Free Trade Area of the Americas - FTAA

 
Ministerial
Declarations
Trade Negotiations
Committee
Negotiating
Groups
Special
Committees
Business
Facilitation
Civil
Society
Trade&Tariff
Database
Hemispheric
Cooperation
Program

Home Countries Sitemap A-Z list Governmental Contact Points

 
 

Compendium of Antidumping and Countervailing Duty Laws
in the Western Hemisphere


  1. Steps of the Investigation

    1. Retroactivity

      a. Antidumping

      WTO AD Standard: A definitive anti-dumping duty may be levied on products which were entered for consumption not more than 90 days prior to the date of application of provisional measures, when the authorities determine for the dumped product in question that:

      (i) there is a history of dumping which caused injury or that the importer was, or should have been, aware that the exporter practices dumping and that such dumping would cause injury; and

      (ii) the injury is caused by massive dumped imports of a product in a relatively short time which in light of the timing and the volume of the dumped imports and other circumstances (such as a rapid build-up of inventories of the imported product) is likely to seriously undermine the remedial effect of the definitive anti-dumping duty to be applied, provided that the importers concerned have been given an opportunity to comment. (AD Agreement, Art. 10.6)

      No duties shall be levied retroactively [...] on products entered for consumption prior to the date of initiation of the investigation. (AD Agreement, Art. 10.7)

      b. Countervail

      WTO SCM Standard: In critical circumstances where for the subsidized product in question the authorities find that injury which is difficult to repair is caused by massive imports in a relatively short period of a product benefiting from subsidies paid or bestowed inconsistently with the provisions of GATT 1994 and of this Agreement and where it is deemed necessary, in order to preclude the recurrence of such injury, to assess countervailing duties retroactively on those imports, the definitive countervailing duties may be assessed on imports which were entered for consumption not more than 90 days prior to the date of application of provisional measures. (SCM Agreement, Art. 20.6)


Argentina

   a. Antidumping

   Argentina directly applies the standards of the WTO Agreements. The standards corresponding to Decree 2121/94 are cited, to the degree that they do not contravene the provisions of the Agreement, they will be applied.

   If the final determination is based on the existence of material injury, a threat of injury, or material retardation, and at the same time imports of the product under investigation produce an effect which, in the absence of preventive measures, would have led to the conclusion that there was material injury, antidumping or countervailing duties may be applied retroactively for the period during which preventive measures were applied. (Decree No. 2121/94, Art. 64).

   In an antidumping investigation, if the competent implementing authority determines:

         (1) that there is a history of dumping causing injury or the importer should have known that the exporter or producer practiced dumping and that the imports of such products under those conditions would produce injury to domestic production; and

         (2) that the injury was due to sporadic dumping (i.e., massive imports of the product under investigation effected for a relatively short period of time) on a scale such that, in order to prevent repetition it is necessary to levy duties retroactively on such imports, the competent implementing authority may stipulate that such duties are to be levied on products destined for consumption up to 90 days prior to the date of application of the preventive measures. (Id.).

   b. Countervail

   If the final determination is based on the existence of material injury, a threat of injury, or material retardation, and at the same time imports of the product under investigation produce an effect which, in the absence of preventive measures, would have led to the conclusion that there was material injury, antidumping or countervailing duties may be applied retroactively for the period during which preventive measures were applied. (Decree No. 2121/94, Art. 64).

   In a countervailing duty investigation, when the implementing authority concludes that there is an injury which is difficult to remedy, caused by massive imports of the product under investigation, over a relatively short period of time, when in order to prevent a repetition of the injury it is considered necessary to levy countervailing duties retroactively on such imports, the definitive countervailing duties are levied on products which have been destined for consumption, up to a maximum of 90 days prior to the date of application of the preventive measures. (Id.).

Bolivia

   The definitive antidumping or countervailing duties established for products entered for consumption within ninety (90) days prior to the date of establishing the provisional duties, when it is proved that there is injury which is difficult to repair caused by massive dumped or subsidized imports, or when statements of intent accepted have not been respected. Bi-ministerial Decision, Art. 2.

