Mif'alei Pelada Me'uhadim v. The Minister of Trade and Industry (submitted on 16.6.1997, not yet decided).

77 Supra n. 7.

78 Para. 3.3.11 infra.

79 The application should contain such information as is reasonably known to the applicant regarding: (i) the identity of the applicant and a description of the volume and value of the domestic production of the like goods by the applicant; (ii) a complete description of the allegedly dumped product, the names of the country or countries of origin or export in question, the identity of each known exporter or foreign producer and a list of importers of those goods; (iii) information on prices at which the product is sold, when destined for consumption on the domestic markets of the country or countries of origin or export, information on export prices, or, where needed, on the prices at which the products are first sold to an independent buyer in the country of importation; (iv) information on the evolution of the volume of the allegedly dumped imports, the effects of these imports on prices of the like product in the domestic market and the consequent impact of the imports on the domestic industry, as demonstrated by relevant factors and indices having a bearing on the state of the domestic industry.

80 Additional rules regarding the investigation: The authorities must satisfy themselves as to the accuracy of the information supplied by the parties, upon which their findings are based (art. 6.6). They may carry out investigations in the territory of other Members as required, after having obtained the consent of the firms concerned and notified the government of the relevant Member, provided that government did not object (art. 6.7; Annex I). Subject to confidentiality requirements, the results of such on-the-spot investigations, will be made available to interested parties (art. 6.7).

81 The same applies in the case of a further de minimis threshold of 3% relating to the volume of dumped imports from a particular country (art. 5.8). This rule is not applicable when countries which individually account for less than 3% of imports of the like product in the importing country, collectively account for more than 7% thereof.

82 The Commissioner may also require answers to questionnaires, or submission of calculations from: (1) the complainant; (2) the importer, exporter or supplier with goods subject-matter of the complaint; (3) any other person, or State authority, or any other entity, with regard to whom he has reasonable ground to assume that they have information on dumped imports. The Commissioner may require documents and information also from persons residing outside Israel.

83 The Committee's work is subject to regulations, enacted by the Minister of Trade and Industry and the Minister of Finance - Prevention of Dumping Regulations (working procedure of the Advisory Committee), 1979, K.T. no. 3984, p. 1216 (24.5.1979). The regulations were enacted under the previous Prevention of Dumping Law, 1977, (31 L.S.I. 63) repealed by the Trade Duties Law. According to the Interpretation Law, 1981 (35 L.S.I. 370), where the later legislation contains provisions that replace the old ones, such regulations remain in force until replaced by regulations enacted under the later law. The regulations authorize the Chairman to verify: (i) whether the data given in the complaint are prima facie founded; (ii) the price of goods for local consumption in the exporting country and their price for sale to third countries or the cost of production thereof; (iii) the price of the raw materials from which the goods are manufactured; (iv) any other information that may assist the Committee in arriving at a decision whether the goods are dumped, and whether the imposition of an AD duty is justified under the law. Since the Trade Duties Law has authorized the Commissioner to carry out most of the verification, it is unclear whether these regulations are still valid.

84 Reg. 7 of the Prevention of Dumping Regulations, ibid.

85 Cf. supra n. 75. Based upon the wording of the Foundations of the Budget Law, the Minister of Finance is of the opinion that his discretion is unfettered, subject only to judicial review by the Supreme Court, sitting as the High Court of Justice for its reasonableness. Although the duty accrues to the state treasury, the need to seek this approval emphasizes the irregularity of the Israeli current procedures.

86 On decision of the authorities concerned, upon request by exporters representing a significant percentage of the trade involved, to a period not exceeding 6 months (art. 7.4). If a duty lower than the margin of dumping is sufficient to remove injury, these periods may be 6 and 9 months, respectively. The rules governing imposition and collection of AD duties apply to provisional measures (art. 7.5).

87 Kulms, supra n. 1, at 292ff.; Bierwagen, supra n. 1, at 112; J. Jackson, "Perspectives of the Jurisprudence of International Trade: Costs and Benefits of Legal Procedure in the United States", (1984) 82 Mich. L.R. 1570.

88 If several suppliers from the same country are involved, and it is impractical to name all these suppliers, the authorities may name the supplying country concerned. If several suppliers from more than one country are involved, the authorities may name either all the suppliers involved, or, if this is impractical, all the supplying countries involved (art. 9.2).

