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Compendium of Antidumping and Countervailing Duty Laws in the Western Hemisphere


Panama

 

I. Legal Authority to Impose Antidumping and Countervailing Duties

A. Treaties or Agreements

Article VI of the GATT 1995, the WTO Antidumping Agreement ("AD Agreement") and the Agreement on Subsidies and Countervailing Measures ("SCM Agreement").

These Agreements apply to all WTO signatories.

B. Legislation

   Panama applies Law No. 29 of February 1, 1996 entitled "Normas Sobre la Defensa de la Competencia y se Adoptan Otras Medidas" as published in the Gaceta Oficial No. 22,966 of February 3, 1996.

C. Regulations

   Panama applies Law No. 29 of February 1, 1996 entitled "Normas Sobre la Defensa de la Competencia y se Adoptan Otras Medidas" as published in the Gaceta Oficial No. 22,966 of February 3, 1996.

D. Administrative Practice, Handbook or Guide

II. Authorities Responsible for Conducting Investigations

A. Injury

B. Antidumping and Countervailing Duties

III. Methodologies/Definitions

A. Like Product

   Identical product or good is understood to mean a good that matches in all respects the good against which it is being compared, taking into consideration such factors as its nature, use, function, quality, trade name, and brand recognition.

   Like product or good is understood as a good that, although it may not match the good against which it is being compared in all respects, shares enough characteristics with the good particularly with respect to nature, use, function, and quality as to be considered substantially identical. Article 77.

B. Domestic Producers

   National production is understood as all national producers of a similar or identical product or producers whose entire production accounts for a major share of national production of such goods for the domestic market.

C. Standing

D. Polling

E. Normal Value

F. Calculation of Cost of Production

G. Export Price

   If an export price does not exist, or if the tribunal considers that the export price is not truly representative since an association or offset agreement exists between the exporter and the importer or a third party, the export price shall be reconstructed on the basis of the price at which the good is resold to an independent importer for the first time or if the good is not resold to an independent importer or is not resold in the same condition as it was when it was imported, on some other reasonable basis to be determined by the tribunal.

H. Export Price - Adjustments

I. Injury

   Unless otherwise indicated, harm is understood as material harm caused to an area of national production, the threat of material harm to an area of national production, or a marked retardation in the establishment of such production.

   Material harm or injury is understood as a significant loss or erosion of wealth, or the significant loss or potential loss of any other normal and legitimate profits by an industry as an immediate result of unfair trade practices.

   Information on the volume and effects of imports of identical or similar goods from at least two countries will be gathered to measure the injury caused or threatened, if such goods are under investigation and are competing against one another and against a domestic product provided that the volume of imports from each country is not insignificant and the margin of dumping or the amount of the subsidy from each country is not de minimis.

J. Threat of Injury

   The determination of material harm or injury shall be based on definite proof and not mere allegations, conjecture, or remote possibilities, and shall comprise an objective examination of:

         1. The volume of imports of unfairly traded goods and their impact on the prices of identical or similar products in the domestic market. An analysis shall be done to determine whether a considerable increase in the imported goods has occurred in absolute terms or with respect to national production or consumption. In determining the impact of such an increase on the prices of identical or similar goods in the domestic market, it will have to be ascertained whether the imports of unfairly traded goods have a selling price that is lower, and whether their effect has been to substantially lower the prices of locally produced goods or to prevent a price increase which might otherwise have occurred.

         2. The effects of such imports on the domestic producers of such goods. An evaluation will have to be performed of all of the economic factors and indicators that might have an impact on domestic production such as an actual and potential reduction in sales, market participation, benefits and profits, production volume, productivity, return on investment, or capacity utilization; the factors that may have an effect on domestic prices; the margin of dumping; actual and potentially adverse effects on cash flow, inventory, employment, wages and salaries, growth, borrowing capacity, and investment.

   This list is not exhaustive and none of these factors taken individually or in combination would be sufficient to justify a determination of material injury or the threat thereof.

   In determining the existence of the threat of material harm or injury the country's or the exporter's export capacity, the likelihood of lower domestic prices as a result of such imports, the existence of underutilized capacity, and the increase in inventories held by national producers shall be taken into consideration.

   Nevertheless, the threat of injury will require material evidence based on facts not allegations, conjecture, or remote possibilities, and the injury must be imminent.

   Information on the volume and effects of imports of identical or similar goods from at least two countries will be gathered to measure the injury caused or threatened, if such goods are under investigation and are competing against one another and against a domestic product provided that the volume of imports from each country is not insignificant and the margin of dumping or the amount of the subsidy from each country is not de minimis.

K. Material Retardation

L. Cumulation

M. De Minimis Provision

1. Antidumping

   The subsidy or subsidization will be considered de minimis when it amounts to less than one percent (1%) ad valorem. If the good is imported from a developing country member of the World Trade Organization, a subsidy of up to two percent (2%) ad valorem, computed on a unit basis, will be allowed.

