Compendium of Antidumping and Countervailing Duty Laws
in the Western Hemisphere
- Steps of the Investigation
- Undertakings or Commitments
WTO Standard: Antidumping proceedings may (footnote omitted) be suspended or terminated without the imposition of provisional measures or anti-dumping duties upon receipt of satisfactory voluntary undertakings from any exporter to revise its prices or to cease exports to the area in question at dumped prices so that the authorities are satisfied that the injurious effect of the dumping is eliminated. Price increases under such undertakings shall not be higher than necessary to eliminate the margin of dumping. It is desirable that the price increases be less than the margin of dumping if such increases would be adequate to remove the injury to the domestic industry. (AD Agreement, Art. 8.1)
Countervailing duty proceedings may (footnote omitted) be suspended or terminated without the imposition of provisional measures or countervailing duties upon receipt of satisfactory voluntary undertakings under which:
(a) the government of the exporting Member agrees to eliminate or limit the subsidy or take other measures concerning its effects; or
(b) the exporter agrees to revise its prices so that the investigating authorities are satisfied that the injurious effect of the subsidy is eliminated. Price increases under such undertakings shall not be higher than necessary to eliminate the amount of the subsidy. It is desirable that the price increases be less than the amount of the subsidy if such increases would be adequate to remove the injury to the domestic industry. (SCM Agreement, Art. 16.1)
Price undertakings shall not be sought or accepted from exporters unless the authorities of the importing Member have made a preliminary affirmative determination of dumping or subsidization and injury caused by such dumping. (AD Agreement, Art. 8.2; SCM Agreement, Art. 18.2)
Undertakings offered need not be accepted if the authorities of the importing Member consider their acceptance impractical, for example, if the number of actual or potential exporters is too great, or for other reasons of general policy. Should the case arise and where practicable, the authorities shall provide to the exporter the reasons which have led them to consider acceptance of an undertaking as inappropriate, and shall, to the extent possible, give the exporter an opportunity to make comments thereon. (AD Agreement, Art. 8.3; SCM Agreement, Art. 16.3)
If an undertaking is accepted, the investigation of dumping or subsidization and injury shall nevertheless be completed if the exporter so desires or the authorities so decide. In such a case, if a negative determination of dumping/subsidization or injury is made, the undertaking shall automatically lapse, except in cases where such a determination is due in large part to the existence of a price undertaking. In such cases, the authorities may require that an undertaking be maintained for a reasonable period consistent with the provisions of this Agreement. In the event that an affirmative determination of dumping or subsidization and injury is made, the undertaking shall continue consistent with the provisions of this Agreement. (AD Agreement, Art. 8.4; SCM Agreement, Art. 16.4)
Price undertakings may be suggested by the authorities of the importing Member, but no exporter shall be forced to enter into such undertakings. The fact that exporters or governments (in the case of a countervailing duty investigation) do not offer such undertakings or do not accept an invitation to do so, shall in no way prejudice the consideration of the case. However, the authorities are free to determine that a threat of injury is more likely to be realized if the dumped imports continue. (AD Agreement, Art. 8.5; SCM Agreement, Art. 16.5)
Authorities of an importing Member may require any exporter or government (in the case of a countervailing duty investigation) from whom an undertaking has been accepted to provide periodically information relevant to the fulfillment of such an undertaking and to permit verification of pertinent data. In case of violation of an undertaking, the authorities of the importing Member may take, under this Agreement in conformity with its provisions, expeditious actions which may constitute immediate application of provisional measures using the best information available. In such cases, definitive duties may be levied in accordance with this Agreement on products entered for consumption not more than 90 days before the application of such provisional measures, except that any such retroactive assessment shall not apply to imports entered before the violation of the undertaking. (AD Agreement, Art. 8.6; SCM Agreement, Art. 16.6)
Argentina
Argentina directly applies the standards of the WTO Agreements. The standards corresponding to Decree 2121/94 are cited, and to the degree that they do not contradict the provisions of the Agreement, they will be applied.
The competent implementing authority shall evaluate any price agreement submitted for its consideration concerning an antidumping or anti-subsidy investigation and shall decide whether to accept it within 30 working days from the time it received the request for consideration.
The purpose of such price agreement shall be to eliminate the injury to the domestic production. The competent implementing authority may also suggest price agreements on its own initiative, though on-acceptance by one of the parties shall not have a negative impact on the investigation.
For purposes of accepting or rejecting price agreements, the competent implementing authority is the Secretariat for Industry, Trade and Mining of the Ministry of the Economy and Public Works and Services, which shall act after consulting the Under-Secretariat for Foreign Trade and the National Commission for Foreign Trade on matters within their competence. (Decree No. 2121/94, Art. 55).
