Hearing in the Anti-Dumping and Safeguard Investigations in ukraine: Current trends

Anna Gladshtein.
Moscow Center of Legal Research, Materials of V International Academic and Practical Conference “State and Law in the Context of Globalization: Revision of Approaches” as of 25 August 2012

Hearing in the Anti-Dumping and Safeguard Investigations in ukraine: Current trends

Legislation of Ukraine as a WTO member state envisages the procedure of conducting three types of trade investigations against import originating from foreign countries : anti-dumping, safeguard and countervailing. As a result of these trade investigations Ukraine may establish anti-dumping, safeguard or countervailing measures, respectively. Anti-dumping and countervailing measures are introduced in a form of duties and safeguard measures – in a form of either duties or quotas. Since Ukraine has no practice in conducting countervailing investigations and currently legislation as regards countervailing investigations is being updated it is reasonable to focus on the anti-dumping and safeguard investigations.

Trade investigations in Ukraine are conducted by the Interdepartmental Commission on International Trade (Commission), the Ministry of Economic Development and Trade (Ministry) and State Customs Service of Ukraine. The Ministry, namely its Department on Cooperation with the WTO and Trade Defense Matters, is entitled to conduct trade defense investigations, but not to adopt preliminary or final determinations. Upon results of the conducted investigation the Ministry prepares a report, which is a basis for the Commission to make a determination regarding imposition or non-imposition of preliminary or final measures.

Trade investigations are quasi-judicial procedure and by its nature constitute specialized administrative proceeding. Moreover, legislation on trade remedies is inextricably linked with the legislation of Ukraine on protection of economic competition, on foreign economic activity and customs legislation. Furthermore, application of other legislative acts and regulations apart from trade remedy laws is prescribed by the Law of Ukraine “On Protection of National Producer against Dumped Imports” itself. In particular, article 38.4 of the AD Law of Ukraine says: “laws and other legislative acts of Ukraine are applied to the extent not to intervene the provisions of this Law”.

The Hearing is one of the procedures of the trade defense investigation conducted by the authorized bodies aimed at providing interested parties to the investigation with the possibility to consider crucial points of the case and submit additional case-relevant information.

Article 6.2 of the WTO Anti-dumping Agreement establishes fundamental [2, p. 134] due process right of all interested parties to have full opportunity to defend their interests [1, p. 13], with the main objective to ensure this possibility throughout all investigation.

Article 3.1 of the WTO Agreement on Safeguards (SG Agreement) sets forth conducting public hearings or other appropriate means in which importers, exporters and other interested parties could present evidence and their views, including the opportunity to respond to the presentations of other parties. Moreover, in the course of the hearing interested parties have the right to submit their views, inter alia, as to whether or not the application of a safeguard measure would be in the public interest.

The Laws of Ukraine “On Protection of National Producer against Dumped Imports” and “On Application of Safeguard Measures against Imports to Ukraine” as of 22 December 2012 establish the possibility for the interested parties to demand hearing. However neither WTO Agreements nor national Ukrainian laws have the procedural requirements as to the structure of conducting hearing. As a result, practice of the WTO member states differs.

Some countries conduct public hearing with taking record of the procedure. Others prefer informal hearing in the course of which authorized officials only take notes [1, p. 272]. Holding of public hearing is prescribed in the USA. To ensure interested parties with such possibility practically from the beginning of the investigation the schedule of the crucial procedural event in the investigation (including the date of the hearing) is released on the official webpage of the US Trade Commission.

As a standard practice hearing in the trade investigations in Ukraine is conducted in the middle of the term of the investigation. Only interested parties to the investigation are admitted to such hearing in Ukraine.
However the common rule for all WTO members as regards conducting hearing is that authorized bodies have the right to hold meetings separately with each interested party and organize them. Moreover participation in the hearing is not mandatory for the interested party. Thereby if the party-initiator of the hearing was not duly notified on the date and time of the hearing, the procedure shall not be held in its absence.
The general procedure of the hearing is rather simple and consists of three stages: opening, consideration (presentations of the interested parties) and closure [4, p. 271].

