South Africa and the World Trade Organization Anti-Dumping Agreement nineteen years into democracy

• Author: Lonias Ndlovu
• DOI: 10.10520/EJC153139
• Published date: 01 January 2013
• Date: 01 January 2013
• Pages: 279-307
• publishedBy: UNISA Press

South Africa andthe World Trade

Organization Anti-DumpingAgreement

nineteen years into democracy*

Lonias Ndlovu**

1 Introduction1

One of the most celebrated aspects of the Uruguay Round, which culminated in

the establishment of the World Trade Organization (WTO) in 1995, was the

adoption of the dispute settlement system. For a number of reasons, the WTO

dispute settlement system has often been touted as a notable victory scored by

the multilateral trading system. Firstly, compared to its predecessor under the

erstwhile General Agreement on Tariffs and Trade (GATT), the dispute

settlement system is often celebrated as rules-based rather than consensus-

based system. Secondly, the system is praised for its transparency and strict time

frames that ensure that a dispute is heard and finalised within a reasonable time.2

Thirdly, because the system has become more predictable, many WTO members

have accepted it as the legitimate legal regime to protect their international trade

interests. This acceptance is evidenced by the increasing number of disputes

The title of this article was conceived as a somewhat belated but complimentary response to

*

Schlemmer’s famous article, ‘South Africa and the WTO: Ten years into democracy’ (2004) 29

SAYIL 125, going by a similar title, published some eight years ago.

LLB, LLM. Senior Lecturer, Department of Mercantile Law, University of Zululand, KwaDlangezwa.

**

A slightly revised version of this article was presented at the Society of International Economic Law

Conference which was hosted by the Centre for International L aw (CIL), National University of

Singapore, 11-15 July 2012.

This introductory part of the artic le and the related section entitled ‘Laying the su bstantive legal

1

foundation’ rely substantially on my previous articles, namely: ‘South Africa and the World Trade

Organization Anti-Dumping Agreement’ (published as Online Proce edings Working Paper no

2012/17 available at http ://www.ssrn.com/link/SIEL-2012-Singapore-Conference.html) and ‘An

assessment of the WTO compliance of the recent regulatory regime of South Africa’s dumping and

anti-dumping law’ (2010) 5 Jou rnal of International Commercial Law and Techno logy 29-40

available at http://www.jiclt.com/index.php/jiclt/article/view/98. .

As a general rule, once a WTO Panel has been established, it must dispose of the matter in nine

2

months and if an appeal is lodged, the Appellate Body must finalise its report in ninety days

(www.wto.org) (accessed 2012-08-20).

280 (20 13) 28 SAPL

brought before WTO panels and the Appellate body. The legitimacy is further

buttressed by the fact that litigants at the WTO come from both developed and

developing countries, with participation by developing countries having increased

significantly in the last decade.

The above positive aspects notwithstanding, the participation of African

developing countries in particular has not been that significant when compared

to their developed counterparts. Most developing countries are reluctant to initiate

and defend disputes at the WTO for various reasons. Compared to the rest of

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the WTO membership, Africa’s participation has been limited and somewhat

insignificant.

Like its African counterparts, South Africa has been conspicuous by its

minimal participation in the WTO dispute settlement system. However, despite

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its limited participation in WTO litigation, South Africa has made serious inroads

in terms of developing and applying WTO law in the municipal context. This

laudable trend has been largely confined to dumping/anti-dumping matters.

In comparison with other African states and the rest of the global community,

South Africa has one of the most widespread and documented histories of

applying anti-dumping measures. South Africa’s anti-dumping laws date back to

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1914; and the first anti-dumping duties are said to have been imposed in 1921.

6 7

In all documented instances of South’s participation in the WTO dispute

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settlement processes, the country was a respondent, and the subject matter was

9

See generally Alavi ‘African countries and the WTO’s dispute settlement mechanism’ (2007) 25

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Development Policy Review 25-42.

At the tim e of writing, South Africa has participated in the WTO dis pute settlement system f ive

4

times; thrice as respondent and twice as a complainant (see http://www.wto.org/english/thewto

_e/countries_e/south_africa_e.htm) (accessed on 2012-06-20).

See generally Joubert ‘The reform of South Africa’s anti-dumping regime’ available at http://www

5

.wto.org/english/res_e/booksp_e/casestudies_ e/case38_e.htm (ac cessed 2012-06-12); Tao

Dumping and anti-dumping regulations with specific reference to the legal framework in South

Africa and China(LLM dissertation (University of the Free State)) (2006); and Brink and Kobayashi

‘South Africa’ in Nakagawa Anti-dumping laws and p ractices of the new users (2007) at 203.

According to Macrory, Appleton and Plummer (eds) The World Trade Organization: Legal,

economic and political analysis (2005) 45. In 1958, the GATT members had only 37 anti-dumping

measures in force and South Africa alone acc ounted for 32.

Section 8(1) of the Customs Tariff Act 26 of 1914.

6

See Board Report no 42 (dumping or unfair competition 18/11/1924) in which reference was made

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to an imposition of anti-dumping duties o n flour from Australia in 1921.

Established on 1995-01-01, the World Trade Organization provides a forum for implementing the

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multilateral trading system, negotiating ne w trade agreements and resolving trade disputes.

It is noteworthy that South Africa has never brought a complaint to the WTO about a trade measure

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taken by any of its trading partners. I t has been the trend for South Africa to appear before WTO

panels as the party against which complaints about anti-dumping matters have been laid. It has

been argued by Busch and Reinhardt ‘Developing countries and the General Agreement on Tariffs

and Trade/World Trade Organization dispute settlement’ (2003) 37 Journal of World Trade 719 at

720 that the extent of a country’s participation in the WTO dispute settlement system is a reliable