The conduct of “price undertakings” and “interim reviews” in the anti-dumping regime of South Africa [Discussion of CASAR Drahtseilwerk SAAR GMBH v International Trade Administration Commission (66248/2014) 2020 ZAGPPHC 141 (14 February 2020)]

• Author: Vinti, C.
• DOI: https://doi.org/10.47348/SLR/2022/i3a11
• Published date: 27 October 2022
• Date: 27 October 2022
• Citation: (2022) 33 Stell LR 560
• Pages: 560-578

560

https://doi.org /10.47348/ SLR/2 022/i3 a11

THE CONDUCT OF “PRICE UNDERTAKINGS”

AND “INTERIM REVIEWS” IN THE ANTI-

DUMPING REGIME OF SOUTH AFRICA

[DISCUSSION OF CASAR DRAHTSEILWERK

SAAR GMBH V INTERNATIONAL TRADE

ADMINISTRATION COMMISSION (66248/2014)

2020 ZAGPPHC 141 (14 FEBRUARY 2020)]

Clive Vinti

LLB (cum laude) LLM PhD

Senior Lecturer, Department of Public Law

University of the Free State

Abstract

The administration of anti-dumping investigations is the sole mandate of the

International Trade Administration Commission (“ITAC”). This investigation

has two stages, the preliminary and nal investigation stages, which are

accompanied by investigation reports at each stage. The investigation can be

terminated or suspended after the preliminary investigation if the offending

exporter ceases exports to the Southern African Customs Union (“SACU”) at

the dumped prices or revises its prices such that ITAC is satised that injurious

dumping has been eliminated. Twelve months after the publication of the nal

determination in the original investigation or the previous review, interested

parties can request an interim review of the duty if there are signicantly

changed circumstances. It is these two aspects of dumping investigations that

were the subject of litigation for the rst time in South African law in Casar

Drahtseilwerk Saar GMBH v International Trade Administration Commission

(66248/2014) 2020 ZAGPPHC 141 (14 February 2020). This note assesses the

novel approach employed by the court in readily construing these aspects of the

anti-dumping investigation in South Africa in accordance with the jurisprudence

on the Anti-Dumping Agreement. This approach is commendable in light of the

ambivalent attitude of South African courts towards the country’s obligations

in terms of the multilateral agreements of the World Trade Organization,

despite the promulgation of local legislation to comply with these obligations

and the constitutional injunction to prefer any reasonable interpretation of

the legislation that is consistent with international law over any alternative

interpretation that is inconsistent with international law.

Keywords: Dumping; price undertakings; interim reviews; International

Trade Administration Commission (“ITAC”); World Trade Organization

(“WTO”)

(2022) 33 Stell LR 560

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https://doi.org /10.47348/ SLR/2 022/i3 a11

1 Introduction

According to Article VI of the General Agreement on Tariffs and Trade

19941 (“GATT”), “dumping” is the introduction of goods into the commerce

of another country at a price that is less than their normal price. The GATT in

tandem with the Agreement on the Implementation of Article VI of the General

Agreement on Tariffs and Trade 19942 (“ADA”) regulates dumping. South

Africa is a member of the World Trade Organization (“WTO”) and assented

to the Marrakesh Agreement Establishing the World Trade Organization3

and its “covered agreements”, including the GATT.4 Consequently, South

Africa promulgated the Customs and Excise Act 91 of 1964 (“CEA”), the

International Trade Administration Act 71 of 2002 (“ITAA”) and the attendant

Anti-Dumping Regulations5 (“ADR”) to give effect to its international

obligations on dumping.6

In this regard, sections 16 and 26 of the ITAA provide that the International

Trade Administration Commission (“ITAC”) has the mandate to conduct an

anti-dumping investigation. Upon a nding of injurious dumping, an anti-

dumping duty will be imposed. However, regulation 39.1 of the ADR allows

the offending party to make an offer for a “price undertaking” in which

this party will adjust the price of the product in question to negate the need

for an anti-dumping duty or halt exports to the Southern African Customs

Union (“SACU”) at dumped prices so that ITAC accepts that dumping or

the injurious effect is eradicated, subject to the proviso that ITAC has made

a preliminary nding in the matter. If the anti-dumping duty is imposed, its

duration is normally ve years from its imposition or last review as stipulated

by regulations 38.1 and 53.1 of the ADR. Furthermore, before the expiry of

an anti-dumping duty, regulation 45 of the ADR provides that an interested

party may request that an “interim review” be conducted to assess whether the

need for an anti-dumping duty has ceased to exist because of “signicantly

changed circumstances”. The requirements of these two instruments of the

1 General Agr eement on Tariffs and Trad e 1994 (Geneva, adopted on 15-0 4-1994) 1867 UN Treaty Series

190, entered int o force 01-01-1995 (“GATT”)

2 Agreement on t he Implementation of Art icle VI of the General Agreeme nt on Ta riffs and Trade 1994

(Marra kesh, adopted on 15-0 4-1994) 1868 UN Treaty Series 201, enter ed into force 01-01-1995

3 Marrake sh Agreement Establi shing the World Trade Organ ization (Marra kesh, adopted on 15-0 4-1994)

1867 UN Trea ty Series 154, enter ed into force 01-01-1995 (“WTO Agreement ”)

4 See Appendi x 1 of the Understanding on Rul es and Procedures Gover ning the Settlement of Dis putes

in Annex 2 of the W TO Agreement , which provides th e “agreements c overed” by the World Trade

Organiza tion (“WTO”) See also the A nti-Dumping Reg ulations GN R 3197 in GG 25684 of 14-11-2003

(“ADR”)

5 See n 4

6 For a discussion of Sout h Africa’s anti-dumpi ng regime, see G Brin k Anti-Dumping and Countervailing

Investigati ons in South Africa (2002); G Bri nk “A Nutshell Guide to Anti-Du mping Action” (2008) 71

THRHR 255; G Brink “The 10 Major P roblems with the A nti-Dumpi ng Instru ment in South Af rica”

(2005) 39 J World Trade 147; L Ndlovu “South Afr ica and the World Trade Organi zation Anti-du mping

Agreement Ni neteen Years into De mocracy” (2013) 28 SAPL 281 296; See also Z Satar dien “South

Africa’s Inter national Trade Laws and Its ‘Gui llotine’ Clause” (2010) 7 Manch J Int Econ Law 52; OS

Sibanda “The S outh Africa n Anti-Dump ing Law: Consiste ncy with the GATT Ant i-Dumping Co de”

(2001) 34 CILSA 242; OS Sibanda “Proc edural Requiremen ts of the South African A nti-Dumping Law

and Practi ce prior to Imposition of A nti-Dumping Dut ies: Are They Really WTO -Inconsistent?” (202 0)

55 Foreign Trade Rev 1; S Kha nderia “Pric e Comparisons u nder the South Af rican Anti-Du mping Laws:

The Faux Pa s Continues?” (2017) 52 Foreign Trade Rev 30

THE CONDUCT OF “PRICE UNDERTAKINGS” AND

“INTERIM REVIEWS” IN THE ANTI-DUMPING REGIME 561

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