Harvard Law Professor Mark Wu, in his 2012 article “Antidumping in Asia’s Emerging Giants,” makes six proposals to reform World Trade Organization (WTO) law on antidumping (AD). One of those proposals is the requirement that all complaints for dumping be accompanied by proof of the underlying unfair trade practice that enables dumping. Wu predicts that this requirement would make it more difficult to use AD abusively so that a country could no longer “punish” foreign producers engaging in price differentiation for strategic purposes. Although Wu may be right about the short-term potential effect of this reform proposal, I do not agree that his approach is the correct one to handle with the problem of the abusive use of AD. Wu’s reform proposal is founded on the legitimate concern that today’s AD laws are consistently misused. AD has long been used as an ordinary mean of protectionism in many developed countries and is likely to be used this way in developing countries such as China and India. However, the manner in which AD is used in reality reflects the expectations of national governments. Such expectations should be incorporated into the rhetoric of AD, not denied. Wu’s proposal fails to address this fundamental problem and affirms the traditional rhetoric of AD as a sanction against unfair trade practices. Such rhetoric has never properly reflected the true intention of the policymakers who invented AD. It is also irrelevant to the way AD is used today. Furthermore, Wu’s reform proposal will introduce the highly problematic and controversial concept of fairness into the WTO law. This is likely to create a new set of problems characterized by confusion and disagreement. A better approach to making AD a more manageable instrument requires abandoning the old rhetoric based on the notion that dumping is unfair and promoting a new rhetoric focusing on its role as a safety valve. The role of AD as a political support safety valve and a temporary adjustment safety valve is supported by the public choice theory, the strategic trade theory, the industrial policy theory, and the concept of dynamic comparative advantage. The new rhetoric would avoid the problematic concept of fairness and be consistent with the expectations of national governments. The adoption of the new rhetoric in WTO law might be surprisingly easy because it does not deal with substantive law. However, once adopted, it would change how people conceptualize AD and bring their attention to the problems associated with the lax legal standards governing its use. Thus, the function of the rhetoric of AD as a guideline for good policymaking will be restored.
- World Trade Organization
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