   Moreover, a subsidized good that is imported from a developing country member of the World Trade Organization will be considered insignificant when the volume of subsidized imports represents less than four percent (4%) of total imports of an identical or similar good unless the volume of imports of the good from such developing country which individually account for less than four percent (4%) of the total, together represent more than nine percent (9%) of imports of the identical or similar good.

   When the subsidization or dumping is found to be de minimis, or when the subsidized goods or goods subject to dumping are imported in an insignificant volume as specified in the two preceding articles, the investigation will be considered terminated without the need to impose protective measures of any kind.

2. Countervailing

N. Margin of Dumping

   Margin of dumping is understood as the price differential between the fair market price of the foreign good and the price at which that good is imported to the home market, as established in Chapter III of this title. The margin of dumping will be considered de minimis when it is less than two percent (2%) ad valorem.

   The volume of imports subject to dumping will be considered insignificant if is established that goods from a certain country member of the World Trade Organization represent less than three percent (3%) of imports of an identical or similar product unless the imports from these countries, which individually represent less than three percent (3%) of total imports of the good in question, together account for more than seven percent (7%) of imports of such goods.

O. Subsidy Rate

IV. Steps of the Investigation

A. Petition Filing

   The proceedings will be initiated by means of a complaint submitted by a duly authorized representative, in which the grounds or basis in fact or law are clearly indicated, and accompanied by evidence indicating the existence of imports characterized by unfair trade practices, significant injury or damage, or the threat of significant injury or damage, and a causal nexus.

   The complaint shall contain the following information, as a minimum:

         1. General information on the complainant.

         2. The complainant's domestic market share in respect of the product in question, relative to national production of goods intended for domestic consumption. The production sector in whose name the complaint is filed must be identified by means of a list of all domestic producers of identical or similar products, or of producer associations and, to the extent possible, a description of the volume and value of domestic production of identical or similar goods attributable to these producers;

         3. Detailed descriptions and customs clearance of the imported merchandise, specifying its quality relative to that of domestic production, and other identifying information;

         4. The volume and prices of imports characterized by unfair trade practices and their effect on the domestic products and producers concerned;

         5. The name and domicile of the importers, and, if known, the names of the exporters;

         6. Exporting country and country of origin;

         7. Subsidy or dumping margin and other information raising a presumption of unfair trade practices;

         8. Ascertainment of significant injury or harm, or the threat of significant injury or harm, based on the criteria contained in Chapter IV, Title III of this Act. Until such time as proceedings are initiated, the parties shall refrain from any public disclosure with regard to the complaint.

   Once the complaint has been received, it will be determined whether it meets the formal conditions established by this Act, and if so, the investigation will be initiated. In the event that the complaint does not meet the conditions stipulated in this Act or, if it does meet those conditions, the information presented is not clear, the complainant will be required, within a period of five working days as from the date of notification, to correct the complaint or to provide the relevant documents. If the complainant has not fulfilled this requirement within the time stipulated, the complaint will be dismissed and placed on file. (Article 150 & 151).

B. Initiation of Investigation

   Proceedings are initiated by an affected party or, exceptionally, by the Commission itself when it has sufficient evidence of unfair trade practices, injury and causal nexus to justify an investigation.

   The initiation of an investigation on subsidies or dumping shall not prevent the completion of customs processing nor the granting of import visas by any other public agency.

   Proceedings shall be initiated ex oficio at every stage of the process, in accordance with the principles, inter alia, of due speed, efficiency, public disclosure, impartiality, and absence of formalism. The parties eligible to initiate proceedings are as follows.

         1. The national industry or production sector injured by the imports of products under investigation for unfair trade practices;

         2. Associations of producers considering themselves to be affected or threatened by imports characterized by unfair trade practices;

         3. The Commission.

   The request to initiate proceedings is considered to have been filed by the domestic industry or production sector, or on its behalf, when it is endorsed by domestic producers expressing support or opposition to the request, whose total production accounts for fifty percent (50%) or more of the total national industry or production of identical or similar products.

   The above notwithstanding, the investigation will be initiated when the domestic industry or production sector expressly endorsing the complaint represents twenty-five percent (25%) or more of total production of the identical or similar product produced by the domestic industry or production sector.

   The Tribunal or the Commission when so requested by the Tribunal, shall determine the degree to which the conditions indicated in the preceding paragraphs have been met by the use of statistical techniques.

   In the case of fragmented production sectors, composed of an excessively high number of producers, statistical sampling techniques may be used. (Articles 146, 147, 148 & 149).

C. Issuance of Questionnaire

   Questionnaires, inspections, technical rulings or expert opinions may also be subpoenaed, at the expense of the interested parties, when deemed appropriate, and any measures for the purpose of verifying the alleged facts may be ordered.

   The complaint so conveyed will be accompanied by a questionnaire enumerating the points to be addressed in the response. Article 153 & 155.

D. Response to Questionnaire

   If no response is received within the period of time indicated, the investigation will be resumed ex-oficio. Article 153.

