The Evolution of Chinese Anti-dumping Law
BeiJing GoodWill Law Firm
Gao Lin
I • A summary of the legislation history of Chinese anti-dumping law
In 1994, Anti-dumping issues has been regulated in Foreign Trade Law of the People's Republic of China (“Foreign Trade Law 1994” ) for the first time.
In 1997, the State Council issued Regulations of the People's Republic of China on Anti-dumping and Countervailing Measures (“Regulations on Anti-dumping and Anti-subsidy Measures”).
On October 27, 1999, Hearing Rules on Industry Injury Determination issued by the State Economy Committee (repealed now) entered into force.
Up to now, the Chinese laws and regulations regarding anti-dumping mainly include the following documents:
Name of Law Regarding Anti-dumping Effective Date
Foreign Trade Law of The People's Republic of China (amended) 7-1-2004
Regulations of the People's Republic of China on Anti-dumping (amended) 6-1-2004
Interim Rules on Hearing of Anti-dumping Investigation 1-22-2002
Interim Rules on Placing Cases on File for Investigation
for Taking Anti-dumping Measures 3-13-2002
Interim Rules on Interim Review of Anti-dumping and Anti-dumping Margin 4-15-2002
Interim Rules on Review of New Exporters for Anti-dumping Investigation 4-15-2002
Interim Rules on Questionnaire for Anti-dumping Procedure 4-15-2002
Interim Rules on Tax Refund for Anti-dumping Procedure 4-15-2002
Interim Rules on Price Undertakings for Anti-dumping Procedure 4-15-2002
Interim Rules on Information Disclosure for Anti-dumping Procedure 4-15-2002
Interim Rules on Verification on the Spot for Anti-dumping Procedure 4-15-2002
Interim Rules on Consulting Public Information for Anti-dumping Procedure 4-15-2002
Interim Rules on Sampling for Anti-dumping Procedure 4-15-2002
Rules of the Supreme People's Court on the Application of Law when Hearing Anti-dumping Administrative Cases 11-21-2002
Interim Rules on Procedure regarding the Adjustment of
Product Scope for Anti-dumping 1-13-2003
Rules on Industrial Injury Investigation for Anti-dumping Procedure 11-17-2003
Regulations of the Origin of Imported - Exported Goods of PRC 1-1-2005
Regulation on Responding to Anti-dumping Action regarding Exported Product 8-14-2006
II • The evolution of Chinese anti-dumping law
Section 1 The content of the law and regulation regarding anti-dumping : Foreign Trade Law(1994) and Regulations on Anti-dumping and Countervailing Measures(1997)
On May12, 1994, Foreign Trade Law (1994) was implemented.
Article 30 of this law is a special clause on anti-dumping, which states: “Where product is imported at a price less than its normal value and under such conditions as to cause or threaten to cause material injury to the established domestic industries, or materially retards the establishment of domestic industries, the State may take necessary measures to eliminate or mitigate such injury, threat of injury or retardation.” This is the first regulation on anti-dumping in Chinese law.
It is, however, only a general provision.
On March 25, 1997 , the State Council issued Regulations on Anti-dumping and Anti-Subsidy Measures.
Regulations on Anti-dumping and Countervailing Measures is the first “specialized” regulation on anti-dumping formally issued in China .
This Regulation includes “General Provisions”, “Anti-dumping and Injury”, “Anti-dumping Investigation”, “Anti-dumping Measures”, “Special Provisions on Countervailing Measures” and “Supplementary Provisions”. There are 6 chapters and 42 articles, 35 of which apply to anti-dumping.
It had a great impact on Chinese anti-dumping legislation and the development of Chinese economy.
Based on this regulation, the first anti-dumping investigation was initiated on November 10, 1997. The final determination rendered on June 3, 1999
Section 2 The Amendment of Regulations on Anti-dumping and Anti － Subsidy Measures Made by Anti-dumping Regulation (2002)
Why amended:
The Regulations (1997)
1. The clauses of the regulation are too general abstract and simple, made it difficult to apply
2. There are many deficiencies in procedure: the duties of investigation authority are not clear, no clear timeline, transparency is not enough
3. Lack of remedy procedure.
In order to modify the above disadvantages and satisfy the requirements of the WTO, on November 26, 2001, the State Council issued Anti-dumping Regulation (2002) which was implemented on January 1, 2002.