   Imposition of retroactive definitive duties may be ordered in the following cases:

         1. Massive imports that have caused the domestic industry injury which is difficult to repair;

         2. Failure to fulfill statements of intent accepted by the Minister for Exports and Economic Competition. Bi-ministerial Decision, Art. 40.

Brazil

   a. Antidumping

   Definitive antidumping duties may be collected on dumped imported products released for consumption up to 90 days after the date of application of the provisional antidumping measures, provided that it is determined that, in the case of the product in question:

         a) there is a history of dumping causing injury, or that the importer was or should have been aware that the producer or exporter was practicing dumping and that it caused injury; and

         b) the injury is caused by large volumes of imports of a product at dumping prices over a relatively short period or, the duration of dumping and the volume of dumped imports, as well as the rapid growth of stocks of the imported product, would probably seriously undermine the corrective effect of any applicable antidumping duties--provided that the importers involved have been given the opportunity to comment. Duties shall not be collected on products that have been released for consumption before the date of initiation of the investigation. (Dec. 1602/95 - Art. 54).

   In the case of violations of commitments, definitive antidumping duties may be collected on imported products released for consumption within 90 days of implementation of provisional antidumping measures, based on the violation, except for products released for consumption prior to the violation of the price undertaking. (Dec. 1602/95 - Art. 55).

   b. Countervail

   Definitive countervailing duties may be collected on subsidized imported products that have been released for consumption, within 90 days of the date of implementation of the provisional countervailing measures, provided that it is determined that the injury is caused by large volumes of imports of the product in question over a relatively short period, which would probably seriously undermine the corrective effect of any ultimately applicable countervailing duties. Duties shall not be collected on products released for consumption prior to the date of initiation of the investigation. (Dec. 1751/95 - Art. 64). In cases where commitments are violated, definitive countervailing duties may be collected on imported products released for consumption within 90 days of implementation of the provisional countervailing measures, depending on the violation, except for products released prior to the violation of the price undertakings. (Dec. 1751/95 - Art. 65).

Canada

   a. Antidumping

   A retroactive assessment of duties may be imposed on goods released during the period of 90 days prior to the date of the preliminary determination, but not prior to initiation of the investigation.

   Under section 5 of the Special Import Measures Act (SIMA), retroactive duties are imposed on dumped goods where a considerable importation of dumped goods caused injury or where the importer was or should have been aware that the goods were dumped and that they would cause injury and injury has been caused because the goods constitute a massive importation into Canada, and it appears necessary to the Canadian International Trade Tribunal to impose the retroactive duties to prevent the recurrence of injury.

   b. Countervail

   Under section 6 of the SIMA, retroactive duties may be imposed on goods receiving a prohibited subsidy where injury has been caused because the goods constitute a massive importation into Canada, and a countervailing duty should be imposed on the goods to prevent the recurrence of injury.

Chile

   No statutory provision pertaining to retroactivity.

Colombia

   The Ministry of Foreign Trade may also order application of final duties in the following cases:

         1) There are damages resulting from massive imports which were the object of dumping or which received export subsidies, as referred to in Article 2 of this Decree, and which were cleared through customs within 90 days prior to the date the temporary duties were imposed, but in no case prior to the date of publication of the decision to open an investigation into dumping or the date of the invitation to hold consultations, as stipulated in Article 35 of this Decree;

         2) There is failure to comply with the statements of intention that had been agreed in accordance with Article 18 of this Decree and that have to do with imports cleared through customs for consumption within 90 days of the date that the temporary duties were established, but in no case prior to noncompliance. (Decree 299/95, Chap. VI, Art. 23).

Costa Rica

   a. Anti-dumping A definitive anti-dumping duty may be levied on products which were entered for consumption not more than 90 days prior to the date of application of provisional measures, when the authorities determine for the dumped product in question that:

         (i) there is a history of dumping which caused injury or that the importer was, or should have been, aware that the exporter practices dumping and that such dumping would cause injury, and

         (ii) the injury is caused by massive dumped imports of a product in a relatively short time which in light of the timing and the volume of the dumped imports and other circumstances (such as a rapid build-up of inventories of the imported product) is likely to seriously undermine the remedial effect of the definitive anti-dumping duty to be applied, provided that the importers concerned have been given an opportunity to comment.