89 The rules of access to information are given in USCA 19, §1677f, in CFR (Code of Federal Regulations) 19, §207.7 (regarding the ITC) and in CFR19, §353.33-.34 (regarding the ITA, Commerce); J.A. Taylor and E.A. Vermulst, "Disclosure of Confidential Information in Antidumping and Countervailing Duty Proceedings under United States Law: A Framework for the European Communities", (1987) 21 The International Lawyer 43; J. Hippler Bello, "Access to Business Confidential Information in Antidumping Proceedings", in Jackson and Vermulst, supra n. 1, at 349-353; cf. also Kassinger and Gwynn, supra n. 70, at 31-34; Jackson, Davey and Sykes, supra n. 22, at 695, 698.

90 Paterson, Band, Finlayson and Thomas, supra n. 45, at 4-29, 8-31.

91 van Bael and Bellis, supra n. 57, at 272-274.

92 Taylor and Vermulst, supra n. 89, at 45.

93 Case 264/82 Timex v. Council and Commission of the EC (1985) ECR 849 (antidumping duty on mechanical wrist watches); Case 113/77 NTN Toyo Bearing Co. v. Council of the EC (1979) ECR 1185; Al-Jubail Fertilizers v. EC Council [1991] 3 CMLR 377.

94 NTN Toyo Bearings, supra n. 93, at 1261.

95 Supra n. 72.

96 This rule applies unless the authorities determine, in a review initiated before that date, that the expiry of the duty is likely to lead to continuation or recurrence of dumping and injury. The duty may remain in force pending the outcome of such a review (art. 11.3).

97 The Commissioner may decide to review a duty earlier, if he deems it just (sec. 29(b)).

98 Joined cases T-163/94&T-165/94 NTN Corp. and Koyo Seiko Co. Ltd. v. EC Council [1995] ECR II-1381.

99 Other rules regarding the public notices: A public notice (or separate report) regarding the imposition of provisional measures, must include sufficiently detailed explanations of the preliminary determinations on dumping and injury and refer to the matters of facts and law which have led to arguments being accepted or rejected. Such a notice or report must contain in particular, subject to confidentiality requirements, the names of the suppliers, or, if impracticable, the supplying countries involved; a product description, sufficient for customs purposes; the margins of dumping established and a full explanation of the reasons for the methodology used in the establishment and comparison of the export price and the normal value; considerations relevant to the injury determination; and the main reasons leading to the determination. A public notice, or report, regarding the conclusion or suspension of an investigation in the case of an affirmative determination providing for the imposition of a definitive duty or the acceptance of a price undertaking, must contain all relevant information on matters of fact and law and reasons which have led to the imposition of final measures or the acceptance of a price undertaking. In particular, it must contain the information required in the case of provisional measures, and the reasons for the acceptance or rejection of relevant arguments or claims made by the exporters and importers. A public notice, or report, regarding the termination or suspension of an investigation after acceptance of an undertaking must include the non-confidential part of this undertaking.

100 Cf. e.g. notice of initiation of proceedings (Sacks and bags from India, Indonesia and Thailand), OJ 1995 C 92/3; notice of definitive duty (Tungsten carbide and fused tungsten carbide from China), OJ 1995 64/1; notice of repeal of definitive duties (welded tubes from Yugoslavia (except Serbia and Montenegro), Romania, Turkey and Venezuela), OJ 1995 L 308/65.

101 19 FCR §201.17 - §201.19; §353.4.

102 Para. 3.3.1 supra.

103 19 USCA §1516a(b)(2)(A).

104 19 USCA §1516a(b)(2)(B).

105 Para. 3.3.1 supra.

106 Cf. T. Einhorn, The Role of the Free Trade Agreement between Israel and the EEC: The Legal Framework for Trading with Israel between Theory and Practice, (Baden-Baden, Nomos, 1994) 52-84; T. Einhorn, "The Role of the Israeli Courts in Promoting Free Trade - A Critical Study in View of the EC-Israel FTA", (1995) 12 Mehkarei Mishpat 165; T. Einhorn, "The Application of WTO-law by the Courts of Law in the EU and in Israel", in A.M. Rabello, ed., Essays on European Law and Israel (Jerusalem, The Sacher Institute for Legislative Research and Comparative Law, The Hebrew University of Jerusalem, 1996) 1023, at 1041-1043.

107 Cf. supra n. 76.

108 Proposal submitted by Adv. A. Dorot, Representative of the Federation of Israeli Chambers of Commerce on the Subcommittee (dated 6.2.1995). Such a tribunal has been established in Israel to decide issues of restrictive trade practices.

109 J. Bowring, ed., The Works of Jeremy Bentham, vol. 5 (New York, Russell & Russell, 1962) 235 (emphasis in the original text). The analogy to antidumping has been drawn by N.D. Palmeter, supra n. 67, at 88-89.