Comparing to Regulations on Anti-dumping and Anti-Subsidy Measures, Anti-dumping Regulation (2002) mainly includes following improvements:
1. Issues on countervailing measures are separate from Anti- dumping Regulation (2002).
2. This regulation has 59 articles and 6 chapters, i.e. general provisions, dumping and injury, anti-dumping investigation, anti-dumping measure, duration of anti-dumping duties and price undertakings, administrative review, and supplementary provisions.
Though this regulation maintains the basic structure of the original one, many revisions have been made.
These changes include:
A. Changes on substantive rules
(1) Determination of anti-dumping
a. Definition of dumping b. Normal value
c. Export price d. Dumping margin
(2) Determination of injury:
a. Factors of examination b. Definitions concerned
c. Cumulative assessment
B. Changes on procedural rules
(1) Responsible Agencies
The agencies responsible for anti-dumping investigation
and carrying out anti-dumping measures are clarified
MOFTEC ——Investigation and determination of dumping
SETC —— Determination of injury
(2) Applicants
The applicants of anti-dumping investigation are more clear:
domestic industry, or individual, legal entity or organization which
represents domestic industry
Supporting rate —— 50%
(3) Duration
The investigation period, normally within 12 months, may be
extended under special circumstances, but in no case shall the
extended more than 6 months
(4) The liability of notification to public
For example: notify the respondent's government when case is initiated, publish antidumping order.
（ 5 ） Anti-dumping measures
- anti-dumping measures in the new regulation is more detailed: condition of price undertaking, supervision, consequence of violation; measures to new shipper
- anti-dumping duty may be retroactively levied on products imported not more than 90 days prior to the date of application of provisional anti-dumping measures
(6) Review
Regarding review, the following items are included in the new regulation:
a. price undertaking is included in the scope of review;
b. during the period of review, anti-dumping measures are still taken into place.
c. as a result of review, the period of the anti-dumping order may be extended for more than 5 years as appropriate.
(7) Remedy
The new regulation provides remedy procedure — Administrative Reconsideration .
Time limitation——within 60 days days from the day of notification of decision.
Authority—— MOFTEC
Section 3 Affiliated department rules
As described above, the responsible agencies also instituted a series of rules
One is Hearing Rules on Industry Injury Determination (lapsed) that was issued relatively early in 1999.
After Regulation on Anti-dumping was implemented on January 1, 2002, many administrative rules was implemented (See Part I, Table of Laws and Regulations Regarding Anti-dumping).
Most of these regulations and rules are effective and have not been amended by far except that Hearing Rules on Industry Injury Determination is repealed
Section 4 The amendment from the State Council's Decision on modifying Regulations of the People's Republic of China on Anti-dumping (2004)
There are still flaws in Anti-dumping Regulation issued in 2002. On March 31, 2004, the State Council made a decision to modify Anti-dumping Regulation, which implemented on June 1, 2004. This amendment is made in a small scale. The modifications include:
1 ． Modify the names of the agencies.
State Economy and Trade Committee and the Ministry of
Foreign Trade and Economic Cooperation Ministry of Commerce
2 ． Add items regarding public interests
Two clauses regarding public interests are added to the amended regulation.
One is the first paragraph of Article 33 which states, “If considering that price undertakings made by exporters are acceptable and conform to the public interests, MOFCOM may decide to postpone or terminate the anti-dumping investigation without applying temporary anti-dumping measures or imposing anti-dumping duties. The decision to postpone or terminate the anti-dumping investigation shall be published by MOFCOM.”
The other is that “Impose of anti-dumping duty shall conform to the public interests.” is added into Article 37.
3． Registration procedure for the purpose of imposing retroactive anti-dumping duties
A sentence is added to Article 44 as the second paragraph.
That is, “After opening an investigation, MOFCOM may take necessary measures, such as imposing import registration on relevant imported products, where sufficient evidence exists pointing to the existence of the two circumstances listed above at the same time, in order to impose retroactive anti-dumping duties.”
Section 5 The amendment of Foreign Trade Law
With the improvement of Anti-dumping Regulation and relevant divisional rules, the relevant articles in the amended Foreign Trade Law (2004) are also modified. There are 3 clauses regarding anti-dumping in this amended law, i.e. Articles 37, 41&42.
Article 37 provides for the authority agencies regarding anti-dumping.
Article 41, corresponds to Article 30 of the original law (1994). The substantial content of this clause remains unchanged except the modification on expression.