If the agreement is accepted, the investigation into injury may be completed if the exporter so requests or the competent implementing authority considers it appropriate.
In such cases, if it is finally determined that there is no injury, the agreement shall automatically lapse, except in cases where the negative determination is due in large part to the implementation of the price agreement concerned.
In such cases, the competent implementing authority may require the agreement to be maintained for a reasonable period of time. (Id., Art. 56).
The competent implementing authority may reject the agreement in the following circumstances:
(a) when in its judgement, the agreement is impracticable or impossible to implement, as occurs when the number of actual or potential participating exporters is very large;
(b) when the agreement contravenes legislation concerning protection of competition.
In order to determine such cases, an opinion of the authority responsible for implementing such legislation shall be required; and
(c) when the agreement is not capable of eliminating the injury to domestic production.
If the price agreement arises from an investigation into subsidies, its acceptance requires the consent of the government granting the subsidy. (Id., Art. 57).
The competent implementing authority may request the opinion of the authority responsible for implementing legislation on protection of competition, when it considers it necessary to determine whether an agreement is in contravention of such legislation.
In such cases, the opinion shall be requested within 10 working days from the date when the price agreement was submitted for consideration and approval.
The authority responsible for implementing legislation on protection of competition should reach a decision within 10 working days of receiving the request for its opinion. (Id., Art. 58).
The competent implementing authority may request periodic submission of information necessary to evaluate compliance with price agreements which have been accepted.
Such agreements shall be periodically reviewed as specified in the decision giving rise to the agreement.
The period shall not be less than 1 year. The competent implementing authority may revoke if it considers that the causes which led to the agreement no longer exist, or when the terms of the agreement have been broken.
In the event that the agreement has been broken, the competent implementing authority may immediately impose preventive measures on the basis of the investigation already carried out. (Id., Art. 59).
Bolivia
Offers to eliminate or limit the subsidy, to revise the export prices or to cease exports to Bolivia, as appropriate, in such a way as to eliminate the consequent injury shall be evaluated.
Offers shall not be considered when:
1. They are made prior to the imposition of provisional duties;
2. they do not include the supply of the information and authorization to carry out investigations which the investigating authority deems necessary;
3. they offer quantitative restrictions in cases of dumping investigations.
Parties interested in the procedure shall be given the opportunity to send their comments to the investigating authority within a specified time period, at the expiry of which it shall communicate any information to the Committee on the Evaluation of Unfair Trade Practices.
The Committee shall make a recommendation to the Minister for Exports and Economic Competition on the terms of the statement of intent (undertaking).
The Ministry of Exports and Economic Competition shall adopt and publish the decision most appropriate to the interests of the country.
In its resolution accepting the offer, the Ministry may order that antidumping or countervailing duties should not be collected, or should be collected in an amount less than the identified margin of dumping or subsidy, or be collected only as from a specified date or up to a specified date.
The application of any concessions made in the decision taken shall be conditional on fulfillment of the offers by the parties which made the statements of intent accepted by the Ministry of Exports and Economic Competition.
Where the Minister for Exports and Economic Competition, after receiving statements of intent, determined that there has been no injury, the resolution terminating the investigation shall state that the offers accepted previously have lapsed.
Brazil
Dumping: The proceeding of the investigation without the application of provisional measures or an antidumping duty may be suspended if the exporters voluntarily agree to a satisfactory undertaking to revise prices or to cease exporting to Brazil at dumped prices and the Minister of Industry, Trade and Tourism and the Minister of Finance find that the undertaking will eliminate the prejudicial effect of the dumping. Art. 35.
The price increase shall not be higher than necessary to eliminate the dumping and may be limited to that necessary to eliminate the injury caused by the dumping. Art. 35-1.
The exporters may propose an undertaking or accept one offered by SECEX after an affirmative preliminary determination of dumping, injury and causation. Art. 35-2.
The exporters are not obligated to propose an undertaking and need not accept one. Such action shall not prejudice the consideration of the case nor change the preliminary determination. Art. 35-3.
After the commitment is accepted, the decision shall be published indicating whether or not the investigation is to be continued and the interested parties shall be notified accordingly. The investigation of dumping and injury shall be continued if the exporter desires or if the Ministers so decide. Art. 36 unico.
The exporters subject to the undertaking shall cooperate in providing the information relative to the agreement and to permit verification of the pertinent data. Art. 37.
In the event that the investigation was suspended and violation of the commitment is ascertained, provisional antidumping measures may be applied by the Ministers, based on the best information available, and the investigation shall be resumed.
