Melbourne. Law School ... Vermulst, the Editor of Kluwer's Journal of World Trade, was an .... Senior Lecturer, Melbourne Law School, University of Melbourne.
Melbourne Law School
Legal Studies Research Paper No. 243 September 2007
Review of Edwin Vermulst, The WTO Anti-Dumping Agreement: A Commentary Tania Voon
This paper can be downloaded without charge from the Social Science Research Network Electronic Library at: http://ssrn.com/abstract=1012211
BOOK REVIEWS The WTO Anti-Dumping Agreement: A Commentary by EDWIN VERMULST [OUP, Oxford, 2005, xxvi+334 pp, ISBN 0–19–927707–9 (h/bk), £85.] Published in December 2005, this book is the second in the Oxford Commentaries on the GATT/WTO Agreements series.Vermulst, the Editor of Kluwer’s Journal of World Trade, was an obvious choice to author this commentary on the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement or ADA). He brings to the task the perspective of both an academic and a practitioner, having written seven books1 and numerous articles on anti-dumping law and related issues, as well as practising international trade law and policy for more than 20 years (p 333). According to the foreword (p vii), the ADA has been the most frequently litigated of the WTO agreements. Although this is debatable (depending on how and when you compile your statistics),2 it is certainly true that the ADA is among the agreements most often raised in WTO disputes, and perhaps the most frequently raised after the General Agreement on Tariffs and Trade (GATT) (and the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) in appeals), along with the Agreement on Subsidies and Countervailing Measures (SCM Agreement). Indeed, disputes regarding one or more of the ‘trade remedies’ agreements (the ADA, the SCM Agreement, and the Agreement on Safeguards) typically make up around half of all disputes coming before WTO panels and the Appellate Body. Consequently, as many a WTO scholar has discovered, it is almost impossible to comprehend the intricacies of the WTO dispute settlement system without a good understanding of the ADA, and vice versa. Yet, while WTO dispute settlement is awash in commentary, the details of the ADA remain a mystery to all but a handful of academic experts (although many more practitioners and government officials). Vermulst notes that the ADA is often considered ‘the most complex and technical’ WTO agreement (p 1); to put it more bluntly, many see it as the most boring part of the WTO. This may explain the relative lack of enthusiasm for the subject in university classrooms as a specialized area of WTO law. But, as tariffs have diminished, anti-dumping measures—a tool of protectionism in many economists’ eyes3—have grown in significance, today proliferating in developing countries4 alongside traditional users like Australia, Canada, the European Communities, and the United States (p 4).
1 Edwin Vermulst, Antidumping Law and Practice in the United States and the European Communities (Elsevier, Amsterdam, 1987); John Jackson and Edwin Vermulst (eds), Antidumping Law and Practice: A Comparative Study (University of Michigan Press, Ann Arbor, 1990); Edwin Vermulst, Jacques Bourgeois, and Paul Waer (eds), Rules of Origin in International Trade: A Comparative Study (University of Michigan Press, Ann Arbor, 1994); Edwin Vermulst and Paul Waer, EC Anti-Dumping Law and Practice (Sweet & Maxwell, London, 1996); Stefano Inama and Edwin Vermulst, Customs and Trade Laws of the European Community (Kluwer, The Hague, 1999); Edwin Vermulst and Folkert Graafsma, WTO Disputes: Anti-Dumping, Subsidies & Safeguards (Cameron May, London, 2002); Edwin Vermulst, Customs and Trade Laws as Tools of Protectionism: Selected Essays (Cameron May, London, 2005). 2 See , , and Kara Leitner and Simon Lester, ‘WTO Dispute Settlement from 1995 to 2005: A Statistical Analysis’ (2006) 9 Journal of International Economic Law 219, 224. 3 See, eg, Michael Finger, Francis Ng, and Sonam Wangchuk, Antidumping as Safeguard Policy, World Bank Policy Research Working Paper 2730 (2001). 4 See, eg, WTO Press Release 458, ‘WTO Secretariat reports new anti-dumping investigations continue to decline, while new final measures show increase’, 27 Nov 2006.
