29 August 2017

Moulis Legal Senior Associate Charles Zhan addressed the European Union’s top trade officials on issues and trends in Australian anti-dumping and anti-subsidy rules at a briefing session on 24 August 2017 in Canberra. The session, attended by counsellors representing the 28 EU Member States, heard from Mr Zhan about the increasing technicality and uncompromising enforcement of these rules by the Australian Anti-Dumping Commission in recent years.

The quarterly meeting held by the Economic and Trade Section of the Delegation of the European Union to Australia brings together EU diplomats to discuss trade issues that affect EU companies trading with Australia.

Mr Zhan outlined the legal and policy reforms that have shaped the Australian government’s response to anti-dumping since 2011. He commented on how the Anti-Dumping Commission’s role as an investigating authority has expanded in that time. Mr Zhan said that:

… a growing concern is the development of a culture amongst the main Australian anti-dumping user companies to use the anti-dumping scheme in high frequency, as a reliable tool to deter import competition, and to push their market share ever higher.

Mr Zhan also discussed cases involving EU member states, and the policy trends that have affected them. This includes the broadening use of controversial method involving alleged “particular market situation” and the use of “cost surrogation” based on the argument that costs in the home market of the exporter do not “reasonably reflect competitive market costs”.

Mr Zhan highlighted the trend of repetitive cases targeting the same products – steel long and flat products, canned tomatoes, quicklime, to name a few – in investigations which intend to “fill the gap” of dumping duty coverage and capture new exporters. “Reviews are more frequent, and continuations involve full reassessments of dumping and injury”, he said. “Added to that, we have seen a number of ‘anti-circumvention’ inquiries, a new trade remedy which can serve to increase existing duties and capture new products in the anti-dumping net.” He described this as a “frenzy” of anti-dumping action. He said that it not only harms exporters, but also harms downstream companies in Australia who rely on competitively-priced inputs to remain competitive themselves, and is at times detrimental to the broader Australian economy.

Dumping protection is no longer exceptional in Australia. For some Australian industries it has become a mainstream form of protection. Exporters now need to be more pro-active in their own use of the system as well, so as to manage the way they are treated, not only in comparison to their Australian industry competitors, but also in comparison to other exporters.

Mr Zhan wishes to sincerely thank the Delegation of the European Union to Australia for inviting him to contribute to their knowledge of the politics, the legalities, and the commerce of these complex trade rules.