The interested parties shall be notified of the termination of the price undertaking and the application of provisional antidumping measures.
A notice containing the decision shall be published in the Diário Oficial da União. Art. 38.
Subsidies: The proceedings may be suspended, without the application of provisional measures or countervailing duties, if the government of the exporting country commits to eliminate or reduce the subsides or to take other measures with similar effect, or the exporter voluntarily commits to revise prices on exports destined for Brazil.
In addition the Minister of Industry, Trade and Tourism and the Minister of Finance must determine that the commitment will eliminate the prejudicial effect of the subsidies. Art. 45.
The price increase in an exporter commitment shall not be higher than that necessary to compensate for the subsidy and may be limited to that necessary to eliminate the injury to the domestic industry. Art. 45-1.
The government of the exporting country or the exporters may propose commitments or accept one offered by SECEX after an affirmative preliminary finding of subsidization and the consequent injury.
In the case of a commitment by the exporters the consent of the exporting country's government must be obtained. Art. 45-2.
The government and the exporters are not obligated to propose a commitment and need not accept one.
Such action will not prejudice the consideration of the case nor change the preliminary determination. Art. 45-3.
After the price commitment is accepted, the decision shall be published indicating whether or not the investigation is to be continued and the interested parties and governments shall be notified accordingly. The investigation of subsidies and injury shall be continued if the government of the exporting country or the Ministers so decide. Art. 46 unico.
The parties to the commitment shall cooperate in providing the information relative to the agreement and in permitting verification of the pertinent data. Art. 47.
If the commitments are violated, the Ministers may immediately implement provisional measures, based on the facts available. In the event that the investigation was suspended, it shall be immediately resumed. A notice containing the decision shall be published in the Diário Oficial da União. Art. 48.
Canada
Paragraph 49(2)(b) of the Special Import Measures Act (SIMA) requires a preliminary determination of dumping or subsidizing and resulting injury, retardation or threat of injury as a prerequisite to the acceptance of an undertaking.
Upon acceptance of an undertaking, the investigation and collection of provisional duties is suspended.
However, pursuant to subsection 49(3), subparagraph 50(a)(iii) and paragraph 50(b) of the Act, an investigation must be completed after an undertaking has been accepted, if the exporter (in the case of dumping) or the government of the country (in the case of subsidies), that offered the undertaking, so requests.
Where completion of the investigation results in a negative finding of dumping/subsidizing or injury, retardation or threat of injury, the undertaking will be immediately terminated.
An undertaking will also be terminated at any time after acceptance thereof, where the conditions which gave rise to acceptance of the undertaking no longer exist.
An undertaking will expire after five years unless, upon review by the Deputy Minister of National Revenue pursuant to subsection 53(1) of the SIMA, it has been renewed for a further period of not more than five years.
Chile
There is no statutory provision pertaining to undertakings.
Colombia
The Trade Practices Committee shall evaluate the cases in which the competent authorities of the country of origin or of export, the producers or the exporters, offer through INCOMEX, at its suggestion or at the initiative of the parties, to eliminate or limit the subsidy, to revise the export prices or to cease exports to Colombia as appropriate, to eliminate the consequent injury.
In dumping investigations INCOMEX shall only receive statements of intent during the two months following the date of publication of the resolution containing the preliminary determination.
Offers shall not be considered when:
(1) they do not include the supply of the information and the authorization to carry out investigations which the investigating authority deems necessary to determine that such offers are fulfilled; or
(2) they offer quantitative restrictions in cases of dumping investigations. (Decree 299, Chapter 6, Art. 17).
In cases where statements of intent are submitted, INCOMEX shall, in a reasoned resolution, communicate them within ten working days following the date of submission to the participants in the investigation, granting them a period of five working days to inform INCOMEX in writing of their comments on the content of the statements.
Within a period of 15 days following publication of the resolution communicating the statements of intent, INCOMEX shall convene the Trade Practices Committee to inform it of the terms of the statements and the comments received in that regard.
The Committee shall submit a recommendation in respect of the foregoing to the Ministry of Foreign Trade.
The Ministry of Foreign Trade shall adopt and publish the decision most appropriate to the interests of the country.
In its resolution accepting the offer, the Ministry may order that antidumping or countervailing duties shall not be collected, or shall be collected in an amount less than the identified margin of dumping or subsidy, or be collected only as from a specified date or up to a specified date.
Application of any concessions made in the decision taken shall be conditional on fulfillment of the offers by the parties which made the statements of intent accepted by the Ministry of Foreign Trade.