Article 42, regarding anti-dumping occurring in a third country which harms the interests if Chinese industry, is a major supplement. See Article 42:
“Where the export of a product from other countries or regions to the market of a third country causes or threatens to cause material injury to the established domestic industries, or materially retards the establishment of domestic industries, the authority responsible for foreign trade under the State Council may, on the request of the domestic industries, carry out consultations with the government of that third country and require it to take appropriate measures.”
III • The effect of Chinese legislation on anti-dumping
Since the first investigation initiated in 1997 (newsprint paper), there are 46 cases filed, 4.6 cases per year. Comparing to the zero record before, it is a great development.
There were 713 AD cases against China altogether until June of 2005. The number of the cases against China is more than 15 times than the cases initiated by China .
The incomplete legislation and failure to fully using of the trade remedy measures
It is a long way for China to improve its anti-dumping law.
The following table list all the anti-dumping cases initiated in China :
The following table list all the anti-dumping cases initiated by China by far:
The Statistics of Anti-dumping Cases Initiated by China
Light Industry
No. Case No. Name of Product
1 0035AC 1420041112 Food Additive of Nucleotides ( IMP 、 GMP and I+G)
2 0044-A-C13-20060206 Potato Starch
Electronics Industry
No. Case No. Name of Product
1 0025AC 3920030701 Dispersion Unshifted Single － Mode Optical Fiber
Chemical Industry
No. Case No. Name of Product
1 0003AC 2619990316 Polyester Film
2 0005AC 2619991210 Acrylic Ester
3 0006AC 2620001220 Dichloromethane
4 0007AC 2620010209 Polystyrene
5 0008AC 2620010619 Feedstuff L-Lysine Hydrochloric Acid
6 0009AC 2620010803 Polyester Chip
7 0011AC 2620011010 Acrylic Ester
8 0012AC 2620011207 Caprolactam Hexanolactam
9 0014AC 2620020301 Catechol
10 0015AC 2620020306 Phthalic Anhydride
11 0016AC 2620020315 Styrene Butadiene Rubber
12 0018AC 2620020329 Poly (Vinyl Chloride)
13 0019AC 2620020522 TOLUENE DIISOCYANATE (TDI)
14 0020AC 2620020801 Carbolic Acid
15 0022AC 2620020920 MDI
16 0023AC 2620030514 Monoethanolamine and Diethanolamine
17 0024AC 2620030530 Trichloromethane
18 0027AC 2620031110 Chloroprene Rubber
19 0028AC 2620031217 Hydrazine Hydrate
20 0030AC 2620040416 Trichloroethylene
21 0031AC 2620040512 Bisphenol － A
22 0032AC 2620040716 Dimethyl Cyclosiloxane
23 0033AC 2620040810 Ethylene Propylene Terpolymer
24 0034AC 2620040812 Benzofuranol
25 0036AC 2820041228 Epichlorohydrin
26 0038-A-C26-20050531 o-Dihydroxybenzene
27 0039-A-C26-20050606 Polybutylene Terephthalate Resin
28 0041-A-C26-20050915 Octanol
29 0042-A-C26-20051014 Butyl Alcohol
30 0043-A-C26-20051229 Nonyl Phenol
Metallurgical Industry
No. Case No. Name of Product
1 0002AC 3219990312 Cold-rolled Silicon Steel Sheet
2 0004AC 3219990617 Non-corrosive Steel Cold-rolled Sheet
3 0017AC 3220020320 Cold Rolled Steel Products
4 0021SC3220020323 Some Steel Products
Paper Industry
No. Case No. Name of Product
1 0001AC 2219971210 Newsprint
2 0013AC 2220020206 Coated Art Paper
3 0029AC 2220040331 Unbleached Kraft Liner/Linerboard
4 0040-A-C22-20050613 Wear Resistant Overlay
5 0045-A-C22-20060418 Paper for Electrolytic Capacitor
Textile Industry
No. Case No. Name of Product
1 0010AC 2820010803 Polyester Staple Fiber
2 0026AC 2820031031 Nylon 6 ， 66 Filament Yarn
3 0037AC 2820050413 Polyurethane
Medicine Industry
No. Case No. Name of Product
1 0046-A-C27-20060616 Sulfamethoxazole
Total: 46 cases
Lawyer: Gao Lin
Tel :010-65543621/22/23/24/25/26/27
Fax: 010-65543628
E-mail: lgao@chinatradecounsel.com
Address: 14A , building D, Fuhua Plaza ,
No. 8 Chaoyangmen Beidajie, Dongcheng District,
Beijing 100027 China
.