E. Preliminary Determination

1. Injury

   During the period of the investigation, the Tribunal, by means of a reasoned ruling, may order provisional measures to prevent imminent injury or harm to the domestic industry or production sector concerned that would be difficult to remedy, provided that it is determined that the imports characterized by unfair trade practices are causing or threaten to cause significant injury or harm.

   The reasoned ruling will include the arguments used and evidence submitted by the complainant and the reasons in favor of applying provisional measures.

   The provisional measures will not be applied until 60 calendar days after the date of the ruling ordering the procedure.

   The provisional measures shall consist of provisional countervailing or anti-dumping duties.

   Both types of provisional measures will not be used simultaneously to solve a single given situation resulting from subsidies or dumping. Application of the provisional measures will consist of the payment, by the importer, of a guarantee deposit in accordance with the procedures established by the Director-General of Customs of the Ministry of Finance and Treasury.

   The amount of the guarantee may not exceed the subsidy or dumping margin calculated on a provisional basis. The duration of the provisional measures may not exceed four months in the case of subsidies, and six months in the case of dumping. (Article 158, 159 & 160).

2. Antidumping

3. Countervailing

F. Conduct Verification

1. Antidumping

2. Countervailing

G. Hearings

1. Antidumping

   Once the evidence has been finalized, and before a final decision has been issued, the all of the interested parties will be summoned to a hearing to be informed and heard with respect to the essential facts considered and used as the basis for the decision to apply or not to apply final measures.

   The parties will have three working days to present arguments in defense of their interests. Article 167.

2. Countervailing

H. Briefs

I. Final Determinations

   Once the arguments have been received, a reasoned ruling will be issued within in ten working days, confirming whether subsidies or dumping have occurred, whether there is significant injury or harm, or threat of injury or harm, to national production, whether a causal nexus between the two exists, and assessing countervailing or anti-dumping duties in respect of the products under investigation for unfair trade practices.

   Otherwise, the complaint will be dismissed and the proceedings halted. Article 168.

J. Maximum Length of Investigation

K. Maximum Duration of Antidumping and Countervailing Duty Orders

L. Retroactivity

M. Best Information Available (or "Facts Available")

   In cases where the authorities of the exporting countries or the interested parties deny access to the necessary information, do not provide it within a reasonable period of time, or significantly obstruct the investigation, preliminary or final conclusions may be issued based on the facts available, including those provided in the request for the initiation of proceedings presented by the domestic industry or production sector. Article 157.

N. Consumers as Interested Parties

O. Public Interest

1. Antidumping

2. Countervailing

P. Undertakings or Commitments

   The investigation may be suspended and the proceedings halted, even without the assessment of provisional or final duties, when arrangements are agreed to under which the exporter agrees to revise its prices so as to eliminate the prejudicial effect of the unfair trade practice.

   The price increases stipulated in the agreement shall not be greater than the amount necessary to compensate for the amount of the subsidy or the dumping margin.

   The amount of the price increases may be less than the amount of the subsidy or dumping margin if sufficient to eliminate the injury to the national industry or production sector.

   In the case of subsidies, proceedings may also be suspended when the state or the corresponding institution of the exporting country agrees to eliminate or limit the subsidy or take other satisfactory measures that have the effect of eliminating the injury or threat of injury to national production.

   An extract of the decision to agree to a settlement and suspend the investigation, including all of the pertinent information concerning the considerations, with respect to fact and law, and the reasons that have led to the settlement, shall be published in a recognized nationally circulated journal, with due regard for the provisions concerning confidentiality. Article 165 & 166.

V. Review of Antidumping and Countervailing Duty Determinations

A. Annual Reviews

   A review of the measures imposed in the final decision will be done officially or at the request of the party at least once every twelve (12) months to determine whether the measures should be continued. Article 87.

B. Duty Refund Review

C. Sunset Review

D. Changed Circumstances Review

E. New Shipper Review

1. Antidumping

2. Countervailing

3. Judicial, Administrative or Other Review

F. Procedures for Due Process

1. Notification of Initiation of Investigation

   Complaints filed with the Tribunal will be conveyed to the affected party or parties, who will have a period of 30 calendar days as from the 7th calendar day following the date of transmittal to the addressee.

   A copy of the complaint will also be given to the authorities of the exporting country by means of notification of the diplomatic or consular representative accredited in the country, or in accordance with international agreements to which Panama is a party.

   Once the complaint has been admitted and the investigation initiated, an extract from the complaint shall be published in a recognized nationally circulated journal. Article 152 &153.

2. Questionnaires (Distribution, Response Time, Extensions, Supplements)

3. Publication of Antidumping and Countervailing Duty Determinations

4. Access to Public Information

5. Access to Confidential Information

6. Decision Making Process (Ministerial Approval, Commission Vote, etc.)

G. Application and Collection of Duties

1. Suspension of Liquidation

2. Use of Bonds or Cash Deposits

3. Methods of Liquidation

H. Other

1. Anti-Circumvention

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