In the resolutions concerned, the Ministry of Foreign Trade shall also stipulate that, if the authority, producer or exporter which made the offer fails or refuses to provide periodic information relating to the fulfillment of such offer, INCOMEX may order the immediate application of provisional duties using the best information available, that prejudice to a declaration of nonfulfillment through a reasoned resolution.
Where the authority, after receiving statements of intent, determines that there are no grounds for imposing definitive antidumping or countervailing duties, the resolution terminating the investigation shall state that the offers accepted previously have lapsed. (Decree 299, Chapter 6, Art. 18).
Costa Rica
Proceedings may (the endnote is omitted) be suspended or terminated without the imposition of provisional measures or anti-dumping duties upon receipt of satisfactory voluntary undertakings from any exporter to revise its prices or to cease exports to the area in question at dumped prices so that the authorities are satisfied that the injurious effect of the dumping is eliminated.
Price increases under such undertakings shall not be higher than necessary to eliminate the margin of dumping.
It is desirable that the price increases be less than the margin of dumping if such increases would be adequate to remove the injury to the domestic industry.
Proceedings may (the endnote is omitted) be suspended or terminated without the imposition of provisional measures or countervailing duties upon receipt of satisfactory voluntary undertakings under which:
(i) the government of the exporting country agrees to eliminate or limit the subsidy or take other measures concerning its effects, or
(ii) the exporter agrees to revise its prices so that the investigating authorities are satisfied that the injurious effect of the subsidy is eliminated.
Price increases under such undertakings shall not be higher than necessary to eliminate the amount of the subsidy.
It is desirable that the price increases be less than the amount of the subsidy if such increases would be adequate to remove the injury to the domestic industry.
Undertakings shall not be sought or accepted unless the authorities of the importing country have made a preliminary affirmative determination of subsidization and injury caused by such subsidization and, in case of undertakings from exporters, have obtained the consent of the exporting Member.
Undertakings offered need not be accepted if the authorities of the importing Member consider their acceptance impractical, for example if the number of actual or potential exporters is too great, or for other reasons, including reasons of general policy.
Should the case arise and where practicable, the authorities shall provide to the exporter the reasons which have led them to consider acceptance of an undertaking as inappropriate, and shall, to the extent possible, give the exporter an opportunity to make comments thereon.
If the undertakings are accepted, the investigation of dumping and injury shall nevertheless be completed if the exporter so desires or the authorities so decide.
In such a case, if a negative determination of dumping or injury is made, the undertaking shall automatically lapse except in cases where such a determination is due in large part to the existence of a price undertaking.
In such cases the authorities may require that an undertaking be maintained for a reasonable period.
In the event that an affirmative determination of dumping and injury is made, the undertaking shall continue consistent with its terms.
Price undertakings may be suggested by the authorities of the importing Member, but no exporter shall be forced to enter into such an undertaking.
The fact that exporters do not offer such undertakings, or do not accept an invitation to do so, shall in no way prejudice the consideration of the case.
However, the authorities are free to determine that a threat of injury is more likely to be realized if the dumped imports continue.
Authorities of an importing country may require any exporter from whom undertakings have been accepted to provide periodically information relevant to the fulfillment of such undertakings, and to permit verification of pertinent data.
In case of violation of undertakings, the authorities of the importing country may take [...] expeditious actions which may constitute immediate application of provisional measures using the best information available.
In such cases definitive duties may be levied [...] on goods entered for consumption not more than ninety days before the application of such provisional measures, except that any such retroactive assessment shall not apply to imports entered before the violation of the undertaking.
An executive decree stipulates further that: At any stage in the investigation until such time as a definitive measure is ordered, and without interrupting the process, conciliation boards may be suggested either ex officio or at the request of a party.
Fulfillment of the undertakings of the conciliation boards may be reviewed either ex officio or at a party's request.
Periodic information on them may be requested.
If a review finds noncompliance, the application of provisional measures shall be recommended to the Minister, based on the information available.
The interested parties shall be notified within ten days of the date on which the measure is adopted.
Dominican Republic
Ecuador
El Salvador
There is no provision for this matter but El Salvador applies the provisions of the WTO Antidumping Agreement and the Subsidies and Countervailing Measures Agreement.
Guatemala
Honduras
Jamaica
Mexico
The Ministry may suspend or terminate the investigation without the imposition of duties where the exporter gives a voluntary undertaking to revised its prices or to cease exports, or if the government of the exporting country eliminates or limits the subsidy in question.
For this purpose, the Ministry shall determine whether, as a result of these undertakings or any similar undertakings which may be given, the injurious effect of the unfair practice is eliminated. (I/72).
If the Ministry accepts an undertaking, it shall issue an appropriate resolution declaring suspension or termination of the investigation (after having submitted the draft resolution to the Commission for its opinion).