[ICLQ vol 56, April 2007 pp 463–470]
International and Comparative Law Quarterly
Current, comprehensive and accessible introductions to this ultimately fascinating area of law are hard to find, partly due to the constant development of the field through the cases churning steadily through the WTO dispute settlement system. The Handbook on Anti-Dumping Investigations from Cambridge University Press stands out,5 with a particular emphasis on the practicalities of domestic anti-dumping proceedings within the multilateral framework. Significant work also exists on the negotiating history of the ADA6 and the specific topic of sunset reviews in certain jurisdictions.7 However, Vermulst focuses more squarely on the antidumping rules of the WTO itself as currently interpreted. The book begins with a short but valuable introduction, explaining the nature of dumping and anti-dumping as well as the approach taken by the GATT and WTO and recent developments in WTO Members’ use of anti-dumping measures (pp 1–6). Given the author’s background, readers would probably have benefited from a more extensive overview of the field, including more of his own views about the economic sense of the WTO’s rules on anti-dumping (see, eg, p 1, n 7) and the political imperatives behind them. The rest of the book comprises four chapters: ‘Dumping’, ‘Injury’, ‘Procedures’, and (in recognition of the importance of dispute settlement for the ADA) ‘Residual ADA Dispute Settlement Issues’, followed by several useful annexes (albeit largely compilations of material that is freely available on the Internet). This thematic approach (as opposed to a slow tour through each ADA provision in order) works well, although the provisions are necessarily examined in detail. The third chapter (on procedures) is the longest and perhaps most rewarding, demonstrating Vermulst’s impressive knowledge of WTO anti-dumping law in practice. The last chapter provides, primarily, background on certain aspects of dispute settlement that may be relevant in WTO anti-dumping disputes. Vermulst discusses some more important dispute settlement issues that are specific to anti-dumping in the third chapter (eg standard of review, pp 224–32). The material is difficult and the coverage dense, but Vermulst assists readers by including realistic hypothetical examples, including worked calculations where appropriate (eg p 177) and illustrations from the practices adopted in different WTO Members (such as the European Communities’ market share test at pp 121–122 and the different methods for calculating injury margins in WTO Members that impose a lesser duty rule at pp 171–72). He also points out where practice seems to depart from the text of the ADA. Another useful inclusion is tables and flowcharts, although sometimes these are hard to follow. In fact, even more could be made of charts and diagrams to explain complicated points. When discussing a specific provision, Vermulst typically describes it first, which often reveals the underlying components, although this is sometimes repetitive when followed by a quotation of the provision (as well as arguably unnecessary, given the inclusion of the ADA in Annex 1). In terms of substance, Vermulst takes a broad view of his subject-matter, taking care to explain where the ADA contrasts with the SCM Agreement or the Agreement on Safeguards, and how the work of the WTO Committee on Anti-Dumping Practices affects particular provisions. He also includes references to existing literature and does an excellent job of integrating WTO case law into his explanation of the ADA. His elucidation of some of the trickiest concepts should make them clear even to a novice, for example the discussion of zeroing at pp
5 Judith Czako, Johann Human, and Jorge Miranda, A Handbook on Anti-Dumping Investigations (CUP, Cambridge, 2003). 6 James Durling and Matthew Nicely, Understanding the WTO Anti-Dumping Agreement: Negotiating History and Subsequent Interpretation (Cameron May, London, 2002). See also Terence Stewart (ed), The GATT Uruguay Round: A Negotiating History (1986–1992): Antidumping (Kluwer, Deventer, 1993). 7 Terence Stewart and Amy Dwyer, WTO Antidumping and Subsidy Agreements: a Practitioner’s Guide to ‘Sunset’ Reviews in Australia, Canada, the European Union, and the United States (Kluwer, The Hague, 1998).
51–61. Although the Appellate Body appeared to deal with this methodology some time ago,8 it continues to arise in various contexts9 and remains one of the most important ongoing issues in WTO disputes. Further discussion of the relationship between the ADA and the DSU could have been helpful regarding some issues, such as the Appellate Body’s findings of violation of DSU Article 11 in the most recent Sunset Policy Bulletin cases (pp 197–9, especially n 303), given the similar proliferation of sunset review cases before the WTO in recent years.10 In addition, particularly Viet Nam’s recent accession to the WTO,11 greater analysis of the ADA as it relates to nonmarket economies (pp 44–45) would have been a bonus. Given the suspension of the WTO’s Doha Round of negotiations in mid-2006, a thorough understanding of the existing ADA rules and their implementation in various WTO Members is even more important. While attempts to restart the negotiations continue, and the opportunity to reform the ADA may slip away, the WTO dispute settlement system is likely to keep resolving anti-dumping disputes and Members’ agencies to keep imposing anti-dumping duties for the foreseeable future. This book is recommended to anyone wanting to understand what is going on. TANIA VOON*
International Air Carrier Liability: The Montreal Convention of 1999 by PAUL STEPHEN DEMPSEY and MICHAEL MILDE. [McGill University Centre for Research in of Air and Space Law, 2005, viii + 463 pp + index, ISBN 0–777717–0636–7, ISSN 0701–158–05–02, $149.] The liability of carriers in the international carriage by air of passengers, baggage and cargo has been governed almost universally by the Warsaw Convention of 1929 and its related instruments for some 70 years. In 1999, 118 States gathered in Montreal and at long last succeeded in concluding a new Convention to replace it. The Montreal Convention incorporates radical changes to the carriers’ liability for passenger death or injury, some of which have been evolved through practice over the years, and contains numerous significant new features besides. It came into force in 2003, upon ratification by the 30th State, which happened, through shrewd timing, to be the United States. The practical importance of the new Convention is obvious. So is the need for a proper understanding of it. In this book, Professor Paul Dempsey, the present Director of the Institute of Air and Space Law of McGill University, and Professor Michael Milde, a former Director, provide a clear and highly practical guide to the new Convention. The book takes the form of an article-by-article commentary, supplemented with a copious Appendix of 14 relevant documents, a table of cases and an index. Because the Montreal Convention is as much a work of consolidation of existing law and practice as one of modernization, the 8 Appellate Body Report, European Communities: Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India (‘EC—Bed Linen’), WT/DS141/AB/R, circulated 1 Mar 2001, adopted 12 Mar 2001, para 66. 9 See most recently Appellate Body Report, United States—Measures Relating to Zeroing and Sunset Reviews (‘US—Zeroing (Japan)’), WT/DS322/AB/R, circulated 9 Jan 2007, not yet adopted at time of writing; Appellate Body Report, United States—Laws, Regulations and Methodology for Calculating Dumping Margins (‘Zeroing’) (‘US—Zeroing (EC)’), WT/DS294/AB/R, circulated 18 Apr 2006, adopted 9 May 2006; Appellate Body Report, United States—Final Dumping Determination on Softwood Lumber from Canada, Recourse to Article 21.5 of the DSU by Canada (‘US—Softwood Lumber V (Article 21.5—Canada)’), WT/DS264/AB/RW, circulated 15 Aug 2006, adopted 1 Sept 2006. 10 See most recently Panel Report, United States—Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina, Recourse to Article 21.5 of the DSU by Argentina, WT/DS268/R, circulated 30 Nov 2006. 11 See WTO news item, ‘Viet Nam joins WTO with Director-General’s tribute for true grit’, 11 Jan 2007. * Senior Lecturer, Melbourne Law School, University of Melbourne.