In European Union hearing is the principle and fundamental right. Commission is obliged not only to listen to the participants of the hearing but to provide them with necessary information. Formally hearing is the procedural element ensuring the principle of fair hearing in the anti-dumping process. Breach of this principle leads to weakening of the legal force of the decision and gives possibility to cancel it [4, p. 271].

EU legislation envisages two types of hearing: hearing of one party (ex parte) confrontation meetings [4, p. 271]. Pursuant to Article 6.5 of the COUNCIL REGULATION (EC) No. 384/96 the interested parties which have made themselves known in accordance with Article 5 (10) shall be heard if they have, within the period prescribed in the notice published in the Official Journal of the European Communities, made a written request for a hearing showing that they are an interested party likely to be affected by the result of the proceeding and that there are particular reasons why they should be heard. Such hearing is conducted during the period specified in the notice on initiation of the anti-dumping investigation. Hearing of one party is conducted by the Commission staff. In the course of such hearing authorized representative of the Commission only hears out the position and arguments of the interested party according to the prior agreed list of questions or related to it specifications.

Confrontation meetings are set forth in Article 6.6 of the above mentioned EC Regulation. The opportunities shall, on request, be provided for the importers, exporters, representatives of the government of the exporting country and the complainants to meet those parties with adverse interests, so that opposing views may be presented and rebuttal arguments offered. It should be noted that there is no obligation on any party to attend a meeting, and failure to do so shall not be prejudicial to that party’s case.

The Ministry of Economic Development and Trade of Ukraine conducts hearing on the condition that interested parties have duly made themselves known to the Ministry pursuant to the terms set in the notice on initiation of the anti-dumping investigation. Moreover, interested parties have an obligation to prove that they will be subject to potential anti-dumping measures and there exist specific reasons to hold hearing.
Oral information provided in the course of the hearing by the interested party to the Ministry of Economic Development and Trade of Ukraine shall be taken into account in so far as it is subsequently confirmed in writing (commonly, the term is 5 days).

As regards hearing in the safeguard investigation, in addition to the requirements of the term for submission of the post-hearing brief, interested parties have to present arguments concerning national interests that may be affected by the safeguard measures.

The agenda for the hearing in Ukraine commonly includes the following questions: whether the applicant is a proper national producer (the criteria are set forth in the respective law), likeness of the product produces by applicant and imported, existence of the imports surge (for the safeguard investigations) or existence of dumped imports (for anti-dumping investigations), existence of injury caused by either increased imports or dumped imports to the applicant, presence of the causal link between dumped imports (imports surge) and injury, national interests. According to the terms and conditions of the hearing applicant commonly has 10 minutes to present its position and each interested party has up to 5 minutes. General discussion of the question can reach 20 minutes.

Apart from presenting position and arguments by interested parties, one of the advantages of conducting hearing (unfortunately, not used in Ukraine) is provision to the authorized investigators possibility to ask information, evidence that might affect the investigation. Moreover, authorized investigators have an opportunity to ask questions relevant to the injury determination. In this regard, investigators should identify in advance of the hearing the subjects about which additional information or clarification is likely to be sought. In addition, questioning of witnesses may be conducted [1, p. 272-273].

Considering the foregoing it should be noted that conducting of the hearing in the course of the trade investigation provides interested parties with opportunity to protect their interests, present position and reflects one of the core principles of WTO – transparency and additionally ensures competition between parties proving that hearing is the quasi-judicial procedure.

Литература:

1.Judith Czako, Johann Human and Jorge Miranda, A Handbook on Anti-Dumping Investigations, Cambridge University press 2003
2.The WTO Anti-Dumping Agreement: a commentary/ Edwin Vermulst, 2009.
3.Max Planck commentaries on world trade law – WTO – Trade Remedies – 2006.
4.Шепенко Р.А. Антидемпинговый процесс. – М.: Дело, 2002. – 616 с.