   The authorities may, after initiating an investigation, take such measures as the withholding of appraisement or assessment as may be necessary to collect anti-dumping duties retroactively [...], once they have sufficient evidence that the conditions set forth in the paragraph are satisfied.

   b. Countervailing duty In critical circumstances where for the subsidized product in question the authorities find that injury which is difficult to repair is caused by massive imports in a relatively short period of a product benefiting from subsidies paid or bestowed inconsistently with the provisions of the GATT 1994 [...] and where it is deemed necessary, in order to preclude the recurrence of such injury, to assess countervailing duties retroactively on those imports, the definitive countervailing duties may be assessed on imports which were entered for consumption not more than ninety days prior to the date of application of provisional measures.

Dominican Republic

Ecuador

El Salvador

   a. Antidumping

   Notification was given that the provisions of the WTO Antidumping Agreement apply.

   b. Countervailing Duties

   Notification was given that the provisions of the WTO Agreement on Subsidies and Countervailing Measures apply.

Guatemala

Honduras

Jamaica

Mexico

   Article 93 of the Law embodies the principle established in Article 10.6 of the Antidumping Agreement.

   This indicates that a fine shall be levied against importers who, during a relatively short period, import goods in significant volumes with relation to overall imports and national production when there is a record of unfair practices and when the importer knew or should have known that the exporter was engaged in such practices. According to Article 93 of the Law, the fine shall be the equivalent of the amount derived from applying the final duty on imports made for up to three months preceding the date for applying the temporary countervailing duties.

Nicaragua

Panama

Paraguay

   Provisional measures, anti-dumping or countervailing duties shall only be applied to products declared to be for consumption after the date when the resolutions that contain the preliminary and final determinations enter into force.

   Notwithstanding the foregoing, the final measures may be imposed retroactively for the period during which the provisional measures are adopted, when a final determination of injury is made (but not of threat of injury or major delay in establishing a domestic industry) or, if a final determination is reached as to threat of injury, when the effect of the dumped or subsidized imports is such that, if provisional measures are not applied, an injury were determined to exist.

   When a determination is made of the threat of injury or major delay (without the injury having occurred yet), final duties may only be established from the date of determination of a threat of injury or major delay. In these cases, refund of the duty or restitution of the bond or guarantee will be ordered for the period during which the provisional measures were in effect.

   In critical circumstances, when it is concluded that there is an injury difficult to repair caused by massive imports that are dumped or subsidized, made intermittently in relatively short periods, and that there are antecedents of dumping that have caused injury, or that the importer knew or should have known that the exporter practiced dumping and that it would cause injury, definitive duties may be imposed on the products put up for sale within the 90 days prior to the date provisional measures are imposed.

   Nonetheless, in no case may definitive duties be imposed prior to the date of publication of the resolution that initiates the investigation in dumping cases, or prior to the date of invitation to engage in the consultations mentioned at Article 10 of this Decree.

   Definitive duties may also be imposed on the products that have been put up for sale within the 90 days prior to the date of imposition of provisional measures in cases of non-performance of undertakings referred to in Article 17 of this Decree.

Peru

Santa Lucia

Trinidad and Tobago

   If the Minister determines:

         (1) that the importer was or should have been aware that the goods were dumped and such dumping was causing injury;

         (2) there is a history of dumping causing material injury; and

         (3) that the material injury is caused by substantial dumped or subsidized imports of a product in a relatively short period, then the Minister may impose a duty on the subject goods which were entered for home consumption not more than ninety days prior to the date of the provisional direction. (Sec. 30(3)).

United States

   If Commerce finds that critical circumstances exist, then any suspension of liquidation ordered is retroactively applied to unliquidated entries of merchandise entered up to 90 days prior to the date when the suspension of liquidation was originally ordered.

Uruguay

Venezuela

 
countries sitemap a-z list governmental contact points