The resolution shall be notified to the interested parties and published in the Diario Oficial de la Federacion.
The undertaking shall be incorporated into the resolution together with the Commission's opinion. (I/73). Undertakings may be reviewed periodically at the request of a party or ex officio.
If as a consequence of the review the administrative authority finds that the undertaking has not been fulfilled, the collection of the provisional countervailing duty shall be reinstated immediately by publication of the corresponding resolution in the Diario Oficial and the investigation shall be continued. (I/74).
Nicaragua
Panama
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.
Paraguay
In cases where a positive preliminary determination has been made as to the existence of dumping or subsidies, the investigation may be suspended or deemed concluded without imposing provisional or definitive measures when there are undertakings by which the competent authorities of the country of origin or export, the producers, or the exporters agree to review the export prices, suppress or limit the subsidy, or cease exports to Paraguay, so as to eliminate the injury to the domestic industry.
The proposals to carry out the undertakings referred to in the previous section shall be submitted to the Ministry of Industry and Commerce, which shall, within the 15 working days following their submission, give notice to the interested parties, allowing them a period of 10 working days to submit their comments in writing.
The Ministry of Industry and Commerce may suggest undertakings, which this Article refers to, but shall not compel any exporter to accept them.
Within five working days following the term of 10 days to which the previous sub-paragraph refers, the Ministry of Industry and Commerce shall convene a meeting of the Commission to submit the proposals, comments received, and technical recommendations for its analysis.
The Ministers of Industry and Commerce and of the Treasury, through a justified bi-ministerial resolution, shall determine definitively whether they accept or do not accept such undertakings.
Said resolution shall be reported to the interested parties and published in the Official Gazette within the next three working days. In the bi-ministerial resolution referred to at Article 17.3, it may be ordered that provisional measures not be imposed, that they be imposed but in an amount less than the margin of dumping or the amount of the subsidy, or any other concession that is pertinent.
Nonetheless, the application of such concessions shall be conditioned on performance of the undertakings accepted.
Likewise, the immediate application of provisional measures may be ordered in the case of non-performance of the undertakings or refusal of the authority, the producer, or the exporter to provide information periodically regarding the performance, or to allow verification of the pertinent data.
Although an undertaking may be accepted, the investigation shall be carried out to its conclusion when so requested by the exporter or when so decided by the Ministry of Industry and Commerce.
In such a case, if a negative determination is made afterwards regarding the existence of dumping or subsidies, the resolution putting an end to the investigation shall indicate that the undertakings have been extinguished, except in cases in which said information is based largely on the existence of such undertakings.
Peru
Santa Lucia
Trinidad and Tobago
The Minister shall review the imposition of a duty where warranted on his own initiative or on a recommendation of the Authority.
United States
U.S. law provides for the suspension of countervailing duty and antidumping investigations. Commerce may suspend a countervailing duty investigation if the government of the country in which the countervailable subsidy practice is alleged to occur agrees to eliminate or offset completely the countervailable subsidy, or if the government or exporters agree to eliminate the injurious effect of the subsidy.
Commerce may suspend an antidumping investigation if the exporters of the subject merchandise who account for substantially all of the imports of that merchandise agree to eliminate completely sales at less than fair value or to eliminate the injurious effect of the less than fair value sales.
Before Commerce can enter into a suspension agreement (undertaking), it must first determine that acceptance of the agreement is in the public interest.
Uruguay
Venezuela
The Commission may suspend or conclude a dumping or subsidy investigation before the final determination when the domestic producers and the importers of like goods being investigated enter into an undertaking for the revision or prices, the elimination or limitation of subsidies, or the reduction or elimination of the margin of dumping, as well as the harmful effects of such practices on the domestic industry.
Such an undertaking shall be published in the Official Gazette of the Republic of Venezuela. (1992 Law, Art. 23).
An undertaking may be rejected under circumstances; e.g., when the domestic producers party to the undertaking are not representative of producers as a whole [see 1993 Regulations Art. 57(1)], where the commission considers that the undertaking is impossible or impractical, where it is determined that the undertaking goes beyond the objective of offsetting the dumping or subsidy. (1993 Regulations, Art. 57).
The injury investigation shall nevertheless be completed if the Commission so decides or receives a request to that effect from exporters representing a significant proportion of the trade involved or from the government of the country of export or of origin, whichever is appropriate.
If the injury determination is negative, "the investigation shall be definitively concluded and the undertaking shall be declared null and void". (1992 Law, Art. 24).
Undertakings which restrict or eliminate subsidies shall not be accepted without evidence that the competent government authorities have approved the undertaking. (1993 Regulations, Art. 58).
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